Jones v. Slade

• Decision Date: 24 January 2022
• Docket Number: No. 20-15642,20-15642
• Parties: Edward Lee JONES, Jr., Plaintiff-Appellant, v. S. SLADE, South Unit Property Officer COII #1777 at Arizona Department of Corrections; D. Miller, Employee of Office of Publication Review at Arizona Department of Corrections Central Office; David Shinn, Director, Defendants-Appellees, and Charles L. Ryan ; Carson McWilliams; J. Guzman; Lori Stickley, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

23 F.4th 1124

Edward Lee JONES, Jr., Plaintiff-Appellant,

v. S. SLADE, South Unit Property Officer COII #1777 at Arizona Department of Corrections; D. Miller, Employee of Office of Publication Review at Arizona Department of Corrections Central Office; David Shinn, Director, Defendants-Appellees,andCharles L. Ryan ; Carson McWilliams; J. Guzman; Lori Stickley, Defendants.

No. 20-15642

United States Court of Appeals, Ninth Circuit.

Argued and Submitted August 31, 2021 San Francisco, California

Filed January 24, 2022

J. Matthew Rice (argued) and Ryan L. Giles, Williams & Connolly LLP, Washington, D.C.; Easha Anand, Roderick & Solange MacArthur Justice Center, San Francisco, California; for Plaintiff-Appellant.

Patrick J. Boyle, Assistant Attorney General, Mark Brnovich, Attorney General; Office of the Attorney General, Phoenix, Arizona; for Defendants-Appellees.

Nicholas R. Reaves, Eric C. Rassbach, and Daniel L. Chen, Becket Fund for Religious Liberty, Washington, D.C., for Amicus Curiae Becket Fund for Religious Liberty.

Corene Kendrick, American Civil Liberties Union Foundation, San Francisco, California; Emerson Sykes and Vera Eidelman, American Civil Liberties Union Foundation, New York, New York; Daniel Mach and Heather L. Weaver, American Civil Liberties Union Foundation, Washington, D.C.; Victoria Lopez, American Civil Liberties Union Foundation of Arizona, Phoenix, Arizona; for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Arizona.

Before: Johnnie B. Rawlinson and Jay S. Bybee, Circuit Judges, and Kathleen Cardone,^* District Judge.

BYBEE, Circuit Judge:

Appellant Edward Lee Jones, Jr. is incarcerated at the Arizona State Prison Complex—Eymen. In late 2017 and early 2018, Jones ordered by mail six hip-hop, R&B CDs and two Nation of Islam texts. All of the items were confiscated as contraband pursuant to an Arizona Department of Corrections (ADC) order, which dictates what publications are allowed in ADC facilities. The issue before us is whether these confiscations violated Jones's rights under the Free Speech and Free Exercise Clauses of the First Amendment, as made applicable to Arizona by the Due Process Clause of the Fourteenth Amendment, or the Religious Land Use and Institutionalized Persons Act (RLUIPA), 42 U.S.C. § 2000cc-1 et seq. The district court granted summary judgment in favor of the Arizona Defendants on Jones's claims under 42 U.S.C. § 1983 and RLUIPA.

We conclude that genuine issues of material fact exist both as to whether the Arizona Department of Corrections applied its order inconsistently as to the CDs, in violation of Jones's free-speech rights, and whether the exclusion of Jones's Nation of Islam texts substantially burdened his religious exercise in violation of RLUIPA and the Free Exercise Clause. Because these questions preclude summary judgment, we reverse and remand to the district court for further proceedings.

I. BACKGROUND

A. ADC's Inmate Mail Policy

The Arizona Department of Corrections regulates the content of incoming mail pursuant to Department Order 914 (DO 914), Inmate Mail , effective April 7, 2017. DO 914's stated purpose is "maintaining the safety, security and orderly operations of the institutions." Under the policy, staff at each ADC facility will "open, inspect and read incoming mail to prevent criminal activity and prevent inmates from receiving contraband or any other material that may be detrimental to the safe and orderly operation of the institution." DO 914.02 § 1.5. Publications—which include CDs, books, and magazines—are subject to additional procedures. First, they must come directly from a publisher, distributor, or retailer. DO 914.03 § 1.3; DO 914.06 § 1.4. Second, ADC staff inspect the content of each CD or publication that enters ADC facilities "[i]n order to assist with rehabilitation and treatment objectives, reduce sexual harassment and prevent a hostile environment for inmates, staff and volunteers." DO 914.07 § 1.1. DO 914.07, titled "Unauthorized Content," sets forth twenty broad categories, including nudity, sexual activity, street gangs, martial arts, the functioning of security devices, drug use, weapons, computers, tattooing, ciphers or codes, acts of violence, and canine search procedures. It also has a catch-all provision for any publication deemed "detrimental to the safe, secure, and orderly operation of the institution." DO 914.07 § 1.2. As relevant here, DO 914.07 prohibits inmates from receiving publications containing the following:

§ 1.2.2.3: Publications depicting in either visual, audio, or written form: "[s]exual intercourse, vaginal or anal, fellatio, cunnilingus, bestiality, or sodomy."

