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United States District Court, N.D. California

June 14, 2004.

S. WHEELAN, Defendant.

The opinion of the court was delivered by: SUSAN ILLSTON, District Judge


Summary judgment is entered in favor of defendant and against plaintiff.



  Frederick Owens, an inmate currently housed at the High Desert State Prison, filed this pro se civil rights action under 42 U.S.C. § 1983. Defendant now moves for summary judgment, arguing that he is entitled to judgment as a matter of law on the merits of plaintiff's mail claim and on the defense of qualified immunity. For the reasons discussed below, the court concludes that defendant is entitled to judgment as a matter of law on plaintiff's complaint and on his defense of qualified immunity. Accordingly, the court will grant defendant's motion for summary judgment.


  This action concerns the confiscation of mail sent to Frederick Owens on May 3, 2000 at Pelican Bay State Prison. The following facts are undisputed unless otherwise noted.

  At the relevant time, Owens was an inmate at Pelican Bay. He was transferred to the administrative segregation unit ("ad-seg") on April 5, 2000 due to the presence of documented enemies in the general population at Pelican Bay. Defendant S. Wheeler (mistakenly sued under the name S. Wheelan) was a correctional captain employed at Pelican Bay.

  Inmates in ad-seg and the security housing units ("SHU") are subject to more stringent property restrictions than inmates in the general population at Pelican Bay. There is a need for heightened restrictions in ad-seg and the SHU are needed because the units house inmates determined by the prison administrators to pose a threat to the safety and security of the institution, staff or other inmates based on their case factors.

  Operational Procedure 205 ("OP 205") concerns inmate mail. OP 205(VI)(II)(5) prohibits the receipt of stamps by inmates in ad-seg and the SHU. "General population inmates may receive postage stamps, envelopes with the stamps previously applied or embossed envelopes through the mail. The SHU inmates and [ad-seg] inmates may only receive embossed postage." OP 205(VI)(II)(8) provides that "[m]ailings containing items disallowed will be disposed of as provided in Section VI.O of this procedure." Inmate mail is regulated with the intent to prevent introduction of illegal drugs, weapons or other contraband, all of which pose threats to institutional security. With regard to the stamp limits in particular, the prison litigation coordinator explained that "[i]n prior instances, contraband such as illegal drugs have entered the prison via stamps, which can be laced with drugs in a powder or liquid form." Watkins Decl., ¶ 6.

  Defendant Wheeler prepared forms that informed Owens on May 3, 2000 that Owens had received a letter containing prohibited property (i.e., 20 loose stamps), that he could have this contraband mailed out of the prison for thirty-three cents, and that he had to respond in fifteen days or the mail would be destroyed. Owens did not respond and the mail apparently was destroyed. Owens pursued an unsuccessful inmate appeal.

  Owens then filed this action. He filed a complaint and an amended complaint, neither of which was verified.*fn1 The court found the amended complaint, liberally construed, stated a cognizable claim for a First Amendment violation by defendant Wheeler and ordered it served on him. Wheeler filed a motion for summary judgment, which Owens did not oppose. The court has no evidence from Owens to consider in opposition to the motion for summary judgment but that alone does not warrant summary judgment, even though it suggests Owens has lost interest in the action. See Cristobal v. Siegel, 26 F.3d 1488, 1494-95 & n. 4 (9th Cir. 1994) (unopposed motion may be granted only after court determines that there are no material issues of fact)


  Venue is proper in the Northern District of California under 28 U.S.C. § 1391 because the events or omissions giving rise to the claims occurred at Pelican Bay State Prison in Del Norte County, which is located within the Northern District. This court has federal question jurisdiction over this action brought under 42 U.S.C. § 1983. See 28 U.S.C. § 1331.


  The court will grant summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial . . . since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (a fact is material if it might affect the outcome of the suit under governing law, and a dispute about a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.")

  Generally, as is the situation with defendant's challenge to the First Amendment claim, the moving party bears the initial burden of identifying those portions of the record which demonstrate the absence of a genuine issue of material fact. The burden then shifts to the nonmoving party to "go beyond the pleadings, and by his own affidavits, or by the `depositions, answers to interrogatories, or admissions on file,' designate `specific facts showing that there is a genuine issue for trial.'" Celotex, 477 U.S. at 324 (citations omitted).

  Where, as is the situation with a qualified immunity defense, the moving party bears the burden of proof at trial, he must come forward with evidence which would entitle him to a directed verdict if the evidence went uncontroverted at trial. See Houghton v. South, 965 F.2d 1532, 1536 (9th Cir. 1992). He must establish the absence of a genuine issue of fact on each issue material to his affirmative defense. Id. at 1537; see also Anderson v. Liberty Lobby, Inc., 477 U.S. at 248. When the defendant-movant has come forward with this evidence, the burden shifts to the non-movant to set forth specific facts showing the existence of a genuine issue of fact on the defense.

  The court's function on a summary judgment motion is not to make credibility determinations or weigh conflicting evidence with respect to a disputed material fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). The evidence must be viewed in the light most favorable to the nonmoving party, and the inferences to be drawn from the facts must be viewed in a light most favorable to the nonmoving party. See id. at 631.


  Prisoners enjoy a First Amendment right to send and receive mail. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). However, a prison may adopt regulations which impinge on a prisoner's First Amendment rights as long as the regulations are "reasonably related to legitimate penological interests." See Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner standard applies to regulations concerning incoming mail received by prisoners from non-prisoners. See Thornburgh, 490 U.S. at 413. The inspection for contraband of non-legal mail does not violate a prisoner's constitutional rights. See Witherow, 52 F.3d at 265-66 (upholding inspection of outgoing mail); Smith v. Boyd, 945 F.2d 1041, 1043 (8th Cir. 1991) (upholding inspection of incoming mail); Gaines v. Lane, 790 F.2d 1299, 1304 (7th Cir. 1986) (upholding inspection of outgoing and incoming mail).

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