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Prison Legal News v. Lehman, Published Injunction, Washington DOC Censorship 2003

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LEXSEE 272 F.SUPP.2D 1151
PRISON LEGAL NEWS, et al, Plaintiffs, v JOSEPH LEHMAN, et al, Defendants
Case No. C01-1911L
272 F. Supp. 2d 1151; 2003 U.S. Dist. LEXIS 11915; 31 Media L. Rep. 2313
June 17, 2003, Decided
June 17, 2003, Filed; June 18, 2003, Entered

SUBSEQUENT HISTORY: Affirmed by Prison Legal
News v. Lehman, 2005 U.S. App. LEXIS 1556 (9th Cir.
Wash., Feb. 1, 2005)
DISPOSITION: [**1] PLN's motion for summary
judgment was granted in part and denied in part and
Department's motion for summary judgment was granted
in part denied in part. Permanent injunction was ordered.
LexisNexis(R) Headnotes

COUNSEL: For Prison Legal News, Rollin Wright,
Plaintiffs: Jesse Andrew Wing, MACDONALD,
For Joseph Lehman, Eldon Vail, Carol Porter, James
Blodgett, Scott Frakes, Kay Walter, Alice Payne, Maggie
Miller-Scott, Richard Morgan, Bob Moore, John
Lambert, Doug Waddington, Belinda D Stewart,
Defendants: Shannon Elizabeth Inglis, ATTORNEY
JUDGES: Robert S Lasnik, United States District Judge.
OPINIONBY: Robert S Lasnik
This matter comes before the Court on cross motions
for summary judgment filed by plaintiffs Prison Legal
News and Rollin Wright (collectively, "PLN") and

defendants Joseph Lehman, et al (collectively, "the
Department") For the reasons set forth in this Order, the
Court grants in part and denies in part PLN's motion
(Dkt. [**2] # 67) and grants in part and denies in part
the Department's motion (Dkt # 80) n1

n1 Each party moved to strike evidence
submitted by the other. See PLN's Response at 24 (motion to strike evidence of mail volume);
Department's Response at 20-22 (motion to strike
exhibits summarizing deposition testimony).
Although the Court would reach the results set
forth in this Order even if this evidence had not
been submitted, the Court denies the parties'
motions to strike.
A. Background.
PLN is a Washington nonprofit corporation that
publishes and distributes publications regarding
prisoners' rights, prison conditions, and prison-related
news. PLN publishes a monthly subscription magazine,
Prison Legal News Working to Extend Democracy to All.
The magazine's editor, Paul Wright, is a Washington
State correctional facility inmate, as are a number of
PLN's contributing writers. (Miniken Decl P 6). PLN has
just under 3,000 Prison Legal News subscribers in all
[*1154] fifty states Id. P [**3] 8. Approximately 120
subscribers are inmates in Washington State correctional
facilities Id P 9.
The individual defendants are policy-making
employees of the Washington Department of

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Corrections, including the Department Secretary, Deputy
Secretary / Office of Correctional Operations Director,
Regional Administrator, former Regional Administrator,
nine superintendents, and one associate superintendent.
(PLN's Motion at 5-6) The Department operates fifteen
correctional institutions, including eight major
institutions, housing approximately 16,000 inmates.
(Vail Decl. P 3) The Department employs approximately
one mailroom staff person per 600 persons served at an
institution, including both inmates and staff. Id P 6 The
Department's Policy Directive 450.100, "Mail for
Offenders," ("DOC 450 100") sets forth rules and
procedures regarding offender mail. See Doonan Decl
Ex. 2 (DOC 450 100).
Two of the policies set forth in DOC 450.100 are
particularly important here. First, the directive prohibits
inmates from receiving "bulk mail" unless that bulk mail
is a subscription publication n2 Id. at 6. In contrast to
first and second class mail rejected due to prohibited
content, [**4] "no rejection notice is required for bulk
mail that is not a subscription publication" Id
Additionally, inmates are not permitted to receive
catalogs by mail, whether sent first class, second class, or
at a "bulk mail" rate n3 Id at 5. If mail other than that
constituting bulk mail is rejected for delivery, inmates
receive notice of the rejection and may appeal the
decision Id at 8-9.

