Barrett v. Williams et al

Filing 173

FINDINGS OF FACT AND CONCLUSIONS OF LAW. Defendants violated Plaintiff's First Amendment rights. Plaintiff is entitled to declaratory judgment and a permanent injunction enjoining Defendants from rejecting or otherwise prohibiting incomi ng mail for containing artwork on the front of envelopes. Plaintiff is also entitled to an order requiring Defendants to inform inmates that they are permitted to receive letters with artwork on the front of envelopes. Plaintiff shall prepare a judgm ent in accordance with these Findings of Fact and Conclusions of Law. After conferring with Defendants, Plaintiff shall submit the proposed judgment to the Court for review within 30 days of the date below. If the parties cannot agree on a judgment, Plaintiff shall notify the Court, which will then schedule a telephone conference with counsel. See 28-page document attached. Signed on 3/30/2015 by Judge Marco A. Hernandez. (mr)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JACOB BARRETT,
No. 6:11-CV-06358-HZ
Plaintiff,
FINDINGS OF FACT AND
CONCLUSIONS OF LAW
v.
JEFF PREMO, MICHELLE
DODSON, JANE DOE, COLETTE
PETERS, KELLY RATHS,
Defendants.
Blerina Kotori
William F. Martson, Jr.
TONKON TORP LLP
1600 Pioneer Tower
888 SW Fifth Avenue Suite 1600
Portland, OR 97204
Attorneys for Plaintiff
Shannon Vincent
OREGON DEPARTMENT OF JUSTICE
Trial Division, CLS
1162 Court Street, NE
Salem, OR 97301
Attorney for Defendants
1- FINDINGS OF FACT AND CONCLUSIONS OF LAW

HERNÁNDEZ, District Judge:
This case concerns the constitutionality of the Oregon Department of Corrections’
decision to reject an incoming piece of mail because it had artwork on the front of the envelope.
Plaintiff Jacob Barrett, an Oregon Department of Corrections (ODOC) inmate, brings a claim for
relief under 42 U.S.C. § 1983, which provides a cause of action against state and local
governments and their officials for violations of a person’s federal constitutional and statutory
rights. Plaintiff brings this claim against Jeff Premo, Superintendent of the Oregon State
Penitentiary (OSP); Michelle Dodson, former Executive Assistant to Superintendent Premo; Jane
Doe 1; Colette Peters, Director of ODOC; and Kelly Raths, Administrator of the Office of Inmate
and Community Advocacy at ODOC; (collectively, “Defendants”). Plaintiff alleges that
Defendants violated his First Amendment rights by rejecting and returning a letter that Plaintiff
sent to an inmate at OSP because of a picture Plaintiff had drawn on the front of the envelope.
This Court conducted a one-day bench trial on February 19, 2015. These are the Court’s
Findings of Fact and Conclusions of Law. Fed. R. Civ. P. 52 (a)(1). As explained below,
Defendants violated Plaintiff’s First Amendment rights. As a result, Plaintiff is awarded
declaratory and injunctive relief.
FINDINGS OF FACT
I.

Rejection of Plaintiff’s Letter
Pursuant to the Interstate Corrections Compact, Plaintiff was housed in New Mexico at

the time of the incident at issue and is currently housed in Florida. Stipulation of Admitted Facts,
1

While Jane Doe is a named defendant, the parties’ Pre-Trial Order does not mention Doe. [66].
Based on the parties’ order and the absence of any mention of Doe at trial, the Court construes
Plaintiff’s position as having voluntarily dismissed Doe from the action. See Hunt v. Cnty. of
Orange, 672 F.3d 606, 617 (9th Cir. 2012) (explaining that a district court was within its power
to sua sponte dismiss a defendant who was not included in the pretrial order).
2- FINDINGS OF FACT AND CONCLUSIONS OF LAW

at 1, [171]. The Oregon Administrative Rules governing incoming inmate mail apply to Plaintiff
to the extent he sends mail to inmates in ODOC custody.
In approximately January of 2011, Plaintiff sent a letter to his cousin, Christopher
Weedmark, an ODOC inmate who was housed at OSP. Plaintiff’s letter to Mr. Weedmark was
inside an envelope. On the front of the envelope, Plaintiff had drawn a picture of three skulls,
dice, and barbed wire. Pl.’s Ex. 3. Plaintiff’s envelope was rejected by mailroom staff at OSP
and returned to him, unopened, with a note on the front of the envelope stating “no writing on
front of envelope” and a checkmark next to a box indicating “violates inmate mail rule.” Id.
On or about February 2, 2011, Plaintiff wrote a letter to OSP’s Mailroom Administrator
seeking administrative review of the mail violation. Pl.’s Ex. 4. On February 24, 2011,
Superintendent Premo responded to Plaintiff’s request for administrative review. Pl.’s Ex. 5.
Superintendent Premo stated that “the letter was returned to you due to art work being on the
envelope,” and that “in accordance with [OAR 291-131-0025] 2, incoming mail will be denied
and returned to sender if that mail contains anything other than postage, the sender’s name and
return address, and the addressed inmate’s name, SID number and address.” Id.
On March 8, 2011, Plaintiff sent a letter to OSP’s Grievance Coordinator, requesting a
reversal of Superintendent Premo’s decision. Pl.’s Ex. 6. On March 16, 2011, Michelle Dodson,
in her role as the Grievance Coordinator’s supervisor, responded to Plaintiff in a letter. Pl.’s Ex.
7. Ms. Dodson cited Oregon Administrative Rule 291-131-0037, Disposition of Prohibited Mail:
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.
2

Superintendent Premo’s letter cited “Oregon Revised Statute, 291-131-0025.” Pl.’s Ex. 5.
However, it is clear from the record that this was a typographical error and that he intended to
cite Oregon Administrative Rule 291-131-0025.

