Leyva v. Kelnan

Filing 74

ORDER DENYING DEFENDANT'S MOTION TO STRIKE 71 ; AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT 51 (SI, COURT STAFF) (Filed on 6/30/2009) (Additional attachment(s) added on 7/1/2009: # 1 cs) (ys, COURT STAFF).

1 2 3 4 5 6 7 8 9 10 United United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. SCOTT KERNAN, individually and in his official capacity as Director of Adult Division for the California Department of Corrections and Rehabilitation, Defendant. / ALDO LEYVA, Plaintiff, No. C 08-1152 SI (pr) ORDER DENYING DEFENDANT'S MOTION TO STRIKE; AND GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA

This case is now before the Court for consideration of defendant's motion to strike plaintiff's "Opposition to Defendant's Reply to Plaintiff's Failure to Oppose Defendant's Motion for Summary Judgment" and defendant's motion for summary judgment. [Dkt. Nos. 51 and 71] For the reasons discussed below, the Court DENIES defendant's motion to strike and GRANTS defendant's motion for summary judgment.

BACKGROUND The following facts are undisputed unless otherwise noted: Plaintiff is an inmate within the California Department of Corrections and Rehabilitation ("CDCR") and is currently housed at Salinas Valley State Prison. On June 11, 2007, plaintiff was informed that a publication sent to him titled M.I.M. ["Maoist Internationalist Movement"] Theory No. 8, The Anarchist Ideal, had been returned to the sender as "unauthorized correspondence." [Dkt. No. 1, 3:10-13] On June 24, 2007, plaintiff submitted an appeal, which was denied based on an

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administrative bulletin that banned MIM publications. See Decl. E. Sullivan Supp. Def.'s Mot. Summ. J. ("Decl. Sullivan"), Exh. B. After several informal appeals, plaintiff sought review at the formal level, which was also denied based on the administrative memorandum banning MIM publications. See id.

According to the administrative bulletin written by defendant Scott Kernan,1 "MIM literature advocates seizing public power through armed struggle and overturning prison administrations `by stripping them of control.'" See Decl. S. Kernan Supp. Def.'s Mot. Summ. J. ("Decl. Kernan"), Exh. A. The existence of this type of publication in a prison, the memorandum states, "creates safety and security risks and an atmosphere that is not conducive to the rehabilitative mission of the CDCR." Id. As a result, defendant Kernan authorized an institution-wide ban on all MIM publications. See id. The basic philosophy of MIM can be found in "What is the Maoist Internationalist Movement," which in relevant part states: We want revolutionary armed struggle. We believe that the oppressors will not give up their power without a fight. Ending oppression is only possible by building public opinion to seize power through armed struggle. We believe, however, that armed struggle in the imperialist countries is a serious strategic mistake until the bourgeoisie becomes really helpless. Revolution will become a reality for North America as the U.S. military becomes over-extended in the government's attempts to maintain world hegemony. Decl. D. Hawkes Supp. Def.'s Mot. Summ. J. ("Decl. Hawkes"), Exh. B at pg. 2. Defendant contends that M.I.M. Theory No. 8 should be excluded from correctional facilities because it "advocates building public opinion to seize power through armed struggle." See id. To support his claim that the publication could incite violence and challenge authority, defendant states: References to seizing power through armed struggle are threaded throughout M.I.M. Theory No. 8. Examples include, but are not limited to: (1) ". . . we look forward to. . . a full-blown attack on established The regulations pursuant to which the administrative bulletin was written are sections 3006 and 3136 of Title 15 of the California Code of Regulations. Section 3136 provides that prison staff "shall not permit an inmate to send or receive mail which, in their judgment, has any of the characteristics listed in Section 3006(c)." Section 3006(c) lists numerous prohibited items, including material that contains or concerns "[a]ny matter of a character tending to incite murder; arson; riot; or any form of violence or physical harm to any person . . . ," "[p]lans to disrupt the order, or breach the security, of any facility. . .," and "[m]aterial that is reasonably deemed to be a threat to legitimate penological interests." Section 3006(c)(1, 5, and 16). In the present case, the application of the regulations is challenged, rather than the regulations on their face. 2
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power and the state"; (2) ". . . we must be ready in any case to defend the people and to overthrow the state by force"; and (3) "[i]t is significant [sic] important to keep armed struggle. . . to realize the people's revolution." This principle is also predominantly displayed on the organization's website and inside cover of M.I.M. Theory No. 8, as well as other issues of M.I.M. Theory. M.I.M. Theory No. 8 even encourages inmates to "[s]truggle with, work with, finance, and join M.I.M. The best way to help prisoners is to overthrow the system that profits from their oppression." Def.'s Mot. Summ. J. at 4-5 (internal citations omitted). VENUE AND JURISDICTION Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because the events or omissions giving rise to the claims occurred at a correctional facility in Monterey County, within this district. This Court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983.

