UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

PRISON LEGAL NEWS, a Washington corporation; ROLLIN A. WRIGHT,
Plaintiffs-Appellees,

v.

JOSEPH LEHMAN, in his official and individual capacities; ELDON VAIL, in his official and individual capacities; CAROL PORTER, in her official and individual capacities; JAMES BLODGETT, Superintendent, in his official and individual capacities; KAY WALTER, in her official and individual capacities; ALICE PAYNE, in her official and individual capacities; MAGGIE MILLER-STOUT, in her official and individual capacities; RICHARD MORGAN, in his official and individual capacities; BOB MOORE, in his official and individual capacities; JOHN LAMBERT, in his official and individual capacities; DOUG WADDINGTON, in his official and individual capacities; BELINDA D. STEWART, in her official and individual capacities, Defendants-Appellants. PRISON LEGAL NEWS, a Washington corporation; ROLLIN A. WRIGHT, Plaintiffs-Appellants, v. JOSEPH LEHMAN, in his official and individual capacities; ELDON VAIL, in his official and individual capacities; CAROL PORTER, in her official and individual capacities; JAMES BLODGETT, Superintendent, in his official and individual capacities; KAY WALTER, in her official and individual capacities; ALICE PAYNE, in her official and individual capacities; MAGGIE MILLER-STOUT, in her official and individual capacities; RICHARD MORGAN, in his official and individual capacities; BOB MOORE, in his official and individual capacities; JOHN LAMBERT, in his official and individual capacities; DOUG WADDINGTON, in his official and individual capacities; BELINDA D. STEWART, in her official and individual capacities; SCOTT FRAKES, in his official and individual capacities,
Defendants-Appellees.

No. 03-35608, No. 04-35185

November 1, 2004, Argued and Submitted, Seattle, Washington

February 1, 2005, Filed

PRIOR HISTORY: [*1] Appeal from the United States District Court for the Western District of Washington. D.C. No. CV-01-01911-RSL, D.C. No. CV-01-01911-RSL. Robert S. Lasnik, District Judge, Presiding.

DISPOSITION: AFFIRMED.

COUNSEL: Shannon Elizabeth Inglis and Carol A. Murphy, Office of the Washington Attorney General, Olympia, Washington, for the defendants-appellants.

Jesse Andrew Wing, MacDonald, Hoague & Bayless, Seattle, Washington, for the plaintiffs-appellees.

Steven R. Powers, Office of the Oregon Attorney General, Salem, Oregon, for the amicus.

JUDGES: Before: Arthur L. Alarcon, William A. Fletcher, and Johnnie B. Rawlinson, Circuit Judges. Opinion by Judge Alarcon.

OPINION:

ALARCON, Circuit Judge:

The Washington Department of Corrections ("DOC") appeals from the grant of summary judgment and permanent injunctive relief on Prison Legal News and Rollin A. Wright's (collectively "PLN") claim that the DOC prohibition against the receipt by inmates of non-subscription bulk mail and catalogs violates the First and Fourteenth Amendments. The thirteen individual defendants ("prison officials") appeal from the denial of their motion for summary judgment based on their defense of qualified [*2] immunity from damages as a result of restricting inmates from receiving third-party legal materials.

PLN has filed a cross-appeal from the order granting summary judgment to the thirteen individuals based on their defense of qualified immunity regarding PLN's claim that the defendants violated its constitutional rights.

We affirm the district court's decision. Under the test laid out in Turner v. Safley, 482 U.S. 78, 89-90, 96 L. Ed. 2d 64 (1987), the DOC's ban on non-subscription bulk mail and catalogs is not rationally related to a legitimate penological interest and is therefore unconstitutional. Although the ban violates PLN's First Amendment rights, the prison officials are entitled to qualified immunity because their actions did not violate clearly established law. We also hold that the district court did not err by declining to grant qualified immunity to the officials for their policies regarding third-party legal materials. If the evidence produced at trial demonstrates that the DOC applied its policy in a discriminatory fashion based on the content of the legal materials as PLN contends, the prison officials are not entitled to qualified immunity because [*3] they violated clearly established law. The district court correctly concluded that this disputed factual question must be resolved at trial.

I

Prison Legal News is a Washington nonprofit corporation that publishes and distributes publications regarding legal issues of interest to inmates, such as prisoners' rights. It publishes a monthly subscription magazine, which has 3,000 subscribers across the United States, including 120 who are inmates in Washington's state correctional facilities. Its editor, Paul Wright, is an inmate in a Washington state correctional facility.

