O'Keefe v. Van Boening

• Decision Date: 30 April 1996
• Docket Number: No. 94-35845,94-35845
• Citation: 82 F.3d 322,1996 WL 207831
• Parties: 96 Cal. Daily Op. Serv. 2987, 96 Daily Journal D.A.R. 4967 Timothy Dale O'KEEFE, Plaintiff-Appellee, v. Ronald VAN BOENING, WSP Associate Superintendent; James Spalding, Director DOP; Carol A. Murphy, Assistant Attorney General of Washington, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 322

82 F.3d 322

96 Cal. Daily Op. Serv. 2987, 96 Daily Journal

D.A.R. 4967

Timothy Dale O'KEEFE, Plaintiff-Appellee, v. Ronald VAN BOENING, WSP Associate Superintendent; James

Spalding, Director DOP; Carol A. Murphy,

Assistant Attorney General of

Washington, Defendants-Appellants.

No. 94-35845.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Nov. 16, 1995.

Decided April 30, 1996.

Douglas W. Carr, Assistant Attorney General, Olympia, Washington, for defendants-appellants.

Erika Balasz, Lukins & Annis, Spokane, Washington, for plaintiff-appellee.

Appeal from the United States District Court for the Eastern District of Washington; Alan A. McDonald, District Judge, Presiding.

Before: BOOCHEVER, FERNANDEZ, and KLEINFELD, Circuit Judges.

BOOCHEVER, Circuit Judge:

A state prisoner sued various prison officials pursuant to 42 U.S.C. § 1983 (1988), alleging that the prison's mail policy violated his First Amendment right to seek redress for grievances. Under the prison's mail policy This case raises questions regarding whether the prison mail policy infringes on a prisoner's First Amendment right to send grievance mail, and if so, whether legitimate penological interests justify the infringement. Even assuming that the prison's mail policy infringes on the prisoner's First Amendment right, we find that legitimate penological interests justify the infringement. Therefore, we hold that the district court should not have granted summary judgment in favor of the prisoner and instead should have granted summary judgment in favor of the prison officials.

"legal mail," although broadly defined, does not include grievances sent by prisoners to some state agencies or officials. Consequently, for the purpose of inspecting for contraband, evidence of criminal activity, or threats to prison security, prison mailroom employees can open and read these grievances and any responses, outside the presence of the prisoners.

FACTS

Prisoner Timothy Dale O'Keefe ("O'Keefe") sued Ronald Van Boening, Washington State Penitentiary ("WSP") Associate Superintendent, James Spalding, Division of Prisons Director, and Carol Murphy, Assistant Attorney General of Washington (collectively "the State Officials") pursuant to 42 U.S.C. § 1983. O'Keefe alleged that the State Officials violated his constitutional rights by enforcing Department of Corrections Policy 590.500 ("the DOC Mail Policy"), which precludes O'Keefe from sending as "legal mail" letters to various state officials and agencies.

Under the DOC Mail Policy, legal mail is broadly defined and includes the following:

Correspondence to or from courts and court staff, attorneys, established groups of attorneys involved in the representation of offenders in judicial proceedings (i.e., American Civil Liberties Union, legal services groups, etc.), the President or Vice President of the United States, members of the United States Congress, embassies, and consulates, the United States Department of Justice, state attorneys general, governors, members of the state legislature, and law enforcement officers in their official capacity.

Members of the prison staff inspect the contents of all incoming and outgoing legal mail for contraband but do not read such mail. The prison staff is only allowed to inspect legal mail in the presence of the prisoner sending or receiving that mail.

All mail not fitting within the definition of legal mail is regular mail. Members of the prison mailroom staff may open and read incoming and outgoing regular mail, before distributing or sending it, to prevent criminal activity and to maintain prison security. ¹ The prisoner sending or receiving the regular mail need not be present when the inspection is conducted. If a member of the prison mailroom discovers contraband or plans for escape or other criminal activity, then he or she will refuse to send or deliver the item and will forward the relevant information to the prison's intelligence and investigation office, but not to any other person.

The WSP currently employs seven full-time employees in the mailroom. On average, these employees spend about twenty-two percent of their time processing legal mail, even though legal mail constitutes only about five percent of all mail. If the mail sent by prisoners to all state agencies and officials were treated as legal mail, the prison would likely have to hire an eighth mailroom employee because of the individualized attention devoted to processing legal mail.

In October 1993, O'Keefe attempted to send several grievances as legal mail to various Washington state agencies and officials. The prison's mailroom staff returned this mail unopened to O'Keefe, because the mail did not meet the definition of legal mail. O'Keefe refused to accept some of the returned mail. Rather than retain or destroy the mail that O'Keefe refused to accept, prison officials sent it out as regular mail.

