Harper v. Wallingford

Decision Date14 June 1989
Docket NumberNo. 87-4418,87-4418
Citation877 F.2d 728
PartiesDale E. HARPER, Plaintiff-Appellant, v. Clyde WALLINGFORD; Larry Kincheloe; W.L. Kautsky; an Unnamed Mailroom Staff Member at W.S.P., a/k/a "D.S.", Defendants-Appellees.
CourtU.S. Court of Appeals — Ninth Circuit

Dale E. Harper, Seattle, Wash., in pro. per.

John Scott Blonien, Asst. Atty. Gen., Olympia, Wash., for defendants-appellees.

Appeal from the United States District Court Eastern District of Washington at Spokane.

Before WRIGHT and ALARCON, Circuit Judges, and TEVRIZIAN, 2 District Judge.


The memorandum disposition filed May 10, 1989, is redesignated an authored opinion by Judge Tevrizian.


TEVRIZIAN, District Judge:


Plaintiff-Appellant Dale E. Harper, an inmate at the Washington State Penitentiary, brought this action pro se under 42 U.S.C. Section 1983 alleging that prison authorities had violated his First Amendment rights by withholding mail. Plaintiff sought declaratory, injunctive, and monetary relief. The district court awarded summary judgment in favor of the defendants. We affirm.

The mail in question was from the North American Man/Boy Love Association ("NAMBLA") and consisted of a membership application and a copy of the organization's bulletin. Prison mail room employees refused to deliver the material to plaintiff and notified plaintiff of their intentions. Prison officials refused to deliver the materials to the plaintiff because they felt the material threatened prison security and therefore violated Washington State Department of Corrections Policy Directive 450.020(6)(c). Plaintiff unsuccessfully appealed the decision through the prison grievance system.

Plaintiff is incarcerated as a result of convictions for Robbery in the First Degree While Armed With A Deadly Weapon, Second Degree Burglary, and two counts of First Degree Robbery With a Deadly Weapon. Plaintiff violated his parole on a 1965 conviction for breaking and entering, by committing lewd and immoral acts, namely sodomy on a six year old boy at knife point.

Prior to their successful motion for summary judgment, defendants had moved for summary judgment on the basis that prison officials were justified in censoring obscene or pornographic material. The district court denied this initial motion for summary judgment on the grounds that the defendants had not presented statistics or other substantial testimony to support a claim that such materials posed a threat to prison security.

Defendants renewed their motion for summary judgment. They argued that the NAMBLA and the newsletter it prints espouse consensual sexual relationships between male adults and juvenile males. Defendants argued that the NAMBLA materials were withheld by the prison mailroom supervisor pursuant to Department of Corrections Policy Directive 450.020(6). This directive authorizes the prison administration to withhold publications which "constitute a threat to the order and security of the institution." The directive further provides that publications may be declared a threat to the order and security of the institution if "it may be reasonably thought that the material would incite, aid, or abet the performance of physical violence or criminal activity upon an individual or group." 450.020(6)(c)(2). Defendants maintained that the denial of NAMBLA publication was proper under the directive for two reasons: first, the material is detrimental to the rehabilitation of a segment of the prison population; second, the material poses a threat to the order and security of the institution.

Defendants argue that once material such as the NAMBLA bulletin is allowed in the institution it is likely to be widely circulated among the inmates. Defendants attached the affidavit of the Superintendent of the Washington State Penitentiary, Mr. Lawrence Kincheloe, in support of this proposition. Mr. Kincheloe's affidavit also states that using cell searches would not be nearly as effective in stopping the passing or trading of materials as prohibiting the initial introduction of the materials into the prison.

