Jones v. Salt Lake County

• Citation: 503 F.3d 1147
• Decision Date: 28 September 2007
• Docket Number: No. 04-4185.,No. 04-4186.,04-4185.,04-4186.
• Parties: Paul B. JONES, individually and on behalf of a class of similarly situated individuals, Plaintiff-Appellant, v. SALT LAKE COUNTY, a body politic and corporate of the State of Utah; Aaron Kennard, Salt Lake County Sheriff; Paul Cunningham, Captain, Salt Lake County Metro Jail; John Merrick, Lieutenant, Salt Lake County Metro Jail, Defendants-Appellees. Prisoner's Legal News, a nonprofit Washington corporation, Plaintiff-Appellant, v. Pete Haun, Executive Director, Utah Department of Corrections; Fred H. Vanderveur, Director, Institutional Operations, Division of Institutional Operations, Utah Department of Corrections; Kerry Galetka; Bryant Herman, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

503 F.3d 1147

Paul B. JONES, individually and on behalf of a class of similarly situated individuals, Plaintiff-Appellant, v. SALT LAKE COUNTY, a body politic and corporate of the State of Utah; Aaron Kennard, Salt Lake County Sheriff; Paul Cunningham, Captain, Salt Lake County Metro Jail; John Merrick, Lieutenant, Salt Lake County Metro Jail, Defendants-Appellees.

Prisoner's Legal News, a nonprofit Washington corporation, Plaintiff-Appellant, v. Pete Haun, Executive Director, Utah Department of Corrections; Fred H. Vanderveur, Director, Institutional Operations, Division of Institutional Operations, Utah Department of Corrections; Kerry Galetka; Bryant Herman, Defendants-Appellees.

No. 04-4185.

No. 04-4186.

United States Court of Appeals, Tenth Circuit.

September 28, 2007.

Brian M. Barnhard (James L. Harris, Jr. with him on the briefs), Utah Legal Clinic, Salt Lake City, UT, for Plaintiffs-Appellants.

Nicholas M. D'Alesandro, Deputy District Attorney (David E. Yocom, District Attorney for Salt Lake County, and John P. Soltis, Deputy District Attorney, with him on the brief) Office of the District Attorney for Salt Lake County, Salt Lake City, UT, for Defendants-Appellees Salt Lake County, Kennard, Cunningham and Merrick.

Brent A. Burnett, Assistant Attorney General (Mark L. Shurtleff, Attorney General, and Alain C. Balmanno, Assistant Attorney General, with him on the brief) Office of the Attorney General for the State of Utah, Salt Lake City, UT, for Defendants-Appellees Haun, Vanderveur, Galetka and Herman.

Before TACHA, Chief Judge, McWILLIAMS and O'BRIEN, Circuit Judges.

O'BRIEN, Circuit Judge.

The district court considered complaints from eleven inmate plaintiffs, including Paul B. Jones, and one corporate plaintiff, Prisoner's Legal News (PLN). The eleven inmate plaintiffs were all incarcerated at either the Utah State Prison, the Salt Lake County Jail or the San Juan County Jail. The inmates and PLN filed several lawsuits against these facilities' officers challenging the constitutionality of their mail regulations under 42 U.S.C. § 1983. The cases were referred to a magistrate judge, who recommended dismissal under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A for failure to state a claim upon which relief may be granted.¹ The district court adopted that recommendation. Three appeals followed: Appeal Nos. 04-4185 (Jones v. Salt Lake County, et al.), 04-4186 (Prisoner's Legal News v. Haun, et al.) and 04-4187 (Prisoner's Legal News v. Christensen, et al.). The appeals were consolidated. In December 2004, Appeal No. 04-4187 was dismissed by stipulation. Therefore, only Appeal Nos. 04-4185 and 04-4186 remain.

Because Appeal No. 04-4185 addresses the mail regulations at the Salt Lake County Jail (County Jail) and Appeal No. 04-4186 addresses the mail regulations at the Utah State Prison (State Prison), we discuss each appeal separately. However, before turning to the merits, we address whether it was proper to dismiss the parties' complaints under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A, an issue common to both appeals.

I. 28 U.S.C. § 1915(e)(2)(B) and § 1915A

The first lawsuit filed in the district court, Farnsworth v. Salt Lake Metro Jail, was initiated on January 21, 1994. Jones filed his case challenging the County Jail's regulations on August 30, 1996. PLN, along with inmate Walter Thomas, filed their lawsuit challenging the State Prison's bulk-rate mail policies on April 23, 1998. The Jones and PLN-Thomas complaints, along with a number of other related prisoner complaints, were consolidated with Farnsworth. On October 14, 2003, the magistrate judge issued a report and recommendation. Therein, the magistrate listed seventeen pending motions filed by the various parties. He then stated:

Under 28 U.S.C. § 1915(e)(2)(B)[] and 28 U.S.C. § 1915A, this Court may dismiss a complaint filed if satisfied that the action fails to state a claim upon which relief may be granted. Pursuant to these motions and the Court's screening ability, every motion in every case of this action is before the Court.