§ 1.2.4: "Depictions or descriptions of street gangs and/or Security Threat Groups (STG), and related gang/STG paraphernalia, including, but not limited to, codes, signs, symbols, photographs, drawings, training material, and catalogs."

§ 1.2.7: "Depictions or descriptions, or promotion of drug paraphernalia or instructions for the brewing of alcoholic beverages or the manufacture or cultivation of drugs, narcotics or poisons."

§ 1.2.8: "Content that is oriented toward and/or promotes racism and/or religious oppression and the superiority of one race/religion/political group over another, and/ or the degradation of one race/religion/political group by another."

§ 1.2.16: "Pictures, depictions or illustrations that promote acts of violence including, but not limited to, murder, rape, sexual assault, assault, amputation, decapitation, dismemberment, mutilation, maiming, disfigurement, crime scene/autopsy photographs, or cruelty to animals."

§ 1.2.17: "Content in publications, photographs, drawings, or in any type of image or text, that may, could reasonably be anticipated to, could reasonably result in, is or appears to be intended to cause or encourage sexual excitement or arousal or hostile behaviors, or that depicts sexually suggestive settings, poses or attire, and/or depicts sexual representations of inmates, correctional personnel, law enforcement, military, medical/mental health staff, programming staff, teachers or clergy."

§ 1.2.20: "Any publication or part of a publication that, although not specifically set forth herein, may otherwise be detrimental to the safe, secure, and orderly operation of the institution."

In order to promote consistent application of its policy, ADC maintains a statewide database of exclusion decisions. Publication review staff regularly cross-check to see if a publication under review has either been excluded or allowed by another ADC facility. Publications that have been previously excluded or allowed in one facility will similarly be excluded or allowed in other ADC facilities. Inmates and publishers have thirty days to appeal the publication review staff's decision to the Office of Publication Review (OPR), which handles appeals from all ADC complexes. DO 914.08 § 1.2. OPR's decisions, which are denominated "second-level review" are final and exhaust an inmate's administrative remedies. DO 914.08 § 1.2.2.5.

B. Facts

The following facts are largely undisputed. Jones has been in ADC's custody since 2008. He is a member of the Nation of Islam and a follower of the teachings of Elijah Muhammad, who Jones considers to be the last prophet of Allah. Jones believes that Elijah Muhammad's writings are essential religious texts that provide him with religious instruction, including teachings on how to pray. Jones considers Elijah Muhammad's writings central to his belief system and that reading Muhammad's texts is one way he may practice and express his religion. For adherents of the Nation of Islam, Ramadan is a holy month of fasting, self-reflection, and service to humanity. Nation of Islam members in ADC facilities have access to the Qur'an and the ability to pray in their cells. Jones is also a fan of rap and R&B music.

In late 2017 and early 2018, Jones ordered six CDs and two books that ADC classified as contraband and confiscated. The CD's excluded as violating DO 914.07 were:

(1) "untitled unmastered" (2016) by Kendrick Lamar, a Grammy- and Pulitzer Prize-winning artist, for violating the violence and sexual excitement provisions, §§ 1.2.16, 17.

(2) "Tha Blue Carpet Treatment" (2006) by Grammy-nominated artist Snoop Dogg for violating the gangs, drugs, and violence provisions, §§ 1.2.4, 7, 16.

(3) "Street Gospel" (1997), by Suga Free for violating the sexual intercourse, gangs, drugs, violence, and sexual excitement provisions, §§ 1.2.2.3, 1.2.4, 7, 16, 17.

(4) "Trials & Tribulations" (2013), by Ace Hood for violating the sexual intercourse, violence, sexual excitement, and catch-all provisions, §§ 1.1, 1.2.2.3, 1.2.16, 17, 20.

(5) "The D-Boy Diary Book 1" (2016) by E-40 for violating the gangs, drugs, violence, and catch-all provisions, §§ 1.2.4, 7, 16, 20.

(6) "Trilogy" (2012), a triple-platinum album by Grammy-winning artist The Weeknd, for violating the drugs and sexual excitement provisions, §§ 1.2.7, 17.

Jones requested second-level review of the CD exclusions. All exclusions were upheld by OPR.

Jones had also ordered two books by Elijah Muhammad: Message to the Blackman in America (1965) and The Fall of America (1973). Both were excluded under DO 914.07 § 1.2.8 for promoting racism or the superiority of one group. ADC staff excluded the books without review because each text had been previously excluded by an ADC facility. Jones sought second-level review of the text exclusions, but OPR informed Jones that the exclusions of Messages to the Blackman and The Fall of America had been upheld previously and that those second-level decisions would remain final.

C. Procedural History

In June 2018, Jones lodged a pro se civil rights complaint in district court under 42 U.S.C. § 1983, alleging on-its-face and as-applied violations of the Free Speech and Free Exercise Clauses of the First Amendment and Due Process Clause of the Fourteenth Amendment as well as a violation of RLUIPA. Jones sought...