/
(

Flt.=D IN THE

.

1

uS DISTRICT COURT
EASTE~N "DISTRICT OFWASHINGTON

MAY t ~ 1996

2

JAMESR. Li'RSE.N. CLBRK

3

_ _----oePIJTY

4

5
6
7

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF WASHINGTON

8
9

)

10
11

)

Plaintiff,
v.

12
13

JAMES SPALDING, et al.,

18
19
20
21
22

23

24

27

CS-94-208-CI

ORDER GRANTING IN PART
PLAINTIFF'S CLAIM FOR
INJUNCTIVE RELIEF AND
GRANTING JUDGMENT FOR
DEFENDANTS ON REMAINING
<;:LAIMS

--------------)
This matter is before the court for disposition after a bench
trial on March 11, 1996.

Plaintiff is proceeding pro se; Assistant

Attorney General Penelope Nerup represents Defendants.

The parties

have consented to proceed before a magistrate judge.
22. )

the

(Ct. Rec.

After a review of the file, the legal memoranda submitted by
parties,

proceedings,

and

having

in

mind

the court concludes

the

trial

testimony

and

judgment shall be entered for

Plaintiff in part with respect to his claim for injunctive relief
on one claim and for Defendants on all remaining claims.

25

26

)
)
)
)
)

Defendants.

16
17

No.

)

14
15

)
)

PROCEDURAL HISTORY
On July 11,

1994,

Plaintiff,

an inmate at Washington State

Penitentiary (WSP) , filed a complaint alleging Defendants violated

28
ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF.
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 1

EXl-HB .r

1

the First Amendment '

2

failed to forward certain items of his mail.

3

Defendants acted unconstitutionally when they (1) failed to forward

4

his second class mail;

5

International

6

undeliverable certain magazines which were gift subscriptions; and

7

(4) rejected as undeliverable certain applications for educational

8

and financial aid. These acts occurred between November 14, 1993

(2)

Plaintiff alleges

rejected as undeliverable an Amnesty

catalog addressed to

9. and February 9, 1994.

L

to the Constitution when they rejected or.

(Tr. at 115.)

Plaintiff;

(3)

rejected

as

Defendants include Tom Rolfs,

10

Director of Prisons; James Spalding, former Director of Prisons;

11

Tana

12

Superintendent at WSP and Supervisor of the Mailroom; and Dennis

13

Potts, Mailroom Supervisor at WSP. Plaintiff seeks compensatory and

14

punitive damages and declaratory and injunctive relief.'

Wood,

Superintendent

at

WSP;

Ron

Van Boening,

Associate

15
'Plaintiff also alleges a claim under the Fourteenth Amendment

16
17

to the Constitution.

18

taking of property not defined as contraband by the institution,

19

due process is not at issue.

20

608,

21

discussion to the First Amendment claims.

610-11

However, since his claims involve the actual

(7th Cir. 1987).

oSizemore

~

Therefore,

y

Eilliford, 829 F.2d

the court confines its

22

'At the outset, the court notes Plaintiff's closing argument,

23

submitted as a written memorandum, includes several documents not

24

admitted as exhibits during trial.

25

considered.

26

assigned to each document at trial.

27
28

These documents will not be

Admitted exhibits will be referenced by the number

Plaintiff's closing argument also contains claims not raised
at trial.

(Ct. Rec. 58 and 59.) To the extent any claims were not

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 2

1

On July 25, 1995, the court referred the matter to the Federal.

2

Judicial Mediator, and stayed the proceedings pending the outcome

3

of mediation efforts.

4

November 20, 1995, and the matter proceeded to trial

5

undersigned after waiver of the right to a jury trial.'

6

41.)

7

form of written memoranda.

.

Rec.

25 . )

The stay was )ifted on
before the
(Ct. Rec.

Both parties have submitted their closing arguments in the

8

"

(Ct.

(Ct. Rec. 59 and 64.)

OBJECTIONS TO EXHIBITS

9

Post-trial, Defendants objected to certain Exhibits admitted

10

at trial, or submitted with Plaintiff's closing argument, including

11

Exhibit 21, WSP Administrative Bulletin, dated September 8, 1995;

12

Exhibits 33(a),

13

proper foundation and/or authentication; and exhibits submitted as

14

attachments to Plaintiff's closing argument.

(b) and (c) and Exhibit 34 on grounds of lack of

15

Defendants objected to the admission of Exhibit 21 during

16

trial and the court agreed it would not be helpful to ask questions

17

from the policy statement, but had it marked as an Exhibit.

18

at 58.)

Because Exhibit 21

19

lawsuit,

it

20

SUSTAINED.

21

been incorporated into WSP regulations, the objection is OVERRULED.

is

not

is outside the time

relevant

and

the

objection

(Tr.

frame of the
is

therefore

However, to the extent the Administrative Bulletin has

22
23
24

addressed at trial, they are foreclosed untimely.
'On February 23, 1996, Defendants filed a Motion for Summary
(Ct. Rec. 32.)

