UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PRISON LEGAL NEWS; MARK
WILSON; MICHAEL TUCKER; HUNG
LE,
Plaintiffs-Appellants,
No. 99-36084
v.
D.C. No.
DAVID S. COOK, Director of
CV-98-01344-MFM
Oregon Department of
Corrections; DAVID SCHUMACHER, OPINION
Rules/Compliance Manager of
Oregon Department of
Corrections,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Malcolm F. Marsh, District Judge, Presiding
Argued and Submitted
November 14, 2000--Portland, Oregon
Filed February 7, 2001
Before: Robert R. Beezer, Pamela Ann Rymer and
Susan P. Graber, Circuit Judges.
Opinion by Judge Beezer
_________________________________________________________________
COUNSEL
Samuel J. Stiltner, Seattle, Washington, for the plaintiffs-
appellants.
Christina M. Hutchins, Assistant Attorney General, Salem,
Oregon, for the defendants-appellees.
Joseph E. Bringman, Perkins Coie, Seattle, Washington, for
the amici.
_________________________________________________________________
OPINION
BEEZER, Circuit Judge:
Prison Legal News ("Publisher"), publisher of a non-profit
newsletter, and prisoners Michael Tucker, Mark Wilson and
Hung Le ("Prisoners") appeal the district court's grant of
summary judgment on their 42 U.S.C. S 1983 claims in favor
of defendant officials ("Officials") of the Oregon Department
of Corrections ("the Department"). We have jurisdiction pur-
suant to 8 U.S.C. S 1291 and reverse and remand.
I
This case concerns the constitutionality of the Depart-
ment's policy of prohibiting the receipt of standard rate mail,
as applied to subscription non-profit organization mail. The
following facts are undisputed.
Since 1988, the Department has prohibited the receipt of
bulk mail into Oregon prisons under the rationales that bulk
mail is voluminous and generally of little value to prisoners;
substantial staff is required to sort, inspect and distribute bulk
mail; bulk mail poses security concerns; and bulk mail
increases fire hazards. The Department regulation at issue
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prohibits all incoming mail except "express mail, priority
mail, first class mail or periodicals mail." Or. Admin. R. 291-
131-0025(8) (1998).1 Oregon has the only prison system in
the country that refuses to deliver subscription non-profit
organization standard mail like that at issue.
The record shows that Oregon penal institutions process a
substantial amount of mail. Prior to the enactment of the ban
on bulk mail, the state penitentiary reported receiving 500
pieces of bulk mail daily. An informal survey taken in 1994
revealed that the penitentiary mailroom staff processed 5000
to 8000 pieces of first class mail daily. In July 1999, the mail-
room staff reported receiving 662 pieces of standard mail in
five days, including 172 pieces of non-profit organization
mail. The Snake River Correctional Institution ("Snake
River") reported that it receives, on average, 7000 to 8000
pounds of incoming mail a month. Snake River also reported
that over a four-day period in January of 1999, 2 it received
296 pounds of standard mail and that, over a five-day period
in the same month, it received 348 pounds of standard mail.
The state's Correctional Institution ("Correctional Institu-
tion") reported that over a five-day period in July of 1999, it
received 288 pieces of standard mail, 86 of which were non-
profit organization mail.
Department regulations establish procedures for processing
incoming mail applicable at all of its penal institutions. First,
_________________________________________________________________
1 Effective July 1, 1996, the United States Postal Service ("Postal Ser-
vice") redefined its categories of mail. Mail that was previously desig-
nated as third or fourth class mail (bulk mail) is now classified as Standard
A mail and Standard B mail, respectively. Standard A mail is further sub-
divided into two classes: "non-profit organization" mail and "regular/
commercial" mail. Second class mail is now referred to as "periodicals."
In 1998, the Department amended its mail regulations to reflect the new
Postal Service designations.
2 Because the record shows that Oregon penal institutions receive more
mail than usual during holiday months like December and January, we
view these numbers as slightly more than average.