n2 The Department defines "bulk mail" as
"mail which is clearly marked 'non-profit' or 'bulk
rate' This type of mail is also referred to as bulk
business mail or advertising mail and includes,
but is not limited to, catalogs and circulars."
(Wilkinson Decl. Ex. 7 at 3).
n3 The Department defines "catalog" as "[a]
publication which is predominantly or
substantially focused on offering items for sale."
(Wilkinson Decl Ex 7 at 4)
Pursuant to postal regulation, as a nonprofit
corporation PLN is exempted from paying full postal
rates "Organizations and groups eligible for the
Nonprofit Standard Rate are permitted to [**5] mail
letters and other materials for about forty-three percent
less than the rate paid by businesses operated for profit."
United States v American Target Adver., Inc, 257 F.3d
348, 352 (4th Cir 2001) PLN sends Prison Legal News
and a substantial portion of other correspondence to
inmates under the "standard rate." Savings from sending
mail at the standard rate are significant: a one ounce
letter sent first class costs 37 cents, while a 3.3 ounce
letter sent at the standard rate costs 16 cents (Miniken
Decl. P 11)

PLN alleges that several of the Department's
practices violate its First Amendment right to
communicate with inmates. In particular, PLN
challenges the catalog and bulk mail bans n4 See
Amended Complaint PP 3.1-3.14, PLN's Motion at 4164. Additionally, PLN alleges that the Department has
wrongfully denied it "approved vendor" status and that
the Department's failure to provide inmates third-party
legal materials sent by PLN is unconstitutional [*1155]
censorship. See Amended Complaint PP 3.15-3.25, 3.383.43, PLN's Motion at 64-69 Finally, PLN contends that
the Department's failure to notify PLN or inmates when
standard rate mail or catalogs are received [**6] by the
mailroom and not delivered to the addressees fails to
meet minimum due process requirements. See Amended
Complaint PP 3 26-3.37, PLN's Motion at 69-71.

n4 In addition to arguing that the catalog and
bulk mail bans violate the First Amendment as
not being reasonably related to legitimate
penological interests, PLN challenges the
unconstitutionally overbroad, and subject to
preemption by federal postal regulations See
PLN's Motion at 41 -46, 51-52 Because the Court
finds that the catalog and bulk mail policies are
not reasonably related to legitimate penological
interests under Turner v Safley, 482 U.S. 78, 96
L. Ed. 2d 64, 107 S. Ct. 2254 (1987), the Court
does not address these arguments

B. Summary Judgment Standard.
Summary judgment is proper if the moving party
shows that "there is no genuine issue as to any material
fact and that [it] is entitled to judgment as a matter of
law" Fed. R. Civ P 56(c)
C. The Catalog [**7]

and Bulk Mail Prohibitions.

n5 Because the Department's justifications
for the catalog and bulk mail prohibitions are
identical, the Court simultaneously analyzes the
constitutionality of both policies.
Publishers have a "legitimate First Amendment
interest" in communication with prisoners by mail.
Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th
Cir 2001) (quoting Thornburgh v Abbott, 490 U.S. 401,
408, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989)).
However, "prisoners' constitutional rights [and also the
rights of those who send mail to prisoners] are subject to

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substantial limitations and restrictions in order to allow
prison officials to achieve legitimate correctional goals
and maintain institutional security" Walker v Sumner,
917 F.2d 382, 385 (9th Cir. 1990). Therefore, prison
policies that infringe upon this First Amendment right of
communication will be upheld if "reasonably related to
legitimate penological interests" Turner v Safley, 482
U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987).
1. The Turner Inquiry.
Turner "set[s] forth the standard for evaluating
prisoners' constitutional claims" Walker, 917 F 2d at 385
To guide courts in determining whether a challenged
regulation is "reasonably related to legitimate
penological interests" Turner established a four-factor
(1) whether the regulation is rationally related to a
legitimate and neutral governmental objective,
(2) whether there are alternative avenues that remain
open to the inmates to exercise the right,
(3) the impact that accommodating the asserted right will
have on other guards and prisoners, and on the allocation
of prison resources; and
(4) whether the existence of easy and obvious
alternatives indicates that the regulation is an
exaggerated response by prison officials
Prison Legal News, 238 F 3d at 1149 (citing Turner, 482
U.S. at 89) A court should afford "considerable
deference to the determinations of prison administrators
who, in the interest of security, regulate the relations
between prisoners and the outside world," though the
Turner test "is not toothless." Thornburgh v Abbott, 490
U.S. 401, 408, 414, 104 L. Ed. 2d 459, 109 S. Ct. 1874
(1989). [**9]
a. Rational Relation to Legitimate and Neutral
Governmental Objectives.
The first element of the Turner test requires a court
to "(1) determine whether the [defendant's] regulation is
legitimate and neutral, and (2) assess whether there is a
rational relationship between the governmental objective
and the regulation." Id. Although PLN alleges that the
Department has demonstrated bias against it and that the
policies are not uniformly applied, PLN does not appear
to challenge the neutrality of the regulations, and
therefore [*1156] the Court turns directly to the
question of whether there is a rational relationship
between the Department's objectives and the regulations.

