Allen v. Wood

• Decision Date: 09 June 1997
• Docket Number: No. CY-95-3171-LRS.,CY-95-3171-LRS.
• Parties: Joseph ALLEN, Plaintiff, v. Tana WOOD, et al., Defendants.
• Court: U.S. District Court — District of Washington

970 F.Supp. 824

Joseph ALLEN, Plaintiff, v. Tana WOOD, et al., Defendants.

No. CY-95-3171-LRS.

United States District Court, E.D. Washington.

June 9, 1997.

Joseph Allen, Walla Walla, WA, pro se.

Nancy Joan Krier, Asst. Attorney General, Olympia, WA, for Defendant.

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DISMISSING COMPLAINT WITH PREJUDICE

SUKO, United States Magistrate Judge.

BEFORE THE COURT is defendants' motion for summary judgment and dismissal, Ct. Rec. 17. Upon hearing without oral argument, plaintiff appeared pro se, and defendants were represented by Assistant Washington State Attorney General Nancy Joan Krier. The parties have consented to proceed before the magistrate judge.

The court previously advised plaintiff regarding the summary judgment requirements of Fed.R.Civ.P. 56. See Klingele v. Eikenberry, 849 F.2d 409, 411 (9th Cir.1988). Plaintiff, however, has not responded to defendant's motion.

On January 18, 1996, plaintiff filed an amended complaint pursuant to 42 U.S.C. § 1983 alleging defendants violated his constitutional rights when plaintiff received several mail rejection notices from July 1995 through December 1995. Plaintiff asserts the mail rejection policies at the Washington State Penitentiary (WSP) violate his First Amendment rights. Plaintiff claims his Eighth Amendment rights were violated when defendants engaged in calculated discrimination and harassment tactics. Plaintiff contends the rejection of his mail was based on plaintiff's sexual orientation in violation of his due process and equal protection rights under the Fourteenth Amendment. Plaintiff also asserts his Fifth Amendment rights were violated when he was denied priorly authorized, approved and prepaid publications. Plaintiff seeks declaratory relief, compensatory and punitive damages, and costs.

FACTS

Plaintiff is an inmate formerly housed at the WSP and now at the Washington Corrections Center. The WSP is a maximum security prison. Between July and December 1995, defendants at the WSP applied Department of Corrections (DOC) Policy 450.100 and WSP Field Instruction 450.100 to reject unauthorized catalogs, sexually explicit materials, unauthorized postage stamps and an oversized greeting card sent to plaintiff. (Ct. Rec.17, Ex. 120-122.)

Defendants include WSP mail room machine operators Nancy Frost, Dennis Potts, and Eugene Edwards; WSP mail room Supervisor Sgt. Fred Warneka; WSP Superintendent Tana Wood; Associate WSP Superintendent Ronald Van Boening; and Division of Prisons Director Tom Rolfs. Tom Rolfs is responsible for promulgating, interpreting, and ensuring enforcement of policies, rules, regulations and directives for all Division of Prisons (DOP) adult corrections facilities. (Ct. Rec. 17, Ex. 131, Rolfs Aff.)

WSP Field Instruction 450.100 which was in effect during the summer of 1995 and until October 9, 1995, defined "catalog" as "a book or pamphlet containing multiple pages and exhibiting and offering items or services usually with descriptive comments and often illustrations." The field instruction effective October 9, 1995 defined "catalog" as "a book or pamphlet containing more than one page exhibiting and offering items or services. A catalog usually contains descriptive comments and/or illustrations and a price list." WSP inmates are not permitted to receive catalogs in the mail, except for hobby, craft and curio catalogs for inmates with related curio permits. (Ct. Rec. 17, Exs. 121, 122, Field Instructions.)

DOP Policy 450.100 defines and sets parameters with respect to sexually explicit materials which may be received by inmates, and sets forth factors to determine what is appropriate for inmate viewing within an institution. The term sexually explicit refers to those written and/or graphic materials that depict one of the following:

1. Where one of the participants in the act is, or appears to be, non-consenting;

2. Where one of the participants appears to be forceful, threatening, or violent;

3. Where one of the partners is dominating one of the other participants and one of the individuals is obviously in a submissive role or one of the participants is degraded, humiliated, or willingly engages in behavior that is degrading or humiliating;

4. One of the participants is a child, or appears to be a child;

5. Where there is actual penetration, be it penile/vaginal-oral, penile-anal, or penile-vaginal; digital-anal, digital-vaginal; or insertion of any inanimate object in the vaginal or anal cavity, and the depiction in the context presented is deemed to be a threat to legitimate penological objectives;

6. Where any bodily excretory function is depicted;

7. Material depicting bestiality, sadomasochistic behavior, bondage; or

8. The material is reasonably deemed to be a threat to legitimate penological objectives.

Incoming mail which is deemed sexually explicit will not be delivered to the inmate. DOC Policy 450.100(A)(2)(j). (Ct.Rec.17, Exs.120-122.) The applicable Field Instruction, WSP 450.100, mirrors the definitions of the term "sexually explicit" found in the regulations. (Ct.Rec.17, Ex. 121, 122.) The Field Instruction and Policy 450.100 are neutral with respect to sexual orientation. (Ct. Rec.17, Ex. 121, 122.)

