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9th Cir Reverses Dismissal of Publisher Only Rule
PLN rarely reports on unpublished decisions because they cannot be cited as binding precedent. But in some cases prisoner litigants benefit from knowing cases that have been decided by the courts in their relevant circuits as well as new avenues of attack on issues that have been lost in the past. In Bell v. Wolfish, 441 US 520 (1979) the supreme court upheld a prison regulation which mandated that hardcover books could be sent only by the publisher, this has become known as the "publisher only" rule.
Since that ruling numerous prison systems have enacted rules which mandate that even soft cover books and magazines must come from the publisher. This practice has been upheld by several courts. See: Ward v Washtenaw County Sheriffs Dept., 881 F.2d 325 (6th Cir. 1989); Hurd v. Williams, 755 F.2d 306 (3rd Cir.1985); Kines v. Day, 754 F.2d 28 (1st Cir. 1980) and Cotton v. Lockhart, 620 F.2d 670 (8th Cir. 1980). However, the ninth circuit has yet to decide the issue. The closest they have come is Johnson v. Moore, 926 F.2d 921 (9th Cir. 1991) in which it court reversed the dismissal of a challenge to Washington state DOCs "publisher only" rule for consideration of injunctive and declaratory relief. That case was later vacated, at 944 F.2d 1533, because the plaintiff was transferred out of Washington, see: Johnson v. Moore, 948 F.2d 517 (9thCir. 1991).
Rick Sindars, a prisoner at the Washington State Reformatory filed a challenge to the "Publisher Only" rule in the federal court in Seattle. After initially ruling in his favor, judge Rothstein reversed herself and dismissed the suit. Sindars appealed and in an unpublished memorandum order the ninth circuit court of appeals reversed and remanded. The court remanded finding that Sindars had presented a triable issue of fact. While DOC rules mandated that all published materials come from the publisher, a WSR rule allowed prisoners to receive bibles, religious books, textbooks and diaries in personal packages directly from family and friends. Sindars contended that this exception indicated that the publisher only rule was not reasonably related to keeping contraband out of prison but was, instead an exaggerated response to prison security concerns.
The appeal court agreed, holding that the exception to the publisher only rule might lead a trier of fact to conclude the policy was "arbitrary or irrational." Noting that the above courts have upheld publisher only rules, the court stated "However, none of these cases considered whether the allowance of exceptions to the rule undermined the asserted interest of the prison in maintaining security." The case was remanded to the lower court for a trial. The court also vacated the award of costs which had been taxed against Sindars because the state was no longer the "prevailing party." See: Sindars v. Riveland, 9th Cir. No. 93-35433, DC No. CV-91-1547-BJR. Again, this is an unpublished opinion that cannot be cited for precedent purposes.
Since that ruling numerous prison systems have enacted rules which mandate that even soft cover books and magazines must come from the publisher. This practice has been upheld by several courts. See: Ward v Washtenaw County Sheriffs Dept., 881 F.2d 325 (6th Cir. 1989); Hurd v. Williams, 755 F.2d 306 (3rd Cir.1985); Kines v. Day, 754 F.2d 28 (1st Cir. 1980) and Cotton v. Lockhart, 620 F.2d 670 (8th Cir. 1980). However, the ninth circuit has yet to decide the issue. The closest they have come is Johnson v. Moore, 926 F.2d 921 (9th Cir. 1991) in which it court reversed the dismissal of a challenge to Washington state DOCs "publisher only" rule for consideration of injunctive and declaratory relief. That case was later vacated, at 944 F.2d 1533, because the plaintiff was transferred out of Washington, see: Johnson v. Moore, 948 F.2d 517 (9thCir. 1991).
Rick Sindars, a prisoner at the Washington State Reformatory filed a challenge to the "Publisher Only" rule in the federal court in Seattle. After initially ruling in his favor, judge Rothstein reversed herself and dismissed the suit. Sindars appealed and in an unpublished memorandum order the ninth circuit court of appeals reversed and remanded. The court remanded finding that Sindars had presented a triable issue of fact. While DOC rules mandated that all published materials come from the publisher, a WSR rule allowed prisoners to receive bibles, religious books, textbooks and diaries in personal packages directly from family and friends. Sindars contended that this exception indicated that the publisher only rule was not reasonably related to keeping contraband out of prison but was, instead an exaggerated response to prison security concerns.