When a plaintiff presents evidence to refute a
"common-sense connection" between a legitimate
objective and a prison policy, the defendant "must
present enough counter-evidence to show that the
connection is not so remote as to render the policy
arbitrary or irrational" Frost v. Symington, 197 F 3d 348,
357 (9th Cir 1999) However, if the plaintiff fails to come
forward with such evidence "prison officials need not
prove that the banned material actually caused problems
in the past, or that [**10] the materials are 'likely' to
cause problems in the future." Mauro v. Arpaio, 188 F 3d
1054, 1060 (9th Cir 1999). For the reasons set forth
below, the Court finds that PLN has presented evidence
sufficient to rebut the "common-sense connection"
presumption Therefore the Court considers both PLN's
evidence and the Department's counter-evidence, all of
which relates to whether the policies are rationally
related to minimization of contraband, detection of
contraband, and reduction of the risk of fire in
Washington State correctional facilities
i. Reduction of Volume of Mail that may Contain
The Department submitted excerpts from the
deposition of defendant Scott Frakes in which he stated
that "the bulk mail often is in fact bulky, and to
adequately search through it, [to] make sure that
contraband is not hidden in mail. takes a lot of
resources." (Inglis Decl. Ex 23, at 41). The Court does
not doubt that searching mail is time consuming
However, there is no rational relation between a policy
banning catalogs and bulk mail and the penological
objective of reducing the volume of mail that may
contain contraband. As a matter of common sense and
the [**11] defendants' experience, it is far more likely
that contraband would be contained in personal first class
mail from, for example, an inmate's friends or family
members, than in bulk mail, which consists of identical
pieces of mail sent to numerous recipients. Cf. Prison
Legal News, 238 F 3d at 1150 (finding "no evidence
supporting a rational distinction between the risk of
contraband in subscription non-profit organization
standard mail and first class or periodicals mail").
ii. Reduction of Volume of Mail Generally.
The Department argues that the ban on catalogs and
bulk mail is justified because it reduces the overall
volume of mail, allowing mailroom staff more time to
examine first class mail, second class mail, and
subscription bulk mail. (Department's Response at 27-28)
"The volume of mail received in a given day will impact
the degree of inspection taking place in prison mailrooms
... The greater the volume of mail, the more time staff
must dedicate to reviewing and screening mail, and if the
volume becomes unmanageable, then screening becomes

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less successful and a greater chance exists that
contraband or other prohibited items will be introduced
inside [**12] the institutions." Id
PLN contends that if the Department were to
provide what PLN argues is constitutionally required
notice of rejection of bulk mail and catalogs, see Section
II.D, infra, the bulk mail and catalog bans would
consume more staff resources than would a policy
allowing such mail. (PLN's Motion at 56-57).
Additionally, PLN argues that the actual volume of such
mail is minimal compared to the actual volume of mail
received at Washington correctional facilities, and that
"banning all catalogs or bulk mail is an arbitrary method
of reducing the flow of mail." Id at 57-58
Other courts have considered this
justification for bans on certain types of mail For
example, in Prison Legal News the plaintiffs challenged
the Oregon Department of Corrections' ban on mail sent
at the standard rate as applied to subscription
publications sent by a non-profit organization. Prison
Legal News, 238 F.3d at 1149 Noting that "the reality is
that all incoming mail must be sorted," the court found
that allowing subscription, non-profit organization
standard mail "would not substantially deplete prison
resources and would not add significantly to the
mailroom [**13] staff's workload" Id. at 1151 The
Oregon Department of Corrections then argued that
"although mailroom staff can separate standard mail
from non-profit organization standard mail, it cannot
readily distinguish subscription non-profit organization
mail from unsolicited non-profit organization mail. Id
(emphasis added). Recognizing that distinguishing
subscription from unsolicited mail would pose
challenges, the court stated that "we do not believe that
requiring the delivery of non-profit organization standard
mail will unduly burden the Department." Id
Similarly, in another case the Ninth Circuit held that
an Oregon Department of Corrections policy that banned
inmates from receiving standard rate mail was
unconstitutional as applied to pre-paid, for-profit
subscription publications Morrison v. Hall, 261 F.3d 896,
905 (9th Cir. 2001) The court held that the defendant's
"efficient use of staff time" argument did not Justify a
ban upon for-profit subscription publications Id at 90304, but see Alcala v. Calderon, 1997 U.S. Dist. LEXIS
11297, 1997 WL 446234 (N.D. Cal 1997) (finding that
"volume of 'Junk mail' makes the mailroom screening
[**14] process difficult and slows the delivery of first
class and legal mail" and upholding ban on such mail)
The Court finds that the Ninth Circuit's analysis of
the "efficient use of staff time" argument in Prison Legal
News and Morrison applies here As the Prison Legal
News Court noted, all incoming mail must be sorted.

