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PLN Strikes Down Oregon Bulk Mail Ban
The court of appeals for the Ninth circuit held that the Oregon Department of Corrections (DOC) ban on third class standard non-profit mail (AKA bulk mail) was unconstitutional and violated the First amendment rights of publishers and prisoners alike. The court also held that the sender and recipient of third class mail are entitled to due process notice of censorship, regardless of the amount of postage paid. The court also held the defendants were entitled to qualified immunity from damages as the law on this issue was not clearly established.
In 1988 the Oregon DOC banned the receipt of bulk mail from its prisons. Since then, any third or fourth-class mail received at Oregon prisons has been destroyed or returned to the post office. Oregon prisoners could only receive mail sent via express mail, priority mail, first class or periodicals rate. Everything else was prohibited based on the postage rate paid by the sender.
PLN has been mailing its magazine at third class non-profit rates since 1991. For several years PLN provided hand mailed subscriptions to Oregon prisoners at a higher rate to offset not only the postage difference but also the staff time involved in processing the subscriptions. The paradox for PLN was that the more Oregon prisoners who subscribed, the greater the burden on PLN's limited resources.
In 1998 PLN stopped sending subscriptions by first class mail to Oregon prisoners. PLN retained counsel, Alison Hardy of the Oregon Law Center and Marc Blackman, an Oregon ACLU cooperating attorney. PLN, the Coalition for Prisoner Rights [see sidebar for details on their shameful role in this litigation] and Oregon prisoners Mark Wilson, Michael Tucker and Hung Le filed suit in federal court claiming that the Oregon DOC's ban on third class mail violated their right to free speech and due process. The plaintiffs sought injunctive, declaratory and monetary relief. [see PLN, Jan. 1999] The district court granted summary judgment to the defendants, ruling that the bulk mail ban did not implicate the First amendment. PLN and the prisoner plaintiffs appealed and the appeals court, in a unanimous opinion, reversed and remanded.
The court gives a detailed examination of the factual record in the case. Namely, that non-profit bulk mail accounted for a miniscule amount of the total mail received at Oregon prisons. A key piece of evidence was the fact that the Oregon attorney general's office of child support enforcement conducted a third class mailing to numerous Oregon prisoners, which was not properly addressed, but which was still delivered. While mail from PLN and other non-profits was destroyed, bulk mailings from the AG's office was duly delivered to the addressee. The court concluded that prison officials' ban on bulk mail was an "exaggerated response."
The court rejected the defendants' claim that the bulk mail ban did not implicate free speech issues. "In this case, although we agree that the department regulation mainly affects economic interests, it is also clear that the regulation implicates both publisher's and prisoners' First amendment rights. The speech at issue is core protected speech, not commercial speech or speech who's content is objectionable on security or other grounds. Nor does the receipt of such unobjectionable mail implicate penological interests... Finally, paying a higher rate is not an alternative because the prisoner cannot force a publisher who needs to use, and is entitled to use, the standard rate to take additional costly steps to mail his individual newsletter."
Applying the balancing test of Turner v. Safley, 482 U.S. 78 (1987), the court simply stated "We hold that tying the receipt of subscription non profit newsletters to postal service rate classifications is not rationally related to any legitimate penological interest put forth by the department." In doing so, the court applied an important burden shifting test first outlined in Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990) and Frost v. Symington, 197 F.3d 348 (9th Cir. 1999). Under this standard, when the prisoner or publisher plaintiff presents sufficient evidence to refute a "common sense" connection between the challenged prison regulation and a legitimate penological objective, then "the state must present enough counter evidence to show that the connection is not so remote as to render the policy arbitrary or irrational."
If PLN and the prisoner plaintiffs had failed to meet this standard the only question would have been whether prison officials reasonably could have thought the policy advanced legitimate penological interests. This is an important issue for any litigant challenging any prison rule, not just in a censorship context. Since PLN and the plaintiffs did meet this standard, the burden then shifted to the defendants.
The defendants argued, and failed miserably in doing so, that the bulk mail ban reduced the likelihood of contraband entering the prison system; reduced fire hazards in cells; made cells easier to search and allowed mailroom staff to concentrate on inspecting and processing acceptable mail. The court noted that the factual and evidentiary record in this case debunked each of these excuses.
"We do not believe that requiring the delivery of non profit organization standard mail will unduly burden the department. The department and its officials ignore the fact that at issue is the addition of 15 to 30 pieces of mail to the 5,000 to 8,000 pieces of acceptable mail that are processed at some department institutions daily. Furthermore, the fact that the department was able to process improperly addressed bulk mail sent by the Oregon attorney general's office suggests that the department exaggerates the administrative burden that processing subscription non profit mail would impose."
"The rational relationship factor of the Turner standard is a sine qua non .... Because the department and its officials have failed to show that the ban on standard mail is rationally related to a legitimate penological objective, we do not consider the other Turner factors. Rather, we are required to reverse." The court relied on Miniken v. Walter, 978 F.Supp. 1356 (ED WA 1997) to hold that personal subscriptions to a specific publication resembles personal correspondence more than it does mass mailings.
The court held that Oregon prison officials were entitled to qualified immunity because publishers' right to send and prisoners' right to receive subscription non profit organization standard mail were not "sufficiently clear that a reasonable official would understand that what he [was] doing violated that right..." While Miniken had struck down a similar Washington policy as applied to PLN, two Oregon district court judges had upheld the policy in unpublished opinions. The court did not mention that an Oregon appeals court had also upheld the policy in a published opinion.
The court held that the plaintiffs are entitled to due process when third class mail such as PLN is censored. "Because we decided that publisher and prisoners have a constitutionally protected right to receive subscription non profit organization standard mail, it follows that such mail must be afforded the same procedural protections as first class and periodicals mail under department regulations..."
The court reversed and remanded the case for further proceedings. The court also granted the plaintiffs' request for reasonable attorney fees and costs, to be fixed on remand.
An amicus brief on behalf of the plaintiffs was filed by the ACLU of Washington (which had represented the plaintiff in Miniken and PLN in litigation against the Washington DOC on this issue), and the Independent Press Association (which PLN is a member of), the National Lawyers Guild, American Humanist Association and Americans for Religious Liberty. The amicus argued that the supremacy clause precluded states from abrogating the right of non-profit publishers to use postage rates established by congress. While the court accepted the amicus brief, the court did not address the issue. Joseph Bringman of the Seattle firm of Perkins Coie represented the amicus.
PLN and the prisoner plaintiffs were capably represented on appeal by Sam Stiltner and Janet Stanton of Seattle. A special thanks goes to them for taking the case pro bono on short notice [see details in sidebar], and obviously for winning it. Mickey Gendler, the Seattle attorney who litigated Miniken, also consulted on the appeal in this case. We would also like to thank the amicus for joining us in the appeal and Joe Bringman for agreeing to file the brief on their behalf. A big thanks goes to Alison Hardy and Marc Blackman whose excellent trial court representation and development of the factual record made the appellate victory possible. Rollin Wright, PLN's publisher, and U.S. post office employee George Hoyt spent many hours developing the evidence for our attorneys on the different postal rates, how they applied to the case and their impact on PLN. Our prisoner plaintiffs also played an important role in developing the factual background that laid the groundwork for the suit. Mark Wilson, a PLN contributing writer, also seized upon what turned out to be a critical piece of evidence: the Oregon AG's bulk mailing to Oregon prisoners. We would also like to thank Mike Snedeker, the Portland attorney who helped us find counsel to litigate the matter.
