Hernandez v. Wheeler et al

Filing 39

MEMORANDUM DECISION AND ORDER granting 32 Defendant's Motion for Summary Judgment; denying Plaintiff's request to amend his complaint, contained in his Response 37 . The Complaint 3 is DISMISSED with prejudice. Signed by Judge Candy W Dale. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (cjm)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO

JAMES H. HERNANDEZ, JR.,
Case No. 2:10-cv-00084-CWD
Plaintiff,
MEMORANDUM DECISION AND
ORDER

v.
DARRELL WHEELER, LT. HARRIS,
LT. WIENS, SGT. CABLE, SGT.
HARRISON, AND OFFICER VAN
PEIT,

Defendants.

Pending before the Court is Defendants’ Motion for Summary Judgment. (Dkt.
32.) All parties have consented to the jurisdiction of a United States Magistrate Judge to
enter final orders in this case. (Dkt. 29.) See 28 U.S.C. § 636(c) and Fed. R. Civ. P. 73.
Having fully reviewed the record, the Court finds that the parties have adequately
presented the facts and legal arguments in the briefs and record and that the decisional
process would not be significantly aided by oral argument. Therefore, the Court will
decide this matter on the written motions, briefs, and record without oral argument. D.
Idaho L. Civ. R. 7.1(d). Accordingly, the Court enters the following Order.

MEMORANDUM DECISION AND ORDER - 1

DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
1.

Background
At the time of the incidents at issue, Plaintiff and his wife, Christy Boen, were

pretrial detainees in the Bonner County Jail. The Initial Review Order in this case
authorized Plaintiff to proceed on his claim that jail officials violated his First
Amendment rights by refusing to permit husband-wife inmate-to-inmate written
correspondence, and by retaliating against him for attempting to assert his right to
correspond, against the following Defendants: Darrell Wheeler, Sergeant Harris, Sergeant
Cable, Officer Van Pelt, and Lieutenant Wiens. (Dkt. 7.) Plaintiff was not authorized to
proceed on his claims of mail censorship, equal protection, or access to the courts.
Defendants now assert entitlement to summary judgment on the remaining First
Amendment claims.
2.

Standard of Law Governing Summary Judgment

Summary judgment is appropriate where a party can show that, as to any claim or
defense, “there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). One of the principal purposes of
summary judgment “is to isolate and dispose of factually unsupported claims . . . .”
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). It is “not a disfavored procedural
shortcut,” but is instead the “principal tool[ ] by which factually insufficient claims or
defenses [can] be isolated and prevented from going to trial with the attendant
unwarranted consumption of public and private resources.” Id. at 327.
MEMORANDUM DECISION AND ORDER - 2

“[T]he mere existence of some alleged factual dispute between the parties will not
defeat an otherwise properly supported motion for summary judgment.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). The requirement is that there be no
genuine dispute as to any material fact. “Material facts are those that may affect the
outcome of the case.” See id. at 248. The moving party is entitled to summary judgment
if that party shows that each material issue of fact cannot be disputed. To show that the
material facts are not in dispute, a party may cite to particular parts of materials in the
record, or show that the materials cited do not establish the presence of a genuine dispute,
or that the adverse party is unable to produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 U.S. at 322). The Court
must consider “the cited materials,” but it may also consider “other materials in the
record.” Fed. R. Civ. P. 56(c)(3).
Material used to support or dispute a fact must be “presented in a form that would
be admissible in evidence.” Fed. R. Civ. P. 56(c)(2). Affidavits or declarations submitted
in support of or opposition to a motion "must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or declarant is
competent to testify on the matters stated." Fed. R. Civ. P. 56(c)(4).
The Court does not determine the credibility of affiants or weigh the evidence set
forth by the non-moving party. All inferences which can be drawn from the evidence

