FRANK CLEMENT,
Plaintiff,     No. C 00-1860 CW
v.
CALIFORNIA DEPARTMENT OF                 ORDER GRANTING
CORRECTIONS, et al.,                                    IN PART AND DENYING IN PART
                                                                          DEFENDANTS’
Defendants.                                                       MOTION FOR SUMMARY JUDGMENT;
                                                         /               DENYING PLAINTIFF’S MOTION
                                                                         FOR A PRELIMINARY INJUNCTION;
                                                                         GRANTING PLAINTIFF PARTIAL
                                                                         SUMMARY JUDGMENT
 
 

Defendant California Department of Corrections (CDC) and the named Defendant employees of the CDC (Individual Defendants) move for summary judgment on Plaintiff Frank Clement’s section 1983 claims for damages and injunctive relief. Plaintiff opposes the motion and moves for preliminary injunctive relief with respect to one of his claims. Defendants oppose Plaintiff’s request for a preliminary injunction. The matter was heard on August 9, 2002. Having considered all of the papers filed by the parties and oral argument on the motion, the Court grants in part and denies in part Defendants’ motion for summary judgment (Docket # 31).

[To page 10]
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. . .
2. First Amendment Claim

Prison regulations that infringe a prisoner's constitutional right are valid so long as they are "reasonably related to legitimate penological interests." Turner v. Safely, 482 U.S. 78, 89 (1987). But the legitimate penological interest may not be presumed. “[T]he [defendant] must, at the very least, adduce some penological reason for its policy at the relevant stage of the judicial proceedings. ‘[C]onsiderations advanced to support a restrictive policy [must] be . . . sufficiently articulated to permit . . . meaningful review.’ Thus, at a minimum, the reasons must be urged in the district court.” Armstrong v. Davis, 275 F.3d 849, 874 (9th Cir. 2001) (quoting Walker v. Sumner, 917 F.2d 11 382, 386 (9th Cir. 1990)).

[to page 17-34]
. . .
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IV. First Amendment Claim

A prisoner’s constitutional right to receive information by incoming mail is undisputed. See e.g., Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001). A prison regulation that impinges on this right is valid only if it is reasonably related to the prison’s legitimate penological interests.
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Turner, 482 U.S. at 89. Four factors determine the reasonableness of the regulation.
 
 

Id. at 89-90 (internal citations omitted).

The State must satisfy the first factor of the Turner test to succeed on this motion. That is, if the State cannot show a “valid, rational connection” between the policy at issue and a legitimate penological interest, the Court need not address the remaining factors. See Prison Legal News, 238 F.3d at 1151 (“Because the Department and its Officials have failed to show that the ban on standard mail is rationally related to a legitimate penological objective, we do not consider the other Turner factors.”).

The burden of proof in challenges to prison regulations is set forth in Frost v. Symington, 197 F.3d 348 (9th Cir. 1999). The initial burden is on the State to put forth a “common-sense” connection between its policy and a legitimate penal interest. If the State does so, the plaintiff must present 
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evidence that refutes the connection. Id. at 357. The State must then present enough counter-evidence to show that the connection is not so “remote as to render the policy arbitrary or  irrational.” Id.

A. Rational Connection to Legitimate Penological Purpose “All legitimate intrusive prison practices have basically three purposes: ‘the preservation of internal order and discipline, the maintenance of institutional security against escape or  unauthorized entry, and the rehabilitation of the prisoners.’” United States v. Hearst, 563 F.2d 1331, 1345 (9th Cir. 1977) (citing Procunier v. Martinez, 416 U.S. 396, 412 (1974) rev'd on other grounds Thornburgh v. Abbott, 490 U.S. 401 (1989)).
 With respect to the rehabilitation of prisoners, the Supreme Court has recognized that “the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation.” Procunier, 416 U.S. at 412-13.
 
 

Id. at 413 n.13 (quoting Policy Statement 7300.1A of the Federal Bureau of Prisons and Policy Guidelines for the 
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Association of State Correctional Administrators).7

There are, in short, recognized rehabilitative benefits to permitting prisoners to receive educational reading material and maintain contact with the world outside the prison gates. Defendants nevertheless argue that the ban on all Internet-generated material is rationally related to maintaining safety and security in the prison. Defendants contend that Internet-generated information provides a particular danger to prison security because the potential high volume of e-mail, the relative anonymity of the sender, and the ability of senders easily to attach lengthy articles and other publications would greatly increase the risk that prohibited criminal communications would enter the prison undetected and would make tracing their source more difficult. See In re Collins, 86 Cal. App. 4th 1176, 1184 (2001) (upholding the regulation challenged here).8

Defendants’ justification for the regulation rests on two premises. The first is that accepting mail that contains
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7 In striking down a restriction on the receipt of bulk rate mail, the Ninth Circuit also noted a "correlation between reading, writing and inmate rehabilitation.” Morrison v. Hall, 261 F.3d 896, 904 n.7 (9th Cir. 2001) (citing Willoughby Mariano, Reading Books Behind Bars Reading Programs for State Prison Inmates and Juvenile Hall Wards are Critical to Helping Offenders Develop Literacy and Avoid Return to Crime, Experts Say, L.A. Times, Jan. 30, 2000, at B2).