3- FINDINGS OF FACT AND CONCLUSIONS OF LAW

Id. Ms. Dodson further stated that Plaintiff was “not eligible for any further review on this
issue.” Id. Plaintiff filed a Tort Claim Notice on April 8, 2011. Pl.’s Ex. 8. Plaintiff filed the
present lawsuit on November 10, 2011. Complaint, [2].
In September 2014, during the pendency of this lawsuit, Plaintiff sent letters to four
ODOC inmates housed in three different ODOC facilities. 3 Each letter was enclosed in an
envelope with a drawing of a “tribal turtle” 4 on the outside. Pl.’s Ex. 10. The letters were
delivered to the inmates as addressed. Stipulation of Admitted Facts at 5, [171]. None of the
“turtle envelopes” were rejected, despite having artwork on the front of the envelope.
II.

Plaintiff’s Testimony
At trial, Plaintiff testified that he has been incarcerated for approximately 21 years. He

stated that he has drawn consistently on envelopes since approximately 1996 or 1997, and that
this was the first time one of his envelopes had been rejected by ODOC. Plaintiff testified that he
did not know that drawings were not allowed on the front of envelopes until his envelope was
rejected in early 2011. Plaintiff testified that his drawing of skulls, dice, and barbed wire did not
contain any code or promote criminal activity.
Plaintiff testified that he draws as much as possible, sometimes even for hours in a day.
He said that drawing has changed his life because it is a way he can express his emotions. He
testified that it has a positive impact on his relationships, including with other inmates, because
he can inspire people and lift their spirits with his artwork. He also testified that being able to
draw could help with his rehabilitation if he is released from prison. Plaintiff testified that few

3

Plaintiff prepared the letters and envelopes and had his attorney mail them.
Plaintiff refers to the drawing as a “tribal turtle.” The drawing is a simple, hand-drawn, black
and white depiction of a turtle. Pl.’s Ex. 10.
4

4- FINDINGS OF FACT AND CONCLUSIONS OF LAW

inmates draw consistently. He estimated that within OSP, approximately 5-10 inmates draw. He
did not know how many of those inmates draw on envelopes.
Plaintiff testified that inmates have very limited access to resources to draw in prison. He
testified that being able to draw on the front of envelopes was important because it was a
completely flat surface, as opposed to the back of an envelope, and it did not take up space on
the paper enclosed in the envelope. In addition, Plaintiff explained that ODOC often puts an
address label on the back of envelopes; therefore, if Plaintiff drew on the back, his artwork may
be covered by a label. Plaintiff also testified that indigent inmates only receive two pieces of
paper and five envelopes per month. Therefore, every inch of space is a valuable resource.
Finally, Plaintiff testified that the front of envelopes was a specific medium for him to express
himself, similar to any artist who chooses a preferred medium for expression.
III.

Mail Processing within the Oregon Department of Corrections
ODOC strives to deliver incoming inmate mail within 48 hours of its arrival at the prison.

At OSP, where Plaintiff sent the letter to his cousin, there are four full-time staff in the mailroom
who are responsible for, among other things, processing incoming mail. In addition, there are
often up to three additional staff members assigned temporarily to assist in the mailroom. The
OSP mailroom staff processes an average of 800-1200 pieces of incoming mail per day. Defs.’
Ex. 504.
ODOC mailroom staff members go through various steps to process each piece of
incoming mail. First, the mail is inspected for technical violations on the exterior of the
envelope. If there are no technical violations, the incoming mail’s SID 5 number must be verified
against the inmate’s name. The staff member looks up the SID number in a computer program to
5

Each inmate is assigned a state offender identification (SID) number.

5- FINDINGS OF FACT AND CONCLUSIONS OF LAW

determine where the inmate is located and then writes the inmate’s housing unit and bunk on the
front of the envelope. Then, the staff member opens each piece of mail and searches its contents.
Finally, the staff member places the envelope in a bin for distribution to the housing units. All
mail is delivered by other ODOC employees. No inmate ever handles, sorts, or distributes mail.
If a mailroom staff member finds a technical violation, the mail is returned to the sender
with a sticker, stamp, or handwritten notation, indicating the cause of the violation. Staff
members refer to this process as “violating” an envelope. At trial, witness testimony varied as to
how long it takes to violate an envelope. Kelly Raths, Administrator of the Office of Inmate and
Community Advocacy at ODOC, testified that it takes about 5 minutes; Chris Toombs, OSP
Mailroom Lead Worker, testified that it takes between 15 and 30 seconds; and Brandon Kelley,
Assistant Superintendent of Security at OSP, testified that it takes 20 seconds.
ODOC does not track how many envelopes are violated per day, nor does it track how
many envelopes are violated because they have artwork on the front. Mr. Toombs estimated that
25-100 envelopes are violated out of the approximately 1200 pieces of mail that OSP receives
per day. Mr. Toombs did not know how many were violated due to artwork, as opposed to other
technical violations.
In addition to first class mail, mailroom staff members process books, magazines, legal
mail, inmate emails, video visits (similar to skype), electronic photo uploading services, and a
service similar to text messages.
IV.

Oregon Department of Corrections’ Incoming Mail Rule
Oregon Administrative Rule 291-131-0025 states, in relevant part:
Incoming Mail: (1) Incoming mail shall require the sender’s name and return address on
the front of the envelope and shall be addressed to the inmate using only his/her
committed name and SID number.