It is hard to overstate the importance of this ruling. PLN's entire operation revolves around its non-profit mail rates. Had PLN lost this case it is likely that prisoncrats in other states would have followed suit with similar bans. PLN had already successfully litigated bulk mail bans in Washington and Utah. Had the appeal failed in this case PLN would probably have had to raise its rates and switch to a higher postage class.
PLN has started sending PLN to Oregon prisoners via third class mail and we hope to expand our readership among Oregon prisoners. We will report the entry of a permanent injunction and the amount of attorney fees awarded on remand. See: Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001).
In 1988 the Oregon DOC banned the receipt of bulk mail from its prisons. Since then, any third or fourth-class mail received at Oregon prisons has been destroyed or returned to the post office. Oregon prisoners could only receive mail sent via express mail, priority mail, first class or periodicals rate. Everything else was prohibited based on the postage rate paid by the sender.
PLN has been mailing its magazine at third class non-profit rates since 1991. For several years PLN provided hand mailed subscriptions to Oregon prisoners at a higher rate to offset not only the postage difference but also the staff time involved in processing the subscriptions. The paradox for PLN was that the more Oregon prisoners who subscribed, the greater the burden on PLN's limited resources.
In 1998 PLN stopped sending subscriptions by first class mail to Oregon prisoners. PLN retained counsel, Alison Hardy of the Oregon Law Center and Marc Blackman, an Oregon ACLU cooperating attorney. PLN, the Coalition for Prisoner Rights [see sidebar for details on their shameful role in this litigation] and Oregon prisoners Mark Wilson, Michael Tucker and Hung Le filed suit in federal court claiming that the Oregon DOC's ban on third class mail violated their right to free speech and due process. The plaintiffs sought injunctive, declaratory and monetary relief. [see PLN, Jan. 1999] The district court granted summary judgment to the defendants, ruling that the bulk mail ban did not implicate the First amendment. PLN and the prisoner plaintiffs appealed and the appeals court, in a unanimous opinion, reversed and remanded.
The court gives a detailed examination of the factual record in the case. Namely, that non-profit bulk mail accounted for a miniscule amount of the total mail received at Oregon prisons. A key piece of evidence was the fact that the Oregon attorney general's office of child support enforcement conducted a third class mailing to numerous Oregon prisoners, which was not properly addressed, but which was still delivered. While mail from PLN and other non-profits was destroyed, bulk mailings from the AG's office was duly delivered to the addressee. The court concluded that prison officials' ban on bulk mail was an "exaggerated response."
The court rejected the defendants' claim that the bulk mail ban did not implicate free speech issues. "In this case, although we agree that the department regulation mainly affects economic interests, it is also clear that the regulation implicates both publisher's and prisoners' First amendment rights. The speech at issue is core protected speech, not commercial speech or speech who's content is objectionable on security or other grounds. Nor does the receipt of such unobjectionable mail implicate penological interests... Finally, paying a higher rate is not an alternative because the prisoner cannot force a publisher who needs to use, and is entitled to use, the standard rate to take additional costly steps to mail his individual newsletter."
Applying the balancing test of Turner v. Safley, 482 U.S. 78 (1987), the court simply stated "We hold that tying the receipt of subscription non profit newsletters to postal service rate classifications is not rationally related to any legitimate penological interest put forth by the department." In doing so, the court applied an important burden shifting test first outlined in Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990) and Frost v. Symington, 197 F.3d 348 (9th Cir. 1999). Under this standard, when the prisoner or publisher plaintiff presents sufficient evidence to refute a "common sense" connection between the challenged prison regulation and a legitimate penological objective, then "the state must present enough counter evidence to show that the connection is not so remote as to render the policy arbitrary or irrational."
If PLN and the prisoner plaintiffs had failed to meet this standard the only question would have been whether prison officials reasonably could have thought the policy advanced legitimate penological interests. This is an important issue for any litigant challenging any prison rule, not just in a censorship context. Since PLN and the plaintiffs did meet this standard, the burden then shifted to the defendants.
The defendants argued, and failed miserably in doing so, that the bulk mail ban reduced the likelihood of contraband entering the prison system; reduced fire hazards in cells; made cells easier to search and allowed mailroom staff to concentrate on inspecting and processing acceptable mail. The court noted that the factual and evidentiary record in this case debunked each of these excuses.
"We do not believe that requiring the delivery of non profit organization standard mail will unduly burden the department. The department and its officials ignore the fact that at issue is the addition of 15 to 30 pieces of mail to the 5,000 to 8,000 pieces of acceptable mail that are processed at some department institutions daily. Furthermore, the fact that the department was able to process improperly addressed bulk mail sent by the Oregon attorney general's office suggests that the department exaggerates the administrative burden that processing subscription non profit mail would impose."
"The rational relationship factor of the Turner standard is a sine qua non .... Because the department and its officials have failed to show that the ban on standard mail is rationally related to a legitimate penological objective, we do not consider the other Turner factors. Rather, we are required to reverse." The court relied on Miniken v. Walter, 978 F.Supp. 1356 (ED WA 1997) to hold that personal subscriptions to a specific publication resembles personal correspondence more than it does mass mailings.
The court held that Oregon prison officials were entitled to qualified immunity because publishers' right to send and prisoners' right to receive subscription non profit organization standard mail were not "sufficiently clear that a reasonable official would understand that what he [was] doing violated that right..." While Miniken had struck down a similar Washington policy as applied to PLN, two Oregon district court judges had upheld the policy in unpublished opinions. The court did not mention that an Oregon appeals court had also upheld the policy in a published opinion.
The court held that the plaintiffs are entitled to due process when third class mail such as PLN is censored. "Because we decided that publisher and prisoners have a constitutionally protected right to receive subscription non profit organization standard mail, it follows that such mail must be afforded the same procedural protections as first class and periodicals mail under department regulations..."
The court reversed and remanded the case for further proceedings. The court also granted the plaintiffs' request for reasonable attorney fees and costs, to be fixed on remand.
An amicus brief on behalf of the plaintiffs was filed by the ACLU of Washington (which had represented the plaintiff in Miniken and PLN in litigation against the Washington DOC on this issue), and the Independent Press Association (which PLN is a member of), the National Lawyers Guild, American Humanist Association and Americans for Religious Liberty. The amicus argued that the supremacy clause precluded states from abrogating the right of non-profit publishers to use postage rates established by congress. While the court accepted the amicus brief, the court did not address the issue. Joseph Bringman of the Seattle firm of Perkins Coie represented the amicus.
PLN and the prisoner plaintiffs were capably represented on appeal by Sam Stiltner and Janet Stanton of Seattle. A special thanks goes to them for taking the case pro bono on short notice [see details in sidebar], and obviously for winning it. Mickey Gendler, the Seattle attorney who litigated Miniken, also consulted on the appeal in this case. We would also like to thank the amicus for joining us in the appeal and Joe Bringman for agreeing to file the brief on their behalf. A big thanks goes to Alison Hardy and Marc Blackman whose excellent trial court representation and development of the factual record made the appellate victory possible. Rollin Wright, PLN's publisher, and U.S. post office employee George Hoyt spent many hours developing the evidence for our attorneys on the different postal rates, how they applied to the case and their impact on PLN. Our prisoner plaintiffs also played an important role in developing the factual background that laid the groundwork for the suit. Mark Wilson, a PLN contributing writer, also seized upon what turned out to be a critical piece of evidence: the Oregon AG's bulk mailing to Oregon prisoners. We would also like to thank Mike Snedeker, the Portland attorney who helped us find counsel to litigate the matter.
