Harrison v. Milligan et al

Filing 90

ORDER GRANTING DEFENDANTS' SECOND MOTION FOR SUMMARY JUDGMENT 71 85 (Illston, Susan) (Filed on 3/8/2013) (Additional attachment(s) added on 3/8/2013: # 1 Certificate/Proof of Service) (tfS, COURT STAFF).

1
2
3
4
5

UNITED STATES DISTRICT COURT

6

NORTHERN DISTRICT OF CALIFORNIA

7
8

MARCUS L. HARRISON,

9
United States District Court
For the Northern District of California

10
11
12

No. C 09-4665 SI (pr)

Plaintiff,

ORDER GRANTING DEFENDANTS’
SECOND MOTION FOR SUMMARY
JUDGMENT

v.
D.E. MILLIGAN, et al.,

Doc. ## 71, 82, 85, 89
Defendants.

13
14
15

/
INTRODUCTION

16

Marcus L. Harrison, an inmate at Pelican Bay State Prison (“PBSP”), filed a pro se civil

17

rights action under 42 U.S.C. § 1983, asserting a First Amendment claim regarding the

18

confiscation of certain outgoing and incoming mail. Defendants moved for summary judgment

19

and Harrison opposed the motion. The Court denied in part and granted in part the motion for

20

summary judgment and referred the parties for settlement proceedings. The case did not settle.

21

Now pending is defendants’ second motion for summary judgment. Harrison has opposed the

22

motion and defendants have filed a reply. For the reasons discussed below, defendants’ second

23

motion for summary judgment (Doc. #71) is GRANTED.

24
25
26
27
28

BACKGROUND
In the order addressing defendants’ first motion for summary judgment, the Court
summarized the background of this case as follows:
Harrison alleged in his complaint that PBSP officials violated his First Amendment rights

4

by wrongfully confiscating his incoming and outgoing mail. Defendants contend that the
confiscations were permissible because the materials illegally promoted gang activity.
Defendants also contend that some of the mails violated prison prohibitions on inmate-toinmate correspondence and revenue generation. Harrison denies that his mail violated
any prison regulations. He claims that his mail “was only promoting education, political,
social, and cultural awareness from the viewpoints of the New Afrikan.” Doc. #15 at 4.
Defendants also claim that they are entitled to qualified immunity.

5

The following facts are undisputed unless otherwise noted.

6

Harrison has been validated as a member of the Black Guerilla Family prison gang
(“BGF”). As a result of his validation, he is housed in the security housing unit (“SHU”)
at Pelican Bay. One of the reasons gang members are housed in the SHU is to monitor
and intercept their illegal communications. Doc. #6, Exh. A at 86.

1
2
3

7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

A.

The Black Guerilla Family and George Jackson

The BGF is a recognized prison gang. George Jackson is not a BGF member. However,
the BGF has incorporated George Jackson’s ideologies into their beliefs. Id. at 45. The
BGF has adopted the Black Panthers, George Jackson and other revolutionary figures for
their own use. Id. at 31. In order to promote BGF ideologies, BGF members circulate
pamphlets which discuss the Black Panthers and encourage revolution by people of
African descent to liberate themselves from an oppressive government. Id.
BGF members refer to themselves as “New Afrikans.” Id. at 83. The reference to
African Americans as “New Afrikans” is not a title accepted in mainstream society. Id.
This title is derived from the Republic of New Afrika, a 1968 revolutionary organization
which sought the establishment of an independent black-majority nation in the Southern
United States (excluding Florida). This group had violent confrontations with law
enforcement as it attempted to accomplish its goals. Id. at 83. The New Afrikan
Revolutionary Nationalist (“NARN”) organization also derives from the Republic of New
Afrika. The California Department of Corrections (“CDCR”) has determined that the
NARN organization is a disguise for the activities of the BGF. Id. at 68. In a pamphlet
published by the New Afrikan Peoples Organization, the New Afrikan Liberation
struggle is described as “the struggle of Black prisoners, ‘behind the walls’ of U.S. penal
institutions, to gain liberation for ourselves, our people, and all oppressed people.” Doc.
#15, Exh. B.
Harrison claims that the title “New Afrikan” is used by “all black people, as it is a part
of the historical materialism and culture of all people, and not solely used by the BGF.”
Doc. #6, Exh. A at 77. Harrison further argues that NARN is simply an ideology and not
a BGF reference. Id. at 61.
B.

