Dunne v. Smith et al

Filing 35

MEMORANDUM DECISION AND ORDER On Defendants' Motion For Summary Judgment (Docs. 29 and 30 ), signed by Chief Judge B. Lynn Winmill on 3/31/2010. Being fully advised in the premises, the Court hereby orders that Defendants' Motion for Sum mary Judgment (Docket No. 30 ) is DENIED. It is further ORDERED that Defendants' Motion for Stay in Discovery (Docket No. 29 ) is GRANTED and Defendants shall have forty-five (45) days after receipt of the Court's ruling in this Memorandum Decision and Order to respond to Plaintiff's discovery requests previously filed. It is further ORDERED that the parties shall participate in a telephonic mediation conference with Magistrate Judge Larry M. Boyle. Judge Boyle's chambers will contact the parties regarding the scheduling of the telephonic mediation conference. (Case Management Deadline: 5/17/2010) (Scrivner, E)

IN THE UNITED STATES DISTRICT COURT F O R THE EASTERN DISTRICT OF CALIFORNIA

W IL LIA M D. DUNNE,

) ) P la in tiff, ) ) v. ) ) D . SMITH, WARDEN, ) B . AVALOS, ASSOCIATE ) W A R D E N , and J. KARGE, ) CAPTAIN, ) ) D e fe n d a n ts ) ____________________________)

C a s e No. 1:07-00074-BLW M E M O R A N D U M DECISION A N D ORDER ON DEFENDANTS' M O T I O N FOR SUMMARY JU D GM E N T

IN T R O D U C T IO N C h ie f U.S. District Judge Anthony W. Ishii has reassigned this Bivens action b ro u gh t by a federal prisoner to the undersigned visiting judge. Currently pending is D e fe n d a n ts ' Motion for Summary Judgment. (Docket No. 30). Having fully reviewed the re c o rd , the Court finds that the facts and legal arguments are adequately presented in the b r i e f s and record. Accordingly, in the interest of avoiding further delay, and because the C o u rt conclusively finds that the decisional process would not be significantly aided by o ra l argument, this matter shall be decided on the record before this Court without oral a r gu m e n t. 1
1

Local Rule 78-230(m) provides that oppositions to summary judgment motions must be served and filed within 18 days. While it appears that Dunne did not timely file all of his responses, given the leniency towards prison inmates acting pro se pursuant to Tucker v. Carlson, 925 F.2d 330 (9th Cir. 1991), the Court will evaluate summary judgment on the merits of all relevant filings in support of or in opposition to the Defendants' Motion for Summary Judgment. However, Plaintiff is put on notice that even though he is proceeding pro se, he still must adhere to the procedural rules just like Page 1 of 23

BACKGROUND P la in tiff William Dunne is a federal prisoner who was incarcerated at the United Sta te s Penitentiary at Atwater, California (USP Atwater) from March 22, 2002 until he w a s transferred to another prison on August 11, 2006, where he currently remains. From J a n u a ry 19, 2006, until January 26, 2006, and again from April 3 to August 11 of that y e a r, Dunne was in the Special Housing Unit (SHU) at USP Atwater. The SHU contains a m ix of inmates taken out of the general prison population either on "administrative d e te n tio n " status or, for punitive reasons, in "disciplinary segregation." Dunne was an a d m in istra tive detention inmate. On January 17, 2006, USP Atwater initiated a policy prohibiting inmates in SHU fro m possessing individual within-cell newspapers and magazines. in pertinent part as follows: "[N]ewspapers and magazines are no longer allowed to be possessed by inmates in th e Special Housing Unit (SHU). Possession is prohibited as it presents a threat to s e c u rity of the housing unit, and a health, fire, and housekeeping hazard.... All n e w s p a p e rs and magazines received will be retained/confiscated by SHU staff and h a n d le d according to policy. Inmates housed in SHU may read printed materials th a t will be retained in the SHU law library. The reading material will be rotated p e rio d ic a lly by the Education Department. In m a t e s may suspend subscriptions while they are housed in the SHU. Newspapers and magazines that are delivered to the institution for the inmate will b e placed in the SHU Lieutenant's Office. The printed materials will be in ve n to rie d by SHU staff and presented to the inmate for signature. A ... [c o n fis c a tio n form] ...will be completed for the newspapers and magazines re c e ive d by mail. The OIC will ensure the property record or confiscation form is c o m p le te d and the property, with the form, are placed in the SHU Lieutenants O ffic e [sic]. The policy provides

a counseled litigant. See King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987). Page 2 of 23

The non-issued (or confiscated) newspaper and magazines will be retained in the in m a te 's property and held for 120 days. The inmate may also mail out or donate th e printed materials." (Karge Decl. Attach. 5).