8 Defendants have not presented any evidence to support their characterization of the effects of Internet-generated material on prison security. The absence of evidence, however, is not fatal to Defendants’ motion. The Court’s inquiry under Turner is not whether the policy actually serves a penological interest, but rather whether it was rational for prison officials to believe that it would. Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999).
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material downloaded from the Internet will substantially increase the quantum of mail sent to the facility and that regulating mail based on its origin is a rational approach to regulating  excessive quantity. The second premise is that Internet-produced material has unique characteristics that make it susceptible to misuse. Specifically, Internet-produced material is more  difficult to trace and facilitates transmission of hidden impermissible coded messages.

1. Volume Control

In Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001), the plaintiff challenged a prison regulation that prohibited prisoners from receiving all bulk rate, third class and fourth class mail. Defendants argued that the regulation was rationally related to its legitimate need to “limit the total quantum of mail that enters the state prison system.” Id. at 903. The court held that “prohibiting inmates from receiving mail based on the postage rate at which the mail was sent is an arbitrary means of achieving the goal of volume control.” Id. at 903-04. Similarly, here, prohibiting all mail produced by a certain medium–-downloaded from the Internet--is an equally arbitrary way to achieve a reduction in mail volume.

For the reasons identified by the Supreme Court and the Ninth Circuit and discussed above, any negative impact on prison resources created by a supposed increase in prison mail may be outweighed by the penological benefits of inmate correspondence with the outside world. The Court need not make such a  determination here, however. If Pelican Bay officials believe that the safety and security of the prison is 
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threatened by an increase in the quantity of mail, they have more direct means at their disposal to address that concern. Specifically, Defendants could limit the number of pages an inmate may receive in each piece of correspondence. Alternatively, they could regulate the number of pieces of correspondence received by each inmate. Because the prison may directly regulate the quantity of pages or the number of pieces of mail received by each prisoner, Defendants’ policy of identifying an arbitrary substitute for volume and regulating that substitute lacks any rational basis.

2. Susceptibility to Misuse

Defendants’ second justification for the ban on Internet-produced material is that prohibited communication, such as coded criminal correspondence, is more easily hidden in such material and, moreover, such improper correspondence is harder to trace when found.

Defendants have failed to articulate any reason to believe that Internet-produced materials are more likely to contain coded, criminal correspondence than photocopied or handwritten materials. Defendants state that “coded messages [can be] included in e-mail [and] cut and pasted into materials downloaded from the Internet that are not contained in e-mail; for example, in articles downloaded from a medical or legal web site.” Defendants’ Reply to Plaintiff’s Opposition to Defendants’ Motion for Summary Judgment (Defendants’ Reply) at 8:8-9. There is no dispute, however, that the same information can be sent to prisoners at Pelican Bay if it is photocopied from a book, transcribed by hand, scanned, or produced in word-
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processed form. Defendants have failed to explain why criminal communications are less likely to be included through these permissible forms of correspondence.

Defendants have similarly failed to justify their belief  that Internet communications that are sent to Pelican Bay are harder to trace than other, permitted communications. As noted, Pelican Bay prisoners do not have access to the Internet. The correspondence prohibited by the challenged regulation includes any information downloaded from the Internet and sent by regular mail to the facility. Consequently, the prohibited communications are just as likely as regular mail to have a postmark, or to contain fingerprint and DNA evidence. It is true that the author of an e-mail may not provide his identity. However, this fact does not differentiate e-mail correspondence from anonymous typed missives. The evidence in the record suggests that Internet-produced materials are, in fact, easier to trace than anonymous letters because the major e-mail providers include a coded  Internet Protocol address (IP address) in the header of every e-mail. Declaration of Mike Godwin (Godwin Dec.) ¶ 12. The IP address allows the recipient of an e-mail to identify the sender by contacting the service provider. Id. at ¶ 13. There are, of course, means available to disguise the origin of an e-mail message. See Declaration of Heather Mackay (Mackay Dec.), Ex. A (Transcript of Proceedings in Collins v. Ayers,  No. 98-273-X (June 8, 1999)) at 48-9. The relevant question here, however, is whether e-mail and other Internet communications sent through the United States mail are
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inherently more difficult to trace than permissible, anonymous correspondence. The evidence suggests that the opposite is true.