Regulations Related to Prison Gangs and Inmate Mail

The California Code of Regulations defines a “gang” as any group whose members
engage in unlawful acts or acts of misconduct. 15 Cal. Code Regs. § 3000. “Prison
gang” is defined as any gang with its roots or origins within the CDCR or any other
prison system. Id. Prison gangs “present a serious threat to the safety and security of
California prisons.” Id. at § 3023(b). “Inmates . . . shall not knowingly promote, further
or assist any gang . . .” Id. at § 3023(a).
The regulations prohibit mailing gang-related materials and other contraband. Id. at §§
3006, 3136. Any material reasonably deemed to be a threat to a legitimate penological
interest is classified as contraband. Id. at § 3006(c)(16). If prison staff determine that an
2

1
2
3
4

inmate’s incoming or outgoing mail has any of the characteristics of contraband, as listed
in Section 3006(c), the regulations require that prison staff confiscate the suspect mail.
Id. at § 3136(a).
In addition, prison regulations prohibit inmate-to-inmate
correspondence, id. at § 3139(1), and inmate mail which directs revenue-generating
activity. Id. at § 3024(b).
Doc. #20 at 1:23-3:18.

5
6

VENUE AND JURISDICTION
Venue is proper in the Northern District of California because the events or omissions

8

giving rise to the claims occurred at Pelican Bay State Prison in Del Norte County, which is

9

located within the Northern District. See 28 U.S.C. §§ 84, 1391(b). This court has federal

10
United States District Court
For the Northern District of California

7

question jurisdiction over this action brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331.

11
12

LEGAL STANDARD FOR SUMMARY JUDGMENT

13

Summary judgment is proper where the pleadings, discovery and affidavits show that

14

there is “no genuine issue as to any material fact and [that] the moving party is entitled to

15

judgment as a matter of law.” Fed. R. Civ. P. 56(c). A court will grant summary judgment

16

“against a party who fails to make a showing sufficient to establish the existence of an element

17

essential to that party’s case, and on which that party will bear the burden of proof at trial . . .

18

since a complete failure of proof concerning an essential element of the nonmoving party’s case

19

necessarily renders all other facts immaterial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23

20

(1986). A fact is material if it might affect the outcome of the lawsuit under governing law, and

21

a dispute about such a material fact is genuine “if the evidence is such that a reasonable jury

22

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

23

248 (1986).

24

Generally, when a party challenges the merits of the opponent’s claim, the moving party

25

bears the initial burden of identifying those portions of the record which demonstrate the absence

26

of a genuine issue of material fact. The burden then shifts to the nonmoving party to “go beyond

27

the pleadings, and by his own affidavits, or by the ‘depositions, answers to interrogatories, or

28

admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.’”
3

1

Celotex, 477 U.S. at 324 (citations omitted).

2

A verified complaint may be used as an opposing affidavit under Rule 56, as long as it

3

is based on personal knowledge and sets forth specific facts admissible in evidence. Schroeder

4

v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 1995) (treating plaintiff’s verified

5

complaint as opposing affidavit where, even though verification not in conformity with 28

6

U.S.C. § 1746, plaintiff stated under penalty of perjury that contents were true and correct, and

7

allegations were not based purely on his belief but on his personal knowledge). The complaint

8

was made under penalty of perjury and therefore is considered as evidence.
The court’s function on a summary judgment motion is not to make credibility

10
United States District Court
For the Northern District of California

9

determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W.

11

Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence

12

must be viewed in the light most favorable to the nonmoving party, and inferences to be drawn

13

from the facts must be viewed in a light most favorable to the nonmoving party. Id. at 631.

14
15
16
17
18

DISCUSSION
A.

Defendants’ First Motion for Summary Judgment
In his complaint, Harrison alleged that defendants violated his First Amendment rights

by unlawfully confiscating four pieces of outgoing mail and six pieces of incoming mail.

19

In the order addressing defendants’ first motion for summary judgment, the Court granted

20

summary judgment to defendants with respect to all of Harrison’s claims concerning his

21

outgoing mail. Specifically, the Court applied the test for such claims that was established in

22

Procunier v. Martinez, 416 U.S. 396 (1974),1 and found that: “Prison officials have demonstrated

23

a tight fit between each piece of confiscated outgoing mail and prison security, and that the

24

limitation is no greater than necessary to ensure prison security.” Doc. #20 at 21:11-13.

25

Additionally, the Court granted summary judgment to defendants regarding one piece of

26
1

Under Procunier, a limitation on outgoing mail is justified only if the limitation in
question (1) “furthers an important governmental interest unrelated to the suppression of
expression,” and (2) is “no greater than necessary or essential” to protect the governmental
28 interest involved. Id. at 413.
27

4

1

incoming mail that was confiscated on November 26, 2007 but subsequently was given to

2

Harrison, and two pieces of incoming mail that were confiscated on March 19, 2008. With

3

respect to the latter, the Court found that the prison regulation requiring confiscation of

4

gang-related mail is reasonably related to prison security and was reasonably applied to the two

5

pieces of mail, which contained articles that prison officials found were gang-related. Id. at

6

11:6-16.

