Ashker v. California Dept. of Corrections

• Decision Date: 11 September 2002
• Docket Number: No. C 97-01109 CW.,C 97-01109 CW.
• Citation: 224 F.Supp.2d 1253
• Parties: Todd Lewis ASHKER, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.
• Court: U.S. District Court — Northern District of California

224 F.Supp.2d 1253

Todd Lewis ASHKER, Plaintiff, v. CALIFORNIA DEPARTMENT OF CORRECTIONS, et al., Defendants.

No. C 97-01109 CW.

United States District Court, N.D. California.

September 11, 2002.

Stephen T. Gargaro, Stephen T. Gargaro Law Offices, San Francisco, CA, Herman A.D. Franck, V, Sacramento, CA, for Plaintiff.

Scott C. Mather, CA State Attorney General's Office, San Francisco, CA, for Defendants.

ORDER GRANTING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

WILKEN, District Judge.

Plaintiff Todd Ashker, an inmate housed in the Security Housing Unit (SHU) at Pelican Bay State Prison (PBSP), moves for summary judgment on his First Amendment book label claim. Defendant California Department of Corrections (CDC) opposes the motion. Ashker has not filed a reply. The matter was heard on April 19, 2002. Having considered all of the papers filed by the parties and oral argument on the motion, the Court GRANTS Plaintiff's motion for summary judgment (Docket No. 179).

FACTUAL BACKGROUND

The parties agreed at oral argument that there are no disputes of material fact. Thus, the following facts are taken as true:

There is a high number of inmates housed in the SHU who are involved in gang activity. Declaration of Sergeant Glen Rodman (Rodman Decl.) at ¶ 3. Members of gangs are more likely than prisoners housed in the general population to receive contraband, including drugs or encrypted messages in publications. Rodman Decl. at ¶ 4. To prevent inmates housed in the SHU from receiving contraband, PBSP Operational Procedure 806 outlines a "Special Purchases" program. Declaration of Herman Franck (Franck Decl.), Exhibit (Exh.) A. That regulation provides in pertinent part:

Personal property items authorized in accordance with this plan may be purchased by the inmate through special purchase procedures.... Special purchases will encompass all incoming property to include ... books/periodicals/magazines/calendars.... Books/periodicals/magazines/calendars may be ordered from a mailorder [sic] books [sic] store or publisher and approved book labels must be attached. All book address label forms must be signed by the inmate to receive the item(s), and then signed by an R & R [Receiving and Release] staff member. 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. All property items will be ordered from an approved vendor. The package will be ordered by the inmate ....

Franck Decl., Exh. A. Procedure No. 806(L)(2) provides that an inmate may receive one book package per month, but may possess no more than ten books and magazines at any one time. Franck Decl., Exh. A.

Regulation 806(L)(1) provides:

Books, magazines and calendars 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 (RTS).

Franck Decl., Exh. A.

Procedure No. 806(Y) provides in relevant part that "all property and packages received at [PBSP] will be searched by custodial staff prior to delivery to the addressee." Franck Decl., Exh. A; Rodman Decl. at ¶ 3. When shipments of books arrive without a book label, they too are opened to determine the origin of the package. Rodman Decl. at ¶ 4. Following a manual inspection, custodial staff may subject an item to inspection by way of a fluoroscope machine. Rodman Decl. at ¶ 3. The fluoroscope machine has on one occasion failed to detect drugs included in mail addressed to an inmate, and cannot detect encrypted messages placed in publications by third parties. Id.

The 2002 version of the PBSP book label, which is substantially similar to the label used in 1997, must be included by the inmate in his order when submitted to the book seller. Declaration of Todd Ashker (Ashker Decl.), Exh. A. The label requires that the inmate provide his name, Department of Corrections number, and housing unit. Id. The label also lists PBSP's address next to the designation "ship to." Id. At the bottom of the label, a clause releases PBSP and its staff from liability for the removal and disposal of covers from hard cover books or other alteration of any books, and another clause indicates that should the inmate refuse the procedure, the inmate will be required to mail the book to his home at his expense, or donate it, or it will be disposed of by PBSP staff. Id. In the upper left-hand corner of the label is a blank box in which the book seller is instructed to attach its "vendor stamp." Id.

