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Perez v. Peters

United States District Court, D. Oregon

February 7, 2017

ERNIE JUNIOR PEREZ, Plaintiff,
v.
COLETTE PETERS, MARK NOOTH, RANDY GEER, MICHAEL CLEMENTS, KALLEE EVANS, CHRIS SHUPE, J. DOE, and LORI SCHULTZ, Defendants.

          OPINION AND ORDER

          HONORABLE PAUL PAPAK UNITED STATES DISTRICT JUDGE.

         Plaintiff pro se Ernie Junior Perez, an incarcerated prisoner, filed this action in forma pauperis against defendants Colette Peters, Mark Nooth, Randy Geer, Michael Clements, Kallee Evans, Chris Shupe, John or Jane Doe, and Lori Schultz on March 6, 2014. Perez amended his complaint effective July 31, 2014, and added Kelly Raths as an additional defendant effective January 5, 2016. Perez amended his complaint a second time effective January 22, 2016.

         By and through his second amended complaint, Perez alleges the defendants' liability pursuant to 42 U.S.C. § 1983 for the violation of his free speech rights under the First Amendment and, in a separately pled claim, under Section 1983 for the violation of his due process rights under the Fourteenth Amendment. By and through his First Amendment claim, Perez raises both facial and as-applied challenges to various specifically identified regulations promulgated by the Oregon Department of Corrections ("ODOC"), challenges defendants' conduct in rejecting certain mail and certain publications sent to him at the institution where he is incarcerated, and challenges certain policies related to those rejections. By and through his Fourteenth Amendment claim, Perez raises both facial and as-applied challenges to the adequacy of the procedures made available to him for seeking administrative review of mail and publication rejections, and in addition challenges the constitutionality of certain policies related to those procedures. Perez seeks injunctive relief to prevent further such deprivations of rights and prays for in excess of $540 in monetary damages.

         Now before the court are Perez' motion (#151) for summary judgment, defendants' cross-motion (#160) for summary judgment, and Perez' motion (#176) for imposition of sanctions pursuant to Federal Civil Procedure Rule 11(b). I have considered the motions and all of the pleadings and papers on file. For the reasons set forth below, Perez' motion (#151) for summary judgment is granted in part as to his Fourteenth Amendment claim and otherwise denied in part as discussed below, defendants' motion (#160) for summary judgment is denied in part as to Perez' Fourteenth Amendment claim and otherwise granted as discussed below, and Perez' motion (#176) for imposition of sanctions is denied in its entirety.

         LEGAL STANDARD

         I. Cross-Motions for Summary Judgment

         Summary judgment is appropriate "if the movant shows that 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(a). A party espousing the position that a material fact either "cannot be or is genuinely disputed" must support that position either by citation to specific evidence of record "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials, " by showing that the evidence of record does not establish either the presence or absence of such a dispute, or by showing that an opposing party is unable to produce sufficient admissible evidence to establish the presence or absence of such a dispute. Fed.R.Civ.P. 56(c). The substantive law governing a claim or defense provides the metric for determining whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).

         Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert, denied, 116. S.Ct. 1261 (1996). In evaluating a motion for summaiy judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence, See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000).

         On cross-motions for summary judgment, the court must consider each motion separately to determine whether either party has met its burden with the facts construed in the light most favorable to the other. See Fed. R. Civ. P. 56; see also, e.g., Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). A court may not grant summary judgment where the court finds unresolved issues of material fact, even where the parties allege the absence of any material disputed facts. See Id.