MEMORANDUM DECISION AND ORDER - 3

must be drawn in a light most favorable to the nonmoving party. T.W. Elec. Serv., 809
F.2d at 630-31 (internal citation omitted). If the moving party meets its initial
responsibility, the burden then shifts to the opposing party to establish that a genuine
issue as to any material fact actually does exist. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 586 (1986).
The existence of a scintilla of evidence in support of the non-moving party’s
position is insufficient. Rather, “there must be evidence on which the jury could
reasonably find for the [non-moving party].” Anderson, 477 U.S. at 252. Rule 56(e)(3)
authorizes the Court to grant summary judgment for the moving party “if the motion and
supporting materials– including the facts considered undisputed–show that the movant is
entitled to it.”
Plaintiff brings his claims under 42 U.S.C. § 1983, the civil rights statute. To have
a claim under § 1983, a plaintiff must show the existence of four elements: “(1) a
violation of rights protected by the Constitution or created by federal statute (2)
proximately caused (3) by conduct of a ‘person’ (4) acting under color of state law.”
Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir. 1991). Section 1983 is “‘not itself a
source of substantive rights,’ but merely provides ‘a method for vindicating federal rights
elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 393-94 (1989) (quoting Baker
v. McCollan, 443 U.S. 137, 144 n.3 (1979)).

MEMORANDUM DECISION AND ORDER - 4

3.

First Amendment Mail Claims
Plaintiff has been permitted to pursue his First Amendment claim that jail officials’

complete prohibition of correspondence between husband-and-wife pretrial detainees is
an exaggerated response to the security issues posed by permitting such correspondence.
To the extent that Plaintiff also has presented his arguments as Fourteenth Amendment
substantive due process claims, the Court has considered the facts under that theory,
because Plaintiff’s complaint could be amended to assert such a cause of action.
A.

Standard of Law

Inmates retain the First Amendment right to send and receive mail. See
Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). Pretrial detainees have slightly broader
rights than convicted inmates. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1059 n.1 (9th
Cir. 1999) (“a pretrial detainee may assert his status as a shield against intrusive practices
aimed solely at rehabilitation but not against practices aimed at security and discipline”).
In Turner v. Safley, 482 U.S. 78 (1987), the United States Supreme Court held that
restrictions on inmate-to-inmate communications pass constitutional muster only if the
restrictions are reasonably related to legitimate and neutral governmental objectives,
based on a four-factor test. Id. at 89. The prisoners in Turner v. Safley challenged the
regulation that prohibited all inmate correspondence between inmates at different
facilities, where the only exceptions to the regulation were for correspondence (1)
between “immediate family members who are inmates in other correctional institutions”;
(2) between inmates “concerning legal matters”; and (3) between inmates where “the
MEMORANDUM DECISION AND ORDER - 5

classification/treatment team of each inmate deems it in the best interest of the parties
involved.” Id.
In Turner, the Court held that “when a prison regulation impinges on inmates’
constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” 482 U.S. at 89. The Turner Court identified four factors to
consider when determining whether a regulation is valid: (1) whether there is a “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) what “impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of prison
resources generally”; and (4) whether the prison has “ready alternatives” to the restrictive
regulation available at a “de minimis cost,” which “may be evidence that the regulation is
not reasonable, but is an exaggerated response to prison concerns.” 482 U.S. at 89-93
(internal quotation marks omitted).
The United States Supreme Court has opined that “maintaining institutional
security and preserving internal order and discipline are essential goals that may require
limitation or retraction of the retained constitutional rights of both convicted prisoners
and pretrial detainees.” Bell v. Wolfish, 441 U.S. 520, 546 (1979). Moreover, “[p]rison
administrators ... should be accorded wide-ranging deference in the adoption and
execution of policies and practices that in their judgment are needed to preserve internal
order and discipline and to maintain institutional security.” Id. Because “‘[s]uch
MEMORANDUM DECISION AND ORDER - 6

considerations 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.’” Id. at 547-48 (quoting Pell v. Procunier,
417 U.S. 817, 827 (1974)).
The Turner analysis applies to pretrial detainees. See Bull v. City and County of
San Francisco, 595 F.3d 964 (9th Cir. 2010). The United States Court of Appeals for the
Ninth Circuit has clarified that, in applying the Turner test to pretrial detainees–who may
not be punished–the legitimate penological interests in security and safety apply, but “the
penological interests in punishment and rehabilitation may not be applicable outside the
prison setting.” Id. at 974. n. 10.
B.

