Burton v. Schneider et al

Filing 34

ORDER ADOPTING REPORT AND RECOMMENDATIONS by Judge Benjamin H. Settle re 32 Objections to Report and Recommendation filed by Lonnie Burton. **10 PAGE(S), PRINT ALL**(Lonnie Burton, Prisoner ID: 978598)(TG)

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1 2 3 4 5 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON AT TACOMA 6 7 LONNIE L. BURTON, 8 9 10 CASE NO. C15-5862 BHS Plaintiff, ORDER ADOPTING REPORT AND RECOMMENDATION v. TRACY SCHNEIDER, et al., 11 Defendants. 12 13 This matter comes before the Court on the Report and Recommendation (“R&R”) 14 of the Honorable J. Richard Creatura, United States Magistrate Judge (Dkt. 31), and 15 Plaintiff Lonnie Burton’s (“Plaintiff”) objections to the R&R (Dkt. 32). 16 I. BACKGROUND 17 Plaintiff, an inmate, alleges his First and Fourteenth Amendment rights were 18 violated when Defendants rejected his incoming and outgoing mail at Clallam Bay 19 Corrections Center (“prison”) because the mailings contained sexually explicit material 20 and third party correspondence. Dkt. 17. 21 On September 8, 2016, Plaintiff filed a motion for summary judgment. Dkt. 22. In 22 support of his motion, Plaintiff filed a declaration. Dkt. 22-1. On September 12, 2016, in ORDER - 1 1 opposition to Plaintiff’s motion, Defendants filed a cross-motion for summary judgment. 2 Dkts. 23, 28. In support of their motion, Defendants submitted the declarations of 3 Defendant Gonzalez, Rebecca Citrak, and Tara Hosler. Dkts. 24, 25, 26. On September 4 22, 2016, Plaintiff responded. Dkts. 27, 29. On October 7, 2016, Defendants replied. Dkt. 5 30. 6 On November 29, 2016, Judge Creatura entered his R&R, recommending that the 7 Defendant’s cross-motion for summary judgment be granted, that Plaintiff’s motion for 8 summary judgment be denied, and that the case be closed. Dkt. 31. On December 12, 9 2016, Plaintiff objected to the R&R. Dkt. 32. On December 23, Defendants responded to 10 the objections. Dkt. 33. 11 II. DISCUSSION 12 The district judge must determine de novo any part of the magistrate judge’s 13 disposition that has been properly objected to. The district judge may accept, reject, or 14 modify the recommended disposition; receive further evidence; or return the matter to the 15 magistrate judge with instructions. Fed. R. Civ. P. 72(b)(3). 16 Plaintiff’s objections are five-fold. First, he claims that R&R improperly construes 17 disputed facts in favor of Defendants. Second, he claims that the R&R wrongly concludes 18 that his incoming mail was lawfully rejected. Third, he claims that the R&R wrongly 19 concludes that the prison’s outgoing mail restrictions were lawful. Fourth, he claims that 20 the R&R wrongly concludes that the photos in his incoming mail were sexually explicit 21 under the definition set forth in the prison’s policies. Fifth, he claims that the R&R 22 wrongly concludes that his due process rights were not violated. ORDER - 2 1 A. First Objection: Summary Judgment Standard 2 Plaintiff claims that the R&R violates the summary judgment standard by 3 construing disputes of fact in favor of Defendants. Dkt. 32 at 2–3. On summary 4 judgment, all facts and reasonable inferences drawn therefrom must be construed in the 5 light most favorable to the nonmoving party. Furnace v. Sullivan, 705 F.3d 1021, 1026 6 (9th Cir. 2013) (citing Torres v. City of Madera, 648 F.3d 1119, 1123 (9th Cir. 2011)). 7 To support this objection, Plaintiff first argues that Judge Creatura improperly 8 viewed the nude photos of a buttocks received by Plaintiff as “sexually explicit” under 9 DOC Policy 450.100. Dkt. 32 at 3. This prison policy prohibits mail that “[c]ontains 10 sexually explicit material as defined in WAC 137-48-020 and/or references sexually 11 explicit behavior.” Dkt. 24-1. In turn, WAC 137-48-020 has defined “sexually explicit 12 materials” as follows: 13 14 15 (13) “Sexually explicit materials” consist of any item displaying, portraying, depicting, or describing: (a) Nudity, which includes exposed/visible (in whole or part, including under or through translucent/thin materials providing intimate physical detail) genitals/genitalia, anus, and/or female/transgender breast nipple(s). . . 