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Dunne v. Smith

March 31, 2010


The opinion of the court was delivered by: Honorable B. Lynn Winmill Chief U. S. District Judge



Chief U.S. District Judge Anthony W. Ishii has reassigned this Bivens action brought by a federal prisoner to the undersigned visiting judge. Currently pending is Defendants' Motion for Summary Judgment. (Docket No. 30). Having fully reviewed the record, the Court finds that the facts and legal arguments are adequately presented in the briefs and record. Accordingly, in the interest of avoiding further delay, and because the Court conclusively finds that the decisional process would not be significantly aided by oral argument, this matter shall be decided on the record before this Court without oral argument.*fn1


Plaintiff William Dunne is a federal prisoner who was incarcerated at the United States Penitentiary at Atwater, California (USP Atwater) from March 22, 2002 until he was transferred to another prison on August 11, 2006, where he currently remains. From January 19, 2006, until January 26, 2006, and again from April 3 to August 11 of that year, Dunne was in the Special Housing Unit (SHU) at USP Atwater. The SHU contains a mix of inmates taken out of the general prison population either on "administrative detention" status or, for punitive reasons, in "disciplinary segregation." Dunne was an administrative detention inmate.

On January 17, 2006, USP Atwater initiated a policy prohibiting inmates in SHU from possessing individual within-cell newspapers and magazines. The policy provides in pertinent part as follows:

"[N]ewspapers and magazines are no longer allowed to be possessed by inmates in the Special Housing Unit (SHU). Possession is prohibited as it presents a threat to security of the housing unit, and a health, fire, and housekeeping hazard.. All newspapers and magazines received will be retained/confiscated by SHU staff and handled according to policy. Inmates housed in SHU may read printed materials that will be retained in the SHU law library. The reading material will be rotated periodically by the Education Department.

Inmates may suspend subscriptions while they are housed in the SHU. Newspapers and magazines that are delivered to the institution for the inmate will be placed in the SHU Lieutenant's Office. The printed materials will be inventoried by SHU staff and presented to the inmate for signature. A.[confiscation form].will be completed for the newspapers and magazines received by mail. The OIC will ensure the property record or confiscation form is completed and the property, with the form, are placed in the SHU Lieutenants Office [sic].

The non-issued (or confiscated) newspaper and magazines will be retained in the inmate's property and held for 120 days. The inmate may also mail out or donate the printed materials." (Karge Decl. Attach. 5).

Defendants allege that this policy was implemented by prison officials because of on-going problems with newspapers and magazines in the SHU. In addition, in order to use the SHU law library inmates had to request access to it, and were limited to using it for one-hour periods. (Compl. Ex. 4). There is no indication in the record as to the number of times an inmate would be permitted to use the law library while in the SHU.

In his complaint, Dunne claims that prison officials violated his First and Fifth Amendment rights when they confiscated incoming publications in the absence of a reasonable relationship to a penological interest. Specifically, Dunne alleges that the four months in which he was held in the SHU he was not given any of the newspapers or magazines to which he had previously subscribed. He contends that despite his repeated requests for access to reading material, he was permitted to go only once to a small room that served as a makeshift law library. Although he admits he was permitted to stay twenty minutes longer than permitted by SHU Rules, he alleges that no newspapers or magazines were ever available. Moreover, he states that he was denied due process because he could not alternatively mail out or suspend his subscriptions while he was housed in the SHU.

Based on these allegations, Dunne sued Warden Smith, Associate Warden Avalos, and Captain J. Karge for violations of his First, Fifth, and Eighth Amendment rights.*fn2

Dunne alleges that Smith ordered the ban on newspapers and magazines in the SHU, that Avalos wrote the memorandum promulgating that policy, and that Karge implemented the policy. The Defendants filed a motion to dismiss wherein they requested dismissal based on lack of subject matter jurisdiction, failure to state a claim upon which relief may be granted, and on the ground of qualified immunity. The Court granted in part and denied in part the motion to dismiss. (See Mem. Decision & Order, Docket No. 27).

Specifically, the Court dismissed Dunne's claims against the Defendants in their official capacities for injunctive and declaratory relief, as well as his claim under the Eighth Amendment. However, the Court denied the motion insofar as Dunne stated a claim against the Defendants in their individual capacities for monetary damages under the First and Fifth Amendment, and denied the motion on grounds of qualified immunity, however, without prejudice. Defendants now bring a Motion for Summary Judgment, which Dunne has responded to, and the matter is now ripe for review.


Summary judgment is appropriate where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of summary judgment "is to isolate and dispose of factually unsupported claims...." Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment is "not a disfavored procedural shortcut," but is instead the "principal tool[ ] by which factually insufficient claims or defenses [can] be isolated and prevented from going to trial with the attendant unwarranted consumption of public and private resources." Id. at 327. The availability of summary judgment turns on whether there is a proper question for the judge or jury to resolve the parties' differing versions of the truth. Anderson v. Liberty Lobby, In.c. 477 U.S. 242, 248 (1986).

"[T]he mere existence of some alleged factual dispute between the parties [however] will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48. Only facts which are material-those which may affect the outcome of the case-are relevant. Id. at 248. And any dispute over a material fact must be "genuine"-that is, summary judgment will not lie if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.

The burden rests on the party seeking summary judgment to show the absence of a genuine issue of material fact. Celotex, 477 U.S. at 325; see also Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (holding same). To carry this burden, the moving party need not introduce any affirmative evidence (such as affidavits or deposition excerpts) but may simply point out the absence of evidence to support the nonmoving party's case. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 532 (9th Cir. 2000). The burden then shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does, in fact, exist. Anderson, 477 U.S. at 256.

Thus, this Court must determine whether Dunne has, "by affidavits or otherwise" as provided in Rule 56, "set forth specific facts showing... a genuine issue for trial." Rule 56(e). The evidence must be viewed in the light most favorable to Dunne, and the Court must not make credibility findings. Anderson, 477 255. Moreover, direct testimony of Dunne must be believed, however implausible. Leslie v. Grupo ICA, 198 F.3d 1152, 1159 (9th Cir. 1999); see also Adickes v. SH Kress & Co., 398 U.S. 144, 148-49 (1970) (holding that courts should view the evidence and any inferences that may be drawn from in the light most favorable to the non-moving party). The Court must also be "guided by the substantive evidentiary standards that apply to the case." Anderson, 477 U.S. at 255. However, the Court is not required to adopt unreasonable inferences from circumstantial evidence. McLaughlin v. Liu, 849 F.2d 1205, 1208 (9th Cir. 1988).

Although inferences from disputed facts must be drawn in Dunne's favor, deference must be accorded prison authorities' views with respect to matters of professional judgment. Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Deference, however, "does not mean accepting the prison officials' conclusions." Fontroy v. Beard, 2007 WL 1810690, at *3 (E.D. Pa. June 21, 2007); see also Casey v. Lewis, 4 F.3d 1516, 1535 (9th Cir. 1993) (citations omitted)(holding that "deference does not mean abdication"). Rather, there must be a basis for the officials' exercise of their judgment and the Court must determine if the defendants' conclusions are in fact supported by the evidence. Id.


This case concerns a prison inmate's First and Fifth Amendment rights. Only Dunne's First and Fifth Amendment claims currently remain, but because both claims are governed by the test announced in Turner, discussed below, Dunne's Fifth ...

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