Opinion
CASE NO. C21-5121-RSM
2021-12-16
David J. PEDERSEN, Plaintiff, v. Tracy SCHNEIDER, Defendant.
David J. Pedersen, Walla Walla, WA, Pro Se. Sarah C. Brisbin, Attorney General's Office, Olympia, WA, for Defendant.
David J. Pedersen, Walla Walla, WA, Pro Se.
Sarah C. Brisbin, Attorney General's Office, Olympia, WA, for Defendant.
ORDER ADOPTING REPORT AND RECOMMENDATION
RICARDO S. MARTINEZ, CHIEF UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
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.
II. BACKGROUND
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.
III. DISCUSSION
A. Legal Standard
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).
B. Rejection of Outgoing Mail
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) (finding letters that graphically describe plaintiff engaging in sexual actions with letter's intended recipient, use of "street slang and vernacular for sexual organs" and "graphic descriptions of sexual acts" were offensive according to contemporary community standards). 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) (finding letter offensive, in part, because DOC Mail Policy 450.100 requires that persons other than the intended recipient were required to review it). 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 reasonable dispute of fact that Plaintiff's letter, taken as a whole, lacks serious literary, artistic, political, or scientific value. Plaintiff objects that "Plaintiff's point in illustrating the content of the majority of his letter is that it does in fact have such value. It is not inconceivable that a compilation of Plaintiff's correspondence would hold value for some, even if Magistrate Tsuchida's tastes lie elsewhere." Dkt. #42 at 3. As an initial matter, Plaintiff makes no effort to identify what value his letter holds—whether literary, artistic, political, or scientific. Moreover, given that this was a private letter written to his fiancé and was thus not intended for public consumption, no reasonable juror could conclude that it holds broader societal value. See Dkt. #33 at 3 (Plaintiff's response to Defendant's summary judgment motion describing his letter as "a private communication mailed to his wife ... not meant to be disseminated among the public."). In light of these findings, the letter satisfies the third prong of the obscenity test.
For these reasons, the Court concludes that Plaintiff's outgoing letter meets all three prongs of the Miller obscenity test. Having determined that Plaintiff's letter is obscene, it is not protected by the First Amendment. Clark, 2006 WL 3448689 at *6. Defendant's refusal to deliver the outgoing letter therefore did not violate Plaintiff's First Amendment rights. Accordingly, Defendant's Motion is granted as to Plaintiff's claim that his First Amendment rights were violated by Defendant's rejection of his outgoing letter.
C. Constitutionality of Prison Mail Policy
89 The Court now turns to Plaintiff's facial constitutional challenges against DOC Mail Policy 450.100 and Washington Administrative Code 137-48-040 for prohibiting delivery of inmates’ outgoing mail containing sexually explicit material. In determining whether restrictions imposed on prisoners’ outgoing mail is constitutional, courts consider whether the prison's practice furthers "an important or substantial governmental interest unrelated to the suppression of expression[.]" Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974) ("Prison officials ... must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation.") Id. That restriction "must be no greater than is necessary or essential to the protection for the particular governmental interest involved." Id. However, prison officials need not show that there is no less restrictive mail policy that could serve the same penological interests. Thornburgh v. Abbott, 490 U.S. 401, 411, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (concluding that Martinez "require[s] no more than that a challenged regulation be ‘generally necessary’ to a legitimate governmental interest.").
Plaintiff argues that under Thornburgh , that the standard set forth in Turner v. Safley , 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) is not "toothless." Dkt #42 at 4. Yet Turner , which sets forth a more deferential standard than Martinez , applies to censorship of incoming as opposed to outgoing mail and is therefore inapposite here. See Turner , 482 U.S. at 78, 107 S.Ct. 2254.
Here, Defendant has presented evidence through declarations that sexually explicit material is unauthorized in DOC facilities "because of the threat it presents to the safety and security of offenders and staff within the facilities." Dkt. #24 at 3. In addition to increased instances of sexual harassment against offenders and staff as a result of sexually explicit material, Defendant's declaration also cites to such material being used as a form of currency that leads to coercion and strong-arming of offenders, with threats made against offenders who will not share sexually explicit material with others. Id.
Plaintiff objects that Defendant's declaration is insufficient to meet her burden. Specifically, he argues that any evidence supporting Defendant's claim "would be documented and stored in the D.O.C.’s database, to which the Defendant has unfettered access." Dkt. #42 at 4. The Court finds Plaintiff's conclusory assertion insufficient to raise a material dispute of fact as to the government's legitimate interest. Indeed, courts have rejected similar constitutional challenges to DOC mail policies requiring rejection of sexually explicit material in outgoing mail. See Clark, 2006 WL 3448689 at *7-8. The policy at issue in Clark was a previous version of DOC Mail Policy 450.100. In that case, defendant prison officials presented evidence that a policy decision to reject "sexually explicit" mail was necessary based on psychological studies finding an increase in sexual aggression from viewing pornographic or sexually explicit material, which in turn resulted in increased safety and security threats to staff, offenders, offender families, and volunteers. Id. ("[E]xperts found that there was an increase in sexual aggression, threatening the safety and security of the institution, regardless of whether the inmate received the materials from mail coming into him or he created the materials and sent them out to someone else."). As a result of this finding, "DOC policy was changed to prohibit offenders from sending or receiving sexually explicit materials." Id. The court determined that this evidence satisfied defendants’ burden under Martinez to show that a regulation furthered a substantial government interest and was generally necessary to that legitimate interest. Consistent with Clark, the Court finds no material dispute of fact that DOC Mail Policy 450.100 furthers the government's substantial interest in safety and security inside the prison and are generally necessary to that legitimate interest. It is therefore constitutional under Martinez.