7

The Court denied summary judgment to defendants with respect to the confiscation of

8

Harrison’s incoming mail on April 9, 2008, and July 14, 2008. The pending motion for

9

summary judgment addresses these claims.

United States District Court
For the Northern District of California

10
11

B.

Legal Standard for Review of First Amendment Claims Concerning Receipt of Mail

12

“Lawful incarceration brings about the necessary withdrawal or limitation of many

13

privileges and rights, a retraction justified by the considerations underlying our penal system.”

14

Pell v. Procunier, 417 U.S. 817, 822 (1974) (citing Price v. Johnston, 334 U.S. 266, 285 (1948)).

15

Prisoners retain those First Amendment rights not inconsistent with their status as prison inmates

16

or with legitimate penological objectives of the corrections system. Id.

17

A regulation or practice limiting prisoners’ receipt of mail is valid if it is reasonably

18

related to legitimate penological interests. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989)

19

(citing Turner v. Safley, 482 U.S. 78, 89 (1987)); see also Crofton v. Roe, 170 F.3d 957, 959

20

(9th Cir. 1999). Four factors are to be considered when determining the reasonableness of a

21

prison rule: (1) whether there is a “valid, rational connection between the prison regulation and

22

the legitimate governmental interest put forward to justify it,” (2) “whether there are alternative

23

means of exercising the right that remain open to prison inmates,” (3) “the impact

24

accommodation of the asserted constitutional right will have on guards and other inmates and

25

on the allocation of prison resources generally,” and (4) the “absence of ready alternatives”, or,

26

in other words, whether the rule at issue is an “exaggerated response to prison concerns.”

27

Turner, 482 U.S. at 89-90.

28

Prison officials are not required to show with certainty that any particular correspondence
5

1

would have adverse consequences because prison administrators are given some latitude in

2

anticipating the probable consequences of allowing a certain speech in and out of a prison

3

environment. Procunier v. Martinez, 416 U.S. 396, 412 (1974), overruled on other grounds by

4

Thornburgh, 490 U.S. at 413-14. Courts owe “substantial deference to the professional

5

judgment of prison administrators.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

6
7

C.

8

Harrison’s Claims
1.

9

April 9, 2008 Mail
a.

Background

United States District Court
For the Northern District of California

10

On April 9, 2008, Harrison’s incoming mail from “Books Through Bars” was confiscated

11

by Officer Milligan of the PBSP Institutional Gang Investigation (“IGI”) unit and Captain

12

Brandon because it allegedly promoted gang activity by discussing George Jackson literature.

13

Doc. #1, Exh. A at 43. The mailing described how to obtain George Jackson literature. Id. at

14

45.

15

Harrison appealed the confiscation, arguing that the mere discussion of George Jackson

16

did not constitute promoting BGF activity. Id. at 36, 38-39. Harrison’s appeal went directly to

17

a second level review by Warden Horel. Horel denied Harrison’s request to receive the

18

confiscated mailing, explaining that: “This mailing is being held in IGI pending further

19

investigation into the BGF gang activity as it tells the reader where they can obtain George

20

Jackson books, which constitutes promoting gang activity.” Id. at 45. Harrison appealed again

21

and received a director level review. The director denied his appeal, finding that the mail

22

promoted gang activity and noting that the CDCR has deemed writings from George Jackson as

23

gang-related in accordance with the Office of Correctional Safety. Id. at 47.

24

In the order addressing defendants’ first motion for summary judgment, the Court found

25

the record unclear with respect to Harrison’s claim that the confiscation violated his First

26

Amendment right to receive mail because no copy of the letter had been included in the motion

27

for summary judgment. Specifically, the Court ruled as follows:

28

According to the record, the mail stopped on April 9, 2008 describes how to obtain
6

