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California Ban On Hardcover Books Held Unconstitutional
by John E. Dannenberg
The U.S. District Court (N.D. Cal.) held that the policy by California?s Pelican Bay State Prison (PBSP) Security Housing Unit of banning prisoners? possession of hardcover books violated their First Amendment rights. During the course of litigation, PBSP capitulated and amended its policy to permit such books after their covers had been removed. Although injunctive relief was thus moot, the court granted the prisoners declaratory relief.
PBSP prisoner Todd Ashker had already won a permanent injunction against PBSP enjoining non-receipt of publications that were mailed without a pre-approved PBSP mailing label. (See: Ashker v. California Dep?t of Corrections, 224 F.Supp.2d 1253 (N.D. Cal. 2002).Ashker now alleged that the new hardcover book ban was purely retaliation for his having won the earlier court action, and that it violated his First Amendment rights. In an unpublished ruling disposing of opposing motions for summary judgment, U.S. District Judge Claudia Wilkin made a finding that Ashker?s First Amendment rights had been violated, denied as moot Ashker?s motion for injunctive relief, granted Ashker?s motion for declaratory relief, but found that qualified immunity protected PBSP defendants from damage claims.
The court applied the familiar four-part evaluation of Turner v. Safley, 482 U.S. 78 (1987), relying in particular upon Prison Legal News v. Cook, 238 F.3d 817 (9th Cir. 2001) in determining the rational relationship test. The court noted that although in the previous ten years, PBSP had allowed such books if the covers were first removed (to eliminate security concerns of hidden contraband), its recent (and notably post-Ashker) policy of no longer allowing cover removal was not supported by any apparent legitimate penological interest. In reviewing the ?alternative means? Safley test, the court found that letting PBSP prisoners receive any softbound books did not salve the loss. In particular, many texts from correspondence courses were only available in hardback. As to Safley?s third test, that of prison resources, the court found that if PBSP could cut covers off for ten years before, it could reasonably do so now. Finally, the fourth Safley concern as to PBSP?s claim that cover removal was to be disfavored since it diminished the durability of the book, was rejected. If the prisoners sign an agreement that they will accept the cover-less books, that ends the question, because they can still read the books -- the ultimate First Amendment concern.
Qualified immunity was denied because although bans on hardcover books had been upheld in some cases, these cases did not cover the event where prisoners were also permitted to receive soft-cover publications. Absent on-point precedent, the PBSP defendants were qualifiedly immune from damages here. While PBSP argued that all relief should therefore be denied as moot, the court disagreed, noting that PBSP had vacillated on its hardcover book ban before. Thus, declaratory relief was appropriate and granted. Separately, the parties stipulated to Ashker?s attorney?s request for fees, costs and expenses totaling $9,576. Ashker is represented by Sacramento attorney Herman Franck. See: Ashker v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. C 04-1967 CW (March 8, 2006).
But the battle is not over. Judge Wilkin found cognizable a litany of Ashker?s other claims, which are still pending. These include First Amendment right of association claims with Aryan Brotherhood members; Fifth Amendment claims against self-incrimination as to PBSP?s ?snitch, parole or die? debriefing program; Eighth Amendment cruel and unusual punishment claims arising from the debriefing program; due process claims regarding indeterminate Security Housing Unit segregation due solely to gang affiliation; Equal Protection claims as to discrimination against whites; mail processing delays; and bans on certain periodicals. See: Ashker v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. C 05-3286 CW, Order (Oct. 12, 2005).
The U.S. District Court (N.D. Cal.) held that the policy by California?s Pelican Bay State Prison (PBSP) Security Housing Unit of banning prisoners? possession of hardcover books violated their First Amendment rights. During the course of litigation, PBSP capitulated and amended its policy to permit such books after their covers had been removed. Although injunctive relief was thus moot, the court granted the prisoners declaratory relief.
PBSP prisoner Todd Ashker had already won a permanent injunction against PBSP enjoining non-receipt of publications that were mailed without a pre-approved PBSP mailing label. (See: Ashker v. California Dep?t of Corrections, 224 F.Supp.2d 1253 (N.D. Cal. 2002).Ashker now alleged that the new hardcover book ban was purely retaliation for his having won the earlier court action, and that it violated his First Amendment rights. In an unpublished ruling disposing of opposing motions for summary judgment, U.S. District Judge Claudia Wilkin made a finding that Ashker?s First Amendment rights had been violated, denied as moot Ashker?s motion for injunctive relief, granted Ashker?s motion for declaratory relief, but found that qualified immunity protected PBSP defendants from damage claims.
The court applied the familiar four-part evaluation of Turner v. Safley, 482 U.S. 78 (1987), relying in particular upon Prison Legal News v. Cook, 238 F.3d 817 (9th Cir. 2001) in determining the rational relationship test. The court noted that although in the previous ten years, PBSP had allowed such books if the covers were first removed (to eliminate security concerns of hidden contraband), its recent (and notably post-Ashker) policy of no longer allowing cover removal was not supported by any apparent legitimate penological interest. In reviewing the ?alternative means? Safley test, the court found that letting PBSP prisoners receive any softbound books did not salve the loss. In particular, many texts from correspondence courses were only available in hardback. As to Safley?s third test, that of prison resources, the court found that if PBSP could cut covers off for ten years before, it could reasonably do so now. Finally, the fourth Safley concern as to PBSP?s claim that cover removal was to be disfavored since it diminished the durability of the book, was rejected. If the prisoners sign an agreement that they will accept the cover-less books, that ends the question, because they can still read the books -- the ultimate First Amendment concern.
Qualified immunity was denied because although bans on hardcover books had been upheld in some cases, these cases did not cover the event where prisoners were also permitted to receive soft-cover publications. Absent on-point precedent, the PBSP defendants were qualifiedly immune from damages here. While PBSP argued that all relief should therefore be denied as moot, the court disagreed, noting that PBSP had vacillated on its hardcover book ban before. Thus, declaratory relief was appropriate and granted. Separately, the parties stipulated to Ashker?s attorney?s request for fees, costs and expenses totaling $9,576. Ashker is represented by Sacramento attorney Herman Franck. See: Ashker v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. C 04-1967 CW (March 8, 2006).
But the battle is not over. Judge Wilkin found cognizable a litany of Ashker?s other claims, which are still pending. These include First Amendment right of association claims with Aryan Brotherhood members; Fifth Amendment claims against self-incrimination as to PBSP?s ?snitch, parole or die? debriefing program; Eighth Amendment cruel and unusual punishment claims arising from the debriefing program; due process claims regarding indeterminate Security Housing Unit segregation due solely to gang affiliation; Equal Protection claims as to discrimination against whites; mail processing delays; and bans on certain periodicals. See: Ashker v. Schwarzenegger, U.S.D.C. (N.D. Cal.), Case No. C 05-3286 CW, Order (Oct. 12, 2005).
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Related legal cases
Ashker v. Schwarzenegger
| Year | 2006 |
|---|---|
| Cite | U.S.D.C. (N.D. Cal.), Case No. C 04-1967 CW |
| Level | District Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 9,576.00 |
| Injunction Status | N/A |
Ashker v. Schwarzenegger
| Year | 2005 |
|---|---|
| Cite | U.S.D.C. (N.D. Cal.), Case No. C 05-3286 CW |
| Level | District Court |
| Conclusion | Bench Verdict |
| Attorney Fees | 9,576.00 |
| Injunction Status | N/A |