To the extent Plaintiff objects that the R & R fails to identify the authors, the sample size, the control groups, or data analyzed in the psychological studies relied upon in Clark , Dkt. #42 at 5, this objection has no bearing on the holding in Clark , which concluded that the government has a substantial interest in safety and security and that a restriction on sexually explicit outgoing mail is generally necessary to that interest.
Plaintiff also objects that prison officials should not be afforded any deference in this matter given that most prison guards are "poorly educated individuals" subject to bias and spite, with prison administrators "only marginally better educated" than the guards they supervise. Dkt. #42 at 4. He provides no support for this assertion. Moreover, the U.S. Supreme Court has determined that the experience and expertise of prison officials leaves them better-placed than courts to determine appropriate safety and security measures in the prisons they manage. See Thornburgh, 490 U.S. at 407–08, 109 S.Ct. 1874 ("Acknowledging the expertise of these officials and that the judiciary is ‘ill equipped’ to deal with the difficult and delicate problems of prison management, this Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world.") (quoting Martinez, 416 U.S. at 404–05, 94 S.Ct. 1800 ). For these reasons, Plaintiff's argument is unavailing.
Turning to Plaintiff's challenge to Washington Administrative Code 137-48-040, a facial challenge to a regulation requires a plaintiff to show that "no set of circumstances exists under which [the regulation] would be valid ... or that the [regulation] lacks any plainly legitimate sweep." United States v. Stevens, 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotation marks and citations omitted). As set forth above, the Court has concluded as a matter of law that DOC's regulation of sexually explicit outgoing mail does not violate Martinez. For that reason, Plaintiff's argument that "no set of circumstances exist" under which such a regulation would be valid automatically fails.
D. Motion to Seal
Neither party objects to the R & R's recommendation to grant in part and deny in part Defendant's motion to seal. Specifically, the R & R recommended granting Defendant's request for a protective order in light of expressed safety and security concerns such that neither Defendant nor the Clerk shall provide a copy of the document to Plaintiff electronically or through other means. Dkt. #41 at 19. It further recommended denying Defendant's motion to seal the document on the docket such that the public would be able to access it. Id. The Court finds no error in these determinations and adopts them in full.
IV. CONCLUSION
Having reviewed the Report and Recommendation of the Honorable Brian A. Tsuchida, United States Magistrate Judge, Plaintiff's Objections thereto and Defendant's Response, and the remaining record, the Court finds and ORDERS:
(1) The Court ADOPTS the Report and Recommendation. (Dkt. #41).
(2) Defendant's motion to seal and for a protective order (Dkt. 25) is GRANTED IN PART and DENIED IN PART. Defendant's request for a protective order (Dkt. 25) is GRANTED and Defendant is not required to provide a copy of the document in question (Dkt. 26) to Plaintiff. The Clerk is instructed not to provide a copy of the document (Dkt. 26) to the Plaintiff electronically or through any other means. The remainder of Defendant's motion (Dkt. 25), seeking to seal the document from the public, is DENIED.
(3) Plaintiff's motion for summary judgment (Dkt. 20) is DENIED.
(4) Defendant's cross-motion for summary judgment (Dkt. 22) is GRANTED and this case is DISMISSED and closed.
(5) The Clerk is directed to send copies of this Order to the parties and to Judge Tsuchida.
REPORT AND RECOMMENDATION
BRIAN A. TSUCHIDA, United States Magistrate Judge
Plaintiff, an inmate housed at Washington State Penitentiary (WSP), filed a pro se civil rights complaint under 42 U.S.C. § 1983. Plaintiff alleges his First Amendment rights were violated by the rejection of an outgoing letter to his fiancée at the time, Loretta Pedersen, on the grounds that the correspondence was of a "prurient nature." Dkt. 4, at 9-10. Plaintiff names Tracy Schneider, Correctional Manager at the Washington State Department of Corrections (DOC), whom he alleges "affirm[ed]" the "censorship" of his letter, as a Defendant. Id. Currently before the Court are Plaintiff's motion for summary judgment (Dkt. 20), Defendants’ cross-motion for summary judgment (Dkt. 22), and Defendants’ motion to seal and for a protective order (Dkt. 25). The Court recommends that Defendant's motion to seal and for a protective order (Dkt. 25) be GRANTED IN PART and DENIED IN PART. The Court further recommends that Plaintiff's motion for summary judgment (Dkt. 20) be DENIED, and Defendants’ motion for summary judgment (Dkt. 22) be GRANTED and the case be DISMISSED and closed. BACKGROUND
A. Statement of Undisputed Material Facts
Defendant submits evidence of the following facts, which Plaintiff does not dispute, regarding relevant DOC policies, DOC's mail rejection appeal process, and the rejection of Plaintiff's letter to Ms. Pedersen. Dkts. 22, 21.
