Parkhurst v. Lampert, 033011 FED10, 10-8078

Docket Nº:10-8078
Opinion Judge:Mary Beck Briscoe Chief Judge
Party Name:DERRICK R. PARKHURST, Plaintiff-Appellant, v. ROBERT LAMPERT, Warden, Wyoming Department of Corrections, MICHAEL MURPHY, Director, Wyoming Department of Corrections, in their official and individual capacities, Defendants-Appellees.
Judge Panel:Before BRISCOE, Chief Judge, TACHA and MURPHY, Circuit Judges.
Case Date:March 30, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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DERRICK R. PARKHURST, Plaintiff-Appellant,

v.

ROBERT LAMPERT, Warden, Wyoming Department of Corrections, MICHAEL MURPHY, Director, Wyoming Department of Corrections, in their official and individual capacities, Defendants-Appellees.

No. 10-8078

United States Court of Appeals, Tenth Circuit

March 30, 2011

D.C. No. 2:07-CV-00278-CAB, D. Wyo.

Before BRISCOE, Chief Judge, TACHA and MURPHY, Circuit Judges.

ORDER AND JUDGMENT [*]

Mary Beck Briscoe Chief Judge

After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist in the determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is, therefore, submitted without oral argument.

This appeal represents the second time this case is before this court. Derrick R. Parkhurst, a prisoner in the custody of the Wyoming Department of Corrections (WDOC) proceeding pro se, brought this action against the director of WDOC and the warden of the Wyoming State Penitentiary (WSP) (collectively, Defendants) pursuant to 42 U.S.C. § 1983, asserting that their refusal to deliver copies of his newsletter to prisoners in the WSP violated his right to free expression under the First Amendment of the United States Constitution and his right to freedom of speech and the press under the Wyoming Constitution.

In the first appeal, after the United States District Court for the District of Wyoming granted summary judgment on all claims in favor of Defendants, this court remanded Parkhurst's claims for injunctive relief against Defendants in their official capacities to the district court to analyze WDOC Policy and Procedure (WPP) #5.401(IV)(E)(6)(x)1, which Defendants assert as the basis for their refusal to deliver the newsletters, pursuant to Turner v. Safley, 482 U.S. 78 (1987). See Parkhurst v. Lampert (Parkhurst I), 339 F.App'x 855 (10th Cir. 2009). On remand, based on its Turner analysis, the district court concluded that WPP #5.401(IV)(E)(6)(x) is reasonably related to legitimate penological interests, granted summary judgment to Defendants on the official capacity claims for injunctive relief and dismissed the action. ROA, Vol. 1 at 455–56. Parkhurst appeals this decision. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm.

I. BACKGROUND

Although the facts are described in detail in Parkhurst I, we provide a brief summary of the relevant circumstances herein. As the chairman of the Wyoming Prisoners' Association (WPA) and an official of the Wyoming chapter of the Citizens United for Rehabilitation of Errants (WY-CURE), Parkhurst published a combined newsletter for these associations. ROA, Vol. 1 at 18–19. According to Parkhurst, this newsletter provided "a review of current cases filed in the federal courts, and other matters of interest to Wyoming prisoners." Id. at 19. In 2006, Parkhurst shipped approximately 693 copies of the newsletter together in one box addressed to the WSP. Id. Within the box, the copies of the newsletter were individually addressed to specific prisoners. Id. In addition to the newsletters shipped together, Parkhurst mailed newsletters individually to certain prisoners, including himself. Id. at 64, 82.

Prison officials at the WSP refused to deliver the newsletters contained in the box to the intended prisoner recipients based on WPP #5.401(IV)(E)(6)(x). Id. at 64–65. This regulation provides, in relevant part, that: "[Non-privileged] [m]ail may be rejected if it contains material not intended for the addressee; but rather material intended for other parties." Id. at 178. However, the newsletters that were individually mailed were delivered to the intended prisoner recipients. Id. at 64, 82.

Parkhurst brought this action pursuant to 42 U.S.C. § 1983 against the Defendants in their official and individual capacities, claiming that the refusal to deliver the newsletters contained in the box violated his rights under the First Amendment of the United States Constitution and under the Wyoming Constitution. Id. at 10–21. Parkhurst sought an order prohibiting Defendants from refusing to deliver newsletters shipped in this manner in the future and damages for the cost of reproducing and reissuing the newsletters. Id. at 20.

The district court granted summary judgment in favor of Defendants on all claims. Id. at 222. This court affirmed the district court's decision granting summary judgment to Defendants on the individual capacity claims for damages based on qualified immunity. Parkhurst I, 339 F.App'x at 862. However, this court reversed the district court's decision regarding the official capacity claims for injunctive relief and remanded the case to the district court to analyze WPP #5.401(IV)(E)(6)(x) pursuant to Turner, and to further develop the record as necessary. Id. at 860–61.

On remand, the district court ordered both parties to submit briefs regarding the issues identified in Parkhurst I. ROA, Vol. 1 at 273–74. Parkhurst requested that the district court remove its protective order on discovery and require Defendants to respond to his interrogatories, which were submitted prior to his first appeal. Id. at 275–76. The magistrate judge refused to remove the protective order because Parkhurst's interrogatories did not relate to the Turner analysis, id. at 289–97, and the district court affirmed this decision, id. at 437. Defendants submitted a brief asserting that WPP #5.401(IV)(E)(6)(x) satisfied the "legitimate penological interest test" established in Turner. Id. at 303–15. To support their argument, Defendants provided copies of the Wyoming Mail Management Manual, id. at 321–61, and WPP #5.401, id. at 363–400. In his response, Parkhurst did not address Defendants' assertions concerning WPP #5.401(IV)(E)(6)(x). See id. at 401–04.

Analyzing WPP #5.401(IV)(E)(6)(x) pursuant to Turner, the district court concluded that the regulation "is facially valid." Id. at 456. Thus, the district court granted summary judgment to Defendants on the official capacity claims for injunctive relief and dismissed the action. Id. Parkhurst appeals this decision.

II. DISCUSSION

On appeal, Parkhurst contends that the district court improperly granted summary judgment to Defendants on the official capacity claims...

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