It is hard to overstate the importance of this ruling. PLN's entire operation revolves around its non-profit mail rates. Had PLN lost this case it is likely that prisoncrats in other states would have followed suit with similar bans. PLN had already successfully litigated bulk mail bans in Washington and Utah. Had the appeal failed in this case PLN would probably have had to raise its rates and switch to a higher postage class.
PLN has started sending PLN to Oregon prisoners via third class mail and we hope to expand our readership among Oregon prisoners. We will report the entry of a permanent injunction and the amount of attorney fees awarded on remand. See: Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001).
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Related legal case
Prison Legal News v. Cook
| Year | 2001 |
|---|---|
| Cite | 238 F.3d 1145 (9th Cir. 2001) |
| Level | Court of Appeals |
Prison Legal News v. Cook, 238 F.3d 1145, 238 F.3d 1145 (9th Cir. 02/07/2001)
[1] U.S. Court of Appeals, Ninth Circuit
[2] No. 99-36084
[3] 238 F.3d 1145, 238 F.3d 1145, 2001, 1 Cal. Daily Op. Serv. 1121, 1 Cal. Daily Op. Serv. 1121
[4] February 07, 2001
[5] PRISON LEGAL NEWS; MARK WILSON; MICHAEL TUCKER; HUNG LE, PLAINTIFFS-APPELLANTS,
v.
DAVID S. COOK, DIRECTOR OF OREGON DEPARTMENT OF CORRECTIONS; DAVID SCHUMACHER, RULES/COMPLIANCE MANAGER OF OREGON DEPARTMENT OF CORRECTIONS, DEFENDANTS-APPELLEES.
[6] D.C. No. CV-98-01344-MFM Appeal from the United States District Court for the District of Oregon Malcolm F. Marsh, District Judge, Presiding
[7] Counsel Samuel J. Stiltner, Seattle, Washington, for the plaintiffs-appellants. Christina M. Hutchins, Assistant Attorney General, Salem, Oregon, for the defendants-appellees. Joseph E. Bringman, Perkins Coie, Seattle, Washington, for the amici.
[8] Before: Robert R. Beezer, Pamela Ann Rymer and Susan P. Graber, Circuit Judges.
[9] The opinion of the court was delivered by: Beezer, Circuit Judge
[10] FOR PUBLICATION
[11] OPINION
[12] Argued and Submitted November 14, 2000
[13] Portland, Oregon
[14] OPINION
[15] Prison Legal News ("Publisher"), publisher of a non-profit newsletter, and prisoners Michael Tucker, Mark Wilson and Hung Le ("Prisoners") appeal the district court's grant of summary judgment on their 42 U.S.C. S 1983 claims in favor of defendant officials ("Officials") of the Oregon Department of Corrections ("the Department"). We have jurisdiction pursuant to 8 U.S.C. S 1291 and reverse and remand.
[16] I.
[17] This case concerns the constitutionality of the Department' s policy of prohibiting the receipt of standard rate mail, as applied to subscription non-profit organization mail. The following facts are undisputed.
[18] Since 1988, the Department has prohibited the receipt of bulk mail into Oregon prisons under the rationales that bulk mail is voluminous and generally of little value to prisoners; substantial staff is required to sort, inspect and distribute bulk mail; bulk mail poses security concerns; and bulk mail increases fire hazards. The Department regulation at issue prohibits all incoming mail except "express mail, priority mail, first class mail or periodicals mail." Or. Admin. R. 291131 -0025(8) (1998).*fn1 Oregon has the only prison system in the country that refuses to deliver subscription non-profit organization standard mail like that at issue.
[19] The record shows that Oregon penal institutions process a substantial amount of mail. Prior to the enactment of the ban on bulk mail, the state penitentiary reported receiving 500 pieces of bulk mail daily. An informal survey taken in 1994 revealed that the penitentiary mailroom staff processed 5000 to 8000 pieces of first class mail daily. In July 1999, the mailroom staff reported receiving 662 pieces of standard mail in five days, including 172 pieces of non-profit organization mail. The Snake River Correctional Institution ("Snake River") reported that it receives, on average, 7000 to 8000 pounds of incoming mail a month. Snake River also reported that over a four-day period in January of 1999, *fn2 it received 296 pounds of standard mail and that, over a five-day period in the same month, it received 348 pounds of standard mail. The state's Correctional Institution ("Correctional Institution ") reported that over a five-day period in July of 1999, it received 288 pieces of standard mail, 86 of which were nonprofit organization mail.
[20] Department regulations establish procedures for processing incoming mail applicable at all of its penal institutions. First, all incoming inmate mail is sorted into two categories: express, priority, first class and periodicals mail is kept for further processing. All other mail, including standard mail, is returned to the Postal Service.*fn3 A prisoner has no way of knowing that a particular piece of standard mail addressed to the prisoner was returned or destroyed. In general, the regulation itself provides notice that standard mail will not be delivered. After the mail is sorted, mailroom staff reviews the envelopes of acceptable mail for proper address and return address information. Next, mailroom staff reviews the inmate addressee's housing history and writes the inmate's housing assignment on the envelope. If the inmate has been transferred to another institution, the mail is sent to that institution at the Department's expense. Incoming mail is then opened and inspected for content and contraband.
[21] For each piece of mail that is opened and deemed unauthorized, mailroom staff must write a Mail Violation Notice for correspondence or a Publications Violation Notice for publications. When correspondence is opened and rejected, the mailroom staff member writes the reason for the rejection on a Mail Violation Notice, puts the notice in the envelope and returns the envelope to the sender. The inmate receives a copy of the violation notice and has 15 days to request administrative review of any rejection based on written or pictorial content. The non-inmate sender has 15 days to request review of any rejection. If a publication is rejected, notification and review procedures are the same, except that the inmate and the publisher have 30 days to request administrative review of a rejection.
[22] If Department regulations were to allow standard mail, the Department's mailroom staff would be required to give standard mail the same attention it gives to first class and periodicals mail, detailed above.
[23] Because non-profit organization standard mail is labeled on its face, it is feasible to separate such mail from other standard mail, although it is impossible facially to distinguish between non-profit organization subscriptions and other non-profit organization mail. In addition, although Oregon penal institutions receive a significant amount of standard mail, the amount of standard non-profit organization mail coming in over a selected two-week period was "next to nothing." Moreover, the record indicates that the state penitentiary processed and delivered notices from the Oregon Attorney General, Department of Justice Support Enforcement Division, which were labeled and mailed as "Bulk Mail" and were insufficiently addressed.
[24] II.
