Perez v. Peters et al

Filing 189

OPINION & ORDER: Perez' Motion for Summary Judgment 151 is Granted as to his Fourteenth Amendment claim to the extent that claim addresses the liability (only) of Shupe and Schultz for the deprivation of Perez' due process r ights in connection with the three complained-of publication rejections and is otherwise Denied, Defendants' Motion for Summary Judgment 160 is Denied as to Perez' Fourteenth Amendment claim to the extent that claim is alleged agains t defendants Shupe and Schultz and premised on the deprivation of his procedural due process rights in connection with the three complained-of publication rejections, and is otherwise Granted, and Perez' Motion for Imposition of Sanctions 176 is Denied. Signed on 2/7/17 by Magistrate Judge Paul Papak. (gm)

.,

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

ERNIE JUNIOR PEREZ,
Plaintiff,
2: l 4-CV-380-PK
OPINION AND ORDER
v.

COLETTE PETERS, MARK NOOTH, RANDY
GEER, MICHAEL CLEMENTS, KALLEE
EVANS, CHRIS SHUPE, J. DOE, and LORI
SCHULTZ,
Defendants.
PAP AK, Magistrate Judge:
Plaintiff pro se Emie Junior Perez, an incarcerated prisoner, filed this action in form a

pauperis against defendants Colette Peters, Mark Nooth, Randy Geer, Michael Clements, Kallee
Evans, Chris Shupe, John or Jane Doe, and Lori Schultz on March 6, 2014. Perez amended his

Page 1 - OPINION AND ORDER

complaint effective July 31, 2014, and added Kelly Raths as an additional defendant effective
January 5, 2016. Perez amended his complaint a second time effective January 22, 2016.
By and through his second amended complaint, Perez alleges the defendants' liability
pursuant to 42 U.S.C. § 1983 for the violation of his free speech rights under the First
Amendrnent and, in a separately pied claim, under Section 1983 for the violation of his due
process rights under the Fourteenth Amendment. By and through his First Amendment claim,
Perez raises both facial and as-applied challenges to various specifically identified regulations
promulgated by the Oregon Depmiment of Corrections ("ODOC"), challenges defendants'
conduct in rejecting ce1iain mail and ce1iain publications sent to him at the institution where he is
incarcerated, and challenges certain policies related to those rejections. By and through his
Fourteenth Amendment claim, Perez raises both facial and as-applied challenges to the adequacy
of the procedures made available to him for seeking administrative review of mail and
publication rejections, atld in addition challenges the constitutionality of ce1iain policies related
to those procedures. Perez seeks injunctive relief to prevent fu1iher such deprivations of rights
and prays for in excess of $540 in monetary damages.
Now before the comi are Perez' motion (#151) for summmy judgment, defendants' crossmotion (#160) for summmy judgment, and Perez' motion(# 176) for imposition of sanctions
pursuant to Federal Civil Procedure Rule 1 l(b). I have considered the motions and all of the
pleadings and papers on file. For the reasons set fo1ih below, Perez' motion (#151) for summmy
judgment is granted in part as to his F omieenth Amendment claim and otherwise denied in pmi
as discussed below, defendants' motion (#160) for summaiy judgment is denied in pmi as to
Perez' Fomieenth Amendment claim and otherwise granted as discussed below, and Perez'

Page 2 - OPINION AND ORDER

motion (#176) for imposition of sanctions is denied in its entirety.

LEGAL STANDARD
I.

Cross-l\fotions for Summary Judgment
Summary judgment is appropriate "if the movant shows that 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). A party espousing the position that a material fact either "cannot be or is genuinely
disputed" must support that position either by citation to specific evidence of record "including
depositions, documents, electronically stored information, affidavits or declarations, stipulations
(including those made for pmposes of the motion only), admissions, interrogatmy answers, or
other materials," by showing that the evidence of record does not establish either the presence or
absence of such a dispute, or by showing that an opposing party is unable to produce sufficient
admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56(c).
The substantive law governing a claim or defense provides the metric for dete1mining whether a
fact is material. See }vforelandv. Las Vegas 1vfetro. Police Dep't, 159 F.3d 365, 369 (9th Cir.
1998).
Summary judgment is not proper if material factual issues exist for trial. See, e.g.,
Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116
S.Ct. 1261 (1996). In evaluating a motion for summmy judgment, the district courts of the
United States must draw all reasonable inferences in favor of the nonmoving party, and may
neither make credibility determinations nor perform any weighing of the evidence. See, e.g.,
Lytle v. Household 1Vffg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing

Page 3 - OPINION AND ORDER

Products, Inc., 530 U.S. 133, 150 (2000).
On cross-motions for summary judgment, the comt must consider each motion separately
to determine whether either party has met its burden with the facts construed in the light most
favorable to the other. See Fed. R. Civ. P. 56; see also, e.g., Fair Haus. Council v. Riverside

Two, 249 F.3d 1132, 1136 (9th Cir. 2001). A court may not grant summary judgment where the
court finds umesolved issues of material fact, even where the parties allege the absence of any
material disputed facts. See id

II.

Sanctions Pursuant to Federal Civil Procedure Rule ll(c)
Federal Civil Procedure Rule 11 (c )(I) provides that the federal courts may impose

appropriate sanctions on any attorney or party who, "after notice and an oppottunity to respond,"
violates any of the provisions of Federal Civil Procedure Rule ll(b). Fed. R. Civ. P. ll(c)(l). A
party moving for sanctions under Federal Civil Procedure Rule 11 (c) must serve the motion on
the paity against whom sanctions are sought, and then may file the motion with the court any
time following 21 days after service if the allegedly noncompliant filing is not withdrawn or
otherwise appropriately conected within that period. See Fed. R. Civ. P. 1 l(c)(2). Any sanction
imposed pursuant to Rule l l(c) "must be limited to what suffices to deter repetition of the
conduct or comparable conduct by others similarly situated." Fed. R. Civ. P. 1 l(c)(4). Attorney
fees may be awarded as a sanction under Rule 11 (c) "if imposed on motion and wananted for
effective deterrence," but must be limited to the fees and other expenses "directly resulting from
the violation." Id Rule 11 (b) provides as follows:
By presenting to the court a pleading, written motion, or other paper - whether
by signing, filing, submitting, or later advocating it - an attorney or
umepresented party ce1tifies that to the best of the person's knowledge,
Page 4 - OPINION AND ORDER

info1mation, and belief, fo1med after an inquhy reasonable under the
circumstances:
(1)

it is not being presented for any improper purpose, such as to
harass, cause unnecessmy delay, or needlessly increase the cost of
litigation;

(2)

the claims, defenses, and other legal contentions are warranted by
existing law or by a nonfrivolous argument for extending,
modifying, or reversing existing law or for establishing new law;

(3)

the factual contentions have evidentiary support or, if specifically
so identified, will likely have evidentimy support after a reasonable
opportunity for further investigation or discove1y; and

(4)

the denials of factual contentions are warranted on the evidence or,
if specifically so identified, are reasonably based on belief or a lack
of info1mation.

Fed. R. Civ. P. 1 l(b).
The comis have discretion to award a party prevailing on a Rule 11 (c) motion its
reasonable expenses, including attorney fees, incurred in connection with the motion, where such
an award would be "wan·anted." Fed. R. Civ. P. 11 (c)(2). The burden of establishing that
smctions are justified is borne by the pmiy moving for imposition of sanctions. See Tom
Growney Equip. v. Shelley Irrigation Dev., 834 F.2d 833, 837 (9th Cir. 1987).
MATERIAL FACTS

I.

The Parties

Plaintiff Perez is, and at all material times was, an incarcerated prisoner of ODOC housed
at the Snake River Correctional Institution ("SRCI"). Defendant Peters is, and at all material
times was, the director of ODOC. Defendant Nooth is, and at all material times was, the
superintendent of SRCI. Defendant Geer was at all material times until approximately March

Page 5 - OPINION AND ORDER

2014 the central mail administrator at SRCI. Defendant Clements is, and at all material times
was, a conectional lieutenant at SRCI charged with review of challenged institutional decisions
to withhold mail from inmates. Defendant Schultz is, and at all material times was, a clerical
employee at SRCI charged with responding to inmate kytes and with review of challenged
institutional decisions to withhold publications from inmates. Defendant Evans is, and at all
material times was, a clerical employee at SRCI charged with inspecting incoming inmate mail.
Defendant Shupe is, and at all material times was, a clerical employee at SRCI charged with
inspecting publications sent.to inmates through the mail. Defendant Raths is ODOC's
Administrator of the Office ofinmate and Community Services, and is responsible for
maintaining the ODOC Publication Violation List (the "PVL") (discussed below).

II.

The Parties' Dispute 1
Perez' First Amendment claim arises out of defendants' conduct in rejecting his incoming

mail on five occasions and in rejecting publications sent to him through the mail on three
occasions, in promulgating and enforcing certain administrative regulations, and/or in failing to
make the ODOC Publication Violation List readily available to him and to his correspondents.
Perez' Fomteenth Amendment claim arises out of the administrative process he received in
connection with his requests for administrative review of the eight rejections and/or out of
defendants' purported failure to make the ODOC PVL readily available to him and to his
conespondents.

1

The following recitation constitutes my construal of the evidentimy record created by
the patties, which is undisputed except as otherwise indicated below.
Page 6 - OPINION AND ORDER

A.