Undisputed Material Facts

This section includes facts that are undisputed and material to the resolution of the
issues in this case. Where material facts are in dispute, the Court has included Plaintiff’s
version of facts, insofar as that version is not contradicted by clear documentary evidence
in the record.
At the time period in question, the jail had policies and procedures in place
governing inmate-to-inmate mail, all incoming mail, and all outgoing mail. The stated
purpose behind the policies was to maintain jail security. (Affidavit of Sheriff Daryl
Wheeler and Exhibits, Dkt. 32-3; Affidavit of Jail Commander Doug Harris and Exhibits,
Dkt. 32-4.)
MEMORANDUM DECISION AND ORDER - 7

Specifically, the Bonner County Jail policy on inmate correspondence provided:
Written correspondence between inmates being held at the Bonner
County Detention Facility is normally prohibited. Such authorization may
be granted, for good cause, under the following conditions:
1.

When the inmates are, and were at the time of their
commitment, immediate family members such as spouse,
parent, child, or sibling. Authorization for correspondence
between inmates may not be granted if such contact has been
prohibited for investigative purposes or court order.

2.

Inmates may be authorized to correspond with other inmates
concerning legal matters in which they are co-parties and not
represented by counsel. Inmates corresponding with other inmates
concerning legal matters do so with the understanding that this mail
is not considered privileged mail and may be opened, inspected and
read.

(Exhibit A to Harris Aff., Dkt. 32-4, p. 13.)
Jail Commander Doug Harris participated in jail training courses that outlined the
risks of inmate-to-inmate correspondence, including: “the communication of escape plans
between inmates; coordinating the movement of contraband into and out of the
correctional/detention facility; coordinating violent acts against corrections staff and/or
other inmates; developing and maintaining informal organizations, such as gangs, that
pose a threat to the safety and security of corrections staff and/or other inmates;
communicating the layout of the detention facility; communicating the number of
detention deputies on shift at a given time; and tracking the movement and schedule of
corrections staff and/or other inmates.” (Harris Aff. and Exhibits, Dkt. 32-4.)
The policy at issue was found in the Inmate Handbook, which was available to

MEMORANDUM DECISION AND ORDER - 8

Plaintiff in his pod, and Plaintiff was also advised by staff of this policy. (Wheeler Aff.
and Exhibits, Dkt. 32-3; Harris Aff. and Exhibits, Dkt. 32-4.) In addition, when Plaintiff
and his wife, Christy Boen, were booked into the jail on federal charges, they were told in
person that inmate-to-inmate correspondence was prohibited.
Plaintiff first requested permission to write to his wife on April 29, 2009, stating: I
was told in court today that I could write my wife Christy Boen, [illegible][.] She is an
inmate here[.] Could you please approve or contact US Marshal[] or court.” (Dkt. 32-4, p.
23.) The written response on the jail form was, “‘Correct. Cannot discuss their case. Mail
must be screen[ed] as usual,’” signed [illegible signature], USMS.” (Id.) Plaintiff has
submitted a minute entry from the federal court showing: “At this time, the Court will not
impose a no contact order between the Defendants while jointly incarcerated.” (Dkt. 37,
p. 20.)1
After Plaintiff tried through legitimate channels to obtain permission to correspond
with his wife, and was denied, both Plaintiff and his wife attempted to communicate in

1

This Court presided over Plaintiff's preliminary hearings in federal court, and the statement that
is quoted is the Court's own statement. The Court has sua sponte considered whether recusal in this case is
required, and has concluded that it is not required. Title 28 U.S.C. § 455(b)(1) provides that a judge or
magistrate must recuse herself “[w]here [s]he has ... personal knowledge of disputed evidentiary facts
concerning the proceeding.” However, several courts have held that “[f]acts learned by a judge in his or
her judicial capacity regarding the parties before the court, whether learned in the same or a related
proceeding, cannot be the basis for disqualification” under 28 U.S.C. § 455(b)(1). Lac Du Flambeau
Band of Lake Superior Chippewa Indians v. Stop Treaty Abuse-Wisconsin, 991 F.2d 1249, 1255-56 (7th
Cir. 1993); Omega Engineering, Inc. v. Omega, S.A., 432 F.3d 437 (2d Cir. 2005). In addition, here, the
fact that the federal court did not impose a “no contact” order is not disputed.