1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

George Jackson literature. The prison officials claim the confiscation is necessary
because “[e]ven though George Jackson was never a BGF gang member, the BGF gang
has patterned their gang’s beliefs to incorporate George Jackson’s ideology and beliefs
and therefore, offering to inform the reader of where to obtain these books falls under
promoting gang activity.” Doc. #1, Exh. A at 45.
It appears that this mail promotes gang activity only because George Jackson is
mentioned; there is no indication that the mail discusses George Jackson’s ideology and
beliefs. By contrast with the mail stopped on March 19, 2008, in which validated gang
members invoked George Jackson in an inflammatory context, this mail apparently only
describes how to obtain literature concerning George Jackson.
If the regulation prohibiting gang-related mail is expanded to justify confiscation of any
mail which simply mentions George Jackson, it is no longer clear that it satisfies the
“common sense” Turner test. The defendants have failed to demonstrate the absence of
a genuine issue of material fact as to whether this piece of mail promotes gang activity.
Celotex, 477 U.S. at 323. Nor have defendants presented sufficient evidence indicating
that prison security requires confiscating mail that has any mention of George Jackson.
Doc. #20 at 11:17-12:9.
In support of the present motion for summary judgment, defendants have filed under seal
copies of the following documents, which are attached as Exhibit A to the Declaration of Officer
Milligan: (1) the incoming mail from Books Through Bars that includes Harrison’s letter in
which he identifies himself as “Tashiri, to whom [sic] is a New Afrikan Black political prisoner
of war” and instructions on how to obtain copies of his pamphlets “George Jackson Lives”
numbers 1-4 and “New Afrikan Physical Fitness 101,” by contacting Anthony Rayson, who runs
a publishing company, S. Chicago ABC Zine, (2) the enclosed pamphlet written by Harrison
entitled “Behind Door Number One,” (3) Officer Milligan’s notes describing for review the
reasons for stopping the incoming mail, and (4) the Stopped Mail Notification provided to
Harrison.
b.

Analysis

Prison staff are not permitted to allow “inmate[s] to send or receive mail which, in their
judgment, has any of the characteristics listed in [California Code of Regulations, Title 15,]
section 3006(c)”, including materials reasonably deemed to be a threat to legitimate penological
order. Cal. Code Regs., Title 15, § 3136. The April 9, 2008 incoming mail was confiscated
because it was found to promote gang activity in violation of Section 3136. According to prison
officials, such restriction is necessary to ensure prison security. Prison security is a legitimate
7

1

and neutral penological interest.

Stefanow v. McFadden, 103 F.3d 1466, 1472 (1996)

2

(recognizing prison security as a legitimate and “compelling” penological interest and upholding

3

content-based confiscation of book advocating racism and violence); see also Farmer v. Brennan,

4

511 U.S. 825, 833 (1994). Prison gangs in particular are a threat to inmate and staff safety, as

5

well as to prison order. See, e.g., Wilkinson v. Austin, 545 U.S. 209, 227 (2005); Westefer v.

6

Snyder, 422 F.3d 570, 575 (7th Cir. 2005).
Prison officials maintain the above mail was properly confiscated because it not only

8

mentions George Jackson but also explains how George Jackson-related literature that was

9

written by Harrison can be obtained. As noted, prison officials find such information promotes

10
United States District Court
For the Northern District of California

7

gang activity because, “[e]ven though George Jackson was never a BGF gang member, the BGF

11

gang has patterned their gang’s beliefs to incorporate George Jackson’s ideology and beliefs and

12

therefore, offering to inform the reader of where to obtain these books falls under promoting

13

gang activity.” Doc. #1, Exh. A at 45.

14

Additionally, prison officials have determined that Anthony Rayson, identified by

15

Harrison in the confiscated letter as the person from whom copies of Harrison’s pamphlets

16

“George Jackson Lives” numbers 1-4 and “New Afrikan Physical Fitness 101” can be obtained,

17

runs a publishing company that has previously published gang-related materials for BGF

18

members housed at PBSP-SHU, and that such activity is consistent with the BGF’s method of

19

operation, specifically, relying on the work of people in the community to type, display and

20

distribute the material under the direction and control of BGF members. Doc. #14, Exh. B to

21

Stocker Decl. Further, the mail contains a copy of Harrison’s article “Behind Door Number

22

One,” in which he describes himself as a “New Afrikan Revolutionary Freedom Fighter” who

23

embraces “the ideology of New Afrikan Revolutionary Nationalism.” Doc. #71, Exh. A to

24

Stocker Decl. (filed under seal). Prison officials have determined that references to the New

25

Afrikan Revolutionary Nationalism (NARN) is an attempt to disguise the activities of the BGF.

26

Doc. #1, Exh. A at 68-69.

27

The Court has reviewed the referenced mail and defendants’ evidence regarding the

28

relationship between the BGF, George Jackson-related materials and Anthony Rayson’s
8

1

publishing company. Given this context, the prison regulation requiring confiscation of gang-

2

related mail, Cal. Code Regs., Title 15, § 3136(a), is reasonably related to prison security, and

3

was reasonably applied to the mail that prison officials confiscated on April 9, 2008.