LEGAL STANDARD Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "If the party moving for summary judgment meets its initial burden of identifying for the court those portions of the materials on file that it believes demonstrate the absence of any genuine issues of material fact, the burden of production then shifts so that the non-moving party must set forth, by affidavit or as otherwise provided in Rule 56, specific facts showing that there is a genuine issue for trial." See T.W. Elec. Service, Inc., v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317 (1986)). A verified complaint may be used as an opposing affidavit under Rule 56, as long as it is based on personal knowledge and sets forth specific facts admissible in evidence. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff's verified complaint as opposing affidavit where, even though verification not in conformity with 28 U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and allegations were not based purely on his belief but on his personal knowledge). Here, the complaint was verified and therefore is considered as evidence 3

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for purposes of deciding the motion. In judging evidence at the summary judgment stage, the Court does not make credibility determinations or weigh conflicting evidence, and draws all inferences in the light most favorable to the non-moving party. See T.W. Elec., 809 F.2d at 630-31 (citing Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574 (1986)); Ting v. United States, 927 F.2d 1504, 1509 (9th Cir. 1991). The evidence presented by the parties must be admissible. See Fed. R. Civ. P. 56(e). Conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ'g Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).

DISCUSSION Defendant moves for summary judgment and moves to strike plaintiff's opposition to the motion. Before addressing defendant's motion for summary judgment, the Court will address the motion to strike plaintiff's opposition.

I.

Defendant's Motion to Strike Plaintiff's Opposition Plaintiff failed to file his opposition to defendant's motion for summary judgment by the

deadline, which this Court set as April 17, 2009. Defendant filed a reply, noting plaintiff's failure to oppose the summary judgment motion. Plaintiff then filed an opposition to defendant's reply to plaintiff's failure to oppose defendant's motion for summary judgment. Defendant now moves to strike plaintiff's opposition on the grounds that it was not properly filed and defendant has not been able to address its contents. See Motion to Strike Plaintiff's "Opposition to Defendant's Reply to Plaintiff's Failure to Oppose Defendant's Motion for Summary Judgment." [Dkt. No. 70] The Court denies defendant's motion to strike plaintiff's opposition. In light of plaintiff's pro se status, the Court will allow plaintiff the opportunity to submit his opposition despite his failure to meet the deadline. If the tardy opposition had made a point that needed a response from defendant, the Court would have permitted such a response.

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II.

Defendant's Motion for Summary Judgment Defendant has moved for summary judgment on two grounds. First, defendant contends that the

ban on which plaintiff bases his complaint has been rescinded, which makes the case moot. Second, defendant argues that the institution's rejection of M.I.M. Theory No. 8 meets the standard set forth in Turner v. Safley, 482 U.S. 78 (1987). The Court finds that the dispute is not moot. Although the complete ban of MIM publications has been rescinded by the CDCR, defendant still seeks to keep this specific publication, M.I.M. Theory No. 8, away from plaintiff. Whether this denial was the result of an outright ban or an individual determination does not extinguish plaintiff's legally cognizable interest or preclude the Court from the ability to afford effectual relief. Article III, § 2, of the Constitution requires the existence of a case or controversy at all stages of federal judicial proceedings, meaning that plaintiff "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477 (1990); see Spencer v. Kemna, 523 U.S. 1, 8-13 (1998). These requirements are met here, so defendant is not entitled to summary

judgment on the basis of mootness. However, the Court agrees with defendant that M.I.M. Theory No. 8 may be rejected under Turner v. Safley. Prisoners retain those First Amendment rights not inconsistent with their status as prison inmates or with legitimate penological objectives of the corrections system. See Pell v. Procunier, 417 U.S. 817, 822 (1974). Regulations limiting prisoners' access to publications are valid only if they are reasonably related to legitimate penological interests. See Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (citing Turner v. Safley, 482 at 89); Crofton v. Roe, 170 F.3d 957, 959 (9th Cir. 1999). In Turner v. Safley, the Supreme Court identified four factors to consider when determining whether a regulation is reasonably related to legitimate penological interests: (1) whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it," (2) "whether there are alternative means of exercising the right that remain open to prison inmates," (3) "the impact accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources generally," and (4) the "absence of ready alternatives" or, in other words, whether the rule at issue is an "exaggerated response to prison concerns." Turner v. Safley, 482 U.S. 5