D e fe n d a n ts allege that this policy was implemented by prison officials because of o n -go in g problems with newspapers and magazines in the SHU. In addition, in order to u s e the SHU law library inmates had to request access to it, and were limited to using it fo r one-hour periods. (Compl. Ex. 4). There is no indication in the record as to the n u m b e r of times an inmate would be permitted to use the law library while in the SHU. In his complaint, Dunne claims that prison officials violated his First and Fifth A m e n d m e n t rights when they confiscated incoming publications in the absence of a re a s o n a b le relationship to a penological interest. Specifically, Dunne alleges that the four m o n th s in which he was held in the SHU he was not given any of the newspapers or m a ga z in e s to which he had previously subscribed. He contends that despite his repeated re q u e s ts for access to reading material, he was permitted to go only once to a small room th a t served as a makeshift law library. Although he admits he was permitted to stay tw e n ty minutes longer than permitted by SHU Rules, he alleges that no newspapers or m a ga z in e s were ever available. Moreover, he states that he was denied due process b e c a u s e he could not alternatively mail out or suspend his subscriptions while he was h o u s e d in the SHU. Based on these allegations, Dunne sued Warden Smith, Associate Warden Avalos, a n d Captain J. Karge for violations of his First, Fifth, and Eighth Amendment rights. 2
2

All defendants in this action currently work for the Bureau of Prisons in other capacities. Defendant Smith is currently serving as Warden at USP Atwater. Defendant Avalos is the Associate Warden Page 3 of 23

Dunne alleges that Smith ordered the ban on newspapers and magazines in the SHU, that A va lo s wrote the memorandum promulgating that policy, and that Karge implemented the p o lic y . The Defendants filed a motion to dismiss wherein they requested dismissal based o n lack of subject matter jurisdiction, failure to state a claim upon which relief may be gra n te d , and on the ground of qualified immunity. The Court granted in part and denied in part the motion to dismiss. (See Mem. Decision & Order, Docket No. 27). Specifically, the Court dismissed Dunne's claims against the Defendants in their o ffic ia l capacities for injunctive and declaratory relief, as well as his claim under the E igh th Amendment. However, the Court denied the motion insofar as Dunne stated a c la im against the Defendants in their individual capacities for monetary damages under th e First and Fifth Amendment, and denied the motion on grounds of qualified immunity, h o w e ve r, without prejudice. Defendants now bring a Motion for Summary Judgment, w h ic h Dunne has responded to, and the matter is now ripe for review. SUMMARY JUDGMENT STANDARD Su m m a ry judgment is appropriate where "the pleadings, depositions, answers to in te rro ga to rie s , and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a ju d gm e n t as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of s u m m a ry judgment "is to isolate and dispose of factually unsupported claims . . . ." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is "not a

at the FCI-I in Victorville, California. And Defendant Karge currently serves as the Correctional Services Specialist at the Western Regional Office in Dublin, California. Page 4 of 23

disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually in s u ffic ie n t claims or defenses [can] be isolated and prevented from going to trial with the a tte n d a n t unwarranted consumption of public and private resources." Id. at 327. The a va ila b ility of summary judgment turns on whether there is a proper question for the ju d ge or jury to resolve the parties' differing versions of the truth. Anderson v. Liberty L o b b y , In.c. 477 U.S. 242, 248 (1986). "[T]he mere existence of some alleged factual dispute between the parties [h o w e ve r] will not defeat an otherwise properly supported motion for summary judgment; th e requirement is that there be no genuine issue of material fact." Id. at 247-48. Only fa c ts which are material--those which may affect the outcome of the case--are relevant. Id . at 248. And any dispute over a material fact must be "genuine"--that is, summary ju d gm e n t will not lie if the evidence is such that a reasonable jury could return a verdict fo r the nonmoving party. Id. The burden rests on the party seeking summary judgment to show the absence of a ge n u in e issue of material fact. Celotex, 477 U.S. at 325; see also Devereaux v. Abbey, 263 F . 3 d 1070, 1076 (9th Cir. 2001) (holding same). To carry this burden, the moving party n e e d not introduce any affirmative evidence (such as affidavits or deposition excerpts) but m a y simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). The burden th e n shifts to the nonmovant, who must go beyond the pleadings and present affirmative e vid e n c e to show that a genuine issue of material fact does, in fact, exist. Anderson, 477 U .S. at 256.