6- FINDINGS OF FACT AND CONCLUSIONS OF LAW

Pl.’s Ex. 1 at 6. The plain language of the incoming mail rule does not ban artwork on the front
of envelopes. The rule only addresses what the front of envelope must include, not what it must
exclude.
Every ODOC witness testified that this was the only rule at issue in this case and the only
rule that purportedly establishes a de facto ODOC policy of prohibiting artwork on the front of
envelopes. Plaintiff testified that he was unaware of this OAR until his letter was returned to
him.
Ms. Raths testified that, among other job duties, she fills the role of “central mail
administrator” and that one of her responsibilities is to oversee the mail rules, including how they
are applied and interpreted. Ms. Raths testified that OAR 291-131-0025 does not clearly state
that artwork is prohibited on the front of an envelope. She also testified that there is no other
ODOC rule or policy that prohibits artwork from the front of envelopes. Ms. Raths explained
that, in practice, mailroom staff may interpret the rule to prohibit artwork from the front of
envelopes but that the interpretation could vary by facility or staff member.
Ms. Raths stated that in Plaintiff’s case, the mailroom staff interpreted the incoming mail
rule to indicate that Plaintiff’s artwork violated the rule. She was not aware of how frequently
envelopes were refused for having drawings on the front, but she stated that a drawing on the
front of an envelope would not necessarily lead to an envelope being violated. When asked
whether there were any plans within ODOC to adopt a policy or practice to permit artwork on
the front of envelopes, Ms. Raths stated that because there was no current policy prohibiting
artwork on the front of envelopes, it followed that there were no plans to change any policy.
As to the “turtle envelopes,” Ms. Raths testified that she did not know why they were not
violated. She hypothesized that, given the volume of mail processed daily, violating the “turtle
7- FINDINGS OF FACT AND CONCLUSIONS OF LAW

envelopes” was a low priority for mailroom staff. Ms. Raths testified that she imagined that most
of her mailroom staff would not have concerns with smaller pieces of artwork on an envelope,
such as a small image embossed into an envelope for Valentine’s Day.
Ms. Raths distinguished the incoming mail rule from ODOC’s “Outgoing Mail” rule,
which expressly states that “[t]he outside of the envelope shall contain only the inmate’s
committed name, SID number, and return address, and the addressee’s name and address . . . .”
See Pl.’s Ex. 1 at 5 (emphasis added). Ms. Raths explained that artwork on the front of envelopes
is clearly forbidden in the plain language of the outgoing mail policy but not the incoming mail
policy.
On examination by Defendants’ attorney, Ms. Raths adjusted her testimony somewhat.
She stated that while the incoming mail rule did not explicitly prohibit artwork on the front of
envelopes, superintendents throughout ODOC had consistently applied the rule to prohibit
artwork on the front of incoming mail. Ms. Raths further stated that, in her role as Administrator
of the Office of Inmate and Community Advocacy, she deferred to the superintendents’
interpretation of the rule and that she had never heard of any superintendents interpreting the rule
differently. Ms. Raths testified that in the 10 months she has been working in her current position
at ODOC, this was the only case she had been confronted with regarding the violation of an
envelope with a drawing on the front.
Mr. Toombs, OSP Mailroom Lead Worker, testified that it is part of his job duties to be
aware of and familiar with the ODOC mail rules. He also stated that it is his job to apply those
rules to the processing of inmate mail. Mr. Toombs testified that an incoming envelope with
artwork on the front will be violated. He explained that in 2011, the then-supervisor of the
mailroom instructed mailroom staff to violate mail with excessive writing, drawings, and stickers
8- FINDINGS OF FACT AND CONCLUSIONS OF LAW

on the front of envelopes because it was causing difficulties for mailroom staff members trying
to read the inmates’ SID numbers. Mr. Toombs testified that artwork on the back of envelopes
has been permitted since 2011. Mr. Toombs also testified that he derived his understanding that
artwork is not allowed on the front of envelopes from OAR 291-131-0025. When asked whether
he relied on any other source in his understanding, he said he did not.
Mr. Toombs estimated that, as part of his job, in the 3-4 days before trial he had rejected
20-30 envelopes with drawings on them. 6 Mr. Toombs also testified that it was error for a staff
member not to violate the “turtle envelopes.” Mr. Toombs testified that he was familiar with
Plaintiff’s name because he mailed information to Plaintiff from the legal library.
Mr. Kelley, Assistant Superintendent of Security at OSP, testified that the incoming mail
rule was his only basis for understanding that artwork is not allowed on the front of envelopes.
He testified that in his experience at the three ODOC institutions he has supervised, the rule is
enforced consistently.
Mr. Kelley testified that the problem with artwork on the front of envelopes is that it
distracts mailroom staff members who are on tight timelines to process large volumes of mail.
Mr. Kelley explained that staff members must be able to clearly and quickly see the addresses of
the sender and recipient. Mr. Kelley testified that if drawings were allowed on the front of
envelopes, it would inhibit the ability of mailroom staff members to efficiently do their job,
because it would increase the time required to process a letter from approximately 5 to 20
seconds. In addition, Mr. Kelley testified that ODOC staff members need room to write on the
envelope if it needs to be rerouted to a different housing area or facility.
6

The trial was held on February 19. Mr. Toombs explained that there were higher than average
numbers of envelopes with drawings, doodles, and other forbidden artwork on the days near
February 14, Valentine’s Day.
9- FINDINGS OF FACT AND CONCLUSIONS OF LAW

Mr. Kelley also testified that incoming postcards could not have any drawings on them.
However, he was unable to point to any rule that supported his assertion. When pressed on crossexamination to identify a rule that prohibits drawings on postcards, Mr. Kelley referred to OAR
291-131-0025(6), which says nothing about drawings or postcards. 7
Prior to trial, Defendants argued that the ban on artwork on the front of envelopes is
needed to promote the goals of security and efficiency. At trial, Defendants’ primary argument
was based on efficiency. Mailroom staff must sort hundreds of pieces of incoming mail every
day and, arguably, it would hurt efficiency to allow drawings on the front of envelopes because it
would make it more difficult for staff members to read the recipient’s SID number and address.
In addition, drawings could interfere with the space on the envelope needed by staff members to
write the recipient’s bunk number and, potentially, to correct that bunk number if the mail later
needed to be rerouted. Defendants argued that security would be impacted as an offshoot of the
impact on efficiency. Because staff members would spend more time processing envelopes with
drawings on them, they would not be able to spend as much time ensuring that all of the mail
was properly screened for security issues.
CONCLUSIONS OF LAW
To prevail on a § 1983 claim, a plaintiff must prove by a preponderance of evidence (1)
that a right secured by the Constitution or laws of the United States was violated, and (2) that the
alleged violation was committed by a person acting under the color of state law. Long v. Cnty. of
Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (elements of § 1983 claim); Dias v. Elique,
7

