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Miskam v. McAllister

September 21, 2010

TRAVIS GEORGE MISKAM, PLAINTIFF,
v.
S. MCALLISTER, ET AL., DEFENDANTS.



The opinion of the court was delivered by: J. Michael Seabright United States District Judge

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

I. INTRODUCTION

On September 22, 2008, pro se prisoner Travis George Miskam ("Plaintiff") filed a civil rights action pursuant to 42 U.S.C. § 1983. In the court's February 10, 2009 Order Dismissing Complaint in Part, the court allowed Plaintiff's claims to proceed against Defendant D. Davey ("Captain Davey"), S. McAllister, N. Grannis, M. Keating, M.D. McDonald, T.R. Mossinger, R.L. Gower, R. Pimatel, K.J. Allen, and T. Felker ("Warden Felker") for confiscating or denying Plaintiff access to certain publications.

On July 14, 2010, Defendants filed a Motion for Summary Judgment ("Defendants' Motion"), asking the court to take judicial notice of the Complaint and arguing that summary judgment should be granted for various reasons. On August 16, 2010, Plaintiff filed an Opposition.*fn1 On September 8, 2010, Defendants filed a Reply. Based on the following, the court GRANTS in part and DENIES in part Defendants' Motion.

II. BACKGROUND

Plaintiff alleges claims based on the denial of two publications, the magazine Resistance and the comic book Satan's Sodomy Baby, and additional claims based on the denial or confiscation of various publications within High Desert State Prison ("HDSP"). The following allegations are in the Complaint and/or undisputed by the Plaintiff:*fn2

According to the Complaint, on September 18, 2007, while housed at HDSP, Plaintiff received an issue of the magazine Resistance in the mail. Pl.'s SUF No. 1. Captain Davey refused to provide Plaintiff with the magazine on the grounds that it allegedly violated Cal. Code Regs. tit. 15, § 3006(c)(1), because it contained racially inflammatory material. Id. In the first level response to Plaintiff's administrative grievance, attached as an exhibit to the Complaint, the prison asserted that Resistance is banned within HDSP due to "white supremacist, racially motivating content." Compl.at 20, 69. In the Complaint, Plaintiff disagrees with HDSP's characterization of the magazine as racially inflammatory, and characterizes Resistance as a "music magazine with band interviews as well as political and scientific commentary." Id. at 9. S. McAllister, M. Keating, M.D. McDonald, R. Pimatel, and N. Grannis ruled against Plaintiff during administrative appeals related to the denial of his magazine. Pl.'s SUF Nos. 3-11. On December 13, 2007, Plaintiff received a copy of the comic book Satan's Sodomy Baby in the mail. Id. at No. 12. Captain Davey again refused to provide Plaintiff with the comic book, this time on the basis that it violated Cal. Code Regs. tit. 15, § 3006(c)(1), (2), (15), and (17) because he claimed that it contained obscenity and nudity, specifically "frontal nudity, contact between the mouth and genitals, and depicts displays or describes bestiality, sadomasochism, or an excretory function." Pl.'s SUF No. 12. The first level response to Plaintiff's administrative appeals, attached as an exhibit to the Complaint, claims that a random selection of pages in the comic book revealed pages that "clearly exhibited frontal nudity" and "page after page of explicit images that depict underage illegal sexual acts." Compl.at 33-34. The front page of the comic book, also attached to the Complaint as an exhibit, warns the reader that "[t]his comic book contains material unsuitable for children . . . it is filled with vile morally reprehensible subject matter . . . that is quite possibly illegal in some states." Id. at 53. Plaintiff further alleges that S. McAllister, T.R. Mossinger, R.L. Gower, M.D. McDonald, and K.J. Allen ruled against him during administrative appeals related to the denial of the comic book. Pl.'s SUF Nos. 13-22.

Finally, Plaintiff alleges that Warden Felker instituted a policy banning certain publications at HSDP in violation of his First Amendment rights. Compl. at 14. The Complaint includes a list of publications banned within HDSP which include Resistance, The Art of War, Juxtapoz, The Art of Seduction, and 48 Laws of Power. Id. at 69. Plaintiff also claims that, pursuant to this policy, two of his art books were confiscated on an unspecified date by unnamed individuals. Id. at 14.

III. STANDARD OF REVIEW

Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). The burden initially lies with the moving party to show that there is no genuine issue of material fact. See Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the moving party carries its burden, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal quotation signals omitted).

"An issue is 'genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is 'material' only if it could affect the outcome of the suit under the governing law." In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587.

IV. DISCUSSION

Plaintiff's claims against Defendants include the following: (1) a claim against S. McAllister, N. Grannis, M. Keating, M.D. McDonald, T.R. Mossinger, R.L. Gower, R. Pimatel, and K.J. Allen ("Administrative Defendants") for their role in denying Plaintiff access to certain publications; (2) a claim against Captain Davey based on the refusal to provide Plaintiff with the magazine Resistance and the comic book Satan's Sodomy Baby; and (3) a claim against Warden Felker based on the ban on various publications within HDSP. Defendants ask the court to take judicial notice of the facts set forth in Plaintiff's Complaint, and argue that based on the Complaint, summary judgment is appropriate. Based on the following, the court DENIES Defendants' request for judicial notice, and GRANTS in part and DENIES in part Defendants' Motion for Summary Judgment. A. Defendants' Request for Judicial Notice

Defendants request that the court take judicial notice of Plaintiff's Complaint "[p]ursuant to Federal Rules of Evidence 201." Defs.' Mot. at 2. Defendants do not explain why it is appropriate for the court to take judicial notice of the ...


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