Rejected Mail and Related Administrative Process

On August 29, September 5, 10, and 17, and October 2, 2013, defendant Evans inspected
incoming mail to plaintiff Perez from his conespondent Jane Aston. See Second Amended
Complaint, Exh .. l. On each of those occasions, Evans rejected the mail on the grounds that it
contained "[s]exually explicit" content and that "[s]exually explicit material is prohibited." See

id. Also on each of those occasions, Evans sent Perez a "Mail Violation Notice" so advising him,
and additionally advising him that the rejected incoming mail was from Aston and that
independent administrative review of the rejection was available to him upon his written request
received by the Functional Unit Manager within 30 days of the date of the notice. See id. Each
of the Mail Violation Notices Evans prepared in connection with the rejections of August 29,
September 5, 10, and 17, and October 2, 2013, specifically indicated that administrative review
could be obtained "by writing to the Functional Unit Manager or designee at the above address,"
but nevertheless did not supply an address for the Functional Unit Manager or for any designee
thereof. See id. At some time after the complained-of events, SRCI modified its f01m Mail
Violation Notice to provide an address for the Functional Unit Manager, to clarify the description
of the procedure inmates are required to follow in order to obtain administrative review, to
describe the procedure available to persons sending mail to inmates for obtaining administrative
review of mail rejections, and to advise inmates and/or their conespondents of locations where
ODOC mail rules could be found and reviewed, among other changes. See Declaration (#162) of
Stephen Cook ("Cook Deel."), dated April 7, 2016,

~~

23-26, see also id., Exh. 13.

In camera review of the mail rejected on August 29, September 5, 10, and 17, and
October 2, 2013, establishes that each of the rejected letters (some of which were sent together

Page 7 - OPINION AND ORDER

with photographs of clothed women, purportedly of Aston and/or her aunt; in one of the
photographs the undergarments of one of the women are visible) contained sexually explicit
content (i.e., prose descriptions of masturbation, sexual arousal, and one instance of incestuous
sexual activity) as indicated by Evans in the five notices. See id, Exhs. 3, 5, 7, 9, 11. Perez does
not dispute that each rejected piece of mail contained at least some sexually explicit content.
On August 30, 2013, Perez requested administi·ative view of the mail rejection of August
29, 2013, identifying the rejection at issue by date but not by notice number, and addressing his
request to Evans. See Second Amended Complaint, Exh. 2 at I. On September 8, 2013,
defendant Schultz responded to Perez' request by directing him to identify the rejection by notice
number and to address the request with the notice number to defendant Clements. See id That
same day, by and tlu·ough two separate inmate communications forms, Perez requested
administrative review of the mail rejections of August 29 and September 5, 2013, identifying
each rejection by date and notice number and addressing each request to Clements as instructed
by Schultz. See id., Exh. 2 at 3, 5. On September 19, 2013, Clements afforded Perez a brief
oppo1iunity to review the mail rejected on August 29 and September 5, 2013, and Perez availed
himself of that oppo1iunity. See id, Exh. 3 at 5; see also Cook Dec!., Exh. 12 at I. On
September 20, 2013, Perez sent Clements a kyte stating as follows:
You allowed me to review the rejected materials yesterday for [the rejections of
August 29 and September 5, 2013]. [They] consisted of two black and white
photocopies of photos and a letter. I didn't get a chance to look because it was so
close to count time. I only caught glimpses of the materials.
I don't think the rejected material was appropriately rejected because this material
is not sexually violent or disturbing. I'm not a sex offender so it poses no tlu·eat to
my rehabilitation. Sexually explicit material should not be rejected solely because
it is sexually explicit.

Page 8 - OPINION AND ORDER

Again, I didn't get a close look at the photos but the photos weren't even sexually
explicit. It didn't look like her panties were see-tlu·ough and if they were what I
said above applies.
Second Amended Complaint, Exh. 3 at 1. On September 30, 2013, Clements affirmed that the
mail was in violation ofO.A.R. 291-131-0035(1) (prohibiting inmates from receiving mail
containing sexually explicit content), upholding each of the two challenged rejections. See Cook
Deel. I, Exh. 12 at l; see also Second Amended Complaint, Exh. 3 at 3.
On September 20, 2013, Perez requested administrative review of the mail rejections of
September 10 and 17, 2013, identifying each rejection by date and notice number and addressing
his requests to Clements. See Second Amended Complaint, Exh. 2 at 7, 9. On October 3, 2013,
Perez requested administrative review of the mail rejection of October 2, 2013, again identifying
the rejection by date and notice number and addressing his request to Clements. See id., Exh. 2
at 11. Having heard nothing from SRCI staff regarding his outstanding requests, on October 7,
2013, Perez sent Clements a kyte to remind him that Perez' requests for administrative review
(including those discussed below in connection with the rejection of ce1iain publications sent to
Perez) were still pending. See id., Exh. 2 at 13. Perez' kyte of October 7, 2013, was returned to
him without response on October 10, 2013. See id.; see also id., Exh. 2 at 15. On October 20,
2013, Perez sent Clements another kyte to the same effect as his kyte of October 7, 2013. See id.,
Exh. 2 at 15. On October 22, 2013, Schultz responded to Perez' kyte of October 20, 2013, stating
that "administrative reviews can take up to 45 days per rule" and indicating (with regard to the
publication rejections discussed below) that "[t]he publications that were violated [sic], mail
room is looking for the copies. When we get them, you will be scheduled." Id.
Also on October 22, 2013, Clements afforded Perez an oppo1iunity to review the mail

Page 9 - OPINION AND ORDER

rejected on September 10, September 17, and October 2, 2013, and Perez availed himself of that
oppmtunity. See id., Exh. 3 at 4; see also id., Exh. 3 at 5; Cook Deel., Exh. 12 at 2. That same
day, Perez sent Clements a kyte stating his grounds for believing that the rejections were
improper, as follows:
Thank you for the administrative review for the mail violations [of September 10,
September 17, and October 2, 2013]. I don't think the [rejec]tions should be
upheld because [Anston] is an adult going to college and I'm an adult in prison;
we're having a consensual, adult conversation.
She recently wrote me a letter (I received it yesterday) stating that she is "terribly
sad and depressed" and that she "will not write again after this shmt note." She
said, "I hope they will permit you to have it so you know I do not stop for any
· reason that has to do with you or my affection for you."
Please stop this extreme censorship policy.
Please don't forget my publication violation admin review requests. Thank you.
Second Amended Complaint, Exh. 3 at 4. On October 30, 2013, Clements affomed that the mail
was in violation ofO.A.R. 291-131-0035(1), upholding each of the tlu·ee challenged rejections.

See Cook Deel., Exh. 12 at 2.

B.

Rejected Publications and Related Administrative Process

On September 6, 9, and 12, 2013, defendant Shupe inspected publications sent to Perez
tlu·ough the mail (respectively, the tlu·ee publications at issue were entitled Girls on Top, Letters

to Penthouse XV, and Letters to Penthouse XII). See Second Amended Complaint, Exh. 4 at 1-3.
On each of those occasions, Shupe sent Perez a "Publication Violation Notice" advising him that
the publication had been rejected. See id. Each of the Publication Violation Notices Shupe sent
to Perez identified the rejected publication by title and provided the name and the address of the
sender. See id. Like the Mail Violation Notices sent to Perez in connection with the

Page 10 - OPINION AND ORDER

complained-of mail rejections, each of the Publication Violation Notices Shupe sent to Perez
stated that administrative review of the rejection could be obtained "by writing to the Functional
Unit Manager or designee at the above address," but neve1theless did not supply an address for
the Functional Unit Manager or for any designee thereof. See id. Moreover, none of the three
Publication Violation Notices clearly identified the grounds for the rejection. See id. Instead, in
the location on the form dedicated to setting forth the reason for the rejection, the Publication
Violation Notices of September 6 and 12, 2013, displayed a checked box preceding text reading
"la,b,c pp. 12-13, 28-29, 178-183 Publication Violation,'' followed by fmther text (not preceded
by either a checked or an empty checkbox) reading "*2. Contains material that threatens or is
detrimental to the security, safety, health, good order, or discipline of the facility, inmate
rehabilitation or facilitates criminal activity." Id. at 1, 3. On both notices, that text is followed
by an additional paragraph reading as follows:

*2

Material that Threatens or is Detrimental to the Security, Safety,
Health, Good Order or Discipline of the Facility, Inmate
Rehabilitation or Facilitates Criminal Activity : Material which by its
nature or content poses a threat or is detrimental to the Security, safety,
health, good order, or discipline of the facility, inmate rehabilitation or
facilitates criminal activity, including, but not limited to, material that
meets one or more of the following criteria:
a.
It incites, advocates, aids or abets criminal activity such as illegal
drug use or instructs in the manufacture, used [sic l or conversion
of weapons.
b.
It incites, advocates, aids, or abets escape, such as picking locks or
digging tunnels.
c.
d.
e.

It consists of threats of physical harm to any person or threats of
criminal activity.
It contains or concerns sending contraband within, into or out of
the facility.
It concerns plans for activities in violation of other Department of
Corrections administrative directives.

Page 11 - OPINION AND ORDER

f.

g.

h.
i.
J.

k.