OAR 291-131-0025(6) states: “Inmates may receive catalogs, advertisements, brochures,
promotional materials, pamphlets, sweepstakes, and contest materials solicited by the inmate
provided the materials are properly addressed with the inmate’s full name and SID number and
are received directly at the correct address of whether the inmate is currently housed. These
materials must conform to any content restrictions contained within this rule.” Pl.’s Ex. 1.
10- FINDINGS OF FACT AND CONCLUSIONS OF LAW

436 F.3d 1125, 1129 (9th Cir. 2006) (a plaintiff must prove § 1983 claim by a preponderance of
evidence). There is no dispute in this case that Defendants acted under color of state law. Thus,
the only question is whether Defendants violated rights secured by the Constitution.
Prisoners have a “First Amendment right to send and receive mail.” Witherow v. Paff, 52
F.3d 264, 265 (9th Cir. 1995) (citation omitted). A prisoner's First Amendment rights, however,
are “subject to substantial limitations and restrictions in order to allow prison officials to achieve
legitimate correctional goals and maintain institutional security.” Walker v. Sumner, 917 F.2d
382, 385 (9th Cir. 1990) (citations omitted). “Where a state penal system is involved, federal
courts have . . . additional reason to accord deference to the appropriate prison authorities.”
Turner v. Safley, 482 U.S. 78, 85 (1987) (citation omitted).
I.

No Policy or Practice Prohibiting Artwork from the Front of Envelopes
As an initial matter, the Court finds that, despite Defendants’ assertion (which Plaintiff

appeared to accept for the purposes of this case), there is no ODOC policy or practice that
prohibits artwork on the front of envelopes containing incoming mail for inmates.
Unquestionably, there is no written policy. The plain language of OAR 291-131-0025,
the rule that every witness relied on, says nothing about what is prohibited on the front of
incoming mail envelopes. Furthermore, Defendants failed to present credible testimony
demonstrating the existence of any de facto policy or practice.
Ms. Raths’ job responsibilities include oversight of the administration and interpretation
of the mail rules, yet she testified that no ODOC policy prohibits artwork from the front of
envelopes and that the practice of individual mailroom staff members will vary. While she later
sought to correct her testimony by stating that all superintendents within ODOC consistently

11- FINDINGS OF FACT AND CONCLUSIONS OF LAW

applied the rule to prohibit artwork on the front of incoming mail, this testimony is not credible
in light of her previous candid assertions.
Mr. Toombs presented conflicting testimony as well. On the one hand, he explained that
his understanding that artwork is prohibited from the front of envelopes was derived from
instructions from the prior mailroom supervisor in 2011. He later stated that OAR 291-131-0025
provided the only basis for his understanding yet, as discussed above, OAR 291-131-0025 says
nothing about prohibited content.
Finally, while Mr. Kelley testified that OAR 291-131-0025 is interpreted to forbid
artwork on the front of envelopes, his credibility was called into question by his insistence that
ODOC also forbids drawing on postcards, an assertion that contradicts Defendants’ position
earlier in this case and has no support in the OAR Mr. Kelley cited.
On the other hand, Plaintiff credibly testified that he has sent numerous envelopes with
artwork on the front during the time he has been incarcerated and has never had an envelope
violated, except the one at issue in this case. The “turtle envelopes” add credibility to Plaintiff’s
testimony and support the conclusion that there is no consistent policy or practice of violating
these kinds of envelopes.
Mr. Toombs testified that there was no problem with the content of Plaintiff’s drawing,
only the location of it on the front of the envelope. Mr. Toombs also testified that he was familiar
with Plaintiff’s name because Plaintiff requested materials from the legal library to be sent to
him. Plaintiff testified that he has filed several lawsuits against ODOC. If mailroom staff knew
Plaintiff’s name, considered him an adversary of ODOC, and therefore targeted his mail, this
would constitute a violation of Plaintiff’s First Amendment rights. The Court finds it more likely

12- FINDINGS OF FACT AND CONCLUSIONS OF LAW

that Plaintiff’s envelope was violated due to its content—a drawing of barbed wire, three skulls,
and dice. This too violates the First Amendment.
The Supreme Court has made clear that “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 corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Given that
there is neither a policy nor practice that is consistently enforced to prohibit artwork on the front
of envelopes of incoming mail, the Court must conclude that Plaintiff’s envelope was violated
either because of Plaintiff’s identity or because of the content of the drawing. Defendants are
unable to assert any legitimate policy reason that would justify violating Plaintiff’s envelope for
either reason.
II.

Turner Factors
While the analysis could end here, the Court nevertheless assumes for the sake of

argument that ODOC has a de facto policy prohibiting artwork from the front of envelopes. Even
granting Defendants this benefit of the doubt, Plaintiff prevails. The Court analyzes the
constitutionality of this policy under the Turner factors and concludes that Plaintiff’s First
Amendment rights were violated.
To determine whether a correctional institution's regulation that “impinges on inmates'
constitutional rights” is valid, the court must determine whether that regulation “is reasonably
related to legitimate penological interests.” Id. at 89. To “guide[ ] courts in determining whether
a challenged regulation passes constitutional muster,” the Ninth Circuit applies the four-pronged
test set forth in Turner. Frost v. Symington, 197 F.3d 348, 354 (9th Cir. 1999). Under this test,
courts must determine:
(1) whether the regulation is rationally related to a legitimate and neutral governmental
objective; (2) whether there are alternative avenues that remain open to the inmates to
13- FINDINGS OF FACT AND CONCLUSIONS OF LAW