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Thus, this Court must determine whether Dunne has, "by affidavits or otherwise" a s provided in Rule 56, "set forth specific facts showing . . . a genuine issue for trial." R u le 56(e). The evidence must be viewed in the light most favorable to Dunne, and the C o u rt must not make credibility findings. Anderson, 477 U.S. at 255. Moreover, direct te s tim o n y of Dunne must be believed, however implausible. Leslie v. Grupo ICA, 198 F .3 d 1152, 1159 (9th Cir. 1999); see also Adickes v. SH Kress & Co., 398 U.S. 144, 1484 9 (1970) (holding that courts should view the evidence and any inferences that may be d ra w n from in the light most favorable to the non-moving party). The Court must also be "gu id e d by the substantive evidentiary standards that apply to the case." Anderson, 477 U .S. at 255. However, the Court is not required to adopt unreasonable inferences from c irc u m sta n tia l evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988). Although inferences from disputed facts must be drawn in Dunne's favor, d e fe re n c e must be accorded prison authorities' views with respect to matters of p ro fe s sio n a l judgment. Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Deference,

h o w e ve r, "does not mean accepting the prison officials' conclusions." Fontroy v. Beard, 2 0 0 7 WL 1810690, at *3 (E.D. Pa. June 21, 2007); see also Casey v. Lewis, 4 F.3d 1516, 1 5 3 5 (9th Cir. 1993) (citations omitted) (holding that "deference does not mean

abdication"). Rather, there must be a basis for the officials' exercise of their judgment a n d the Court must determine if the defendants' conclusions are in fact supported by the e vid e n c e . Id.

DISCUSSION

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This case concerns a prison inmate's First and Fifth Amendment rights. Only D u n n e 's First and Fifth Amendment claims currently remain, but because both claims are go ve rn e d by the test announced in Turner, discussed below, Dunne's Fifth Amendment c la im will be subsumed by the First Amendment claim. 3 A . V a lidity of Prison Regulations Under Turner P ris o n e rs enjoy a First Amendment right to send and receive mail. Ashker v. S c h wa r ze n e g g e r , 2009 WL 801557, at * 6 (N.D. Cal. Mar. 25, 2009) (citing Thornburgh v . Abbott, 490 U.S. 401, 407 (1989)). However, a prison may adopt regulations or

p ra c tic e s which impinge on a prisoner's rights if the regulations or practices are "re a s o n a b ly related to legitimate penological interests." Turner v. Safely, 482 U.S. 78, 89 (1 9 8 7 ). In determining whether a prison regulation is valid, i.e., whether it is "reasonably re la te d to legitimate penological interests," four factors must be considered: (1) whether th e re is a "rational connection between the prison regulation and a legitimate go ve rn m e n ta l interest put forward to justify it"; (2) whether "there are alternative means o f exercising the rights that remain open to prison inmates"; (3) what "impact a c c o m m o d a t i o n of the asserted constitutional right will have on guards and other inmates

3

With respect to Dunne's Fifth Amendment claim, Dunne argues that confiscation of his magazines and newspapers "arbitrarily deprived him of a fundamental liberty interest." (Mem. Decision & Order). The Court previously noted that "[t]his appears to be a `substantive due process theory,' and must be viewed through the Turner lens because the Turner analysis `applies to all circumstances in which the needs of prison administration implicate constitutional rights.' Washington v. Harper, 494 U.S, 210, 224 (1990); (Mem. Decision & Order).

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and on the allocation of prison resources generally"; and (4) whether "ready alternatives" e x is t. Id. at 89-90. 1. Rational Relationship to Penological Interest T h e first factor under Turner is multifold. Thornburgh v. Abbott, 490 U.S. 401, 4 1 4 (1989). First, the Court must determine whether the governmental objective

u n d e r l y i n g the regulation at issue is legitimate and neutral; and second, whether the re gu la tio n is rationally related to that objective. Id.; see also Beard v. Banks, 548 U.S. 5 2 1 , 533-535 (2006) (holding that the Court must determine not only whether the D e fe n d a n ts ' evidence shows a logical relation, but also whether it shows a reasonable re la tio n s h ip to the penological objective). In analyzing this first Turner factor, the Court must inquire as to whether the p riso n policy restricting a prisoner's First Amendment rights operate in a neutral fashion, i.e ., without regard to the content of the expression. Thornburgh, 490 U.S. at 414 (citing T u rn e r , 482 U.S. at 90). Defendants in this case contend that the policy at issue is neutral a n d the Court agrees. The policy prohibits SHU inmates from possession of all

n e w s p a p e rs and magazines, regardless of their content. In addition, the policy applies to a ll inmates housed in the SHU. Thus, the Court finds that the neutrality issue is satisfied. N e x t, the Court must consider whether the prison ban on magazines and n e w s p a p e r subscriptions is logically and rationally related to Defendants' underlying o b je c tive . Defendants contend that the prison policy furthers penological interests of "s e c u rity , sanitation, and safety." This Court previously stated however, that mere

c o n c l u s o ry objectives are insufficient to reasonably connect the rationales. (See Mem.

