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CBCC Publisher Only Rule Upheld on Qualified Immunity Grounds

Martin Johnson was a federal prisoner sent to the Clallam Bay Corrections Center (CBCC) in Washington state as a boarder. He filed suit challenging numerous aspects of prison conditions under the due process clause of the federal constitution. The district court in Seattle dismissed the suit on motion by the state for summary judgment. Johnson appealed and the court of appeals affirmed the dismissal in its entirety. The opinion supersedes 926 F.2d 921, where the court had found in favor of Johnson on the publishers only rule aspect of the suit.

The court of appeals for the 9th circuit held that Johnson had no due process right to a hearing prior to being locked in his cell for not going to school or working. Likewise, he had no right not to be housed in a state prison.

The court of appeals, in it's previous opinion, had remanded Johnson's challenge to the "publishers only" rule (which allows all books and magazines to be sent only from the vendor or publisher), as it affected his right to receive soft cover publications from any source. The appeals court also held that prison officials had not shown a security need in this practice. In this later opinion, the court affirmed the dismissal of this claim on the grounds that, because Johnson is no longer held in Washington's prison system, he is not entitled to injunctive relief. The court dismissed his claim for money damages on grounds of qualified immunity, holding the law in this area is not so clearly established that a prison official would know his conduct violated the law. The appeals court was silent on whether or not Johnson asked for declaratory relief.

In view of the court's holding of qualified immunity, future challenges to the publishers only rule might have better chances of success if they seek only injunctive and declaratory relief, as qualified immunity is a defense that can be raised only when the plaintiff seeks money damages from the defendants. The court did not address the question of whether the Washington state version of the publishers only rule violates the constitution, although it did note that a similar broad policy was struck down by the 2nd circuit court of appeals in Bell v. Wolfish, whereupon the federal prison official defendants modified the rule so that only hard cover books had to come from the publisher or vendor. This policy was upheld by the U.S. Supreme Court.

Additionally, the appeals court held that the CBCC law library was "adequate" because Johnson had not claimed nor shown how his access to the courts was actually impaired or hampered by the allegedly inadequate number of law books available to him. The court also ruled that prisoners are not entitled to free photocopying See, Johnson v. Moore, 948 F.2d 517 (9 Cir. 1991).

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Related legal case

Johnson v. Moore

Johnson v. Moore, 948 F.2d 517 (9th Cir. 10/09/1991)


[2] No. 89-35867

[3] 1991, 948 F.2d 517

[4] filed*fn*: October 9, 1991.


[6] Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-88-1001-S. Philip K. Sweigert, Magistrate, Presiding.

[7] Martin Allen Johnson, Pro Se, Tucson, Arizona, for the Plaintiff-Appellant.

[8] Douglas W. Carr, Assistant Attorney General, Olympia, Washington, for the Defendant-Appellee.

[9] Thomas Tang, Dorothy W. Nelson and William C. Canby, Jr., Circuit Judges.

[10] Author: Per Curiam

[11] Appellant Martin Allen Johnson appeals pro se the district court's entry of summary judgment in his civil rights action brought under 42 U.S.C. section 1983 against Robert Moore, the superintendent of Clallam Bay Corrections Center (CBCC) in Washington state where Johnson was incarcerated. Since this appeal was filed, Johnson was transferred to a federal prison and is currently housed in Arizona. Thus, his claim for injunctive relief from the "publishers only" rule's application to softcover books and from the Clallam Bay's smoking policy is moot because Johnson no longer is subjected to those policies. Qualified immunity prevents the imposition of compensatory damages stemming from the "publishers only" rule or the Washington prison's smoking policy. We find the due process claims, the freedom of religion and eighth amendment claims to be meritless and affirm the district court as to those. We also hold that the prison's failure to provide appellant with free photocopying does not violate his right to access to the courts.

[12] I. Standard of Review

[13] A district court's grant of summary judgment is reviewed de novo. Berg v. Kincheloe, 794 F.2d 457, 459 (9th Cir. 1986).

[14] II. Due Process Allegations

[15] Appellant alleges a number of due process violations. First, he claims that he was unlawfully denied a hearing before being placed on "cell lockdown." If this treatment were meted out as punishment, this would perhaps constitute a cognizable claim. This is not the case, however. Prison policy dictates that all inmates not working or attending classes be confined to their cells during the day. Because confinement to a prison cell does not violate in and of itself any recognized liberty interest of federal prisoners, no hearing was necessary before imposing "cell lockdown." Cf. Board of Regents v. Roth, 408 U.S. 564, 569, 33 L. Ed. 2d 548, 92 S. Ct. 2701 (1972) ("The requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.")