1. DOC Restrictions on Sexually Explicit Material
DOC Policy 450.100, Mail for Prison Inmates, sets forth the Department's policy governing mail services for offenders and defines staff responsibility for managing and maintaining the safety and security of the public, staff, offenders, and facilities. Dkt. 21, (Schneider Decl.) at ¶ 3. DOC Policy 450.100(III)(B) states that "mail will be rejected based on legitimate penological interests and per Unauthorized Mail." Id. At ¶ 4. Per Attachment 1 – Unauthorized Mail, "[m]ail to or from incarcerated individuals, including publications and eMessages/attachments, may be rejected for any of the following reasons: [...] Contains sexually explicit material per WAC 137-48-020 , including altered images, strategically placed graphics/items, or airbrushing. Publications, letters, or eMessages that contain significant or repeated instances of content defined per WAC 137-48-020(13)(a)-(b) may be rejected. Publications, letters, or eMessages that contain any content defined per WAC 137-48-202(13)(c)-(d) may be rejected." Id. At ¶ 5; Id. at Ex. 2.
In relevant part, Wash. Admin. Code § 137-48-020(13) provides the following definition of sexually explicit materials in the context of inmate mail:
(13) "Sexually explicit materials" consist of any item reasonably deemed to be intended for sexual gratification and which displays, portrays, depicts, or describes:
(a) Nudity, which includes, but is not limited to, exposed/visible (in whole or part, including under or through translucent/thin materials providing intimate physical detail) genitals/genitalia, anus, buttocks and/or female/transgender breast nipple(s);
(b) A sex act which includes, but is not limited to, genital-genital, oral-genital, anal-genital, or oral-anal contact/penetration, genital or anal contact/penetration with an inanimate object, masturbation, and/or bodily excretory behavior;
Wash. Admin. Code § 137-48-020(13). Dkt. 21, at ¶ 6.
2. DOC's Mail Rejection Appeal Process
As part of their duties, DOC mailroom employees routinely read incoming and outgoing offender mail, other than legal mail, to ensure that it neither violates DOC policy nor creates security and safety concerns for staff, offenders, or the public. Dkt. 21, at ¶ 9. If mail does not meet these requirements, it is rejected and not delivered (if incoming) or sent out (if outgoing). Id. Under DOC Policy 450.100, mailroom employees provide written notice to an offender whenever the offender's incoming or outgoing mail is rejected. Id. , at ¶ 10. Offenders do not need to appeal rejections of outgoing mail as the Superintendent/Designee automatically reviews any rejection of outgoing mail. Id.
The Superintendent/Designee reviews the mail rejection and either upholds the rejection or overturns the rejection, allowing delivery of the mail. Dkt. 21, at ¶ 11. The offender is given notice when the Superintendent/Designee upholds or overturns the mail rejection. Id. If an outgoing mail rejection is upheld by the Superintendent/Designee, it is automatically submitted for review to the Correctional Manager at DOC Headquarters. Id. Offenders do not need to submit a separate appeal for the upheld mail rejection to be submitted to the Correctional Manager at DOC Headquarters, but they may decide to submit appeal documents anyway, in which case the appeal documents are included with the mail rejection. Id. The Correctional Manager reviews these second-level mail rejection appeals and affirms or reverses the decision of the facility. Id. The offender is given notice when the Correctional Manager upholds or rejects the mail rejection. Id. At each level, the offender is notified of the decision and the grounds for it. Id.
3. Rejection of Plaintiff's Letter
On November 16, 2020, Washington State Penitentiary mailroom employee Jennifer Spencer rejected an outgoing letter from Plaintiff to Loretta Pedersen. Dkt. 21, at ¶13. Spencer rejected the letter because it contained sexually explicit material, specifically "written depiction of intercourse and drawn depiction of masturbation." Id.
As an outgoing mail rejection, it was automatically forwarded for review to the Superintendent's Designee, Sgt. Derek Dugger. Id., at ¶ 14. Sgt. Dugger reviewed the letter and upheld the rejection, writing, "I concur with the rejection as stated above, mailing does contain sexually explicit writings and a drawing." Id. The mail rejection was then forwarded to Headquarters for review, where Defendant Correctional Manager Tracy Schneider upheld the rejection on February 25, 2021. Id. , at ¶ 15.
B. Plaintiff's Complaint
In his complaint, Plaintiff alleges his First Amendment rights were violated by the rejection of Plaintiff's outgoing mail "merely on account of its prurient nature." Dkt. 4, at 11. As relief Plaintiff seeks a declaratory judgment stating that:
1) The censorship of Plaintiff's outgoing letter, merely on account of its prurient nature, violated his rights under the First Amendment to the United States Constitution.
2) Defendant Schneider's failure to reverse the censorship decision, and her present possession of Plaintiff's letter to his now-wife, continues to violate Plaintiff's rights under the First Amendment to the United States Constitution.
3) That Washington Administrative Code (W.A.C.) 137-48-040 is unconstitutional to the extent that it authorizes the censorship of outgoing prisoner correspondence for reasons that do not comport with the standard promulgated by the Supreme Court of the United States 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.
Dkt. 4, at 11-12. Plaintiff also seeks whatever nominal damages and punitive damages the Court deems appropriate as well as any other relief deemed appropriate by the Court. Id.
