Krug v. Lutz

Decision Date14 May 2003
Docket NumberNo. 01-16033.,01-16033.
Citation329 F.3d 692
PartiesLawrence J. KRUG, Plaintiff-Appellee, v. Thomas LUTZ, Dr.; Mecoli, Dr.; Fischer, NP; Cleeney, FHA; Flannigan, Warden; D.W. Cattel, Deputy Warden; Mike Dunn, Deputy Warden; Yolanda Martinez, Deputy Warden; Gonzales, Warden; Spargur; Monica Taylor, Defendants-Appellants, and Felix F. Jabczenski, Jr., Dr., Defendant.
CourtU.S. Court of Appeals — Ninth Circuit

Wanda E. Hofmann and Bruce L. Skolnik, Assistant Attorneys General, Tucson, AZ, for the defendants-appellants.

Adam N. Steinman and Julia Parsons Clarke, Perkins Coie LLP, Seattle, WA, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge. Presiding, D.C. No. CV-99-00362-RCC.

Before BROWNING, FISHER, and TALLMAN, Circuit Judges.

OPINION

FISHER, Circuit Judge.

Lawrence Krug is an Arizona state prisoner. He claims that Appellants, various Arizona Department of Corrections officials ("ADOC officials"), violated his procedural due process rights by failing to give him the opportunity to appeal the exclusion of incoming publications to a prison official other than the one who made the initial exclusion decision. The ADOC officials interlocutorily appealed the district court's order granting a permanent injunction in Krug's favor, and Krug cross-appealed the district court's grant of qualified immunity to the ADOC officials. We conclude that the Hook Consent Decree, entered into in 1973 by a group of inmates and the ADOC, does not bar Krug's claim, nor is he required to seek modification of the decree in order to obtain relief. We further conclude that Krug has a constitutional right to a two-level review of exclusion decisions. We also conclude that the ADOC officials are entitled to qualified immunity from Krug's claim for damages. We therefore affirm the district court's order.

FACTUAL and PROCEDURAL BACKGROUND

In 1973, before Krug was incarcerated in the Arizona state prison system, inmates and the ADOC entered into a consent decree in Hook v. Arizona, 907 F.Supp. 1326. See Hook v. Ariz. Dep't of Corrs., 972 F.2d 1012, 1013-14 (9th Cir. 1992) (discussing the history of the Hook Consent Decree). The Hook Consent Decree authorized the ADOC to exclude publications deemed to be obscene under applicable constitutional standards, and allowed inmates dissatisfied with a particular exclusion "to discuss the reasons for the exclusion with the Deputy Superintendent whose decision shall be final." Until 1997, the reviews of decisions to exclude incoming publications as obscene were conducted by a prison official other than the one who made the initial determination.1

Beginning in 1997, however, the ADOC adopted a practice of having an inmate's appeal of an exclusion decision adjudicated by the same prison official who made the initial decision to exclude the publication. In late 1998, Director's Instruction 95 superseded an earlier written policy and provided that the Operations Officer for Programs would conduct both the initial screening of publications and any appeals of his exclusion decisions. A revised policy was issued in late 1999, but the substance of the relevant provisions did not change. Under these policies, ADOC officials rejected 63 publications addressed to Krug because they were deemed obscene. Krug appealed each rejection. The same ADOC official who initially rejected each publication also rejected Krug's appeal of that decision.

Krug filed his pro se complaint in the United States District Court for the District of Arizona on July 13, 1999. Krug's complaint alleged, among other things, that the ADOC's system for excluding incoming publications as obscene violated his right to procedural due process. Krug requested both injunctive relief and damages. The ADOC officials moved to dismiss Krug's due process claim, and Krug moved for summary judgment and injunctive relief on his due process claim.

On March 30, 2001, the district court granted Krug's request for injunctive relief. It directed the ADOC officials to "retract any internal procedures that are inconsistent with Plaintiff's due process right to appeal the exclusion of incoming publications to a prison official other than the one who made the original exclusion decision." The court also granted in part the ADOC officials' motion to dismiss, finding that they enjoyed qualified immunity from Krug's request for money damages arising out of the procedural due process violations.

