The opinion of the court was delivered by: Craig M. Kellison United Statesmagistrate Judge
Plaintiff is a state prisoner proceeding pro se and in forma pauperis with an action under 42 U.S.C. § 1983. He alleges that defendant Russell's confiscation of a photocopy of Blood in My Eye, a book by George L. Jackson, violated his rights under the First Amendment and the Due Process and Equal Protection Clauses of the Fourteenth Amendment. He has also sued defendants Packard, Hamilton and Pimental, each of whom reviewed his inmate appeals at different stages of the administrative grievance process. Defendants have moved for summary judgment. The parties have consented to the magistrate judge's jurisdiction. 28 U.S.C. § 636(c).
Much of the factual background of this case is not disputed. However, there is considerable dispute over whether Blood in My Eye was prohibited material at the time defendant confiscated it.
On August 14, 2007, defendant Russell, a correctional officer at Folsom State Prison ("Folsom"), conducted a search of plaintiff's cell. Defendants' Statement of Undisputed Facts 1 (DUF) (Docket No. 21-1). Russell found and confiscated a photocopy of Blood in My Eye, a published collection of correspondence by George L. Jackson. Id. Jackson was a California state prisoner and founding member of a prison gang known as the Black Guerilla Family (BGF). DUF 3. Jackson was involved in the murders of prison guards at the California Training Facility in Soledad and at San Quentin State Prison. DUF 2. He was fatally shot during an attempt to escape from San Quentin in 1971. DUF 4. According to defendants, "Jackson is considered a martyr by the BGF and... is referenced in multiple BGF materials such as the Gang's oath and constitution." DUF 5. Plaintiff does not dispute that characterization of Jackson's legacy in the present-day BGF. See Plaintiff's Response to DUF 5 (Docket No. 24).
Russell completed a cell search report, wherein he recorded his confiscation of the book as "contraband." Plaintiff's Opposition, Ex. A at 5 (Docket No. 25).*fn1 The next day, he filed a memorandum in plaintiff's C-file, documenting his confiscation of the book and stating that "[t]his document should count as one validation source point (written materials) to Hawkins' membership and/or association with the prison gang known as BGF." Motion for Summary Judgment, Ex. A (Docket No. 21-3). An inmate must have at least three gang validation "points" before he can be validated by the California Department of Corrections and Rehabilitation (CDCR) as a gang member or gang associate. Cal. Admin. Code tit. 15 § 3378(c)(3), (4).*fn2 In May 2009, plaintiff was validated as a member of BGF based on five validation points, one of which was his possession of Blood in My Eye. Opposition, Ex. R.
Plaintiff submits that he was never informed before August 14, 2007, that Blood in My Eye was contraband and that possessing it could have negative consequences under prison regulations. Plaintiff's Separate Statement of Disputed Facts (PDF) 1 (Docket No. 26). In his complaint, plaintiff states that he first received the photocopy of Blood in My Eye from his mother through the mail in 2003, when he was incarcerated at Lancaster State Prison. Complaint, ¶ 13. He points out that all incoming mail to inmates is opened and inspected for contraband before being delivered. Id. at ¶ 18. He also states that as a result of regular cell searches, Lancaster prison staff were aware of his possession of the book and never confiscated it or informed him that it was contraband and could be used to validate him as a gang member. Id. at ¶ 21. He was later transferred to Donovan State Prison, where his possessions were searched again. Id. at ¶ 26. Donovan officials again released the book to him after the search. Id. at ¶ 27.
Plaintiff states that when he arrived at Folsom in December 2006, officials searched his personal property, which included Blood in My Eye, and returned his copy of the book to him. Id. at ¶ 33. He also states that thereafter his cell at Folsom was "routinely searched by [correctional officers], who as a result of searching plaintiff's cell were aware that plaintiff was in possession of the book 'Blood in My Eye,' and never informed plaintiff that the book was disallowed and contraband and... would be used towards validating him as a member or associate of the BGF." Id. at ¶ 36. Plaintiff alleges that defendant Russell was not assigned to his tier but "has a history of searching cells not assigned to his tier (especially the cells of African-American inmates)." Id. at ¶ 39.
Defendants do not dispute plaintiff's account that he possessed the book for years without warning or penalty by officials at other prisons. Moreover, and more pertinently to this case, they do not dispute that prison officials at Folsom knew he had the book as soon as he arrived in December 2006 and throughout the months before defendant Russell confiscated it on August 14, 2007.
B. Classification of Blood in My Eye at the time of confiscation In his sworn declaration submitted in support of summary judgment, defendant Russell states:
At the time I confiscated Mr. Hawkins's copy of... Blood in
My Eye, it was my understanding, based on my discussions with the prison's Institutional Gang Investigators, that inmates were prohibited from possessing the book because it had been determined to be training material for the [BGF]. Therefore, my confiscation of Hawkins's book was an attempt to eliminate threats to the prison and staff and its inmates and to maintain prison safety.
It is and was my understanding, based on my discussions with the prison's Institutional Gang Investigators, that in October 2007, the prison could restrict materials such as Blood in My Eye from the inmates, even though the California Department of Corrections and Rehabilitation has [sic] not previously and specifically identified a specific item to be restricted from its inmates.
Declaration of S. Russell, ¶¶ 2-3 (Docket No. 21-9). Russell's affidavit contains somewhat contradictory statements. He says that "[a]t the time" he confiscated the book, it was his "understanding" that inmates were prohibited from possessing it because it was considered gang training material. However, he dates his "understanding" that the prison could restrict materials ...