(Appellant's App. Vol. 1 at 41 (citations omitted).) In recommending dismissal, the magistrate again cited 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. On March 29, 2004, the district court adopted (with one clarification) the magistrate's recommendation "in all respects." (Id. at 81.)

Jones and PLN argue the district court improperly dismissed their complaints under 28 U.S.C. §§ 1915(e)(2)(B) and 1915A. They claim § 1915(e)(2)(B) only applies to in forma pauperis actions and they paid the filing fees.² As to § 1915A, PLN argues it applies only to prisoner complaints and therefore its complaint could not be dismissed under § 1915A.³ While Jones concedes his complaint is a prisoner complaint, he contends § 1915A requires screening of complaints "before docketing, if feasible or, in any event, as soon as practicable after docketing." 28 U.S.C. § 1915A(a). Because his complaint was not screened until 2003, seven years after its filing, he argues its dismissal was not authorized under § 1915A and was contrary to the statute's intent, i.e., to weed out meritless inmate complaints before or immediately after filing.⁴

While Jones and PLN's arguments may have merit, we need not resolve them here because Jones and PLN failed to object to the magistrate's report and recommendation on those grounds. We have adopted a "firm waiver rule" whereby the failure to timely object to a "magistrate's findings or recommendations waives appellate review of both factual and legal questions." Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991). "This rule does not apply, however, when (1) a pro se litigant has not been informed of the time period for objecting and the consequences of failing to object, or when (2) the interests of justice require review." Morales-Fernandez v. I.N.S., 418 F.3d 1116, 1119 (10th Cir.2005) (quotations omitted). Neither exception to the firm waiver rule applies here. First, Jones and PLN did not proceed pro se; they were represented by counsel.⁵ Second, the interests of justice do not require suspension of the rule. While the district court may have inappropriately dismissed Jones' and PLN's complaints pursuant to §§ 1915(e)(2)(B) and 1915A, we can simply construe the district court's actions as a sua sponte grant of summary judgment to the defendants because it appears both the magistrate and district court considered and relied on evidence outside the pleadings. See FED.R.CIV.P. 12(b). Although not favored, "a sua sponte order of summary judgment may be appropriate if the losing party was on notice that [they] had to come forward with all of [their] evidence. If a losing party was not prejudiced by the lack of notice, we will not reverse simply because the grant of summary judgment came sua sponte." Ward v. Utah, 398 F.3d 1239, 1245-46 (10th Cir. 2005) (citation and quotations omitted). There is no indication of prejudice here. Prior to the district court's dismissal, Jones had filed a motion for partial summary judgment on the issue of liability and his request for injunctive relief and PLN had responded to the Haun Defendants' motion for summary judgment. Additionally, Jones and PLN conceded at oral argument that summary judgment was the appropriate standard.

We now turn to the merits of each appeal. We review de novo a grant of summary judgment. Rohrbaugh v. Celotex Corp., 53 F.3d 1181, 1182 (10th Cir.1995). Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R.CIV.P. 56(c).

These appeals require us to determine the constitutionality of certain mail regulations at the County Jail and State Prison. To determine whether the challenged regulations are valid, we apply the standard set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). Thornburgh v. Abbott, 490 U.S. 401, 413, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (holding Turner analysis applies to prison regulations affecting the sending of a publication to an inmate, i.e., incoming publications). Under Turner, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89, 107 S.Ct. 2254. In making this determination, we are guided by four factors. Id. at 89-90, 107 S.Ct. 2254.

"First, there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Id. at 89, 107 S.Ct. 2254 (quotations omitted). The logical connection between the regulation and its asserted goal(s) cannot be so remote as to render the regulation arbitrary or irrational. Id. at 89-90, 107 S.Ct. 2254. The legitimate governmental objective must also be neutral. Id. at 90, 107 S.Ct. 2254. A regulation restricting an inmate's First Amendment rights must operate without regard to the content of the expression. Id. Where a regulation furthers an important or substantial government interest unrelated to the suppression of expression, the neutrality requirement is met. Thornburgh, 490 U.S. at 415, 109 S.Ct. 1874. In other words, where prison officials "draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are `neutral' ...." Id. at 415-16, 109 S.Ct. 1874.

Second, we ask "whether there are alternative means of exercising the right that remain open to prison inmates." Turner, 482 U.S. at 90, 107 S.Ct. 2254. "[T]he right in question must be viewed sensibly and expansively." Thornburgh, 490 U.S. at 417, 109 S.Ct. 1874 (quotations omitted). "Where other avenues remain available for the exercise of the asserted right, courts should be particularly conscious of the measure of...