Prison Legal News v. Cook

• Citation: 238 F.3d 1145
• Decision Date: 07 February 2001
• Docket Number: No. 99-36084,99-36084
• Parties: (9th Cir. 2001) PRISON LEGAL NEWS; MARK WILSON; MICHAEL TUCKER; HUNGLE, Plaintiffs-Appellants, v. DAVID S. COOK, Director of Oregon Department of Corrections; DAVID SCHUMACHER, Rules/Compliance Manager of Oregon Department of Corrections, Defendants-Appellees
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 1145

238 F.3d 1145 (9th Cir. 2001)

PRISON LEGAL NEWS; MARK WILSON; MICHAEL TUCKER; HUNGLE, Plaintiffs-Appellants, v. DAVID S. COOK, Director of Oregon Department of Corrections; DAVID SCHUMACHER, Rules/Compliance Manager of Oregon Department of Corrections, Defendants-Appellees.

No. 99-36084

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted November 14, 2000

Filed February 7, 2001

Christina M. Hutchins, Assistant Attorney General, Salem, Oregon, for the defendants-appellees.

Samuel J. Stiltner, Seattle, Washington, for the plaintiffs appellants.

Joseph E. Bringman, Perkins Coie, Seattle, Washington, for the amici.

Appeal from the United States District Court for the District of Oregon Malcolm F. Marsh, District Judge, Presiding. D.C. No.CV-98-01344-MFM

Before: Robert R. Beezer, Pamela Ann Rymer and Susan P. Graber, Circuit Judges.

BEEZER, Circuit Judge:

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. 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. 1291 and reverse and remand.

I

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.

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).¹ Oregon has the only prison system in the country that refuses to deliver subscription non-profit organization standard mail like that at issue.

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 5000to 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, ² 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.

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.³ 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, mail room staff reviews the envelopes of acceptable mail for proper address and return address information. Next, mail room 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.

For each piece of mail that is opened and deemed unauthorized, mail room staff must write a Mail Violation Notice for correspondence or a Publications Violation Notice for publications. When correspondence is opened and rejected, the mail room 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.

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.

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.

II

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.

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.

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.

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.⁴

III

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.

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 decision making of prison administrators. See id. at 407-08; Turner v. Safley, 482 U.S. 78, 85 (1987).

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...