On May 1, 2001, the ADOC officials filed their notice of interlocutory appeal from the district court's decision. The following week Krug filed a motion to strike the notice of interlocutory appeal and a response to the notice of interlocutory appeal; in each document, he stated that he wanted to challenge the district court's qualified immunity ruling. After initial briefing, in which Krug presented his qualified immunity argument, this court ordered the appointment of pro bono counsel for Krug. Following the appointment of counsel, both parties filed supplemental briefing and for the first time the ADOC officials addressed Krug's qualified immunity argument.

On October 17, 2002, six days after argument in this case, the district court granted the ADOC officials' motion for summary judgment and dismissed all of Krug's remaining claims. Krug filed a notice of appeal of that judgment, but withdrew that appeal on November 22, 2002. Thus, this appeal regarding procedural due process and qualified immunity is all that remains of Krug's case.2

STANDARD OF REVIEW

We review de novo the district court's authority to grant the permanent injunction in Krug's favor, but we review the court's exercise of that power for an abuse of discretion. See Walters v. Reno, 145 F.3d 1032, 1047 (9th Cir.1998). The district court's constitutional ruling on Krug's due process claim is also reviewed de novo. See S.D. Myers, Inc. v. City & County of San Francisco, 253 F.3d 461, 466(9th Cir.2001). Finally, we review the district court's decision on the ADOC officials' qualified immunity de novo. See Sorrels v. McKee, 290 F.3d 965, 969 (9th Cir.2002).

DISCUSSION
I. The Hook Consent Decree

The ADOC officials argue that the district court's injunction amounts to an improper modification to the Hook Consent Decree and that the district court was required to decline consideration of Krug's request for a permanent injunction because his request was within the jurisdiction of the district court judge supervising the decree. We disagree.

The district court's injunction does not improperly modify the Hook Consent Decree and thereby deprive the ADOC of the benefit of its bargain. Consent decrees such as Hook are "`in some respects contractual in nature,'" but are "`subject to the rules generally applicable to other judgments and decrees,'" and can be enforced only to the extent that they clearly prohibit or require conduct. Gates v. Shinn, 98 F.3d 463, 468 (9th Cir.1996) (quoting Rufo v. Inmates of Suffolk County Jail, 502 U.S. 367, 378, 112 S.Ct. 748, 116 L.Ed.2d 867 (1992)). The relevant provision of the Hook Consent Decree does not speak directly to whether the Deputy Superintendent's "final" determination is made after his own or some other prison official's initial decision on the excluded material. The injunction requiring the ADOC officials to "retract any internal procedures that are inconsistent with Plaintiff's due process right" does not conflict with or alter any of the decree's provisions. The ADOC officials' compliance with the injunction requires no change to the terms of the decree. Instead, it requires them to modify their current practice by conducting an initial level of review prior to the Operations Officer for Program's "final" determination, just as they did prior to 1997.

The ADOC officials argue that in return for the ADOC's promise to use "applicable constitutional standards" when screening incoming publications, the inmates agreed to an expedited review process and finality. Yet the ADOC's own conduct following the approval of the decree belies the claim that one-level review was part of the bargain. Krug alleges, and the ADOC has produced no evidence to the contrary, that prior to 1997 the ADOC provided two-level review to inmates. Regardless, the bargain struck in 1973 could not have involved the knowing waiver of the inmates' constitutional right to review by a second prison official, because that right was not established until the following year, as discussed below. See Procunier v. Martinez, 416 U.S. 396, 418-19, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). Even if the Hook Consent Decree could be read to waive inmates' rights to review by a second prison official Krug was not an original plaintiff in the 1973 Hook case. Current and future ADOC inmates are third-party beneficiaries of, and not parties to, the Hook Consent Decree. Hook, 972 F.2d at 1013-15.3 Although it appears that in 1994 there may have been a limited certification of a class to enforce the decree, see Hook v. Arizona, 907 F.Supp. 1326, 1332(D.Ariz.1995), this fact does not change the analysis. It is not alleged that the certification purported to bind all class members to a waiver of the right to review by a second prison official; and, regardless, it is unlikely that the certification could do so. Cf. Schwarzschild v. Tse, 69 F.3d 293, 295-97 (9th Cir.1995) (holding that a judgment obtained before class certification is binding only upon the named plaintiffs). Therefore, the existence of the Hook Consent Decree neither bars Krug's injunction nor requires him to seek a modification of the decree to enforce his rights.

Accordingly, we reject the ADOC officials' argument that the district court judge should have referred Krug's request for an injunction to the district court judge monitoring the Hook Consent Decree. Although the district court judge who approved the...

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