Grenning v. Klemme et al

Filing 116

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, granting 99 Motion for Summary Judgment. Plaintiff's claims against Defendants Paul Barker, Bonnie Munden, Ronald Doty and Thomas Orth are dismissed with prejudice. Signed by Senior Judge Justin L. Quackenbush. (LR, Case Administrator)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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NEIL GRENNING,

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Plaintiff,
vs.
RISA A. KLEMME, et al.,

NO. CV-12-0600-JLQ
ORDER GRANTING DEFENDANTS'
MOTION FOR SUMMARY
JUDGMENT

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Defendants.
BEFORE THE COURT is Defendants' Motion for Summary Judgment (ECF No.

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99). Plaintiff is represented by attorney Jeffrey Finer, appointed by the court. The

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Defendants are represented by Timothy Feulner, Assistant Attorney General.

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On May 7, 2015, four of the Defendants in this matter: Paul Barker, Ronald Doty,

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Bonnie Munden, and Thomas Orth, who work in the Department of Correction’s Airway

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Heights Corrections Center (“DOC”) mailroom (“mailroom Defendants”), filed the

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Motion for Summary Judgment (ECF No. 99). Plaintiff Neil Grenning, a prisoner at

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Airway Heights, filed a Response in Opposition on June 8, 2015 (ECF No. 108), to which

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the Defendants filed a Reply on June 19, 2015 (ECF No. 113). Grenning is serving a

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1392-month (116 years) sentence for numerous 2004 Washington state child sex abuse

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conviction. ECF No. 57, at ¶ 2; Judgment and Sentencing, Pierce County Cause No. 02-

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1-01106-5. This matter, involving the screening of the Plaintiff's mail, was submitted

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without oral argument.

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"While prisoners have the right to send and receive mail, prison officials have a

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legitimate interest in monitoring that mail for security reasons." Ortiz v. Fort Dodge

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Correctional Facility, 368 F.3d 1024, 1026 (8th Cir. 2004). Such regulations cannot be

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arbitrarily enforced, or used as a pretext to retaliate against inmates. See Turner v. Safley,

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482 U.S. 78, 89-90 (1987). However, "when a prison regulation impinges on inmates'
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constitutional rights, the regulation is valid if it is reasonably related to legitimate

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penological interests." Id. at 89. Here, the court finds that the Defendants' interpretation

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of the 2012 mail policy was rationally related to the legitimate penological interests of

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security and resource conservation. Grenning has not shown that the mail policy was used

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as a pretext to retaliate against him in violation of the First Amendment.
I. History

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Grenning claims that on December 17, 2010, Defendant Craig Harrington

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forwarded to Defendant Jack Richardson a portion of an outgoing email Grenning sent

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his mother that was critical of Richardson. On December 23, 2010, Richardson issued

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Grenning an infraction based on the content of that email, which was overturned on an

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internal appeal. On December 25, 2010, Grenning filed a staff misconduct grievance

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against Richardson and Harrington for wrongfully issuing the citation, which was denied

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on January 20, 2011.

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Grenning contends that beginning in March of 2012, the mailroom Defendants

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retaliated against him for filing the grievance by restricting incoming correspondence

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from his family containing contents written in the Norwegian language:

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Date of rejection
March 5, 2012

Rejected by
Ronald Doty

March 23, 2012

Paul Barker

May 3, 2012

Paul Barker

May 24, 2012

Paul Barker

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Reason for rejection
One page of
correspondence part in a
language other than
English.
One page of
correspondence part in a
language other than
English.
Letter mostly in English
but parts in a foreign
language.
Correspondence in a
foreign language when
sender has previously
correcponded [sic] in
English.

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July 11, 2012

Ronald Doty

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Two pages of
correspondence in
language other than
English.

