Pedersen v. Schneider
| Decision Date | 16 December 2021 |
| Docket Number | CASE NO. C21-5121-RSM |
| Citation | 575 F.Supp.3d 1339 |
| Parties | David J. PEDERSEN, Plaintiff, v. Tracy SCHNEIDER, Defendant. |
| Court | U.S. District Court — Western District of Washington |
David J. Pedersen, Walla Walla, WA, Pro Se.
Sarah C. Brisbin, Attorney General's Office, Olympia, WA, for Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
This matter comes before the Court on the Report and Recommendation ("R & R") of the Honorable Brian A. Tsuchida, United States Magistrate Judge. Dkt. #41. The Court has reviewed Plaintiff's complaint, parties’ cross-motions for summary judgment, Defendant's motion to seal, the R & R, Plaintiff's objections thereto, Defendant's response, and the remainder of the record. For the reasons set forth below, the Court adopts the recommendations of the R & R to grant in part Defendant's motion to seal, to deny Plaintiff's motion for summary judgment, to grant Defendant's motion for summary judgment, and to dismiss this action.
Plaintiff David J. Pedersen, proceeding pro se and in forma pauperis ("IFP"), brings this prisoner civil rights action against Defendant Tracy Schneider, correctional manager at the Washington State Penitentiary ("WSP") in Walla Walla, Washington where Plaintiff is currently confined. Dkt. #1. This matter arises out of a WSP mailroom employee's rejection of an outgoing letter from Plaintiff to his fiancé, Loretta Pedersen, on November 16, 2020. Dkt. #21 at ¶ 13. Department of Corrections ("DOC") policy provides that mailroom staff must reject mail to or from incarcerated individuals if it contains "sexually explicit material" as defined under Wash. Admin. Code § 137-48-020(13). The mailroom employee found that Pedersen's letter, which contained a detailed drawing of masturbation and an explicit description of a sexual act between Plaintiff and the intended recipient, was "sexually explicit" for containing "written depiction of intercourse and drawn depiction of masturbation." Id. The employee's rejection of the mail was forwarded for review to the Superintendent's Designee, Sgt. Derek Dugger, who reviewed the letter and upheld the rejection as it "does contain sexually explicit writings and a drawing." Id. at ¶ 14. That rejection was forwarded to Defendant Schneider for review, who upheld the rejection on February 25, 2021. Id. at ¶ 15.
Plaintiff filed this complaint on February 19, 2021, claiming that Defendant's rejection of his outgoing mail violated his First Amendment rights. Dkt. #4. Plaintiff seeks a declaratory judgment stating that (1) censorship of his letter violated his rights under the First Amendment; (2) Defendant Schneider's failure to reverse the censorship decision, and her possession of his letter, continues to violate his First Amendment Rights; and (3) the Washington Administrative Code 137-48-040 is unconstitutional to the extent that it authorizes censorship of outgoing prisoner correspondence for reasons that do not comport with the U.S. Supreme Court's holding in Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), "as is any other policy, code, statute or practice that fails to draw a distinction between incoming and outgoing prisoner correspondence." Id. at 11-12. Plaintiff also seeks nominal and punitive damages in addition to any other relief deemed proper by the Court. Id.
On March 2, 2021, Plaintiff moved for summary judgment on the basis that his First Amendment rights were violated as a matter of law by the "censorship" of the letter. Dkt. #20. Defendant opposed Plaintiff's motion and filed a cross-motion for summary judgment. Dkt. #22. Defendant further moves to seal the letter at issue, while Plaintiff opposes the request to seal on the basis that he should have access to properly litigate his case. Dkts. #28, #30.
On August 10, 2021, Judge Tsuchida issued an R & R recommending dismissal of this case. Dkt. #41. Specifically, Judge Tsuchida concluded that the letter constituted obscene speech under Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973), which is not protected by the First Amendment. Id. at 8-10. The R & R further concluded that even if the letter were not obscene, Plaintiff has not alleged facts sufficient to show that the DOC policy for rejecting a prisoner's sexually explicit outgoing mail is unconstitutional on its face or as applied to his letter. Id. at 10-18. Furthermore, the R & R recommends granting in part Defendant's motion to seal to the extent that Plaintiff is prevented from possessing copies of the letter. Id. at 18-19. It denies the remainder of Defendant's motion to seal such that the document will not be sealed on the public docket. Id. Plaintiff timely filed Objections to the R & R on August 24, 2021, Dkt. #42, and Defendant Schneider filed a Response. Dkt. #43.