The court did not consider Defendants'

25

Dismissal.

26

motion

27

dispositive motion cutoff date designated in the Scheduling Order.

28

(Ct. Rec. 23 and 41.)

because

it

was

filed

after

December

29,

1995,

the

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 3

I~

1

2

Exhibits

and

(c)

are

copies

of

the

grievance

proceedings instituted with various mail rejections and address the

4

Level I responses to those grievances.

5

reports lack authentication in that the grievance coordinator's

6

signature was not authenticated.

7

so the objection is OVERRULED as untimely.

9

Defendants object these

No objection was raised at trial,
(Tr. at 89.)

Defendants object to Exhibit 34, a letter from Superintendent
Bosse of the Special Offender Center.

10

was

11

contents.

12

overruled.

13

Motion

14

OVERRULED.

submitted without

Defendants object the letter

authentication of

the

signature

or

its

Defendants objected at trial and that objection was
(Tr. at 89,

at

this

Finally,

15

time.

90.)

The court will not reconsider its

Accordingly,

Defendants'

objection

is

Defendants object to all exhibits not admitted at

16

trial but attached to Plaintiff's closing argument.

17

objection is SUSTAINED.

Defendants'

MOTION TO DISMISS DEFENDANT SPALDING

18

At the start of trial, Defendants moved to dismiss Defendant

19

20

Spalding

21

Department of Corrections two days after the first of the mail

22

rejections.

23

9.)

24

grievance filed by Plaintiff in conjunction with the mail rejection

25

issues being litigated here.

26

27

i;..

(b)

3

8

_ .~

33 (a) ,

because

he

had

retired

from

the

Washington

The court reserved its ruling on the Motion.

State

(Tr. at

Exhibit 25 involves a response by Defendant Spalding to a

Thus, Defendants' Motion is DENIED.

42 U.S.C.

§

1983

To state a claim under 42 U.S.C.

§

1983,

a plaintiff must

28

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 4

b

,

f' ..

1

allege (1) the violation of a right secured by the Constitution and·

2

laws of the United States, and (2) the deprivation was committed by

3

a person acting under color of state law.

4

U.S. 527, 535 (1981), overruled jn part on other grounds, Daniels

5

v Williams, 474 U.S. 327, 330-31 (1986);

6

628, 632-33 (9th Cir. 1988).

9

Leer

v

Taylor, 451

v. Murphy, 844 F.2d

DISCUSSION

7

8

Parratt

Since January 9,

1991,

Plaintiff has been incarcerated at

several institutions in the State of Washington.

The civil rights

10

claims at issue here concern Defendants' alleged unconstitutional

11

application

of

WSP

Field

Instructions

450.100'

12

--",-',

13

'WSP Field Instruction 450.100 provides in part:

14

V.
FIELD INSTRUCTION: The Penitentiary encourages
correspondence that is directed to socially useful goals.
In an effort to promote this communication,
the
Institution shall provide each inmate free writing paper
and envelopes.
All housing Units will ensure inmates
have access to writing paper and envelopes.

15
16
17
18
19

F.
Inmate incoming mail shall
inspection and removal of contraband.

be

opened

for

20

23

K. The Associate Superintendent or designees shall
inspect the Mail Room monthly to include reviewing logs
concerning mail
disposal,
mail
charges,
indigent
listings, mail security, timely receipt of Legal Mail and
mail returned to sender.

24

VI.

21
22

25

PROCEDURE:
A.

Incoming Mail:

26
27
",.

2 . . . . Delivery of such mail will be refused
when the mail meets any of the following criteria:

28

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 5

,
/'

1

and/or 440.000 5 to four types of mail:

forwardable second class.

2
3

4
5
6
7

8

r. Catalog, pamphlet, or magazine not allowed
by this instruction,
i.e.,
the mail contains an
unauthorized publication (catalog, pamphlet, or magazine)
s.
. Magazine, book, newspaper
directly by the publisher/retailer.

not

mailed

t. Items not ordered and approved in advance
through facility-designated channels.

9

L.

10
11
12

Change of Address and Forwarding of Inmate Mail

1.
Staff shall make available to an inmate
upon his request appropriate change of address forms.

13

2. Inmates are responsible for informing their
correspondents of a change of address.

14

3. Postage for mailing change of address cards
is paid by the inmate.

15
16
17

18

19
20
21
22
23
24

4.
Staff shall use all means practicable to
forward Legal mail.
5.
Staff shall forward inmate general 1st
class and all Legal mail to the new address for a period
of 30 days; after which time all mail received will be
returned to the u.S. Postal Service for disposition.
SWSP Field Instruction 440.000, since amended October 8, 1995,
states:
II. prffiPOSE: To prescribe limitations on the volume and
type of personal property to be maintained in an inmate's
possession and to maintain proper safety, sanitation,
control of security at Washington State Penitentiary.
This order specifies what property is authorized.
Anything not specified in this instruction, other than
items available in the Inmate Store, is not authorized.

25
26

VII .