It contains code that directly threatens or is detrimental to the
security, safety, health, good order, or discipline of the facility,
inmate rehabilitation, or facilitates criminal activity.
It contains information which, if communicated, would create a
clear and present danger of violence and physical hann to a human
being.
It contains contraband material.
It contains security threat group (STG)-related paraphernalia.
It contains inflammato1y material.
It contains role-playing or similar fantasy games or materials.

Id. The Publication Violation Notice of September 9, 2013, contains all of the same text in the
same location, other than the text reading "la,b,c pp. 12-13, 28-29, 178-183" which does not
appear in any location on the form. See id. at 2.
Notwithstanding the foregoing, defendants take the position that none of the three
publications was rejected because it constituted material that threatened or was detrimental to the
security, safety, health, good order, or discipline of the facility or to inmate rehabilitation or
because it constituted material with a tendency to facilitate criminal activity, and that all three
publications were instead rejected solely because they contained sexually explicit material. In
suppo1t of that position, defendants rely in pmt on the text reading "la,b,c pp. 12-13, 28-29,
178-183" that appeared on two of the three notices, which they argue corresponds to that
subsection of Oregon Administrative Rule 291-131-0035 (discussed below) that addresses
sexually explicit material. Defendants further rely on copies of the three notices printed from
SRCI's electronic database of violation notices which, unlike the copies of the notices that Perez
actually received, clearly indicate that each of the three publications was rejected for containing
sexually explicit material. See Cook Deel., Exh. 14. Finally, defendants rely on the testimony of
a fotmer SRCI lead mailroom worker that at some time after the complained-of events, SRCI

Page 12 - OPINION AND ORDER

modified its form Publication Violation Notice to provide an address for the Functional Unit
Manager, to clarify the procedure inmates are required to follow in order to obtain administrative
review, and to provide a mechanism for communicating to inmates, where appropriate to do so,
that a publication was rejected because it contained sexually explicit material, see id., 'if'if 23-26,
and on that same worker's testimony that the database does not preserve copies of notices
actually issued to inmates, but rather modifies archived notices in accordance with any
subsequent updates effected to the form, see id., 'if'if 31-34. Relying on the language appearing on
the notices he actually received, Perez characterizes defendants' position as baseless and as
fabricated for purposes of this litigation.

In camera review of representative excerpts of the three publications establishes that each
rejected publication contained sexually explicit content (i.e., prose descriptions of wildly
implausible sexual activity, in some instances nonconsensual sexual activity) but no other
content with any evident potential to threaten or impair inmate rehabilitation or institutional
security, safety, health, order, or discipline, and no content with any evident potential to facilitate
criminal activity. See id., Exhs. 17-19. Perez does not dispute that each rejected publication
contained sexually explicit content, although he does dispute that the three publications were in
fact rejected for that reason.
On September 25, 2013, by and through three separate kytes addressed to Clements,
Perez requested administrative view of the publication rejections of September 6, 9, and 12,
2013, identifying each rejection by date, notice number, sender, and publication title. See Second
Amended Complaint, Exh. 4 at 4, 6, 8. As discussed above in connection with the rejection of
ce1iain mail addressed to Perez, having heard nothing from SRCI staff regarding his outstanding

Page 13 - OPINION AND ORDER

requests, on October 7, 2013, Perez sent Clements a kyte to remind him that Perez' requests for
administrative review (including some of those discussed above in connection with the mail
rejections) were still pending. See id, Exh. 2 at 13. Also as discussed above, Perez' kyte of
October 7, 2013, was returned to him without response on October 10, 2013. See id; see also

id, Exh. 2 at 15. Also as discussed above, on October 20, 2013, Perez sent Clements another
kyte to the same effect as his kyte of October 7, 2013. Also as discussed above, on October 22,
2013, Schultz responded to Perez' kyte of October 20, 2013, stating that "administrative reviews
can take up to 45 days per rule" and indicating that "[t]he publications that were violated [sic],
mail room is looking for the copies. When we get them, you will be scheduled." Id
On October 30, 2013, Schultz advised Perez through three separate kyles that the SRCI
mail room had failed to keep copies on file of any photocopied portions of any of the tlu·ee
rejected publications, variously characterizing the failure as "accident[]" and as "e11'or." See id.,
Exh. 4 at 4, 6, 8. Schultz suggested that Perez re-order the materials, impliedly at his own
expense, so that they might be rejected again (if rejection was appropriate) and properly scanned
for purposes of facilitating administrative review. See id Defendants offer the declaration
testimony of the former lead worker in SRCI's Mail Processing Center, that the failure to keep
photocopies of any portion of the tlu·ee rejected publications was "not pursuant to any written or
umwitten custom, and was human error." Cook Deel., if 55. Perez received no further
administrative process in connection with any of the three publication rejections.
C.

The ODOC Publication Violation List

ODOC maintains a list of all publications rejected within the previous tlu·ee years. See
Cook Deel., if 45. ODOC's Publication Violations List is stored on a hard drive accessible by
Page 14 - OPINION AND ORDER

SRCI mailroom staff. See id When an ODOC institution receives a publication already
appearing on the PVL, it rejects that publication summarily, on the ground that its rejection has
already been determined to be appropriate. See id., ifif 50-51.
At the time Perez was sent Girls on Top and Letters to Penthouse XII, those publications
were already on the PVL. See id., ifif 47-48.
At some time in September 2015 - after the complained-of rejections had already been
effected and after Perez sought and either obtained or was denied administrative review in
connection with those rejections - SRCI made a version of the PVL available for inmates to
review. See id.,

if 52.

In October 2015, SRCI made a newsletter available to inmates that

indicated that inmates could k:yte queries to the SRCI Mail Processing Center as to whether
specific publications appeared on the PVL. See id., if 53. The PVL was not made available to
Perez for his review at any material time, and indeed he did not learn of its existence until after
he initiated these proceedings. See Docket No. 104. It does not appear that the PVL is
affitmatively made readily available to the public or for inspection by persons proposing to send
publications to inmates, except insofar as all public records in Oregon are subject to requests for
inspection under Or. Rev. Stat. § 192.440(1 ).

III.

Relevant ODOC Regulations
Division 131 of the Oregon Administrative Rules, promulgated by ODOC, governs the

sending, receipt and processing of inmate mail in ODOC facilities. See O.A.R. 291-131-0005(2).
Pursuant to O.A.R. 291-131-015(2), ODOC inmates are prohibited from sending, receiving,
transfeITing, or possessing mail which violates the provisions of the rules set forth in Division
131. See O.A.R. 291-131-0015(2).

Page 15 - OPINION AND ORDER

ODOC regulations governing incoming inmate mail are codified at O.A.R. 291-131-0025
and 291-131-0035. In relevant part, Rule 291-131-0025 provides that:
( 5)

New and used books, magazines, and newspapers shall only be received
directly from the publisher or distributor.

***
(b)

Publications that have been previously rejected by the depmiment
and altered (i.e., offending pages removed) shall be prohibited.

***
(11)

Unauthorized Attachments and Enclosures:

***
(b)

Only written co!Tespondence, newspaper and magazine clippings,
small pamphlets, photocopies, carbon copies, business cards, hand
made drawings, printed web pages, and photographs that meet the
content restrictions in these rules may be enclosed in the envelope.

***
(D)

Freestanding Nude or Pmiially Nude Images: Newspaper
and magazine clippings, photocopies, printed web pages,
drawings, photographs, and other media with nude or
partially nude subjects, whether human or anime (i.e.,
cmioon), that depict or display male or female genitalia,
pubic area or anus, or expose the female areola, may not be
attached to or enclosed in correspondence to inmates.

O.A.R. 291-131-0025(5), (11 ). By and through his First Amendment claim, Perez challenges
(inter alia) the facial constitutionality of Rule 291-131-0025(11 )(b )(D).
In relevant part, Rule 291-131-0035 provides as follows:
The following materials constitute prohibited mail which shall be confiscated or
returned to the sender:
(1)

Sexually Explicit Material:

Page 16- OPINION AND ORDER

(a)

Sexually explicit material which by its nature or content
poses a threat or is detrimental to the security, good order
or discipline of the facility, inmate rehabilitation, or
facilitates criminal activity including, but not limited to, the
following:
(A)

Sexual Acts or Behaviors:
(i)

Portrayal of actual or simulated sexual acts
or behaviors between human beings
including, but not limited to, intercourse,
sodomy, fellatio, cunnilingus or
masturbation.

(ii)

Portrayal of actual or simulated penetration
of the vagina or anus, or contact between the
mouth and the breast, genitals, or anus.

(iii)

Portrayal of actual or simulated stimulation
of the breast, genitals, or anus.

(iv)

Portrayal of actual or simulated acts or
threatened acts of force or violence in a
sexual context, including, but not limited to,
forcible intercourse (rape) or acts of
sadomasochism emphasizing the infliction
of pain.

(v)

Po11rayal of actual or simulated sexual acts
or behaviors in which one of the pmiicipants
is a minor, or appears to be under the age of
18.

(vi)

Bestiality: P011rayal of actual or simulated
sexual acts or behaviors between a human
being and an animal.

(B)

Excretory Functions: Portrayal of actual or
simulated human excretory functions, including, but
not limited to, urination, defecation, or ejaculation.

