United States District Court, D. Oregon, Pendleton Division
OPINION AND ORDER
Yim You, United States Magistrate Judge
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.
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.
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).
Undisputed Material Facts
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.
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 ...