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all incoming inmate mail is sorted into two categories:
express, priority, first class and periodicals mail is kept for
further processing. All other mail, including standard mail, is
returned to the Postal Service.3 A prisoner has no way of
knowing that a particular piece of standard mail addressed to
the prisoner was returned or destroyed. In general, the regula-
tion itself provides notice that standard mail will not be deliv-
ered. After the mail is sorted, mailroom staff reviews the
envelopes of acceptable mail for proper address and return
address information. Next, mailroom staff reviews the inmate
addressee's housing history and writes the inmate's housing
assignment on the envelope. If the inmate has been transferred
to another institution, the mail is sent to that institution at the
Department's expense. Incoming mail is then opened and
inspected for content and contraband.
For each piece of mail that is opened and deemed unautho-
rized, mailroom staff must write a Mail Violation Notice for
correspondence or a Publications Violation Notice for publi-
cations. When correspondence is opened and rejected, the
mailroom staff member writes the reason for the rejection on
a Mail Violation Notice, puts the notice in the envelope and
returns the envelope to the sender. The inmate receives a copy
of the violation notice and has 15 days to request administra-
tive review of any rejection based on written or pictorial con-
tent. The non-inmate sender has 15 days to request review of
any rejection. If a publication is rejected, notification and
review procedures are the same, except that the inmate and
the publisher have 30 days to request administrative review of
a rejection.
_________________________________________________________________
3 It is not clear what the Postal Service does with the returned bulk mail.
A prison mail inspector testified in his deposition that Postal Service
employees have told him, on different occasions, that the mail is
destroyed, donated to non-profit organizations and given to charities. The
Postal Service gave permission to one of Oregon's penal institutions to
destroy standard mail on site, so standard mail sent to that institution gets
destroyed there rather than returned to the Postal Service.
1645
If Department regulations were to allow standard mail, the
Department's mailroom staff would be required to give stan-
dard mail the same attention it gives to first class and periodi-
cals mail, detailed above.
Because non-profit organization standard mail is labeled on
its face, it is feasible to separate such mail from other standard
mail, although it is impossible facially to distinguish between
non-profit organization subscriptions and other non-profit
organization mail. In addition, although Oregon penal institu-
tions receive a significant amount of standard mail, the
amount of standard non-profit organization mail coming in
over a selected two-week period was "next to nothing." More-
over, the record indicates that the state penitentiary processed
and delivered notices from the Oregon Attorney General,
Department of Justice Support Enforcement Division, which
were labeled and mailed as "Bulk Mail" and were insuffi-
ciently addressed.
II
The record identifies the problems experienced by Oregon
state prisoners who desire to subscribe to materials published
by non-profit organizations and mailed under special rates
fixed by the Postal Service. Publisher Prison Legal News con-
ducts its activity through a non-profit organization, which pre-
pares and circulates newsletters addressing prison-related
issues. Publisher qualifies to use Standard A "non-profit orga-
nization rates" to circulate its newsletter. These postal rates
are substantially lower than rates for express mail, priority
mail, first class mail or periodicals mail. Publisher has
approximately 2600 subscribers, including prisoners, non-
prisoners, professionals and institutions. Fifteen Oregon state
prisoners subscribe to Publisher's newsletter. Several Depart-
ment employees reviewed Publisher's newsletter and deter-
mined that the content rendered it acceptable for admission;
that is, the newsletter is rejected strictly because of the Stan-
dard A postage rate. A prisoner could receive a subscription
1646
to Publisher's newsletter provided that the material was
posted using first class or periodicals mail rates.
Prisoners Mark Wilson, Michael Tucker and Hung Le are
inmates at the state penitentiary. Wilson is a paid subscriber
to Publisher's newsletter. Publisher formerly sent its newslet-
ter to Wilson affixing first class postage, in compliance with
Oregon prison regulations. According to Publisher's circula-
tion director, this practice recently became too expensive.