(C)

Personal photographs in which the subject is nude;
displays male or female genitalia, pubic area, or

Page 17 - OPINION AND ORDER

anus; or exposes the areola.
(D)

Freestanding Nude or Patiially Nude Images:
Newspaper and magazine clippings, photocopies,
printed web pages, drawings contained in incoming
mail, and photographs, with nude or patiially nude
subjects, whether human or anime (i.e., catioon),
that depict or display male or female genitalia,
pubic area or anus, or expose the female areola.

***
(e)

Sexually explicit material may be admitted if it has scholarly value,
or general social or literary value.

(2)

Material That Threatens or is Detrimental to the Security, Safety,
Health, Good Order or Discipline of the Facility, Inmate
Rehabilitation, or Facilitates Criminal Activity: Material which by
its nature or content poses a threat or is detrimental to the security,
safety, health, good order or discipline of the facility, inmate
rehabilitation, or facilitates criminal activity, including, but not
limited to, material that meets one or more of the following
criteria:

***
(d)

It contains or concerns sending contraband within, into or
out of the facility.

** *
(h)

It contains contraband material.

***
G)

It contains inflammatory material.

***
***
(7)

Any other material that the depatiment deems to pose a threat or to
be detrimental to legitimate penological objectives.

Page 18 - OPINION AND ORDER

O.A.R. 291-131-0035(1), (2), (7). For purposes of Rule 291-131-0035, "pmirayal" is defined as
"[t]he act or process by which an idea or message is depicted or represented, usually by written
words or images," O.A.R. 291-131-0010(21), and "personal photograph" is defined as "Any
analog or digital photograph ofa person, or any duplication thereof," O.A.R. 291-131-0010(20).
Moreover, "[p]ersonal photographs include any photograph scanned and printed from the internet
or other photographs where the identity of the person is unknown to the department or cannot be
reasonably ascertained by the depmiment by examining the content of the accompanying
material." Id. By and through his First Amendment claim, Perez challenges (inter alia) the
constitutionality of Rule 291-131-0035(2)0) both facially and as applied to his situation.
Pursuant to O.A.R. 291-131-0025(9), ODOC institutional mailroom staff are required to
review publications sent through the mail to imnates as follows:
Central Administration Review of Publications:
(a)

Facility mailroom staff shall stamp approval of all accepted books,
magazines and other publications (except newspapers) on the front
or inside front cover of the publication, together with the imnate's
name, SID number, date accepted, and the authorizing staff's
signature. Books and magazines without the completed stamp on
the front or inside the front cover shall be unauthorized and
considered contraband.

(b)

Unauthorized attachments, enclosures, merchandise, or materials in
publications may be removed and destroyed to allow the
publication to be delivered to the intended imnate recipient, if the
publication is otherwise in compliance with these rules, and doing
so would not drastically alter/destroy the publication.

(c)

If mailroom staff determine a publication contains material that is
prohibited under these or other depmiment administrative rules, the
violation notice and prohibited material shall be reviewed by a
designated Central Administration official, who will either affinn,
reverse or otherwise modify the original rejection decision in

Page 19- OPINION AND ORDER

writing. The reviewing official shall not take part in any
subsequent administrative review of the rejected publication under
OAR291-131-0050.
O.A.R. 291-131-0025(9). In addition, all incoming inmate mail is subject to inspection or
examination to enforce compliance with applicable ODOC rules. See O.A.R. 291-131-0015(6).
Pursuant to O.A.R. 291-131-0037(6), ODOC institutional mailroom staff are required to dispose
of prohibited mail sent to inmates as follows:
Correspondence and Publications: When, after opening, mail is rejected for
violation of these or other department rules the following procedures shall be
followed:
(a)

Rejected Mail:
(A)

Non-inmate sender: The sender and intended inmate
recipient shall be notified of the rejection of mail, including
the reasons, on a Mail Violation Notice (CD 61 Sa) for
correspondence, or a Publication Violation Notice for a
publication. If the rejection is based upon written or
pictorial content, the notice shall advise that an independent
review of the rejection may be obtained by writing to the
functional unit manager within 30 days of the date of the
notice. Mail rejected based on written or pictorial content
shall be returned intact to the sender. The rejected
portion(s) of the mail shall be photocopied and retained
pending any administrative review. If no administrative
review is requested, the photocopy shall be maintained
according to archive standards.

***
(b)

No administrative review shall be available if the rejection is based
on the presence of an unauthorized attachment, substance or
enclosure on or with the mail, or if the rejection is based on any
violation not related to the written or pictorial content.

(c)

Confiscated Mail:
(A)

Non-inmate Sender: If the mail is confiscated, notice shall

Page 20 - OPINION AND ORDER

be made to the sender and intended inmate recipient on a
Mail Confiscation Notice (CD 618b), unless it includes
plans for a discussion or commission of a crime or evidence
of a crime. In such cases, no notice shall be given and the
mail shall be turned over to the Special Investigations Unit
of the department or the Oregon State Police. Confiscated
mail not involving evidence of a crime shall be retained
intact pending any administrative review. If no
administrative review is requested, the mail shall be
maintained according to archive standards.

***
O.A.R. 291-131-0037(6). Administrative review of mail or publication rejections is available to
ODOC inmates:

(1)

Correspondence and Publications:
(a)

Non-Inmate Sender:
(A)

A non-inmate sender who has received a mail violation,
publication violation, or confiscation notice for written or
pictorial content may obtain an independent review of the
rejection of mail by writing to the functional unit manager
or designee and requesting an administrative review within
30 days of the date of the notice. The review request shall
specify in writing the reason(s) why the rejection should not
be sustained and include the rejection notice. The rejected
mail if returned to the sender must be submitted with the
violation or confiscation notice along with the review
request.

(B)

An intended inmate recipient who has received a mail
violation, publication violation or confiscation notice for
written or pictorial content may obtain an independent
review by writing to the function unit manager or designee
and requesting an administrative review within 30 days of
the date of the notice. The review request shall specify type
of violation (mail, publication, confiscation), date of
violation, and name and issue date of any involved
publication.

Page 21 - OPINION AND ORDER

***

* **
(3)

Administrative Review Process:
(a)

The functional unit manager shall appoint an official or employee,
other than the employee who originally rejected the
c01Tespondence or publication, to conduct the administrative
review.

(b)

The administrative review shall consist of an informal review of
the original mail rejection decision and shall include a review of
the mail or publication violation or confiscation notice, the request
for administrative review, and where necessmy, the rejected mail,
article(s) or material(s) for compliance with depmiment rnles. No
formal hearing shall be conducted.

(c)

The functional unit manager or designee shall permit the intended
inmate recipient an oppo1iunity to review the rejected mail for
purposes of administrative review, unless such review may provide
the inmate with infonnation of a nature which is deemed to pose a
threat or detriment to the security, good order or discipline of the
facility or to encourage or instruct in criminal activity.
(A)

(B)

(d)

The intended inmate recipient shall specify in writing the
reason(s) why the rejection should not be sustained within
five days after reviewing the rejected material, or within
five days of receiving notice that the inmate was not
allowed to review the rejected material for the reasons
stated above.
If the inmate refuses to review the material, the
administrative review will be considered dismissed.

The official or employee assigned to review the original mail
rejection decision shall deliver a written recommended decision
(together with a copy of the mail or publication violation or
confiscation notice, the request for administrative review, and
where necessmy, the rejected mail, article(s) and material(s)) to the
functional unit manager or designee for his/her review and
approval.

Page 22 - OPINION AND ORDER

(e)

The functional unit manager or designee shall review the
recommended decision and either affirm, reverse or otherwise
modify the original mail rejection decision in writing. The
administrative review shall be completed within 45 days after
receipt of the request for administrative review. A copy of the
functional unit manager or designee's decision shall be provided to
the party(ies) who requested the administrative review.

O.A.R. 291-131-0050.

ANALYSIS
I.

Perez' Motion (#176) for Imposition of Sanctions
It is Perez' position that defendants' arguments offered in support of their motion for

summa1y judgment and/or in suppo1t of their opposition to Perez' motion for summaiy judgment
merit imposition of sanctions pursuant to Federal Civil Procedure Rule 11 (c) due to
(i) defendants' purportedly improper proffer of their updated Mail Violation Notice and
Publication Violation Notice into evidence, (ii) defendants' purp01tedly improper adoption of the
position that the three publication rejections of September 6, 9, and 12, 2013, were effected
because the publications contained sexually explicit material, (iii) defendants' purportedly
improper partial reliance on the fact that two of the three rejected publications were on the SRCI
Publication Violation List at the time the rejections occun-ed, and (iv) defendants' purpo1tedly
improper failure to concede that SRCI's failure to photocopy any p011ion of any of the three
rejected publications prior to returning them to sender constituted a violation of his due process
rights. I disagree with Perez' position.
As noted above, Rule 11 provides that, when an attorney signs, files, or advocates a legal
memorandum, that attorney certifies that the arguments contained therein are not presented for
any improper purpose, that those legal arguments are nonfrivolous, and that factual contentions

Page 23 - OPINION AND ORDER

contained therein are supported by available evidence. See Fed. R. Civ. P. l l(b). Rule 1 l(c)
requires that a party moving for sanctions under Rule 11 serve the motion on the party against
whom sanctions are sought, and then provide that pmty 21 days following service of the motion
within which to conect the putatively sanctionable filing before filing the motion with the comt.
See Fed. R. Civ. P. 1 l(c)(2). In Barber v. iVli/ler, 146 F.3d 707 (9th Cir. 1998), the Ninth Circuit

quoted the Advismy Committee Notes to the amendments that created these procedural
requirements as follows:
These provisions are intended to provide a type of "safe harbor" against motions
under Rule 11 in that a party will not be subject to sanctions on the basis of
another party's motion unless, after receiving the motion, it refused to withdraw
that position or to acknowledge candidly that it does not cmTently have evidence
to suppo1t a specified allegation. Under the foimer rule, pmties were sometimes
reluctant to abandon a questionable contention lest that be viewed as evidence of a
violation of Rule 11; under the revision, the timely withdrawal of a contention
will protect a party against a motion for sanctions.
Barber, 146 F.3d at 710, quoting Fed. R. Civ. P. 11; Adv. Comm. Notes, 1993 Amend.

