Ashker v. California Dept. of Corrections

• Decision Date: 18 November 2003
• Docket Number: No. 02-17077.,02-17077.
• Citation: 350 F.3d 917
• Parties: Todd Lewis ASHKER, Plaintiff-Appellee, v. CALIFORNIA DEPARTMENT OF CORRECTIONS; James Gomez; G. Bonnie Garibay; S. Bonaccorso; M. Jensen; S. Cambra; S. Steinberg, M.D.; Winslow; Dr. Astorga; C. Gollihar; S. Ricci, M.T.A.; K. Butcher; B. Patton; M. Billington; B. Grinstead; Joe McGrath, Warden, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

350 F.3d 917

Todd Lewis ASHKER, Plaintiff-Appellee, v.CALIFORNIA DEPARTMENT OF CORRECTIONS; James Gomez; G. Bonnie Garibay; S. Bonaccorso; M. Jensen; S. Cambra; S. Steinberg,M.D.; Winslow; Dr. Astorga; C. Gollihar; S. Ricci, M.T.A.; K. Butcher; B. Patton; M. Billington; B. Grinstead; Joe McGrath, Warden, Defendants-Appellants.

No. 02-17077.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 7, 2003.

Filed November 18, 2003.

Gregory S. Walston, Deputy Attorney General, San Francisco, California, for the defendants-appellants.

Herman A.D. Franck, Sacramento, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Northern District of California; Claudia Wilken, District Judge, Presiding.D.C. No. CV 97-1109 CW.

Before: Betty B. FLETCHER and A. Wallace TASHIMA, Circuit Judges, and Louis H. POLLAK, Senior District Judge.^*

OPINION

TASHIMA, Circuit Judge.

Defendants-Appellants, the California Department of Corrections and various prison officials (collectively, "CDC"), appeal an order of the district court granting summary judgment in favor of Plaintiff-Appellee, Todd Lewis Ashker, and issuing a permanent injunction against CDC.Ashker, a state prisoner housed in the Security Housing Unit ("SHU") at Pelican Bay State Prison("PBSP"), challenged a prison policy requiring books and magazines mailed to the prison to have an approved vendor label affixed to the package.In a published opinion, the district court granted summary judgment in favor of Ashker because the policy unreasonably burdened Ashker's First Amendment rights and was not rationally related to a legitimate penological objective.Ashker v. Cal. Dep't of Corr.,224 F.Supp.2d 1253, 1262(N.D.Cal.2002).The court further held that Ashker was entitled to injunctive relief and issued a permanent injunction enjoining PBSP from enforcing the book label requirement.Id. at 1263-64.Our jurisdiction is pursuant to 28 U.S.C. §§ 1291and1292(a).¹We affirm.

BACKGROUND²

Ashker's complaint under 42 U.S.C. § 1983 alleged violations of his rights under the First and Eighth Amendments.³Ashker contended that a prison policy requiring all packages containing books and magazines to have an approved vendor label affixed to the package violated his First Amendment rights.

The policy at issue provides, in part, as follows:

L.Books, Magazines, and Calendars

1.Books, magazines, and calendars may be ordered through special purchase, or may be sent in from an approved mail order vendor.All book packages must have an approved book label attached with the vendor stamp.Books received without a book label or vendor stamp will be returned to sender....

Y.Delivery of personal property to institution:

All personal property coming into the institution must have prior approval, and must be received via U.S. Mail or common carrier....In order to prevent the introduction of contraband, all property and packages received at this institution will be searched by custodial staff prior to delivery to the addressee....

Z.Personal property items may be acquired in the following manner: ...

3.Special Purchases: Personal property items ... purchased by the inmate through special purchase procedures ... may be ordered and shipped directly from institutional approved vendor(s)....Special purchases ... include tennis shoes, thermal tops and bottoms approved appliances, and books/periodicals/magazines/calendars....Books/periodicals/magazines/calendars may be ordered from a mail order book store or publisher and approved book labels must be attached....Any packages from a book vendor or publisher must have a book label with a vendor stamp attached.Packages without the vendor stamp, label, or the required signatures, will be returned to sender.