[25] The record identifies the problems experienced by Oregon state prisoners who desire to subscribe to materials published by non-profit organizations and mailed under special rates fixed by the Postal Service. Publisher Prison Legal News conducts its activity through a non-profit organization, which prepares and circulates newsletters addressing prison-related issues. Publisher qualifies to use Standard A "non-profit organization rates" to circulate its newsletter. These postal rates are substantially lower than rates for express mail, priority mail, first class mail or periodicals mail. Publisher has approximately 2600 subscribers, including prisoners, nonprisoners, professionals and institutions. Fifteen Oregon state prisoners subscribe to Publisher's newsletter. Several Department employees reviewed Publisher's newsletter and determined that the content rendered it acceptable for admission; that is, the newsletter is rejected strictly because of the Standard A postage rate. A prisoner could receive a subscription to Publisher's newsletter provided that the material was posted using first class or periodicals mail rates.
[26] Prisoners Mark Wilson, Michael Tucker and Hung Le are inmates at the state penitentiary. Wilson is a paid subscriber to Publisher's newsletter. Publisher formerly sent its newsletter to Wilson affixing first class postage, in compliance with Oregon prison regulations. According to Publisher's circulation director, this practice recently became too expensive. Consequently, Publisher sends all of its newsletters via standard rate mail. Because the Department prohibits standard mail, Wilson has not received his subscription to the newsletter since January of 1999.
[27] Tucker also tried to subscribe to the newsletter but was informed by the editor that Publisher could not honor his request because of the Department's prohibition against standard mail. In addition, Tucker's subscription to a different newsletter was thwarted by reason of postal expenses incurred to meet the Department's mail regulations.
[28] Le requested religious material from the International Prison Ministry, a non-profit organization that sends out solicited Bibles and other material using standard rate mail. Le received a letter from the chaplain explaining that the request could not be fulfilled because Oregon prisons would not deliver standard mail to prisoners.*fn4
[29] III.
[30] We review de novo an order granting summary judgment. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). Viewing the evidence in the light most favorable to the nonmoving party, we determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id.
[31] [1] Publisher and Prisoners first argue that the Department' s regulation banning standard mail impermissibly infringes on their First Amendment rights. The Supreme Court makes clear that in the prison context, an inmate retains those First Amendment rights not "inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129 (1977) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). Furthermore, publishers who wish to communicate with inmates by sending requested subscriptions have a "legitimate First Amendment interest in access to prisoners." Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). We are required to afford considerable deference to the expertise and decisionmaking of prison administrators. See id. at 407-08; Turner v. Safley, 482 U.S. 78, 85 (1987).
[32] [2] As a preliminary matter, we reject Officials' argument that the regulation banning standard mail does not implicate Publisher's and Prisoners' First Amendment rights because it results only in the loss of cost advantages. Officials point to the main effect of the Department's policy, which is to require non-profit organizations, entitled to use standard mail rates, to forego a cost advantage and use first class mail to send their newsletters to prisoners in Oregon institutions. See Jones, 433 U.S. at 130-31 (holding that where other avenues remain available for the receipt of materials by inmates, the loss of "cost advantages does not fundamentally implicate free speech values"); see also Bell v. Wolfish, 441 U.S. 520 (1979) (relying on Jones). In this case, although we agree that the Department regulation mainly affects economic interests, it is also clear that the regulation implicates both Publisher's and Prisoners' First Amendment rights. The speech at issue is core protected speech, not commercial speech or speech whose content is objectionable on security or other grounds. Nor does the receipt of such unobjectionable mail implicate penological interests. Cf. Jones, 433 U.S. at 131-32 (noting that the speech at issue, the solicitation of membership in prisoners' union, raised security concerns because it was an "invitation to collectively engage in a legitimately prohibited activity"). Finally, paying a higher rate is not an alternative because the prisoner cannot force a publisher who needs to use, and is entitled to use, the standard rate to take additional costly steps to mail his individual newsletter.
[33] [3] In Turner the Supreme Court says: "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89. There are four factors relevant to the Turner reasonableness inquiry: (1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Id. at 89-90. The same analysis applies to regulations affecting publishers' rights to send materials to prisoners. See Thornburgh, 490 U.S. at 413 (applying Turner to regulations affecting incoming inmate mail regardless of the sender's identity).
[34] [4] The first element of the Turner test directs us to (1) determine whether the Department's regulation is legitimate and neutral; and (2) assess whether there is a rational relationship between the governmental objective and the regulation. We hold that tying the receipt of subscription non-profit newsletters to postal service rate classifications is not rationally related to any legitimate penological interest put forth by the Department.*fn5
[35] In Frost v. Symington, 197 F.3d 348 (9th Cir. 1999), we clarified that the level of scrutiny to be applied to the decisions of prison administrators depends on the circumstances in each case:
[36] When the inmate presents sufficient . . . evidence that refutes a common-sense connection between a legitimate objective and a prison regulation, Walker [v. Sumner, 917 F.2d 382 (9th Cir. 1990), ] applies, and the state must present enough counter-evidence to show that the connection is not so remote as to render the policy arbitrary or irrational. On the other hand, when the inmate does not present enough evidence to refute a common-sense connection between a prison regulation and the [asserted] objective . . . , Mauro [v. Arpaio, 188 F.3d 1054 (9th Cir. 1999),] applies and, presuming the governmental objective is legitimate and neutral, Turner's first prong is satisfied. Id. at 357 (internal quotation marks and citations omitted).
[37] Frost thus commands that if Publisher and Prisoners do not present sufficient evidence to refute a common-sense connection between the Department regulation and its stated objectives, "prison officials need not prove that the banned material actually caused problems in the past, or that the materials are `likely' to cause problems in the future." Mauro, 188 F.3d at 1060. The only question is whether prison administrators reasonably could have thought the regulation would advance legitimate penological interests. See id; Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir. 1993). If Publisher and Prisoners refute the common-sense connection, however, the Department must demonstrate that the relationship is not so "remote as to render the policy arbitrary or irrational." Mauro, 188 F.3d at 1060 (quoting Turner, 482 U.S. at 89-90).
[38] [5] The first purported justification for the regulation is that standard mail often contains contraband; banning all standard mail reduces the time spent by mailroom staff searching for contraband and the likelihood that contraband will end up in the prison. The Department has presented no evidence supporting a rational distinction between the risk of contraband in subscription non-profit organization standard mail and first class or periodicals mail. See Crofton v. Roe , 170 F.3d 957, 960 (9th Cir. 1999).
[39] [6] Second, the Department and its Officials assert that the ban on standard mail helps reduce fire hazards by limiting the quantity of flammable material in inmates' cells. Publisher and Prisoners respond that Department regulations restricting the amount of property inmates can possess already address this concern. See Or. Admin. R. 291-117-0005. The fact that Department property regulations already limit the amount of material an inmate can possess and the fact that inmates could conceivably receive bulk mail materials if sent first class refute the common sense connection between the refusal to deliver subscription standard mail and the reduction of fire hazards. The Department emphasizes that the accumulation of flammable materials is such a concern that the prisons conduct fire drills every 90 days. Publisher and Prisoners are not asking that all standard mail be delivered, however; they are asking only that personal subscriptions be delivered. It is irrational to believe that delivering the small amount of subscription non-profit organization standard mail that comes into Oregon prisons would significantly contribute to paper accumulation and increased fire hazards, as the total amount of mail prisoners may store in their cells is currently limited by property regulations. See Crofton, 170 F.3d at 960.
[40] [7] Third, the Department and its Officials state that the regulation increases the efficiency with which random cell inspections can be conducted. They argue that the accumulation of standard mail in a cell creates a good environment for hiding contraband. The fewer materials in the cell, the better a correctional officer can conduct a search. The property regulations mentioned above address this concern, however, and the quantity of additional subscription mail, once processed, would be minimal. The regulation is not rationally related to the Department's interest in rendering efficient cell searches.