Moreover, the Ninth Circuit fu1ther quoted the Advismy Committee Notes in suppmt of the
conclusion that only formal service of the motion that the moving pmty intends to file with the
court in the event the putatively sanctionable filing is not withdrawn may trigger the beginning of
the 21-day period:
To stress the seriousness of a motion for sanctions and to define precisely the
conduct claimed to violate the rule, the revision provides that the "safe harbor"
period begins to run only upon service of the motion. In most cases, however,
counsel should be expected to give informal notice to the other party, whether in
person or by a telephone call or letter, of a potential violation before proceeding to
prepare and se1ve a Rule 11 motion.
Id., quoting Fed. R. Civ. P. 11; Adv. Comm. Notes, 1993 Amend. As the Barber court

concluded, "[i]t would therefore wrench both the language and purpose of the amendment to the

Page 24 - OPINION AND ORDER

Rule to permit an informal warning to substitute for service of a motion." Id It follows that this
comi is without authority to impose sanctions pursuant to Rule 1 l(c) absent the moving party's
full compliance with the "safe harbor" provisions of the rule. See, e.g., Radcliffe v. Rainbow

Cons tr. Co., 254 F.3d 772, 788-789 (9th Cir. 2001) (reversible error for a district comi to award
sanctions pursuant to Rule 11 (c) on a party's motion that was not strictly compliant with the
procedural requirements of the rule). Because Perez did not serve defendants with his motion at
least 21 days prior to filing it with the court - and I note in this connection that Perez was aware
of the Rule l l(c)(2) safe harbor provisions at the time he filed his motion, by and through which
he expressly requested that those provisions be waived - Perez' sanctions motion must be denied
as procedurally noncompliant. See id
Even had Perez complied with the Rule 1 l(c)(2) safe harbor provisions, he does not in
any event identify any conduct by defendants or their counsel that would warrant the imposition
of sanctions. As to defendants' purportedly improper proffer of their updated Mail Violation
Notice and Publication Violation Notice into evidence, although (as discussed in my Opinion and
Order (#142) dated January 5, 2016) at an earlier stage of these proceedings defendants sought
improperly to challenge Perez' claims in pati based on information contained in the updated
fo1ms that was never communicated to Perez at any material time, in connection with the
motions now before the court defendants concede without reservation that the notices Perez
received are the ones attached as exhibits to his Second Amended Complaint, and offer no
argument or suggestion that Perez received notice through any updated version of their forms.
Defendants offer no misleading, frivolous, or unwarranted argument in connection with the
distinctions between the notices Perez received and the updated notice forms, but rather simply

Page 25 - OPINION AND ORDER

describe the differences forthrightly.
As to defendants' purportedly improper adoption of the position that the three publication
rejections of September 6, 9, and 12, 2013, were effected because the publications contained
sexually explicit material, that position is supported by the material evidence (chiefly, the
evidence discussed above that the updated forms printed from SRCI's database archive of
Publication Violation Notices indicate that, notwithstanding the information contained in the
Publication Violation Notices Perez received, the publications were rejected because they
contained sexually explicit content, but also the text reading "la,b,c pp. 12-13, 28-29, 178-183"
that appeared on two of the three notices that Perez actually received), and it is neither frivolous
nor otherwise improper for defendants to espouse it. As to defendants' purportedly improper
partial reliance on the fact that two of the three rejected publications were on the SRCI
Publication Violation List at the time the rejections occurred, there is in fact nothing improper
about such reliance, and defendants are entitled to adduce any material, nonprejudicial evidence
tending to establish that the publications at issue contained sexually explicit material. Finally, as
to defendants' purportedly improper failure to concede that SRCI's failure to photocopy any
portion of any of the three rejected publications prior to returning them to sender constituted a
violation of his due process rights, defendants are entitled to proffer the argument that the
process Perez received in connection with the publication rejections was adequate under the
circumstances.
For all of the foregoing reasons, Perez' motion (#176) for imposition of sanctions is
denied in its entirety.

Page 26 - OPINION AND ORDER

II.

The Parties' Cross-Motions (#151, #160) for Summary Judgment
As noted above, Perez asserts the defendants' liability under Section 1983 for violating

his free speech rights under the First Amendment and for violating his procedural due process
rights under the Fourteenth Amendment. Section 1983:
affords a "civil remedy"' for deprivations of federally protected rights caused by
persons acting under color of state law without any express requirement of a
paiiicular state of mind. Accordingly, in any § 1983 action the initial inqui1y must
focus on whether the two essential elements to a § 1983 action are present:
(1) whether the conduct complained of was committed by a person acting under
color of state law; and (2) whether this conduct deprived a person of rights,
privileges, or immunities secured by the Constitution or laws of the United States.

Parratt v. Taylor, 451 U.S. 527, 535 (1981). It is undisputed for purposes of the parties' crossmotions for summary judgment that each of the defendants acted at all material times under color
of state law.

A.

Perez' First Amendment Claim

Perez' First Amendment claim arises out of defendants' conduct in rejecting his incoming
mail on five occasions and in rejecting publications sent to him through the mail on three
occasions, in promulgating and enforcing Oregon Administrative Rule 291-131-0025(11 )(b)(D)
(prohibiting inmates from receiving freestanding nude or pmiially nude images through the mail)
and Oregon Administrative Rule 291-131-0035(2)0) (prohibiting inmates from receiving
inflammato1y material through the mail), and/or in failing to make the ODOC Publication
Violation List readily available to him and to his coITespondents. As a preliminmy matter, before
turning to the question whether Perez suffered a deprivation of any right protected under the First
Amendment it is necessmy first to determine whether the parties' dispute over the reason for the
three publication rejections may be resolved on the basis of the evidentiary record.

Page 27 - OPINION AND ORDER

As noted above, it is defendants' position that all three rejections were effected solely
because the publications contained sexually explicit material, and not for any different or
additional reason. In support of that position, defendants offer evidence (discussed above)
tending to establish that on September 6, 9, and 12, 2013, defendant Shupe detennined that the
three publications contained sexually explicit material and on that basis rejected them, that Shupe
sent Perez Publication Violation Notices identifying the rejected publications by title and sender
and advising Perez that the publications had been rejected, that all three Publication Violation
Notices contained language strongly suggesting that the publications had been rejected because
they contained material potentially detrimental to the security, safety, health, good order, or
discipline of the facility, that two of the three notices additionally displayed a checked box
preceding text reading "la,b,c pp. 12-13, 28-29, 178-183 Publication Violation," and that at some
subsequent time SRCI mailroom staff noticed that the facility's Publication Violation Notice
fo1m lacked any mechanism for providing intelligible advice to imnates that publications had
been rejected because they contained sexually explicit material, and modified the form both to
provide such a mechanism and otherwise to clarify the procedure imnates are required to follow
in order to obtain administrative review of publication rejections. Perez takes the contrmy
position that the publications were rejected on the purported ground that they contained material
potentially detrimental to the security, safety, health, good order, or discipline of the facility, and
relies for suppo1t on the plain language of the thi·ee Publication Violation Notices.
I am sympathetic to Perez' position. One of the notices he received contained no
suggestion whatsoever that the publication at issue had been rejected for containing sexually
explicit material, and the notice text apparently intended to convey that suggestion in connection

Page 28 - OPINION AND ORDER

with the other two rejections was not intelligible without fmiher information that was not
provided to Perez at any material time. From his pre-litigation perspective, there was simply no
way he could reasonably have been expected to understand that any of the three rejections had
been effected on the basis of sexually explicit content. Nevertheless, while Perez disputes the
inferences defendants ask the court to draw from the evidence upon which they now rely, his own
evidence does not in fact belie defendants' position. To the contra1y, Perez' evidence is entirely
consistent with defendants' and tends to support rather than to rebut defendants' version of
events. Because the pmiies do not dispute the evidence, and because, in light of the undisputed
evidence proffered by defendants, Perez' interpretation of the plain language of the three
Publication Violation Notices is not tenable, I find for purposes of deciding the merits of both of
the two cross-motions for summary judgment now before the comi that all three publications
were rejected on the sole basis of sexually explicit content.
" [A] prison inmate retains those First Amendment rights that are not inconsistent with his
status as a prisoner or with the legitimate penological objectives of the conections system." Pell
v. Procunier, 417 U.S. 817, 822 (1974). However, "[w]hen a prison regulation impinges on
inmates' constitutional rights, the regulation is [nevertheless] valid if it is reasonably related to
legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987) In Turner, the United
States Supreme Court set forth four factors that the comis must balance in determining the
constitutionality of prison regulations:

(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;

Page 29 - OPINION AND ORDER

(3) Whether accommodation of the asserted constitutional right will impact guards
and other inmates, and on the allocation of prison resources generally; and
(4) Whether there is an absence of ready alternatives versus the existence of
obvious, easy alternatives.

Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (internal modifications, quotation marks
omitted), quoting Turner, 482 U.S. at 89-90, quoting Block v. Ruthe1ford, 468 U.S. 576, 586
(1984). The courts of the Ninth Circuit apply the Turner factors not merely in dete1mining the
constitutionality of prison regulations but also in determining the constitutionality of actions
taken pursuant to or to enforce such regulations. See, e.g., Bahrampour v. Lampert, 356 F.3d
969, 976 (9th Cir. 2004) (applying the four Turner factors to ODOC regulations and concluding·
on the basis of that analysis that both the regulations and ODOC conduct pursuant to the
regulations were constitutional).
For the following reasons, I find that Perez suffered no unconstitutional deprivation of his
First Amendment rights in connection with any of the complained-of conduct. In consequence,
Perez' motion (#151) for summaiy judgment is denied to the extent it addresses Perez' First
Amendment claim, and defendants' motion (#160) for summary judgment is granted to the extent
it addresses Perez' First Amendment claim.

1.

Mail Rejections and Publication Rejections

The five mail rejections and three publication rejections at issue here were all effected (as
discussed above) on the basis of sexually explicit content. The ODOC regulation governing
sexually explicit mail and publications is codified at Oregon Administrative Rule 291 -131 0035(1)(a)(A). As the Bahrampour court exp1:essly found, all four of the Turner factors weigh in
favor of the finding that Rule 291-131- 0035(l)(a)(A) passes constitutional muster. See id

Page 30 - OPINION AND ORDER

Specifically, the Bahrampour court found that there was a valid, rational connection between
prohibiting sexually explicit materials and the penological interest in preventing rape and other
forms of sexual predation within prison facilities, that the restriction is content-neutral in that it
targets the effects of the prohibited materials rather than effecting a broad ban impacting
innocuous materials, that alternative means for the exercise of inmate free speech rights are
available (as, for example, reading or viewing materials with nude images but no sexually
explicit content, or materials with sexually explicit content that also have "scholarly value, or
general social or literary value" and on that basis may be mailed to inmates pursuant to Rule
291-131- 0035(l)(e), supra), that permitting such materials would have a negative impact on
good institutional order, and that there is no ready altemative means of preventing sexually
explicit materials from having such an impact within a prison facility. See id Because the
constitutionality of Rule 291-131- 0035(l)(a)(A) is established, and because there is no dispute
that each of the rejected materials had sexually explicit content, it follows that none of the eight
rejections violated Perez' First Amendment right of free expression. See id.

2.

Oregon Administrative Rule 291-131-0025(1l)(b)(D)

Oregon Administrative Rule 291-131-0025(11 )(b)(D) prohibits inmates from receiving
freestanding nude or partially nude images through the mail. It is unclear from the record
whether Rule 291-131-0025(1 l)(b)(D) was at any material time exercised in connection with
mail sent to Perez at SRCI. On the arguendo assumption that Perez has standing to challenge the
constitutionality of Rule 291-131-0025(1 l)(b)(D), I find that all four of the Turner factors
support the finding that the rule passes constitutional muster. First, there is a valid, rational
connection between prohibiting freestanding nude images and the penological interest in

Page 31 - OPINION AND ORDER

preventing the development of a barter system around such images, which would have a tendency
to increase aggressive inmate behavior. See Cook Deel., 'il'il 5-1 O; see also Woodroffe v. Oregon,
Case No. 2:12-cv-00124-SI, 2015 U.S. Dist. LEXIS 59158, *28-32 (D. Or. May 6, 2015), citing

Thornburgh v. Abbott, 490 U.S. 401, 414-415 (1989). Moreover, the restriction is neutral in that
it targets the effects of the restricted images rather than broadly prohibiting all nude images. See

Woodroffe, 2015 U.S. Dist. LEXIS at *29-30, citing ivfauro v. Arpaio, 188 F.3d 1054, 1059 (9th
Cir. 1999).
Second, it is clear that alternative avenues exist for inmate exercise of the restricted right,
including viewing nude images without sexually explicit content that are contained within a
publication rather than freestanding. See 0.A.R. 291-131-0025(11 )(b)(D); see also Woodroffe,
2015 U.S. Dist. LEXIS at *32-33. Third, permitting inmates to receive freestanding nude images
would have a tendency to pose a risk to the health and safety of inmates and prison staff due to
the high value of such images to incarcerated prisoners and the ease with which they may be
concealed. See Woodroffe, 2015 U.S. Dist. LEXIS at *33-34. Fourth, Perez does not identify
any ready alternative to the restriction on freestanding nudes that would satisfy the penological
interest in preventing the development of a baiter system around such images, and because such
images are by their nature easy to conceal, it does not appear that any such alternative exists. See

id at *34-35.
For the foregoing reasons, Rule 291-131-0025(1 l)(b)(D) is not facially unconstitutional,
and to the extent it may have been applied in connection with mail sent to Perez, its application
did not unconstitutionally deprive Perez of any First Amendment right.

Page 32 - OPINION AND ORDER

3.

Oregon Administrative Rule 291-131-0035(2)(j)

Oregon Administrative Rule 291-131-003 5(2)0) prohibits inmates from receiving
inflammatory material through the mail. As discussed above, the evidentiary record does not
support the conclusion that Rule 291-131-0035(2)0) was at any material time applied to mail
received by Perez. Because the rnle was not applied to him, Perez is without standing to
challenge its constitutionality. See, e.g., Resnickv. Adams, 348 F.3d 763, 772 (9th Cir. 2003),
citing 1Vfadsen v. Boise State University, 976 F.2d 1219, 1220-1221 (9th Cir. 1992).
Even if Perez had standing to challenge the constitutionality of Rule 291-131-0035(2)(j),
I would find that it passes constitutional muster for the same reasons articulated in Forter v.
Geer, 868 F. Supp. 2d 1091, 1101-1103 (D. Or. 2012) (finding Rule 291-131-0035(2)(j) to be
facially constitutional).

4.

The Publication Violation List

By and through his Second Amended Complaint, Perez characterizes defendants'
purported failure to make the ODOC Publication Violation List readily available to him and to
his correspondents as a violation of his procedural due process rights. However, by and through
his briefing in supp01i of his own motion for summary judgment and in opposition to defendants'
cross-motion for summary judgment, Perez seeks to recharacterize that purp01ied failure as a
violation of his First Amendment right to free expression. That effo1i is without merit. First, to
the extent Perez seeks to vindicate a purportedly protected First Amendment right of members of
the public or of his correspondents to access the PVL, he lacks standing to do so. Second, Perez
does not identify any plausible way in which denial of access to the PVL would deprive him of
his protected right to free expression. Third, the evidentiary record tends to establish that at no

Page 33 - OPINION AND ORDER

time prior to this litigation did Perez request a copy of the PVL and not receive it, such that even
if he had a protected right to access the list, the record does not support the conclusion that
defendants deprived him of that right. Fourth, it is undisputed that prior to ordering the
publications rejected on September 6, 9, and 12, 2013 (or directing a correspondent to order them
on his behalf), Perez could have inquired of SRCI mailroom staff whether those publications
would be permitted under the applicable rules, and did not avail himself of that opp01tunity. I
therefore find that defendants' purported failure to make the PVL more readily available did not
deprive Perez of any right protected under the First Amendment.

B.

Perez' Fourteenth Amendment Claim

Perez' Fomteenth Amendment claim arises out of the administrative process he received
in connection with his requests for administrative review of the five mail rejections of August 29,
September 5, 10, and 17, and October 2, 2013, and/or the three publication rejections of
September 6, 9, and 12, 2013, and/or out of defendants' purp01ted failure to make the ODOC
Publication Violation List readily available to him and to his correspondents. To prevail on a
procedural due process claim under Section 1983, a plaintiff must establish: "(1) a liberty or
property interest protected by the Constitution; (2) a deprivation of the interest by the
government; and (3) lack of process." Wright v. Rive/and, 219 F.3d 905, 913 (9th Cir. 2000)
(internal modifications omitted), quoting Portman v. County of Santa Clara, 995 F.2d 898, 904
(9th Cir. 1993). The "lack of process" element can also be formulated as "denial of adequate
procedural protection." Krainski v. State ex rel. Bd. ofRegents, 616 F.3d 963, 970 (9th Cir.
2010), citing Brewster v. Bd. ofEduc. of the Lynwood Unified Sch. Dist., 149 F.3d 971, 982 (9th
Cir. 1998).