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Decision & Order 10-11). While Defendants failed to present evidence that "put[ ] flesh o n the bones of the `security, sanitation, and safety' rationale" at the motion to dismiss s ta ge , the Court recognizes that the Defendants have now presented the Court with more th a n mere conclusions. Specifically, Defendants support their motion with a detailed d e c la ra tio n by Defendant Karge, and have also provided two photographs of weapons m a d e from magazines and newspapers, and a copy of the prison memorandum im p le m e n tin g the policy at issue. The Court previously stated that, "it has no qualms nor disputes that the Court m u s t "accord substantial deference to the professional judgment of [corrections] a d m in istra to rs " in reviewing regulations. (Mem. Decision & Order 9; citing Overton, 539 U .S. at 132.) In fact, this Court recognizes that "running a prison is an inordinately d iffic u lt undertaking that requires expertise, planning, and the commitment of resources. . ." Turner, 482 U.S. at 85. D e fe n d a n ts had a legitimate concern about safety and security in SHU because not o n ly were fires being set in the SHU cells using newspapers and magazines, but weapons w e re being made out of these materials as well. According to Karge, newspapers and m a ga z in e s were a particular problem in the SHU. (Karge Decl. 8). Karge asserts that in a p p ro x im a te ly August of 2005, a number of security issues arose in SHU relating to in m a te s ' possession of newspapers and magazines. (Karge Decl. 4). For example, a c c o rd in g to Defendants, newspapers and magazines were used by inmates in SHU to s ta rt fires, make and use weapons or body armor, cover cell windows, and cause s a n ita tio n problems. (Def.'s Mem. P. & A. 10; Karge Decl. 4-5).

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Specifically, Karge contends that the inmates used the newspapers and magazines to cover the windows of cell doors, and also cell walls, using toothpaste as an adhesive. ( K a r ge Decl. 5). This was a security problem because it blocked the ability of officers to o b s e rve inner-cell activity and maintain a positive count of inmates. Moreover, this was a s a n ita tio n issue because the toothpaste adhesives needed to be scraped off and would o fte n peel off the wall paint, and would invite mold, pests, and other vermin. (Karge Decl. 7 ) In addition, the false walls were a security threat because they could be used to hide w e a p o n s , or other paraphernalia and contraband. (Karge Decl. 7). SHU inmates were apparently using the newspapers and magazines to make w e a p o n s as well. Prison officials confiscated two weapons made by SHU inmates: (1) a p a ir of nanchukas made of tightly rolled magazines tied together and wrapped with strips o f cloth torn from a bed sheet; (2) and a sharp spear-like weapon made with newspaper c o ve re d in melted plastic food wrappings. Photos of these weapons were attached to K a rge 's testimony. (Karge Decl. Attach. 3-4). Also according to Karge, the inmates used m a ga z in e s and newspapers to create paper-mache like body armor. (Karge Decl. 5). According to Defendants, these incidents were reported, and weapons were c o n fisc a te d , shortly before the policy at issue was imposed. "The policy thus sought to a d d re s s on-going problems and prevent future problems posed by individual within-cell p o s s e s s io n of newspapers and magazines in the SHU." (Def.'s Mem. of P. & A. 10; K a rge Decl. 8). It is reasonable to assume that prisons must limit the amount of material in an inmate's cell due to fire hazards, flooding of toilets and sinks, hiding contraband, a n d the making of weapons, et cetera. See e.g. Crime, Justice & Am., Inc. v. McGinness,

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2009 WL 2390761, at *6 (E.D. Cal. Aug. 3, 2009) (noting justifications for prison re gu la tio n ); Prison Legal News v. Chesire, 2006 WL 1868307, at *6 (D. Utah June 30, 2 0 0 6 ) (stating that a jail must further limit the amount of subscriptions in an inmate's cell fo r the same reasons); cf. Prison Legal News v. Lehman, 397 F.3d 692, 700 (9th Cir. 2 0 0 5 ) (irrational to prohibit inmate receipt of bulk rate mail and catalogs on the theory th a t it reduces fire hazards because the quantity of possessions that prisoners may have in th e ir cells were already regulated). Moreover, a few courts have held that officials need n o t demonstrate an "actual danger in order to support the reasonableness of their d e te rm in a tio n s . It is enough to show that a potential danger exists." Cheshire, 2006 WL 1 8 6 8 3 0 7 , at *6 (citing Espinoza v. Wilson, 814 F.2d 1093, 1097-98 (6th Cir. 1987). Dunne opposes the motion for summary judgment. He maintains his position that n o rational relationship exists between the Defendants' objective and the policy re s tric tin g his First Amendment rights, and denies their claim that there were a number of s e c u rity issues, including the creation of false walls, the setting for fires, or that weapons w e re being made. He counters by noting that Defendants have failed to supply incident re p o rts , disciplinary hearing officer findings or emergency response reports, aside from th e two photos of what Dunne refers to as "meager weapons" that are needed to support th e policy. (Opp. to Karge Decl. 3-4). Dunne also opines that the presence of those "meager weapons" merely suggests a n e e d to exercise control over other materials, not newspapers or magazines themselves. In his opposition, Dunne refutes testimony regarding Karge's observation of inmates c o ve rin g their cell door windows with newspapers and magazines and toothpaste. (Opp.