The appeal court agreed, holding that the exception to the publisher only rule might lead a trier of fact to conclude the policy was "arbitrary or irrational." Noting that the above courts have upheld publisher only rules, the court stated "However, none of these cases considered whether the allowance of exceptions to the rule undermined the asserted interest of the prison in maintaining security." The case was remanded to the lower court for a trial. The court also vacated the award of costs which had been taxed against Sindars because the state was no longer the "prevailing party." See: Sindars v. Riveland, 9th Cir. No. 93-35433, DC No. CV-91-1547-BJR. Again, this is an unpublished opinion that cannot be cited for precedent purposes.
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Related legal case
Sindars v. Riveland
| Year | 1991 |
|---|---|
| Cite | 9th Cir. No. 93-35433, DC No. CV-91-1547-BJR |
| Level | Court of Appeals |
[T][U] Sindars v. Riveland, 37 F.3d 1506 (9th Cir. 09/23/1994)
[1] U.S. Court of Appeals, Ninth Circuit
[2] Nos. 93-35433, 93-35663
[3] 37 F.3d 1506
[4] filed*fn*: September 23, 1994.
[5] RICK L. SINDARS, PLAINTIFF-APPELLANT,
v.
CHASE RIVELAND, SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANT-APPELLEE. RICK L. SINDARS, PLAINTIFF-APPELLANT, V. CHASE RIVELAND, SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL.; LARRY KINCHELOE, SUPERINTENDENT, DIRECTOR; JAMES C. SPALDING, DEPUTY DIRECTOR; KENNETH W. DUCHARME, SUPERINTENDENT, WASHINGTON STATE REFORMATORY; MICHAEL G. WOODS, SUPERINTENDENT, WASHINGTON STATE REFORMATORY; JERRY NEWMAN, MAIL ROOM STAFF, DEFENDANTS-APPELLEES.
[6] Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-91-01547-BJR. Barbara J. Rothstein, District Judge, Presiding
[7] Before: Browning, Wright, and Canby, Circuit Judges
[8] MEMORANDUM*fn*
[9] I
[10] Sindars raised a triable issue of fact as to whether the publisher-only rule was reasonably related to a legitimate penological objective in view of Washington State Reformatory Inmate Mail Management Policy 450.100.01, Attachment E, which provides that inmates may receive quarterly packages containing Bibles, religious books, textbooks, diaries, or journals directly from family and friends. CR 52, Ex. 1.
[11] Sindars contended the existence of this exception to the publisher-only rule indicates the rule is not reasonably related to the goal of keeping contraband out of the prison but instead represents an exaggerated response to this interest, since contraband could be smuggled in publications contained in quarterly packages as easily as in those sent via the daily mail. See Mann v. Smith, 796 F.2d 79, 82 (5th Cir. 1986); Kincaid v. Rusk, 670 F.2d 737, 744 (7th Cir. 1982). The court's order did not address this argument.
[12] The issue raised was material, since the lack of a reasonable relationship with a valid penological objective would be fatal to the publisher-only policy under Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987), and Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The issue was genuine, because the publisher-only policy's underinclusiveness, viewed in the light most favorable to Sindars, might permit a rational trier of fact to conclude the policy was "arbitrary or irrational," Turner, 482 U.S. at 90, or represented an "exaggerated response" to legitimate penological concerns, id. at 87. See United States v. Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 490 (9th Cir. 1990) (citing Anderson, 477 U.S. at 252-56).
[13] We note that four other circuits have upheld the constitutionality of publisher-only rules applicable to both hardcover and softcover publications. See Ward v. Washtenaw County Sheriff's Dep't, 881 F.2d 325, 330 (6th Cir. 1989); Hurd v. Williams, 755 F.2d 306, 308 (3d Cir. 1985); Kines v. Day, 754 F.2d 28, 30 (1st Cir. 1985); Cotton v. Lockhart, 620 F.2d 670, 672 (8th Cir. 1980). However, none of these cases considered whether the allowance of exceptions to the rule undermined the asserted interest of the prison in maintaining security.*fn1
[14] II
[15] In light of our Disposition, we also vacate the district court's order affirming the clerk's taxation of costs, since the defendants are no longer the "prevailing party" within the meaning of Fed. R. Civ. P. 54(d). Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1315 (9th Cir. 1987).
[16] VACATED AND REMANDED.
[17] Disposition
[18] VACATED AND REMANDED.
--------------------------------------------------------------------------------
General Footnotes
--------------------------------------------------------------------------------
[19] *fn* The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir. R. 34-4 and Fed. R. App. P. 34(a).
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[20] *fn1 Exceptions to the rule apparently existed in Kines, 754 F.2d at 29, and Cotton, 620 F.2d at 671. However, in neither case did the court consider whether the exceptions established that the policy was irrational or arbitrary.