Consequently, Publisher sends all of its newsletters via stan-
dard rate mail. Because the Department prohibits standard
mail, Wilson has not received his subscription to the newslet-
ter since January of 1999.
Tucker also tried to subscribe to the newsletter but was
informed by the editor that Publisher could not honor his
request because of the Department's prohibition against stan-
dard mail. In addition, Tucker's subscription to a different
newsletter was thwarted by reason of postal expenses incurred
to meet the Department's mail regulations.
Le requested religious material from the International
Prison Ministry, a non-profit organization that sends out solic-
ited Bibles and other material using standard rate mail. Le
received a letter from the chaplain explaining that the request
could not be fulfilled because Oregon prisons would not
deliver standard mail to prisoners.4
III
We review de novo an order granting summary judgment.
Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en
banc). Viewing the evidence in the light most favorable to the
nonmoving party, we determine whether there are any genu-
_________________________________________________________________
4 Prisoners make no specific argument about Le's claim on appeal, and
we assume that it has been abandoned.
1647
ine issues of material fact and whether the district court cor-
rectly applied the relevant substantive law. See id.
[1] Publisher and Prisoners first argue that the Depart-
ment's regulation banning standard mail impermissibly
infringes on their First Amendment rights. The Supreme
Court makes clear that in the prison context, an inmate retains
those First Amendment rights not "inconsistent with his status
as a prisoner or with the legitimate penological objectives of
the corrections system." Jones v. North Carolina Prisoners'
Labor Union, Inc., 433 U.S. 119, 129 (1977) (quoting Pell v.
Procunier, 417 U.S. 817, 822 (1974)). Furthermore, publish-
ers who wish to communicate with inmates by sending
requested subscriptions have a "legitimate First Amendment
interest in access to prisoners." Thornburgh v. Abbott, 490
U.S. 401, 408 (1989). We are required to afford considerable
deference to the expertise and decisionmaking of prison
administrators. See id. at 407-08; Turner v. Safley, 482 U.S.
78, 85 (1987).
[2] As a preliminary matter, we reject Officials' argument
that the regulation banning standard mail does not implicate
Publisher's and Prisoners' First Amendment rights because it
results only in the loss of cost advantages. Officials point to
the main effect of the Department's policy, which is to require
non-profit organizations, entitled to use standard mail rates, to
forego a cost advantage and use first class mail to send their
newsletters to prisoners in Oregon institutions. See Jones, 433
U.S. at 130-31 (holding that where other avenues remain
available for the receipt of materials by inmates, the loss of
"cost advantages does not fundamentally implicate free
speech values"); see also Bell v. Wolfish, 441 U.S. 520 (1979)
(relying on Jones). In this case, although we agree that the
Department regulation mainly affects economic interests, it is
also clear that the regulation implicates both Publisher's and
Prisoners' First Amendment rights. The speech at issue is core
protected speech, not commercial speech or speech whose
content is objectionable on security or other grounds. Nor
1648
does the receipt of such unobjectionable mail implicate peno-
logical interests. Cf. Jones, 433 U.S. at 131-32 (noting that the
speech at issue, the solicitation of membership in prisoners'
union, raised security concerns because it was an "invitation
to collectively engage in a legitimately prohibited activity").
Finally, paying a higher rate is not an alternative because the
prisoner cannot force a publisher who needs to use, and is
entitled to use, the standard rate to take additional costly steps
to mail his individual newsletter.
[3] In Turner the Supreme Court says: "when a prison regu-
lation impinges on inmates' constitutional rights, the regula-
tion is valid if it is reasonably related to legitimate
penological interests." 482 U.S. at 89. There are four factors
relevant to the Turner reasonableness inquiry: (1) whether the
regulation is rationally related to a legitimate and neutral gov-
ernmental objective; (2) whether there are alternative avenues
that remain open to the inmates to exercise the right; (3) the
impact that accommodating the asserted right will have on
other guards and prisoners, and on the allocation of prison
resources; and (4) whether the existence of easy and obvious
alternatives indicates that the regulation is an exaggerated
response by prison officials. Id. at 89-90. The same analysis
applies to regulations affecting publishers' rights to send
materials to prisoners. See Thornburgh, 490 U.S. at 413
(applying Turner to regulations affecting incoming inmate
mail regardless of the sender's identity).