PROCEPURE - PURCHASES

27

..,

28

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 6

,

~,

1

mail,

catalogs,

magazine gift subscriptions,

2

financial aid applications.

3

case

4

rights under the First to the Constitution. 6

is whether Defendants'

and university and.

Both parties agree the issue in this
actions deprived Plaintiff of

his

5

Initially, the parties agree this lawsuit does not challenge

6

the facial validity of WSP Field Instruction 450.100 or 440.000.

7

Notwithstanding that conclusion, Plaintiff contends the

8

have been unconstitutionally applied.

9

on two grounds:
in Dying

11

As noted by Justice Scalia:

12

Statutes may be challenged

(1) either facially or (2) as apPlied.CJcompassion

10

y,

regulat~ons

State of Washington, 79 F.3d 790, 842 (9th Cir. 1996).

Statutes

are

ordinarily

challenged,

and

their

13
,y"

•

14
15
16
17
18
19

C.
In compliance with Inmate Fund Accounts Policy
(02.160), all orders must be on Institutional Order Forms
and witnessed by the CUS or Counselor.
All order and
disbursement forms will be routed by the Counselor to
Intelligence
and
Investigations,
Special
Service/Property, and Accounting.

22

D.
All purchases must come from the purchasing
inmate's account, and the disbursement request(s) must
cover the full amount of the purchase. No payment plans,
trade-ins, barter or contract arrangements will be
allowed.

23

6To the extent Plaintiff claims relief under 18 U.S.C.

20
21

,",

B. All purchases must be from an approved vendor or
catalog outlet, approved curio sales, or the inmate
store.
Only authorized items NOT sold in the Inmate
Store may be purchased from vendors, catalogs, or curio.

§

1702,

24

such a claim will not be considered, since that statute is criminal

25

and does not provide for relief ina civil action.

26

Marine Midland Bank-Western,

27

1979); Berlin Democratic club y, Rumsfeld, 410 F. Supp. 144, 162

28

(D.D.C. 1976).

463 F.

Supp.

128,

Scj Qlino y

131-34

(W.D.N.Y.

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 7

lj .

J'

constitutionality evaluated, "as applied" -- that is, the
plaintiff contends that the application of the statute in
the particular context in which he has acted, or in
which he proposes to act, would be unconstitutional. The
practical effect of holding a statute unconstitutional·
"as applied" is to prevent its future application in a
similar context but not to render it utterly inoperative.
TO achieve the latter result, the plaintiff must succeed
in challenging the statute "on its face."
Out
traditional rule has been, however, that a facial
challenge must be rejected unless there exists no set of
circumstances in which the statute can constitutionally
be applied.

1
2
3

4
5

6
7

.I.d.

~

506 U.S. 1011 (1992)

t

(Scalia dissenting from denial of certiorari) .

10

Thus, the court examines each of Plaintiff's claims in light of the

11

regulations

12

instances.

13

1.

and how

they have been applied

in those

specific

Failure to Forward Second Class Mail

14

Plaintiff first claims Defendants, through procedures used in

15

the mailroom, failed to forward second-class mail, an omission he

16

contends is a violation of his First Amendment rights.

17

'\

ci ting Ada y. Guam Sod ety of Obstetricians and Gynecologj sts,

8

Rights

secured

by

the

First

Amendment

are

fundamental;

18

convicted prisoners retain First Amendment rights not incompatible

19

with their status as prisoners.

20

Cir. 1990), cert. denied,

21

Martinez,

22

Thornburgh y. Abbott, 490 U.S. 401 (1989), the Supreme Court held

23

censorship of prisoner mail is justified only when the regulation

24

furthers "an important or substa.ntial government interest unrelated

25

to the suppression of expression" and that the limitation of First

26

Amendment

freedoms

27

essential

to

416

U.S.

the

396

"must

Burton

498 U.S. 873
(1974),

be

protection

no
of

Nault, 902 F.2d 4 (6th

y

(1990).

overruled

greater
the

on

than

In Procllnier y,

other

is

particular

grounds,

necessary

or

governmental

28
ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 8

1

interest" involved. ,Ig. at 404.

2

based on an analysis of prisoner rights, but on the protection of

3

the First Amendment rights of a party outside the prison wishing to

4

correspond with an inmate.

5

not challenge the constitutionality of the regulations at issue;

6

rather,

7

particular pieces of mail.

~

claims

Initially,

8

9

he

they

Plaintiff

The ruling in Marti nez was not.

Martinez, at 408.

were

was

Here, Plaintiff does

unconstitutionally

incarcerated

at

Corrections Center (WCC) , in Shelton, Washington.

applied

the

to

Washington

At that time, he

10

received by mail subscriptions to several different magazines.'

11

April 1991, Plaintiff was transferred to WSP and his subscriptions

12

were forwarded without difficulty.

13

84.)

14

that time, Plaintiff alleges Defendants failed to forward his mail

15

to WCC in accordance with the United States postal regulations.'

(Ct. Rec.

In March 1992, Plaintiff returned to WCC.

