Sorrels v. McKee

• Citation: 290 F.3d 965
• Decision Date: 02 May 2002
• Docket Number: No. 01-35222.,01-35222.
• Parties: Ross W. SORRELS, Plaintiff-Appellant, v. Ronald McKEE; David Buss; Cly Evans; Archie Grant; Loreli, Cruthers; Kay Walter; Jim Blodgett; Joseph Lehman, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

290 F.3d 965

Ross W. SORRELS, Plaintiff-Appellant, v. Ronald McKEE; David Buss; Cly Evans; Archie Grant; Loreli, Cruthers; Kay Walter; Jim Blodgett; Joseph Lehman, Defendants-Appellees.

No. 01-35222.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 7, 2002.

Opinion Filed May 2, 2002.

Amended Opinion Filed May 17, 2002.

Noah Levine, Perkins Coie LLP, Seattle, WA, for the plaintiff-appellant.

Ross W. Sorrels, pro se plaintiff, Yakima, WA, for the plaintiff-appellant.

Michael T. Mitchell, Attorney General's Office, Olympia, WA, for the defendants-appellees.

Appeal from the United States District Court for the Eastern District of Washington Wm. Fremming Nielsen, Chief Judge, Presiding.

Before ALARCON and SILVERMAN, Circuit Judges, and TEILBORG, District Judge.^*

OPINION

SILVERMAN, Circuit Judge.

In 1996, a district court in the Eastern District of Washington declared unconstitutional a policy of the Washington State Penitentiary prohibiting inmates from receiving books and magazines that they did not pay for themselves from their prison accounts. That decision was subsequently upheld on appeal. Crofton v. Roe, 170 F.3d 957 (9th Cir.1999). Meantime, while the appeal in Crofton was pending, prison officials at a different Washington prison continued to enforce a similar "no gift publication" policy and sent back two publications mailed to plaintiff Ross Sorrels as gifts. Sorrels then brought this lawsuit against the prison officials involved in rejecting the items. The officials defended on grounds of qualified immunity, arguing that until the Ninth Circuit upheld the district court decision in Crofton, the law with respect to the "no gift publication" policy was not "clearly established." We agree, and affirm the district court's grant of summary judgment in favor of the defendants.

I. BACKGROUND

Ross Sorrels was a prisoner at the Airway Heights Corrections Center ("AHCC") in the state of Washington. In June 1997, Doubleday, the publisher of The Partner by John Grisham, sent Sorrels a complimentary copy of the book. On account of AHCC's "no gift publication" policy,¹ by which inmates may receive publications only if they pay for them out of their inmate accounts, the prison officials notified Sorrels they had received the book but refused to let him have it. Sorrels appealed this refusal through the prison's internal grievance system, but to no avail, and the book was mailed to his family in July 1997.

In March 1998, Sorrels sent a letter to various prison officials, including defendants Walter, Lehman, Blodgett, and Evans, informing them that the District Court for the Eastern District of Washington, where AHCC is located, had issued two unpublished decisions in 1996 holding unconstitutional the "no gift publication" policy at the Washington State Penitentiary at Walla Walla. Those cases were Crofton v. Ocanaz, No. CY-95-3142-LRS (E.D.Wash. Dec. 17, 1996), aff'd. sub nom Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999); and Crofton v. Spalding, No. CS-94-208-CI (E.D.Wash. May 14, 1996). Prison officials responding to Sorrels's letters reiterated the Washington Department of Corrections policy banning gift publications, informed Sorrels that the policy was under review, and distinguished the cases and noted that the Ninth Circuit had not yet ruled on the issue.

On May 15, 1998, Sorrels filed a pro se complaint under 42 U.S.C. § 1983. The complaint alleged (1) a violation of the First Amendment in rejecting the free publication, (2) a deprivation of due process by providing inadequate grievance procedures, and (3) a conspiracy to violate Sorrels's constitutional rights. Sorrels sued Ronald McKee and David Buss, who work in the AHCC mail room; Cly Evans, Archie Grant, Loreli Cruthers, and Kay Walter, who work at AHCC in administrative roles; and James Blodgett and Joseph Lehman, who work in prison administration at the state level.

The defendants filed a motion to dismiss in September 1998, which the court treated in part as a motion for summary judgment. The magistrate judge issued a first Report and Recommendation, later adopted by the district court, (1) denying defendants' motion to dismiss Sorrels's First Amendment claim, on the grounds that the "no gift publication" policy was unconstitutional under Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); but (2) granting summary judgment for the defendants on grounds of qualified immunity as to Sorrels's claims for monetary damages. The magistrate judge also issued an order staying the proceedings pending resolution of the appeal of Ocanaz, captioned Crofton v. Roe, Nos. 97-35121 & 97-35140.