Defendant Thomas Orth is the Mailroom Sergeant and is named for his role in overseeing
the mailroom operations. Defendant Bonnie Munden was not involved in any of the mail
rejections at issue in this case.
The 2012 DOC mail policy defined unauthorized inmate mail as: “Mail in a foreign
language with contents not understood by the inspecting staff, when reasonable efforts to
have the mail interpreted have been unsuccessful.” The policy allowed “[c]orrespondence
up to 10 pages in length” to be “sent for translation services per the available contract at
the discretion of the Mailroom Supervisor.” ECF No. 100-1, DOC Mail policy 450.100:
Unauthorized Mail, at ¶ 11.
Grenning was informed during these rejections that the DOC interpreted the mail
policy as prohibiting letters containing some English and some foreign language. For
instance, on April 8, 2012 Security Operations Manager Michael Watkins wrote to
Grenning explaining:
When the writer chooses to use another language and has clearly
demonstrated the ability to use English within the same letter, it becomes an
unreasonable effort to translate the use of the second language within that
letter ... [Additionally,] when two languages are being used within the same
letter, it can give the reviewer the impression that an unstated message is
being transmitted between the writer and the receiver. This can lead the
reviewer to believe the mail is ‘in code.’
ECF No. 100-1; April 8, 2012 letter from Michael Watkins.
Another letter with the same "mixed language" explanation was sent to Grenning
on October 29, 2012. Pursuant to the mail policy, inmates are “responsible for informing
their correspondents of the rules governing offender mail.” It is unclear whether
Grenning ever informed his family of the policy. Grenning’s family continued sending
him letters written entirely in Norwegian, which were allegedly translated and delivered
successfully. ECF No. 100-1, Decl. of Thomas Orth, ¶ 18.
In 2014, the DOC changed the mail policy to expressly prohibit mail written
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partially in a foreign language when the author has demonstrated the ability to correspond

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in English. Defendant Orth maintains that:

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Regardless of the changes in the language of the policy, the practice in 2012
at AHCC was the same as it is today. Correspondence that was completely in
a foreign language was sent for translation while correspondence that was
written partially in English and partially in a foreign language was usually
rejected. Additionally, correspondence by individuals who had demonstrated
an ability to correspond in English was restricted.
ECF No. 100-1, Decl. of Thomas Orth, ¶ 9.

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II. Legal Standard
A. Summary Judgment
The purpose of summary judgment is to avoid unnecessary trials when there is no
dispute as to the material facts before the court. Nw. Motorcycle Ass’n v. U.S. Dep’t. of
Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). The moving party is entitled to summary
judgment when, viewing the evidence and the inferences arising therefrom in the light
most favorable to the nonmoving party, there are no genuine issues of material fact in
dispute. FED. R. CIV. P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
Once the moving party has carried the burden, the opponent must show specific facts
establishing there is a genuine issue for trial. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1975).
B. Qualified Immunity
Determining whether an official is entitled to qualified immunity requires a twopart analysis. See Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled on other grounds
by Pearson v. Callahan, 555 U.S. 223 (2009). The first inquiry is whether plaintiff’s
allegations, if true, establish a constitutional violation. Saucier, 533 U.S., at 201. Second,
a determination is made whether the constitutional right was “clearly established.” Id. A
right is clearly establish if, at the time of the alleged act in the Ninth Circuit, “‘it would
be clear to a reasonable [prison official] that his conduct was unlawful in situation he
confronted’ ... or whether the state of the law [at the time of the alleged violation] gave
‘fair warning’ to [him] that [his] conduct was unconstitutional.” Clement v. Gomez, 298
F.3d 898, 906 (9th Cir. 2002) quoting Saucier, 533 U.S. at 202.
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III. Analysis

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A. Unjustified Interference with Mail

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Prisoners have a First Amendment right to receive mail; thus, “any limitation must

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be reasonably related to a legitimate penological interest.” Crofton v. Roe, 170 F.3d 957,

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959 (9th Cir. 1999). There are four factors in determining the reasonableness of a prison

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regulation that infringes on a constitutional right:

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(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; (3) the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally and (4) the existence of ready
alternatives that fully accommodates the prisoner’s rights at a de minimus
cost to valid penological interests.
Turner v. Safley, 482 U.S. 78, 89-90 (1987).
The DOC interpreted its 2012 mail policy as prohibiting letters written partly in
English and partly in a foreign language to prevent coded messages and to conserve
resources by only translating letters sent by people who genuinely cannot write in
English. Courts have held these are legitimate penological interests. See, O’Keefe v. Van
Boening, 82 F.3d 322, 326 (9th Cir. 1996).
It is undisputed that Grenning had alternative means of communicating with his
parents other than writing letters containing Norwegian. He is fluent in the English
language. Grenning admits that, despite some limitations, both his parents are able to
speak and write in English and Norwegian. ECF No. 100-1, Depo. of Neil Grenning, at
19. Rather than out of necessity, Grenning’s parents switched to Norwegian when trying
to convey a concept that has no direct translation in English. Id. Courts have upheld
regulations that restrict inmate mail written in foreign languages when the author is
capable of writing in English, utilizing a translator, or calling the inmate. See Spitsyn v.
Morgan, 2008 WL 714095, at *5 (W.D. Wash., Mar. 14, 2008) (unreported); Sisneros v.
Nix, 884 F. Supp. 1313, 1332 (S.D. Iowa, Mar. 6, 1995).
Prisons must make some effort to accommodate inmates who are unable to
correspond with their family in English. Kikumura v. Turner, 28 F.3d 592 (7th Cir. 1994);
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Ramos v. Lamm, 639 F.2d 559, 581 (10th Cir. 1980). If translation services are too

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expensive or not available, then a prison is generally permitted to restrict foreign

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language letters. Spitsyn v. Morgan, 2008 WL 714095 (W.D. Wash., Mar. 14, 2008)

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(unreported). Grenning argues Defendants should have accommodated him by translating

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the letters to him for screening regardless of whether they were fully or partially in

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Norwegian. Language Fusion, an organization with whom the DOC contracts for

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translation services, charges $23 to translate the first page and $7 for each subsequent

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page, regardless of the number of foreign words on each page. Thus, there would have

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been some cost associated with accommodating Grenning. DOC did use Language

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Fusion to translate Grenning’s mail written entirely in Norwegian.
When inmates cannot correspond with their friends and family in English, courts

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have found that ready alternatives exist when the inmate identifies services willing to

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translate for free or at low cost. Thongvanh v. Thalacker, 17 F.3d 256, 259 (10th Cir.

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1994). Thus, “a restriction is likely to be constitutionally permissible where the

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alternatives to the restriction are costly and not immediately apparent.” Kikumura, 28

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F.3d at 599. Besides Language Fusion, which is not free or low cost, Grenning submitted

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evidence that the Royal Norwegian Consulate might have been able to translate the letters

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at an unknown cost. ECF No. 88-2; July 3, 2012 letter from Kim Nesselquist.

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Considering the Turner factors, the court finds that Defendants' interpretation and

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use of the 2012 mail policy was constitutional. Prohibiting letters containing both English

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and a foreign language is rationally related to prison security and conserving resources.

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Grenning had numerous other ways of corresponding with his family, both in English and

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Norwegian. Therefore, there was not a de facto ban on all Grenning’s foreign mail, only a

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ban on mail containing multiple languages, which DOC staff informed Grenning about at

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least twice. Defendants could have translated these letters, but they made the reasonable

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decision to save those DOC resources for people who genuinely cannot correspond in

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English. It was Grenning’s responsibility to inform his family of the policy decision, and

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he did not. Grenning has not established unjust interference with mail.
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B. Retaliation

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Under the First Amendment, prison officials may not retaliate against prisoners for

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initiating litigation or filing administrative grievances. Rhodes v. Robinson, 408 F.3d 559,

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568 (9th Cir. 2005). A viable First Amendment retaliation claims has five elements: (1) an

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assertion that a state actor took some adverse action against the inmate (2) because of (3)

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the inmate’s protected conduct and that the adverse action (4) chilled the inmate’s

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exercise of his First Amendment rights and (5) did not reasonably advance a legitimate

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penological purpose. Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir. 2009) quoting

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Rhodes, 408 F.3d at 567-68.

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Grenning argues that the mail policy, even if facially valid, was used as a pretext

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by Defendants to retaliate against him for having filed a grievance against Harrington and

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Richardson. As evidence, Grenning points to his mother’s declaration, wherein she

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asserts that she and other friends and family members had written to Grenning using both

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English and Norwegian for several years, but that the rejections only began after the

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“incident with Sgt. Richardson.” ECF No. 110-1, Decl. of Cheryl Grenning, at ¶¶ 3-5.

