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Washington Porn Ban Challenged
Playboy Suit Not Frivolous: In an unpublished ruling the court of appeals for the ninth circuit held that a federal court in Spokane, Washington, erred when it dismissed as frivolous a lawsuit by prisoner Mark LaRue challenging the censorship of his subscription to Playboy . In his complaint LaRue alleged that his first and fourteenth amendment rights were violated when Washington prison officials confiscated his Playboy magazine under its ban on sexually explicit materials. [See Nov. 1997. PLN for the background on recent censorship in Washington state prisons.] LaRue also claimed the policy was arbitrarily enforced.
The appeals court held this was sufficient to state a claim under 42 U.S.C. § 1983. The case was remanded to the district court for further proceedings. Readers should note this is not a ruling on the merits and, as an unpublished ruling, cannot be cited as precedent. See: LaRue v. Blodgett , 1997 WL 412542 (9th Cir. WA). Case No. 96-35658.
WSP Mail Rules Upheld: Joseph Allen filed suit challenging various aspects of the mail policy at the Washington State Penitentiary. After filing suit Allen did no discovery and when the defendants moved for summary judgment he did not bother responding. Not surprisingly, the court ruled against Allen. Surprisingly, the court decided to publish its ruling and establish a precedent. On the DOC's uncontested motion the court upheld a WSP ban on catalogs, sexually explicit materials, loose postage stamps, personal letters to and from Allen describing homosexual activity and books of stamps without Allen's name and DOC number on them. See: Allen v. Wood , 970 F. Supp. 824 (ED WA 1997).
Washington readers should note that the DOC's ban on sexually explicit material is being challenged in the ACLU sponsored suit Humanists of Washington v. Lehman . See: PLN , Nov. 1997.
The appeals court held this was sufficient to state a claim under 42 U.S.C. § 1983. The case was remanded to the district court for further proceedings. Readers should note this is not a ruling on the merits and, as an unpublished ruling, cannot be cited as precedent. See: LaRue v. Blodgett , 1997 WL 412542 (9th Cir. WA). Case No. 96-35658.
WSP Mail Rules Upheld: Joseph Allen filed suit challenging various aspects of the mail policy at the Washington State Penitentiary. After filing suit Allen did no discovery and when the defendants moved for summary judgment he did not bother responding. Not surprisingly, the court ruled against Allen. Surprisingly, the court decided to publish its ruling and establish a precedent. On the DOC's uncontested motion the court upheld a WSP ban on catalogs, sexually explicit materials, loose postage stamps, personal letters to and from Allen describing homosexual activity and books of stamps without Allen's name and DOC number on them. See: Allen v. Wood , 970 F. Supp. 824 (ED WA 1997).
Washington readers should note that the DOC's ban on sexually explicit material is being challenged in the ACLU sponsored suit Humanists of Washington v. Lehman . See: PLN , Nov. 1997.
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Related legal case
LaRue v. Blodgett
| Year | 1997 |
|---|---|
| Cite | 1997 WL 412542 (9th Cir. WA) Case. No. 96-35658 |
| Level | Court of Appeals |
119 F.3d 6 (Table), 1997 WL 412542 (9th Cir.(Wash.)), Unpublished Disposition
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regarding the citation of unpublished opinions.)
United States Court of Appeals, Ninth Circuit.
Mark LARUE, Plaintiff-Appellant,
v.
Jim BLODGETT, Deputy Director; L. Wrinkle, Mail Room Officer, Defendants-Appellees.
No. 96-35658.
Submitted April 8, 1997. [FN**]
FN** The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); 9th Cir. R. 34-4.
Decided July 22, 1997.
Appeal from the United States District Court for the Eastern District of Washington, No. CV-96-03055-AAM; Alan A. McDonald, District Judge, Presiding.
Before REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District Judge. [FN***]
FN*** Honorable John W. Sedwick, United States District Judge for the District of Alaska, sitting by designation.
MEMORANDUM [FN*]
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 Mark LaRue, a Washington state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 complaint. LaRue alleged that prison officials violated his First and Fourteenth Amendment rights by confiscating his Playboy magazines for February and March of 1996. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
The district court dismissed LaRue's complaint as frivolous under 28 U.S.C. § 1915(d). On April 26, 1996, the Prison Litigation Reform Act of 1996 ("the Act"), Pub.L. No. 104-134, 110 Stat. 1321, was signed into law. [FN1] Under the Act, section 1915(d) was redesignated section 1915(e). Section 1915(e)(2) applies to prisoner proceedings in forma pauperis and requires us to dismiss an appeal sua sponte at any time if the case is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief. See Marks v. Solcum, 98 F.3d 494, 495 (9th Cir.1996). Accordingly, we apply the provision in this case.
