Pergande v. Trumbo et al

Filing 160

ORDER: I adopt Magistrate Judge Coffin's Findings and Recommendation 137 filed January 23, 2013. Plaintiff's motion for partial summary judgment 113 is denied. Signed on 4/9/2013 by Chief Judge Ann L. Aiken. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EDWARD PERGANDE, et al.,
Plaintiffs,
No. 6:10-cv-6314-TC

v.
ORDER
SHERIFF JOHN TRUMBO, et al.,
Defendants.
AIKEN, Chief Judge:
Magistrate

Judge

Thomas

Recommendation on January 23,

M.
2013,

Coffin

filed

Findings

and

in the above entitled case.

The matter is now before me pursuant to 28 U.S.C.

636(b) (1) (B)

§

to

any

portion of a magistrate judge's Findings and Recommendation,

the

and Fed.

R.

Civ.

P.

72 (b).

When either party objects

district court must make a de novo determination of that portion of
the

1

magistrate

judge's

- ORDER

report.

See

28

U.S.C.

§

636(b) (1);

McDonnell Douglas Corp. v. Commodore Business Machines, Inc., 656
F.2d 1309, 1313 (9th Cir. 1981), cert. denied, 455 U.S. 920 (1982).
Plaintiff,

an

inmate

at

Umatilla

violation of his First Amendment rights
restricting

inmates

to

using

post

County

Jail,

alleges

due to defendants' policy

cards

for

letter

writing.

Plaintiff filed a. motion seeking summary judgment as to this claim
noting that

over a

year

after he

filed his

complaint,

a memo

circulated at the Umatilla County jail noting that letters will be
accepted at the facility beginning June 18,

2012.

Apparently,

plaintiff believes that the policy change, by itself, conclusively
demonstrates liability.
finding

issues

of

Magistrate Judge Coffin denied the motion

fact

still

remain.

Plaintiff

has

filed

objections.
Inmates enjoy a
mail.
those

First Amendment right to send and receive

Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995). However,
First

Amendment

rights

are

necessarily

limited

by

incarceration, and may be regulated in order to achieve legitimate
correctional

goals

or

to maintain prison

Babbitt,

833

F.2d 196,

validity

of

a

prison

197
mail

(9th Cir.

security.

1987).

regulation,

courts

McElyea v.

To determine the
apply

the

test

established under Turner v. Safley, which considers four factors:
( 1)

whether

there

is

a

valid,

rational

connection between the

regulation and the legitimate governmental interest the regulation
is designed to protect;

2

- ORDER

(2) whether the prisoner has alternative

means

of

exercising

the

right

at

issue;

( 3)

the

impact

any

accommodation would have on guards, other inmates, and allocation
of prison resources; and (4) whether there are

~ready

alternatives"

for furthering the government interest, which would suggest that
the regulation is an exaggerated response to the jail's concern.
Turner v. Safley, 482 U.S. 78, 89-90.

(1987).

Plaintiff's motion

failed to address these considerations and, therefore,

issues of

fact remain.
Having
ruling,

I

Coffin's

given

de

novo

find no error.
Findings

and

review of Magistrate
Accordingly,

Recommendation

Judge

Coffin's

I adopt Magistrate Judge
filed

January

23,

2013,

denying plaintiffs' motion for partial summary judgment.

CONCLUSION
I adopt Magistrate Judge Coffin's Findings and Recommendation
(#137)

filed January 23,

2013.

Plaintiffs'

motion for partial

summary judgment (#113) is denied.

DATED this

day of April, 2013.

ANN AIKEN
UNITED STATES DISTRICT JUDGE

3

- ORDER