         II. Sanctions Pursuant to Federal Civil Procedure Rule 11(c)

         Federal Civil Procedure Rule 11(c)(1) provides that the federal courts may impose appropriate sanctions on any attorney or party who, "after notice and an opportunity to respond, " violates any of the provisions of Federal Civil Procedure Rule 11(b). Fed.R.Civ.P. 11(c)(1). A party moving for sanctions under Federal Civil Procedure Rule 11(c) must serve the motion on the party against whom sanctions are sought, and then may file the motion with the court any time following 21 days after service if the allegedly noncompliant filing is not withdrawn or otherwise appropriately corrected within that period. See Fed. R. Civ. P. 11(c)(2), Any sanction imposed pursuant to Rule 11(c) "must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated." Fed. R. Civ, P. 11(c)(4). Attorney fees may be awarded as a sanction under Rule 11(c) "if imposed on motion and warranted for effective deterrence, " but must be limited to the fees and other expenses "directly resulting from the violation." Id. Rule 11(b) provides as follows:

By presenting to the court a pleading, written motion, or other paper - whether by signing, filing, submitting, or later advocating it - an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:
(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;
(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfnvolous argument for extending, modifying, or reversing existing law or for establishing new law;
(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and
(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b).

         The courts have discretion to award a party prevailing on a Rule 11(c) motion its reasonable expenses, including attorney fees, incurred in connection with the motion, where such an award would be "wan-anted." Fed.R.Civ.P. 11(c)(2). The burden of establishing that sanctions are justified is borne by the party moving for imposition of sanctions. See Tom Growney Equip v. Shelley Irrigation Dev., 834 F.2d 833, 837 (9th Cir. 1987).

         MATERIAL FACTS

         I. The Parties

         Plaintiff Perez is, and at all material times was, an incarcerated prisoner of ODOC housed at the Snake River Correctional Institution ("SRCi"). Defendant Peters is, and at all material times was, the director of ODOC, Defendant Nooth is, and at all material times was, the superintendent of SRCI. Defendant Geer was at all material times until approximately March 2014 the central mail administrator at SRCI. Defendant Clements is, and at all material times was, a correctional lieutenant at SRCI charged with review of challenged institutional decisions to withhold mail from inmates. Defendant Schultz is, and at all material times was, a clerical employee at SRCI charged with responding to inmate kytes and with review of challenged institutional decisions to withhold publications from inmates. Defendant Evans is, and at all material times was, a clerical employee at SRCI charged with inspecting incoming inmate mail. Defendant Shupe is, and at all material times was, a clerical employee at SRCI charged with inspecting publications sent .to inmates through the mail. Defendant Raths is ODOC's Administrator of the Office of Inmate and Community Services, and is responsible for maintaining the ODOC Publication Violation List (the "PVL") (discussed below).

         II. The Parties' Dispute[1]

         Perez' First Amendment claim arises out of defendants' conduct in rejecting his incoming mail on five occasions and in rejecting publications sent to him through the mail on three occasions, in promulgating and enforcing certain administrative regulations, and/or in failing to make the ODOC Publication Violation List readily available to him and to his correspondents. Perez' Fourteenth Amendment claim arises out of the administrative process he received in connection with his requests for administrative review of the eight rejections and/or out of defendants' purported failure to make the ODOC PVL readily available to him and to his correspondents.

         A. Rejected Mail and Related Administrative Process

         On August 29, September 5, 10, and 17, and October 2, 2013, defendant Evans inspected incoming mail to plaintiff Perez from his correspondent Jane Aston, See Second Amended Complaint, Exh.. 1. On each of those occasions, Evans rejected the mail on the grounds that it contained "[s]exually explicit" content and that "[s]exually explicit material is prohibited." See Id. Also on each of those occasions, Evans sent Perez a "Mail Violation Notice" so advising him, and additionally advising him that the rejected incoming mail was from Aston and that independent administrative review of the rejection was available to him upon his written request received by the Functional Unit Manager within 30 days of the date of the notice. See Id. Each of the Mail Violation Notices Evans prepared in connection with the rejections of August 29, September 5, 10, and 17, and October 2, 2013, specifically indicated that administrative review could be obtained "by writing to the Functional Unit Manager or designee at the above address, " but nevertheless did not supply an address for the Functional Unit Manager or for any designee thereof. See Id. At some time after the complained-of events, SRCI modified its form Mail Violation Notice to provide an address for the Functional Unit Manager, to clarify the description of the procedure inmates are required to follow in order to obtain administrative review, to describe the procedure available to persons sending mail to inmates for obtaining administrative review of mail rejections, and to advise inmates and/or their correspondents of locations where ODOC mail rules could be found and reviewed, among other changes. See Declaration (#162) of Stephen Cook ("Cook Decl."), dated April 7, 2016, ¶¶ 23-26, see also id, Exh. 13.