In

53, Ex. A; Tr.

at

(Tr. at 83.)

At

;,.

16
'Plaintiff's subscriptions included the following:

17

,',

18

Christian Science Monitor;

19

(4) Mother Jones;

20

Science;

21

Stone.

(8)

(2) Guideposts;

(1)

~

(3) Metropolitan Home;

(5) National Geographic; (6) Playboy; (7) Popular

Reader's Digest;

(9)

The Rocket;

and

(10)

Rolling

22

'United States Postal Service regulations provide forwarding

23

of first-class mail for one year following a change of address and

24

second-class mail for sixty days.

25

and

26

institution "must be redirected to the current address, if known,

27

or endorsed appropriately and returned by the institution to the

28

post office."

F010.5.2.

Mail

addressed

Domestic Mail Manual F010.5.1
to

an

inmate

who

has

left

Domestic Mail Manual D042. 5.1.

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 9

an

1

After Plaintiff's subscriptions failed to arrive, he was able to.

2

contact only one publisher with his new address because he did not

3

have the addresses of the remaining publications.

4

,
-, .

When

Plaintiff

returned

to

WSP

in

July

(Tr. at 104.)
1992,

Plaintiff

5

testified he was provided with a copy of a WSP field instructio

6

which stated the institution maintained records

7

mail.

8

requested

':1

forwarded to him at wcc;tl"- In response,

(Tr. at 84.)

0

undeliverable

Pursuant to that field instruction, Plaintiff

information

regarding

•.l.IofHdO'

his

mail

mi1ro1tftJ

which

had

been

Plaintiff was provided

10

copies of the covers of magazines to which he had subscribed, with

11

Postal

12

address:

13

SHELTON, WA. 98504."

14

Plaintiff was

transferred from WSP

15

Center (CBCC).

Again, Plaintiff's magazines' were not forwarded to

16

his new address.

Service

Form 3579

"WASHINGTON

attached,

noting

STATE CORRECTIONS

as

CENTER,

(Ex. 3, and Ex. 26-32.)
to

Plaintiff's
PO

BOX

new
900,

In December 1992,

Clallam Bay Corrections

(Tr. at 87.)

Plaintiff filed several grievances concerning WSP's forwarding

17

18

policy,

19

Plaintiff's

20

Plaintiff appealed WSP's refusal to change its mail forwarding

21

policy to Defendant Spalding without success.

the

WSP

suggested

Grievance

Coordinator

remedies.

Ex.

refused

33 (a),

(b)

to

adopt

and

(c).)

(Ex. 25.)

Prisoners have a right to send and receive mail, Thornburg 490

22
23

but

U. S.

at

407,

and prison authorities

have

a

responsibility

to

24
25

'Plaintiff testified he misplaced his list of subscriptions,

26

but recalled he was receiving at that time, gift subscriptions to

27

The

28

Scjence, The Rocket, and Rolling Stone.

Christian

Science

Monitor,

National

Geographic,

PopuJ ar

(Tr. at 87.)

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 10

"l..'
~!~

fo~d

1

promptly

mail to an inmate once it has been received at the·

2

institution.~Bryan v. Werner,516 F.2d 233,

United States ex.

reI

Wolfish v.

Levi,

238 (3d Cir. 1975);

439 F.

Supp.

333,

4

(S.D.N. Y. 1977), rev'd in part on other grounds, sub

5

Wolfish,

6

decision with respect to mail forwarding was not appealed).

7

isolated incident of delay is not

8

claim for relief under 42 U..8.C.

9

F.2d 1100, 1102 (7th Cir.)

441 U.S.

520,. 529

t

n.l0

§

(1979)

court's
An

state a cognizable

~Bach v

1983.

nom., Bel] v

(the district

enoug~o

345

Il J inois,

504

cert. denjed, 418 U.S. 910 (1974).

10

Defendant Van Boening stated when mail is delivered to the

11

institution, it ceases being United States mail because the act of

12

delivery has been completed.

13

Form 3579

14

enable

15

transferred to another institution.

t6

first-class mail; rather, the new address is written directly on

17

the first-class mail envelope and the letter is returned to the

18

U.S. Postal Service for delivery.

19

(Tr. at 60.)

is placed on second,

forwarding

to

a

new

Mr. Potts indicated

third and fourth-class mail

address

when

an

inmate

has

to

been

The form is not used for

(Tr. at 39.)

The circumstances here differ from others which address the

20

obligation

21

inferentially involving access to court issues.

22

also differs from other rulings when there were no procedures for

23

inmates to report changes of address; here, WSP provides ipmates

24

with

25

forwarding all first-class mail, either legal or not, for 30 days.

26

With respect to second-class mail,

27

affixed to the magazine and that form is stamped with the new

change

of

of

a

penal

address

institution

cards

and

has

to

forward
~

legal

mail,

Wolfish.

instituted a

It

policy of

Postal Service Form 3579 is

28
ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 11

1

address.

(Exs. 27-32.)