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4). According to Dunne, if the guards saw anything of that nature during their half hourly c h e c ks , they would order the material to be removed. (Opp. 4). Dunne also counters that K a rge gave no comparison of window covering incidents between disciplinary s e gre ga tio n prisoners and administrative detention prisoners and the number of cell w in d o w covering incidents. (Opp. 4-5). However, from the Court's perspective, this a p p e a rs only to affirm the security risk presented by Defendants. Dunne posits that even if there were such incidents, the ban is an exaggerated response if the incidents were "just a few...in the four year history of USP Atwater..." and thus would render the ban u n c o n stitu tio n a l . (Opp. 5). Yet, whether there is a reasonable and rational legitimate p e n o lo gic a l interest underlying the objective may not necessarily turn on the number of in c id e n ts . With respect to the paper-mache body armor, Dunne states he "has never heard o f them being used in confrontations with the staff. [That] [i]t is just not that useful given th e weapons staff use." (Opp. 5). However, just because Dunne is unaware of such a use in his "30 plus years in the prison system" does not mean its presence is not there. (Opp. 5 ). Dunne argues that Defendants' concerns of the fires must be a post hoc ra tio n a liz a tio n , given other flammable materials, such as clothing, bedding, legal work, re ligio u s materials, and photographs, which were still permitted in prisoners' cells even a fte r the ban. According to Defendants, the inmates treat newspapers and magazines as "d is p o s a b le property." Dunne counters, on the other hand, that newspapers and magazines a re the type of personal belongings that inmates value rather than government issued

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materials such as toilet paper and bedding, and thus that prisoners would be more inclined to burn government issued materials rather than personal materials such as newspapers a n d magazines, because government materials are replaced immediately. (Opp. 10-11). A lth o u gh it appears that other flammable items could also be used to ignite and c a u s e fires in the same manner, the Court notes that such materials are not the type of m a te ria ls that were reported as actually used to create weapons and start fires. In fact, all o f the testimony presented relates to problems and issues with respect to newspapers and m a ga z in e s specifically. The Court also notes that, at Dunne's suggestion, while it could b e more useful to take away the batteries used to start the fires, it is not the job of the C o u rt to implement prison policy and procedure or to second guess prison authorities. F in a lly , Dunne argues that inmates are entitled newspapers and magazines in other SH U s at other federal prisons. Thus, he contends that because the alleged problems exist in all federal prison SHUs, the value of the possession is outweighed by the risks given th e national policy permitting magazine and newspaper possession by SHU prisoners. (O p p . 3-4). However, "the Constitution does not mandate a lowest common denominator s e c u rity standard." Turner, 482 U.S. at 93. That is, "a practice permitted at one penal in s titu tio n " does not mean that it "must be permitted at all institutions." Id. (citing Bell v. W o lfis h , 441 U.S. 520, 554 (1979)). Given the deference courts must accord to prison a u th o ritie s, the Court finds that the Defendants have put forth sufficient evidence that n o w puts flesh on the bones of the "security, sanitation, and safety" rationale, which was o th e rw is e lacking in earlier proceedings. Accordingly, the policy restricting newspapers

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and magazines from inmate cells in the SHU is rationally related to a valid penological in te re s t and the first factor has been satisfied by Defendants. 2 . Alternative Means of Exercising a Right The second Turner factor inquires as to whether there are "alternative means of e x e rc isin g the right that remain open to prison inmates." Turner, 482 U.S. at 90. This tra n s la te s to whether or not there was access to newspaper and magazine alternatives. The absence of any alternative may provide evidence that a prison regulation is u n re a s o n a b le , however, it is not conclusive of the reasonableness of the policy. Beard, 5 4 8 U.S. at 532 (citing Overton, 539 U.S. at 135). Furthermore, while alternatives must b e available, they "need not be ideal." Overton at 135; see also Cheshire, 2006 WL 1 8 6 8 3 0 7 , at *7 (citing same and holding that a ban on newspapers and magazines as a p p lie d was unconstitutional because the prison did not provide access to periodicals th ro u gh a library). In the context of the present case, access to alternatives includes h a vin g both access to the type of materials as well as reasonable physical access to the m a te ria ls . Dunne also claims he was prevented from suspending his subscriptions while h e was in SHU. a) Access to Materials "P ris o n officials have broad discretion [in] determin[ing] what publications may e n t e r a prison." Ashker, 2009 WL 801557, at *11 (citing Thornburgh, 490 U.S. at 416). T h e Supreme Court has held that "alternative means" is sufficient and/or satisfied where "o th e r means of expression remain available." Thornburgh, 490 U.S. at 418 (also holding