Although mailroom staff likely will need to spend more
time analyzing the content of catalogs and nonsubscription mail sent standard rate, the Court cannot
find that a ban on such mail is rationally related to the
goal of reducing contraband. "Prohibiting inmates from
receiving mail based on the postage rate at which the
mail was sent is an arbitrary means of achieving the goal
of volume control." Morrison, 261 F 3d at 903-04.
PLN submitted evidence, based upon a five-day
sample, that the Monroe Correctional Complex ("MCC")
received only thirty-one catalogs and pieces of standard
rate mail per day. (PLN's Motion at 10-11 (citing
Mailroom Inspection Depositions and Gamble
Deposition)) The Department argues that this number is
misleading because "if the catalog restriction did not
exist and inmates could once again begin ordering
catalogs [**15]
individually, this amount would
substantially increase." (Department's Response at 36)
The same argument was raised and rejected in Prison
Legal News Responding to the concern that lifting a ban
on subscription non-profit standard mail would "lead to
an unmanageable influx of" such mail, the court noted
that the concern could be addressed by other regulations
such as the "regulations requiring proper address and
addressee information and restricting content" Prison
Legal News, 238 F.3d at 1151. Similar departmental
regulations will help control volume here See Doonan
Decl. Ex. 2 (DOC 450 100) at 3-6 (setting forth inmate
address and return address requirements and content
iii. Fire Hazard.
The Department contends that because "inmates can
and do set fires" in cells "any additional paper in a cell
can contribute [*1158] to an inmate's ability to start a
fire, or to fuel a fire once it is started" (Department's
Response at 28). However, the Department utilizes other
regulations to address this concern:
The following additional items are
authorized in general population at close,
medium, minimum, or pre-release
1. Books and periodicals [**16] in an
amount not exceeding 2,160 cubic inch
capacity (i.e, a carton 18" x 12" x 10" or
any other dimensions that does not exceed
2, 160 cubic inches)
2. Unframed personal/family photographs,
personal mail, journals or diaries, writing
pads, pencils, pens, and personal papers in
an amount not to exceed that which may
be contained in a 432 cubic inch box (i.e,
6" x 6" x 12" or any other dimensions that
do not exceed 432 cubic inches).

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(Wilkinson Decl Ex. 6 (DOC 440 000, Personal Property
for Offenders) at 3) The fire hazard justification has been
rejected in a similar context where the correctional
facility maintained a limit on the amount of paper
material that an inmate may possess:

The fact that Department property
regulations already limit the amount of
material an inmate can possess and the
fact that inmates could conceivably
receive bulk mail materials if sent first
class refute the common sense connection
between the refusal to deliver subscription
standard mail and the reduction of fire
hazards. It is irrational to believe that
delivering the small amount of
standard mail that comes into Oregon
prisons would significantly [**17]
contribute to paper accumulation and
increased fire hazards, as the total amount
of mail prisoners may store in their cells
is currently limited by property

Prison Legal News, 238 F.3d at 1150 (citing Crofton v.
Roe, 170 F 3d 957, 960 (9th Cir. 1999)) That a greater
volume of mail is certain to enter inmates' cells should
the catalog and bulk mail ban be lifted (as opposed to the
additional volume caused by the allowing subscription
non-profit standard mail in Prison Legal News) does not
save the fire hazard justification See Morrison, 261 F 3d
at 902 ("Although the number of subscription for-profit
publications that enter the OSP may be greater than the
number of subscription non-profit publications, because
the OSP already regulates the quantity of possessions
that prisoners may have in their cell, it is similarly
'irrational' to prohibit prisoners from receiving
subscription for-profit mail on the theory that it reduces
fire hazards"); but see Alcala, 1997 U.S. Dist. LEXIS
11297,1997 WL 446234, at *3 ("Restricting the flow of
'junk mail' may well reduce the amount of flammable
material that an inmate will possess in [**18] his cell at
any given time")
iv. Cell Search Efficiency.
The Department argues that "the catalog and bulk
mail prohibitions also assist custody staff because
increased material in an offender's cell creates more
opportunity for offenders to hide contraband, and also
creates additional work as it takes more staff time to