The prison officials are policymaking employees in the DOC. The DOC operates fifteen Washington correctional institutions that house 16,000 inmates. The DOC employs approximately one mailroom staff person per 600 persons served at each institution, including inmates and staff.

This is the fourth case since 1996 brought by PLN against the DOC. The previous cases are Miniken v. Walter, 978 F. Supp. 1356 (E.D. Wash. 1997), MacFarlane v. Walter, No. 96-cv-03102-LRS (E.D. Wash. 1997), and Humanists of Washington v. Lehman, No. 97-cv-05499-FDB-JKA (W.D. Wash. 1999).

The DOC's Policy Directive [*4] 450.100, entitled "Mail for Offenders," sets forth rules and procedures regarding mail delivery to inmates. The district court summarized the portions relevant to this appeal:
First, the directive prohibits inmates from receiving "bulk mail" unless that bulk mail is a subscription publication. In contrast to first and second class mail rejected due to prohibited content, "no rejection notice is required for bulk mail that is not a subscription publication." Additionally, inmates are not permitted to receive catalogs by mail, whether sent first class, second class, or at a "bulk mail" rate. If mail other than that constituting bulk mail is rejected for delivery, inmates receive notice of the rejection and may appeal the decision.


Prison Legal News v. Lehman, 272 F. Supp. 2d 1151, 1154 (W.D. Wash. 2003) (alterations in original) (citations omitted) ("PLN II"). The court further explained, "The Department defines bulk mail as mail which is clearly marked non-profit or bulk rate. This type of mail is also referred to as bulk business mail or advertising mail and includes, but is not limited to, catalogs and circulars." Id. at n.2 (alterations in [*5] original) (citations and quotations omitted). "The Department defines 'catalog' as '[a] publication which is predominantly or substantially focused on offering items for sale.'" Id. at n.3 (alterations in original) (citations omitted). The court also explained the DOC's policy regarding third-party legal material:
DOC 450.100 prohibits the delivery of "mail containing information which, if communicated, could create a risk of violence and/or physical harm to any person . . . .

Third-party legal materials-Must meet the following requirements

a. Mail which consists of judicial opinions (published and unpublished), reports and recommendations, orders, complaints or answers, settlement agreements, class action notices, legal briefs and memoranda, and motions, and

b. Mail which otherwise complies with DOC Policy 450.100 Mail for Offenders and has been stamped "approved third-party legal materials" by correctional staff.


Id. at 1161 (citations omitted).

PLN sued the DOC under 42 U.S.C. § 1983, arguing that these regulations violated its First and Fourteenth Amendment rights. The district court held that the DOC's policies [*6] regarding non subscription bulk mail and catalogs violated PLN's First Amendment rights, id. at 1159, but that the officials were entitled to qualified immunity for their decisions. Id. at 1163. The district court further concluded that summary judgment was not appropriate for the claim regarding third-party legal material, because "resolution of these issues requires highly fact-dependent inquiries that . . . are not amenable to summary determination." Id. at 1162. Furthermore, the district court limited its finding of qualified immunity to the issues resolved on summary judgment, and expressed no opinion regarding whether the officials will be entitled to qualified immunity if PLN should ultimately prevail on its claim regarding third-party legal materials. Id. at 1163 n.14.

II

The district court had jurisdiction under 42 U.S.C. § 1983. We have jurisdiction to review the district court's decision to grant summary judgment for PLN and its decision to grant qualified immunity to defendants regarding PLN's claims under 28 U.S.C. § 1291. We have jurisdiction to review the grant of permanent injunctive relief to PLN [*7] relating to catalogs and non-subscription bulk mail and notice under 28 U.S.C. § 1292(a)(1).

We have jurisdiction under 28 U.S.C. § 1291 over an interlocutory appeal regarding the issue of qualified immunity. Wilkins v. City of Oakland, 350 F.3d 949, 951 (9th Cir. 2003) (citing Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001) (per curiam); Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th Cir. 2000)). "In such circumstances, however, appellate review is generally limited to issues of law, and 'does not extend to claims in which the determination of qualified immunity depends on disputed issues of material fact.'" Wilkins, 350 F.3d at 951 (quoting Jeffers, 267 F.3d at 903) (internal citation omitted). "Where disputed facts exist, we will determine if the denial of qualified immunity was proper by assuming that the version of events offered by the nonmoving party is correct." Id.