[4] The first element of the Turner test directs us to (1)
determine whether the Department's regulation is legitimate
and neutral; and (2) assess whether there is a rational relation-
ship between the governmental objective and the regulation.
We hold that tying the receipt of subscription non-profit
newsletters to postal service rate classifications is not ratio-
nally related to any legitimate penological interest put forth
by the Department.5
_________________________________________________________________
5 Because we conclude that there is no rational relationship, we do not
address Publisher's and Prisoners' argument that the regulation is not neu-
1649
In Frost v. Symington, 197 F.3d 348 (9th Cir. 1999), we
clarified that the level of scrutiny to be applied to the deci-
sions of prison administrators depends on the circumstances
in each case:
When the inmate presents sufficient . . . evidence
that refutes a common-sense connection between a
legitimate objective and a prison regulation, Walker
[v. Sumner, 917 F.2d 382 (9th Cir. 1990), ] applies,
and the state must present enough counter-evidence
to show that the connection is not so remote as to
render the policy arbitrary or irrational. On the other
hand, when the inmate does not present enough evi-
dence to refute a common-sense connection between
a prison regulation and the [asserted] objective . . . ,
Mauro [v. Arpaio, 188 F.3d 1054 (9th Cir. 1999),]
applies and, presuming the governmental objective is
legitimate and neutral, Turner's first prong is satis-
fied.
Id. at 357 (internal quotation marks and citations omitted).
Frost thus commands that if Publisher and Prisoners do not
present sufficient evidence to refute a common-sense connec-
tion between the Department regulation and its stated objec-
tives, "prison officials need not prove that the banned material
actually caused problems in the past, or that the materials are
`likely' to cause problems in the future." Mauro, 188 F.3d at
1060. The only question is whether prison administrators rea-
sonably could have thought the regulation would advance
legitimate penological interests. See id; Casey v. Lewis, 4 F.3d
1516, 1521 (9th Cir. 1993). If Publisher and Prisoners refute
the common-sense connection, however, the Department must
demonstrate that the relationship is not so "remote as to ren-
_________________________________________________________________
tral, which is supported by the fact that the Department processed and
delivered notices to inmates from the Oregon Attorney General that were
insufficiently addressed and mailed at the standard rate.
1650
der the policy arbitrary or irrational." Mauro, 188 F.3d at
1060 (quoting Turner, 482 U.S. at 89-90).
[5] The first purported justification for the regulation is that
standard mail often contains contraband; banning all standard
mail reduces the time spent by mailroom staff searching for
contraband and the likelihood that contraband will end up in
the prison. The Department has presented no evidence sup-
porting a rational distinction between the risk of contraband
in subscription non-profit organization standard mail and first
class or periodicals mail. See Crofton v. Roe , 170 F.3d 957,
960 (9th Cir. 1999).
[6] Second, the Department and its Officials assert that the
ban on standard mail helps reduce fire hazards by limiting the
quantity of flammable material in inmates' cells. Publisher
and Prisoners respond that Department regulations restricting
the amount of property inmates can possess already address
this concern. See Or. Admin. R. 291-117-0005. The fact that
Department property regulations already limit the amount of
material an inmate can possess and the fact that inmates could
conceivably receive bulk mail materials if sent first class
refute the common sense connection between the refusal to
deliver subscription standard mail and the reduction of fire
hazards. The Department emphasizes that the accumulation of
flammable materials is such a concern that the prisons con-
duct fire drills every 90 days. Publisher and Prisoners are not
asking that all standard mail be delivered, however; they are
asking only that personal subscriptions be delivered. It is irra-
tional to believe that delivering the small amount of subscrip-
tion non-profit organization standard mail that comes into
Oregon prisons would significantly contribute to paper accu-
mulation and increased fire hazards, as the total amount of
mail prisoners may store in their cells is currently limited by
property regulations. See Crofton, 170 F.3d at 960.