Plaintiff

2

alleges

by affixing

Form

3579,

Defendants

are

3

directing the Postal Service to return the mail to sender, not to

4

forward it to the new address.

5

the procedures used at the WSP mailroom result in the permanent

6

loss of property.

(Ex. 33 (bl .)

Plaintiff contends

7

With respect to the use of Form 3579, and in response to a

8

grievance filed by Plaintiff on this issue, Sgt. Warneka, WSP mail

9

room supervisor, noted:

10
I find that WSP Mail Room procedures reflect the advice
of local postal authorities.
Because WSP is an
institution, and its employees act as agents of those
individuals incarcerated here, PS form 3579 is used to
notify the senders of Second Class, Third Class and
Fourth Class mail where to send future mailings. In the
long run, an inmate will receive his future mailings
faster, with fewer delays for forwarding.

11

12
13

,,",

14
15

(Ex. 33 (b) .)
Sgt.

16

Warneka' s

statement

is

supported by postal

Under postal

service

regulations,

17

regulations

18

undeliverable secbnd-class mail is forwarded by the U.S.

19

service for 60 days at no expense if a change of address is filed,

20

even

21

Domestic Mail Manual

22

since the second-class mail in this instance has been addressed to

23

an

24

regulations when it reaches the institution.

25

95, D042.2.51.

26

group

27

multiple addressees.

if

the

and practices.

service

copies

institution,

homes,

show a
(DMM) ,

the mail

request

for

Issue 40,

return by the

09-01-95,

Postal

sender.

5.2. \\ However,

is considered delivered under postal
DMM Issue 49, 09-01-

This rule would also apply to mail delivered to
law

offices,

hospitals

or

other

addresses

with

28
ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 12

.(.-'I

1

D042.2.51 further provides "[ilf the addressee is no longer at.

2

that address, the mail must be redirected to the current address,

3

if known, or endorsed appropriately and returned by the institution

4

to the post office."

5

to

6

additional postage is required for it to reenter the postal stream,

7

because the article is considered to have been delivered.

8

no evidence Plaintiff offered to affix additional postage to his

S

second-class

a

particular

However, when a change of address is affixed

piece

of

mail

delivered

to

an

institution,

There is

"'0;

mail~Themail
room's
I,:;:

reliance on Form 3579 and the

10

return of the item to the sender ensures that the publisher is

11

ultimately

12

compliance with the second portion of D042. 2.51.

13

court recognizes a minimum of one issue of the publication will not

14

be delivered to the inmate (the issue with Form 3579 affixed), the

15

remaining issues should reach the inmate at the new address. Any

16

failure to do so would be the fault of the publisher,

17

institution.

1830, ' 0 6 0 ,

informed

or

of

the

change

of

address

and

constitutes
Al though the

not the

Moreover, the decision by WSP to forward mail for 10,
90

days

is

within

its

discretion

since

postal

19

regulations do not apply to inter- or intra-institutional delivery.

20

The mail forwarding practices and procedures of the WSP mailroom,

21

as applied to Plaintiff's mail, are reasonable and in compliance

22

with postal regulations.

Moreover, they are a reasonable response

23
24

lOIn Ex. 33(c), it is noted WSP's policy of forwarding mail for

25

30 days is reasonable because it is expected within that time frame

26

the inmate's change of address card will have gone into effect in

27

the Post. Office.

28

forwarding.

Thus,

the Post Office would do all subsequent

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 13

~\c.

~

1

to

a

2

applied.

3

Defendants and the claim is DISMISSED WITH PREJUDICE.

4

2.

",

~

penological

goal,

Turner, 482 U.S. at 78.

and

are

constitutional

as.

Accordingly, judgment is for

Catalogs

5

(-

legitimate

On November 4,

1993,

inquiring

Plaintiff wrote a

6

International

7

long-term sensory deprivation.

8

representative mailed Plaintiff a catalog and an unsigned note

9.

explaining lack of familiarity with other publications on that
(Ex. 37.)

about

literature
(Ex. 37.)

on

letter to Amnesty
the

In response,

effects

of

a company

10

subject.

11

Plaintiff requested the catalog be forwarded to Mia Means.

12

4.)

13

along with a note,

14

photocopy.

Defendant Potts rejected the catalog; later,
(Ex.

Ms. Means photocopied the catalog and mailed the photocopy,
to Plaintiff.

Defendant Potts rej ected the

(Ex. 5.)

15

WSP Field Instruction 450.100(IV) (B) (a) specifically defines

16

an authorized catalog as "[o]ne offering hobby craft or curio items

17

for

18

permit." The Amnesty catalog does not meet this exception to the

19

rule.

20

pages, it falls within WSP's definition of a catalog or pamphlet.

21

~

22

or a pamphlet, it is not authorized mail.

23

450.100 (V) (r) .

receipt by an inmate with a

current

and authorized curio

Although it is slender and comprised of a svelte fourteen

WSP FI 450.100 (IV) (M) .

(Ex. 1.)