[21] *fn* This Disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.
[1] U.S. Court of Appeals, Ninth Circuit
[2] Nos. 93-35433, 93-35663
[3] 37 F.3d 1506
[4] filed*fn*: September 23, 1994.
[5] RICK L. SINDARS, PLAINTIFF-APPELLANT,
v.
CHASE RIVELAND, SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL., DEFENDANT-APPELLEE. RICK L. SINDARS, PLAINTIFF-APPELLANT, V. CHASE RIVELAND, SECRETARY, DEPARTMENT OF CORRECTIONS, ET AL.; LARRY KINCHELOE, SUPERINTENDENT, DIRECTOR; JAMES C. SPALDING, DEPUTY DIRECTOR; KENNETH W. DUCHARME, SUPERINTENDENT, WASHINGTON STATE REFORMATORY; MICHAEL G. WOODS, SUPERINTENDENT, WASHINGTON STATE REFORMATORY; JERRY NEWMAN, MAIL ROOM STAFF, DEFENDANTS-APPELLEES.
[6] Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-91-01547-BJR. Barbara J. Rothstein, District Judge, Presiding
[7] Before: Browning, Wright, and Canby, Circuit Judges
[8] MEMORANDUM*fn*
[9] I
[10] Sindars raised a triable issue of fact as to whether the publisher-only rule was reasonably related to a legitimate penological objective in view of Washington State Reformatory Inmate Mail Management Policy 450.100.01, Attachment E, which provides that inmates may receive quarterly packages containing Bibles, religious books, textbooks, diaries, or journals directly from family and friends. CR 52, Ex. 1.
[11] Sindars contended the existence of this exception to the publisher-only rule indicates the rule is not reasonably related to the goal of keeping contraband out of the prison but instead represents an exaggerated response to this interest, since contraband could be smuggled in publications contained in quarterly packages as easily as in those sent via the daily mail. See Mann v. Smith, 796 F.2d 79, 82 (5th Cir. 1986); Kincaid v. Rusk, 670 F.2d 737, 744 (7th Cir. 1982). The court's order did not address this argument.
[12] The issue raised was material, since the lack of a reasonable relationship with a valid penological objective would be fatal to the publisher-only policy under Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d 64, 107 S. Ct. 2254 (1987), and Bell v. Wolfish, 441 U.S. 520, 60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979). See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). The issue was genuine, because the publisher-only policy's underinclusiveness, viewed in the light most favorable to Sindars, might permit a rational trier of fact to conclude the policy was "arbitrary or irrational," Turner, 482 U.S. at 90, or represented an "exaggerated response" to legitimate penological concerns, id. at 87. See United States v. Lot 4, Block 5 of Eaton Acres, 904 F.2d 487, 490 (9th Cir. 1990) (citing Anderson, 477 U.S. at 252-56).
[13] We note that four other circuits have upheld the constitutionality of publisher-only rules applicable to both hardcover and softcover publications. See Ward v. Washtenaw County Sheriff's Dep't, 881 F.2d 325, 330 (6th Cir. 1989); Hurd v. Williams, 755 F.2d 306, 308 (3d Cir. 1985); Kines v. Day, 754 F.2d 28, 30 (1st Cir. 1985); Cotton v. Lockhart, 620 F.2d 670, 672 (8th Cir. 1980). However, none of these cases considered whether the allowance of exceptions to the rule undermined the asserted interest of the prison in maintaining security.*fn1
[14] II
[15] In light of our Disposition, we also vacate the district court's order affirming the clerk's taxation of costs, since the defendants are no longer the "prevailing party" within the meaning of Fed. R. Civ. P. 54(d). Gregory K. v. Longview Sch. Dist., 811 F.2d 1307, 1315 (9th Cir. 1987).
[16] VACATED AND REMANDED.
[17] Disposition
[18] VACATED AND REMANDED.
--------------------------------------------------------------------------------
General Footnotes
--------------------------------------------------------------------------------
[19] *fn* The panel finds this case appropriate for submission without oral argument pursuant to 9th Cir. R. 34-4 and Fed. R. App. P. 34(a).
--------------------------------------------------------------------------------
Opinion Footnotes
--------------------------------------------------------------------------------
[20] *fn1 Exceptions to the rule apparently existed in Kines, 754 F.2d at 29, and Cotton, 620 F.2d at 671. However, in neither case did the court consider whether the exceptions established that the policy was irrational or arbitrary.
[21] *fn* This Disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir. R. 36-3.