16 WAC 137-48-020 (emphasis added). The emails implicated under this argument are 17 photographs of a nude buttocks. As Judge Creatura noted, “[t]he undisputed evidence 18 [including Plaintiff’s complaint] shows that the message contained an image of a 19 completely nude man viewed from behind.” Dkt. 17 at 16, Dkt. 22 at 17–18, Dkt. 24 at 9. 20 Under these facts, there can be no genuine dispute over the nude photo’s qualification as 21 “sexually explicit material” under DOC Policy 450.100. 22 ORDER - 3 1 Plaintiff next argues that it “is a hotly-contested factual statement” that “the 2 restriction of third party correspondence protects the public safety by ensuring that the 3 DOC can identify the true sender and recipient of the mail.” Dkt. 32 at 3–4 (quoting Dkt. 4 31 at 2). Plaintiff argues that this is a dispute of fact because his mail included the names 5 of the third party senders, and their identities could therefore be ascertained. But this is 6 insufficient to create a genuine dispute of fact, let alone a material one. See Fed. R. Civ. 7 P. 56(a). There is evidence on the record to suggest that generally, third party 8 correspondence can create a public danger by preventing prisons from identifying the true 9 senders and recipients of mail. Dkt. 24 at 3. In contrast, there is no evidence on the record 10 that contradicts this proposition. Therefore, it was proper for Judge Creatura to conclude 11 that “defendants have shown that the restriction of third party correspondence protects 12 public safety by ensuring that the DOC can identify the true sender and recipient of the 13 mail.” Dkt. 31 at 2. Moreover, as Judge Creatura noted, “the appropriate inquiry is 14 ‘whether the defendants’ judgment was ‘rational,’ that is, whether the defendants might 15 reasonably have thought that the policy would advance its interests.’” Dkt. 31 at 10 16 (quoting Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999)). That Plaintiff’s mail 17 included the third party senders’ true names is immaterial to an analysis on the overall 18 reasonableness of the restriction at issue. 19 Plaintiff also argues that it was error to rely on the declaration of Defendant 20 Gonzalez “to characterize the May 12, 2015, mail rejection as ‘email conversation 21 between [Plaintiff] and a third party.’” Dkt. 32 at 4 (quoting Dkt. 31 at 7). However, the 22 declaration included a letter written by Defendant describing that, in the May 12 ORDER - 4 1 correspondence, “[a] friend of mine had sent me some emails from another person that 2 were intended for me.” Dkt. 24-1 at 61. Accordingly, there is no genuine dispute that the 3 email in question included third party correspondence. 4 Finally, although Plaintiff states that he never received responses on certain 5 appeals, see Dkt. 32 at 4 (citing Dkt. 22-1 at 2–4), he nonetheless admits to receiving 6 notices on his JPAY account stating that those appeals were rejected. Dkt. 29-1. That 7 Plaintiff did not understand how the “ID numbers” from those notices corresponded to 8 his numerous appeals does not create a genuine dispute on whether (1) his appeals were 9 reviewed, (2) he received notice on the appeal rejections, or (3) he received due process. 10 Therefore, Plaintiff has failed to show that the R&R wrongly construed a genuine dispute 11 of fact in favor of Defendants. 12 B. Second Objection: Incoming Mail Restrictions 13 Plaintiff contends that the R&R wrongly concludes that the prison has “‘a strong 14 interest in rejecting third party mail’ and that doing so promotes ‘the protection of public 15 safety and security.’” Dkt. 32 at 5 (quoting Dkt. 31 at 9–10). However, all of Plaintiff’s 16 arguments are specific to the particular messages that he complains should not have been 17 rejected. See Dkt. 32 at 5–8. It appears that Plaintiff fails to understand that the applicable 18 constitutional test is not whether his mail, in this specific instance, creates a danger to the 19 public. Instead, the relevant legal test is whether the mail policy that led to the restriction 20 of Plaintiff’s correspondence is “reasonably related to legitimate penological interests.” 