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Grenning has also provided declarations from inmates Jeremy Williams (ECF No. 111)

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and Stephen Kerr (ECF No. 112) who attest that they received foreign language mail for

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years without restrictions. Defendants respond that the AHCC mailroom processed

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122,968 letters in 2012 and was thus unable to catch every violation.

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To prove retaliation, the plaintiff “must initially show that the protected conduct

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was a ‘substantial’ or ‘motivating’ factor in the defendant’s decision.” Soranno’s Gasco,

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Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989) quoting Mt. Healthy City School

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Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 287 (1977). The burden then shifts to

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defendants to prove “by a preponderance of the evidence that they would have reached

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the same decision in the absence of the protected conduct.” Id. at 1315. “[T]iming can be

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considered as circumstantial evidence of retaliatory intent.” Pratt v. Rowland, 65 F.3d

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802, 808 (9th Cir. 1995). However, “[t]he mere fact that restrictions on plaintiff’s mail ...

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followed his filing of grievances or other protected activity does not suffice to
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demonstrate retaliatory intent.” Barstad v. Department of Corrections, 2015 WL

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1867082, at *26 (W.D. Wash., April 23, 2015).

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Grenning’s evidence of retaliation is largely that of just timing, and even that is

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attenuated because over a year elapsed between his protected speech (December 25,

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2010) and the first mail restriction (March 5, 2012). Additionally, there is no evidence

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connecting Richardson or Harrington to any of the mailroom Defendants regarding the

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mail restrictions, only Grenning’s assertion that there exists a general “campaign of

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harassment” promulgated by DOC staff against him.

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The Declarations by Williams and Kerr do provide some support for a claim that

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Grenning was treated differently. However, Williams contends that he was able to receive

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letters containing English and Spanish, which Defendants explain is typical because

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“AHCC has staff on site that can translate Spanish” and thus Spanish mail is treated more

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leniently. ECF No. 114 at ¶ 5.

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Kerr, on the other hand, contends that he received correspondence in several

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foreign languages and has never had any rejected. ECF No. 112, at ¶ 4. However Kerr

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does not specify how many, or if any, letters contained both English and a foreign

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language, which is the key point. Nevertheless, this, along with Cheryl Grenning’s

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Declaration, might suggest that Grenning was treated differently.

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The court finds that the record does not establish a prima facie showing that the

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grievance was a substantial or motivating factor behind the mail rejections. The timing is

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too attenuated. The protected speech and the restrictions involve different Defendants.

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DOC staff twice told Grenning why his letters were being restricted and instructed him

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how to fix it - this demonstrates Defendants were attempting to help Grenning correct the

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rejections, not find ways to retaliate. Indeed, Defendants continued to translate his letters

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written entirely in Norwegian. While others inmates allegedly received letters that

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violated the mail policy, Defendants explain that the volume of incoming mail inevitably

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leads to some mistakes. These undisputed facts do not paint a picture of retaliation, but

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rather of Grenning not following mail regulations, which were expressly made clear to
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him multiple times. Grenning has not established retaliation.
IV. Conclusion

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The court finds that Defendants are entitled to Summary Judgment on Grenning’s

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First Amendment claims regarding the rejection of letters written partially in Norwegian

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and partially in English. Defendants are entitled to qualified immunity as a matter of law

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because Grenning has not sufficiently established the violation of a clearly established

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constitutional right on either his unjust interference with mail or retaliation claims.

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IT IS HEREBY ORDERED:

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1. Defendants' Barker, Doty, Munden, and Orth Motion for Summary Judgment

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(ECF No. 99) is GRANTED.
2. Plaintiff's claims against Defendants Paul Barker, Bonnie Munden, Ronald Doty,
and Thomas Orth are dismissed with prejudice.
3. Plaintiff's claims against Defendants Jack Richardson and Craig Harrington
remain set for trial on August 17, 2015.
IT IS SO ORDERED. The Clerk is directed to enter this Order and forward a
copy to Plaintiff, counsel for Plaintiff, and Defendants.
Dated this 6th day of July, 2015.
s/ Justin L. Quackenbush
JUSTIN L. QUACKENBUSH
SENIOR UNITED STATES DISTRICT JUDGE

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