4

Accordingly, the first Turner factor has been met. See Turner, 482 U.S. at 89; see also Wilson

5

v. Panizza, No. C 10-01627 JW (PR) at 7 (N.D. Cal. Aug. 2, 2011) (finding prison policy

6

prohibiting prisoner from receiving book about Black Panther Party, which was founded by

7

George Jackson, served to suppress BGF indoctrination materials and was reasonably related to

8

prison security and order), aff’d, No. 11-17045 (9th Cir. Nov. 20, 2012) (unpublished).
The second Turner factor is satisfied where “there are alternative means of exercising the

10
United States District Court
For the Northern District of California

9

[constitutional] right that remain open to prison inmates.” Turner, 482 U.S. at 89-90. The Court

11

previously found that Harrison’s goal is to exercise his First Amendment rights to express his

12

political beliefs, and that there is no indication that he has been prohibited from all political

13

speech. Instead, “[h]is political speech has been limited only insofar as prison officials

14

determine that, in their professional judgment, his speech promotes gang activity.” Doc. #20 at

15

13:21-23.

16

Accordingly, the second Turner factor has been met. See Wilson, No. C 10-01627 at 8 (finding

17

confiscation of book about Black Panther Party did not deprive prisoner of alternative means of

18

learning about African American history).

Harrison has not presented evidence that calls this finding into question.

19

As to the third Turner factor, the Court previously found that if prison authorities were

20

to “accommodat[e] . . . the asserted constitutional right,” the resulting “impact” would be

21

negative because the BGF could share its ideology to recruit new members or further

22

indoctrinate existing members, thereby endangering the safety and security of inmates and staff.

23

Turner, 482 U.S. at 9. Again, Harrison has not presented evidence that calls this finding into

24

question. Accordingly, the third Turner factor has been met. See Wilson, No. C 10-01627 at

25

8 (finding prisoner’s possession of book about Black Panther Party would have negative impact

26

because BGF could recruit new members and further indoctrinate existing members, and

27

prisoner would be at risk of assault from BGF enemies).

28

Finally, as the Court previously found, Harrison has not met his burden to show that there
9

1

is a ready alternative to the confiscation that “fully accommodates the prisoner’s rights at de

2

minimis cost to valid penological interests.” Turner, 482 U.S. at 91 (citations omitted); see

3

Wilson, No. C 10-01627 at 8-9 (finding in favor of prison officials on fourth Turner factor

4

because prisoner did not put forth ready alternative that would be a de minimis cost to prison

5

security and internal order and discipline).

6

Based on the above, the Court finds that defendants have met their burden under the

7

Turner test by showing that the confiscation of Harrison’s April 9, 2008 mail pursuant to the

8

regulation prohibiting mail promoting gang activity was reasonably related to a legitimate

9

correctional goal. Accordingly, summary judgment is GRANTED in favor of defendants on this

United States District Court
For the Northern District of California

10

claim.

11
12

2.

13

July 14, 2008 Mail from Hannah Bastienne
a.

Background

14

On July 14, 2008, two pieces of Harrison’s incoming mail were confiscated by Officer

15

Milligan and Captain Brandon because they allegedly promoted gang activity. Doc. #1, Exh.

16

A at 51-52.

17

The first piece of mail had a return address of Hannah Bastienne, 1728 Berkeley Way #4,

18

Berkeley CA 94703. According to prison officials, the mail was gang-related because it

19

discussed a BGF fund-raising event. Id. at 51, 53. In their first motion for summary judgment,

20

defendants also claimed the Bastienne letter constituted inmate participation in unauthorized

21

revenue generating activity because it was a fundraiser. In opposition, Harrison argued that the

22

event was a fundraiser for NARN - a non-profit organization - and was not BGF-related. Doc.

23

#15 at 10. He also submitted an affidavit from Bastienne, in which she stated that the letter

24

discussed a community event organized to generate support for Harrison’s September 2008

25

parole hearing and to raise money to pay for Harrison’s yearly care package. Id. at Exh. D.

