197 F.3d 348 (9th Cir. 1999), 98-15578, Frost v. Symington et al

Docket Nº:98-15578
Citation:197 F.3d 348
Party Name:RAYMOND LUDWIG FROST, Plaintiff-Appellant, v. J. FIFE SYMINGTON, Governor; SAMUEL A. LEWIS, Director; LARRY BARROWS, Asst. Deputy Warden; CHARLES L. RYAN, Senior Warden; JAMES UPCHURCH, Warden; ANGELO P. DANIELS, Deputy Warden; PAUL SCHRINER, Deputy Warden; MARVIN E. JUMP, CPO aka Marvin E. Tump; M. STURM, #688; SGT. ALLEN; SGT. DURAN, Defendants-A
Case Date:November 23, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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197 F.3d 348 (9th Cir. 1999)

RAYMOND LUDWIG FROST, Plaintiff-Appellant,

v.

J. FIFE SYMINGTON, Governor; SAMUEL A. LEWIS, Director; LARRY BARROWS, Asst. Deputy Warden; CHARLES L. RYAN, Senior Warden; JAMES UPCHURCH, Warden; ANGELO P. DANIELS, Deputy Warden; PAUL SCHRINER, Deputy Warden; MARVIN E. JUMP, CPO aka Marvin E. Tump; M. STURM, #688; SGT. ALLEN; SGT. DURAN, Defendants-Appellees.

No. 98-15578

United States Court of Appeals, Ninth Circuit

November 23, 1999

Submitted June 18, 1999[*]

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Raymond Ludwig Frost, Florence, Arizona, in pro se for the plaintiff-appellant.

S. Christopher Copple, Assistant Attorney General, Phoenix, Arizona, for the defendants-appellees.

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Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding. D.C. No. CV-96-00346-RCB

Before: Mary M. Schroeder, Betty B. Fletcher, and Cynthia Holcomb Hall, Circuit Judges.

Opinion by Judge Hall

HALL, Circuit Judge:

Raymond Ludwig Frost ("Frost") appeals from the district court's order granting the Defendants' motion for summary judgment in Frost's action under 42 U.S.C. S 1983 for violations of his First and Fourteenth Amendment rights and the Hook Consent Decree. Frost seeks damages from Arizona Department of Corrections ("ADOC") officials who allegedly withheld issues of Penthouse and Gallery magazines and returned without authorization music CDs Frost ordered from BMG Music Service ("BMG"). We have jurisdiction under 28 U.S.C. S 1291, and we affirm in part, reverse in part, and remand.

I.

In October 1973, the district court approved a consent decree in Hook v. Arizona, No. CIV-73-97 PHX-CAM (the "Hook Consent Decree"), a suit brought by eleven inmates of the ADOC over mail regulations. Under the Hook Consent Decree, inmates could not receive publications1 that were found to contain (1) "material which constitutes a direct and immediate threat to the security, safety or order of the institution," or (2) "any material which is deemed obscene under applicable constitutional standards." The Hook Consent Decree also provided that "[p]rompt written notice will be given a resident if any publications are excluded for the above reasons. Upon request, the resident will be given an opportunity to discuss the reasons for the exclusion with the Deputy Superintendent for Programs, whose decision shall be final." Although Hook was not initially certified as a class action,2 the Ninth Circuit held that inmates of the ADOC who were not parties to the Hook Consent Decree were entitled to enforce the provisions of the Hook Consent Decree as intended third-party beneficiaries. See Hook v. Arizona Dep't of Corrections, 972 F.2d 1012, 1014-15 (9th Cir. 1992).

Frost has been an inmate at the ADOC since 1989, and was not a party to the Hook Consent Decree. During the time of his confinement, Frost has subscribed to Gallery and Penthouse magazines, both of which are pornographic publications. In addition, Frost has been a member of BMG, through which he has ordered various music CDs.

In late January 1994, J. Fife Symington ("Symington"), the Governor of Arizona, said in a public speech that he planned to get tough with inmates at the ADOC. On January 31, 1994, Samuel Lewis ("Lewis"), Director of the ADOC, announced in a memorandum that all sex-based publications were to be banned from the ADOC as of February 27, 1994.3 On February 24, 1994, Lewis withdrew the directive, and the ban did not officially go into effect. Frost claims that Lewis nevertheless issued clandestine orders to Senior Warden Charles L. Ryan ("Ryan"), Warden James Upchurch ("Upchurch"), Warden James

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Thomas,4 and Deputy Warden Angelo P. Daniels ("Daniels") to withhold from inmates any sex-based publications without notifying the inmates that the publications were being withheld, and to dispose of the publications. Frost claims that no pornographic magazines were allowed into the ADOC during February and March, 1994.