[16] Likewise, appellant was not entitled to a hearing prior to being transferred from federal to state prison. The Bureau of Prisons has authority to designate the place of confinement of federal prisoners. 18 U.S.C. section 3621(b) (superseding former 18 U.S.C. § 4082(b) which gave the Attorney General authority to place and transfer prisoners). Whether the Bureau acts under delegated power from the Attorney General in accord with former 18 U.S.C. § 4082(b) or the power now given to it by 18 U.S.C. § 3621(b), its discretion to designate a place of confinement is not materially affected. Barden v. Keohane, 921 F.2d 476, 483 (3d Cir. 1990). Furthermore, a nonconsensual transfer is not per se violative of either due process or equal protection rights. Stinson v. Nelson, 525 F.2d 728, 730 (9th Cir. 1975). Because such allegations, without more, do not state a claim for relief, Johnson's claims must fail. Id.*fn1

[17] III. Conditions of Confinement

[18] Johnson complains upon several counts about the conditions of confinement in CBCC. Before our first decision was rendered in this case, Johnson was transferred to a federal correctional facility in Washington. Because he has demonstrated no reasonable expectation of returning to CBCC, his claims for injunctive relief relating to CBCC's policies are moot. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986).

[19] Johnson also requested money damages for his alleged injuries. We review the merits of the conditions of confinement issues in order to address the damages claims.

[20] A. Unitarian Minister and Vegetarian Diet

[21] Appellant contends that the absence of a "paid chaplain [of his faith] on staff" at the prison violated his right to freedom of religion. While it is clear that inmates retain First Amendment protections, we have previously held that the Constitution does not necessarily require prisons "to provide each inmate with the spiritual counselor of his choice." Allen v. Toombs, 827 F.2d 563, 569 (9th Cir. 1987). See also Cruz v. Beto, 405 U.S. 319, 322 n. 2, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972). Prisons need only provide inmates with a "reasonable opportunity" to worship in accord with their conscience. Id. Mr. Johnson has not shown that the prison's failure to provide a Unitarian Universalist chaplain denied him a "reasonable opportunity" to exercise his faith. Thus, appellee's failure to make a Unitarian Universalist minister available to Johnson at the prison did not violate the latter's First Amendment rights.

[22] Appellant also contends that his First Amendment rights were violated by appellee's failure to provide a special diet tailored to his "vegetarian belief." In order to state a valid free exercise claim, appellant must demonstrate that this belief is religious in nature. Callahan v. Woods, 658 F.2d 679, 683-84 (9th Cir. 1981). While defining religious belief is often difficult, id., there is no evidence before this court suggesting that Mr. Johnson's professed vegetarianism is rooted in his religious beliefs. Accordingly, we cannot hold in this case that the failure to provide vegetarian meals constitutes a First Amendment violation.

[23] B. "Publishers Only" Rule for Receiving Softcover Books

[24] Johnson also maintains that CBCC's regulations requiring that inmates receive softcover books and magazines directly from the publisher infringed his first amendment rights. As with his other conditions of confinement claims, his claim for injunctive relief from this policy is moot.

[25] His claim for damages is also preempted by the defendants' qualified immunity which was pleaded as an affirmative defense in answer to the complaint. Officials pleading qualified immunity are liable for damages only if the contours of the right they are alleged to have violated are "sufficiently clear that a reasonable official would understand that what he is doing violates that right." McKinney v. Anderson, 924 F.2d 1500, 1509 (9th Cir. 1991), petition for cert. filed, 60 U.S.L.W. 3154 (U.S. Aug. 27, 1991) (No. 91-269) (quoting Anderson v. Creighton, 483 U.S. 635, 640, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987).

[26] The Supreme Court has previously upheld the constitutionality of this "publisher only" policy as applied to hardcover books, in light of the "obvious security problem" presented, particularly with respect to the smuggling of contraband in the bindings. Bell v. Wolfish, 441 U.S. 520, 550, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). The law is less clear, however with regard to softcover books. In Pratt v. Sumner, 807 F.2d 817, 819-20 (9th Cir. 1987), we pointed out that the decision in Wolfish was based in part on the availability of alternative sources of reading material, including softcover materials available from any source. See Wolfish, 441 U.S. at 551-52. Indeed, in Wolfish the court of appeals had originally invalidated a broad "publishers only" rule similar to the one before us, but the prison authorities modified it after the court of appeals ruled. See Wolfish, 441 U.S. at 548-50. The modifications permitted hardcover materials to be received from bookstores as well as publishers, and softcover materials to be received from any source. Id. In light of these alternative sources and a large prison library available for use by inmates, the Supreme Court upheld the hardcover "publishers, bookstores and book clubs only" rule. Wolfish, 441 U.S. at 549-52.

[27] Although Pratt suggests that a softcover book "publishers only" rule should be scrutinized closely, it does not clearly establish the right to receive such materials from other sources. In light of the fact that "at the time defendants acted, there was no clearly established liability" for denying access to softcover books from other parties, defendants are "entitled as a matter of law to prevail on their defense of qualified immunity." McKinney, 924 F.2d at 1509. Johnson's claim for damages must fail. Id.

[28] C. Adequacy of the Law Library

[29] Appellant also contends that inadequacies in the breadth of legal materials provided and in the availability of the CBCC law library unlawfully denied him access to the courts. We note, to this end, that

[30] the prison need not provide its inmates with a library that results in the best possible access to the courts. Rather, [it] . . . must provide its inmates with a library that meets minimal constitutional standards.