21 Turner v. Safley, 482 U.S. 78, 89 (1987). That third party correspondence can be used to 22 prevent prisons from identifying the true senders and recipients of mail is well-explained ORDER - 5 1 in the declaration of Defendant Gonzalez. Dkt. 24 at 3. Plaintiff may be correct that his 2 mail presented no danger because it contained the true identities of the third party 3 senders. However, this fact is immaterial—it does not lessen the danger that third party 4 correspondence can be used by those who would omit or provide false identities. Judge 5 Creatura properly analyzed the prison’s mail policy under each of the factors of the 6 Turner test, including the prison resources involved in checking each email to verify third 7 party senders’ identification, and properly concluded that the prison’s general restriction 8 on third party mail does not violate the First Amendment. See Dkt. 31 at 9–12. 9 C. 10 Third Objection: Outgoing Mail Restrictions Plaintiff argues that Judge Creatura used “the wrong legal standard” in analyzing 11 the prison’s restriction on outgoing mail intended for third parties. Dkt. 32 at 8. However, 12 Judge Creatura clearly employed the appropriate “generally necessary” test under 13 Procunier v. Martinez, 416 U.S. 396 (1974) and Thornburgh v. Abbott, 490 U.S. 401 14 (1989). Dkt. 31 at 12–13. 15 Plaintiff also claims that the prison’s identified interest in restricting outgoing 16 third party communications is no more than a “theoretical purpose” that does not qualify 17 under “the substantial governmental interests of security, order, and rehabilitation.” 18 Martinez, 416 U.S. at 413. However, the authority that Plaintiff provides in support of his 19 position directly contradicts this argument. See Lucas v. Scully, 71 N.Y.2d 399 (1988) 20 (stating that prisons may lawfully prohibit outgoing mail that is not intended for the 21 addressee). Evidence shows “that both incoming and outgoing third party mail inhibits 22 the ability of the DOC to determine who offenders are corresponding with, and that such ORDER - 6 1 information is important to public safety and security of the prison.” Dkt. 31 at 13 (citing 2 Dkt. 24). While Plaintiff claims that the message in this particular case accurately 3 identified the intended third party recipients and therefore posed no danger, this does not 4 mean that the regulation against third party correspondence is not “generally necessary.” 5 Reviewing the record and the reasoning set forth in the R&R, the Court agrees with Judge 6 Creatura’s conclusion that “Defendants have provided sufficient justification for the 7 rejection of Plaintiff’s outgoing mail and Plaintiff has not presented any evidence to the 8 contrary, showing an issue of material fact.” Dkt. 31 at 14. 9 D. Fourth Objection: Nude Photographs of a Buttocks as “Sexually Explicit” Materials 10 The Court has already addressed Plaintiff’s contention that the photograph he 11 received of a man’s nude buttocks was not “sexually explicit” within the meaning of 12 DOC policy 450.100. WAC 137-48-020(13), which DOC Policy 450.1000 incorporates, 13 defines “sexually explicit materials” as any image including “[n]udity, which includes 14 exposed/visible . . . genitals/genitalia, anus, and/or female/transgender breast nipple(s) . . 15 . .” 16 There is no dispute that the image at issue was a photograph from behind of a 17 completely nude man. Just because Plaintiff asserts in his complaint, summary judgment, 18 and other filings that the photo was not “nudity” or “sexually explicit” does not make it 19 so. Plaintiff’s argument hinges entirely on the distinction he draws between an image of a 20 “buttocks” and an image of an “anus,” see Dkt. 32 at 12, but this argument is unavailing. 