[7] Third, the Department and its Officials state that the
regulation increases the efficiency with which random cell
1651
inspections can be conducted. They argue that the accumula-
tion of standard mail in a cell creates a good environment for
hiding contraband. The fewer materials in the cell, the better
a correctional officer can conduct a search. The property regu-
lations mentioned above address this concern, however, and
the quantity of additional subscription mail, once processed,
would be minimal. The regulation is not rationally related to
the Department's interest in rendering efficient cell searches.
[8] The final objective purportedly furthered by the regula-
tion is the enhancement of prison security. The Department
and its Officials assert that the ban on standard mail allows
mailroom staff to concentrate its efforts on timely processing
acceptable mail and thoroughly inspecting such mail for con-
tent and contraband. Publisher and Prisoners respond that pro-
cessing subscription non-profit organization standard mail
would not substantially deplete prison resources and would
not add significantly to the mailroom staff's workload. We
agree. The reality is that all incoming mail must be sorted.
The record shows that distinguishing between non-profit
organization standard mail and regular/commercial standard
mail is not unduly cumbersome, particularly in light of the
relatively insignificant amount of incoming non-profit organi-
zation standard mail received at the Department's several
facilities.
The Department counters that although mailroom staff can
separate standard mail from non-profit organization standard
mail, it cannot readily distinguish subscription non-profit
organization mail from unsolicited non-profit organization
mail. To make such a distinction, the Department states that
it would have to (1) create an active list of all names of all
prisoners who subscribe to non-profit organization publica-
tions; (2) make the list available to all Department facilities;
(3) provide personnel to update the list daily; (4) check all
non-profit organization mail against the master list to ensure
that it is subscription mail and that the subscription is current;
and (5) process all subscription non-profit organization mail
1652
in the same manner as first class and periodicals mail and
afford prisoners and publishers notice and review of rejec-
tions. We do not believe that requiring the delivery of non-
profit organization standard mail will unduly burden the Depart-
ment.6 The Department and its Officials ignore the fact that at
issue is the addition of 15 to 30 pieces of mail to the 5000 to
8000 pieces of acceptable mail that are processed at some
Department institutions daily. Furthermore, the fact that the
Department was able to process improperly addressed bulk
mail sent by the Oregon Attorney General's office suggests
that the Department exaggerates the administrative burden
that processing subscription non-profit mail would impose.
The Department's concern that limiting the ban would
encourage inmates to increase their subscriptions and lead to
an unmanageable influx of subscription non-profit standard
mail can be addressed by other regulations. For example, cur-
rent Department regulations requiring proper address and
addressee information and restricting content would apply to
the additional mail and would help control volume. See Or.
Admin. R. 291-131-0025(1); Or. Admin. R. 291-131-0035.
[9] The rational relationship factor of the Turner standard
is a sine qua non. Walker v. Sumner, 917 F.2d 382, 385 (9th
Cir. 1990). Because the Department and its Officials have
failed to show that the ban on standard mail is rationally
related to a legitimate penological objective, we do not con-
sider the other Turner factors. Rather, we are required to
reverse.7 See id.
_________________________________________________________________
6 We note here that because "a personal subscription of a particular pub-
lication more nearly resembles personal correspondence than a mass mail-
ing," such subscriptions deserve more attention than bulk mail. Miniken v.
Walter, 978 F. Supp. 1356, 1362 (E.D. Wash. 1997).
7 At oral argument, the Department and its Officials contended that a
holding in this case that the ban on standard mail is unconstitutional as
applied would pose problems for the Department under Article I, Section
8, of the Oregon Constitution. We do not address this argument because
the issue was not factually developed before the district court and was not
presented to us in the briefs.