[31] Lindquist v. Idaho State Bd. of Corrections, 776 F.2d 851, 856 (9th Cir. 1985). In addition, we have recognized that

[32] the Constitution does not guarantee a prisoner unlimited access to a law library. Prison officials of necessity must regulate the time, manner, and place in which library facilities are used.

[33] Id. at 858. More importantly, Mr. Johnson failed to demonstrate that these restrictions in any way handicapped his access to the courts.

[34] In this case, we find that the prison's alleged lack of various titles of the United States Code does not contravene minimal constitutional standards. Mr. Johnson did not demonstrate that the omissions from the Code were substantial, that the equivalent information could not be obtained through alternative sources,*fn2 or that the omissions obstructed his access to the courts in any way.

[35] Appellant also argues that as an indigent inmate he has a constitutional right to unlimited free photocopying. A denial of free photocopying does not amount to a denial of access to the courts. See Sands v. Lewis, 886 F.2d 1166, 1169 (9th Cir. 1989)("numerous courts have rejected any constitutional right to free and unlimited photocopying"). A right of access claim other than one alleging inadequate law libraries or alternative sources of legal knowledge must be based on an actual injury. Id. at 1171.

[36] In this case, CBCC gave Johnson free paper and carbon paper. CBCC also allowed him to send materials to family and friends for photocopying. Additionally, paid copying was available to Johnson at a rate of 20 cents a page, arguably a high rate for a prisoner of limited means.

[37] Johnson can only state a claim for denial of access if he points to or alleges a specific "actual injury." Id. In response to the motion for summary judgment, Johnson stated that one dismissal on appeal for untimeliness was caused in part by lack of photocopying, but he did not substantiate that claim. Neither did he demonstrate how the lack of photocopying affected his timing, nor why carbon copying was inadequate, nor that the denial of photocopying in that instance was attributable to the defendant. Viewing the evidence in the light most favorable to Johnson, the nonmoving party, there are no genuine issues of material fact that preclude summary judgment on this issue. Tzung v. State Farm Fire and Casualty Co., 873 F.2d 1338, 1339-40 (9th Cir. 1989). We conclude that Johnson failed to demonstrate the actual injury to access necessary to establish a constitutional deprivation. Sands v. Lewis, 886 F.2d at 1169. He is entitled to neither injunctive relief nor compensatory damages.

[38] D. Exposure to Second-hand Smoke in Prison

[39] Finally, appellant claims that his exposure to second-hand cigarette smoke during the time when he was double-celled with a smoker at CBCC constituted cruel and unusual punishment. Despite a lack of medical substantiation for his claimed allergy to cigarette smoke, the prison authorities responded to Johnson's request by placing him in a single cell where he would not be exposed to a cellmate's smoking. During the pendency of this appeal, Johnson was transferred from CBCC to a federal facility in Arizona. Since he is no longer housed at CBCC, his claim for injunctive relief is moot.*fn3

[40] "At the time the defendants acted, there was no clearly established liability for exposing prisoners to [second-hand smoke]." McKinney, 924 F.2d at 1509. While McKinney may establish for future cases a claim for damages for second-hand smoke exposure, no right to relief was clearly established as of the time Johnson was incarcerated at CBCC. Therefore, his claims for damages must fail. Id.

[41] IV. Conclusion

[42] For the foregoing reasons, summary judgment with respect to the due process claims is affirmed. The claims for injunctive relief relating to Johnson's conditions of confinement: freedom of religion, court access and cruel and unusual punishment, are dismissed as moot. The grant of summary judgment from the money damages associated with the freedom of religion claims and the library and court access claims are affirmed. Qualified immunity bars the recovery of money damages stemming from the "publishers only" rule and CBCC's smoking policy.


[44] Disposition

[45] Affirmed.


General Footnotes


[46] *fn* August 6, 1990, Submitted, Seattle, Washington; The panel finds this case appropriate for submission without oral argument pursuant to Ninth Circuit Rule 34-4 and Fed. R. App. P. 34(a).


Opinion Footnotes


[47] *fn1 Johnson also alleges a due process violation with respect to the disciplinary hearing at which his federal good time credits were taken away for failing to provide a urine sample for drug testing purposes. Because appellant fails to specify how the hearing provided inadequate due process, we cannot find merit in this claim.

[48] *fn2 Specifically, the library has copies of Titles 18, 28, 36-37, and 42 of the United States Code Annotated (USCA), Supreme Court Reporters from 1960 to date, West's Federal Practice Digest 2nd and Federal Practice Digest 3rd, seven volumes of Federal Practice and Procedure relating to criminal law, Federal Reporter 2d from 1970 to date, Federal Supplement from 1970 to date, Federal Rules of Civil Procedure and Criminal Procedure, Shepards United States and Federal Citations, U.S. Law Week from 1985 to date, and numerous nutshells, treatises, and other materials on federal law and Washington law. (District Court Memorandum Order, October 3, 1989 at 6.) We agree with the District Court that this collection meets or exceeds what is constitutionally required.

[49] *fn3 Additionally, the prison official's qualified immunity bars his claim for money damages.