exercise the right; (3) the impact that accommodating the asserted right will have on other
guards and prisoners, and on the allocation of prison resources; and (4) whether the
existence of easy and obvious alternatives indicates that the regulation is an exaggerated
response by prison officials.
Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, 482 U.S. at 89–
90). “The first of these factors constitutes a sine qua non,” Walker, 917 F.2d at 385, meaning that
“if a regulation is not rationally related to a legitimate and neutral governmental objective, a
court need not reach the remaining three factors.” Prison Legal News v. Lehman, 397 F.3d 692,
699 (9th Cir. 2005).
a. Rational Relationship
Under the first Turner factor, “there must be a valid, rational connection between the
prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482
U.S. at 89 (internal quotation marks and citation omitted). This requires the Court to “determine
whether the governmental objective underlying the policy is (1) legitimate, (2) neutral, and (3)
whether the policy is ‘rationally related to that objective.’” Mauro v. Arpaio, 188 F.3d 1054,
1059 (9th Cir. 1999) (en banc) (quoting Thornburgh v. Abbott, 490 U.S. 401, 414 (1989)).
As discussed in the Findings of Fact, Defendants identified two objectives in enforcing
the incoming mail policy: (1) to promote efficiency, and (2) to enhance security. Efficiency and
security are legitimate penological objectives. Prison Legal News v. Columbia Cnty., 942 F.
Supp. 2d 1068, 1082 (D. Or. 2013) (quoting Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d
854, 861 (5th Cir. 2004) (“staff and space limitations, as well as financial burdens, are valid
penological interests”), and Abbott, 490 U.S. at 415 (the “legitimacy of the Government's
purpose in [protecting prison security] is beyond question”)).
Whether a regulation is neutral depends on whether it operates “without regard to the
content of the expression.” Turner, 482 U.S. at 90. On its face, ODOC’s incoming mail policy
14- FINDINGS OF FACT AND CONCLUSIONS OF LAW

does not restrict mail based on content. However, the evidence suggests that, in practice, the
application of the policy is content-based. Plaintiff’s drawing of skulls, dice, and barbed wire
was rejected, while his drawings of turtles on four separate envelopes were not rejected. This
suggests that mailroom staff members make decisions as to whether to reject drawings based on
their content. Because the entire policy is unwritten and is based on the interpretation of a rule,
the Court finds it likely that mailroom staff members’ interpretation of the rule’s meaning varies.
Witness testimony at trial supports this conclusion. Plaintiff testified that he has sent mail
to other inmates with drawings on the front of envelopes for many years and the envelopes have
never been rejected. 8 Ms. Raths testified that staff members’ interpretation of the policy likely
varied and that she imagined that most mailroom staff would not have concerns with a small
piece of artwork on an envelope. She also testified that taking the time to violate an envelope
with a turtle drawing would probably be a lower priority for mailroom staff members than
enforcing other violations of the incoming mail rule.
Even assuming arguendo that the policy is applied in a neutral manner, with no
restrictions based on content, ODOC fails to show that the policy is rationally related to the
objectives of promoting efficiency and enhancing security. A “regulation cannot be sustained
where the logical connection between the regulation and the asserted goal is so remote as to
render the policy arbitrary or irrational.” Turner, 482 U.S. at 89–90. Although the Court must
uphold a regulation that bears a rational relationship to a legitimate penological interest, this
standard “is not toothless.” Abbott, 490 U.S. at 414 (internal quotation marks and citation
omitted). “Turner requires prison authorities to show more than a formalistic logical connection
between a regulation and a penological objective.” Beard v. Banks, 548 U.S. 521, 535 (2006).
8

Plaintiff also testified that his envelope was rejected as retaliation for his pending lawsuits
against ODOC. The Court does not find evidence to support this allegation.
15- FINDINGS OF FACT AND CONCLUSIONS OF LAW

The government may demonstrate a rational relationship by showing “an intuitive,
common[-]sense connection” between the prison's policy and its objectives. Frost, 197 F.3d at
356. If the plaintiff does not “present sufficient evidence to refute [that] common-sense
connection . . . ‘[the government] need not prove that the banned material actually caused
problems in the past, or that the materials are “likely” to cause problems in the future.’” Prison
Legal News v. Cook, 238 F.3d 1145, 1150 (9th Cir. 2001) (quoting Mauro, 188 F.3d at 1060).
“The only question is whether prison administrators reasonably could have thought the
regulation would advance legitimate penological interests.” Id. If, however, the plaintiff presents
sufficient evidence to refute the government's common-sense connection between the regulation
and its objectives, the government “must present enough counter-evidence to show that the
connection is not so ‘remote as to render the policy arbitrary or irrational.’” Frost, 197 F.3d at
357 (quoting Mauro, 188 F.3d at 1060).
With respect to promoting efficiency, Defendants argue that the incoming mail policy
saves mailroom staff members time. There is a common-sense connection between the policy
and promoting efficiency: If the fronts of envelopes are clear of any extraneous information, then
mail room staff members will be able to process the envelopes more quickly and they will be
able to deliver them to inmates more efficiently.
However, Plaintiff presented convincing evidence to refute this common-sense
connection. The evidence establishes that mailroom staff does not uniformly reject all envelopes
with artwork on the front. Therefore, the process of screening envelopes with artwork on them is
not a fast, uniform decision requiring no discretion. Instead, the evidence suggests that staff is
taking time to determine, based on the content, whether to violate each piece of mail.