C. Current Motions
Plaintiff filed a motion for summary judgment arguing that the record shows his First Amendment rights were violated as a matter of law by the "censorship" of his letter. Dkt. 20. Defendant opposes Plaintiff's motion and cross-moves for summary judgment arguing there was no First Amendment violation. Dk. 22. Plaintiff opposes Defendant's cross-motion for summary judgment. Dkts. 33, 35, 36, 37, 38. Defendant also moves to seal and for a protective order with respect to the letter at issue. Dkt. 25. Plaintiff opposes the request to seal arguing that he should have access to the letter in order to properly litigate his case. Dkt. 29. Defendants filed a reply to the motion to seal indicating that Plaintiff had subsequently been afforded the opportunity to view the letter and that therefore the motion should be granted. Dkt. 30.
DISCUSSION
A. Summary Judgment Motions
Pursuant to Rule 56 of the Federal Rules of Civil Procedure, "the court shall grant summary judgment if the movant shows there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." A party asserting a fact cannot be or is genuinely disputed must support the assertion by:
(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or
(B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.
Fed. R. Civ. P. 56(c)(1). All facts and reasonable inferences drawn therefrom must be viewed in the light most favorable to the nonmoving party. Furnace v. Sullivan , 705 F.3d 1021, 1026 (9th Cir. 2013) (citing Torres v. City of Madera , 648 F.3d 1119, 1123 (9th Cir. 2011) ; Tarin v. County of Los Angeles , 123 F.3d 1259, 1263 (9th Cir. 1997) ).
The party moving for summary judgment has the initial burden to demonstrate no genuine issue of material fact remains in this case. Celotex Corp. v. Catrett , 477 U.S. 317, 325, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; In re Oracle Corp. Securities Litigation , 627 F.3d 376, 387 (9th Cir. 2010). The movant "always bears the initial responsibility of informing the district court of the basis for its motion," and identifying those portions of the record, including pleadings, discovery materials, and affidavits, "which it believes demonstrate the absence of a genuine issue of material fact." Celotex , 477 U.S. at 323, 106 S.Ct. 2548. Mere disagreement or the bald assertion stating a genuine issue of material fact exists does not preclude summary judgment. California Architectural Building Products, Inc. v. Franciscan Ceramics, Inc. , 818 F.2d 1466, 1468 (9th Cir. 1987). A "material" fact is one which is "relevant to an element of a claim or defense and whose existence might affect the outcome of the suit," and the materiality of which is "determined by the substantive law governing the claim." T.W. Electrical Serv., Inc. v. Pacific Electrical Contractors Ass'n , 809 F.2d 626, 630 (9th Cir. 1987).
Mere "[d]isputes over irrelevant or unnecessary facts," therefore, "will not preclude a grant of summary judgment." Id. Rather, the nonmoving party "must produce at least some ‘significant probative evidence tending to support the complaint.’ " Id. (quoting First Nat. Bank of Ariz. v. Cities Service Co. , 391 U.S. 253, 290, 88 S.Ct. 1575, 20 L.Ed.2d 569 (1968) ); see also California Architectural Building Products, Inc. , 818 F.2d at 1468 ("No longer can it be argued that any disagreement about a material issue of fact precludes the use of summary judgment."). In other words, the purpose of summary judgment "is not to replace conclusory allegations of the complaint or answer with conclusory allegations of an affidavit." Lujan v. National Wildlife Federation , 497 U.S. 871, 888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990). "If a party fails to properly support an assertion of fact or fails to properly address another party's assertion of fact as required by Rule 56(c), the court may ... grant summary judgment if the motion and supporting materials--including the facts considered undisputed--show that the movant is entitled to it[.]" Fed R. Civ. P. 56(e)(3).
Plaintiff alleges his First Amendment rights were violated by the rejection of his outgoing letter on the grounds that it contained sexually explicit material or was of a "prurient" nature. Dkt. 4, 20. In his motion for summary judgment, Plaintiff argues that Defendant "has failed to put forth a legitimate governmental interest that is protected by the restriction of outgoing correspondence, merely on account of the salacious nature of the correspondence." Dkt. 20, at 4. He argues, "[t]he letter that Plaintiff wrote to his then fiancée contained no content whatsoever that could be construed as remotely implicating the safety and security of the institution. Plaintiff did not mention the introduction of illicit substances, weapons, or any other contraband into the facility, nor did he discuss plans to escape. He merely wrote sexually explicit material to the woman who is now his wife." Id. Defendant argues in opposition to Plaintiff's motion and in support of his cross-motion for summary judgment that Plaintiff's outgoing letter was obscene and therefore was not protected by the First Amendment. Dkt. 22. Alternatively, Defendant argues that even if Plaintiff's letter was not obscene, the evidence shows there was no First Amendment violation. Id.
The content of the letter is not in dispute. See Dkts. 20, 22, 26. The letter contains a detailed drawing depicting masturbation including excretion of bodily fluids from genitalia, and a brief but graphic description of a sexual act between Plaintiff and the intended recipient. Id. The remainder of the letter is not of a sexual nature.
"In evaluating the free speech rights of adults, [the United States Supreme Court has] made it perfectly clear 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) ). Obscene speech, however, 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). To determine if speech is obscene, the Court applies the following three part test set forth in Miller : (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 ; Smith v. U.S. , 431 U.S. 291, 302, 97 S.Ct. 1756, 52 L.Ed.2d 324 (1977) ; Wright v. Van Boening , 958 F.2d 380 (9th Cir. 1992).1 First, the average person applying contemporary standards, would find Plaintiff's letters appeal to the prurient interest. There is no dispute that the letter contains graphic descriptions of sexual acts Plaintiff indicates he would like to perform with the letter's intended recipient as well as a detailed drawing depicting masturbation and excretion of bodily fluids from genitalia. See Dkt. 26. While the letter also contains other non-sexual content, this does not serve to negate the graphic sexual content in the letter. Viewed as a whole, the Court concludes the letter meets the first prong of the obscenity test.