26

The Court ruled as follows with respect to defendants’ argument that the letter promoted

27
28

gang activity:
The letter itself is not in the record, and the discussions of it contain conflicting
10

1
2
3
4
5
6
7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21

descriptions. Harrison describes the event as a “community fundraiser” which has the
“sole purpose . . .[of raising] funds for the New Afrikan Community Response Network,
in particular, as it pertains to their community based political work.” Doc. #15 at 10.
However, he also provides an affidavit from Bastienne wherein she states that the purpose
of the community event was to raise awareness about Harrison’s upcoming parole hearing
and to raise funds to pay for Harrison’s yearly care package. Id. at Exh. D. If
Bastienne’s letter discussed a NARN fundraiser, the Court must defer to prison officials’
professional judgment about the relationship between the New Afrikan Community
Response Network and the BGF. Beard [v. Banks], 548 U.S. at 526.
However, if the event was merely to raise awareness about Harrison’s parole hearing and
raise funds for a yearly care package, defendants have failed to provide sufficient
evidence to link the event to prison security or gang activity. Since all justifiable
inferences must be drawn in the prisoner’s favor with respect to matters of disputed fact,
id., the Court finds that a factual dispute remains as to whether Bastienne’s letter
promotes gang activity.
Doc. #20 at 12:7-13:3.
Similarly, with respect to defendants’ argument that the letter directs illegal revenue
generating activity, the Court found:
Harrison does not challenge the reasonableness of the prohibition against mail that directs
revenue generating activity. Cal. Code Regs., Title 15, Section 3024(b). He
acknowledges that the event referenced in the Bastienne letter is a fundraiser, but argues
that contributions to NARN, a non-profit, do not constitute revenue generation. Section
3024 is titled “Business Dealings by Inmates.” Section 3024(a) defines a business as “any
revenue generating or profit making activity.” Id. at § 3024(a). The regulation does not
distinguish between whether the revenue serves a for-profit or non-profit purpose.
The Court would defer to prison officials’ judgment that NARN is a BGF-related entity,
and that therefore any contributions to NARN constitute revenue. See, e.g., Overton, 539
U.S. at 132. However, the record is unclear as to the nature of the event discussed in
Bastienne’s letter. Although Harrison states that the event is a NARN fundraiser,
Bastienne claims that the fundraiser was intended to raise funds to purchase Harrison’s
annual care package. Viewing the facts in the light most favorable to Harrison, the Court
finds that there is a question of fact as to whether the Bastienne letter directs revenue
gathering. See, e.g., T.W. Elec. Serv., 809 F.2d at 630.
Id. at 15:11-25.

22

In the present motion for summary judgment, defendants have filed under seal copies of

23

the following documents, which are attached as Exhibit B to the Declaration of Officer Milligan:

24

(1) the letter from Bastienne, (2) Officer Milligan’s notes describing for review the reasons for

25

stopping the incoming mail, and (3) the Stopped Mail Notification provided to Harrison.

26

b.

Analysis

27

The Court has reviewed the referenced letter from Bastienne and Officer Milligan’s

28

reasons for confiscating it. Based on such evidence, the Court finds that the letter contains
11

1

information from which prison officials reasonably could conclude, based on their professional

2

judgment about the relationship between NARN and BGF and Harrison’s connections to those

3

entities, that allowing Harrison to receive the letter would promote gang activity. The Court

4

must accord deference to prison authorities in disputed matters of professional judgment. Beard

5

v. Banks, 548 U.S. 521, 529 (2006). Accordingly, for the reasons discussed above with respect

6

to the confiscation of Harrison’s mail on April 9, 2008, the Court concludes that defendants

7

have met their burden under the Turner test of showing that their confiscation of the letter from

8

Bastienne pursuant to the regulation prohibiting mail promoting gang activity was reasonably

9

related to a legitimate correctional goal.

United States District Court
For the Northern District of California

10

The letter also contains information that prison officials reasonably could conclude

11

violates the prohibition against business dealings by inmates. California Code of Regulations,

12

Title 15, Section 3024 (a) provides that: “Inmates shall not engage actively in a business or

13

profession except as authorized by the institution head or as provided in Section 3104. For the

14

purpose of this section, a business is defined as any revenue generating or profit making

15

activity.” Id. § 3024(a). Additionally, subdivision (b) provides that: “Inmate mail may be

16

rejected by an institution head or designee for reasons which include, but are not limited to, the

17

mail relates to the direction of an inmate’s business or profession.” Id. § 3024(b).

18

Harrison does not challenge the reasonableness of the prohibition against mail that directs

19

revenue generating activity or the characterization of the event referenced in the letter as a

20

fundraiser. Rather, he argues that there were two purposes to the fundraiser - to raise funds for

21

NARN volunteers and to purchase a care package for him - and that neither purpose constitutes

22

revenue generation or profit making activity.

23

In defining prohibited business activities, the regulation does not distinguish between

24

revenues raised for profit or non-profit purposes or require that the generated revenue must

25

directly benefit the inmate. Instead, it prohibits the engagement of inmates in “any revenue

26

generating or profit making activity.” Id. § 3024(a). The letter from Bastienne contains specific

27

information about how she intended to raise money at the fundraiser. Based on this information,

28

prison officials reasonably could conclude that, regardless of whether the funds were raised for
12

1

NARN or to purchase a care package for Harrison, the manner of fund-raising intended by

2

Bastienne would engage Harrison in “revenue generating or profit making activity,” in violation

3

of the prohibition against business dealings by inmates.
Accordingly, summary judgment is GRANTED in favor of defendants on Harrison’s

4
5

claim concerning the confiscation of the letter from Bastienne.