[41] [8] The final objective purportedly furthered by the regulation is the enhancement of prison security. The Department and its Officials assert that the ban on standard mail allows mailroom staff to concentrate its efforts on timely processing acceptable mail and thoroughly inspecting such mail for content and contraband. Publisher and Prisoners respond that processing subscription non-profit organization standard mail would not substantially deplete prison resources and would not add significantly to the mailroom staff's workload. We agree. The reality is that all incoming mail must be sorted. The record shows that distinguishing between non-profit organization standard mail and regular/commercial standard mail is not unduly cumbersome, particularly in light of the relatively insignificant amount of incoming non-profit organization standard mail received at the Department's several facilities.
[42] The Department counters that although mailroom staff can separate standard mail from non-profit organization standard mail, it cannot readily distinguish subscription non-profit organization mail from unsolicited non-profit organization mail. To make such a distinction, the Department states that it would have to (1) create an active list of all names of all prisoners who subscribe to non-profit organization publications; (2) make the list available to all Department facilities; (3) provide personnel to update the list daily; (4) check all non-profit organization mail against the master list to ensure that it is subscription mail and that the subscription is current; and (5) process all subscription non-profit organization mail in the same manner as first class and periodicals mail and afford prisoners and publishers notice and review of rejections. We do not believe that requiring the delivery of nonprofit organization standard mail will unduly burden the Department. *fn6 The Department and its Officials ignore the fact that at issue is the addition of 15 to 30 pieces of mail to the 5000 to 8000 pieces of acceptable mail that are processed at some Department institutions daily. Furthermore, the fact that the Department was able to process improperly addressed bulk mail sent by the Oregon Attorney General's office suggests that the Department exaggerates the administrative burden that processing subscription non-profit mail would impose. The Department's concern that limiting the ban would encourage inmates to increase their subscriptions and lead to an unmanageable influx of subscription non-profit standard mail can be addressed by other regulations. For example, current Department regulations requiring proper address and addressee information and restricting content would apply to the additional mail and would help control volume. See Or. Admin. R. 291-131-0025(1); Or. Admin. R. 291-131-0035.
[43] [9] The rational relationship factor of the Turner standard is a sine qua non. Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990). Because the Department and its Officials have failed to show that the ban on standard mail is rationally related to a legitimate penological objective, we do not consider the other Turner factors. Rather, we are required to reverse.*fn7 See id.
[44] IV.
[45] [10] Publisher and Prisoners also argue that the district court improperly determined that the Department's Officials are entitled to qualified immunity. We disagree. We review de novo a district court's determination regarding qualified immunity in a S 1983 action. Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996). The Officials are entitled to qualified immunity if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We analyze qualified immunity claims using a twostep inquiry; we ask (1) whether the law governing the official' s conduct was clearly established at the time of the conduct; and, if so, (2) whether under that law a reasonable official could have believed the conduct was lawful. Robinson v. Solano County, 218 F.3d 1030, 1034 (9th Cir. 2000).
[46] [11] Because the "contours" of Publisher's right to send and Prisoners' right to receive subscription non-profit organization standard mail were not "sufficiently clear that a reasonable official would understand that what he [was ] doing violate[d] that right," Anderson v. Creighton, 483 U.S. 635, 640 (1987), the law in this case was not "clearly established." A number of cases support this view. In Sheets v. Moore, the Sixth Circuit upheld a regulation prohibiting "[f]ree advertising material, fliers, and other bulk rate mail except that received from a recognized religious organization sent in care of the institutional chaplain." 97 F.3d 164, 165 n.1 (6th Cir. 1996). Language in that case, however, distinguished between bulk rate mail and personal subscriptions, without directly addressing subscription bulk rate mail. See id. at 167. In Miniken v. Walter, on the other hand, a district court struck down a ban on bulk mail as applied to subscription non-profit organization mail such as Publisher's newsletter. 978 F. Supp. 1356 (E.D. Wash. 1997). This ruling was based, in part, on the fact that publications like Publisher's newsletter did not fall within the prison regulations' own definition of "bulk mail." See id. at 1361. Moreover, two Oregon district judges have upheld the Department regulation at issue in unpublished decisions. See Hunter v. Baldwin, Civ. No. 93-1579 (Or. 1995), aff'd on other grounds, 78 F.3d 593 (9th Cir. 1996) (table decision) (upholding former Or. Admin. R. 291-1310025 (8)); Morrison v. Hall, Civ. No. 93-6383-HO (Or. 1998). Although unpublished decisions carry no precedential weight, Department Officials may have relied on these decisions to inform their views on whether the regulation was valid and whether enforcing it would be lawful.*fn8
[47] V.
[48] Last, Publisher and Prisoners argue that the Department's failure to provide notice and administrative review of standard mail rejections deprives inmates and publishers of due process safeguards required by Procunier v. Martinez, 416 U.S. 396, 417 (1974) (holding that the "decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards"), overruled on other grounds by Thornburgh, 409 U.S. at 413-14. Due process guarantees apply only when a constitutionally protected liberty or property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569 (1972).
[49] Because we decide that Publisher and Prisoners have a constitutionally protected right to receive subscription non-profit organization standard mail, it follows that such mail must be afforded the same procedural protections as first class and periodicals mail under Department regulations.
[50] VI.
[51] We hold that the Department's ban on standard rate mail is unconstitutional as applied to subscription non-profit organization mail. We reverse the summary judgment in favor of Officials and remand for further proceedings consistent with this opinion. We grant Publisher's and Prisoners' request for reasonable attorney's fees, to be fixed on remand to the district court. See 42 U.S.C. S 1988.
[52] REVERSED AND REMANDED.
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Opinion Footnotes
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[53] *fn1 Effective July 1, 1996, the United States Postal Service ("Postal Service ") redefined its categories of mail. Mail that was previously designated as third or fourth class mail (bulk mail) is now classified as Standard A mail and Standard B mail, respectively. Standard A mail is further subdivided into two classes: "non-profit organization" mail and "regular/ commercial" mail. Second class mail is now referred to as "periodicals." In 1998, the Department amended its mail regulations to reflect the new Postal Service designations.
[54] *fn2 Because the record shows that Oregon penal institutions receive more mail than usual during holiday months like December and January, we view these numbers as slightly more than average.
[55] *fn3 It is not clear what the Postal Service does with the returned bulk mail. A prison mail inspector testified in his deposition that Postal Service employees have told him, on different occasions, that the mail is destroyed, donated to non-profit organizations and given to charities. The Postal Service gave permission to one of Oregon's penal institutions to destroy standard mail on site, so standard mail sent to that institution gets destroyed there rather than returned to the Postal Service.
[56] *fn4 Prisoners make no specific argument about Le's claim on appeal, and we assume that it has been abandoned.
[57] *fn5 Because we conclude that there is no rational relationship, we do not address Publisher's and Prisoners' argument that the regulation is not neutral, which is supported by the fact that the Department processed and delivered notices to inmates from the Oregon Attorney General that were insufficiently addressed and mailed at the standard rate.
[58] *fn6 We note here that because "a personal subscription of a particular publication more nearly resembles personal correspondence than a mass mailing, " such subscriptions deserve more attention than bulk mail. Miniken v. Walter, 978 F. Supp. 1356, 1362 (E.D. Wash. 1997).