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at 89-90. Because the denial of M.I.M. Theory No. 8 satisfies the factors outlined in Turner v. Safely, defendant is entitled to summary judgment. First, there is a valid, rational connection between the application of the regulation and the legitimate governmental interest put forward to justify it. Defendant asserts that "M.I.M. Theory No. 8 has the potential to promote violence within a correctional institution" and maintaining the safety and security of the institution is a legitimate governmental interest. See Thornburgh, 490 at 415. Defendant's denial of a document that could incite violence bears a clear connection to the interest in maintaining prison security and safety. The denial satisfies the second factor of the Turner v. Safely test because alternative means to exercise the right to free speech remain available to plaintiff. See Turner v. Safely, 482 US. at 90. CDCR's complete ban on MIM publications has been rescinded, and inmates are permitted to receive other "social change" literature and publications, so long as they do not conflict with the criteria identified in Section 3006(c) ­ i.e., so long as they do not "incite violence or physical harm, or disrupt the order, safety and security of an institution." Def.'s Mot. Summ. J. at 12-13. See Thornburgh, 490 U.S. at 418; see, e.g., Stefanow v. McFadden, 103 F.3d 1466, 1474 (9th Cir. 1987) (even though the prisoner was banned from reading a particular publication, alternative means of exercising his First Amendment rights remain available where access to material which does not violate prison security policy was unaffected). The third factor of the Turner v. Safley test is satisfied because accommodating plaintiff's asserted right to receive M.I.M. Theory No. 8 may adversely impact the safety and security of inmates and prison personnel, which is a central concern of prison administrators. Thornburgh, 490 U.S. at 418. Defendant claims that permitting plaintiff to receive the publication could lead to violence and disorder, and this Court defers to prison administrators' reasonable determination on the matter. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (in a civil rights action brought by an inmate, the court must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining legitimate goals of corrections and for determining the most appropriate means to accomplish them); see also Turner v. Safley, 482 U.S. at 90. The fourth and final factor of the Turner v. Safley test is met because plaintiff provides no 6