Second, the letter depicts and describes sexual conduct in a patently offensive way. The letter briefly but graphically describes Plaintiff engaging in sexual actions with the letter's intended recipient. See Dkt. 26. In the letter, Plaintiff uses street slang and vernacular for sexual organs, graphic descriptions of a sexual act, as well as a detailed drawing of masturbation, including a depiction of the excretion of bodily fluids from genitalia, and would be offensive according to contemporary community standards. See Perez v. Warner , No. 315CV05530RBLDWC, 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) (finding outgoing letter from prisoner obscene where it used "street slang and vernacular for sexual organs and his graphic descriptions of sexual acts would be offensive according to contemporary community standards."). While Plaintiff argues the letters were intended to be private and only for his fiancée to view, Plaintiff was aware the letters were subject to inspection and would be read by persons other than the intended recipient. See Dkts. 22, 24, 24-1. Thus, prison officials were, by necessity, subjected to the contents in the letters. See Clark v. Carter , 2006 WL 3448689, *6 (W.D. Wash. Nov. 27, 2006) (finding letter was offensive, in part, because it was viewed by persons other than the intended recipient when the prison officials were subjected to the contents of the letter by necessity); accord Perez , 2016 WL 2894053, at *4. The Court rejects Plaintiff's argument that the letter was not offensive because it was intended to be private and concludes the letter meets the second prong of the obscenity test.
Third, while the letter also contains other non-sexual content, Plaintiff does not specifically argue that, taken as a whole, it has serious literary, artistic, political, or scientific value. The fact that there is other non-sexual content in the letter does not render it non-obscene as, viewed as a whole, it clearly contains graphic descriptions of sexual acts and a detailed drawing of masturbation, including a depiction of the excretion of bodily fluids from genitalia. The Court concludes that the letter meets the third prong of the obscenity test.
Based on the above findings, the Court concludes Plaintiff's outgoing letter was obscene under the factors set forth under Miller . Because the letter is obscene, it is not protected by the First Amendment and Defendant's refusal to deliver the outgoing letter did not violate Plaintiff's First Amendment rights. See Clark , 2006 WL 3448689 at *6. Accordingly, the Court recommends that Plaintiff's motion for summary judgment be denied and Defendant's cross-motion for summary judgment be granted as to Plaintiff's claim that his First Amendment rights were violated when Defendant rejected the outgoing letter.
Even if Plaintiff's letter was not obscene, the evidence shows the First Amendment was not violated. The First Amendment protects a prisoner's right to send and receive mail. Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (per curiam). "However, ‘[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ " Shakur v. Schriro, 514 F.3d 878, 884 (9th Cir. 2008) (quoted sources omitted). In Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), the Supreme Court set forth the standard for determining the constitutionality of a regulation restricting outgoing mail.2 In evaluating prison restrictions on outgoing mail, the relevant inquiry is whether a prison's practice furthers "an important or substantial governmental interest unrelated to the suppression of expression[.]" Martinez , 416 U.S. at 413, 94 S.Ct. 1800 ; accord Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008). "Prison officials ... must show that a regulation authorizing mail censorship furthers one or more of the substantial governmental interests of security, order, and rehabilitation." Martinez, 416 U.S. at 413, 94 S.Ct. 1800. Further, the restriction "must be no greater than is necessary or essential to the protection for the particular governmental interest involved." Id. However, prison officials do not need to show there is no less restrictive mail policy that could serve the same penological interests. Thornburgh v. Abbott , 490 U.S. 401, 411, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989) (explaining Martinez should or need not be read as subjecting prison officials to "a strict ‘least restrictive means’ test"). Rather, "[ Martinez ] require[s] no more than that a challenged regulation be ‘generally necessary’ to a legitimate governmental interest." Id. ; accord Witherow, 52 F.3d at 265.
The Court notes that this Court has previously upheld a challenge to a prior version of DOC Mail Policy 450.100 providing for the rejection of sexually explicit material in outgoing mail. See Clark , 2006 WL 3448689, at *7–8. In Clark , Defendants presented evidence that the policy decision to reject "sexually explicit" mail that was both incoming and outgoing was made by DOC headquarters because:
A study was conducted [...] to investigate the effects of sexually explicit materials on inmates, volunteers, and staff. Expert psychologists participated in the
study and determined that viewing pornographic or sexually explicit material leads to an increase in sexual aggression. That increase in sexual aggression was found to be a threat to the safety and security, for staff, offenders, offender families, and community volunteers.
The experts found that there was an increase in sexual aggression, threatening the safety and security of the institution, regardless of whether the inmate received the materials from mail coming into him or he created the materials and sent them out to someone else. Consequently, DOC policy was changed to prohibit offenders from sending or receiving sexually explicit materials.
Id. The Court in Clark concluded that Defendants had met their burden of showing the regulation furthered a substantial government interest and was generally necessary to that legitimate government interest. Id. ; Martinez , 416 U.S. at 413, 94 S.Ct. 1800.