16- FINDINGS OF FACT AND CONCLUSIONS OF LAW

Violating a piece of mail takes extra time. It is undisputed that it takes longer to violate a
piece of mail than to allow it through. Witnesses testified that it adds anywhere from 20 seconds
to 5 minutes of additional time to a staff member’s work. Therefore, processing an envelope with
a drawing on it that poses no distraction to staff members and does not obstruct the recipient’s
name or address takes less time than rejecting it. There is no evidence to suggest that, if artwork
were allowed on the front of envelopes, all subsequent artwork would be distracting and interfere
with staff members’ ability to process the mail. The “turtle envelopes” provide an example of
how staff members are able to process an envelope with artwork that does not encroach upon the
recipient’s address.
The question of efficiency boils down to whether, in the absence of a policy banning
artwork from the front of envelopes, there would be a significant increase, not just of envelopes
with artwork on the front, but envelopes with artwork on the front that caused a distraction or
delay in staff members’ processing times. The Court finds that it is unlikely that such an increase
would result from a change in policy. Alternatively, any increase would be de minimis. In Prison
Legal News v. Columbia Cnty., 942 F. Supp. 2d 1068, 1084 (D. Or. 2013), the court found that
the jail’s potential time savings of a few minutes each day by enacting a postcard-only policy
was “too small to create a rational connection between the policy and promoting efficiency at the
Jail.” Similarly here, Defendants have put forward no evidence to support a rational connection
between banning artwork on the front of envelopes and increasing efficiency within the prison.
As to security, there is not an intuitive, common-sense connection between banning
artwork on the front of envelopes and enhancing prison security. Defendants’ security argument
is intertwined with their efficiency argument. Defendants contend that, because the policy
enhances efficiency, it must also positively impact security because mailroom staff members
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have more time to effectively screen mail for security issues. This rationale, however, is only
compelling to the extent that the policy increases efficiency. Because the evidence does not
establish that it does, Defendants’ security argument fails.
No evidence was presented at trial to support the contention that allowing artwork on the
front of envelopes would cause security problems. Granted, under Ninth Circuit precedent,
Defendants need not prove that there have been past security lapses due to mailroom staff
spending time processing envelopes with artwork on the front. See Casey v. Lewis, 4 F.3d 1516,
1521 (9th Cir. 1993). However, the absence of any evidence that artwork on the front of
envelopes leads to a security problem or has led to one in the past undermines Defendants’
arguments. Mauro, 188 F.3d at 1060 n. 3 (“Although it is not required that prison officials be
able to show that the prohibited materials have actually caused problems in the past, ... their
ability to do so certainly strengthens their case.” (internal citation omitted)). Turner does not give
prison officials a “blank check” to restrict constitutional rights. See Johnson v. California, 543
U.S. 499, 547 (2005) (Thomas, J., dissenting).
Furthermore, pursuant to OAR 291-131-0025(11)(B) and all of the witnesses’ testimony,
“hand-made drawings” may be allowed if they are enclosed in the envelope. Additionally, all of
the witnesses testified that artwork is allowed on the back of envelopes. Therefore, any security
concern that could arise by allowing artwork on the front of envelopes is refuted by the fact that
ODOC allows it in other places. Such an outcome demonstrates that the policy is arbitrary, and is
not rationally related to enhancing prison security.
The Court concludes, therefore, that the incoming mail policy fails to satisfy Turner's
rational relationship factor. Because “the rational relationship factor is the sine qua non,” if a
policy is not rationally related to a legitimate and neutral governmental objective, a court need
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not reach the remaining three factors. Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir.
2005); Morrison v. Hall, 261 F.3d 896, 904 (9th Cir. 2001).
Nevertheless, the Court analyzes the remaining Turner factors. Even if the first factor
were not dispositive, the remaining three Turner factors either similarly favor Plaintiff or are
neutral as to favoring any party. In examining the remaining factors, the Court must bear in mind
that the “real task ... is not balancing these factors, but rather determining whether [Defendants]
show[ ] more than simply a logical relation” between the incoming mail policy and their
legitimate penological goals. Beard, 548 U.S. at 533.
b. Alternative Avenues
The second factor of the Turner test “is whether there are alternative means of exercising
the right that remain open to prison inmates.” Turner, 482 U.S. at 90. “In applying this factor,
‘the right in question must be viewed sensibly and expansively.’” Mauro, 188 F.3d at 1061
(quoting Abbott, 490 U.S. at 417). Thus, the Supreme Court has upheld a prohibition on inmates'
ability to attend the Jumu'ah, a Muslim religious ceremony, because inmates were permitted to
participate in other Muslim religious ceremonies. O'Lone v. Estate of Shabazz, 482 U.S. 342
(1987). The Supreme Court has also upheld a restrictive prisoner visitation policy in part because
“inmates may communicate with persons outside the prison by letter and telephone.” Overton v.
Bazzetta, 539 U.S. 126, 135 (2003). The Court noted that “[a]lternatives to visitation need not be
ideal ...; they need only be available.” Id.
Defendants assert that Plaintiff has the alternative means of sending mail with his
drawing on the back of the envelope or enclosed in the envelope. Plaintiff testified that, in terms
of his self-expression, there is no alternative to sending art on the front of the envelope. He
testified that resources are limited for inmates and that this is an avenue in which he may express
19- FINDINGS OF FACT AND CONCLUSIONS OF LAW

himself without using up precious room on paper reserved for letters. He also explained that it is
important for his rehabilitation.
In balancing the parties’ positions and considering evidence presented at trial, the Court
concludes that this factor is neutral. Defendants’ incoming mail policy limits an important
avenue of communicating art, but inmates retain alternative avenues, including sending art
within the contents of the mailing itself or alternative mailing mediums such as postcards.
c. Effects on staff, inmates, and resources
The third Turner factor “is the impact accommodation of the asserted constitutional right
will have on guards and other inmates, and on the allocation of prison resources generally.”
Turner, 482 U.S. at 90. According to Turner, “courts should be particularly deferential to the
informed discretion of corrections officials” when accommodating a constitutional right that will
have “have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id.
In Turner, the Court found that allowing certain inmate-to-inmate correspondence could
“be exercised only at the cost of significantly less liberty and safety” for inmates and staff
generally and, therefore, the court upheld certain restrictions on such correspondence. Id. at 92–
93. This factor often weighs heavily when courts consider mail policies that restrict potentially
disruptive content, such as depictions or descriptions of violence, escape, or criminal activity,
sexually-explicit materials, and role-playing games, see, e.g., Frost, 197 F.3d at 351–52;
Bahrampour v. Lampert, 356 F.3d 969 (9th Cir. 2004), or where the challenged regulation saves
the prison substantial resources, see, e.g., Overton v. Bazzetta, 539 U.S. 126, 135 (2003).
Here, accommodating envelopes with drawings on the front of the envelopes is unlikely
to have a “significant ripple effect” on inmates and staff. Defendants present no evidence
showing that art placed on the outside of the envelope poses a greater risk than the same art
20- FINDINGS OF FACT AND CONCLUSIONS OF LAW

