Bahrampour v. Lampert

• Decision Date: 13 January 2004
• Docket Number: No. 02-35194.,02-35194.
• Citation: 356 F.3d 969
• Parties: Afshin BAHRAMPOUR, Plaintiff-Appellant, v. R.O. LAMPERT, Superintendent; Debbie Holland; Teresa Hicks; Kathy Stevens, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 969

356 F.3d 969

Afshin BAHRAMPOUR, Plaintiff-Appellant, v. R.O. LAMPERT, Superintendent; Debbie Holland; Teresa Hicks; Kathy Stevens, Defendants-Appellees.

No. 02-35194.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted November 7, 2003.

Filed January 13, 2004.

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David J. Burman and Signe H. Brunstad, Perkins Coie LLP, Seattle, WA, for the plaintiff-appellant.

Steven R. Powers, Oregon Department of Justice, Salem, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon; Thomas M. Coffin, Magistrate, Presiding. D.C. No. CV-01-00732-TC.

Before: GOODWIN, ALARCÓN, and RAWLINSON, Circuit Judges.

ALARCÓN, Circuit Judge:

Afshin Bahrampour seeks reversal of the summary judgment entered in favor of the prison officials of the Oregon Department of Corrections (collectively "ODC"). In his pro se complaint, Mr. Bahrampour alleged that ODC violated his First and Fourteenth Amendment rights to freedom of speech and due process by refusing to deliver certain pieces of mail to him. In a separate, supplemental claim, he alleged that this conduct also violated his state constitutional right to freedom of speech under Article 1, Section 8 of the Oregon Constitution.

We affirm the portion of the judgment regarding Mr. Bahrampour's § 1983 claim. We vacate in part and remand because the district court failed to consider Mr. Bahrampour's supplemental state law claim.

I

Afshin Bahrampour is an inmate at the Snake River Correctional Institution in Ontario, Oregon. He subscribed to the Green Lantern comic book, and purchased issues of Muscle Elegance magazine and White Dwarf magazine. ODC refused to deliver the Green Lantern comic book because prison regulations prohibited the receipt of bulk mail. ODC subsequently purchased a subscription to the Green Lantern comic book for Mr. Bahrampour after the bulk mail regulation at issue was declared unconstitutional. ODC rejected issue number eight of Muscle Elegance magazine due to its sexual content. ODC cited "[a]dvertisements — portrayal of actual or simulated sexual acts or behaviors" as the basis of its rejection of Muscle Elegance magazine. ODC rejected the October 2000, December 2000, and January 2001 issues of White Dwarf magazine because of their role-playing content. Mr. Bahrampour contested the rejections of Muscle Elegance magazine and White Dwarf magazine in administrative proceedings. ODC's actions were upheld.

Oregon Administrative Rule ("OAR") No. 291-131-0035 prohibits prisoners from receiving certain types of mail. Section (1) excludes material containing portrayals of certain actual or simulated sexual acts or behaviors as "prohibited mail which shall be confiscated or returned to the sender." Such material still "may be admitted if it has scholarly value, or general social or literary value." Section (2) prohibits receipt of material that "contains role-playing or similar fantasy games or materials." Although the restriction on the receipt of sexually explicit materials is quite detailed, role-playing and similar fantasy games are neither defined nor described in the regulations. When this action was initiated, OAR No. 291-131-0025(8) prohibited the receipt by a prisoner of bulk mail. Receipt of postal mail "sent by express mail, priority mail, first class mail, or periodicals mail" was permitted.

ODC submitted an affidavit from Supervisor Kathy Stevens regarding the purpose and implementation of the mail rules, and an affidavit from expert witness Dr. Neil M. Malamuth regarding the effect of sexually explicit materials on prison inmates. Supervisor Stevens stated that the materials would be highly valued as barter and "may result in prohibited sexual activity or unwanted sexual behavior, including rape." In Dr. Malamuth's opinion, the regulations are justified "because of the risks such material presents in increasing aggressive and inappropriate tendencies and behaviors by inmates." He concluded that the risks are amplified in the prison setting due to the lack of "socially sanctioned sexual outlets," and the lack of the moderating influences of family and nonaggressive peers.

ODC produced an affidavit from Superintendent Robert O. Lampert, in which he "explain[ed] the reason[s] why ODC prohibits `role-playing or similar fantasy games or materials.'" Superintendent Lampert stated that the role-playing prohibition is intended to prevent inmates from placing themselves in fantasy roles that reduce accountability and substitute raw power for legitimate authority. He also noted that role-playing games often contain dice, which are prohibited gambling paraphernalia. Superintendent Lampert stated that "if dice are possessed for playing [a role-playing game], either gambling will soon become a part of the game, or the dice will be utilized for other gambling purposes."