MEMORANDUM DECISION AND ORDER - 9

writing with each other by leaving notes hidden under the door to the outdoor recreation
area. On June 5, 2009, Deputy Van Pelt found a note in the door of the outdoor recreation
area. It said, “I love you so much Christy.” Deputy Van Pelt identified the sender as
Plaintiff, and the intended receiver as his wife, both inmates.(Dkt. 32-4, p. 27.) That same
day, Deputy Petit confiscated a number of letters from Plaintiff to Boen that had been
written at the jail. (Id., p. 28.) (Defendants have provided no insight into the content of
the other letters.) Plaintiff received 30 days of lockdown, with 20 days suspended, for
violating jail policies. (Id.)
On July 9, 2009, Plaintiff wrote a kite, asking to be moved to the Shoshone County
Jail or another facility so that he could correspond with his wife, citing the fact that he
had been in trouble for writing and trying to talk to her in the jail. He states: “We are
losing our child to the Department of Social and Health Services Div. of Children and
Family Services. This is cruel punishment and A.C.L.U. Idaho Jail stand[ard] says I have
the right to be able to write my wife.” (Dkt. 32-4, p. 33.) The response was, “Forwarded
to US Marshals.” (Id.) Plaintiff wrote again, citing Idaho Jail Standards, Chapter 14.03.
His request was denied. (Id., p. 34.) Idaho Minimum Jail Standards Chapter 14.03
contains the same language, with the same exceptions for family members and pro se
joint inmate litigation, as found in the jail’s policy.2
Sheriff Doug Harris states that Plaintiff's actions in repeatedly requesting a

2

See Idaho Sheriff’s Association Minimum Jail Standards, revised December 2003, found at
http://static.nicic.gov/Library/019370.pdf.
MEMORANDUM DECISION AND ORDER - 10

prohibited action and then secretly writing to his wife caused disruption to the
management of the jail because Plaintiff and his wife had to be constantly monitored, and
that Plaintiff’s actions created a threat to the safety and security of the jail, its staff, and
other inmates. (Id.)
During the time period when both husband and wife were housed at the jail,
Plaintiff was permitted to correspond by mail with non-incarcerated persons. Plaintiff was
permitted to write to his wife as soon as she was placed in a Seattle, Washington facility
to serve her incarceration time. (Harris Aff., Dkt. 32-4.)
C.

Discussion of Turner Test

The Turner v. Safley case established that restrictions on inmate-to-inmate
communications are constitutional only if the restrictions are reasonably related to
legitimate and neutral governmental objectives, based on a four-factor test. Id. at 89. The
Court concludes, that, under the facts of this case, Plaintiff has not met his burden to
come forward with sufficient evidence to show that Defendants violated Plaintiff’s
constitutional rights under the First or Fourteenth Amendment when they refused to allow
him to correspond with his wife while they were both pretrial detainees. While the second
Turner factor strongly favors Plaintiff, the first, third and fourth factors favor the jail, as
the Court discusses in more detail below.
Even though the Turner opinion can be read to imply that husband-and-wife
inmates have a right to correspond– because the prison policy analyzed in Turner
provided that such correspondence was an exception to the general rule of no
MEMORANDUM DECISION AND ORDER - 11

correspondence between inmates–it is important to note that husband-and-wife
correspondence was not particularly at issue in Turner, and, thus, the United States
Supreme Court did not address whether it was a right. As a result, it is not known whether
the narrowing of the Turner policy to allow husband-wife correspondence aided in the
prison being able to meet the four factors, or whether it was simply irrelevant. Case law
from lower federal courts following Turner seems to recognize a right of husband-andwife inmates to correspond that arises from Turner, perhaps simply because the policy
scrutinized in Turner did permit correspondence between immediate family members,
although, again, it is important to note that family correspondence was not at issue in
Turner.3
(1)

First Factor

Affidavits of Bonner County Jail officials outlining the particular security concerns
that arise when inmates are permitted to correspond with one another in the same prison
demonstrate that the first Turner factor is met–there is a rational connection between the
prison regulation and a legitimate governmental interest. These are the same security
interests cited by the majority in Turner. The dissenting justices in Turner argued that