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that a regulation which permits a broad range of publications to be sent, received, and re a d , satisfies the second Turner factor). In this case, alternative means of expression were available to Dunne. The policy h e re provided that "[i]nmates housed in SHU may read printed materials that will be re ta in e d in the SHU law library [and that] [th]e reading material will be rotated p e rio d ic a lly by the Education Department." (Karge Decl. Attach. 5). Dunne argues,

h o w e ve r, that access was inadequate, pointing out that the policy memorandum "directs SH U staff to deny SHU prisoners magazines and newspapers sent to them . . . but does n o t direct them to otherwise make them available." (P's Opp. to Def.'s Notice of Mot. & M o t. Summ. J. 4). The Court finds the policy memorandum, however, provides exactly what Dunne c o n te n d s it does not. In fact, according to Karge inmates could "request reading material, in c lu d in g newspapers and magazines, from [the SHU law library] and/or from the E d u c a t i o n Department." (Karge Decl. 9). The Court has found no testimony that Dunne s p e c ific a lly requested to read newspapers and magazines; rather, Dunne only requested to "u s e the law library the next time it is available." (Compl. Ex. 3). Dunne acknowledges that the library contained reading material: a few old Sh e p p a rd ' s supplements, an old index to the U.S. Codes Annotated, etc. . . .and less than a dozen novels." (Opp. to Karge Decl. 12). Dunne's argument that access was

u n a va ila b le , at most, suggests that the prison officials failed to specify whether access to " r e a d in g material" in their policy memorandum was to include newspapers or magazines, o r other non-legal materials aside from the novels. Although Dunne apparently was

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unsatisfied with the selection accorded to him, the availability of other reading materials to be read was present. While these periodicals may not be "ideal" reading material (in c o m p a ris o n to Dunne's newspaper and magazine subscriptions), they are alternatives n o n e th e le ss . Moreover, Dunne fails to allege that he requested newspapers and magazines from th e Education Department and they were not provided. There is simply no evidence s u b m itte d by Dunne that his requests for specific reading materials allowed under the p o lic y were denied. b) Actual Access to the SHU law library A lth o u gh the Court finds that alternative reading material was available, there is a q u e s tio n as to whether actual access to these alternative materials was present. It would n o t make sense to provide alternative means to reading material through a library if the in m a te does not have reasonable access to the library. The policy at issue provided that in m a te s could read printed materials in the SHU law library. According to Dunne, the "SHU law library" was a makeshift library, consisting of m e re ly an empty holding cell or utility room containing "obsolete cast-offs from the in s t i t u t i o n law library." (Compl. Attach. Aff. 4). He also states that no newspapers or m a ga z in e s were actually provided or stored there. (Opp. to Karge Decl. 12). N e ith e r the policy memorandum nor the SHU Rules states how frequently inmates m a y use the SHU law library for reading, only that it may be used for one-hour periods. (S e e Karge Decl. Attach. 5; Compl. Ex. 4). According to Dunne, he wrote numerous r e q u e s t s to obtain access to the SHU law library. However, despite repeated requests,

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Dunne maintains he was permitted to access this resource on only one occasion during his fo u r months April to August he was housed in the SHU unit. Copies of the written re q u e s ts have not been provided, but for purposes of the motion for summary judgment, th e Court will view the facts in a light favorable to Plaintiff. On that one occasion, Dunne c la im s he did not see any newspapers or magazines, nor were any made available to him. (O p p . 12). He also asserts that he never saw anyone being provided such access, nor h e a rd of anyone obtaining such access. (Opp. 12). Dunne fails to assert or establish w h e th e r any SHU inmate requested any newspapers or magazines. Defendants do not challenge Dunne's alleged singular access to the library or that P la in tiff made multiple requests to use the library while in the SHU unit. Defendants h a ve failed to provide any evidence to the contrary. At the most, Defendants argue that "P la i n t i f f concedes he did have opportunity to view some reading material in the SHU la w library" but does not counter Dunne's assertions that while some reading material w a s available, newspapers and magazines (which the ban applies to) was not. M e m . of P. & A. 11). (Def's

Nor do Defendants provide information of whether Dunne

r e q u e s te d newspapers or magazines normally available from the Education Department. Defendants do not have an obligation to second guess what reading materials inmates m a y want to read, Defendants merely need to provide a process for inmates to get the a va ila b le materials they properly request from the Education Department. Not all

re q u e s te d newspapers and magazines need to be provided, only those periodicals n o rm a lly available from the Education Department.