         In camera review of the mail rejected on August 29, September 5, 10, and 17, and October 2, 2013, establishes that each of the rejected letters (some of which were sent together with photographs of clothed women, purportedly of Aston and/or her aunt; in one of the photographs the undergarments of one of the women are visible) contained sexually explicit content (i.e., prose descriptions of masturbation, sexual arousal, and one instance of incestuous sexual activity) as indicated by Evans in the five notices. See id, Exhs. 3, 5, 7, 9, 11. Perez does not dispute that each rejected piece of mail contained at least some sexually explicit content.

         On August 30, 2013, Perez requested administrative view of the mail rejection of August 29, 2013, identifying the rejection at issue by date but not by notice number, and addressing his request to Evans. See Second Amended Complaint, Exh. 2 at 1. On September 8, 2013, defendant Schultz responded to Perez' request by directing him to identify the rejection by notice number and to address the request with the notice number to defendant Clements. See id That same day, by and through two separate inmate communications forms, Perez requested administrative review of the mail rejections of August 29 and September 5, 2013, identifying each rejection by date and notice number and addressing each request to Clements as instructed by Schultz. See id., Exh. 2 at 3, 5. On September 19, 2013, Clements afforded Perez a brief opportunity to review the mail rejected on August 29 and September 5, 2013, and Perez availed himself of that opportunity. See id., Exh. 3 at 5; see also Cook Dec!., Exh. 12 at 1. On September 20, 2013, Perez sent Clements a kyte stating as follows:

You allowed me to review the rejected materials yesterday for [the rejections of August 29 and September 5, 2013]. [They] consisted of two black and white photocopies of photos and a letter. I didn't get a chance to look because it was so close to count time. 1 only caught glimpses of the materials.
I don't think the rejected material was appropriately rejected because this material is not sexually violent or disturbing. I'm not a sex offender so it poses no threat to my rehabilitation. Sexually explicit material should not be rejected solely because it is sexually explicit, Again, I didn't get a close look at the photos but the photos weren't even sexually explicit. It didn't look like her panties were see-through and if they were what I said above applies.

         Second Amended Complaint, Exh. 3 at 1. On September 30, 2013, Clements. affirmed that the mail was in violation of O.A.R. 291-131-0035(1) (prohibiting inmates from receiving mail containing sexually explicit content), upholding each of the two challenged rejections. See Cook Decl. I, Exh. 12 at 1; see also Second Amended Complaint, Exh. 3 at 3.

         On September 20, 2013, Perez requested administrative review of the mail rejections of September 10 and 17, 2013, identifying each rejection by date and notice number and addressing his requests to Clements. See Second Amended Complaint, Exh. 2 at 7, 9. On October 3, 2013, Perez requested administrative review of the mail rejection of October 2, 2013, again identifying the rejection by date and notice number and addressing his request to Clements. See id., Exh, 2 at 11. Having heard nothing from SRCI staff regarding his outstanding requests, on October 7, 2013, Perez sent Clements a kyte to remind him that Perez' requests for administrative review (including those discussed below in connection with the rejection of certain publications sent to Perez) were still pending. See id., Exh. 2 at 13. Perez' kyte of October 7, 2013, was returned to him without response on October 10, 2013. See id.', see also id., Exh. 2 at 15. On October 20, 2013, Perez sent Clements another kyte to the same effect as his kyte of October 7, 2013. See id., Exh. 2 at 15. On October 22, 2013, Schultz responded to Perez' kyte of October 20, 2013, stating that "administrative reviews can take up to 45 days per rule" and indicating (with regard to the publication rejections discussed below) that "[t]he publications that were violated [sic], mail room is looking for the copies. When we get them, you will be scheduled." Id.

