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William D. Dunne v. D. Smith

March 31, 2011


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


Currently pending in this Bivens action is Defendants' Supplemental Motion for Summary Judgment. (Dkts. 44, 45.) The parties have adequately stated the facts and the law in their briefing, and the Court will resolve these matters on the parties' briefing and the written record without oral argument. For the reasons that follow, Defendants' Motion will be granted, and this case will be dismissed.


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. (Dkt. 1, Complaint, pp. 3-4, 22.) Dunne was in the Special Housing Unit (the SHU) at USP Atwater from January 19, 2006, until January 26, 2006, and again from April 3 to August 11 of that year. (Dkt. 1, pp. 6-7, 22-23.) Dunne claims he was placed in the SHU for administrative rather than punitive reasons. (Dkt. 1, p. 22.)

Before Dunne was transferred to the SHU, prison officials had promulgated a policy that banned all newspapers and magazines from SHU cells. (Dkt. 1, pp. 7-8.) This policy was implemented to address fire, sanitation, and safety concerns. (Dkt. 1, Ex. 2-3.) Although inmates were forbidden from possessing newspapers and magazines in their cells, they could request access to a small room that functioned as a law library, where they had access to assorted reading material that was to be rotated periodically by the Education Department at the prison. (Dkt. 30-4.)

On January 16, 2007, Plaintiff filed a Complaint in the United States District Court for the Eastern District of California, alleging that he was not given any of the newspapers or magazines to which he had previously subscribed during the approximately four months that he was held in the SHU. (Dkt. 1, pp. 22-23.) In his Complaint, he further contended that despite his "repeated requests," he was permitted to go only once to the makeshift law library, and no newspapers or magazines were available to him.*fn1 (Dkt. 1, pp. 25-26.)

Based on these allegations, Dunne has named, as Defendants, the Warden of USP Atwater at the time, Dennis Smith; the Associate Warden, Belinda Avalos; and the Chief of Security, Captain J. Karge. (Dkt. 1.) Dunne claims that these Defendants violated his First, Fifth, and Eighth Amendment rights by creating and implementing the ban on possession of newspapers and magazines in the SHU. In particular, he asserts that Warden Smith ordered the policy, Avalos wrote the memorandum promulgating that policy, and Karge implemented it.

After the case was reassigned to the undersigned District Judge, the Court issued a Memorandum Decision and Order granting in part and denying in part Defendants' Motion to Dismiss. (Dkt. 27, March 23, 2009 Memorandum Decision and Order.) In relevant part, the Court dismissed Dunne's claims against Defendants in their official capacities for injunctive and declaratory relief, as well as his claim of cruel and unusual punishment under the Eighth Amendment. (Dkt. 27, pp. 4-6.) But the Court concluded that the Complaint would not be dismissed in its entirety because Dunne had stated a claim for relief against Defendants in their individual capacities for monetary damages under the First and Fifth Amendments. (Dkt. 27, p. 20.) At that early stage in the case, the Court found that Defendants had not yet come forward with evidence showing a reasonable relationship between the in-cell ban on newspapers and magazines and the asserted interests in security, sanitation, and safety. (Dkt. 27, p. 11.)

Later, Defendants put flesh on the bones of their asserted rationale for the policy. In support of their Motion for Summary Judgment, the presented evidence that inmates in the SHU had used newspapers and magazines in the recent past to set fires, make weapons and body armor, cover windows, and cause sanitation issues. (Dkt. 30-3, 30-4.) Based on this evidence, the Court upheld the ban on newspapers and magazines in SHU cells as having a rational relationship to legitimate penological interests. (Dkt. 35, March 31, 2010 Memorandum Decision and Order, pp. 8-14.) The Court also determined that the prison's policy allowed for an alternative means for inmates to exercise their First Amendment rights by requesting access to reading material in the law library. (Dkt. 35, pp. 14-16.) The Court ultimately denied the Motion, however, after finding that there was a disputed issue of material fact as to whether Dunne had actually received the alternative access contemplated by the policy during the time that he was in the SHU. (Dkt. 35, p. 18.)

The Court thereafter referred the case to a telephonic medication conference with Magistrate Judge Larry M. Boyle. (Dkt. 35, p. 23.) The parties did not settle the case, but the parties agreed to reopen the deadlines for filing another round of dispositive motions and/or motions to amend the pleadings. (Dkt. 40.) The Court granted that request and set a new deadline for the filing of motions. (Dkt. 41.)

Defendants have now submitted a Supplemental Motion for Summary Judgment, to which Dunne has responded, and the Court is prepared to rule on these matters.*fn2


Summary judgment is appropriate where a party can show that, as to any claim or defense, "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(1)(a) . Summary judgment is 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." Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986).

"[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). Material facts are those that may affect the outcome of the case. See id. at 248.

The moving party is entitled to summary judgment if that party shows that each issue of material fact is not or cannot be disputed. To show the material facts are not in dispute, a party may cite to particular parts of materials in the record, or show that the materials cited do not establish the presence of a genuine dispute, or that the adverse party is unable to produce admissible evidence to support the fact. Fed. R. Civ. P. 56(c)(1)(A)&(B); see T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex, 477 ...

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