With regard to the harmful effect of NAMBLA material on rehabilitation, defendants attached the affidavit of Dr. Paul Copeland to their motion for summary judgment. Dr. Copeland is a contract psychiatrist for the Washington State Penitentiary. Dr. Copeland stated that in his professional opinion, Mr. Harper has an anti-social personality and exposure to material like the NAMBLA newsletter would increase the likelihood of anti-social behavior. Further, although it was not clear that the plaintiff is a pedophile, the fact that he is an anti-social personality and he has sodomized a child in the past make it more likely that he will commit such an act in the future. Dr. Copeland found that exposure to NAMBLA materials could affect plaintiff's impulse control by suggesting that such behavior was appropriate. Dr. Copeland concluded that plaintiff's rehabilitation would be harmed if he was allowed to receive the NAMBLA publication at issue or any other literature that indicates that sexual conduct with children is socially appropriate.

Dr. Copeland's affidavit states that in addition to being harmful to the plaintiff's rehabilitation, exposure to the NAMBLA materials in question would be harmful to the rehabilitation of pedophiles and of inmates categorized as having anti-social personalities. The latter group comprises 60-80% of the inmates at Washington State Penitentiary.

Mr. Kincheloe's affidavit states that there are two ways that the NAMBLA material promotes violence in prison. First, inmates who are identified as or suspected of being pedophiles or homosexuals are a favorite target for violence since many incarcerated felons were sexually abused as children. Therefore inmates who possess materials that advocate sexual abuse of children may be subject to violent attacks from inmates. Second, exposure to the NAMBLA materials may encourage pedophiles in act in an aggressive or violent way toward weaker or younger inmates.

Plaintiff opposed the motion for summary judgment. Plaintiff moved to strike the use of portions of his juvenile court records. Plaintiff argued that defendants had failed to show that there were no issues of material fact in dispute.

The district court granted summary judgment in favor of the defendants. The district court found that defendants had introduced ample evidence to support their assertion that the NAMBLA bulletin posed a threat to prison security and that prison regulations therefore justified withholding it from the plaintiff. The defendants were found to have shown that no genuine issue of material fact exists in this case. The district court found that plaintiff had failed to present evidence beyond the allegations of his pleading to indicate that the bulletin does not pose such a threat.

Plaintiff appeals on several grounds. First, he argues that it was reversible error for the district court to have dismissed the case with prejudice because this will prevent him from filing similar actions alleging deprivation of First Amendment rights against prison officials in the future. Second, plaintiff argues that summary judgment was inappropriate because it was based on conclusory allegations of threats to prison security, order, and rehabilitation. Third, he argues that it was error for the district court to grant summary judgment dismissal with prejudice when defendants have violated his first amendment rights. Fourth, he argues that instead of granting summary judgment against him, the district court should have allowed him to amend his complaint challenge the constitutionality of the prison policy directive.

We affirm for the reasons given by the district court judge.


We review the trial court's entry of summary judgment de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir.1986). We are governed by the same standard used by the trial court under Fed.R.Civ.P. 56(c). Id. Under that standard, summary judgment is proper only where "the pleadings, deposition, answers to interrogatories, and admission on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." FRCP 56(c).

The moving party has the burden of demonstrating the absence of a genuine issue of fact for trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 2514, 91 L.Ed.2d 202 (1986). If the moving party satisfies this burden, the opponent must set forth specific facts showing that there remains a genuine issue for trial. FRCP 56(e). However, no defense to an insufficient showing is required. Neely v. St. Paul Fire & Marine Insurance Co., 584 F.2d 341, 344 (9th Cir.1978). A party opposing a properly supported motion for summary judgment must set forth specific facts showing that there is a genuine issue for trial. Anderson v. Liberty Lobby, Inc., supra, at 477 U.S. 257, 106 S.Ct. at 2514.

A non-moving party who bears the burden of proof at trial to an element essential to its case must make a showing sufficient to establish a genuine dispute of fact with respect to the existence of that element of the case or be subject to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Such an issue of fact is only a genuine issue if it can reasonably be resolved in favor of either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). This burden to demonstrate a genuine issue of fact increases where the factual context makes the non-moving party's claim implausible. Matsushita Electric Industrial Company, Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Thus, mere disagreement or the bald assertion that a...

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