6

3.

8

The second piece of incoming mail confiscated on July 14, 2008, had a return address of

9

Neilson Gonzalez, 1240 Walton Ave. #314, Bronx NY 10452. Prison officials stated that the

10
United States District Court
For the Northern District of California

7

letter violated the prohibition on unauthorized inmate-to-inmate correspondence from another

11

institution, Cal. Code Regs., Title 15, § 3139, and also contained information that promotes gang

12

activity. Doc. #6, Exh. A at 52.

July 14, 2008 Mail from Neilson Gonzalez

13

Defendants did not provide a copy of the letter in support of their first motion for

14

summary judgment. Consequently, the Court found a factual dispute existed as to whether the

15

letter did indeed originate from another penal institution and promote gang activity. In support

16

of the present motion for summary judgment, defendants have filed under seal copies of the

17

following documents, which are attached as Exhibit C to the Declaration of Officer Milligan:

18

(1) the envelope from Neilson Gonzalez that shows his return address in Bronx, New York, (2)

19

the letter from Neilson Gonzalez that shows he has addresses in both Bronx, New York and at

20

a penal institution, and (3) the Stopped Mail Notification that was provided to Harrison.

21

In opposition to the present motion for summary judgment, Harrison does not challenge

22

the reasonableness of the prohibition on inmate-to-inmate correspondence or address the

23

Gonzalez letter at all. The Court has reviewed the letter and Officer Milligan’s reasons for

24

confiscating it. The contents of the letter make clear that the letter was sent to Harrison from

25

Neilson Gonzalez, who is incarcerated at another penal institution. Accordingly, summary

26

judgment is granted in favor of defendants on this claim.

27

//

28

//
13

1

C.

Qualified Immunity
The defense of qualified immunity protects “government officials . . . from liability for

3

civil damages insofar as their conduct does not violate clearly established statutory or

4

constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,

5

457 U.S. 800, 818 (1982). The Court must consider the following two questions: (1) “Taken

6

in the light most favorable to the party asserting the injury, do the facts alleged show the

7

officer’s conduct violated a constitutional right?” and (2) whether the right was clearly

8

established. . . . ‘The contours of the right must be sufficiently clear that a reasonable official

9

would understand that what he is doing violates that right.’ . . . The relevant, dispositive inquiry

10
United States District Court
For the Northern District of California

2

in determining whether a right is clearly established is whether it would be clear to a reasonable

11

officer that his conduct was unlawful in the situation he confronted.” Saucier v. Katz, 533 U.S.

12

194, 201-02 (2001) (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987)); Pearson v.

13

Callahan, 555 U.S. 223, 235 (2009) (overruling the sequence of the Saucier two-part test that

14

required determination of a deprivation first and then whether such right was clearly established,

15

as required by Saucier).

16

Prison officials’ confiscation of Harrison’s incoming mail on April 9, 2008 and July 14,

17

2008, did not violate Harrison’s First Amendment rights. Therefore, the Court need not consider

18

whether the right was clearly established. Accordingly, defendants are entitled to judgment as

19

a matter of law on the qualified immunity defense with respect to these pieces of incoming mail.

20
21

D.

Motion for Reconsideration

22

After the Court denied in part and granted in part defendants’ first motion for summary

23

judgment, Harrison moved, pursuant to Federal Rule of Civil Procedure 54(b), for

24

reconsideration of the Court’s ruling. On May 21, 2012, the Court denied the motion in a

25

reasoned order. Doc. #49. Subsequently, Harrison moved for reconsideration of the Court’s

26

order denying reconsideration. The Court denied this motion on June 15, 2012. Doc. #57.

27

Harrison now moves a third time for reconsideration of the Court’s order denying in part and

28

granting in part defendants’ first motion for summary judgment. Harrison has presented no new
14

1

evidence or other grounds that warrant reconsideration of the Court’s prior rulings. Accordingly,

2

the motion for reconsideration is DENIED.

3
4

E.

Request for Judicial Notice

5

Harrison has submitted two requests for judicial notice. The first request asks the Court

6

to take judicial notice of an absence of evidence to support defendants’ motion for summary

7

judgment with respect to confiscation of the letter sent to Harrison from Bastienne. Such

8

argument, which has been raised in Harrison’s opposition to the motion for summary judgment

9

and considered by the Court, is not a proper subject for judicial notice. Accordingly, this request

United States District Court
For the Northern District of California

10

is DENIED.