conduct cell searches and makes the searches less
effective." (Department's Response at 28). This argument
fails to establish a rational relationship between the bans
and the cell search efficiency goal for the same reason
that the fire hazard argument failed. n6 See Section
[*1159] II.C.1.a 111, supra, see also Morrison, 261 F 3d
at 902 ("In light of the regulation limiting the total
amount of property in a cell ... permitting inmates to
receive for-profit, subscription publications could not
possibly increase the total volume of cell materials"),
Prison Legal News, 238 F.3d at 1151 (ban on non-profit
subscription publications "is not rationally related to the
Department's interest in rendering efficient cell

n6 The Department argues that the offender
personal property restrictions alone are
insufficient to address the fire hazard and
efficient cell search goals. "Allowing inmates to
receive as many catalogs and as much bulk mail
as they like, but requiring custody staff to
constantly monitor and enforce the property
restrictions creates more work for custody staff,
detracting from other responsibilities, and also
creates more tension between inmates and staff"
(Department's Response at 28-29) However,
prohibiting inmates from receiving catalogs and
barring mail sent at a certain postage rate are
arbitrary means of reducing inmate-staff tension
and minimizing staff work. See Section II C 1 a
11, supra.
b. Conclusions Regarding Application of Turner
Factors to Catalog and Bulk Mail Prohibitions.
Turner's rational relation to legitimate and neutral
governmental objective factor "constitutes a sine qua
non" Walker v. Sumner, 917 F 2d 382, 385 (9th Cir.
1990) Because the bans on catalogs and non-subscription
standard rate mail are not rationally related to legitimate
penological objectives, the Court need not consider the
other Turner factors, and must grant PLN summary
judgment on these issues. n7 Prison Legal News, 238 F
3d at 1151.

n7 The Department notes that United States
District Court for the Eastern District of
Washington upheld a catalog ban similar to that
at issue here. (Department's Motion at 8 (citing
Allen v. Wood, 970 F. Supp 824, 832 (1997))).
Although the Allen Court upheld a catalog ban on
the basis that it was rationally related to

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contraband, fire hazard, and efficiency goals, that
opinion was issued before the Ninth Circuit
rejected such justifications for similar policies in
Prison Legal News and Morrison.
D. Notice of Rejection of Catalogs and NonSubscription Bulk Mail.
PLN argues that the Department's failure to provide
notice and review of rejections of catalogs and standard
rate mail deprives both PLN and the inmates of due
process as required by Procunier v Martinez, 416 U.S.
396, 40 L. Ed. 2d 224, 94 S. Ct. 1800 (1974). (PLN's
Motion at 69-71). Guarantees of due process apply only
when the interest at stake is a constitutionally protected
liberty or property interest Board of Regents v Roth, 408
U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972).
"The Supreme Court has held that 'the interest of
prisoners and their correspondents in uncensored
communication by letter, grounded as it is in the First
Amendment, is plainly a 'liberty' interest within the
meaning of the Fourteenth Amendment even though
qualified of necessity by the circumstance of
imprisonment.' This liberty interest attaches not only to
communications by letter, but also to a prisoner's receipt
of subscription publications." Krug v Lutz, 329 F 3d 692,
697 (9th Cir. 2003) (citations omitted).
In Prison Legal News the court stated that because
it had found the plaintiffs "have a
constitutionally protected right to receive subscription
non-profit organization standard mail, it follows that
such mail must be afforded the same procedural
protections as first class and periodicals mail under
Department regulations." Prison Legal News, 238 F 3d at
1152-53. Here, because the Court has found that inmates
have a constitutionally protected right to receive catalogs
by mail and non-subscription standard rate mail, the
addressees of such mail must be afforded the same
procedural protections afforded to recipients of first
class, second class, and subscription standard rate mail
under Department regulations
[*1160] E. Prohibition Against Publications not
Mailed Directly from a Publisher or Retailer.
The Department prohibits delivery of "publications
not mailed directly from the publisher/retailer" n8
(Doonan Decl. Ex. 2 (DOC 450.100) at 5) However,
"clippings of newspaper and magazine articles not
mailed directly from the publisher/retailer are permitted
in quantities identified in the Policy Directive." n9 Id.
PLN contends that the Department has wrongfully
invoked this policy to prevent delivery of materials

[**22] sent by PLN to inmate Paul Wright and that the
policy is unconstitutional as applied to PLN. (First
Amended Complaint PP 3.15-3 25, PLN's Motion at 6465) In contrast to the catalog and non-subscription
standard rate mail prohibitions, the Court finds that
application of the Turner inquiry to the ban on
publications sent from other than publishers and retailers
demonstrates that this policy is a permissible limitation
on PLN's and the inmates' constitutional rights.