Whether an item is a catalog
WSP Field Instruction

24

The court finds Defendants' policy regarding catalogs and/or

25

pamphlets, as applied in this instance, was a reasonable response

26

to WSP's legitimate penological concerns of preventing fraudulent

27

behavior,

concealing contraband,

and keeping cells sanitary and

28
ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 14

fIi

~

1

free of fire hazards.

2

are available through the curio program if they are an authorized

3

curio, the chapel (for religious material) or the prison

4

(Tr. at 24, 61.)

5

Defendants'

6

judgment

7

PREJUDICE.

8

3.

9_

["--.. .

(Tr. at 24.) Additionally, catalog materials.

Accordingly, as to Plaintiff's claim regarding

rejection

is

library.

for

of

the

Defendants

Amnesty

and

the

International

claim

is

catalog,

DISMISSED

WITH

Magazine Gift Subscriptions

Defendants

Rolfs

and

Potts"

rejected

numerous

issues

of

10

Guidepost magazine,

11.

440.000.

12

Boening and Spalding affirmed the rejections.

13

notes the rej ection is "source" based, rather than "content" ba.sed ,

14

because the magazine was a gift to Plaintiff and there

15

contention it was rejected because of its content.

16

(Ex. 7,

citing WSP Field Instruction 450.100 and/or
8,

9,

10, 22 and Tr. at 45.)

Defendants Van

Initially, the court

is

no

WSP regulations require that all inmate purchases be made

17

through

facility-designated

18

450.100(VI) (A)

19

this policy,

20

purchased by the inmate, pre-approved by the inmate's counselor and

21

paid with funds from the inmate's account.

22

Wood stated she did not know which field instruction addressed the

23

issue of magazine

24

"readily known."

(~)

(t).

channels.

WSP

Field

Instruction

According to Defendants' interpretation of

inmates may receive magazine subscriptions only if

subscription purchases,
(Tr.

at

30.)

(Tr. at 30.) Defendant

but admitted it

was

The policy is necessary,

as

25
26

T

"Ex.

35

and

36

indicate

gift

27

rej ected by mail room employee N.

28

action.

subscription
Frost,

notices

were

not a party to

this

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 15

;;'=717
~

1

explained by Defendant Wood, to facilitate WSP's ability to control.

2

payment for the subscription and the content of the magazine.

3

at 32.)

4

payoffs among inmates and their families outside the institution.

S

6

(Tr.

She also stated the policy prevents strong arming and

(Tr. at 32, 33.)
Despite this policy, Plaintiff
testified and Defendant did not
--------------_._._--- ----_. ------------~-----

7

I

>;

dispute

he

received

-------------_._-_ ....-.-- --'-'---

numerous

--

--._--

~~bscriptions

gift

.. -

._-

several

magazines

~

evidence infers and the court finds a rejection of a gift magazine

10

subscription occurs only when a gift subscription notification is

11

mailed to the inmate.

12

notification is sent,

13

application

14

exclusively,

lS

acknowledging gift subscriptions.

of

the

upon

(Tr.

at 43.)

policy

depends,

publisher's

17

Field Instruction 4S0 .100 (E) (1),

18

magazines,

19

requirement:

20
21

22
23

in

address

large

practice

.---

---",-

if no such
Thus,

part

with

The

107.)

there would be no rejection.

the

not

at

Inferentially,

The court first questions whether a

does

(Tr.

to

- - .----- ------_._------

8

16

through the years while at WSP.

~-------

the

if

not

respect

"policy" exists.

to

WSP

which addresses the receipt of

the

facility-designated

channel

1.
Conditions for Receipt: Inmates may receive a
reasonable number of books, newspapers, magazines, and
other publications directly from the publisher provided
they do not constitute a threat to the order and security
of the institution or meet the obscenity or sexually
explicit definitions of this instruction or DOP or DOC
policy.

24

Rather,

the

regulation

confines

restrictions

to

content

2S

requirements.
26

There

is

no

allegation by Defendants

the

gift

subscriptions met the definition of security threat or obscene or

27

sexually explicit materials .
..,

There is also no language in this

28

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 16

~o:;

~

1

field instruction which addresses an inmate's right to receive a.

2

gift subscription.

3

conjunction

4

facility designated channels.

5

(

with

Rather, the inmate must read this section in
the

section

allowing

purchases

WSP Field Instruction 440.000 (VII) (A),

only

through

since superseded by

6

Administrative Bulletin dated September 8, 1995, effective October

7

8,

8

discloses

9

restriction in WSP Field Instruction 450.100.

1995,

addresses

only

Defendants'

"purchases."

inability to

Furthermore,

locate

a

gift

the

record

subscription

(Tr. at 31, 45, and

10

69.)

In response to Plaintiff's grievance, Defendant Rolfs stated

11

WSP

12

magazines

13

authorities at Washington State Penitentiary."

14

at trial, Defendant Rolfs testified WSP Field Instruction 450.100

15

"alludes" to the prohibition of gift subscriptions.

16

Defendant Wood was unable to quote the particular section of the

17

field instruction which applied, stating only that it was "readily

18

known."