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Nor do Defendants refute that Dunne was allowed to visit the law library on more th a n one occasion although he allegedly made numerous written requests to do so. In a p riso n context, access must involve both the materials themselves and the ability to get to th e materials. The Court finds it hard to believe that permitting Dunne to use the SHU la w library one time during the four months he was housed in the SHU is reasonable or c a n even be considered adequate access to allow an inmate to exercise his First A m e n d m e n t rights. c) Suspending, Donating or Mailing Inmate Subscriptions Dunne also appears to be complaining about restricted access due to the prison p o lic y that allowed inmates with subscriptions to suspend, donate or pay to mail the m a te r ia ls to others. Under the policy, confiscated newspaper and magazines were to be h e ld in the SHU Lieutenant's Office for 120 days. If the inmate was still in the SHU, he h a d the option of mailing out, donating, or suspending his subscriptions. Dunne contends th a t he could not mail out the materials because he lacked the required postage. He also c la im s he was prevented from taking possession of the confiscated subscriptions when he w a s released from SHU because a transferring inmate cannot take periodicals with them. This does not create an impediment to actual access, despite Dunne's contentions. Dunne m a y have personally lacked the means to mail out his subscriptions, but his inability to b u y postage does not affect actual access. Dunne does not assert that he tried to donate his newspapers and magazines. Defendants do not say whether the confiscated materials could have been donated to the SH U law library, where Dunne may have been able to access his subscriptions.

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Dunne asserts that he tried to suspend his subscriptions while he was housed in SH U . However, he states that Defendants would not provide him with the publisher in fo rm a tio n necessary to effect a suspension. Defendants do not refute or counter this c o n te n tio n . By not providing Dunne with the tools necessary to suspend his

s u b s c rip tio n s , Defendants in effect blocked access to an alternative means to which D u n n e is entitled after he was released from SHU. The Court finds genuine issues of material fact exist that prevent the Court from m a kin g a determination on whether or not the second factor of providing alternative m e a n s has been satisfied by Defendants. While Defendants did provide reading materials a n d the ability to request other materials under the policy, the record at this stage seems to e s ta b lis h very limited access on the part of Dunne to go to the library to read materials e ve n after making numerous requests. The limited physical access to the law library and re a d in g materials possibly defeats the alternative means provided from satisfying the s e c o n d Turner factor and prevents summary judgment from being granted in Defendants' fa vo r at this time. Finally, the Defendants alleged failure to allow Dunne to suspend his s u b s c rip tio n s may create a road block to having an effective alternative means for SHU in m a te s to exercise their First Amendment rights. 3 . Third & Fourth Turner Factors A s to the third and fourth Turner factors, Defendants rely on their analysis that b e c a u s e alternative means were available by accessing the SHU law library, impact on c o rre c tio n a l officers, and/or absence of ready alternatives are (arguably) not applicable. In this case, the Court has carefully considered Dunne's claims and have viewed all of the

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facts in a light most favorable to Dunne. Although the Court finds that the policy is a va lid regulation insofar as it was not an exaggerated response, there is a genuine issue of m a te ria l fact as to whether alternative means and/or access to these means were in fact a v a ila b le to Dunne. Because the Court finds a genuine issue as to whether alternative m e a n s did exist, it need not address the third and fourth Turner factors. Thus, the Court fin d s that in light of the foregoing, summary judgment is not appropriate and is therefore d e n ie d . QUALIFIED IMMUNITY T h is Court previously denied Defendants' request for dismissal on grounds of q u a lifie d immunity, but allowed the defense to be reasserted in a motion for summary ju d gm e n t. (Mem. Decision & Order 2). Defendants have reasserted this defense in their m o tio n for summary judgment. "The doctrine of qualified immunity protects government officials `from liability fo r civil damages insofar as their conduct does not violate clearly established statutory or c o n s titu tio n a l rights of which a reasonable person would have known.' Pearson v. C a lla h a n , __ U.S. __, 129 S.Ct. 808, 815 (2009) (citing Harlow v. Fitzgerald, 457 U.S. 8 0 0 , 818 (1982). "Qualified immunity balances two important interests--the need to hold p u b lic officials accountable when they exercise power irresponsibly and the need to s h ie ld officials from harassment, distraction, and liability when they perform their duties re a s o n a b ly . " Pearson at 815. A government officer is not protected by qualified immunity if he violates a c le a rly established constitutional right. Phillips v. Hust, 588 F.3d 652, 657 (9th Cir.