11

Harrison’s second request for judicial notices asks the Court to take notice of an order

12

issued by Judge Seeborg of this district, finding that a reference to George Jackson and New

13

Afrika in an inmate’s confiscated mail “does not threaten security and is not BGF-related.”

14

Doc. #89. Harrison does not provide a copy of the order but does provide the case number. The

15

Court has obtained and reviewed the order and GRANTS Harrison’s request for judicial notice

16

thereof. See Harvey v. Drown, No. C 10-4891 RS (PR) (N.D. Cal. Mar. 22, 2012).

17

Contrary to Harrison’s summary of the ruling in that case, Judge Seeborg did not find,

18

as a matter of law, that the references made to George Jackson and New Afrika do not threaten

19

institutional security and are not BGF related. Instead, Judge Seeborg found that a question of

20

fact existed as to whether, under the particular circumstances at issue in that case, prison officials

21

reasonably determined that the pieces of outgoing mail were a threat to institutional security.

22

Ultimately, the case settled and the factual disputes were not resolved on the record.

23

Further, the order is inapposite to the present case for two reasons. First, as noted, it

24

pertains to references made by a PBSP inmate in pieces of outgoing mail. The current motion

25

for summary judgment in this case concerns only incoming mail, to which a different standard

26

of review applies. Specifically, with respect to incoming mail, a regulation or practice limiting

27

prisoners’ receipt of mail is valid only if it is reasonably related to legitimate penological

28

interests. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989). However, in the case of outgoing
15

1

mail, which “[does] not, by its very nature, pose a serious threat to prison order and security,”

2

id. at 411 ,a limitation is justified only if (1) “furthers an important governmental interest

3

unrelated to the suppression of expression,” and (2) is “no greater than necessary or essential”

4

to protect the governmental interest involved. Procunier v. Martinez, 416 U.S. 396, 413 (1974).

5

Second, in the order addressing defendants’ first motion for summary judgment, the Court

6

found that the evidence presented by defendants satisfied the Procunier standard with respect to

7

each piece of Harrison’s outgoing mail that had been confiscated:

8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24

Prison officials have demonstrated a tight fit between each piece of confiscated outgoing
mail and prison security, and that the limitation is no greater than necessary to ensure
prison security. In reviewing each piece of mail, prison officials found that George
Jackson and the NARN were invoked in a context that promoted gang activity. The mail
stopped on March 1, 2007, quoted George Jackson and indirectly referenced the BGF and
BGF members at PBSP. The mail stopped on February 17, 2009, contained information
referencing NARN, which has been determined by prison officials to disguise the
activities of the BGF. In addition, the mail was addressed to Anthony Rayson, who has
previously published gang-related materials for BGF members housed at PBSP-SHU.
Rayson is also affiliated with the Anarchist Black Cross, a organization which advocates
being “militantly organized” and seeks abolition of prisons. Similarly, the mail
confiscated on March 12, 2009, also contained information regarding NARN and was
addressed to Rayson. Finally, prison officials point out that Harrison is seeking to publish
his writings through Rayson and his affiliated publishing company, which is consistent
with BGF’s known method of operation: publishing materials through “people in the
community . . . under the direction and control of BGF members.” [Citation omitted.]
Defendants have not confiscated Harrison’s mail because of the references to NARN or
George Jackson; rather they have carefully reviewed his mail and the relevant context to
ensure that the confiscation was necessary to ensure prison security. See, e.g., Procunier,
416 U.S. at 415 (disapproving regulation which not “narrowly drawn to reach only
material that might be thought to encourage violence). Defendants have proven that the
confiscation of Harrison’s outgoing mail furthered the important government interest of
ensuring prison security.
Doc. #20 at 21:11-22:4.
In sum, Judge Seeborg’s ruling in the Harvey case, which is based on different facts and
evidence than presented in this case, does not compel a different ruling from this Court with
respect to the confiscation of Harrison’s outgoing mail.

25
26
27
28

CONCLUSION
For the foregoing reasons, defendants second motion for summary judgment is
GRANTED. Defendants are entitled to judgment as a matter of law on all claims raised by
16

1
2

plaintiff Marcus L. Harrison’s complaint.
The Clerk shall terminate all pending motions as decided by this order and judgment shall

3

be entered in favor of all defendants.

4

IT IS SO ORDERED.

5
6

Dated: March 8, 2013

_______________________
SUSAN ILLSTON
United States District Judge

7
8
9
United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
17