placed on the inside of the envelope and no evidence showing the effects envelope art has on
staff or prisoners. Because no inmates see or handle mail until it is delivered to them, in their
cell, there is no difference in the number of people who will see art on the front of the envelope
from those who would see that same art on the inside or on the back. In addition, as explained
above, Defendants present no evidence showing that the time or money saved by unconditionally
rejecting all art on the front of envelopes is anything more than de minimis. Thus, the third
Turner factor suggests that the incoming mail policy is not rationally related to legitimate
penological goals.
d. Easy and Obvious Alternatives
The final Turner factor requires the court to “consider ‘whether the existence of easy and
obvious alternatives indicates that the regulation is an exaggerated response by prison officials.’”
Morrison, 261 F.3d at 905 (internal quotation omitted). If a “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.” Turner, 482 U.S. at 91.
Here, several obvious, easy alternatives exist. For example, ODOC could prohibit
artwork on envelopes only if it interfered with mailroom staff members’ ability to see the
sender’s and recipient’s addresses. Or a policy could prescribe a certain portion of the envelope
that must be left blank in order to accommodate mailroom staff members’ needs to write the
bunk number on the envelope. Furthermore, witnesses at trial discussed an impending
technological improvement in the mailroom, whereby staff members will print labels for
incoming mail instead of handwriting inmates’ housing location. These labels may obviate some
of the need for extra blank space on an envelope. This fourth factor favors Plaintiff.
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e. Summary of Turner Factors
In sum, the Court finds that, with regard to the four Turner factors, three of the four favor
Plaintiff and one is neutral. The incoming mail policy blocks a narrowly defined form of
expression—artwork on the front of envelopes—at too great an expense to the First Amendment
rights of inmates and their correspondents. Plaintiff has thus proven by a preponderance of the
evidence that Defendants violated his First Amendment rights.
III.

Injunctive Relief
The parties stipulated that, for the purpose of ordering injunctive relief, Ms. Raths and

Colette Peters, current director of ODOC, are proper defendants in their official capacities. See
Pre-Trial Order, [166]. Ms. Raths and Ms. Peters will be responsible for implementing and
administering any injunctive relief with regard to ODOC’s mail policies that may be ordered by
the Court in this case. Id.
To obtain a permanent injunction, a “plaintiff must demonstrate: (1) that it has suffered
an irreparable injury; (2) that remedies available at law, such as monetary damages, are
inadequate to compensate for that injury; (3) that, considering the balance of hardships between
the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest
would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547
U.S. 388, 391 (2006). “The decision to grant or deny permanent injunctive relief is an act of
equitable discretion by the district court[.]” Id. Where, as here, a plaintiff seeks an injunction
against a state or local government agency, “federal courts must be constantly mindful of the
special delicacy of the adjustment to be preserved between federal equitable power and State
administration of its own law.” Rizzo v. Goode, 423 U.S. 362, 378 (1976) (internal quotation
marks and citation omitted).
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a. Irreparable injury
Plaintiff has demonstrated irreparable harm because the “loss of First Amendment
freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod
v. Burns, 427 U.S. 347, 373 (1976); see also Assoc. Gen. Contractors 1091 of Cal., Inc. v. Coal.
for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991) (“We have stated that an alleged
constitutional infringement will often alone constitute irreparable harm.” (internal quotation
marks, citation, and alterations omitted)).
b. Inadequacy of damages
In cases, like this one, that involve constitutional violations, this factor merges with the
first factor. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (quoting Nelson
v. Nat'l Aeronautics & Space Admin., 530 F.3d 865, 872 (9th Cir. 2008) (“Unlike monetary
injuries, constitutional violations cannot be adequately remedied through damages and therefore
generally constitute irreparable harm.”).
Because Plaintiff has shown that Defendants violated the First Amendment, and because
the loss of First Amendment freedom constitutes irreparable harm, Plaintiff has demonstrated
that monetary damages are inadequate.
c. Balance of equities
The third factor requires the court to balance the equities. “In assessing whether the
plaintiffs have met this burden, the district court has a duty to balance the interests of all parties
and weigh the damage to each.” Stormans, 586 F.3d at 1138 (internal quotation marks, citation,
and alteration omitted). The party seeking a permanent injunction “must satisfy the court that
relief is needed. The necessary determination is that there exists some cognizable danger of
recurrent violation.” United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).
23- FINDINGS OF FACT AND CONCLUSIONS OF LAW

Plaintiff has established that ODOC’s incoming mail policy burdens his First
Amendment rights, as well as the First Amendment rights of other inmates and their
correspondents. Defendants face the possibility of spending a minimal amount of additional time
each day looking more closely at envelopes in order to read the recipient’s address. The
constitutional hardship is far greater than the insignificant potential impact on Defendants' time
and resources.
At trial, Ms. Raths testified that there are no current plans to change ODOC’s incoming
mail policy as to what is allowed on the front of envelopes. There has been no indication from
any of the parties that ODOC will change its policy absent a court-ordered permanent injunction.
Therefore, the Court concludes that the balance of equities tips in favor of granting a permanent
injunction.
d. Public interest
“The public interest inquiry primarily addresses [the] impact on non-parties rather than
parties.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). “When the
reach of an injunction is narrow, limited only to the parties, and has no impact on non-parties, the
public interest will be at most a neutral factor in the analysis rather than one that favors granting
or denying the preliminary injunction.” Stormans, Inc., 586 F.3d at 1138–39 (internal quotation
marks, citation, and alteration omitted). Here, however, the public interest favors entering a
permanent injunction.
As this case deals with ODOC’s incoming mail policy, it affects all members of the
public who wish to communicate with inmates. A permanent injunction enjoining Defendants
from enforcing a blanket ban on artwork on the front of envelopes will permit inmates and nonparty members of the public to more easily and effectively communicate with each other by mail.
24- FINDINGS OF FACT AND CONCLUSIONS OF LAW