n8 The Department defines "publication" to
consist of "reproduced handwritten or
typed/printed or pictorial materials including
books, periodicals, newspapers, magazines, and
pamphlets." (Wilkinson Decl Ex. 7 at 27).
n9 The Department permits inmates to
receive one magazine article per envelope and ten
newspaper clippings per envelope. (Doonan Decl.
Ex. 2 (DOC 450 100) at 5)
With respect to the first Turner factor, there is
significantly less risk that a book or magazine sent
directly from a publisher or retailer will contain
contraband [**23] than a book or magazine sent from
other individuals, such as an inmate's friends or family
members. (Vail Decl. P 20). Additionally, there is less
risk that publications sent from publishers and retailers,
as opposed to those sent by an inmate's friends or family
members, will have been altered from their original
forms. Id. P 21. This is important because publications
that have been approved by the Department for statewide
distribution receive "minimal inspection, if any," due to
the minimal risk of contraband Id If the publisher/retailer
restriction is eliminated, such publications will require
more rigorous inspections "due to the greater possibility
that [they are] altered or contraband is hidden between
the pages." Id The Court finds that the ban on
publications sent from other than publishers or retailers
is rationally related to the penological interest of
reducing the introduction of contraband into correctional
The second Turner factor also favors finding the
publisher/retailer rule is reasonably related to legitimate
penological interests because inmates have "alternative
means of obtaining reading material" that are not
burdensome or insufficient. [**24] Bell v Wolfish, 441
U.S. 520, 551, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)
Inmates may borrow books from libraries operated by
the Washington State Library System, which includes
150,000 titles and which allows inmates to obtain books
through an inter-library loan system linked with other
Washington libraries. (Gonzalez Decl. P 7) Additionally,
inmates may purchase books and magazines from

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31 Media L. Rep. 2313
publishers and retailers. With respect to PLN's specific
concerns about sending publications to inmates, it may
purchase a magazine subscription on behalf of an inmate.
Provided that the magazine meets the Department's
content requirements and is sent from the magazine
publisher, it should be delivered to the inmate If PLN
sells certain books it would qualify as a retailer for those
books and would be permitted to send such books to
inmates n10

cover books not sent directly by publishers, book clubs,
or bookstores did not violate First [**26] Amendment),
Gagne v. Northwestern Nat'l Ins. Co., 881 F.2d 309 (6th
Cir 1989) (upholding publisher only rule for newspapers,
magazines, and books); Kines v. Day, 754 F 2d 28, 29
(1st Cir 1985) (same); Hurd v. Williams, 755 F.2d 306,
309 (3d Cir 1985) (same), Cotton v. Lockhart, 620 F.2d
670, 672 (8th Cir. 1980) (same).
F. Third-Party Legal Materials.

n10 PLN argues that the Department's
"application of an 'approved vendor' rule to
publications PLN sends to its contributing writers
is arbitrary and serves no purpose. Defendants do
not apply the policy to books PLN sells. There is
no justification for this distinction" (PLN's
Motion at 65). The justification for the distinction
is that books are an effective way to introduce
contraband into a correctional facility. See Bell,
441 U.S. at 551 ("Hardback books are especially
serviceable for smuggling contraband into an
institution; money, drugs, and weapons may
easily be secreted in the bindings ... They are also
difficult to search effectively"). Although PLN is
in the rare position of having an interest in
providing publications to particular inmates (its
editor and contributing writers) and being a book
retailer, the Department's interest in maintaining a
consistent policy regarding the introduction of
publications by mail to its correctional facilities
outweighs any hardship PLN must endure
The third Turner factor requires
consideration of "the impact that accommodating the
asserted right will have on other guards and prisoners,
and on the allocation of prison resources" Prison Legal
News, 238 F.3d at 1149 This factor favors upholding the
publisher only rule because allowing prisoners to receive
books and magazines from any source would consume
more prison resources by requiring mailroom staff to
more thoroughly search all mailed books and magazines
Because there are no "easy and obvious" alternatives
to the publisher only rule, the fourth Turner factor also
favors upholding this policy.
Based upon the foregoing analysis of the Turner
factors, the Court finds that the Department's publisher
only rule is reasonably related to legitimate penological
interests and therefore is not an unconstitutional violation
of PLN's or the inmates' First Amendment rights. This
result is in accord with several other opinions in which
courts upheld similar restrictions See, e.g., Bell, 441 U.S.
at 549 (holding that policy prohibiting receipt of hard-