21 22 ORDER - 7 1 First, despite his arguments otherwise, Plaintiff has not established that 2 “genitals/genitalia, anus, and/or female/transgender breast nipple(s)” were intended as an 3 exhaustive list of body parts that, when exposed, constitute “nudity” under WAC 137-484 020(13)(a). When WAC 137-48-020(13)(a) provides the general term “nudity” followed 5 by the term “including,” the subsequent list of body parts is best interpreted under the 6 cannon of ejusdem generis, not that of expressio unius est exclusio alterius. State v. 7 Flores, 164 Wn.2d 1, 13, 186 P.3d 1038, 1044 (2008) (“The ejusdem generis rule is 8 generally applied to general and specific words clearly associated in the same sentence in 9 a pattern such as ‘[specific], [specific], or [general]’ or ‘[general], including [specific] 10 and [specific].”) (quotation omitted). See e.g., Lewis Cty. v. W. Washington Growth 11 Mgmt. Hearings Bd., 157 Wn.2d 488, 516 (2006); State v. Bernard, 121 Wn. App. 1005 12 (2004) (unpublished). Therefore, while the terms “genitals/genitalia, anus, and/or 13 female/transgender breast nipple(s)” are critical in guiding the interpretation of the more 14 general term “nudity,” they do not create an exclusive list of nude body parts that must be 15 visible in the image to qualify as “sexually explicit materials” under WAC 137-4816 020(13)(a). 17 Second, Plaintiff’s restrictive interpretation of WAC 137-48-020(13)(a) would 18 necessarily lead to absurd results in its implementation, and such interpretations are to be 19 avoided. See State v. Ervin, 169 Wn.2d 815, 823–24 (2010) (“[Courts] presume the 20 legislature does not intend absurd results and, where possible, interpret ambiguous 21 language to avoid such absurdity.”). For instance, under Plaintiff’s interpretation, an 22 image that depicts an entirely nude person with nipples and genitalia censored in the most ORDER - 8 1 minimal way could not be interpreted as “nudity” or “sexually explicit material,” despite 2 the fact that such an image would clearly reveal the anatomy of its subject in intimate 3 detail and implicate the exact same security concerns as an uncensored version. 4 Finally, the appropriate test is not whether prison officials made a mistake in 5 applying their own policies, but rather, whether they acted unreasonably in doing so. See 6 Clark v. Mason, 2007 WL 2417154, at *2 (W.D. Wash. Aug. 20, 2007); Hargis v. Foster, 7 312 F.3d 404, 410 (9th Cir. 2002). In light of the clear language in WAC 137-488 020(13)(a) defining images of an “anus” as “nudity,” no rational juror could conclude 9 that the prison officials acted unreasonably in applying this restriction to an image of a 10 nude “buttocks.” Accordingly, Plaintiff’s claim regarding his correspondence containing 11 the nude image of a man’s buttocks fails as a matter of law. 12 E. Five Objection: Due Process to an Appeal 13 Finally, Plaintiff argues that Judge Creatura erred in finding that (1) Plaintiff 14 received responses to his appeals, and (2) the restriction on his correspondence was 15 reviewed on three levels, as opposed to two only. Dkt. 32 at 14–15. The Court has 16 already addressed this issue in the context of Plaintiff’s first objection. The evidence cited 17 by Judge Creatura clearly sets out that Plaintiff received three levels of review on the 18 restriction of his correspondence and that he received notice of the decisions. Dkt. 29-1. 19 Plaintiff’s assertions otherwise, unsupported by any actual evidence, are insufficient to 20 create a genuine dispute of material fact—especially in light of his sworn statement 21 establishing that he did receive notice of the denial of his appeals. See Dkt. 29-1. 22 ORDER - 9 1 2 III. ORDER The Court having considered the R&R, Plaintiff’s objections, and the remaining 3 record, does hereby find and order as follows: 4 (1) The R&R is ADOPTED; and 5 (2) This action is DISMISSED. 6 Dated this 8th day of February, 2017. A 7 8 BENJAMIN H. SETTLE United States District Judge 9 10 11 12 13 14 15 16 17 18 19 20 21 22 ORDER - 10

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