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Ross v. Amsberry

United States District Court, D. Oregon, Pendleton Division

July 17, 2018

JAMES ARTHUR ROSS, Plaintiff,
v.
BRIGETTE AMSBERRY, Supt. of TRCI; KELLY A RATHS; KELLY L. ARRINGTON; C. MCMILLEN; S. DEACON; DAVID J. PEDRO; and SHERRY L. ILES, Defendants.

          OPINION AND ORDER

          Youlee Yim You, United States Magistrate Judge

         INTRODUCTION

         Plaintiff, James Ross (“Ross”), an inmate at Two Rivers Correctional Institution (“TRCI”) in Umatilla, Oregon, filed this action on December 8, 2017. Ross alleges that various employees of the Oregon Department of Corrections (“ODOC”) violated his rights to free speech, due process, and equal protection by denying him access to a magazine he ordered in November 2016. He seeks a declaration that ODOC's mail policies are unconstitutional, access to the publication he ordered, a full and fair hearing, a reprimand of those persons who violated his constitutional rights, and damages of $54, 329.36. Compl. 6, ECF #2.

         This court has jurisdiction over Ross's claims under 28 USC § 1331 and 42 USC § 1983. All parties have consented to allow a Magistrate Judge to enter final orders and judgment in this case in accordance with FRCP 73 and 28 USC § 636(c). Now before the court is defendants' Motion for Summary Judgment (ECF #24). For the reasons that follow, Ross has failed to establish any violation of his constitutional rights. Accordingly, the motion is granted and judgment will be entered in favor of defendants.

         STANDARDS

         A party is entitled to summary judgment 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.” FRCP 56(a). The moving party has the burden of establishing the absence of a genuine dispute of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The court must view the evidence in the light most favorable to the non-movant and draw all reasonable inferences in the non-movant's favor. Newmaker v. City of Fortuna, 842 F.3d 1108, 1111 (9th Cir. 2016), cert. denied, 137 S.Ct. 2217 (2017). Although “[c]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment, ” the “mere existence of a scintilla of evidence in support of the plaintiff's position [is] insufficient . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citation and quotation marks omitted).

         DISCUSSION

         I. Undisputed Material Facts

         ODOC administrative rules require the confiscation or return to the sender of mail containing sexually explicit materials, including those containing:

(i) Portrayal of actual or simulated sexual acts or behaviors between human beings including, but not limited to, intercourse, sodomy, fellatio, cunnilingus, or masturbation.
(ii) Portrayal of actual or simulated penetration of the vagina or anus, or contact between the mouth and the breast, genitals, or anus.
(iii) Portrayal of actual or simulated stimulation of the breast, genitals, or anus.

OAR 291-131-0035(1)(a)(C)(i)-(iii).

         On November 15, 2016, Christy McMillen (“McMillen”), an Office Specialist at TRCI, reviewed the November 1993 issue of Gallery (“the magazine”), which had been mailed to Ross at TRCI. McMillen Decl. ¶ 4, ECF #25. McMillan then issued a “Publication Violation Notice” (“Notice”) to Ross, advising him that pages 121-22 contained sexually explicit material “representative of materials throughout the entire publication, ” in violation of the standards of OAR 291-131-0035(1)(a)(C)(i)-(iii). Id., Ex. 1. The Notice also advised Ross that he could obtain ...


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