3

Of those cases following Turner, the right of couples to correspond has been narrowly construed
as applying only to married couples, and it has not been extended to common-law couples or formerlymarried couples, finding the security concerns set forth in Turner enough to deny that privilege to
nonmarried couples. See Maldonaldo v. Bruce, 2008 WL 5435315 (D. Mont. 2008) (common law
marriage; previously-approved letter writing between two federal prisons suspended when letters were
used to set up dates or letter-writing between female and male prisons (involving third-party inmates) and
because there was no proof that of marriage); Murphy v. Altizer, 2009 WL 4122546 (S.D. W. Va. 2009)
(formerly married inmates); Oliver v. Lyons, 1989 WL 48405 (E.D. Pa. 1989) (mentions common law
wife, but relies on prison prohibition and Turner).
MEMORANDUM DECISION AND ORDER - 12

these interests were mere generalities, and that more fact-specific interests should have
been supplied by prison officials, but the majority rejected that position in favor of
deference to prison authorities. Thus, even though Defendants did not produce fact- or
facility-specific information to support their legitimate governmental interests, the Court
cannot require more, in light of the manner in which the four factors were actually applied
in Turner, and especially where the factors here nearly mirror those that were set forth
and found acceptable in Turner.
(2)

Second Factor

The second factor is whether alternative means of exercising the right remained
open. Plaintiff was free to correspond with friends, family, his attorney, and the rest of the
outside world, but was restricted from corresponding with all inmates housed in the same
facility, including his wife, who was Plaintiff’s co-defendant. The Court rejects
Defendants’ interpretation of this factor–that it is sufficient that Plaintiff could correspond
with everyone except his wife. Plaintiff mentions that he and his wife had recently had a
baby, and that the baby was the subject of parental rights termination proceedings, but he
and his wife could not communicate about that fundamentally important action. In this
instance, or even in an instance where a husband and wife had joint property or debts that
needed attention while they both were incarcerated, communication with any third party
cannot be equated to communication with a spouse.
The Turner Court cited to Jones v. North Carolina Prisoners’ Labor Union, Inc.,
433 U.S. 119 (1977), to explain the importance of the second factor. In Jones, the issue
MEMORANDUM DECISION AND ORDER - 13

was whether the prison could refuse to deliver bulk mailings from the prisoner labor
union without violating the First Amendment. The ban did not extend to individual
mailings from the union to individual inmates. 433 U.S. at 131 n.8. The court determined
that, “[s]ince other avenues of outside informational flow by the Union remain available,
the prohibition of bulk mailing, reasonable in the absence of First Amendment
considerations, remains reasonable.” 433 U.S. at 131.
That conclusion was based upon the following reasoning:
The State has not hampered the ability of prison inmates to
communicate their grievances to correctional officials. In banning Union
solicitation or organization, appellants have merely affected one of several
ways in which inmates may voice their complaints to, and seek relief, from
prison officials. There exists an inmate grievance procedure through which
correctional officials are informed about complaints concerning prison
conditions, and through which remedial action may be secured. See
Affidavit of Director Edwards, App. 127. With this presumably effective
path available for the transmission of grievances, the fact that the Union's
grievance procedures might be more “desirable” does not convert the
prohibitory regulations into unconstitutional acts.
433 U.S. at 131 n.6.
Here, Plaintiff had no alternative means of communicating with his spouse.
Accordingly, for these reasons, the second Turner factor weighs heavily in favor of
Plaintiff.
(3)

Third Factor

The third Turner factor is an assessment of the impact that accommodation of the
right will have on guards, other inmates, and on the allocation of prison resources
generally. As to the third factor, the Turner Court again turned to Jones to explain its
MEMORANDUM DECISION AND ORDER - 14

meaning, reasoning that, “[w]hen accommodation of an asserted right will have a
significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be
particularly deferential to the informed discretion of corrections officials.” Turner, 482
U.S. at 90, comparing Jones, 433 U.S. at 132-133.
In assessing the third Turner factor, the Court finds that additional management
resources were needed at the Bonner County Jail to monitor the correspondence and
interaction of Plaintiff and his wife. While male inmates could communicate (at least
verbally) with male inmates, and female inmates with other females, in general males and
females at the jail were separated. No correspondence between prisoners was allowed,
and, thus, correspondence between Plaintiff and his wife would need to be carefully
screened.
Defendants do not state how many immediate-family inmates it housed, to show
how large a burden monitoring such correspondence would be. The jail suggests that “the
man power, time, money and training dedicated to reading, deciphering and evaluating
threats posed by inmate correspondence would increase substantially.” (Harris Aff. ¶ 26.)
The prison did not bring forward facts showing how heavily it reads or screens regular
mail, and whether monitoring of the mail between Plaintiff and his wife would have
added greatly or minimally to their existing burden to screen regular incoming and
outgoing mail. However, what the jail has provided is sufficient here, because, as noted
above, the Turner majority rejected the Turner dissenting justices’ call for detailed data to
support the allegation that monitoring was an extra burden. Thus, the Bonner County
MEMORANDUM DECISION AND ORDER - 15