Mr. Bahrampour asserted in his complaint that ODC's restrictions on prisoner mail violated his First and Fourteenth Amendment rights. He also filed a supplemental state law claim under Article 1, Section 8 of the Oregon Constitution. The court denied Mr. Bahrampour's motions for partial summary judgment and a preliminary injunction. The district court granted ODC's motion for summary judgment. The district court dismissed the action without explicitly disposing of the supplemental state law claim. Mr. Bahrampour has timely appealed the court's final judgment pursuant to 28 U.S.C. § 1291.

II

Mr. Bahrampour contends that summary judgment was improper regarding his § 1983 claim because the regulations have been applied inconsistently. He also argues that the district court erred in failing to make findings regarding whether the restricted materials contained sexually explicit or role-playing content. The district court stated "that it is appropriate to defer to defendants' decision that the White Dwarf publication encourages or supports role playing fantasy games. However, I have reviewed publications submitted in camera and find that defendants' determination [is] supported by the record before the court." Bahrampour v. Lampert, Civ. No. 01-732-TC, at 6 (D.Or. 2002) (unpublished disposition) (internal citation omitted).

We review a grant of summary judgment de novo. Glenn K. Jackson Inc. v. Roe, 273 F.3d 1192, 1196(9th Cir.2001). "[W]hen a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. In our view, such a standard is necessary if `prison administrators ..., and not the courts [are] to make the difficult judgments concerning institutional operations.'" Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) (alterations in original) (quoting Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977)).

State prison officials are given deference in day-to-day prison operations due to separation of powers and federalism concerns. Turner, 482 U.S. at 84-85, 107 S.Ct. 2254. To defeat summary judgment, Mr. Bahrampour must demonstrate that the regulations are not reasonably related to legitimate penological interests, or that there is a genuine issue of material fact regarding the applicability of the regulations to the materials. See, e.g. Far Out Prods., Inc. v. Oskar, 247 F.3d 986, 992 (9th Cir.2001). ODC's evidence adequately demonstrates that the regulations support the legitimate penological interests of reducing prohibited behaviors such as sexual aggression and gambling, and maintaining respect for legitimate authority. The regulations prohibit the receipt of materials that contain any amount of sexually explicit or role-playing or fantasy content. Thus, the significant question is whether there is a genuine issue of fact regarding whether the magazines contained any prohibited content.

It is undisputed that two levels of prison officials found the materials violated the regulations. The district court reviewed White Dwarf magazine in camera and agreed with the prison officials that it "encourages or supports role playing fantasy games." We have also reviewed the rejected materials. We agree with the district court that receipt of White Dwarf magazine violates OAR No. 291-131-0035(2)(k). Mr. Bahrampour has produced insufficient evidence to show that viewing the evidence in the light most favorable to him, any reasonable person would conclude that White Dwarf magazine contains no role-playing or fantasy content, or that Muscle Elegance magazine contains no sexually explicit material. See Summers v. A. Teichert & Son, Inc., 127 F.3d 1150, 1152 (9th Cir.1997) (holding that "a mere scintilla of evidence will not be sufficient to defeat a properly supported motion for summary judgment; rather, the nonmoving party must introduce some significant probative evidence tending to support the complaint. Summary judgment may be granted if the evidence is merely colorable... or is not significantly probative") (internal quotations and citations omitted).

OAR No. 291-131-0035 enumerates the two relevant categories of "Prohibited Mail" to "be confiscated or returned to the sender." Six types of prohibited "Sexual Acts or Behaviors" are listed in Subsection (1)(a)(A) in great detail. The regulations essentially prohibit any "[p]ortrayal of actual or simulated" penetration or stimulation, sexual violence, sexual contact between two people, or sexual contact between a person and an animal. OAR No. 291-131-0035(1)(a)(A)(i-vi). Subsection (1)(e) declares that "[s]exually explicit material may be admitted if it has scholarly value, or general social or literary value." Section (2) lists eleven types of prohibited "Material That Threatens or is Detrimental to the Security, Safety, Health, Good Order or Discipline of the Facility, Inmate Rehabilitation, or Facilitates Criminal Activity." Subsection (2)(k) prohibits receipt of material that "contains...