United States District Court, N.D. California
June 14, 2004.
FREDERICK OWENS, Plaintiff,
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
IT IS SO ORDERED AND ADJUDGED. [EDITORS' NOTE: THIS PAGE CONTAINED "CERTIFICATE OF SERVICE".] ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
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
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
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 AND JURISDICTION
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.
LEGAL STANDARD FOR SUMMARY JUDGMENT
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).