Detention officers cannot be required to engage in such a detailed analysis in this case.
(4)

Fourth Factor

The fourth Turner factor is whether there is an absence of ready alternatives. The
absence of a ready alternative tends to show the reasonableness of a prison regulation.
482 U.S. at 90. Conversely, “the existence of obvious, easy alternatives may be evidence
that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.”
Id. “[I]f an inmate claimant can point to an alternative that fully accommodates the
prisoner’s rights at de minimis cost to valid penological interests, a court may consider
that as evidence that the regulation does not satisfy the reasonable relationship standard.”
Id.
Here, the jail could have allowed Plaintiff and his wife to send their
correspondence to one another through the regular U.S. Postal Service, so that it could be
monitored with the other mail. The jail could have allowed Plaintiff and his wife to have
monitored personal visitation in lieu of written correspondence. The jail could have
permitted Plaintiff and his wife to meet together with their lawyers from time to time.
These are a few alternatives that suggest the total ban on spousal correspondence was
exaggerated; however, the Court is careful to note that it must defer to jail officials on
whether these alternatives would pose undue security risks or require excessive
monitoring by jail employees. In addition, these alternatives clearly would require
additional staff time, calling into question whether they are “easy” alternatives. Hence,
this factor weighs slightly in favor of the jail.
MEMORANDUM DECISION AND ORDER - 16

D.

Conclusion of Turner Analysis

The first factor weighs heavily in favor of the jail: the prohibition on inmate-toinmate correspondence is reasonably related to valid corrections goals. The second factor
weighs heavily in favor of Plaintiff: there is no other type of correspondence that can take
the place of communication between spouses, especially when parental termination
proceedings are immediately at issue.
The third and fourth factors weigh slightly in favor of the jail. The ban logically
advances the goals of institutional security and safety identified by jail officials, and it is
not clearly an exaggerated response to those objectives. Accordingly, the regulation did
not unconstitutionally abridge the First Amendment rights of Plaintiff, and Defendants are
entitled to summary judgment.
E.

Qualified Immunity Standard of Law

Alternatively, the Court considers Defendants’ qualified immunity defense, and
concludes that qualified immunity applies, because the law governing Plaintiff’s claim is
not clearly established. In Section 1983 actions, the doctrine of qualified immunity
protects state officials from personal liability for on-the-job conduct so long as the
conduct is objectively reasonable and does not violate clearly-established federal rights.
Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982) (citations omitted). A qualified immunity
analysis consists of two prongs: (1) whether the facts as alleged by plaintiff establish a
violation of a constitutional right, and (2) whether that right was clearly established given
the state of the law at the time of the alleged misconduct. Pearson v. Callahan, 129 S.Ct.
MEMORANDUM DECISION AND ORDER - 17

808, 815-16 (2009), citing Saucier v. Katz, 533 U.S. 194, 201 (2001). Courts may
“exercise their sound discretion in deciding which of the two prongs of the qualified
immunity analysis should be addressed first in light of the circumstances in the particular
case at hand." Id. at 818. The qualified immunity inquiry is "a pure question of law.”
Elder v. Holloway, 510 U.S. 510, 514 (1994).
As to the first prong, the court considers whether, “[t]aken in the light most
favorable to the party asserting the injury, . . . the facts alleged show the [defendants’]
conduct violated a constitutional right.” Saucier, 533 U.S. at 201.
As to the second prong–whether the law was clearly established– such inquiry
“must be undertaken in light of the specific context of the case, not as a broad general
proposition.” Saucier, 533 U.S. at 201. The Court must consider the “objective legal
reasonableness of the action, assessed in light of the legal rules that were clearly
established at the time it was taken.” Pearson, 129 S.Ct. at 822, quoting Wilson v. Layne,
526 U.S. 603, 614 (1999). If the public official can demonstrate he did not know, nor
should he have known, the relevant legal standard, then qualified immunity applies.
Harlow, 457 U.S. at 819.
To determine whether a party’s rights were clearly established, the Court first
looks to United States Supreme Court and Ninth Circuit precedent; it may also look to
decisions of “sister Circuits, district courts, and state courts.” Sorrels v. McKee, 290 F.3d
965, 970 (9th Cir. 2002). In addition, “it is not necessary that the alleged acts have been
previously held unconstitutional, as long as the unlawfulness of defendants’ actions was
MEMORANDUM DECISION AND ORDER - 18

apparent in light of preexisting law.” Id. (internal citations and punctuation alterations
omitted).
F.

