Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, United States District Judge, Presiding D.C. No. 2:08-cv-00343-GEB-EFB ; Appeal from the United States District Court for the Eastern District of California Frank C. Damrell, Senior United States District Judge, PresidingD.C. No. 2:08-cv-00394-FCD-EFB
The opinion of the court was delivered by: W. Fletcher, Circuit Judge:
Argued and Submitted May 13, 2010-San Francisco, California
Before: Stephen Reinhardt, William A. Fletcher and N. Randy Smith, Circuit Judges.
Opinion by Judge William A. Fletcher;
Dissent by Judge N.R. Smith
Plaintiffs, Ray Hrdlicka and his publication Crime, Justice & America ("CJA"), brought two suits claiming that their First Amendment rights are being violated by the mail policies at two county jails in California that refuse to distribute unsolicited copies of CJA to inmates. The district courts in each case granted summary judgment to defendants after applying the four-factor test of Turner v. Safley, 482 U.S. 78 (1987).
In these related appeals, we conclude that questions of material fact preclude summary judgment to defendants. On this record, we cannot hold as a matter of law under Turner that defendants have sufficiently justified their refusal to distribute unsolicited copies of CJA to jail inmates. We therefore reverse and remand to the respective district courts.
Ray Hrdlicka, a former bail bondsman, began publishing CJA in 2002. CJA addresses criminal justice topics relevant to jail inmates. One recent issue of the publication included, for example, a section describing the steps between a felony arrest and conviction, an article on firearms enhancements to sentences, and a page of humor. Approximately three-fourths of each publication contains such content. The remainder contains advertisements for bail bond agents and lawyers. CJA attracts advertisers by promising to get their message in front of thousands of jail inmates who are in immediate need of their services. Since 2002, CJA has published 14 editions and over 1 million copies. CJA is currently distributed in jails in more than 60 counties in 13 states, including 32 county jails in California.
The Principal Librarian for the California Department of Corrections has recommended CJA as an acceptable donation to the California Department of Corrections Law Libraries. Fortune Small Business described CJA as a "surprisingly professional-looking 40-page upstart quarterly with articles written by lawyers and other criminal-justice-system professionals and spotlighting issues most glossies prefer to avoid." The record contains over 100 letters of appreciation from inmates who have found the publication valuable.
CJA does not rely on subscriptions or requests for distribution. Instead, CJA delivers unsolicited magazines to inmates through one of two methods. If a jail agrees to accept general distribution, CJA delivers weekly supplies of magazines that jail staff then leave in common areas of the jail. If a jail declines to accept general distribution, CJA mails individually addressed issues directly to some inmates after obtaining inmate roster information. Under either method, CJA is typically delivered weekly at a ratio of about one copy for every ten inmates.
In September 2003, Plaintiffs contacted the Sacramento County Sheriff's Office to inquire about distributing CJA to inmates in the jail in Sacramento County, California. Captain Scott Jones initially responded that individually addressed copies of CJA could be delivered to jail inmates, but that the jail would not facilitate general distribution. Plaintiffs made several requests for electronic copies of the inmate roster. These requests were denied, but Captain Jones informed Plaintiffs that a daily list of inmates was available in the jail lobby. Using that list, in December 2004 CJA began mailing individually addressed unsolicited copies to inmates at a ratio of one copy for every ten inmates.
In May 2005, Captain Jones informed Plaintiffs that the jail would no longer permit delivery of unsolicited copies of CJA. Captain Jones cited the jail's Operations Order, which prohibits the distribution of unsolicited publications regardless of content or postage rate. According to Captain Jones, the jail has never refused to deliver CJA to an inmate who requested it. The jail has a separate policy limiting the personal property an inmate can keep in his cell to the amount that can be held in two copy-paper boxes. An inmate may keep up to one newspaper, five periodicals, and five soft-covered books in his cell at any given time.
On February 5, 2008, Plaintiffs filed a § 1983 suit for injunctive relief against Sacramento County Sheriff John McGinness, alleging that the jail's refusal to distribute unsolicited copies of CJA violates the First Amendment. The district court granted summary judgment to Sheriff McGinness under Turner.
Plaintiffs timely appealed.
In August 2004, Plaintiffs contacted the Butte County Sheriff's Department to inquire about distributing CJA to inmates in the jail in Butte County, California. Plaintiffs proposed a general distribution of CJA. Alternatively, they requested a list of inmates so that Plaintiffs could mail individually addressed issues of CJA. Plaintiffs proposed weekly distribution of one issue for every ten inmates. Sheriff's Department officials informed Plaintiffs that the jail would not allow delivery of unsolicited copies of CJA to inmates through either method. They explained that the jail's mail policy prohibits distribution of unsolicited commercial mail through either general or individually addressed delivery.
The Butte County jail's mail policy is contained in a Departmental Order. That order was issued on September 23, 2004, one month after CJA contacted the Sheriff's Department. The order prohibits the distribution of all unsolicited commercial mail to inmates, regardless of content or postage rate. The Butte County jail has policies limiting the amount of written materials inmates can keep in their cells and prohibiting inmates from leaving items in common areas.
On February 5, 2008, Plaintiffs filed a § 1983 suit for injunctive relief against Butte County Sheriff Perry Reniff, alleging that the jail's refusal to distribute unsolicited copies of CJA violates the First Amendment. The court granted summary judgment to Sheriff Reniff under Turner.
Plaintiffs timely appealed.
We review de novo a district court's order granting summary judgment. Bamonte v. City of Mesa, 598 F.3d 1217, 1220 (9th Cir. 2010). Viewing the evidence in the light most favorable to CJA and Hrdlicka, we must determine whether there are any genuine issues of material fact and whether ...