[59] *fn7 At oral argument, the Department and its Officials contended that a holding in this case that the ban on standard mail is unconstitutional as applied would pose problems for the Department under Article I, Section 8, of the Oregon Constitution. We do not address this argument because the issue was not factually developed before the district court and was not presented to us in the briefs.
[60] *fn8 Although the individually named Officials in the instant case were not parties to the prior cases, the Department had notice of the unpublished dispositions.
[1] U.S. Court of Appeals, Ninth Circuit
[2] No. 99-36084
[3] 238 F.3d 1145, 238 F.3d 1145, 2001, 1 Cal. Daily Op. Serv. 1121, 1 Cal. Daily Op. Serv. 1121
[4] February 07, 2001
[5] PRISON LEGAL NEWS; MARK WILSON; MICHAEL TUCKER; HUNG LE, PLAINTIFFS-APPELLANTS,
v.
DAVID S. COOK, DIRECTOR OF OREGON DEPARTMENT OF CORRECTIONS; DAVID SCHUMACHER, RULES/COMPLIANCE MANAGER OF OREGON DEPARTMENT OF CORRECTIONS, DEFENDANTS-APPELLEES.
[6] D.C. No. CV-98-01344-MFM Appeal from the United States District Court for the District of Oregon Malcolm F. Marsh, District Judge, Presiding
[7] Counsel Samuel J. Stiltner, Seattle, Washington, for the plaintiffs-appellants. Christina M. Hutchins, Assistant Attorney General, Salem, Oregon, for the defendants-appellees. Joseph E. Bringman, Perkins Coie, Seattle, Washington, for the amici.
[8] Before: Robert R. Beezer, Pamela Ann Rymer and Susan P. Graber, Circuit Judges.
[9] The opinion of the court was delivered by: Beezer, Circuit Judge
[10] FOR PUBLICATION
[11] OPINION
[12] Argued and Submitted November 14, 2000
[13] Portland, Oregon
[14] OPINION
[15] Prison Legal News ("Publisher"), publisher of a non-profit newsletter, and prisoners Michael Tucker, Mark Wilson and Hung Le ("Prisoners") appeal the district court's grant of summary judgment on their 42 U.S.C. S 1983 claims in favor of defendant officials ("Officials") of the Oregon Department of Corrections ("the Department"). We have jurisdiction pursuant to 8 U.S.C. S 1291 and reverse and remand.
[16] I.
[17] This case concerns the constitutionality of the Department' s policy of prohibiting the receipt of standard rate mail, as applied to subscription non-profit organization mail. The following facts are undisputed.
[18] Since 1988, the Department has prohibited the receipt of bulk mail into Oregon prisons under the rationales that bulk mail is voluminous and generally of little value to prisoners; substantial staff is required to sort, inspect and distribute bulk mail; bulk mail poses security concerns; and bulk mail increases fire hazards. The Department regulation at issue prohibits all incoming mail except "express mail, priority mail, first class mail or periodicals mail." Or. Admin. R. 291131 -0025(8) (1998).*fn1 Oregon has the only prison system in the country that refuses to deliver subscription non-profit organization standard mail like that at issue.
[19] The record shows that Oregon penal institutions process a substantial amount of mail. Prior to the enactment of the ban on bulk mail, the state penitentiary reported receiving 500 pieces of bulk mail daily. An informal survey taken in 1994 revealed that the penitentiary mailroom staff processed 5000 to 8000 pieces of first class mail daily. In July 1999, the mailroom staff reported receiving 662 pieces of standard mail in five days, including 172 pieces of non-profit organization mail. The Snake River Correctional Institution ("Snake River") reported that it receives, on average, 7000 to 8000 pounds of incoming mail a month. Snake River also reported that over a four-day period in January of 1999, *fn2 it received 296 pounds of standard mail and that, over a five-day period in the same month, it received 348 pounds of standard mail. The state's Correctional Institution ("Correctional Institution ") reported that over a five-day period in July of 1999, it received 288 pieces of standard mail, 86 of which were nonprofit organization mail.
[20] Department regulations establish procedures for processing incoming mail applicable at all of its penal institutions. First, all incoming inmate mail is sorted into two categories: express, priority, first class and periodicals mail is kept for further processing. All other mail, including standard mail, is returned to the Postal Service.*fn3 A prisoner has no way of knowing that a particular piece of standard mail addressed to the prisoner was returned or destroyed. In general, the regulation itself provides notice that standard mail will not be delivered. After the mail is sorted, mailroom staff reviews the envelopes of acceptable mail for proper address and return address information. Next, mailroom staff reviews the inmate addressee's housing history and writes the inmate's housing assignment on the envelope. If the inmate has been transferred to another institution, the mail is sent to that institution at the Department's expense. Incoming mail is then opened and inspected for content and contraband.
[21] For each piece of mail that is opened and deemed unauthorized, mailroom staff must write a Mail Violation Notice for correspondence or a Publications Violation Notice for publications. When correspondence is opened and rejected, the mailroom staff member writes the reason for the rejection on a Mail Violation Notice, puts the notice in the envelope and returns the envelope to the sender. The inmate receives a copy of the violation notice and has 15 days to request administrative review of any rejection based on written or pictorial content. The non-inmate sender has 15 days to request review of any rejection. If a publication is rejected, notification and review procedures are the same, except that the inmate and the publisher have 30 days to request administrative review of a rejection.
[22] If Department regulations were to allow standard mail, the Department's mailroom staff would be required to give standard mail the same attention it gives to first class and periodicals mail, detailed above.
[23] Because non-profit organization standard mail is labeled on its face, it is feasible to separate such mail from other standard mail, although it is impossible facially to distinguish between non-profit organization subscriptions and other non-profit organization mail. In addition, although Oregon penal institutions receive a significant amount of standard mail, the amount of standard non-profit organization mail coming in over a selected two-week period was "next to nothing." Moreover, the record indicates that the state penitentiary processed and delivered notices from the Oregon Attorney General, Department of Justice Support Enforcement Division, which were labeled and mailed as "Bulk Mail" and were insufficiently addressed.
[24] II.
[25] The record identifies the problems experienced by Oregon state prisoners who desire to subscribe to materials published by non-profit organizations and mailed under special rates fixed by the Postal Service. Publisher Prison Legal News conducts its activity through a non-profit organization, which prepares and circulates newsletters addressing prison-related issues. Publisher qualifies to use Standard A "non-profit organization rates" to circulate its newsletter. These postal rates are substantially lower than rates for express mail, priority mail, first class mail or periodicals mail. Publisher has approximately 2600 subscribers, including prisoners, nonprisoners, professionals and institutions. Fifteen Oregon state prisoners subscribe to Publisher's newsletter. Several Department employees reviewed Publisher's newsletter and determined that the content rendered it acceptable for admission; that is, the newsletter is rejected strictly because of the Standard A postage rate. A prisoner could receive a subscription to Publisher's newsletter provided that the material was posted using first class or periodicals mail rates.