Discussion of Qualified Immunity re: the Mail Claim

Plaintiff has failed to demonstrate that the right of husband-and-wife inmates to
correspond with each other while they are incarcerated in the same facility or same
correctional system was clearly established in the law at the time jail officials refused to
allow the correspondence. Neither Turner nor any other case of precedential value clearly
establishes the right to engage in husband-wife inmate-to-inmate communications in the
same facility. Therefore, a reasonable officer in Defendants’ place would not feel
compelled by the law to grant Plaintiff’s request.
Plaintiff offers no legitimate case holdings to support his position that the law was
clearly established at the time his request was denied. He cites to Berch v. Stahl, 373
F.Supp. 412, 424 (W.D.N.C. 1974), for the proposition that “[p]retrial detainees have a
right to communicate with loved ones independent of their right to communicate with the
courts.” However, not only did that court stretch to support such a holding, the case is
from the pre-Turner era.
The reasoning of Berch is aimed at an admirable outcome, but does not aid
Plaintiff in showing that qualified immunity should not apply here:
The defendants’ interference with communication between plaintiff
Berch and his wife may also be unconstitutional as an infringement of rights
attached to the marital state. The Supreme Court has pointed out that there
are ‘fundamental’ rights of ‘personal privacy’ attached ‘to activities relating
to marriage’ and to ‘family relationships.’ Roe v. Wade, 410 U.S. 113,
MEMORANDUM DECISION AND ORDER - 19

152-153, 93 S.Ct. 705, 35 L.Ed.2d 147 152-153, 93 S.Ct. 705, 35 L.Ed.2d
147 U.S. 1, 12, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1967), and Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645 (1944). See
also Griswold v. Connecticut, 381 U.S. 479, 85 S.Ct. 1678, 14 L.Ed.2d 510
(1965).
Though Griswold and Roe dealt with physical aspects of the
marriage relationship, the emotional side can not be overlooked; there is,
still today, a truth in the poet’s assertion that ‘stone walls do not a prison
make’ so long as the prisoner retains contact with loved ones outside the
walls.
****
Totally independent, therefore, of a prisoner’s right to communicate
with courts is his right to communicate with loved ones, especially his wife.
The state can not restrict that right short of the demonstration of a
compelling interest–an interest it should hardly be necessary to add–wholly
lacking in this case. Indeed, since the hope of rehabilitation depends at least
in part on a prisoner's development and maintenance of affirmative social
relationships, there would appear to be a significant state interest in favor of
encouraging the strengthening of family ties.
Id. at 424-25.
Berch is not a case of precedential value for the Bonner County jailors, it stretches
to find a legal basis upon which to rest its decision, and it does not cite to other cases that
clearly would have governed the outcome of Plaintiff’s issue. At most, Berch shows that
the law is undergoing development, not that it is clearly established. Even the Turner case
did not address inmate-to-inmate correspondence between husband and wife, nor did it
clearly address intra-jail correspondence, instead focusing on inter-facility
correspondence.
Another recent district court case recognized a general right to correspond and a

MEMORANDUM DECISION AND ORDER - 20

right to pursue familial relationships, but it applied Turner to conclude that prison
officials did not violate an incarcerated wife’s constitutional rights by not allowing her to
correspond with her incarcerated husband until she earned that privilege. See Dunford v.
New River Valley Regional Jail, 2010 WL 438246 (W.D. Va. 2010).4 This case illustrates
that case law did not put Defendants on notice that they should have known that their
decision was improper; if Defendants’ actions can be construed as illegal, they were not
obviously illegal. For the foregoing reasons, the Court concludes that Defendants are
entitled to qualified immunity on the mail claim. The Court now turns to the retaliation
claim.
4.

First Amendment Retaliation Claim
Plaintiff alleges that, when he attempted to assert his right to correspond with his

inmate wife, prison officials retaliated against him. The Initial Review Order noted that
Plaintiff’s allegations stated a colorable retaliation claim under the First Amendment, but
that he would have to overcome the hurdle that the correspondence restrictions did not
reasonably advance a legitimate correctional goal.
A.