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alternative that accommodates his First Amendment right at de minimis cost to valid penological interests. Thornburgh, 490 U.S. at 418; see, e.g., Stefanow, 103 F.3d at 1475 (inmate's proposal to allow him only restricted in-cell access to objectionable book did not eliminate security concerns because (1) proposal did nothing to eliminate the concerns for the safety of prison staff who must work with the inmate and (2) inmate could spread the message of the book by speaking to, and sharing the book with, inmates in adjoining cells). Advocacy of armed rebellion could present a threat to institutional security and, to the extent that advocacy of force or "revolution" or "armed struggle" is suggested in M.I.M. Theory No. 8, the Court will defer to the administrative determination that the publication cannot be delivered to plaintiff while he is in prison without risking the safety of inmates and staff.. Plaintiff contends that defendant was not motivated by a concern for prison security and instead the decision to deny him M.I.M. Theory No. 8 was based on its political nature. Plaintiff argues that defendant has taken quotes from the publication out of context in order to support his position that it presents a threat to the safety and security of inmates and staff.2 See Plaintiff's Opposition to Defendant's Reply to Plaintiff's Failure to Oppose Defendant's Motion for Summary Judgment ("Plaintiff's Opposition"), pg. 5. Plaintiff is particularly critical of the following excerpt from defendant's motion for summary judgment brief: References to seizing power through armed struggle are threaded throughout M.I.M. Theory No. 8. Examples include, but are not limited to: (1) ". . . we look forward to. . . a full-blown attack on established power and the state"; (2) ". . . we must be ready in any case to defend the people and to overthrow the state by force"; and (3) "[i]t is significant [sic] important to keep armed struggle. . . to realize the people's revolution." This principle is also predominantly displayed on the organization's website and inside cover of M.I.M. Theory No. 8, as well as other issues of M.I.M. Theory. M.I.M. Theory No. 8 even encourages inmates to "[s]truggle with, work with, finance, and join M.I.M. The best way to help prisoners is to overthrow the system that profits from their oppression." Def.'s Mot. Summ. J. at. 4-5 (internal citations omitted). First, M.I.M. Theory No. 8 does not actually say ". . .we look forward to. . . a full-blown attack Plaintiff's criticisms of defendant's characterization of the publication reflect a thorough knowledge of the publication's text and context. It is unclear how or whether plaintiff had access to the publication to perform such an analysis. 7
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on established power and the state. . . ." See Decl. Hawkes, ¶ 5. Rather, the correct and complete quote reads: But rather than allowing that knowledge to prevent us from waging a socialist revolution, we look toward the Great Proletarian Revolution­a full-blown attack on established political power and the state in a socialist country­as further evidence that the vanguard party can in fact lead a society to communism. See id. at Exh. A, pg. 30. The "Great Proletarian Revolution" to which the author refers occurred during the Spanish Civil War, which took place in the 1930s. While this quote may create a threat to safety and security because of its overall revolutionary tone and policy, it does not literally anticipate or entreat rebellion. Regardless of whether it is reflective or prospective, however, it is the reasonable judgment of prison administrators that such statements present a threat to the safety, security, and rehabilitative goals of the correctional facility. In addition, plaintiff contends that the quote "`. . . we must be ready in any case to defend the people and to overthrow the state power by force'. . ." has been taken out of its proper context by defendant. See id. at Exh. A, pg. 18. The quoted text is preceded by "[w]e hope to accomplish people's revolution peacefully without armed struggles[]" and was authored by the Political Review Japan Committee ("PRJC"), a separate group with whom MIM has political disagreements. Id. Therefore, this was akin to a "letter to the editor" in which the author states his own view that is at odds with that of the publication. This also applies to the quote "`it is significant [sic] important to keep armed struggle...to realize the people's revolution[],'" which is by PRJC rather than MIM. See id. However, letters to the editor can support the prison administrators' determination to exclude the publication because they can incite the same type of behavior defendant reasonably seeks to prevent. Accordingly, distinguishing quotes attributable to members of MIM directly as opposed to other authors who MIM has chosen to publish is not a compelling difference. Plaintiff also disputes defendant's statement that "M.I.M. Theory No. 8 even encourages inmates to `[s]truggle with, work with, finance, and join MIM. The best way to help prisoners is to overthrow the system that profits from their oppression." See Def.'s Mot. Summ. J. at 11 (internal citations omitted). At least as it pertains to the particular text, defendant's quote is misleading. The text has been excerpted from an advertisement titled "Support MIM's Prison Work," in which MIM is not addressing 8

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inmates in particular. Rather, they are soliciting donations from all readers, which probably implicates inmates less than other segments of the population. See Decl. Hawkes, Exh. A at pg. 87. While the Court finds the aforementioned inaccuracies problematic, the Court cannot say that defendant fails to meet the standard set by Turner v. Safley or that this Court should not defer to the penological agency in charge. Plaintiff does not present evidence to create a triable issue of fact. Although regulations restricting inmates' First Amendment rights must operate in a neutral fashion, without regard to the content of the expression, regulations are considered neutral for purposes of a Turner v. Safley analysis if prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security. Thornburgh, 490 U.S. at 415-16; compare Stefanow v. McFadden, 103 F.3d 1466, 1473 (9th Cir. 1996) (literature advocating racism and issuing a call to arms for white Christians was properly banned where prison officials reasonably concluded it was so inflammatory that it was reasonably likely to incite violence in the prison) with McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987) (literature advocating racial purity but not advocating violence or illegal activity cannot constitutionally be banned). Here, the undisputed facts show that the concern for the safety of the guards and other representatives of the government was the driving force for the confiscation of M.I.M. Theory No. 8. "[J]udgments regarding prison security `are peculiarly within the province and professional expertise of corrections officials, and, in the absence of substantial evidence in the record to indicate that the officials have exaggerated their response to these considerations, courts should ordinarily defer to their expert judgment in such matters.'" Turner v. Safley, 417 at 86 (citation omitted). Because plaintiff has failed to go beyond his initial pleading and present specific facts showing there is a triable issue of fact as to defendant's alleged violation of his First Amendment rights, defendant is entitled to judgment as a matter of law. Celotex Corp., 477 U.S. at 323.

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1 2 3 4 5 6 7 8 9 10 United States District Court For the Northern District of California 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 IT IS SO ORDERED. Dated: June 29, 2009

CONCLUSION For the foregoing reasons, defendant's motion to strike plaintiff's reply is DENIED and defendant's motion for summary judgment is GRANTED.

SUSAN ILLSTON United States District Judge

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