No envelope will be rejected solely because it has artwork on it, which will enable mail to reach
inmates more quickly. The parties have not suggested that a permanent injunction will affect any
other non-parties.
e. Scope of injunction
After considering each of the four factors set forth by the Supreme Court in eBay, the
Court concludes that a permanent injunction enjoining the incoming mail policy is warranted.
Before issuing a permanent injunction, however, the Court must consider the Prison Litigation
Reform Act (“PLRA”), 18 U.S.C. § 3626. The PLRA provides:
Prospective relief in any civil action with respect to prison conditions shall extend no
further than necessary to correct the violation of the Federal right of a particular plaintiff
or plaintiffs. The court shall not grant or approve any prospective relief unless the court
finds that such relief is narrowly drawn, extends no further than necessary to correct the
violation of the Federal right, and is the least intrusive means necessary to correct the
violation of the Federal right. The court shall give substantial weight to any adverse
impact on public safety or the operation of a criminal justice system caused by the relief.
18 U.S.C. § 3626(a). An “injunction employs the least intrusive means necessary when it heels
close to the identified violation, and is not overly intrusive and unworkable and would not
require for its enforcement the continuous supervision by the federal court over the conduct of
state officers.” Clement v. Cal. Dep't of Corr., 364 F.3d 1148, 1153 (9th Cir. 2004) (internal
quotation marks, citations, and alterations omitted).
As described in the Conclusion below, the Court will issue a permanent injunction
enjoining Defendants from rejecting or otherwise prohibiting incoming mail due to artwork on
the front of the envelope, unless the art is found to violate other ODOC rules, such as those
against violence. The Court will also require ODOC to provide notice to inmates, informing
them that they are permitted to receive envelopes with artwork on them, as long as the artwork
complies with other applicable ODOC rules. The injunction will address only the incoming
25- FINDINGS OF FACT AND CONCLUSIONS OF LAW

inmate mail policy and does not intrude on any other aspect of ODOC’s administration. The
injunction will not provide for ongoing Court supervision and will not require Defendants to
submit compliance reports, institute trainings, or submit revised policies to the Court for review.
The Court finds, therefore, that such an injunction would be narrowly drawn, extend no further
than necessary to correct the First Amendment violations, and is the least intrusive means
necessary to correct the violation of the federal right. See id. (upholding district court injunction
where injunction did not require court supervision and was only broad enough to enjoin the
unconstitutional policy); see also, Prison Legal News v. Columbia Cnty., 942 F. Supp. 2d 1068,
1090-92 (D. Or. 2013).
IV.

Declaratory Judgment
The Court also grants Plaintiff a declaratory judgment that ODOC’s policy violated his

First Amendment rights. The Declaratory Judgment Act, 28 U.S.C. § 2201, allows individuals to
seek a declaration of the constitutionality of a disputed governmental action. See Duke Power
Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 71 n. 15 (1978). To issue a declaration, the
Court must address two conditions. “First, the court must inquire whether there is a case of actual
controversy within its jurisdiction.” Am. States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir.
1994). Second, “the court must decide whether to exercise that jurisdiction. The statute gives
discretion to courts in deciding whether to entertain declaratory judgments[.]” Id. at 143–44.
The parties agree that Ms. Raths and Ms. Peters, in their official capacities, are properly
named as defendants as to declaratory relief. However, Defendants argue that Mr. Premo and
Ms. Dodson are not liable to Plaintiff because they did not personally participate in the violation
of his constitutional rights when they reviewed and denied his request for administrative review
of his rejected envelope.
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To establish a Section 1983 claim against an individual defendant, a plaintiff must
establish personal participation by the defendant in the alleged constitutional deprivation.
Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
A supervisor may be liable based on his or her personal involvement in the alleged deprivation,
or if there is a sufficient causal connection between the supervisor's alleged wrongful conduct
and the alleged deprivation, Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989), but a
“supervisor is only liable for constitutional violations of his subordinates if the supervisor
participated in or directed the violations, or knew of the violations and failed to act to prevent
them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), citing Ybarra v. Reno Thunderbird
Mobile Home Village, 723 F.2d 675, 680–81 (9th Cir. 1984).
Defendants argue that Section 1983 liability may not be based merely on a plaintiff’s
dissatisfaction with the administrative process or a decision on appeal. Defendants cite cases
from the Ninth Circuit that establish that there is not a “separate constitutional entitlement to a
specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); see
also Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
However, Plaintiff is not merely dissatisfied with the administrative process. Plaintiff
alleges that Mr. Premo and Ms. Dodson knew of the violation of his constitutional rights and
failed to act. The evidence shows that Mr. Premo and Ms. Dodson were aware of the mailroom
staff members’ conduct in rejecting Plaintiff’s letter. Both Mr. Premo and Ms. Dodson rejected
Plaintiff’s attempt to appeal based on the unconstitutional incoming mail rule. Pl.’s Ex. 5, 7. Mr.
Premo and Ms. Dodson, as the Superintendent of OSP and the OSP Grievance Coordinator’s
supervisor, respectively, could have acted to prevent the violation of Plaintiff’s rights. Therefore,

27- FINDINGS OF FACT AND CONCLUSIONS OF LAW

the evidence shows that Mr. Premo and Ms. Dodson’s denial of Plaintiff’s appeal constituted a
direct violation of his constitutional rights.
CONCLUSION
Defendants violated Plaintiff’s First Amendment rights. Plaintiff is entitled to declaratory
judgment and a permanent injunction enjoining Defendants from rejecting or otherwise
prohibiting incoming mail for containing artwork on the front of envelopes. Plaintiff is also
entitled to an order requiring Defendants to inform inmates that they are permitted to receive
letters with artwork on the front of envelopes.
Plaintiff shall prepare a judgment in accordance with these Findings of Fact and
Conclusions of Law. After conferring with Defendants, Plaintiff shall submit the proposed
judgment to the Court for review within 30 days of the date below. If the parties cannot agree on
a judgment, Plaintiff shall notify the Court, which will then schedule a telephone conference with
counsel.
IT IS SO ORDERED.

Dated this ______ day of ____________________, 2015.

MARCO A. HERNÁNDEZ
United States District Judge

28- FINDINGS OF FACT AND CONCLUSIONS OF LAW