         Also on October 22, 2013, Clements afforded Perez an opportunity to review the mail rejected on September 10, September 17, and October 2, 2013, and Perez availed himself of that opportunity. See id., Exh. 3 at 4; see also id., Exh. 3 at 5; Cook Decl., Exh. 12 at 2. That same day, Perez sent Clements a kyte stating his grounds for believing that the rejections were improper, as follows:

Thank you for the administrative review for the mail violations [of September 10, September 17, and October 2, 2013]. I don't think the [rejections should be upheld because [Anston] is an adult going to college and I'm an adult in prison; we're having a consensual, adult conversation.
She recently wrote me a letter (I received it yesterday) stating that she is "terribly sad and depressed" and that she "will not write again after this short note." She said, "I hope they will permit you to have it so you know I do not stop for any reason that has to do with you or my affection for you."
Please stop this extreme censorship policy.

         Please don't forget my publication violation admin review requests. Thank you. Second Amended Complaint, Exh. 3 at 4. On October 30, 2013, Clements affirmed that the mail was in violation of O.A.R. 291-131-0035(1), upholding each of the three challenged rejections. See Cook Decl., Exh. 12 at 2.

         B. Rejected Publications and Related Administrative Process

         On September 6, 9, and 12, 2013, defendant Shupe inspected publications sent to Perez through the mail (respectively, the three publications at issue were entitled Girls on Top, Letters to Penthouse XV, and Letters to Penthouse XII). See Second Amended Complaint, Exh. 4 at 1-3. On each of those occasions, Shupe sent Perez a "Publication Violation Notice" advising him that the publication had been rejected. See Id. Each of the Publication Violation Notices Shupe sent to Perez identified the rejected publication by title and provided the name and the address of the sender. See Id. Like the Mail Violation Notices sent to Perez in connection with the complained-of mail rejections, each of the Publication Violation Notices Shupe sent to Perez stated that administrative review of the rejection could be obtained "by writing to the Functional Unit Manager or designee at the above address, " but nevertheless did not supply an address for the Functional Unit Manager or for any designee thereof. See Id. Moreover, none of the three Publication Violation Notices clearly identified the grounds for the rejection, See Id. Instead, in the location on the form dedicated to setting forth the reason for the rejection, the Publication Violation Notices of September 6 and 12, 2013, displayed a checked box preceding text reading "la, b, c pp. 12-13, 28-29, 178-183 Publication Violation, " followed by further text (not preceded by either a checked or an empty checkbox) reading "*2. Contains material that threatens or is detrimental to the security, safety, health, good order, or discipline of the facility, inmate rehabilitation or facilitates criminal activity." Id. at 1, 3. On both notices, that text is followed by an additional paragraph reading as follows:

*2 Material that Threatens or is Detrimental to the Security, Safety, Health, Good Order or Discipline of the Facility, Inmate Rehabilitation or Facilitates Criminal Activity: Material which by its nature or content poses a threat or is detrimental to the Security, safety, health, good order, or discipline of the facility, inmate rehabilitation or facilitates criminal activity, including, but not limited to, material that meets one or more of the following criteria:
a. It incites, advocates, aids or abets criminal activity such as illegal drug use or instructs in the manufacture, used [s/c] or conversion of weapons.
b. It incites, advocates, aids, or abets escape, such as picking locks or digging tunnels.
c. It consists of threats of physical harm to any person or threats of criminal activity.
d. It contains or concerns sending contraband within, into or out of the facility.
e. It concerns plans for activities in violation of other Department of Corrections administrative directives.
f. It contains code that directly threatens or is detrimental to the security, safety, health, good order, or discipline of the facility, inmate rehabilitation, or facilitates criminal activity.
g. It contains information which, if communicated, would create a clear and present danger of violence and physical harm to a human being.
h. It contains contraband material.
i. It contains security threat group (STG)-related paraphernalia.
j. It contains inflammatory material.
k. It contains role-playing or similar fantasy games or materials.