1653
IV
[10] Publisher and Prisoners also argue that the district
court improperly determined that the Department's Officials
are entitled to qualified immunity. We disagree. We review de
novo a district court's determination regarding qualified
immunity in a S 1983 action. Newell v. Sauser, 79 F.3d 115,
117 (9th Cir. 1996). The Officials are entitled to qualified
immunity if their conduct "does not violate clearly established
statutory or constitutional rights of which a reasonable person
would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982). We analyze qualified immunity claims using a two-
step inquiry; we ask (1) whether the law governing the offi-
cial's conduct was clearly established at the time of the con-
duct; and, if so, (2) whether under that law a reasonable
official could have believed the conduct was lawful. Robinson
v. Solano County, 218 F.3d 1030, 1034 (9th Cir. 2000).
[11] Because the "contours" of Publisher's right to send
and Prisoners' right to receive subscription non-profit organi-
zation standard mail were not "sufficiently clear that a reason-
able official would understand that what he [was ] doing
violate[d] that right," Anderson v. Creighton, 483 U.S. 635,
640 (1987), the law in this case was not "clearly established."
A number of cases support this view. In Sheets v. Moore, the
Sixth Circuit upheld a regulation prohibiting "[f]ree advertis-
ing material, fliers, and other bulk rate mail except that
received from a recognized religious organization sent in care
of the institutional chaplain." 97 F.3d 164, 165 n.1 (6th Cir.
1996). Language in that case, however, distinguished between
bulk rate mail and personal subscriptions, without directly
addressing subscription bulk rate mail. See id. at 167. In
Miniken v. Walter, on the other hand, a district court struck
down a ban on bulk mail as applied to subscription non-profit
organization mail such as Publisher's newsletter. 978 F. Supp.
1356 (E.D. Wash. 1997). This ruling was based, in part, on
the fact that publications like Publisher's newsletter did not
fall within the prison regulations' own definition of "bulk
1654
mail." See id. at 1361. Moreover, two Oregon district judges
have upheld the Department regulation at issue in unpublished
decisions. See Hunter v. Baldwin, Civ. No. 93-1579 (Or.
1995), aff'd on other grounds, 78 F.3d 593 (9th Cir. 1996)
(table decision) (upholding former Or. Admin. R. 291-131-
0025(8)); Morrison v. Hall, Civ. No. 93-6383-HO (Or. 1998).
Although unpublished decisions carry no precedential weight,
Department Officials may have relied on these decisions to
inform their views on whether the regulation was valid and
whether enforcing it would be lawful.8
V
Last, Publisher and Prisoners argue that the Department's
failure to provide notice and administrative review of standard
mail rejections deprives inmates and publishers of due process
safeguards required by Procunier v. Martinez, 416 U.S. 396,
417 (1974) (holding that the "decision to censor or withhold
delivery of a particular letter must be accompanied by mini-
mum procedural safeguards"), overruled on other grounds by
Thornburgh, 409 U.S. at 413-14. Due process guarantees
apply only when a constitutionally protected liberty or prop-
erty interest is at stake. Board of Regents v. Roth, 408 U.S.
564, 569 (1972).
Because we decide that Publisher and Prisoners have a con-
stitutionally protected right to receive subscription non-profit
organization standard mail, it follows that such mail must be
afforded the same procedural protections as first class and
periodicals mail under Department regulations.
VI
We hold that the Department's ban on standard rate mail is
_________________________________________________________________
8 Although the individually named Officials in the instant case were not
parties to the prior cases, the Department had notice of the unpublished
dispositions.
1655
unconstitutional as applied to subscription non-profit organi-
zation mail. We reverse the summary judgment in favor of
Officials and remand for further proceedings consistent with
this opinion. We grant Publisher's and Prisoners' request for
reasonable attorney's fees, to be fixed on remand to the dis-
trict court. See 42 U.S.C. S 1988.
REVERSED AND REMANDED.
1656