Page 34 - OPINION AND ORDER

The question of "what process is due" is more easily asked than answered. As the
Supreme Court has frankly acknowledged, "for all its consequence, 'due process'
has never been, and perhaps never can be, precisely defined." Lassiter v.
Department a/Social Servs., 452 U.S. 18, 24, 68 L. Ed. 2d 640, 101 S. Ct. 2153
(1981 ). Rather, the phrase "expresses the requirement of 'fundamental fairness,' a
requirement whose meaning can be as opaque as its imp01iance is lofty." Id As a
result, deciphering and applying the Due Process Clause is, at best, "an unce1iain
enterprise." Id
Precisely what procedures the Due Process Clause requires in any given case is a
function of context. After all, "unlike some legal rules," due process "is not a
technical conception with a fixed content unrelated to time, place and
circumstances." Cafeteria & Restaurant Workers Union v. ivlcElroy, 367 U.S.
886, 895, 6 L. Ed. 2d 1230, 81 S. Ct. 1743 (1961) (quoting Joint Anti-Fascist
Comm'n v. 1\!JcGrath, 341U.S.123, 162, 95 L. Ed. 817, 71 S. Ct. 624 (1951)
(Frankfurter, J., concurring)) (quotation marks omitted). Rather, it "is flexible
and calls for such procedural protections as the particular situation
demands." 2vforrissey [v. Brewer], 408 U.S. [471,] 481 [(1972)]. As this court
has observed, "the determination of what procedures satisfy due process [in a
given situation] depends upon an analysis of the paiticular case in accordance
with the three-part balancing test outlined in 1'.fathews v. Eldridge, 424 U.S. 319,
47 L. Ed. 2d 18, 96 S. Ct. 893 (1976)." Orloff v. Cleland, 708 F.2d 372, 378-79
(9th Cir. 1983) (parallel citations omitted). In iV!athews, the Supreme Court
stated:

Identification of the specific dictates of due process generally requires
consideration of three distinct factors. First, the private interest that
will be affected by the official action; second, the risk of erroneous
deprivation of such interest through the procedures used, and the
probable value, if any, of additional or substitute procedural
safeguards; and finally, the Government's interest, including the
function involved and the fiscal and administrative burdens that the
additional or substitute procedural requirements would entail.
iV!athews, 424 U.S. at 335.
Brewster, 149 F.3d at 983 (emphasis supplied; modifications original). It is nevertheless well
established that " [d]ue process requires notice reasonably calculated, under all the circumstances,
to apprise interested parties of the [governmental] action and afford them an opportunity to
present their objections." Al Haramain Islamic Found., Inc. v. United States Dep't of the

Page 35 - OPINION AND ORDER

Treaswy, 686 F.3d 965, 985 (9th Cir. 2012), quoting United Student Aid Funds, Inc. v. Espinosa,
559 U.S. 260, 272 (U.S. 2010), quoting 1'vfu/lane v. Cent. Hanover Bank & Trust Co., 339 U.S.
306, 314 (1950). In the prison context, in connection with withholding delivery of inmate mail,
it is well established that the process inmates are due includes, at a minimum, adequate notice of
the deprivation and an oppo1iunity to present objections thereto through two-level administrative
review (that is, review by a person other than the person who originally rejected the mail or
publication). See Krug v. Lutz, 329 F.3d 692, 697-698 (9th Cir. 2003), citing Sorrels v. 2v!cKee,
290 F.3d 965, 972-973 (9th Cir. 2002), Prison Legal News v. Cook, 238 F.3d 1145, 1152 (9th
Cir. 2001).
For the following reasons, I find that Perez suffered no unconstitutional deprivation of his
Fou1ieenth Amendment procedural due process rights in connection with the mail rejections of
August 29, September 5, 10, and 17, and October 2, 2013, or in connection with defendants'
purp01ied failure to make the PVL readily available to him and to his correspondents, but that he
did not receive the minimum procedural safeguards to which he was due in connection with the
publication rejections of September 6, 9, and 12, 2013. I further find that defendants Shupe and
Schultz, and no other defendants, had sufficient personal involvement in that deprivation of
Perez' due process rights for liability to attach to them, and that those defendants are not entitled
to qualified immunity. However, because neither Perez nor the defendants have offered evidence
or argument regarding Perez' burden to prove that he suffered damages in consequence of that
deprivation of his rights, I decline to issue any award of damages in Perez' favor at this stage of
these proceedings, and instead defer the question of damages until such time as the parties have
had the opp01iunity to offer proof as to whether Perez is entitled to award of compensat01y

Page 36 - OPINION AND ORDER

damages. In consequence, Perez' motion (#151) for summary judgment is granted as to Perez'
Fourteenth Amendment claim to the extent that claim addresses the liability (only) of Shupe and
Schultz for the deprivation of Perez' due process rights in connection with the three complainedof publication rejections and is otherwise denied as to the Fourteenth Amendment claim,
defendants' motion (#160) for summmy judgment is denied as to Perez' Fomieenth Amendment
claim to the extent that claim is alleged against Shupe and Schultz and premised on those
defendants' deprivation of Perez' due process rights in connection with the three complained-of
publication rejections, and is otherwise granted as to the Fou1ieenth Amendment claim.

1.

Administrative Process in Connection with the Mail Rejections of
August 29, September 5, 10, and 17, and October 2, 2013

Defendants do not dispute that Perez had a liberty interest in receiving mail. Indeed, that
liberty interest is well established. See, e.g., Procunier v. lvfartinez, 416 U.S. 396, 417 (1974).
Defendants argue only that Perez received all process to which he was due in connection with the
five mail rejections of August 29, September 5, 10, and 17, and October 2, 2013.
It is undisputed that on the occasion of each of the five complained-of mail rejections,
defendant Evans rejected the mail on the grounds that it contained "[s ]exually explicit" content
and that "[s]exually explicit material is prohibited." See Second Amended Complaint, Exh. 1. It
is further undisputed that, although Evans' Mail Violation Notices were unclear regarding the
procedure inmates are required to follow in order to obtain administrative review of mail
rejections and although the notices specifically indicated that administrative review could be
obtained "by writing to the Functional Unit Manager or designee at the above address," without
supplying an address for the Functional Unit Manager or for any designee thereof, Perez
successfully requested and received review of each rejection from defendant Clements, who was
Page 37 - OPINION AND ORDER

not the person (Evans) who initially rejected Perez' mail. See id.; see also id., Exhs. 2-3. It is
fmther undisputed that Perez was afforded an opp01tunity to provide a written objection to each
rejection, and that he availed himself of that oppo1tunity as well. See id., Exh. 3. It is therefore
undisputed that Perez received all process to which he was due in connection with each of the
five complained-of mail rejections: notice of the rejection, including the reasons underlying the
rejection; an oppo1tunity to present an objection to the reasons underlying the rejection; and twolevel administrative review. See Krug, 329 F.3d at 697-698. It follows that Perez suffered no
deprivation of his due process rights in connection with any of the five mail rejections.

2.

Administrative Process in Connection with the Publication Rejections
of September 6, 9, and 12, 2013

Again, defendants do not dispute that Perez had a libe1ty interest in receiving publications
through the mail, including publications with sexually explicit content. Again, the libe1iy interest
at issue is well established. See, e.g., Frost v. Symington, 197 FJd 348, 353 (9th Cir. 1999). It is
defendants' position that Perez received all process to which he was due in connection with the
three publication rejections of September 6, 9, and 12, 2013.
It is undisputed that on the occasion of each of the three complained-of publication

violations, defendant Shupe rejected the publications and sent Perez a Publication Violation
Notice so advising him. See Second Amended Complaint, Exh. 4 at 1-3. Although Perez has
espoused a contrary position, I have found (as discussed above) for purposes of both dispositive
motions now before the court that defendants have proffered evidence sufficient to establish that
Shupe rejected each of the three publications on the sole ground of its sexually explicit content.
As discussed above, the fact that each publication was rejected on the sole ground of
sexually explicit content could not be ascertained from any of the three notices Shupe sent to
Page 38 - OPINION AND ORDER

Perez. See id. Specifically, one of the three notices contained no indication whatsoever that
sexually explicit content was at issue, the other two notices contained text which was intended so
to indicate but which was in fact unintelligible without further information that was not at any
material time made available to Perez, and all three notices contained language strongly
suggesting a different ground for the rejection. See id. Because the Publication Violation
Notices did not intelligibly state the reason for the rejections, they were not adequate to put Perez
on notice of that reason, and had no tendency to provide Perez an opportunity to frame a cogent
objection to any of the three rejections.
It is fu1iher undisputed that Perez requested administrative review of each of the three
publication rejections. See id., Exh. 4 at 4, 6, 8. It is likewise undisputed that, in response to
Perez' requests for administrative review, defendant Schultz ultimately told Perez that because
SRCI mailroom staff had "accidentally" failed to keep copies on file of any photocopied portions
of any of the three rejected publications, he would not be given any administrative review in
connection with any of the three rejections. Id. Schultz fu1iher advised Perez that administrative
review could potentially be available in connection with future publication rejections - as, for
example, if he were to order the same publications a second time, at his own expense - but made
no effort to provide two-level review in connection with any of the three publication rejections at
issue in this litigation. See id.
Parenthetically, I note that SRCI mailroom staffs failure to retain photocopied portions of
any of the rejected publications did not constitute a significant barrier to providing Perez with the
two-level administrative review to which he was entitled. Had Perez been info1med at any
material time that the publications had been rejected because of their sexually explicit content,