Glen Rodman, a sergeant at PBSP in Receiving and Release ("R & R"), explained that the majority of SHU inmates are involved in gang activity and are therefore likely to receive contraband in the mail, such as books containing drugs or encrypted with gang messages.All items received by PBSP are inspected for contraband and may further be inspected by a fluoroscope machine.Because such machines cannot detect encrypted material, the book label requirement is an additional security measure designed "to help ensure that reading material comes directly from the vendor, as opposed to passing through an unknown third party."According to Rodman, "[a]n additional purpose served by the book label requirement is to reduce the amount of material that is required to be individually screened by" the three R & R staff members who are responsible for tracking the mail, searching it for contraband, and delivering approved materials to inmates.

In October 1996, Ashker's friend, Didar Khalsa, ordered books from Barnes & Noble Booksellers to be delivered to Ashker, including with her order the vendor label required by CDC.In December 1996, when Ashker still had not received the books, Khalsa contacted PBSP and learned that between November and December 1996, over one hundred book packages had been returned to the senders because of the vendors' failure either to place the vendor label on the box or to place a vendor stamp in the appropriate box on the label.Ashker eventually received the books several months later, after Khalsa took the book label to the book store.Ashker no longer asks Khalsa to attempt to order books for him because of the difficulties she has encountered in the process.Because Ashker has no one else to help him, he has received no books for at least two years.

Ashker's cellmate, Frank Clement, also has encountered difficulties in attempting to order books due to the book label policy.One book publisher told Clement that it is unable to comply with the book label requirement because it receives orders and fills them in different locations; this publisher subsequently informed Clement that it would no longer ship books to correctional facilities.

STANDARD OF REVIEW

The district court's grant of summary judgment is reviewed de novo.Hargis v. Foster,312 F.3d 404, 409(9th Cir.2002)."Here, the facts underlying the district court's conclusion ... are not in dispute; therefore, the only question we must determine is whether the district court correctly applied the law."EEOC v. Luce, Forward, Hamilton & Scripps,345 F.3d 742, 746(9th Cir.2003)(en banc)(internal quotation marks and citation omitted).The district court's grant of permanent injunctive relief is reviewed for an abuse of discretion or application of erroneous legal standards.Gomez v. Vernon,255 F.3d 1118, 1128(9th Cir.), cert. denied sub nom.Beauclair v. Gomez,534 U.S. 1066, 122 S.Ct. 667, 151 L.Ed.2d 581(2001).Because a state agency must be granted latitude in the operation of its internal affairs, injunctive relief is appropriate only when irreparable injury is threatened, and the injunctive relief "must avoid unnecessary disruption to the state agency's `normal course of proceeding.'"Id.(quotingO'Shea v. Littleton,414 U.S. 488, 501, 94 S.Ct. 669, 38 L.Ed.2d 674(1974)).

DISCUSSION

"Prison walls do not form a barrier separating prison inmates from the protections of the Constitution."Turner v. Safley,482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64(1987).Thus, "[a] prisoner retains those First Amendment rights that are `not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'"Hargis,312 F.3d at 409(quotingPrison Legal News v. Cook,238 F.3d 1145, 1149(9th Cir.2001)).A prison regulation that impinges on inmates' constitutional rights therefore is valid only if it is "reasonably related to legitimate penological interests."Turner,482 U.S. at 88, 107 S.Ct. 2254."[A] regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational."Id. at 89, 107 S.Ct. 2254.Nonetheless, deference is accorded to prison authorities in order to avoid "hamper[ing] their ability to anticipate security problems and to adopt innovative solutions to the intractable problems of prison administration."Id. at 85, 88, 107 S.Ct. 2254.

In determining whether a prison regulation is reasonably related to a legitimate penological interest, courts examine four factors established in Turner:

(1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.

Morrison v. Hall,261 F.3d 896, 901(9th Cir.2001)(quotingPrison Legal News,238 F.3d at 1149).The first factor is a sine qua non.Id.;Prison Legal News,238 F.3d at 1151.Therefore, if the prison fails to show that the regulation is rationally related to a legitimate penological objective, we do not consider the other factors.Prison Legal News,238 F.3d at 1151.In considering the first factor, we are to (1) determine whether the regulation is legitimate and neutral, and (2) assess whether there is a rational relationship between the governmental objective and the regulation.Morrison,261 F.3d at 901-02.For purposes of this discussion, we assume that the prison's asserted interest in security and order is a legitimate penological objective.We conclude, however, that the challenged book label policy is not rationally related to that objective.

In determining whether there is a rational relationship between the purported objective and the regulation, the level of scrutiny applied to the judgment of prison officials "depends on the circumstances in each case."Prison Legal News...