261 F.3d 896 (9th Cir. 2001), 98-35468, Morrison v. Hall

Docket Nº:98-35468
Citation:261 F.3d 896
Party Name:PATRICK HUGH MORRISON, PLAINTIFF-APPELLANT, v. FRANK HALL, DIRECTOR OF THE OREGON DEPARTMENT OF CORRECTIONS; MANFRED MAASS, SUPERINTENDENT OF THE OREGON STATE PENITENTIARY; TAMARA BLAIN, STAFF MEMBER AT THE OREGON STATE PENITENTIARY, DEFENDANTS-APPELLEES.
Case Date:August 17, 2001
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 896

261 F.3d 896 (9th Cir. 2001)

PATRICK HUGH MORRISON, PLAINTIFF-APPELLANT,

v.

FRANK HALL, DIRECTOR OF THE OREGON DEPARTMENT OF CORRECTIONS; MANFRED MAASS, SUPERINTENDENT OF THE OREGON STATE PENITENTIARY; TAMARA BLAIN, STAFF MEMBER AT THE OREGON STATE PENITENTIARY, DEFENDANTS-APPELLEES.

No. 98-35468

United States Court of Appeals, Ninth Circuit

August 17, 2001

Argued and Submitted June 5, 2001

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Counsel Margaret Z. Johns, Supervising Attorney, University of California, Davis, California (Brief); Peggy Gibson, Certified Law Student, and Irene Feldman, Certified Law Student, University of California, Davis, California (Argued) attorneys for the plaintiff-appellant.

Kaye E. McDonald, Assistant Attorney General, Salem, Oregon, attorney for the defendants-appellees.

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Appeal from the United States District Court for the District of Oregon Michael R. Hogan, Chief District Judge, Presiding D.C. No. CV 94-06383-MRH

Before: Harry Pregerson, Warren J. Ferguson, and Michael Daly Hawkins, Circuit Judges.

This case requires us to consider the constitutionality of various mail regulations at the Oregon State Penitentiary ("OSP") where the plaintiff, Patrick Hugh Morrison ("Morrison"), is incarcerated. Morrison argues that two sections of the OSP mail regulations unconstitutionally burden his First Amendment rights: (1) Oregon Administrative Rule ("OAR") 291-131-025(6), which prohibits prisoners from receiving bulk rate, third, and fourth class mail; and (2) OAR 291-131-025(1), which states that "[i]ncoming mail will bear a return address on the front of the envelope and must be addressed to the inmate using his/her committed name and [prison identification or] SID number or as he/she can be identified as shown on the records of the Department of Corrections."

On a motion by the defendants for summary judgment, the district court found that "the mail regulations challenged by [Morrison] are constitutionally appropriate. " We have jurisdiction pursuant to 28 U.S.C. §§ 1291, and we disagree in part with the district court's conclusion. Specifically, we find that OAR 291-131-025(6), which prohibits inmates from receiving bulk rate, third, and fourth class mail, is unconstitutional as applied to pre-paid, for-profit, subscription publications. We therefore affirm in part and reverse in part.

I. BACKGROUND

In November 1993, Morrison filed this pro se civil rights action pursuant to 42 U.S.C. §§ 1983.1 Morrison named Frank Hall, the Director of the Oregon Department of Corrections, Manfred Maass, the OSP Superintendent, and Tamara Blain, an OSP staff member, as defendants in this action (collectively referred to as "defendants"). In February 1994, Morrison filed an amended complaint, which sets forth the factual basis for his §§ 1983 claim that the OSP mail regulations unconstitutionally burden his First Amendments rights. Specifically, Morrison's amended complaint alleges the following:

In February of 1993, the mailroom at O.S.P. [Oregon State Penitentiary] returned a Montana Outdoors magazine sent to Patrick Morrison (Plaintiff) to the publisher stating that the address is incorrect when [in fact] the address was correct. This action resulted in the magazine not being delivered to Patrick Morrison until the month of September 1993 after Patrick Morrison contacted the publisher.

* * * * * *

Plaintiff's claims are against the mail procedures, and the rules that have been placed in effect by the Oregon Department of Corrections governing the procedures for the processing and handling of inmate mail.