PLN argues that the Department's refusal to deliver
third-party legal materials PLN sends to inmates violates
the First Amendment. (PLN's Motion at 66-69)
DOC 450.100 prohibits the delivery of "mail
containing information which, if communicated, could
create a risk of violence and/or physical harm to any
person." n11 (Doonan Decl Ex. 2 at 4). The Department's
glossary provides:
Third-party legal materials--Must meet
the following requirements
a. Mail which consists of
recommendations, orders, complaints or
answers, settlement agreements, class
action notices, legal briefs and
memoranda, and motions, and
b. Mail which otherwise complies with
DOC Policy 450.100 Mail for Offenders
and [**27] has been stamped "approved
correctional staff. (DOC 590.500)
(Wilkinson Decl. Ex. 7 at 20).
n11 Purportedly quoting DOC 450.100, PLN
states that the Department permits inmates at
major prisons to "possess third-party legal
materials mailed to the offender from an outside
sender provided the materials have been
previously screened for compliance with DOC
450.100, Offender Legal Mail[,] and are stamped
'approved third-party legal material.'" (PLN's
Motion at 33 (emphasis in original) (purportedly
quoting Wilkinson Decl. Ex 5 (DOC 450.100)))
Neither copy of DOC 450 100 before the Court
(Doonan Decl. Ex. 2 and Wilkinson Decl. Ex 5)
contains the quoted language. However, this does
not appear to be relevant to this issue because the
Department's prohibition against mail that could
create a risk of physical harm to any person and
the requirements for third-party legal mail set
forth in the Department's glossary's definition of

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272 F. Supp. 2d 1151, *; 2003 U.S. Dist. LEXIS 11915, **;
31 Media L. Rep. 2313
"legal materials" appear to be the bases upon
which the Department bans certain third-party
legal mail There appear to be no substantive
differences between the language PLN quotes
above and the Department's policy regarding such
mail as discerned from the prohibition on mail
that could create a risk of physical harm and the
definition of "legal materials."
That the Department's policy prohibiting mail
containing information that could create a risk of
violence or physical harm to any person is facially
constitutional requires little analysis. n12 The prohibition
against such mail is rationally related to the legitimate
penological interest of inmate and staff safety PLN
remains free to send and inmates may receive third-party
legal material that does not contain such information.
Allowing inmates to receive such information would
have a negative effect upon other inmates and
correctional facility staff. Finally, there appear to be no
"easy and obvious alternatives" to such a prohibition.

n12 PLN does not appear to challenge
facially the "information that could create a risk
of violence" regulation.
PLN's complaints regarding the Department's
application of these policies to third-party legal materials
present more complicated questions PLN challenges the
rejection of well over one hundred third-party legal
documents. See PLN's Motion at 35-38 PLN argues that
[**29] much of the information that the Department
censored on the basis of a risk of violence is available to
inmates from other sources, such as television, Prison
Legal News, newspapers, and federal and state court
reporters. Id. at 66-68 Additionally, PLN argues that
certain of the documents pose no "articulable threat" and
that the Department's "strong-arming" justification is
overbroad Id at 67. PLN suggests that the Department's
real motivation for the censorship of the documents at
issue "is that the materials embarrass the [Department]
and educate inmates how to file claims" Id at 68.
For certain pieces of censored mail PLN may be
correct However, resolution of these issues requires
highly fact-dependent inquiries that, on the basis of the
evidence before the Court, are not amenable to summary
determination. Because a court must view all reasonable
inferences drawn from the facts in the light most
favorable to the nonmoving party, the Court cannot grant
PLN summary judgment on these issues Matsushita Elec
Indus. Co. v Zenith Radio Corp., 475 U.S. 574, 586, 89
L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The Department

is not entitled to summary judgment [**30] on these
issues for the same reason
G. Qualified Immunity.
The Department argues that if the Court finds that
PLN's constitutional rights were violated, the individual
defendants are entitled to qualified immunity from
damages. (Department's Motion at 24)
The individual defendants are entitled to qualified
immunity if their conduct "does not violate clearly
established statutory or constitutional rights of which a
reasonable person would have known." Harlow v
Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S.
Ct. 2727 (1982) Courts in the Ninth Circuit consider "(1)
whether the law governing the official's conduct was
clearly established at the time of the conduct; and, if so
(2) whether [*1163] under that law a reasonable official
could have believed the conduct was lawful" Prison
Legal News, 238 F 3d at 1152 (quoting Robinson v.
Solano County, 218 F.3d 1030, 1034 (9th Cir 2000)) A
court may consider unpublished opinions in the qualified
immunity analysis. Prison Legal News, 238 F 3d at 1152
("Although unpublished decisions carry no precedential
weight, [defendants] may have relied on these decisions
to [**31] inform their views on whether the regulation
was valid and whether enforcing it would be lawful.").
Additionally, the decisions of other circuit courts of
appeals, district courts, and state courts may be
considered. Sorrels v. McKee, 290 F 3d 965, 970 (9th
Cir. 2002) (citing Capoeman v Reed, 754 F 2d 1512,
1514 (9th Cir. 1985))
Although both Prison Legal News and Morrison are
strong statements regarding the constitutional right to
communicate with inmates by mail, the Court finds that
because the "contours" of PLN's right to send and the
inmates' right to receive catalogs and non-subscription
standard rate mail were not "'sufficiently clear that a
reasonable official would understand that what he was
doing violated [those] rights,' the law in this case was not
'clearly established'" Id. (quoting Anderson v Creighton,
483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034
(1987)). A prison official reasonably could have believed
that the high degree of protection for communications
with inmates announced in Prison Legal News and
Morrison was limited to communication by subscription
publication. Additionally, although [**32] prior to
Prison Legal News and Morrison, courts in this circuit
have upheld similar policies See, e g, Alcala, 1997 U.S.
Dist. LEXIS 11297, 1997 WL 446234 (N D. Cal 1997)
(upholding ban on "catalogs, advertisements, brochures,
and material whose primary purpose is to sell a
product(s) or service(s) and when taken as a whole, lacks
serious literary, artistic political, educational, or
scientific value") Finally, courts in other circuits have

