The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge
Defendant moves for summary judgment on Plaintiffs' sole claim alleged under the First Amendment; specifically, Plaintiffs claim Defendant's denial of their request to distribute unsolicited copies of Plaintiffs' Crime, Justice & America ("CJA") publication to inmates at the Butte County Jail violates Plaintiffs' First Amendment right to communicate with inmates. Defendant argues Plaintiffs do not have a First Amendment right to distribute unsolicited copies of CJA to inmates, and contend even assuming arguendo that Plaintiffs have that right, Defendant's refusal to distribute unsolicited copies of CJA to inmates should be upheld because "it is reasonably related to legitimate penological interests," citing Turner v. Safley, 482 U.S. 78, 89 (1987).
"[A] fundamental rule of judicial restraint" is that "questions of a constitutional nature [are avoided] unless absolutely necessary to a decision of the case." U.S. v. Kaluna, 192 F.3d 1188, 1197 (9th Cir. 1999) (quoting Jean v. Nelson, 472 U.S. 846, 854 (1985); Burton v. United States, 196 U.S. 283, 295 (1905)). In Turner, the Supreme Court held "a prison regulation [that] impinges on . . . [First Amendment] rights . . . is valid if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89.
To guide courts in evaluating whether a challenged regulation is reasonably related to legitimate penological interests, Turner established the following four-part test:
(1) whether the regulation is rationally related to a legitimate and neutral governmental 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.
Morrison v. Hall, 261 F.3d 896, 901 (9th Cir. 2001) (quotation and citation omitted).
Defendant argues the first Turner factor weighs in his favor since his refusal to distribute unsolicited copies of CJA is rationally related to his legitimate and neutral interest in maintaining a secure and orderly jail. Captain Jerry Jones and Lieutenant Byran Flicker of the Butte County Jail each declare the Butte County Jail has a mail distribution policy that prohibits distribution of unsolicited commercial mail to inmates. They declare this mail policy limits the amount of paper to which inmates may have access, which thereby restricts inmates' ability to use paper to secret contraband and allows staff to conduct cell searches more efficiently; limits the amount of material inmates' may use to plug their toilets and flood their cells; and restricts inmates' ability to place paper over their windows and light fixtures, which prevents staff from conducting required welfare checks efficiently. They further declare this mail policy "ensures that staff have the ability to adequately search every piece of [incoming] mail . . . [to] minimizes the amount of contraband that enters the facility." (Jones Decl. ¶ 30; Flicker Decl. ¶ 11.)
Plaintiffs counter Defendant's refusal to distribute CJA is an arbitrary means of maintaining a secure and orderly jail, relying on Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005). In Lehman, the Ninth Circuit found "a ban on non-subscription [i.e., free] bulk mail and catalogs" violated the First Amendment. Id. at 699. The Ninth Circuit stated a ban "based on the postage rate at which the mail was sent" or the fact that "the inmates . . . did not pay for the mail that was sent to them" was an arbitrary means of "reduc[ing] the volume of mail that may contain contraband [because] it is far more likely that contraband would be contained in first class mail than in bulk mail." Id. at 700. The Ninth Circuit also stated this ban was an arbitrary means of "increas[ing] the efficiency of cell searches" since the prison "already regulate[d] the quantity of possessions that prisoners may have in their cells." Id.
Defendant rejoins Lehman is distinguishable since "every piece of mail sent by [the publisher in Lehman was] sent as a result of a request by the recipient" Id. at 700. The Ninth Circuit stated in Lehman "the fact that a request was made by the recipient . . . is important" in determining whether the sender's First Amendment right to communicate with the recipient has been violated because "[t]he sender's interest in communicating the ideas in the publication corresponds to the recipient's interest in reading what the sender has to say." Id. at 700-01 (internal quotation and citation omitted). Therefore, Lehman is distinguishable since Plaintiffs seek to send CJA to inmates "regardless of whether [inmates] requested the publication." Id. at 700.
