Parkhurst v. Lampert, 071609 FED10, 08-8069

Docket Nº:08-8069
Party Name:DERRICK R. PARKHURST, and all other persons who are now or may be similarly situated, Plaintiff-Appellant, v. ROBERT O. LAMPERT, individually and in his official capacity as Wyoming Department of Corrections State Penitentiary Warden; MICHAEL MURPHY, individually and in his official capacity as Wyoming Department of Corrections Director, Defendants
Case Date:July 16, 2009
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit
 
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DERRICK R. PARKHURST, and all other persons who are now or may be similarly situated, Plaintiff-Appellant,

v.

ROBERT O. LAMPERT, individually and in his official capacity as Wyoming Department of Corrections State Penitentiary Warden; MICHAEL MURPHY, individually and in his official capacity as Wyoming Department of Corrections Director, Defendants-Appellees.

No. 08-8069

United States Court of Appeals, Tenth Circuit

July 16, 2009

(D.C. No. 2:07-CV-00279-CAB) (D. Wyo.)

Before Briscoe, Baldock, and Holmes, Circuit Judges.

ORDER AND JUDGMENT [*]

Jerome A. Holmes Circuit Judge

Derrick R. Parkhurst, a prisoner in the custody of the Wyoming Department of Corrections (WDOC) appearing pro se, appeals from the district court's entry of summary judgment in favor of defendants. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part, reverse in part, and remand in part.

I

The facts are mostly undisputed. Mr. Parkhurst is the chairman of the Wyoming Prisoners' Association (WPA), an unincorporated, nonprofit association registered with the Wyoming Secretary of State. He also is an official of the Wyoming chapter of the Citizens United for Rehabilitation of Errants (WY-CURE). He combined the newsletters of the WPA and the WY-CURE to form what he calls the WPA Law Review and CURE Newsletter, which concerns matters of interest to Wyoming state prisoners. In June 2006, Mr. Parkhurst placed 693 copies of the newsletter in one FedEx box addressed to the Wyoming State Penitentiary (WSP). The newsletters were individually addressed to specific prisoners, allegedly including each prisoner's WDOC correctional facility number. Officials at the WSP refused to deliver the newsletters allegedly based on Wyoming Policy and Procedure (WPP) #5.401(IV)(C)(1)(k), which, at the time, provided in relevant part that non-privileged mail may be rejected if it "[c]ontains material not intended for the addressee; but rather material intended for other parties." R., Doc. 14-4, Ex. A at 5. Defendants claim the box of newsletters was returned to its sender, but according to Mr. Parkhurst, the box was returned to a FedEx office, not to him. WSP officials did deliver several copies of the newsletter that Mr. Parkhurst sent individually via United States mail, including one copy he sent to himself.

Dissatisfied with the nondelivery of the 693 newsletters, Mr. Parkhurst filed this action under 42 U.S.C. § 1983, naming defendants in their official and individual capacities.1 He claimed that the refusal to deliver the newsletters violated his right to free expression under the First Amendment of the United States Constitution and his right to freedom of speech and the press under the Wyoming Constitution. He sought an order prohibiting defendants from refusing to deliver the newsletter in the future, and damages for the cost of reproducing and reissuing the newsletter. He also sought class status for all WDOC prisoners who were deprived of their right to receive the newsletter.

Defendants moved for summary judgment on a number of grounds: Mr. Parkhurst's claims as a publisher of the newsletter were moot due to passage of a revised mail policy effective March 31, 2007; Mr. Parkhurst lacked standing as a subscriber of the newsletter because he received a properly addressed and mailed copy of the newsletter; defendants were immune from official-capacity claims for damages under the Eleventh Amendment; and defendants were entitled to qualified immunity against individual-capacity claims for damages.

Defendants also opposed class certification. The district court granted defendants' motion for summary judgment on the grounds of mootness, lack of standing, and qualified immunity, and denied as moot the motion for class certification. Mr. Parkhurst has appealed.2

II

When a case is decided on summary judgment, we review the district court's decision "de novo, applying the same legal standard used by the district court." Simms v. Okla. ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1326 (10th Cir. 1999). "[W]e view the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Id. Summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue is 'genuine' if there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way[,]" and "[a]n issue of fact is 'material' if under the substantive law it is essential to the proper disposition of the claim." Thom v. Bristol-Myers Squibb Co., 353 F.3d 848, 851 (10th Cir. 2003). We construe Mr. Parkhurst's pro se pleadings and court papers liberally but without acting as his advocate. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008).

III

We first address the district court's ruling that Mr. Parkhurst's claims as publisher of the newsletter were mooted by the passage of a revised mail policy. The district court based its mootness ruling on the new mail policy that took effect on March 31, 2007, nearly one year after the conduct at issue here. Mr. Parkhurst notes that the new policy contains a materially identical provision regarding the rejection of mail intended for "other parties."3 In a supplemental brief on this issue, defendants conceded that the revised policy does not...

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