On May 5, 1999, this court issued a decision in Crofton v. Roe, 170 F.3d 957 (9th Cir.1999). The panel held that the "Washington Prison Regulation that prohibits the receipt by a prisoner of any book, magazine, or other publication, unless the prisoner ordered the publication from the publisher and paid for it out of the prisoner's own prison account," id. at 958, was unconstitutional under Turner, id. at 958-61. Concluding that the inmate "ha[d] not shown any damages stemming from the ban on gift publications," however, the panel did not reach Crofton's claim that the district court had erred in granting the defendant prison officials qualified immunity. Id. at 961.

Sorrels filed a supplemental complaint to add an allegation that AHCC had rejected a gift copy of the Georgetown Law Journal sent to Sorrels by an attorney on or about April 1, 1998. Because the prison had rejected the journal without first notifying Sorrels, he alleged a procedural due process violation in addition to another violation of the First Amendment.

The Washington Department of Corrections, which operates both Airway Heights Corrections Center and Washington State Penitentiary, whose regulations were at issue in Crofton v. Roe, amended the "no gift publication" policy, effective January 5, 2000, to allow receipt of gift publications.² Defendants filed a motion for summary judgment immediately after the new policy went into effect. The magistrate issued a second Report and Recommendation, recommending (1) dismissal of the due process redress-of-grievances claim; (2) granting summary judgment on qualified immunity grounds for defendants on the First Amendment claim; (3) granting summary judgment for defendants on the conspiracy claim; (4) granting summary judgment for defendants on the procedural due process claim as an isolated incident, constituting only negligence; and (5) dismissing as moot Sorrels's request for injunctive and declaratory relief in light of his transfer to another prison and the prison's subsequent change in policy. This second Report and Recommendation was adopted by the district court, and judgment entered for defendants, on July 24, 2000. Sorrels appeals only the grant of qualified immunity on his First Amendment claim and the dismissal of his due process claim for failure to notify.

II. JURISDICTION AND STANDARD OF REVIEW

This court has jurisdiction pursuant to 28 U.S.C. § 1291. A lower court's decision regarding qualified immunity is reviewed de novo. Elder v. Holloway, 510 U.S. 510, 516, 114 S.Ct. 1019, 127 L.Ed.2d 344 (1994). A district court's grant of summary judgment is reviewed de novo. Weiner v. San Diego County, 210 F.3d 1025, 1028 (9th Cir.2000). Summary judgment is appropriate if the evidence, read in the light most favorable to the non-moving party, demonstrates that there is no genuine issue of material fact, and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c).

III. ANALYSIS

On appeal, Sorrels advances two arguments. First, he argues that the defendants are not entitled to qualified immunity on the First Amendment claim. He asserts that the district court erred in concluding that the illegality of AHCC's "no gift publication" policy was not clearly established. Second, Sorrels argues that the district court erred in dismissing his procedural due process claim as mere negligence not actionable under § 1983. We address each of these arguments in turn.

A. Qualified Immunity on First Amendment Claim

42 U.S.C. § 1983 allows individuals to recover for deprivations of constitutional rights that occur under color of state law. Parratt v. Taylor, 451 U.S. 527, 535, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), overruled on other grounds by Daniels v. Williams, 474 U.S. 327, 330-31, 106 S.Ct. 662, 88 L.Ed.2d 662 (1986). Qualified immunity, however, serves to shield government officials "from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Qualified immunity thus serves to protect "all but the plainly incompetent or those who knowingly violate the law." Malley v. Briggs, 475 U.S. 335, 341, 106 S.Ct. 1092, 89 L.Ed.2d 271 (1986).

In ruling on a qualified immunity defense, a court must consider two questions. First, "[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer's conduct violated a constitutional right?" Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). This first prong of qualified immunity thus mirrors the substantive summary judgment decision on the merits. Second, if the plaintiff has alleged a deprivation of a constitutional right, a court "is to ask whether the right was clearly established." Id. The plaintiff bears the burden of showing that the right at issue was clearly established under this second prong. Camarillo v. McCarthy, 998 F.2d 638, 639 (9th Cir. 1993).

The district court held that the "no gift publication" policy was unconstitutional under the first prong of qualified immunity. Defendants concede, in light of Crofton v. Roe, that Sorrels has alleged a violation of his...