The parties dispute whether we have jurisdiction over the officials' assertion that the district court improperly denied qualified immunity from the claim relating to third-party [*8] legal materials. PLN argues that the officials waived their qualified immunity defense as to the third-party legal material claim because they only asserted qualified immunity with regard to the non-subscription bulk mail and catalog claims. We disagree. In their motion for summary judgment, the officials ask for qualified immunity, and do not specifically limit their request to the non-subscription bulk mail and catalog claims. The heading on that portion of their argument is "Defendants Should be Entitled to Qualified Immunity From Damages." The section of their motion addressing qualified immunity reads in its entirety:
In the event that this Court determines plaintiffs' constitutional rights were violated, defendants should be entitled to qualified immunity from damages. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001). Based on relevant case law in this and other circuits, as well as unpublished Washington opinions, defendants reasonably believed that their policy, and actions in adopting and enforcing the catalog and non-subscription bulk mail restrictions were lawful. See Sorrels v. McKee, 290 F.3d 965, 971 (9th. Cir. 2002) [*9] (citing Cook, 238 F.3d at 1152) (unpublished district court decisions may be considered for purposes of determining qualified immunity).


While the second sentence supports only their arguments based on the non-subscription bulk mail and catalog claims, the first sentence of the argument does not limit the request in any way. We are persuaded that the officials did not waive their argument that they are entitled to qualified immunity from the claim concerning third-party legal materials.

PLN also argues that because the officials dispute the factual merits of the third-party legal materials claim, rather than the legal basis, that claim is outside the scope of this Court's interlocutory jurisdiction. We disagree. As noted above, cases in this circuit establish that when disputed facts exist, we have jurisdiction to decide the claim, but must assume that the version of events offered by the nonmoving party is correct. Wilkins, 350 F.3d at 951. Therefore, we have jurisdiction to hear the appeal of the district court's denial of qualified immunity.

III

We review de novo a district court's decision to grant or deny summary judgment. [*10] Botosan v. Paul McNally Realty, 216 F.3d 827, 830 (9th Cir. 2000). We apply the same standard used by the trial court under Rule 56 of the Federal Rules of Civil Procedure. Meade v. Cedarapids, Inc., 164 F.3d 1218, 1221 (9th Cir. 1999). We must determine, viewing the evidence in the light most favorable to the nonmoving party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc). We also review a grant or denial of qualified immunity de novo. Bahrampour v. Lampert, 356 F.3d 969, 976 (9th Cir. 2004).

A

We first consider whether the district court correctly found that PLN was entitled to summary judgment on its claims that the ban on non-subscription bulk mail and catalogs was unconstitutional. In Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001) ("PLN I"), we held that publishers and prisoners have a constitutionally protected right to receive subscription non-profit bulk mail and that a ban on bulk mail [*11] was unconstitutional as applied to such mail. Id. at 1152-53. In Morrison, we held that a similar ban on subscription for-profit bulk mail was likewise unconstitutional. Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001). In this case, we are squarely presented with the question of whether a ban on non-subscription bulk mail and catalogs is also unconstitutional.

Publishers have a First Amendment right to communicate with prisoners by mail, and inmates have a First Amendment right to receive this mail. PLN I, 238 F.3d at 1149 (citing Thornburgh v. Abbott, 490 U.S. 401, 408, 104 L. Ed. 2d 459 (1989)). But this right is subject to "substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security." Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990) (citations omitted). In order for the DOC's ban on non-subscription bulk mail to be upheld, it must be "reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. at 89.

In Turner, the Supreme Court laid out a four-factor [*12] test to determine whether a prison regulation is "reasonably related to legitimate penological interests":
(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.


PLN II, 272 F. Supp. 2d at 1155 (citing PLN I, 238 F.3d at 1149 and Turner, 482 U.S. at 89). "The first factor of these factors constitutes sine qua non." Walker, 917 F.2d at 385. Therefore, if a regulation is not rationally related to a legitimate and neutral governmental objective, a court need not reach the remaining three factors. Id. As in the previous cases challenging restrictions on bulk mail, the district court in this case found that because the ban on non-subscription bulk mail was not rationally related to [*13] a neutral government objective, it did not reach the remaining factors of the test. PLN II, 272 F. Supp. 2d at 1159 (holding that the court need not consider the other factors because the DOC had failed to demonstrate the regulation was rationally related to a neutral government objective); see also PLN I, 238 F.3d at 1151 (same); Morrison, 261 F.3d at 904 (same).

The DOC offered four penological goals which it claims justifies the ban on non-subscription bulk mail and catalogs: (1) reducing the volume of mail to be searched in order to increase the likelihood of mailroom staff preventing contraband from entering th