Field

Instruction
will

be

450.100

prepaid

and

"very
will

clearly
be

states

that

preauthorized
(Ex. 22.)

by

all
the

However,

Similarly,

(Tr. at 30, 69-70.)

19

A gift is not a purchase by an inmate. Rather, it involves the

20

rights of those outside the institution to provide a source of

21

enrichment for inmates.

22

lawfully contain magazines not purchased by the inmate.

23

Instruction 450.100(F). The content of those magazines is examined

24

at the time the quarterly package is inspected.

25

gift subscription also would be examined when it is received at the

26

institution.

27

subscription is to prevent strongarming among inmates and family

28

Conceivably, quarterly gift packages may
WSP Field

The content of any

The only remaining rationale for rejecting a gift

•
ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 17

;pc.

~

.{'

1

l~,

;I

members.
Avoidance

2

~O\~
0

of ~rong arming

is

legitimate

a

penological

3

interest, see. e,g.. , Mann y. Adams, 846 F.2d 589, 591 (9th Cir.),

4

cert,

5

application of this

7

saw the publisher's notification on behalf of the donor.

8

43.)

~

officials to prevent inmates from receiving publications paid for

denied,

488

Defendants

U.S.

898

"po'licy"

describe

(1988) .

However,

is inconsistent.

no other

steps

Defendants'

Defendant Potts

taken

(Tr. at

by mail

room

10

by others.

11

to

12

publication,

13

However, inmates easily can have family members or friends direct

14

a publisher not to send the notice of gift subscription, depriving

15

WSP officials of their basis on which to reject the publication.

16

For example, if WSP cross-checked their inmate accounts

determine

whether

an

Defendants'

inmate
argument

had

paid

would

be

for

an

more

incoming

persuasive.

The court's review of WSP Field Instruction 450.100 reveals no

17

requirement

magazines

18

strongarming

19

Defendant Woods' conclusory statement, that inmates will attempt to

20

coerce

21

magazine subscriptions in exchange for favors among inmates. This

22

argument is not persuasive as the institution permits gift packages

23

on a quarterly basis and,

24

could be imposed.

25

policy

26

penological interest at stake here.

27

his

rationale,

third parties

is

be

ordered
no

by

evidence

outside

the

surely,

an
was

inmate.

As

presented

other

institution

to

to

provide

the
than

gift

the same strongarming tactics

The court concludes the application of this

inconsistent;

furthermore,

there

is

no

legitimate

Accordingly, Plaintiff has met

burden on this claim against Defendants Rolfs,

Potts,

28
ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 18

Van

1

II

Boening and Spalding.

::.....L..

: the

QUALIFIED IMMlJNITY

2

3

:ied

Defendants argue they are entitled to qualified immunity from

Long

4

any damages which may be awarded.

5

met his burden with respect to demonstrating a clearly established

6

law that· their actions were unconstitutional in this instance, or

7

in the absence of such law, that their actions were unreasonable.

!tent
!
nost

8

A prison official is not absolutely immune from suit,

but

: a.t

does not violate

)uld

9

rather,. only "insofar as

They contend Plaintiff has not

his or her conduct

10

clearly established statutory or constitutional rights of which a

11

reasonable person would have known."

12

U.S.

13

plainly

~4

Malley

L5

determining whether

L6

qualified

L7

governing the official's conduct clearly established?

800,

818

(1982)

incompetent
Briggs,

y

or
475

457

lts'

Qualified immunity protects "all but the

re s .

those
U.S.

who
335,

Harlow y

Fitzgerald,

3hed

i

knowingly violate
341

(1986).

a· law enforcement

officer

the

for

:rift

entitled to

i not

The
is

~ing

law."

test

law

is

(2) Under

an

L8

the law, could a reasonable officer have believed the conduct was

lliln,

.9

lawful?"

00

1993.)

The second part of this test is an objective inquiry; the

rd ch

~1

subjective belief of the official as to the lawfulness of his or

was

:2

her conduct is not relevant.

3

641 (1987).

immunity consists

Act

Up!

of

two parts:

"(1)

Was

the

/Portland y. Bagley, 988 F.2d 868, 871 (9th cir.

nust

Anderson y. Crejghton, 483 U.S. 635,

any

4

The determination of qualified immunity should be made by the

oria
L
I

5

factfinder if it involves facts which are genuinely in dispute.

~ir.

I

6
7

~arlow

y. Ground, 943 F.2d 1132, 1139 (9th Cir.), cert

U.S. 1206 (1992).

I

denjed, 505

on

I

That line of cases was questioned in Sloman y.

leIS

8

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 19

J
~

r

"1-2

.~.

1

only, a regulation which has not been challenged by Plaintiff as.

2

being unconstitutional on its face.

3

gift subscriptions was not unreasonable.

4

finds Defendants are entitled to qualified immunity with respect to

5

Plaintiff's prayer for damages.

