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Perez v. Peters

United States District Court, D. Oregon

May 27, 2015

ERNIE JUNIOR PEREZ, Plaintiff,
v.
COLETTE PETERS, MARK NOOTH, RANDY GEER, CLEMENTS, SCHULTZ, EVANSK, SHUPEC and JOHN (or JANE) DOE, Defendants.

ORDER

PAUL PAPAK, Magistrate Judge.

Plaintiff, a prisoner in the custody of the Oregon Department of Corrections and currently incarcerated at the Snake River Correctional Institution ("SRCI"), is proceeding pro se and in forma pauperis in this prisoner civil rights action. Now pending before the Court are the following motions: (1) Defendants' partial Motion to Dismiss facial claims and claims against defendants Peters and Nooth; (2) Plaintiff's Motions to Compel Discovery; (3) Plaintiff's "Motion for Sufficiency of an Objection"; (4) Plaintiffs Motions for Sanctions; (5) Plaintiff's Second Motion for Appointment of a Court-Appointed Expert Witness; (6) Plaintiff's Motion to Supplement Complaint; and (7) Defendants' Motion for Extension of Time of the deadline for completing discovery and filing dispositive motions.

All parties have consented to the jurisdiction of a United States Magistrate Judge to enter final orders in this case [17]. See 28 U.S.C. ยง 636(c) and Fed.R.Civ.P. 73. Having carefully reviewed the parties' submissions and for the reasons that follow, the Court grants in part defendants' Motion and dismisses with prejudice plaintiff's facial challenges to Oregon Administrative Rules ("OARS"): XXX-XXX-XXXX(1), XXX-XXX-XXXX (20) & (21), XXX-XXX-XXXX (2), XXX-XXX-XXXX (5) (b), [1] XXX-XXX-XXXX (6) (a) (A) and XXX-XXX-XXXX (3) (d) & (e). The Court denies defendants' motion as to OAR 291-131-0025(11)(b)(D) and as to defendants Peters and Nooth. The Court grants in part and denies in part plaintiff's Motions to Compel, "Motion for Sufficiency of Objection", Motions for Sanctions, Second Motion for Court-Appointed Expert Witness and Motion for Leave to File a Supplemental Complaint. Finally, the Court grants defendants' Motion for Extension of Time to complete discovery and file dispositive motions until June 15, 2015,

BACKGROUND

According to plaintiff, he received five "sexually explicit mail violations" between August 29, 2013 and October 3, 2013 for letters sent to him by a Ms. Aston. In addition, he received three "publication violation notices" in September 2013 for books titled: "Girls on Top", "Letters to Penthouse XV" and "Letters to Penthouse XII". In his Amended Complaint, Plaintiff raises several facial challenges to certain OARs that formed the basis for his violation notices. Plaintiff claims those rules: (1) impermissibly restrict the content of some outgoing mail; (2) fail to distinguish between written and pictorial content; (3) impermissibly restrict certain pictorial content; (4) impermissibly restrict certain written content of incoming mail; (5) impermissibly regulate clippings; and (6) give insufficient notice of administrative review procedures and allow for deficient recommended decisions and final written orders.

With regard to defendant Peters, plaintiff asserts she is the Director of the Oregon Department of Corrections ("ODOC") and is authorized to create and enforce rules bearing on policies and procedures for the "sending, receipt and processing of inmate mail in [ODOC's] institutions." With regard to defendant Nooth, plaintiff asserts he is the Superintendent of SRCI and is responsible for appointing the official who oversees and conducts administrative reviews of inmate mail violations. In addition, plaintiff contends Nooth is responsible for enforcement of the Oregon Administrative Rules, including those bearing on the handling of inmate mail. Plaintiff also alleges both Peters and Nooth promote and enforce policies and customs that consistently fail to provide adequate notice of mail violations and/or adequate substantive written responses after administrative review hearings.