Frost claims that, pursuant to the Lewis directive, the ADOC withheld four magazines he had ordered: the January 1994 and February 1994 issues of Gallery and Penthouse. He claims that he did not receive notice that these magazines were being withheld, and that he was not told why these issues had been withheld. It appears, however, that Frost received both issues of Gallery after contacting the publisher and having the issues redelivered. It also appears that Frost's subscription to Penthouse was extended by two months to reflect the issues that were withheld, but Frost never apparently received the two withheld issues of Penthouse. On September 5, 1995, the ADOC received the October 1995 issue of Penthouse. An unidentified mailroom officer rejected this issue for "showing penetration," "material which, in the Warden's opinion, pose[d] a threat to the safe, secure and orderly operation of the prison." On September 14, 1995, Frost appealed the rejection of the October 1995 issue by writing an inmate letter to the Deputy Superintendent of Programs pursuant to the Hook Consent Decree. Two weeks later, Deputy Warden David Bourgeous5 interviewed Frost, and explained to Frost that the issue was one of "penetration and not threat to security!"

On October 3, 1995, the November 1995 issue of Penthouse was received by the prison mailroom. An unidentified mailroom officer rejected this issue because it was "Unauthorized Property: Items not inherently illegal which are considered contraband when possessed by an inmate." On October 5, 1995, Daniels reviewed this issue of Penthouse and noted, "Photos show penetration. Advertisements solicit sexual behavior that poses a threat to female staff working in this institution." Then on January 2, 1996, approximately three months after the ADOC received this issue of Penthouse, Frost received a notice indicating that this issue had been rejected by the ADOC.

On December 29, 1995, Frost claims that he received four magazines: the December 1995 and January 1996 issues of Gallery and Penthouse. Frost had not received notice that these magazines were being stored.

On February 6, 1996, the March 1996 issue of Penthouse was received by the mailroom. On March 14, 1996 the mailroom received the April 1996 issue of Penthouse. On both occasions an unidentified mailroom officer rejected the issues because they "contain[ed] material which, in the Warden's opinion, pose[s] a threat to the safe, secure and orderly operation of the prison." In addition, on separate forms, Deputy Warden Murphy rejected the issues because they showed "vaginal penetration," and "anal penetration," respectively. It is unclear whether Frost received notice that the March 1996 issue of Penthouse had been rejected by the ADOC. On April 3, 1996, Frost received notice that the April 1996 issue had been rejected by the ADOC.

On April 1, 1996, and again on April 30, 1996, the mailroom received the May 1996 issue of Penthouse . On both dates, an unidentified mailroom officer rejected the issues because they "contain[ed] material which, in the Warden's opinion, pose[s] a threat to the safe, secure and orderly operation of the prison." The record does not show, however, that this issue was reviewed

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by a deputy warden, nor does it contain the reasons why this issue was rejected. On April 11, 1996, and on May 14, 1996, Frost received notice that this issue had been rejected by the ADOC.

As of August 14, 1996, Frost had not received the June 1996, July 1996, August 1996, and September 1996 issues of Penthouse, nor had Frost received notice that any of these issues had been rejected by the ADOC. However, Frost was informed by Penthouse that these issues had been sent.

In 1991, Frost became a member of BMG, through which he purchased music CDs that were delivered to the prison and distributed to Frost between July, 1991, and July, 1992. In December, 1992, and again in January, 1993, Frost received from BMG notices indicating that CDs that had been sent to Frost had been returned to BMG. ADOC officials explained to Frost that the CDs had never been received by the ADOC. In February 1993, Frost canceled his BMG membership. In April 1995, Frost received a letter from BMG inviting him once again to become a member of BMG. Under the terms of the letter, Frost was invited to choose eight free CDs for which he would be obligated to pay a per-item shipping and handling fee. In return for the eight free CDs, Frost would be obligated to purchase at full price one CD through BMG any time within the next year. In June 1995, Frost accepted the offer, and BMG mailed to Frost the eight CDs that he had chosen. Shortly thereafter, BMG determined that Frost was institutionalized and requested that ADOC officials return the CDs to...

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