WSP Field Instruction 450.100 limits the number and format of U.S. postage stamps which inmates may receive in the mail. (Ct. Rec. 17, Exs. 121, 122, Field Instructions; Ex. 130, Wood Aff.; Ex. 127, Warneka Aff.) An inmate can buy loose postage stamps in the WSP inmate store. (Ct. Rec. 17, Ex. 130, Wood Aff.) DOP Policy 450.100 and WSP Field Instruction 450.100 also prohibit greeting cards which are padded, laminated, musical, and/or larger than eight inches by ten inches. (Ct. Rec. 17, Exs 120-122.)

The WSP mail room processes between 10,000 and 20,000 pieces of mail per day for 3,200 inmates and staff. (Ct. Rec. 17, Ex. 127, Warneka Aff.) All mail to WSP inmates is inspected by staff for consistency with policies, procedures, and regulations, and to determine the presence of contraband. (Ct. Rec. 17, Ex. 120, DOP Policy 450.100; Ex. 127, Warneka Aff.; Ex. 130, Wood Aff.) Approximately seven WSP staff personally handle, document, and process all incoming and outgoing mail at the institution, including inmate mail. (Ct. Rec. 17, Ex. 127, Warneka Aff.)

Inmate mail which is not consistent with the policies and procedures is rejected. (Ct. Rec. 17, Ex. 127, Warneka Aff.; Exs. 120-122, Policy and Field Instructions.) Inmates who have mail rejected may appeal to the DOP Director. (Ct. Rec. 17, Ex. 102, Mail Rejection stating appeal rights.)

On July 25, 1995, defendant N. Frost rejected L.U.E.Y., Silver Nugget Foundation as an unauthorized catalog. Defendant Van Boening denied the mail rejection appeal on August 1, 1995. Defendant Rolfs further upheld the rejection on September 6, 1995, finding this publication met the DOP policy definition of sexually explicit. (Ct.Rec.17, Ex. 102.)

On August 4, 1995, defendant D. Potts rejected Southern A.I.A. as an unauthorized catalog. Defendant Rolfs upheld the rejection on September 6, 1995, finding this publication met the DOP policy definition of sexually explicit. (Ct.Rec.17, Ex. 103.)

On August 11, 1995, defendant E. Edwards rejected Omnific Designs West/Loving Alternatives and sent the publication to headquarters for review. Defendant Rolfs denied plaintiff's appeal on August 25, 1997, finding the publication Loving Alternatives, July/August 1995 issue, met the WSP Field Instruction definition of catalog. On September 6, 1995, defendant Rolfs further upheld the rejection, finding the publication met the DOP policy definition of sexually explicit. (Ct. Rec.17, Ex. 104.)

On August 31, 1995, defendant Frost rejected Omnific Designs West as an unauthorized catalog. Defendant Rolfs upheld the rejection, finding the publication met the DOP policy definition of sexually explicit. (Ct.Rec.17, Exs.104, 105.)

On September 11, 1995, defendant Frost rejected personal correspondence from Dean Dunlap as it depicted penile/anal penetration and sadomasochism. Defendant Van Boening denied plaintiff's appeal on September 20, 1995. (Ct.Rec.17, Ex. 106.)

On September 12, 1995, defendant Potts rejected H.M.C.S. as an unauthorized catalog. Defendant Van Boening denied plaintiff's appeal on September 20, 1995. (Ct. Rec.17, Ex. 107.)

On October 4, 1995, defendant Potts rejected K.P. as an unauthorized catalog. Defendant Van Boening denied plaintiff's appeal on October 13, 1995, finding the publication met the definition of catalog defined in WSP Field Instruction 450.100 and also that the publication had been modified by a black marker on numerous pages, rendering the publication contraband. (Ct.Rec.17, Ex. 108.)

On October 11, 1995, defendant Frost rejected Melinda Klemas as an unauthorized catalog. Defendant Van Boening denied the appeal on October 17, 1995. (Ct.Rec.17, Ex. 109.)

On October 17, 1995, defendant Potts rejected postage stamps sent to plaintiff as they were not in a book. Plaintiff did not appeal. (Ct.Rec.17, Ex. 110.)

On October 27, 1995, defendant Potts rejected a book of stamps sent to plaintiff because the book did not have plaintiff's name or DOC number written on it. Defendant Van Boening denied the appeal on November 1, 1995. (Ct.Rec.17, Ex. 111.)

On November 22, 1995, defendant Potts rejected David Dunn C.C. as a catalog. Defendant Van Boening denied the appeal on November 29, 1995, citing safety (fire hazzard) and security (contraband concealment) concerns. (Ct.Rec.17, Ex. 112.)

On December 8, 1995, defendant Potts rejected a greeting card as it was larger than eight inches by ten inches. Plaintiff did not appeal. (Ct.Rec.17, Ex. 113.)

On December 14, 1995, defendant Frost rejected K.P. as the publication depicted penetration. Plaintiff did not appeal. (Ct. Rec.17, Ex. 114.) Other than the mail rejections from July and August 1995, plaintiff did not appeal his mail rejections to the...