MacFarlane v. Walter, Injunction Banning Censorship of PLN Due to Bulk Mail Status, 1997
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4t.' . .........-' " 1 Flt.ED IN THE us. DISTRICT COUAT 2 EASTERN OISTRICT OF WASHINGTON 3 SE? 2 2 1997 4 JAMES A wa'N 5 YAKIM" c.. ~~ 6 Ul~T~ED 7 DONALD D. MacFARLANE Plaintiff, 10 11 12 DISTRICT COURT EASTERN DISTRICT OF WASHINGTON 8 9 S:L'A.T~.s v. KAY WALTER, et al., Defendants. 13 ) ) ) ) ) ) ) ) ) ) NO. 9~-CY-.3lo.:J.. -LRS REPORT AND RECOMMENDATION 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Before the court is defendants' Motion for Summary Judgment and Dismissal. ct. Rec. 20. On hearing without oral argument, plaintiff appeared pro se, and Assistant Washington state Attorney General Colleen B. Evans represented defendant. Plaintiff is an inmate incarcerated at Airway Heights Correction Center (AHCC). Plaintiff filed suit under 42 U.S.C. § 1983, claiming that defendants violated his First and Fourteenth Amendment rights by prohibiting delivery of publications to which he sUbscribed, Prison Legal News and the American Civil Liberties Union National Prison Project Journal, without issuing mail rejection notices. These publications are sent as non-profit third-class mailings. Plaintiff maintains that he received these publications while housed at other Washington state correctional facilities. Plaintiff argues that AHCC's prohibition against bulk mail has been unconstitutionally applied to his sUbscription REPORT AND RECOMMENDATION - 1 ~ .. • .. OJ 1 publications. Defendants claim that they have a legitimate 2 penological interest in prohibiting delivery of Mbulk mail," a 3 category in which plaintiff's subscription publications are 4 included. Further, defendants maintain that plaintiff was given 5 adequate due process by virtue of notice of the bulk mail policy. 6 The constitutionality of AHCC's prohibition against non- 7 profit paid subscription publications, inclUding Prison Legal 8 ~, was recently ruled upon in this district. In Miniken y. 9 Walter. et al., No. CS-97-407-JLQ, the JUdge Quackenbush found 10 that subscription publications sent via non-profit third-class 11 mail, or ·standard mail," did not fall within the definition 12 contained in AHCC Field Instruction 450.100. Thus, the court 13 ruled that such publications cannot be denied delivery on the 14 basis of the ·bulk mail" definition. 15 found that the defendants Mhave set forth no rational connection 16 between the prohibition of non profit paid SUbscription 17 publications such as Prison Legal News and any legitimate neutral 18 penological purpose." 19 JLQ, MemorandlIm opinion and Ord~r 20 Summary Judgment at p. 12. Additionally, Judge Quackenbush ruled 21 that plaintiff Miniken's due process rights were violated by the • Moreover, Judge Quackenbush Miniken y. Halter. et al., No. CS-97-407Granting Plaintiff's Motion for 22 defendants failure to notify either plaintiff or the publisher of 23 the rejection of the pUblication. 24 that defendants were not entitled to qualified immunity. 25 Accordingly, Judge Quackenbush enjoined defendants from denying 26 delivery of subscription publications sent Mstandard mail" and 27 awarded plaintiff Miniken damages. 28 III REPORT AND RECOMMENDATION - 2 Finally, JUdge Quackenbush held As such, under the law of this 1 district, the AHCC policy at issue is unconstitutional as applied 2 to plaintiff's subscription publications. 3 Furthermore, the doctrine of issue preclusion mandates the 4 same result in this case. 5 Issue preclusion is appropriate when: (1) the issue decided in the prior adjudication is substantially 6 identical to the issue in the subsequent action; 7 final jUdgment on the merits; (2) there was a and (3) the party against whom the 8 estoppel is asserted was a party to or in privity with a party in 9 the first action. 10 Durkin y. Shea & Gould, 92 F.3d 1510, 1516 (9th Cir. 1996), cert. denied, 117 S. ct. 1553 (1997), citing Pension 11 Trust Fund for Operating Engers y. Triple A Machine Shop, Inc., 12 13 14 942 F.2d 1457, 1462 (9th Cir. 1991). In this instance, plaintiff raises the same issue that was the subject of the Miniken decision: whether the AHCC practices of 15 prohibiting delivery of subscription publications mailed via the 16 standard rate and failing to give rejection notices for such 17 publications violate inmates First and Fourteenth Amendment 18 rights. 