Here, Defendant asserts in her declaration that:
Sexually explicit material has long been unauthorized in DOC facilities because of the threat it presents to the safety and security of offenders and staff within the facilities. Sexually explicit material is continually being used as a form of currency in prison, with negotiations taking place between offenders where sexually explicit material is traded among offenders for other products or services. The use of sexually explicit material as currency also leads to the coercion and strong-arming of offenders, with threats made against offenders who will not share sexually explicit material with others. Sexually explicit material also poses a threat to the safety of staff members and other offenders, as offenders’ viewing of sexually explicit material leads to increased instances of sexual harassment against offenders and staff, especially female staff. For all of these reasons, sexually explicit material has been deemed to be a threat to the safety and security of DOC facilities, and sexually explicit material is thus prohibited in prison mail by Wash. Admin. Code § 137-48 and DOC Policy 450.100.
Dkt. 24, at 3. The safety and security of prisons is an important goal of prison authorities and the Court affords a significant degree of deference to the expertise of prison officials on this issue. See, e.g., Thornburgh , 490 U.S. at 407–08, 109 S.Ct. 1874 ("Acknowledging the expertise of these officials and that the judiciary is ‘ill equipped’ to deal with the difficult and delicate problems of prison management, this Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world." (quoting Martinez , 416 U.S. at 404-05, 94 S.Ct. 1800 )). The Court finds that Defendant has met her burden of demonstrating the regulation is designed to further a substantial government interest unrelated to the suppression of expression.
The next question under Martinez is whether the regulation is no greater than is necessary or essential to the protection of the particular governmental interest involved. Martinez , 416 U.S. at 413, 94 S.Ct. 1800. As the Court clarified in Thornburgh , the pertinent inquiry under this standard is whether the challenged regulation is "generally necessary" to a legitimate governmental interest. Thornburgh , 490 U.S. at 411, 109 S.Ct. 1874. Defendant asserts in her declaration that:
The problems related to sexually explicit mail, [described above in the previously quoted paragraph of Defendant's declaration], stem from offenders having access to sexually explicit material. Thus, in order for the prohibition on
sexually explicit material to be effective, it must apply both to incoming and outgoing prison mail. Any other type of regulation leads to a double standard. For example, a prohibition on sexually explicit material in incoming mail but not outgoing mail would result in any offender found with sexually explicit material being able to claim that the material was simply outgoing mail, and thus authorized for the offender's possession until he mailed it out. DOC staff would have no way to confirm if the offender immediately, or ever, placed the sexually explicit material in outgoing mail. Thus, the same prohibition on sexually explicit material needs to apply to outgoing mail as applies to incoming mail in order to ensure that offenders do not have access to sexually explicit material.
Dkt. 24, at 3-4. The Court finds that Defendant has met her burden of demonstrating the regulation is "generally necessary" to a legitimate governmental interest. Defendant explains, logically, in her declaration that in order to effectively manage the threat to safety and security posed by prisoner's possessing sexually explicit materials, the prohibition on these materials must be applied equally to incoming and outgoing mail.
Plaintiff, in his supplemental response to Defendant's cross-motion, points out that, in response to his interrogatory questions, Defendant acknowledged she could not personally think of any specific instances where sexually explicit outgoing correspondence was involved in coercion or where a letter written by a prisoner to his wife or fiancée was used as a source of currency. Dkts. 35, 36, 37, 38. However, the fact that Defendant is unable to personally provide specific examples of these particular behaviors with respect to specific pieces of outgoing mail does not, in and of itself, raise a genuine issue of material fact sufficient to preclude summary judgment. The requirement under Martinez is that Defendant demonstrate the regulation is "generally necessary" to a legitimate governmental interest. Defendant has presented a declaration explaining that the restriction must be applied to outgoing and incoming mail because the safety and security concerns posed by prisoner's possession of sexually explicit materials exists regardless of whether the material was received through the mail or is ultimately intended to be sent out and that if such material was permitted to be sent out the prisoner could claim that the material was simply outgoing mail, and thus authorized for the offender's possession until he mailed it out. Plaintiff's argument that Defendant could not personally think of a specific instances where sexually explicit outgoing correspondence was involved in coercion or where a letter written by a prisoner to his wife or fiancée was used as a source of currency does not undermine Defendant's assertion of fact with respect to the need for the regulation to prevent the possession of sexually explicit materials within the prison.
The Court also notes that in another interrogatory response, (which Plaintiff submits along with his supplemental response to Defendant's motion) Defendant does provide more specific personal factual information regarding the security interest at issue, stating that she has "seen multiple instances of individuals writing their loved ones (whether it be wife, fiancée, girl/boyfriend) on JPay and/or US Mail who reference the fact that they know that staff are reading their mail and have written comments like ‘let's see how the Mailroom staff like reading this’ and then begin to write extremely sexually explicit material." Dkt. 36, at 3-4. Plaintiff has not come forward with evidence showing a genuine issue of material fact exists as to Defendant's assertions of fact that the regulation furthers a substantial government interest unrelated to suppression of the expression and is " ‘generally necessary’ " to that legitimate governmental interest. Plaintiff also does not specifically suggest that there are other less restrictive alternatives available.
In his complaint, Plaintiff also states he is entitled to a declaration that:
Washington Administrative Code (W.A.C.) 137-48-040 is unconstitutional to the extent that it authorizes the censorship of outgoing prisoner correspondence for reasons that do not comport with the standard promulgated by the Supreme Court of the United States 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.