[26] Prisoners Mark Wilson, Michael Tucker and Hung Le are inmates at the state penitentiary. Wilson is a paid subscriber to Publisher's newsletter. Publisher formerly sent its newsletter to Wilson affixing first class postage, in compliance with Oregon prison regulations. According to Publisher's circulation director, this practice recently became too expensive. Consequently, Publisher sends all of its newsletters via standard rate mail. Because the Department prohibits standard mail, Wilson has not received his subscription to the newsletter since January of 1999.
[27] Tucker also tried to subscribe to the newsletter but was informed by the editor that Publisher could not honor his request because of the Department's prohibition against standard mail. In addition, Tucker's subscription to a different newsletter was thwarted by reason of postal expenses incurred to meet the Department's mail regulations.
[28] Le requested religious material from the International Prison Ministry, a non-profit organization that sends out solicited Bibles and other material using standard rate mail. Le received a letter from the chaplain explaining that the request could not be fulfilled because Oregon prisons would not deliver standard mail to prisoners.*fn4
[29] III.
[30] We review de novo an order granting summary judgment. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). Viewing the evidence in the light most favorable to the nonmoving party, we determine whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. See id.
[31] [1] Publisher and Prisoners first argue that the Department' s regulation banning standard mail impermissibly infringes on their First Amendment rights. The Supreme Court makes clear that in the prison context, an inmate retains those First Amendment rights not "inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 129 (1977) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). Furthermore, publishers who wish to communicate with inmates by sending requested subscriptions have a "legitimate First Amendment interest in access to prisoners." Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). We are required to afford considerable deference to the expertise and decisionmaking of prison administrators. See id. at 407-08; Turner v. Safley, 482 U.S. 78, 85 (1987).
[32] [2] As a preliminary matter, we reject Officials' argument that the regulation banning standard mail does not implicate Publisher's and Prisoners' First Amendment rights because it results only in the loss of cost advantages. Officials point to the main effect of the Department's policy, which is to require non-profit organizations, entitled to use standard mail rates, to forego a cost advantage and use first class mail to send their newsletters to prisoners in Oregon institutions. See Jones, 433 U.S. at 130-31 (holding that where other avenues remain available for the receipt of materials by inmates, the loss of "cost advantages does not fundamentally implicate free speech values"); see also Bell v. Wolfish, 441 U.S. 520 (1979) (relying on Jones). In this case, although we agree that the Department regulation mainly affects economic interests, it is also clear that the regulation implicates both Publisher's and Prisoners' First Amendment rights. The speech at issue is core protected speech, not commercial speech or speech whose content is objectionable on security or other grounds. Nor does the receipt of such unobjectionable mail implicate penological interests. Cf. Jones, 433 U.S. at 131-32 (noting that the speech at issue, the solicitation of membership in prisoners' union, raised security concerns because it was an "invitation to collectively engage in a legitimately prohibited activity"). Finally, paying a higher rate is not an alternative because the prisoner cannot force a publisher who needs to use, and is entitled to use, the standard rate to take additional costly steps to mail his individual newsletter.
[33] [3] In Turner the Supreme Court says: "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89. There are four factors relevant to the Turner reasonableness inquiry: (1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Id. at 89-90. The same analysis applies to regulations affecting publishers' rights to send materials to prisoners. See Thornburgh, 490 U.S. at 413 (applying Turner to regulations affecting incoming inmate mail regardless of the sender's identity).
[34] [4] The first element of the Turner test directs us to (1) determine whether the Department's regulation is legitimate and neutral; and (2) assess whether there is a rational relationship between the governmental objective and the regulation. We hold that tying the receipt of subscription non-profit newsletters to postal service rate classifications is not rationally related to any legitimate penological interest put forth by the Department.*fn5
[35] In Frost v. Symington, 197 F.3d 348 (9th Cir. 1999), we clarified that the level of scrutiny to be applied to the decisions of prison administrators depends on the circumstances in each case:
[36] When the inmate presents sufficient . . . evidence that refutes a common-sense connection between a legitimate objective and a prison regulation, Walker [v. Sumner, 917 F.2d 382 (9th Cir. 1990), ] applies, and the state must present enough counter-evidence to show that the connection is not so remote as to render the policy arbitrary or irrational. On the other hand, when the inmate does not present enough evidence to refute a common-sense connection between a prison regulation and the [asserted] objective . . . , Mauro [v. Arpaio, 188 F.3d 1054 (9th Cir. 1999),] applies and, presuming the governmental objective is legitimate and neutral, Turner's first prong is satisfied. Id. at 357 (internal quotation marks and citations omitted).
[37] Frost thus commands that if Publisher and Prisoners do not present sufficient evidence to refute a common-sense connection between the Department regulation and its stated objectives, "prison officials need not prove that the banned material actually caused problems in the past, or that the materials are `likely' to cause problems in the future." Mauro, 188 F.3d at 1060. The only question is whether prison administrators reasonably could have thought the regulation would advance legitimate penological interests. See id; Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir. 1993). If Publisher and Prisoners refute the common-sense connection, however, the Department must demonstrate that the relationship is not so "remote as to render the policy arbitrary or irrational." Mauro, 188 F.3d at 1060 (quoting Turner, 482 U.S. at 89-90).
[38] [5] The first purported justification for the regulation is that standard mail often contains contraband; banning all standard mail reduces the time spent by mailroom staff searching for contraband and the likelihood that contraband will end up in the prison. The Department has presented no evidence supporting a rational distinction between the risk of contraband in subscription non-profit organization standard mail and first class or periodicals mail. See Crofton v. Roe , 170 F.3d 957, 960 (9th Cir. 1999).
[39] [6] Second, the Department and its Officials assert that the ban on standard mail helps reduce fire hazards by limiting the quantity of flammable material in inmates' cells. Publisher and Prisoners respond that Department regulations restricting the amount of property inmates can possess already address this concern. See Or. Admin. R. 291-117-0005. The fact that Department property regulations already limit the amount of material an inmate can possess and the fact that inmates could conceivably receive bulk mail materials if sent first class refute the common sense connection between the refusal to deliver subscription standard mail and the reduction of fire hazards. The Department emphasizes that the accumulation of flammable materials is such a concern that the prisons conduct fire drills every 90 days. Publisher and Prisoners are not asking that all standard mail be delivered, however; they are asking only that personal subscriptions be delivered. It is irrational to believe that delivering the small amount of subscription non-profit organization standard mail that comes into Oregon prisons would significantly contribute to paper accumulation and increased fire hazards, as the total amount of mail prisoners may store in their cells is currently limited by property regulations. See Crofton, 170 F.3d at 960.
[40] [7] Third, the Department and its Officials state that the regulation increases the efficiency with which random cell inspections can be conducted. They argue that the accumulation of standard mail in a cell creates a good environment for hiding contraband. The fewer materials in the cell, the better a correctional officer can conduct a search. The property regulations mentioned above address this concern, however, and the quantity of additional subscription mail, once processed, would be minimal. The regulation is not rationally related to the Department's interest in rendering efficient cell searches.
[41] [8] The final objective purportedly furthered by the regulation is the enhancement of prison security. The Department and its Officials assert that the ban on standard mail allows mailroom staff to concentrate its efforts on timely processing acceptable mail and thoroughly inspecting such mail for content and contraband. Publisher and Prisoners respond that processing subscription non-profit organization standard mail would not substantially deplete prison resources and would not add significantly to the mailroom staff's workload. We agree. The reality is that all incoming mail must be sorted. The record shows that distinguishing between non-profit organization standard mail and regular/commercial standard mail is not unduly cumbersome, particularly in light of the relatively insignificant amount of incoming non-profit organization standard mail received at the Department's several facilities.