* * * * * *

Actions of defendants stated [above] violate plaintiff's Constitutional Rights of the First . . . and Fourteenth Amendments . . . by requiring parties corresponding with inmates to disclose their

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[full] name and address on the front of the envelope as a return address in order for the inmate addressee to receive the correspondence. If the return address is not displayed on the front of the envelope, the mailroom refuses the letter, and the inmate addressee is not notified that the mail was rejected and no hearing is offered.

* * * * * * *

Actions of defendants stated [above] violate plaintiff's Constitutional Rights of the First . . . and Fourteenth Amendments . . . by refusing to deliver correspondence to inmate addressee and not notifying the inmate addressee of the refusal of the correspondence, thus denying the inmate addressee the knowledge of the refusal, and a hearing on the reason for the refusal of the correspondence.

* * * * * * *

Actions of defendants stated [above] violate plaintiff's Constitutional Rights of the First . . . and Fourteenth Amendments . . . by refusal of Bulk-Rate mail and Third Class mail sent to inmates. . . . by not delivering mail to inmates in a reasonable time. . .. [and] by conspiring to isolate inmates from family and friends, as well as, [acquaintances], media, courts, attorneys, government officials and agencies by use of stringent procedures and rules for the processing of mail.

The amended complaint prays for monetary, declaratory, and injunctive relief.2

In April 1995, the district court granted a motion by the defendants for summary judgment, holding that Morrison lacked standing to pursue his claims and that the defendants were entitled to qualified immunity. Morrison appealed pro se, and in an unpublished decision, we affirmed in part and reversed in part. See Morrison v. Hall, 105 F.3d 665 (9th Cir. 1996) (unpublished). Specifically, we affirmed the district court's decision granting summary judgment to the defendants on qualified immunity grounds.3 However, we reversed the district court's ruling that Morrison did not have standing to pursue his claims for declaratory and injunctive relief.

Following remand to the district court, the defendants once again moved for summary judgment on Morrison's claims for declaratory and injunctive relief. The district court granted the defendants' motion and dismissed the action with prejudice on April 3, 1998. Once again, Morrison timely appealed pro se.

Upon reviewing Morrison's appeal, we deemed this case appropriate for the appointment of pro bono counsel. Accordingly, pursuant to an order of this court,

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Morrison was represented on appeal by certified law students through a clinical program run by the University of California, Davis, School of Law. Following the appointment of counsel, additional briefs from both parties were filed with the court.4

II. STANDARD OF REVIEW

We review de novo a district court's decision to grant summary judgment. Botosan v. Paul McNally Realty , 216 F.3d 827, 830 (9th Cir. 2000). Our review is governed by the same standard used by the trial court under Federal Rule of Civil Procedure 56. Meade v. Cedarapids, Inc., 154 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).

III. ANALYSIS

A. Did the District Court Err in Finding the OSP Mail Regulation Prohibiting Bulk Rate, Third, and Fourth Class Mail Constitutional?

Morrison first argues that OAR 291-131-025(6) unconstitutionally burdens his First Amendment rights. OAR 291-131-025(6) states that: "Mail shall be required to be sent by first or second class postage. Bulk rate, third and fourth class mail is prohibited." OAR 291-131-025(6) (1993). Morrison asserts that this regulation is unconstitutional because it prevents him from receiving his pre-paid subscription to Montana Outdoors magazine, a for-profit, subscription publication, which is typically mailed bulk rate, third, or fourth class. 5

1. The Four-Part Test Set Forth in Turner v. Safley

"Prison walls do not form a barrier separating prison inmates from the protections of the Constitution. " Turner

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V. Safley, 482 U.S. 78, 84 (1987). "Thus, when a prison regulation or practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect [prisoners'] constitutional rights." Mauro v. Arpaio, 188 F.3d 1054, 1058 (9th Cir. 1999) (en banc) (internal citation omitted). "Nevertheless, prisoners' constitutional rights are 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) (internal citations omitted).

"In Turner v. Safley, the Supreme Court set forth the standard for evaluating prisoners' constitutional claims." Id. Turner held that "a regulation that impinges upon a prisoner's constitutional rights is valid...

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