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2009). "The relevant, dispositive inquiry in determining whether a right is clearly e s ta b lis h e d is whether it would be clear to a reasonable officer that his conduct was u n la w fu l in the situation he confronted." Saucier v. Katz, 533 U.S. 194, 202 (2001); see a ls o Anderson v. Creighton, 483 U.S. 635, 640 (1987) (stating that "the contours of the righ t must be sufficiently clear that a reasonable official would understand that what he is d o in g violates that right"). When reviewing a motion for summary judgment based on qualified immunity, th e Court must "assume that the version of the facts asserted by the non-moving party is c o rre c t." Bingham v. City of Manhattan Beach, 341 F.3d 939, 942 (9th Cir. 2003). Thus, a ll factual disputes will be resolved in Dunne's favor. Viewing the evidence in a light m o s t favorable to Dunne, the Court must decide two questions: first, did defendants' a c tio n s violate the Constitution; and second, assuming a constitutional violation, was the righ t clearly established at the time defendants' acted that would preclude a qualified im m u n ity defense. Pearson, 129 S.Ct. at 818. This Court has discretion in deciding w h ic h of the two prongs of the qualified immunity analysis should be addressed first in ligh t of the circumstances of the particular case at hand. Id. It was not always the case. Prior to Pearson, courts were required to analyze qualified immunity protection under the S a u c ie r two-step analysis. Id. (holding Saucier protocol no longer mandatory, but often b e n e fic ia l). The relevant, dispositive inquiry is whether, in the specific context of the case, "it w o u ld be clear to a reasonable officer that his conduct was unlawful in the situation he c o n fro n te d . " Saucier at 202. This inquiry also turns on "what the officer reasonably

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understood his powers and responsibilities to be, when he acted, under clearly established s ta n d a rd s." Saucier, 533 U.S. at 208. Thus, the precise question now before the Court is w h e th e r a reasonable prison official would believe that denying any and all access to m a ga z in e s and newspapers violates an inmate's right to free speech. In his complaint, Dunne claims that prison officials violated his First and Fifth A m e n d m e n t rights when they confiscated incoming publications in the absence of a re a s o n a b le relationship to a penological interest. See e.g. Pell v. Procunier, 417 U.S. 817, 8 2 2 (1974) (recognizing a qualified First Amendment right in prison). The Court again n o te s that this right was clearly established when the policy was enforced against Dunne. (Mem. Decision & Order 18). Dunne argues, and the Court agrees, that a reasonable o ffic e r would and should believe denying access could violate an inmate's rights. If D u n n e can establish that his constitutional rights were violated when Defendants denied h im physical access to the library on numerous occasions, only allowed him to use the lib ra ry once in four months and failed to allow him to suspend his subscriptions while in SH U , the Court finds the prison officials should have known they would be violating an in m a te 's clearly established constitutional rights and would not be entitled to a qualified im m u n ity defense. Again, Defendants "place too much emphasis on Beard" and "overstate Beard's s w e e p ." (Mem. Decision & Order 19). The policy at issue in this case came into effect lo n g before the Beard decision was issued. (Mem. Decision & Order 19). The Court rea d o p ts and incorporates its previous ruling that `it would be difficult to claim that the D e fe n d a n ts were relying on Beard when the Supreme Court's opinion had not yet been

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released.' (Mem. Decision & Order 19). This Court finds the Supreme Court did not hold th a t prison officials may ban newspapers and magazines in all segregated housing units, re ga rd le s s of the reasons for inmate placement. The Court is not persuaded by the

D e fe n d a n ts conclusory statements regarding their entitlement to qualified immunity and a s such, denies summary judgment on this defense at this stage of the litigation based on th e disputed issues of fact regarding the alleged constitutional violations. Order B e in g fully advised in the premises, the Court hereby orders that Defendants' M o tio n for Summary Judgment (Docket No. 30) is DENIED. IT IS FURTHER ORDERED that Defendants' Motion for Stay in Discovery ( D o c k e t No. 29) is GRANTED and Defendants shall have forty-five (45) days after re c e ip t of the Court's ruling in this Memorandum Decision and Order to respond to P la in tiff's discovery requests previously filed. IT IS FURTHER ORDERED that the parties shall participate in a telephonic m e d ia tio n conference with Magistrate Judge Larry M. Boyle. Judge Boyle's chambers w ill contact the parties regarding the scheduling of the telephonic mediation conference.

DATED: March 31, 2010

Honorable B. Lynn Winmill Chief U. S. District Judge

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