19 and found that the Judge Quackenbush issued a final jUdgment on the merits AIICe practice was uncons"\:.itutional. All 20 parties in this actions were either a named party in Miniken or in 21 privity thereto as employees of the Department of Corrections. 22 Finally, application of the doctrine will not work an injustice. 23 Quite the contrary; to fail to apply the doctrine of issue 24 preclusion would cause an injustice. 25 26 Therefore, the undersigned finds that judgment should be rendered in favor of plaintiff. The only remaining issue involves whether the claims against 27 defendants Ervin and Riveland should be dismissed. 28 Defendants Ervin and Riveland claim that they did not personally participate REPORT AND RECOMMENDATION - 3 I~ ... r ." 1 in the violations of plaintiff's First Amendment rights and 2 therefore must be dismissed from the action. Plaintiff agrees 3 that dismissal of defendant Ervin is appropriate. However, 4 plaintiff opposes defendant's argument with respect·to defendant 5 Riveland. Plaintiff claims that defendant Riveland had knOWledge 6 of AHCC's practice regarding personal subscription pUblication 7 sent via bulk rate mail and approved this policy. 8 In order to hold a defendant liable for damages, plaintiff 9 must show that the defendant either participated in or directed 10 the violations, or knew of the violations and failed to act to 11 prevent them. Taylor y. List, 880 F.2d 1040, 1045 (9th Cir. 12 1989); Leer y. Mu~hy, 13 case, defendant Riveland knew thatAHCC destroyed, without notice, 14 personal subscription publications sent non-profit third-class 15 mail. 844 F.2d 628, 633 (9th Cir. 1988). In this Apparently, the publisher of Prisoo Legal News wrote to 16 defendant Riveland in October of 1995, long before plaintiff filed 17 this action. 18 2(d). 19 To~ 20 the policy at AHCC. 21 admissions, defendant Riveland admitted that AHCC's policy had 22 been brought to his attention. 23 of such evidence, it is clear that defendant Riveland knew of see plaintiff's First Amended Complaint, Exhibit In fact, defendant Riveland directed Director of Prisons Rolfs to respond tQ this letter, in which Mr. Rolfs de!ended ~, Exhibit 2(E). Further, in a response to ct. Rec. 40, Exhibit 12. In light 24 AHCC's policy administered in violation of plaintiff's First and 25 Fourteenth Amendment Rights. 26 /// 27 /// 28. /// REPORT AND RECOMMENDATION - 4 Therefore, · ' 1 IT IS HEREBY RECOMMENDED that: 2 1. Defendant Riveland's motion for dismissal for lack of 3 personal participation be DENIED, and defendant Ervin's motion for 4 dismissal.for lack of personal participation be GRANTED. 5 2. Plaintiff's Motion for-Summary Judgment regarding 6 violations of his First Amendment rights and Fourteenth Amendment 7 right to procedural due process be GRANTED and Defendant's Motion 8 for Summary Judgment regarding the same be DENIED in accordance 9 with the ruling in Miniken y. Walter. et al., No. CS-96-407-JLQ. 10 2. Defendants be PERMANENTLY ENJOINED from prohibiting 11 delivery of an inmate's paid-for SUbscription to a profit or 12 nonprofit publication on the sole basis that the publication is 13 mailed via ·standard mail,· in accordance with the ruling in 14 Miniken y. Walter. et al., No. CS-96-407-JLQ. 15 3. Plaintiff be AWARDED actual damages in addition to costs, 16 with the deadline for submission of plaintiff's affidavit of costs 17 and damages to be set by the referring jUdge. Plaintiff's actual 18 damages are those suffered as a direct result of defendants' 19 failure to deliver his 20 ~ 21 publications referenced in his Complaint. 22 subscrip~ion publica~ions ot Prison Legal and the ACLU's National Prison Project Journal, the Any party may object·to the Magistrate Judge's proposed 23 findings, recommendations or report within ten (10) days after 24 being served with a copy thereof. 25 holi~ays 26 file with the Clerk of the Court and serve on all parties written 27 objections, specifically identifying the portions to which 28 objection is being made, and the basis therefor. are· excluded. Intermediate weekends and legal Fed. R. civ. Proc. 6(a). REPORT AND RECOMMENDATION - 5 Such party shall Any response to ~. '., 1 the objection shall be filed within ten (10) days after receipt of 2 the objection. 3 excluded. 