6

does

7

relief,

8

Plaintiff's right to receive gift subscription magazines,

~

meet the requirements of content and storage, under institutional

not

prevent

the

preventing

Consequently, the court

However, proof of this defense

court. from

further

Defendants' rejection of the

imposing pennanent

interference

10

regulations which are currently in effect.

11

4.

by WSP

injunctive

personnel

with
which

College and Financial Aid Applications

12

In April 1993, while incarcerated at SOC, Plaintiff enrolled

13

in a correspondence program administered by Ohio University, taking

14

15 credits of classes.

15

his mother on the condition she would be repaid after Plaintiff

16

received a Pell grant.

17

Plaintiff,

18

(Ex.

19

transferred to WSP in June 1993.

20

agency sent Plaintiff a copy of his completed application to ensure

21

the infonnation he had provided was accurate.

22

Potts rejected the application as unauthorized mail under WSP Field

23

Instruction

24

application to enroll in a correspondence course offered through

25

Ohio University.

26

WSP Field Instruction 450.100.

27

18.)

The tuition charges ($715) were advanced by

(Tr. at 94.)

To qualify for that grant,

with the approval of SOC,
After

450.100.

submitting

(Ex.

his

completed an application.

application,

Plaintiff

was

Some time after his transfer, the

11.)

Plaintiff

(Ex. 17.)

also

Defendant

received

an

Defendant Potts rejected this application, under
(Ex. 13.)

Plaintiff appealed the mail rejection on December 15, 1993,

28

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 21

1

requesting his mail from the federal student aid agency.

2

Defendant Van Boening responded and suggested Plaintiff contact his

3

counselor.

4

(Ex. l4.).

(Ex. 15.)

Prisoners do not have a liberty interest in education under

5

the due process clause, Rizzo y. Dawson, 778 F.2d 527,

6

Cir. 1985); or under Washington law.

7

833 F.2d 1316,

8

educational opportunities do not constitute punishment within the

~

meaning of the Eighth Amendment.

10

1318

~

(9th Cir. 1987).

530

(9th

Hernandez y. Johnston,

Moreover,

limitations on

Rhodes y. Chapman, 452 U.S. 337,

348 (1981); Hoptowit y. Ray, 682 F.2d 1237, 1254-55 (1982).

11

Defendants

assert

the

restrictions

imposed

by WSP

Field

12

Instruction 450.1QO provide inmates access to educational programs,

13

while

14

prevent fraud.

15

process provides inmates with an opportunity to commit fraud.

16

is

17

450.100 is necessary and constitutional.

18

protecting the legitimate concern of

for

(Tr.

at 22.)

the

institution to

Defendants claim any application
It

these reasons Defendants contend WSP Field Instruction

The court agrees Defendants' policy, although different from

19

other penal

20

institution's concerns to protect the public from fraud and the

21

inmates' access to higher education.

Defendant Wood testified an

22

inmate's education is fully funded;

under unusual circumstances.

23

when a grant is required, the inmate may work through the counselor

24

and education director to secure that grant.

25

had

26

regarding the availability of a student grant.

27

Thus, judgment is for Defendants on this claim.

not

institutions

inquired

of

his

within

the

counselor

state,

or

balances

both

the

Plaintiff admitted he

the

education

director

(Tr. at 34, 112.)
Accordingly,

28
ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 22

~

{-. ,

,

1

IT IS ORDERED:

2

1.

Judgment for injunctive relief shall be entered against

3

Defendants Rolfs, Potts, Van Boening, and Spalding on Plaintiff's

4

claim involving the rejection of his gift magazine subscriptions.

5

However, as to Plaintiff's request for a damages remedy, Defendants

6

are entitled to qualified immunity from damages.

7

PERMANENTLY ENJOINED, UNDER THE REGULATIONS WHICH ARE CURRENTLY IN

8

EFFECT,

9

SUBSCRIPTIONS

FROM

REJECTING
TO MAGAZINES

THE

DELIVERY

OF

DEFENDANTS ARE

PLAINTIFF'S

UPON THEIR DELIVERY BY THE

GIFT
POSTAL

10

SERVICE TO THE WSP MAILROOM,

11

MAGAZINES MEETS INSTITUTIONAL REGULATIONS AND THE BULK OF THOSE

12

MAGAZINES MEETS STORAGE REQUIREMENTS.

13

2.

SO LONG AS THE CONTENT OF THOSE

Judgment shall be entered for Defendants on all other

.~

14

claims at issue, and Plaintiff's complaint and those claims are

15

DISMISSED WITH PREJUDICE.
3.

The Clerk is directed to enter this Order and provide a

copy to Plaintiff and counsel for Defendants.
bear its own costs.
DATED this

~3

e

Each party shall

~

day of May, 1996.

/]

. (l /

(;-r/7Vt~ -d-rr0/'~r~
CYNTHIA IMBROGNO
UNITED STATES MAGISTRATE JUDGE

ORDER GRANTING IN PART PLAINTIFF'S CLAIM FOR INJUNCTIVE RELIEF
AND GRANTING JUDGMENT FOR DEFENDANTS ON REMAINING CLAIMS - 23