The label is the top half of a page titled "Book Address Form." The vendor is to cut on the dotted line, separating the label from the bottom half of the form, and affix the label to the package being sent to the inmate. Id. Beneath the dotted line, in larger print, is the following information: "ATTENTION VENDORS: THIS BOOK ADDRESS LABEL MUST BE ATTACHED TO THE OUTSIDE OF THE BOOK PACKAGE WHERE IT IS VISIBLE TO SHU R & R STAFF OR IT WILL BE RETURNED TO THE SENDER UNOPENED. (NO EXCEPTIONS)." Ashker Decl., Exh. A; Rodman Decl. at ¶ 5. The form also indicates that "if the book arrives without an approved books address label and/or the necessary signatures, the book will be returned to sender at inmates [sic] expense...." Id. Immediately below that warning, the form provides that "[a]ny item being returned to vendor/sender will be shipped at inmates [sic] expense." Id.

Sergeant Glen Rodman, who was assigned to PBSP's R & R division in October, 2001, and to the SHU for eleven years prior to his R & R designation, further explains mailing procedures for shipments of books and reading materials. Rodman states that non-approved packages arriving by United States Postal Service (USPS) are returned at no expense to the inmate, but that United Parcel Service (UPS) will only return damaged packages at no additional expense. Rodman Decl. at ¶¶ 1, 6. Thus, unopened, undamaged packages shipped via UPS are returned at the inmate's expense. Id. The inmate is also given the option of having the package mailed to a friend or family member. Id. The package is stored for thirty days until the inmate provides funds for mailing and an address to which the package is to be sent. Id. If the inmate does not provide funds or a mailing address, or if the inmate does not file an administrative appeal of the withholding of his books, PBSP will dispose of the property after providing notice to the inmate. Id.

The purpose of the "book label" policy is to ensure that books or periodicals are shipped to PBSP inmates directly from authorized publication vendors, rather than from inmates' friends or family members, thus decreasing the possibility that contraband will be included in such packages. Rodman Decl. at ¶ 4. Though the vendor label requirement cannot prevent all introduction of contraband, PBSP officials believe it reduces the possibility of such security breaches. Id. The vendor label policy also is intended to decrease the number of packages that require individual inspection by prison mailroom employees. Rodman Decl. at ¶ 6. Mail received at SHU and all property issuing to SHU inmates is managed by three persons. Id. A package from a source other than an approved vendor may be returned to the sender without further inspection, allowing those persons to focus on other tasks. Id.

In October, 1996, Ashker's friend, Didar Khalsa, placed an order with Barnes & Noble Booksellers for four books to be shipped to Ashker. Declaration of Didar Khalsa (Khalsa Decl.) at ¶ 10. Ms. Khalsa included the necessary book label with her order. Id. As of December, 1996, Ashker had not received the books. Id. Ms. Khalsa contacted PBSP-SHU's property room, and was told that between November and December, 1996, over one hundred book packages were returned to sender because of the vendor's failure to place the book label on the box, or because the vendor did not place its vendor stamp in the appropriate box on the label. Id. Ashker received the books several months later, after Ms. Khalsa took the book label form to the book store to ensure its proper completion. Id.; Ashker Decl. at ¶ 4.

The difficulties imposed by the book label requirement greatly frustrated Ms. Khalsa, so that Ashker no longer asks her to assist him in obtaining books. Kahlsa Decl. at ¶ 10; Ashker Decl. at ¶ 2. Ashker and Ms. Khalsa no longer contact one another, and Ashker does not have another friend who is willing to assist him in procuring books. Ashker Decl. at ¶ 9. As a result, Ashker has not received any books for approximately two years. Id.

On an unknown date in 1996, a shipment of books from Barnes & Noble Booksellers, intended for Ashker's cellmate, Frank Clement, was returned to Barnes & Noble by PBSP-SHU officials for failure to attach a book address label. Declaration of Frank Clement (Clement Decl.), Exh. A. It appears that Clement was not aware of the label requirement when he placed this order and thus failed to include the label when submitting his order form. Id.

On December 11, 1998, Clement placed an order for various books with Penguin Putnam Publishers, Inc., and included the required book label. Clement Decl. at ¶ 14. On January 12, 1999, this order was received and held by mail room staff at PBSP-SHU as a result of Penguin Putnam's failure to place the book label on the box in which it shipped Clement's order. Clement Decl., Exh. E. By letter dated February 9, 1999, a Penguin Putnam employee acknowledged the publisher's inability to utilize the book label as a result of its practice of receiving orders and filling them in different locations. Id. Clement was informed by PBSP-SHU officials that he would be required to return the item to Penguin Putnam at his expense, and Clement asked that the box be sent to his father. Id. By letter dated July 20, 2000, Penguin Putnam informed Clement...