DISCUSSION

I. Defendants' Motion to Dismiss Plaintiff's Facial Claims and Claims Against Defendants Peters and Nooth

A. Standard of Law Applicable to Rule 12(b) (6) Motions

Federal Rule of Civil Procedure 8(a)(2) requires "a short plain statement of the claim showing that the pleader is entitled to relief, " in order to "give the defendant fair notice of what the... claim is and the grounds upon which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotation marks omitted). A defendant may move to dismiss a complaint if that complaint fails to state a claim upon which relief may be granted. Fed.R.Civ. P. 12(b) (6). While a complaint attacked by Rule 12(b) (6) motion to dismiss "does not need detailed factual allegations, " it must set forth "more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Id.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw a reasonable inference that the defendant is liable for the misconduct alleged. Id. at 556. The plausibility standard is not akin to a "probability requirement, " but it asks for more than a sheer possibility that a defendant acted unlawfully. Id. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of entitlement to relief.'" Id. at 557,

The Supreme Court has identified two "working principles" that underlie this dismissal standard. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions." Id. "Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. at 678-79. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id. at 679. "Determining whether a complaint states a plausible claim for relief will... be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id.

When a court is considering a motion to dismiss under Rule 12(b) (6), it must "consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice.'" Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007)(per curiam)).

B. Analysis

1. Facial Challenge to Identified OARs

a. OAR 291-131-0035(1) and 291-131-0010 (20) & (21)

To the extent plaintiff challenges the constitutionality of OAR 291-131-0035(1), which prohibits prisoners from receiving certain material containing portrayals of certain actual or simulated sexual acts or behaviors, defendants' argument is well taken. The Ninth Circuit has already considered and rejected the argument that this regulation is facially unconstitutional. Bahrampour v. Lampert, 356 P.3d 969, 973-76 (9th Cir. 2004). Similarly, this District Court in Chandler v. Williams, 2010 WL 6004373 (D.Or. 2010), determined that Bahrampour concerned itself with "portrayals" of sexual acts and behaviors and did not restrict its analysis solely to images. Accordingly, this Court also rejects plaintiff's facial challenges to OAR 291-131-0010 (20)(regulation defining "personal photograph") and OAR 291-131-0010 (21)(regulation defining "portrayal"). Taken in the context of the facial challenge to OAR 291-131-0035(1), these regulations merely define terms in an already deemed constitutional rule.

b. OAR 291-131-0015(2)

Under the First Amendment, "a law may be invalidated as overbroad if a substantial number of its applications are unconstitutional, judged in relation to the statute's plainly legitimate sweep." United States v. Stevens, 559 U.S. 460 (2010)(internal quotations omitted). A plaintiff challenging a law on this ground "need not necessarily introduce admissible evidence of overbreadth, but generally must at least describe the instances of arguable overbreadth of the contested law." Comite de Jornaleros de Redondo Beach v. City of Redondo Beach, 657 F.3d 936, 944 (9th Cir. 2011)(internal quotations omitted). Plaintiff must show that the regulation's overbreadth is substantial, "not only in an absolute sense, but also relative to the [regulation's] plainly legitimate sweep, " to succeed on a facial challenge. United States v. Williams, 553 U.S. 285, 292 (2008).

OAR 291-131-0015(2) provides that "[i]nmates shall not send, receive, transfer, or possess mail which violates the provisions of these rules." This "catchall" rule essentially prohibits inmates from handling mail deemed violative of the other mail rules. As such, the Court concludes plaintiff cannot demonstrate that a substantial number of applications of this regulation are or could be deemed unconstitutional. The Court rejects plaintiff's facial challenge to this rule.

c. OAR 291-131-0037 (6) (a) (A) and OAR 291-131-0050 (3) (d), (e)

By his own arguments, it is apparent plaintiff seeks to raise as applied challenges to these rules. For example, OAR 291-131-0037 (6) (a) (A) deals with notification to the sender and intended inmate recipient when mail from a non-inmate sender is rejected. An aspect of this rule provides that:

[t]he rejected portion(s) of the mail should be photocopied and retained pending any administrative review. If no administrative review is requested, the photocopy shall ...

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