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272 F. Supp. 2d 1151, *; 2003 U.S. Dist. LEXIS 11915, **;
31 Media L. Rep. 2313
upheld similar policies See, e.g., Dixon v Kirby, 210 F.
Supp. 2d 792, 800 (S.D.W V. 2002), aff'd, 48 Fed. Appx
93 (4th Cir. 2002) (upholding catalog ban), Kalasho v
Kapture, 868 F Supp 882, 888 (E D. Mich. 1994)
(upholding bulk mail ban); Sheets v Moore, 97 F 3d 164,
169 (6th Cir. 1996) (upholding ban on "free advertising
material, fliers, and other bulk-rate mail except that
received from a recognized religious organization sent in
care of the institution chaplain")
Although the Court finds that the catalog and nonsubscription standard rate mail bans are not reasonably
related to legitimate penological interests, reading Prison
Legal News, Morrison and other relevant opinions,
[**33] a prison official reasonably (though wrongly)
could have believed that the Department's policies were
constitutional. n13 The Court therefore finds that the
individual defendants are entitled to qualified immunity
for damages from the catalog and non-subscription
standard rate mail bans, and the Department's failure to
notify inmates of mail rejected pursuant to those policies

Department's motion with respect to PLN's claims
regarding the publisher/retailer only rule. The Court
DENIES both parties' motions with respect to PLN's
claims regarding third-party legal materials The Court
GRANTS the Department's motion with respect to
qualified immunity for damages from the catalog ban,
the bulk mail ban, and mail rejection notification.
The Court further ORDERS that the Department is
PERMANENTLY ENJOINED from prohibiting delivery
of catalogs based only on the fact that the mail is a
catalog and from prohibiting delivery of "bulk" mail
based only upon the fact that the mail is sent at a
standard rate This injunction shall take effect sixty days
after the date of this Order. n15 This injunction in no
way prohibits the Department from enforcing its contentbased restrictions or other policies, such as inmate
address and return address requirements.

n15 The Court recognizes that adjusting mail
policies, training staff, and possibly re-allocating
staff to comply with this injunction is a complex
process that is likely to take a significant amount
of time. For that reason the Court sets the
effective date of the injunction for sixty days
after the date of this Order.

n13 The Court also finds that a prisoner's
liberty interest in uncensored communication by
catalog and non-subscription bulk mail was not
so clearly established as to preclude qualified
immunity for the individual defendants on PLN's
rejection notice claim.
n14 This finding of qualified immunity is
limited to the issues resolved in this Order The
Court expresses no opinion regarding whether the
individual defendants will be entitled to qualified
immunity should PLN ultimately prevail on its
claims regarding censored third-party legal
For the reasons discussed above the Court GRANTS
PLN's motion [**34] for summary judgment (Dkt. # 67)
and DENIES the Department's motion for summary
[*1164] judgment (Dkt. # 80) with respect to PLN's
claims regarding the catalog ban, the bulk mail ban, and
notification of rejection of catalogs and bulk mail The
Court DENIES PLN's motion and GRANTS the

At oral argument the Court directed the
parties to engage in mediation in July of this year
for the issues remaining in this litigation At that
mediation the parties may discuss timing issues
that may arise.
The Court also STRIKES the trial date and deadlines
set forth in the Amended Scheduling Order (Dkt # 43)
and STAYS the pending motions in limine (Dkts # 110,
The Clerk of the Court is directed to send copies of
this Order to all counsel of record
DATED this 17th day of June, 2003.
Robert S Lasnik
United States District Judge