Standard of Law

A retaliation claim must allege the following: “(1) An assertion that a state actor
took some adverse action against an inmate (2) because of (3) that prisoner’s protected
conduct, . . . that such action (4) chilled the inmate’s exercise of his First Amendment
4

This 2010 case was decided after Plaintiff’s 2009 requests to correspond with his wife
in the Bonner County Jail, and it is offered for illustrative purposes only to demonstrate the
unsettled nature of the law.
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rights, and (5) the action did not reasonably advance a legitimate correctional goal.”
Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). Although a
“chilling effect on First Amendment rights” is enough to state an injury, Gomez v.
Vernon, 255 F.3d 1118, 1127 (9th Cir. 2001), “bare allegations of arbitrary retaliation”
are insufficient to state a retaliation claim. Rizzo v. Dawson, 778 F.2d 527, 532 n.4 (9th
Cir. 1985). “A prisoner suing prison officials under section 1983 for retaliation must
allege that he was retaliated against for exercising his constitutional rights and that the
retaliatory action does not advance legitimate penological goals, such as preserving
institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 815-16 (9th Cir.
1994) (per curiam); see also Turner v. Safley, 482 U.S. at 89 (“[W]hen a prison regulation
impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably
related to legitimate penological interests.”). While “timing can be properly considered as
circumstantial evidence of retaliatory intent,” there must generally be something more
than simply timing to support an inference of retaliatory intent. Pratt v. Rowland, 65 F.3d
802, 808 (9th Cir. 1995).
B.

Undisputed Material Facts

The facts set forth above are those that underlie the retaliation claim and will not
be repeated here.
C.

Discussion

As discussed above, Defendants stood upon the general jail policy that inmate-toinmate correspondence was prohibited for legitimate security reasons. Defendants did not
MEMORANDUM DECISION AND ORDER - 22

look beyond the general policy to the written exception contained within the policy–that
correspondence between immediate family members can be approved “for good cause.”
Plaintiff has provided insufficient facts to show that Defendants acted with an ill
motive in response to Plaintiff’s requests for permission to correspond with his wife,
rather than that they simply acted in accordance with the general jail policy. When
Plaintiff actually was punished regarding the written correspondence, it was for the illicit
correspondence that was found under the recreation area door.
For these reasons, Plaintiff has failed to show that the actions of Defendants did
not reasonably advance a legitimate correctional goal. Accordingly, Defendants are
entitled to summary judgment on the merits of the retaliation claim.
5.

Amendment
Plaintiff also wishes to add Officers Alt and Parkinson to his lawsuit. Plaintiff’s

grounds are: “On March 2, 2010, his attorney came to see [me,] Kailey Moran. Said that
Rollie Watson my wife’s attorney would not return her calls I asked Officer Parkinson to
tell Christy to call my attorney. He told me no and to ask acting Sgt. Alt. also denied me,
then Sgt. Cable came in and told me that they don’t pass notes [sic].”
Plaintiff also wrote a kite that explained: “I need to get a message to my wife
inmate Christy Boen Hernandez needs to call my attorney Kailey Morgan at 509-6247606. My attorney has been try to get a hold of her attorney but won’t return her calls.
(Dkt. 32-4, p. 41.) The jail’s response was: “Go through your attorneys or write to them.
We can’t give out messages.” (Id.)
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As set forth above, the jail policy generally prohibited inmate-to-inmate
correspondence. Suggesting that the attorneys correspond with one another was
appropriate under the policy. Attorneys are subject to ethical rules and can be subjected to
additional court-imposed rules in particular cases when it is shown that they are not
adequately communicating with their clients. Thus, breaking jail rules was not the only
solution to this problem. Plaintiff has not come forward with any evidence showing that
these new officers would not be entitled to qualified immunity on the mail claim, or that
there was not a legitimate penological reason for their decision as to the retaliation claim.
Thus, amendment would be futile, and the request will be denied.
ORDER
IT IS ORDERED that Defendants’ Motion for Summary Judgment (Dkt. 32) is
GRANTED. Plaintiff’s request to amend his complaint, contained in his Response, is
DENIED. The Complaint is DISMISSED with prejudice.
DATED: January 10, 2013

Honorable Candy W. Dale
United States Magistrate Judge

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