FN1. LaRue's notice of appeal was filed in district court on June 13, 1996.
To state a section 1983 claim, a plaintiff must allege facts showing that a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the Constitution. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991). The complaint must allege specific conduct by the defendants that was the proximate cause of the section 1983 injury. King v. Massarweh, 782 F.2d 825, 829 (9th Cir.1986).
In his amended complaint, LaRue alleges that the named prison officials violated his First and Fourteenth Amendment rights by confiscating two issues of Playboy magazine pursuant to a prison policy that prohibits "sexually explicit" material. La Rue further alleges that the prison policy is arbitrarily enforced as he and other prisoners have generally been allowed to receive Playboy magazine as well as other more "explicit" publications such as Hustler magazine. The facts alleged by LaRue are sufficient to state a section 1983 claim. See Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989) (stating that to justify a content-based prison regulation, a prison must show that the restricted material poses a threat to a legitimate penological interest and is not "so remote as to render the policy arbitrary or irrational"). Accordingly, we reverse the district court's decision and remand the matter for further proceedings.
REVERSED and REMANDED.
119 F.3d 6 (Table), 1997 WL 412542 (9th Cir.(Wash.)), Unpublished Disposition
END OF DOCUMENT
NOTICE: THIS IS AN UNPUBLISHED OPINION.
(The Court's decision is referenced in a "Table of Decisions Without Reported Opinions" appearing in the Federal Reporter. Use FI CTA9 Rule 36-3 for rules regarding the citation of unpublished opinions.)
United States Court of Appeals, Ninth Circuit.
Mark LARUE, Plaintiff-Appellant,
v.
Jim BLODGETT, Deputy Director; L. Wrinkle, Mail Room Officer, Defendants-Appellees.
No. 96-35658.
Submitted April 8, 1997. [FN**]
FN** The panel unanimously finds this case suitable for decision without oral argument. Fed. R.App. P. 34(a); 9th Cir. R. 34-4.
Decided July 22, 1997.
Appeal from the United States District Court for the Eastern District of Washington, No. CV-96-03055-AAM; Alan A. McDonald, District Judge, Presiding.
Before REINHARDT and THOMAS, Circuit Judges, and SEDWICK, District Judge. [FN***]
FN*** Honorable John W. Sedwick, United States District Judge for the District of Alaska, sitting by designation.
MEMORANDUM [FN*]
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 Mark LaRue, a Washington state prisoner, appeals pro se the district court's sua sponte dismissal of his 42 U.S.C. § 1983 complaint. LaRue alleged that prison officials violated his First and Fourteenth Amendment rights by confiscating his Playboy magazines for February and March of 1996. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand.
The district court dismissed LaRue's complaint as frivolous under 28 U.S.C. § 1915(d). On April 26, 1996, the Prison Litigation Reform Act of 1996 ("the Act"), Pub.L. No. 104-134, 110 Stat. 1321, was signed into law. [FN1] Under the Act, section 1915(d) was redesignated section 1915(e). Section 1915(e)(2) applies to prisoner proceedings in forma pauperis and requires us to dismiss an appeal sua sponte at any time if the case is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant immune from such relief. See Marks v. Solcum, 98 F.3d 494, 495 (9th Cir.1996). Accordingly, we apply the provision in this case.
FN1. LaRue's notice of appeal was filed in district court on June 13, 1996.
To state a section 1983 claim, a plaintiff must allege facts showing that a person acting under color of state law deprived the plaintiff of a right, privilege, or immunity secured by the Constitution. See Crumpton v. Gates, 947 F.2d 1418, 1420 (9th Cir.1991). The complaint must allege specific conduct by the defendants that was the proximate cause of the section 1983 injury. King v. Massarweh, 782 F.2d 825, 829 (9th Cir.1986).
In his amended complaint, LaRue alleges that the named prison officials violated his First and Fourteenth Amendment rights by confiscating two issues of Playboy magazine pursuant to a prison policy that prohibits "sexually explicit" material. La Rue further alleges that the prison policy is arbitrarily enforced as he and other prisoners have generally been allowed to receive Playboy magazine as well as other more "explicit" publications such as Hustler magazine. The facts alleged by LaRue are sufficient to state a section 1983 claim. See Harper v. Wallingford, 877 F.2d 728, 733 (9th Cir.1989) (stating that to justify a content-based prison regulation, a prison must show that the restricted material poses a threat to a legitimate penological interest and is not "so remote as to render the policy arbitrary or irrational"). Accordingly, we reverse the district court's decision and remand the matter for further proceedings.
REVERSED and REMANDED.
119 F.3d 6 (Table), 1997 WL 412542 (9th Cir.(Wash.)), Unpublished Disposition
END OF DOCUMENT