Page 39 - OPINION AND ORDER

Perez would then have had an opportunity to argue either that the publications lacked sexually
explicit content, that the publications had "scholarly value, or general social or litermy value" and
on that basis could be mailed to him pursuant to Rule 291-131- 0035(1 )( e), and/or that the
prohibition of materials with sexually explicit content was unenforceable. A person other than
Shupe, even in the absence of photocopied portions of the publications, could then have made a
determination in connection with each publication - perhaps on the basis of publishers' and/or
booksellers' promotional language, perhaps on the basis of customer reviews on publishers' or
booksellers' websites, perhaps on the basis of the books' titles alone - whether or not each
rejection was appropriate under the applicable rules notwithstanding Perez' stated objections.
This did not occur, and instead Perez was simply denied administrative review entirely.
As a fmiher parenthetical matter, I note that the fact that two of the three rejected
publications had been previously rejected and appeared on the Publication Violation List at the
time the complained-of rejections occuned does not establish that Perez suffered no deprivation
of his procedural due process rights in connection with the rejections of those two publications.
Notwithstanding the previous rejection of two of the publications, Perez was entitled to adequate
notice of the reasons for the rejections, and an opportunity to object to the rejections in
connection with two-level administrative review. He never received such notice, and never
received a meaningful oppo1iunity to frame a cogent objection.
Because Perez did not receive either the meaningful notice or the opportunity to present
objections in connection with two-level administrative review to which he was due under
applicable Fomieenth Amendment jurisprudence, he suffered an actionable deprivation of his·
procedural due process rights. For liability to attach to an individual defendant under Section

Page 40 - OPINION AND ORDER

1983 in connection with such a deprivation of rights, the defendant must either have been
personally involved in causing the deprivation or have had a sufficient causal connection with the
deprivation to wanant imposition of liability, as for example by directing others to effect the
deprivation, setting in motion the actions of others which culminated in the deprivation, or
knowingly declining to prevent others from causing the deprivation. See, e.g., Starr v. Baca, 652
F.3d 1202, 1207-1208 (9th Cir. 2011). The evidence of record establishes the personal
involvement of defendants Shupe and Schultz in effecting the deprivation of Perez' due process
rights in connection with the complained-of publication rejections of September 6, 9, and 12,
2013, but does not establish the personal involvement of any other defendant. Perez offers no
allegation, argument, or evidence that defendants Evans, Clements, or Raths had any
involvement in the deprivation of his due process rights in connection with the complained-of
publication rejections, and his only evidence in support of his position that defendants Peters,
Nooth, or Geer could be liable as supervisors is SRCI mailroom staffs failure to retain
photocopies of any portions of any of the three rejected publications, which Perez characterizes
as evidence of a de facto policy of failing to comply with applicable regulations regarding
publication rejections. In response to this characterization, defendants take the position that
applicable regulations required them only to retain photocopies of po1iions of rejected
publications not already on the PVL at the time the rejection occmTed, and argue that because
two of the three publications were on the PVL in September 2013, the failure to retain
photocopies occurred on only one occasion rather than on tln·ee occasions. Defendants further
offer a former SRCI lead mailroom worker's declaration testimony that the failure to keep
photocopies of any portion of the tln·ee rejected publications was "not pursuant to any written or

Page 41 - OPINION AND ORDER

unwritten custom, and was human enor." Cook

Deel.,~

55. Even interpreting the evidence in

the light most favorable to Perez and resolving evidentiaiy conflicts in his favor, Perez' evidence
is insufficient to create a material question of fact as to whether Peters, Nooth, or Greer had
sufficient causal connection to the complained-of deprivation for supervis01y liability to attach to
them. In consequence, defendants Evans, Clements, Raths, Peters, Nooth, and Greer may not be
found liable in connection with the deprivation of Perez' procedural due process rights, but Shupe
and Schultz are subject to liability, including liability for money damages, unless they are entitled
to qualified immunity. It is defendants' position that they are so entitled.
The United States Supreme Court has described the qualified immunity doctrine as
follows:
The doctrine of qualified immunity protects government officials from liability for
civil damages insofar as their conduct does not violate clearly established
statutory or constitutional rights of which a reasonable person would have known.
Qualified immunity balances two imp01iant interests-the need to hold public
officials accountable when they exercise power hTesponsibly and the need to
shield officials from harassment, distraction, and liability when they perfonn their
duties reasonably. The protection of qualified immunity applies regardless of
whether the government official's enor is a mistake of law, a mistake of fact, or a
mistake based on mixed questions oflaw and fact.

Pearson v. Callahan, 555 U.S. 223, 129 S. Ct. 808, 815 (2009) (citations, internal quotation
marks omitted).
The qualified immunity analysis consists of two steps. One step analyzes whether a
constitutional right was violated, while the other examines whether the right was clearly
established. Following Pearson, the courts are pennitted to pe1form these steps in whichever
order is more appropriate under the circumstances of the case, considering the development of
the facts and legal issues in the record before the court and the stage of proceedings at which the

Page 42 - OPINION AND ORDER

qualified immunity issue is examined. See Pearson, 129 S. Ct. at 818.
Here, the foregoing discussion has established that the conduct of Shupe and Schultz
violated Perez' constitutional right of procedural due process, such that the only remaining
inquiry in connection with defendants' assertion of qualified immunity is whether it was clearly
established that those defendants' complained-of conduct was unconstitutional at the time it
occurred. The jurisprudence discussed above indicates that an inmate's right to adequate notice
of rejected mail and a right to frame objections to the rejection in connection with two-level
administrative review was well established prior to 2013. See Krug 329 F.3d at 697-698. There
can be no argument that these defendants could reasonably have been unaware that failure
intelligibly to advise Perez of the reasons for the publication rejections did not constitute notice
of the rejections adequate to pe1mit him to frame a cogent objection, or that suggesting that twolevel administrative review in connection with possible future publication rejections did not
constitute provision of two-level administrative review in connection with the publication
rejections actually at issue. It follows that Shupe and Schultz are not entitled to qualified
immunity in connection with their deprivation of Perez' due process rights.
Perez prays for monetaiy damages to compensate him for emotional distress he alleges to
have suffered in consequence of the deprivation of his due process rights in connection with the
three publication rejections of September 6, 9, and 12, 2013. However, neither Perez nor the
defendants have offered evidence as to whether or not he suffered such damages. It is well
established that "although mental and emotional distress caused by the denial of procedural due
process itself is compensable under§ 1983," it is inappropriate as a matter of law to "award[]
compensatory damages without proof that such injury actually was caused" by the deprivation of

Page 43 - OPINION AND ORDER

a plaintiffs due process rights. Carey v. Piphus, 435 U.S. 247, 264 (1978). Although it can be
appropriate to award nominal damages not to exceed $I in favor of a plaintiff who has
successfully established a defendant's liability without offering proof of damages, see id. at 267,
in light of the latitude in meeting procedural requirements to which Perez is entitled as a prose
incarcerated litigant, see Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998), and in light of the
fact that defendants, also, did not offer evidence or argument as to Perez' burden to prove
consequential damages, I decline to grant either of the parties' cross-motions as to the question of
Perez' entitlement to award of emotional distress damage. It shall be for the paiiies to dete1mine
whether it is most appropriate to seek resolution of the question of Perez' entitlement to damages
through trial limited to the question of damages, through submission of declaration testimony or
other written evidence, through negotiated settlement, or by alternative means.

3.

The Publication Violation List

By and through his Second Amended Complaint, Perez characterizes defendants'
purported failure to make the ODOC Publication Violation List readily available to him and to
his conespondents as a violation of his procedural due process rights. As discussed above in
connection with Perez' efforts to recharacterize that purported failure as a First Amendment
violation, to the extent Perez seeks to vindicate a purportedly protected due process right of
members of the public or of his correspondents to access the PVL, he lacks standing to do so.
To the extent Perez may not have abandoned his Fomieenth Amendment claim alleged on
his own behalf and premised on the failure to make the PVL more readily available, he offers no
allegation or argument suggesting grounds for concluding that he had any libe1iy or proerty
interest in access to the list. Moreover, also as discussed above, the evidentiary record tends to

Page 44 - OPINION AND ORDER

establish that at no time prior to this litigation did Perez request a copy of the PVL and not
receive it, such that even if he had a protected right to access the list, the record does not suppo1i
the conclusion that defendants deprived him of that right, and it is undisputed that prior to
ordering the publications rejected on September 6, 9, and 12, 2013 (or directing a conespondent
to order them on his behal:I), Perez could have inquired of SRCI mailroom staff whether those
publications would be permitted under the applicable rules, and did not avail himself of that
opportunity. I therefore find that defendants' purported failure to make the PVL more readily
available did not deprive Perez of any right protected under the Fou1ieenth Amendment.

CONCLUSION
For the reasons set forth above, Perez' motion (#151) for summary judgment is granted as
to his Fou1ieenth Amendment claim to the extent that claim addresses the liability (only) of
Shupe and Schultz for the deprivation of Perez' due process rights in connection with the three
complained-of publication rejections and is otherwise denied, defendants' motion (#160) for
summary judgment is denied as to Perez' Fourteenth Amendment claim to the extent that claim is
alleged against defendants Shupe and Schultz and premised on the deprivation of his procedural
due process rights in connection with the three complained-of publication rejections, and is
otherwise granted, and Perez' motion (#176) for imposition of sanctions is denied.

DATED this 7th day of February, 2017.

norable Paul Papak
United States District Judge

Page 45 - OPINION AND ORDER