Further Captain Jones and Lieutenant Flicker aver the prohibition of unsolicited commercial mail is not arbitrary because inmates would especially use unsolicited copies of CJA for improper purposes such as secreting contraband, plugging their toilets, and covering windows and light fixtures, because "unlike personal mail, or attorney-client mail, inmates do not have a connection to unsolicited commercial mail, and they are less concerned that the unsolicited publications would be damaged, lost, or seized." (Flicker Decl. ¶¶ 22, 24; Jones Decl. ¶ 36.) They further aver that although there are regulations restricting the quantity of each inmate's possessions, these regulations are insufficient because inmates still "routinely attempt [to use their possessions] to secret contraband, start fires, plug their toilets, and cover their light and windows." (Jones Decl. ¶ 36; see also Flicker Decl. ¶ 22.) Accordingly, there is a rational relationship between the prohibition of unsolicited commercial mail and Defendant's interest in maintaining jail security; and the first Turner factor weighs in Defendant's favor.
Defendant also submits evidence on the second Turner factor demonstrating Plaintiffs have an alternative avenue to distribute CJA to inmates; specifically, Captain Jones avers "inmates can . . . request and receive publications . . . ." (Jones Decl. ¶ 9.) Plaintiffs counter this alternative could be satisfied, relying on Plaintiff Ray Hrdlicka's averment that Plaintiffs may "make public records requests for copies of [the Butte County Jail's] full inmate roster" and use this information to make "direct mailings" of CJA to each inmate. (Hrdlicka Decl. ¶¶ 21, 23.) Plaintiffs argue if they follow this procedure, Defendant would have "no apparent way to distinguish" solicited copies of CJA from unsolicited copies of CJA. (Opp'n at 31:12-17.) Plaintiffs appear correct, but their argument does not negate Defendant's position that Plaintiffs have an alternative. Accordingly, the second Turner factor also weighs in Defendant's favor.
Defendant also submits evidence on the third Turner factor. Captain Jones and Lieutenant Flicker each declare that distribution of unsolicited commercial mail would create an additional burden on the inadequate resources already existing at the Butte County Jail. Captain Jones declares for the past ten years, Defendant has experienced ongoing difficulties in maintaining adequate staffing, and that as a result of inadequate staffing, several programs, such as the inmate road crew, the inmate hog farm, and several vocational programs, had to be discontinued. Lieutenant Flicker declares jail staff currently needs to devote "approximately 6 hours a day to sort, search, transport and distribute the mail." (Flicker Decl. ¶ 10.) Captain Jones further declares there have already been complaints at the Butte County Jail about "the timely distribution of incoming legal and personal mail." (Jones Decl. ¶ 23.)
Captain Jones also declares Defendant's "prohibition against unsolicited commercial mail is designed to limit the amount of mail that enters the facility, which in turn limits the amount of time and resources that must be expended to search and distribute incoming mail. . . . In addition, limiting the amount of staff time that is spent processing unsolicited commercial mail allows [Jones] and management staff more flexibility in assigning staff to perform other duties on an immediate and ongoing basis." (Jones Decl. ¶ 30.) He also declares "requiring [Defendant] to dedicate staff time to processing unsolicited publications would greatly interfere with staff's ability to process other mail, and, depending on the staffing levels and inmate population at any given time, would likely interfere with the provision of other services as well. . . ." (Jones Decl. ¶ 31; see also Flicker Decl. ¶¶ 11, 12.)
Plaintiffs counter distribution of CJA would not burden jail resources, relying on Hrdlicka's averment that Plaintiffs intend to make weekly distributions of CJA to only ten percent of the inmates in the Butte County Jail. (Hrdlicka Decl. ¶¶ 17, 19, 20, 23, 31.) Based on the list of inmates in the Butte County Jail provided by a Deputy County Counsel in August 2004, which showed approximately ...