4 Intermediate weekends and leqal holidays are Fed. R. Civ. Proc. 6(a). Attention is directed to Fed. R. civ. Proc. 6(e) which adds another three (3) days from the date 5 of mailinq where service is by mail. 6 7 A District Judge shall make a de novo determination of those portions to which objection is made and may accept, reject, or 8 modify the maqistrate's determination. The JUdqe need not conduct 9 a new hearinq or hear arguments and may consider the Maqistrate 10 Judqe's record and make his own determination thereon. 11 may also receive further evidence or recommit the matter to the 12 Maqistrate JUdqe with instructions. 13 14 The Judqe See 28 U.S.C. Sec. 636(b) (1) (B) and (C), Fed. R. civ. P. 73 and LMR 4. A Maqistrate Judqe's recommendation cannot be appealed to a 15 Court of Appeals; only the District Judqe's order or jUdqment can 16 be appealed. 17 The Clerk of the Court shall file this report and 18 recommendation and serve copies of it on the petitioner, counsel 19 for respondent, and the referrinq jUdqe, the Honorable Robert H. 20 Whaley. 21 DATED this 2.2-~day of September, 1997. 22 23 24 25 United States Maqistrate JUdqe 26 27 28 REPORT AND RECOMMENDATION - 6 FILEOINTHE U.S. OISTRICT COURT EASTERN OISTRlCT OFWASHINGTON 1 OCT 2 0 1997 2 3 - 4 JAMES R. LARSEN. Clerk ·Oeputy 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF WASHINGTON 8 9 10 11 12 DONALD D. MacFARLANE, Plaintiff, v. KAY WALTER, et ale , Defendants. 13 14 ) ) ) ) ) ) ) ) ) ) NO •. ~-96-3102-LRS ORDER ADOPTING REPORT AND RECOMMENDATION Magistrate Judge Suko filed a report and recommendation on 15 September 22, 1997 recommending: 16 1. Defendant Riveland's motion for dismissal for lack of 17 personal participation be denied and defendant Ervin's motion for 18 dismissal for lack of personal participation b~ qranted. 19 2. Plaintiff's Motion for sUmmary JUd~ent ~egarding 20 violations of his First Amendment riqhts and Fourteenth Amendment 21 right to procedural due process be qranted and Defendant's Motion 22 for Summary Judgment regarding the same be denied in accordance 23 with the ruling in Miniken y. Walter. et al., No. 24 3. CS-96-407-~. Defendants be permanetly enjoined prohibiting delivery of 25 an inmate's paid-for subscription to a profit or nonprofit 26 publication on the sole basis that the publication is mailed via 27 ·standard mail,· in accordance with the rUling in 28 et al., No. CS-96-407-JLQ. ORDER ADOPTING REPORT AND RECOMMENDATION - 1 ~~~~~~~~~ ....... 1 4. Plaintiff be awarded actual damages in addition to costs, 2 with the deadline for submission of plaintiff's affidavit of costs 3 and damages to be set by the referring jUdge. Plaintiff's actual 4 damages are those suffered as a direct result of defendants' 5 failure to deliver his subscription publications of Prison Legal 6 Hen-and the"-ACLU's National Prison Project Journal, the 7 publications referenced in his complaint. S Having reviewed the report and there being no objections 9 thereto, said report is ADOPTED in its entirety and IT IS ORDERED 10 11 that plaintiff's complaint is DISMISSED without prejudice. 1. Defendant Riveland's motion for dismissal for lack of 12 personal participation be DENIED, and defendant Ervin's motion for 13 dismissal for lack of personal participation be GRANTED. 14 . 2. Plaintiff's Motion for Summary JUdgment regarding 15 violations of his First Amendment rights and Fourteenth Amendment 16 right to procedural due process be GRAN"rED and Defendant's Motion 17 for Summary JUdgment regarding the same be DENIED. 18 3. Defendants be PERMANENTLY ENJO~NED fro~ pr~hibiting 19 delivery of an inmate's paid-for subscription to "a profit or 20 nonprofit publication on the sole basis that the publication is 21 mailed via Mstandard mail. 22 4. JI Plaintiff be AWARDED actual damages in addition to costs, 23 with the deadline for submission of plaintiff's affidavit of costs 24 and damages to be set by the court. Plaintiff's actual damages ar 25 those suffered as a direct result of defendants' failure to 26 deliver his subscription publications of Prison Legal News and the 27 ACLU's National Prison Project Journal, the publications 28 referenced in his complaint. ORDER ADOPTING REPORT AND RECOMMENDATION - 2 .. . '~ '" 1 The Clerk of the Court shall forward a copy of this order to 2 the plaintiff and counsel for the defendant and shall close the 3 file. 4 DATED this 2Q day of October, 5 6 7 JUdge 8 9 10 11 12 13 14 15 16 17 18 ... 19 20 21 22 23 24 25 26 27 28 ORDER ADOPTING REPORT AND RECOMMENDATION - 3