1 A district court has jurisdiction to review a Magistrate Judge's report and recommendation on dispositive matters. See Fed. R. Civ. P. 72(b). "The district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to." Id. "A judge of the court may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). The Court reviews de novo those portions of the report and recommendation to which specific written objection is made. United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
234 The Court first considers whether Plaintiff's outgoing letter is subject to First Amendment protections. The U.S. Supreme Court has determined that " ‘[s]exual expression which is indecent but not obscene is protected by the First Amendment.’ " Reno v. Am. Civil Liberties Union, 521 U.S. 844, 874, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (quoting Sable Communications of California, Inc. v. F.C.C., 492 U.S. 115, 126, 109 S.Ct. 2829, 106 L.Ed.2d 93 (1989) ). However, obscene speech is not protected by the First Amendment. Miller v. California, 413 U.S. 15, 24, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973). Miller set forth a three-part test to determine whether speech is obscene: (1) whether the average person, applying contemporary community standards would find the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes sexual conduct in a patently offensive way according to contemporary community standards; and (3) whether the work, taken as a whole, lacks serious literary, artistic, political, or scientific value. Id. at 24, 93 S.Ct. 2607 ; Wright v. Van Boening, 958 F.2d 380 (9th Cir. 1992). Whether speech is obscene is an issue that may be determined at summary judgment. See, e.g., Wright v. Van Boening, 958 F.2d 380 (9th Cir. 1992) ; Clark v. Carter, 2006 WL 3448689, *6 (W.D. Wash. Nov. 27, 2006).
5 The Court finds no reasonable dispute of fact that an average person, applying contemporary standards, would find that Plaintiff's letter appeals to the prurient interest. The letter contains a graphic depiction of masturbation, including a drawing of an ejaculating male genitalia. See Dkt. #26 (sealed) at 6. It also contains brief yet detailed descriptions of Plaintiff engaging in sexual acts with the letter's intended recipient. Id. at 3, 6. Indeed, Plaintiff describes his own writing as "prurient thoughts." Id. at 3. To the extent Plaintiff objects that only a small percentage of the letter contains explicit sexual material, see Dkt. #42 at 3-4, the contents of the remainder of the letter do not negate the obscenity of the contents at issue, which include the conspicuous illustration at the end of the letter. This content therefore meets the first prong of the obscenity test.
6 The Court likewise finds no reasonable dispute of fact that Plaintiff's letter describes sexual conduct in a way that is patently offensive. Plaintiff objects that the Court "has an obligation to explain precisely how Plaintiff's descriptions of sexual conduct are ‘patently offensive,’ bearing in mind that the contemporary community standards in question are those of the Pacific Northwest, not Saudi Arabia or those areas in Afghanistan controlled by the Taliban." Dkt. #42 at 3. Here, the letter describes sexual conduct in a patently offensive way through graphic descriptions, an illustration, and slang words for sexual organs. See Dkt. #26. Consistent with determinations by other courts in this district, these characteristics are sufficient to conclude that the letter is obscene. See Perez v. Warner, No. C15-5530-RBL-DWC, 2016 WL 2894053, at *4 (W.D. Wash. Apr. 27, 2016), report and recommendation adopted, No. C15-5530-RBL-DWC, 2016 WL 2866357 (W.D. Wash. May 17, 2016) (). Furthermore, the fact that prison officials were necessarily subjected to the contents of the letter renders it offensive. See id.; Clark v. Carter, 2006 WL 3448689, *6 (W.D. Wash. Nov. 27, 2006) (). Plaintiff argues that he was aware his correspondence "could" be read, but he contends—without support—that the vast majority of prison mail is not reviewed because mailroom employees do not have the resources to read all correspondence. Dkt. #42 at 4. This argument is unavailing, given that DOC Mail Policy 450.100 requires that prison mailroom staff review outgoing mail. Pursuant to this policy, Plaintiff's letter was reviewed. The theoretical likelihood that Plaintiff's letter could have escaped review is therefore inapposite.
7 Finally, there is no...
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