In response to the prison's handling of his mail, O'Keefe filed various grievances within the prison system. After exhausting these administrative remedies, O'Keefe brought suit against the State Officials. The State Officials filed a motion for summary judgment, to which O'Keefe filed a response. After considering the arguments made by both parties, the district court sua sponte granted summary judgment in favor of O'Keefe. The district court ruled that the DOC Mail Policy impermissibly infringes on O'Keefe's First Amendment right to send grievance petitions to, and receive responses from, state agencies and officials.

The State Officials filed a motion for reconsideration. As part of that motion, the State Officials submitted a supplemental memorandum addressing the legitimate penological interests advanced by the DOC Mail Policy. After considering the supplemental memorandum, the district court denied the motion for reconsideration. O'Keefe v. Murphy, 860 F.Supp. 748 (E.D.Wash.1994). This appeal followed.

DISCUSSION

1. Implied Motion for Summary Judgment

The State Officials argue that the district court erred when it sua sponte granted summary judgment in favor of O'Keefe. "Sua sponte entry of summary judgment is proper if 'there is no genuine dispute respecting a material fact essential to the proof of movant's case....' " Buckingham v. United States, 998 F.2d 735, 742 (9th Cir.1993) (quoting Cool Fuel, Inc. v. Connett, 685 F.2d 309, 311 (9th Cir.1982)). "However, a litigant must be given reasonable notice that the sufficiency of his or her claim will be in issue...." Id. "Reasonable notice implies adequate time to develop the facts on which the litigant will depend to oppose summary judgment." Portsmouth Square Inc. v. Shareholders Protective Comm., 770 F.2d 866, 869 (9th Cir.1985).

By sua sponte entering summary judgment in favor of O'Keefe, the district court may have deprived the State Officials of the opportunity to raise disputed issues of material fact. Although the State Officials had filed a motion for summary judgment before the district court ruled in favor of O'Keefe, that motion only developed the facts necessary to support the State Officials' claim of qualified immunity and their argument that the DOC Mail Policy did not infringe on O'Keefe's First Amendment rights. The State Officials had not presented any facts supporting their claim that legitimate penological interests justify the DOC Mail Policy.

We do not decide whether it was error to enter summary judgment sua sponte, because if there were error, it was rectified when the district court reconsidered the matter. The district court allowed the State Officials to file a supplemental memorandum addressing the legitimate penological interests furthered by the DOC Mail Policy. The State Officials therefore had adequate time to develop the facts on which they depended to oppose summary judgment.

2. Summary Judgment

The State Officials claim that the district court erred when it granted summary judgment in favor of O'Keefe because (a) O'Keefe failed to establish any infringement on his First Amendment right to petition the government for redress of grievances, and (b) the DOC Mail Policy was reasonably related to legitimate penological interests.

We review de novo a grant of summary judgment. Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir.1995), cert. denied, --- U.S. ----, 116 S.Ct. 1261, 134 L.Ed.2d 209 (1996). We must determine, viewing the evidence in the light most favorable to the nonprevailing party, whether there are any genuine issues of material fact and whether the district court correctly applied the relevant substantive law. Id.

a. Infringement on the Right to Petition

Prisoners have a constitutional right to petition the government for redress of their grievances, which includes a reasonable right of access to the courts. Hudson v. Palmer, 468 U.S. 517, 523, 104 S.Ct. 3194, 3198-99, 82 L.Ed.2d 393 (1984) (citing Johnson v. Avery, 393 U.S. 483, 89 S.Ct. 747, 21 L.Ed.2d 718 (1969)). This right extends to administrative arms and units of the government. Bradley v. Hall, 64 F.3d 1276, 1279 (9th Cir.1995).

In order to establish that government action has infringed on the constitutional right to petition the government, an individual need not show that the government has directly interfered with the exercise of this right. Laird v. Tatum, 408 U.S. 1, 11, 92 S.Ct. 2318, 2324-25, 33 L.Ed.2d 154 (1972). Unconstitutional restrictions may arise from the deterrent, or "chilling," effect of governmental action. Id. To have such an effect, the government action must be regulatory, proscriptive, or compulsory in nature, and the complainant must be either presently or prospectively subject to the regulations, proscriptions, or compulsions that he or she is challenging. Id. Further, an unconstitutional chill will only exist if the government action has injured the individual or places the individual in immediate danger of sustaining a direct injury. Id. at 13, 92 S.Ct. at...