Generally, a facial challenge to a regulation requires the plaintiff to show "that no set of circumstances exists under which [the regulation] would be valid ... or that the [regulation] lacks any plainly legitimate sweep." United States v. Stevens , 559 U.S. 460, 473, 130 S.Ct. 1577, 176 L.Ed.2d 435 (2010) (internal quotation marks and citations omitted); see also Jones v. Sinclair , 2014 WL 8849985, at *6-7 (W.D. Wash. Nov. 18, 2014) (applying Stevens to a DOC Policy). On the other hand, an "as-applied" claim "challenges only one of the rules in a statute, a subset of the statute’ applications, or the application of the statute to a specific factual circumstance." Hoye v. City of Oakland , 653 F.3d 835, 857 (9th Cir. 2011) (citations omitted). The Ninth Circuit has held that the difference between as-applied and facial challenges "lies only in whether all or only some ... subrules (or fact-specific applications) are being challenged, the substantive legal tests used in the two challenges are ‘invariant.’ " Id.
As discussed above, Plaintiff has failed to allege facts showing the policy in question is unconstitutional as applied to his outgoing letter to Ms. Pedersen. To the extent Plaintiff intends to raise a facial challenge to the regulation in question, contrary to his assertion, the mere fact that different constitutional standards govern the evaluation of outgoing mail ( Martinez ) and incoming mail ( Turner ) does not in and of itself render a prison policy that restricts sexually explicit material in both incoming and outgoing mail under the policy criteria unconstitutional. Further, Plaintiff has alleged no facts to indicate that the regulation regarding outgoing mail, on its face, violates Procunier v. Martinez , 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974). As discussed above, Defendant has put forth evidence demonstrating the regulation on outgoing mail furthers a substantial government interest and is no greater than is necessary or essential to the protection of that interest. Martinez , 416 U.S. at 413, 94 S.Ct. 1800. Plaintiff alleges insufficient facts or evidence to rebut Defendant's showing or to indicate that "no set of circumstances exists under which [the regulation] would be valid ... or that the [regulation] lacks any plainly legitimate sweep." Stevens , 559 U.S. at 473, 130 S.Ct. 1577.
The Court notes that in response to Defendant's cross-motion for summary judgment Plaintiff asserts generally for the first time that the terms "significant" and "repeated" are not sufficiently defined in the regulation, thus rendering it unconstitutional. See Dkt. 33, at 10-13; Dkt. 24-1 (DOC Policy 450.100(III)(B) Attachment 1 - Unauthorized Mail) (providing that incarcerated individuals are not allowed to send or receive mail that contains "sexually explicit material per WAC 137-48-020 , including altered images, strategically placed graphics/items, or airbrushing. Publications, letters, or eMessages that contain significant or repeated instances of content defined per WAC 137-48-020(13)(a)-(b) may be rejected." (emphasis added)). Federal Rule of Civil Procedure 8(a)(2) requires that the allegations in the complaint give the defendants fair notice of the plaintiff's claims and the facts upon which plaintiff bases the claims. Thus, it is generally improper for a party to assert unpled theories or claims for the first time in response to a motion for summary judgment. See Navajo Nation v. United States Forest Servs. , 535 F.3d 1058, 1080 (9th Cir. 2008), Pickern v. Pier 1 Imports (U.S.), Inc. , 457 F.3d 963, 968-69 (9th Cir. 2006).
Here, Plaintiff's vagueness challenge was not pled in his complaint but is raised for the first time in response to Defendant's motion for summary judgment. Accordingly, the Court should decline to address Plaintiff's vagueness challenge.
The Court also notes that, even if considered, Plaintiff's vagueness challenge would likely fail on the current record. A party raising a facial challenge to a statute or regulation on vagueness grounds "must demonstrate that the law is impermissibly vague in all of its applications." Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 497, 102 S.Ct. 1186, 71 L.Ed.2d 362 (1982). Furthermore, in the prison context, "[s]ome open-ended quality is essential if a prison is to have any guidelines; it is impossible to foresee all literature that may pose a threat to safety and security." Borzych v. Frank, 439 F.3d 388, 392 (7th Cir. 2006). As discussed above, Defendant has put forth evidence demonstrating the regulation on outgoing mail furthers a substantial government interest and is no greater than is necessary or essential to the protection of that interest. Martinez , 416 U.S. at 413, 94 S.Ct. 1800. On the current record, Plaintiff alleges insufficient facts or evidence to rebut Defendant's showing or to indicate that "the law is impermissibly vague in all of its applications." Vill. of Hoffman Estates , 455 U.S. at 497, 102 S.Ct. 1186. The term "sexually explicit" is defined in great detail in WAC 137-48-020(13)(a)-(b) and thus, on the current record, it appears to the Court that a reasonable person would likely understand what material the regulation prohibits. Wash. Admin. Code § 137-48-020(13). Dkt. 21, at ¶ 6. Further, given the greater flexibility accorded prison officials to ensure order and safety in a prison population, based on the current record, it appears unlikely that the fact that the regulation provides some latitude to prison officials in determining what is "significant" or "repeated" instances of the sexually explicit content described in WAC 137-48-020(13)(a)-(b) would render the regulation void for vagueness, or fail to sufficiently inform the prisoner population as to what material is prohibited.