Id. The Publication Violation Notice of September 9, 2013, contains all of the same text in the same location, other than the text reading "la, b, c pp. 12-13, 28-29, 178-183" which does not appear in any location on the form. See Id. at 2.

         Notwithstanding the foregoing, defendants take the position that none of the three publications was rejected because it constituted material that threatened or was detrimental to the security, safety, health, good order, or discipline of the facility or to inmate rehabilitation or because it constituted material with a tendency to facilitate criminal activity, and that all three publications were instead rejected solely because they contained sexually explicit material. In support of that position, defendants rely in part on the text reading "la, b, c pp. 12-13, 28-29, 178-183" that appeared on two of the three notices, which they argue corresponds to that subsection of Oregon Administrative Rule 291-131-0035 (discussed below) that addresses sexually explicit material. Defendants further rely on copies of the three notices printed from SRCI's electronic database of violation notices which, unlike the copies of the notices that Perez actually received, clearly indicate that each of the three publications was rejected for containing sexually explicit material. See Cook Decl., Exh. 14. Finally, defendants rely on the testimony of a former SRCI lead mailroom worker that at some time after the complained-of events, SRCI modified its form Publication Violation Notice to provide an address for the Functional Unit Manager, to clarify the procedure inmates are required to follow in order to obtain administrative review, and to provide a mechanism for communicating to inmates, where appropriate to do so, that a publication was rejected because it contained sexually explicit material, see id., ¶¶ 23-26, and on that same worker's testimony that the database does not preserve copies of notices actually issued to inmates, but rather modifies archived notices in accordance with any subsequent updates effected to the form, see id., ¶¶ 31-34. Relying on the language appearing on the notices he actually received, Perez characterizes defendants' position as baseless and as fabricated for purposes of this litigation.

         In camera review of representative excerpts of the three publications establishes that each rejected publication contained sexually explicit content (i.e., prose descriptions of wildly implausible sexual activity, in some instances nonconsensual sexual activity) but no other content with any evident potential to threaten or impair inmate rehabilitation or institutional security, safety, health, order, or discipline, and no content with any evident potential to facilitate criminal activity. See id., Exhs. 17-19. Perez does not dispute that each rejected publication contained sexually explicit content, although he does dispute that the three publications were in fact rejected for that reason.

         On September 25, 2013, by and through three separate kytes addressed to Clements, Perez requested administrative view of the publication rejections of September 6, 9, and 12, 2013, identifying each rejection by date, notice number, sender, and publication title. See Second Amended Complaint, Exh. 4 at 4, 6, 8. As discussed above in connection with the rejection of certain mail addressed to Perez, having heard nothing from SRCI staff regarding his outstanding requests, on October 7, 2013, Perez sent Clements a kyte to remind him that Perez' requests for administrative review (including some of those discussed above in connection with the mail rejections) were still pending. See id., Exh. 2 at 13. Also as discussed above, Perez' kyte of October 7, 2013, was returned to him without response on October 10, 2013. See id.; see also id, Exh. 2 at 15. Also as discussed above, on October 20, 2013, Perez sent Clements another kyte to the same effect as his kyte of October 7, 2013. Also as discussed above, on October 22, 2013, Schultz responded to Perez' kyte of October 20, 2013, stating that "administrative reviews can take up to 45 days per rule" and indicating that "[t]he publications that were violated [sic], mail room is looking for the copies. When we get them, you will be scheduled." Id.

         On October 30, 2013, Schultz advised Perez through three separate kytes that the SRCI mail room had failed to keep copies on file of any photocopied portions of any of the three rejected publications, variously characterizing the failure as "accident[]" and as "error." See id, Exh. 4 at 4, 6, 8. Schultz suggested that Perez re-order the materials, impliedly at his own expense, so that they might be rejected again (if rejection was appropriate) and properly scanned for purposes of facilitating administrative review. See Id. Defendants offer the declaration testimony of the former lead worker in SRCI's Mail Processing Center, that the failure to keep photocopies of any portion of the three rejected publications was "not pursuant to any written ...


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