[42] The Department counters that although mailroom staff can separate standard mail from non-profit organization standard mail, it cannot readily distinguish subscription non-profit organization mail from unsolicited non-profit organization mail. To make such a distinction, the Department states that it would have to (1) create an active list of all names of all prisoners who subscribe to non-profit organization publications; (2) make the list available to all Department facilities; (3) provide personnel to update the list daily; (4) check all non-profit organization mail against the master list to ensure that it is subscription mail and that the subscription is current; and (5) process all subscription non-profit organization mail in the same manner as first class and periodicals mail and afford prisoners and publishers notice and review of rejections. We do not believe that requiring the delivery of nonprofit organization standard mail will unduly burden the Department. *fn6 The Department and its Officials ignore the fact that at issue is the addition of 15 to 30 pieces of mail to the 5000 to 8000 pieces of acceptable mail that are processed at some Department institutions daily. Furthermore, the fact that the Department was able to process improperly addressed bulk mail sent by the Oregon Attorney General's office suggests that the Department exaggerates the administrative burden that processing subscription non-profit mail would impose. The Department's concern that limiting the ban would encourage inmates to increase their subscriptions and lead to an unmanageable influx of subscription non-profit standard mail can be addressed by other regulations. For example, current Department regulations requiring proper address and addressee information and restricting content would apply to the additional mail and would help control volume. See Or. Admin. R. 291-131-0025(1); Or. Admin. R. 291-131-0035.
[43] [9] The rational relationship factor of the Turner standard is a sine qua non. Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990). Because the Department and its Officials have failed to show that the ban on standard mail is rationally related to a legitimate penological objective, we do not consider the other Turner factors. Rather, we are required to reverse.*fn7 See id.
[44] IV.
[45] [10] Publisher and Prisoners also argue that the district court improperly determined that the Department's Officials are entitled to qualified immunity. We disagree. We review de novo a district court's determination regarding qualified immunity in a S 1983 action. Newell v. Sauser, 79 F.3d 115, 117 (9th Cir. 1996). The Officials are entitled to qualified immunity if their conduct "does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). We analyze qualified immunity claims using a twostep inquiry; we ask (1) whether the law governing the official' s conduct was clearly established at the time of the conduct; and, if so, (2) whether under that law a reasonable official could have believed the conduct was lawful. Robinson v. Solano County, 218 F.3d 1030, 1034 (9th Cir. 2000).
[46] [11] Because the "contours" of Publisher's right to send and Prisoners' right to receive subscription non-profit organization standard mail were not "sufficiently clear that a reasonable official would understand that what he [was ] doing violate[d] that right," Anderson v. Creighton, 483 U.S. 635, 640 (1987), the law in this case was not "clearly established." A number of cases support this view. In Sheets v. Moore, the Sixth Circuit upheld a regulation prohibiting "[f]ree advertising material, fliers, and other bulk rate mail except that received from a recognized religious organization sent in care of the institutional chaplain." 97 F.3d 164, 165 n.1 (6th Cir. 1996). Language in that case, however, distinguished between bulk rate mail and personal subscriptions, without directly addressing subscription bulk rate mail. See id. at 167. In Miniken v. Walter, on the other hand, a district court struck down a ban on bulk mail as applied to subscription non-profit organization mail such as Publisher's newsletter. 978 F. Supp. 1356 (E.D. Wash. 1997). This ruling was based, in part, on the fact that publications like Publisher's newsletter did not fall within the prison regulations' own definition of "bulk mail." See id. at 1361. Moreover, two Oregon district judges have upheld the Department regulation at issue in unpublished decisions. See Hunter v. Baldwin, Civ. No. 93-1579 (Or. 1995), aff'd on other grounds, 78 F.3d 593 (9th Cir. 1996) (table decision) (upholding former Or. Admin. R. 291-1310025 (8)); Morrison v. Hall, Civ. No. 93-6383-HO (Or. 1998). Although unpublished decisions carry no precedential weight, Department Officials may have relied on these decisions to inform their views on whether the regulation was valid and whether enforcing it would be lawful.*fn8
[47] V.
[48] Last, Publisher and Prisoners argue that the Department's failure to provide notice and administrative review of standard mail rejections deprives inmates and publishers of due process safeguards required by Procunier v. Martinez, 416 U.S. 396, 417 (1974) (holding that the "decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards"), overruled on other grounds by Thornburgh, 409 U.S. at 413-14. Due process guarantees apply only when a constitutionally protected liberty or property interest is at stake. Board of Regents v. Roth, 408 U.S. 564, 569 (1972).
[49] Because we decide that Publisher and Prisoners have a constitutionally protected right to receive subscription non-profit organization standard mail, it follows that such mail must be afforded the same procedural protections as first class and periodicals mail under Department regulations.
[50] VI.
[51] We hold that the Department's ban on standard rate mail is unconstitutional as applied to subscription non-profit organization mail. We reverse the summary judgment in favor of Officials and remand for further proceedings consistent with this opinion. We grant Publisher's and Prisoners' request for reasonable attorney's fees, to be fixed on remand to the district court. See 42 U.S.C. S 1988.
[52] REVERSED AND REMANDED.
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Opinion Footnotes
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[53] *fn1 Effective July 1, 1996, the United States Postal Service ("Postal Service ") redefined its categories of mail. Mail that was previously designated as third or fourth class mail (bulk mail) is now classified as Standard A mail and Standard B mail, respectively. Standard A mail is further subdivided into two classes: "non-profit organization" mail and "regular/ commercial" mail. Second class mail is now referred to as "periodicals." In 1998, the Department amended its mail regulations to reflect the new Postal Service designations.
[54] *fn2 Because the record shows that Oregon penal institutions receive more mail than usual during holiday months like December and January, we view these numbers as slightly more than average.
[55] *fn3 It is not clear what the Postal Service does with the returned bulk mail. A prison mail inspector testified in his deposition that Postal Service employees have told him, on different occasions, that the mail is destroyed, donated to non-profit organizations and given to charities. The Postal Service gave permission to one of Oregon's penal institutions to destroy standard mail on site, so standard mail sent to that institution gets destroyed there rather than returned to the Postal Service.
[56] *fn4 Prisoners make no specific argument about Le's claim on appeal, and we assume that it has been abandoned.
[57] *fn5 Because we conclude that there is no rational relationship, we do not address Publisher's and Prisoners' argument that the regulation is not neutral, which is supported by the fact that the Department processed and delivered notices to inmates from the Oregon Attorney General that were insufficiently addressed and mailed at the standard rate.
[58] *fn6 We note here that because "a personal subscription of a particular publication more nearly resembles personal correspondence than a mass mailing, " such subscriptions deserve more attention than bulk mail. Miniken v. Walter, 978 F. Supp. 1356, 1362 (E.D. Wash. 1997).
[59] *fn7 At oral argument, the Department and its Officials contended that a holding in this case that the ban on standard mail is unconstitutional as applied would pose problems for the Department under Article I, Section 8, of the Oregon Constitution. We do not address this argument because the issue was not factually developed before the district court and was not presented to us in the briefs.
[60] *fn8 Although the individually named Officials in the instant case were not parties to the prior cases, the Department had notice of the unpublished dispositions.