The Court also notes that several Courts have analyzed prison policies regulating sexually explicit mail in the past and have upheld the policies against constitutional challenges. See Thornburgh , 490 U.S. 401, 109 S.Ct. 1874 (applying Turner and upholding the validity of a federal prison regulation restricting sexually explicit material in incoming mail); Bahrampour v. Lampert , 356 F.3d 969, 979 (9th Cir. 2004) (applying Turner and finding prison officials may prohibit receipt of sexually explicit materials in light of concerns about preventing the sexual harassment of prison guards and other inmates); Frost v. Symington , 197 F.3d 348, 357 (9th Cir. 1999) (applying Turner test to find a regulation prohibiting receipt of sexually explicit images in the prison did not unconstitutionally abridge the inmate's First Amendment rights); Powell v. Riveland , 991 F.Supp. 1249, 1254 (W.D. Wash. 1997) (finding DOC Policy 450.100 was parallel to the regulation upheld in Thornburgh and therefore facially valid); Grenning v. Klemme , 34 F.Supp.3d 1144, 1155 (E.D. Wash. 2014) (applying Turner and holding "no constitutional right is violated when prison staff refuse to deliver sexually explicit materials to an inmate because it is reasonably related to penological interests"); Clark , 2006 WL 3448689 (Applying Martinez and holding outgoing sexually explicit mail was "subject to censorship due to penological interest in furthering prison safety and security"). Defendant has put forth evidence demonstrating the absence of a constitutional violation. Plaintiff has not alleged facts showing the regulations at issue in this case are unconstitutional either on their face or as applied. Plaintiff fails to meet his burden on his motion for summary judgment and fails to raise a genuine issue of material fact to preclude summary judgment for Defendant. Accordingly, the Court recommends Plaintiff's motion for summary judgment (Dkt. 20) be DENIED and Defendant's cross-motion for summary judgment (Dkt. 22) be GRANTED.
B. Defendant's Motion to Seal and for a Protective Order
Defendant also moves to seal the letter at issue in this case. Dkt. 25. Defendant's motion appears to be premised on concerns regarding Plaintiff's access to the letter in light of Defendant's expressed interest in preventing the threat to institutional security posed by sexually explicit material. Id. The Court construes this as a request for a protective order and a request to seal. Plaintiff opposes the motion, arguing that the material should be available to the public and that he should be permitted to view the letter in order to properly respond to Defendants’ cross-motion for summary judgment. Dkt. 29. In reply, Defendant indicates Plaintiff has since been provided the opportunity to view the letter. Dkt. 30.
Pursuant to Federal Rule of Civil Procedure 26(c)(1), a court may, for good cause, issue an order "to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense." In light of the security concerns presented by prisoners’ possession of sexually explicit materials, Defendant requests that Plaintiff not be permitted to possess copies of the letter. Defendants represent in their reply that they have now provided Plaintiff with an opportunity to view the letter. Dkt. 30. Defendant's request for a protective order (Dkt. 25) should be GRANTED. In light of Defendant's expressed safety and security concerns, discussed above, and the fact that Plaintiff has now reviewed the letter, the Court should not require Defendant to provide a copy of the document to Plaintiff. Furthermore, the Clerk should be instructed not to provide a copy of the document to the Plaintiff electronically or through any other means.
Defendant also requests that the letter submitted to the Court remain under seal and not viewable by the public. Under Local Civil Rule CR 5(g)(1), there is a "strong presumption of public access to the court's files and records which may be overcome only on a compelling showing that the public's right of access is outweighed by the interests of the public and the parties in protecting files, records, or documents from public review." Defendant makes no such showing with respect to the public and the protective order denying Plaintiff access to physical copies of the document appears sufficient to address Defendant's concern regarding Plaintiff's access to the document. Accordingly, Defendant's request to seal the document on the docket from public view (Dkt. 25) is DENIED.
CONCLUSION
Based on the foregoing, the Court recommends that Defendant's motion to seal and for a protective order (Dkt. 25) be GRANTED IN PART and DENIED IN PART. Defendant's request for a protective order (Dkt. 25) should be GRANTED and the Court should not require Defendant to provide a copy of the document in question (Dkt. 26) to Plaintiff. Furthermore, the Clerk should be instructed not to provide a copy of the document (Dkt. 26) to the Plaintiff electronically or through any other means. The remainder of Defendant's motion (Dkt. 25), seeking to seal the document from the public, should be DENIED. The Court further recommends that Plaintiff's motion for summary judgment (Dkt. 20) be DENIED, Defendant's cross-motion for summary judgment (Dkt. 22) be GRANTED and this case be DISMISSED and closed.
OBJECTIONS AND APPEAL
This Report and Recommendation is not an appealable order. Therefore a notice of appeal seeking review in the Court of Appeals for the Ninth Circuit should not be filed until the assigned District Judge enters a judgment in the case.
Objections, however, may be filed and served upon all parties no later than August 31, 2021. The Clerk should note the matter for September 3, 2021 , as ready for the District Judge's consideration if no objection is filed. If objections are filed, any response is due within 14 days after being served with the objections. A party filing an objection must note the matter for the Court's consideration 14 days from the date the objection is filed and served. The matter will then be ready for the Court's consideration on the date the response is due. Objections and responses shall not exceed 10 pages. The failure to timely object may affect the right to appeal.
DATED this 10th day of August, 2021.