In addition, Defendants primarily screen prisoner mail for content, not for the identity of the sender, so the traceability of Internet-produced information is only marginally relevant to Defendants’ penological interests. For example, Pelican Bay does not require that correspondence to prisoners contain a return address. Mackay Dec., Ex. A at 39. 9 This fact suggests that the prison has no interest in tracking down those who communicate with prisoners. In fact, the only mail that is banned because of the identity of the sender is correspondence from another prisoner. 15 C.C.R. § 3133. Because prisoners do not have access to the Internet, permitting  prisoners to receive Internet-produced material would not allow prisoners to circumvent this regulation.

In sum, Defendants have not satisfied the first factor of the Turner test because they have not articulated a rational connection between the policy at issue and a legitimate penological interest. This factor, moreover, “is the sine qua non” in determining the constitutionality of a prison regulation. Morrison, 261 F.3d at 901; see also Prison Legal News, 238 F.3d at 1151 (“Because the Department and its Officials have failed to show that the ban on standard mail is rationally related to a legitimate penological objective, we do 
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9 Plaintiff’s request that the Court take judicial notice of the transcript from this proceeding is unopposed. That request is granted (Docket # 49).
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not consider the other Turner factors.”). Nevertheless, the other factors enumerated in Turner also support denying Defendants’ motion for summary judgment.

B. Alternative Means of Exercising First Amendment Rights

Plaintiff has presented undisputed evidence that certain information of particular interest to prisoners is only available on the Internet. For example, a non-profit organization devoted to raising awareness of and preventing sexual violence in prison publishes its information only on the Internet. Declaration of Lara Stemple (Stemple Dec.) ¶¶ 2-3. Other information can be acquired in hard copy only through time-consuming and expensive effort. Declaration of Beverly Lozano (Lozano Dec.) ¶¶ 3-4.

Defendants argue that the availability of information in alternative fora is not relevant in the Turner analysis. Rather, Defendants contend that any information that is available only over the Internet can be transcribed or summarized and sent into Pelican Bay. Consequently, the availability of individuals  willing to write down information found on the Internet provides a sufficient alternative means for prisoners to exercise their First Amendment rights. Defendants’ reliance on individual transcription is an impractical alternative to transmission of Internet-produced materials. Because Pelican Bay bans all  materials downloaded from the Internet, not just e-mail, it is not reasonable to expect individuals interested in transmitting information to prisoners to copy verbatim lengthy articles, judicial decisions, and new procedural rules. With respect to graphics 
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and photos, transcription is impossible. Moreover, summarization of information by lay people could result in incorrect or  improperly interpreted information being transmitted. Consequently, transcription and summarization of Internet-produced material is not a viable alternative to downloading and transmitting this information through the United States mail.

C. Impact on Prison Resources

Defendants argue that the increase in the number of pages of mail that would ensue if prisoners were allowed to receive Internet-generated material would overload the mail room staff, with a consequent adverse impact on the allocation of prison resources. However, as noted above, the prohibition at issue here is an imperfect and arbitrary substitute for regulating quantity of mail. Whatever impact increased mail volume may have on prison resources cannot justify Pelican Bay’s ban on materials generated from this particular source. 

D. Available Alternatives to the Challenged Policy

Evidence of an “alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological  interest” is evidence that the regulation is unreasonable.Turner, 482 U.S. at 91. Defendants have asserted a penological 
interest in limiting the overall quantity of mail sent to the prison, but have offered no evidence that they cannot impose limits on the quantity of mail received by individual prisoners either through page limitations or limitations on the number of pieces of mail. For purposes of this motion, the Court assumes that controlling mail quantity serves a valid penological
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purpose. A volume control policy would address Defendants’ proffered concern--the increase in the total quantum of mail-- without violating the First Amendment rights of prisoners to  receive Internet-generated information. Consequently, the  availability of this alternative policy suggests the ban on Internet-generated materials is unreasonable.

E. Defendants’ Judicial and Statutory Authority

Defendants point out that the California Court of Appeal has examined the regulation at issue here and found it  constitutional. See In re Collins, 86 Cal. App. 4th 1176, 1186  (2002). However, the Collins decision is not binding authority and it has no preclusive effect in this litigation because Plaintiff was not a party to that case. See Hydranautics v. FilmTec Corp., 204 F.3d 880 (9th Cir. 2000).

In addition, Collins is distinguishable from this case in  one respect. In Collins, the plaintiff did not present any  evidence to refute the defendants’ showing of a rational  connection between the regulation and the asserted penological interest. 86 Cal. App. 4th at 1184. In this case, Plaintiff has submitted numerous declarations relevant to the relative  anonymity of Internet- generated material, the availability of  alternative sources of information provided on the Internet, and the impact of mailed Internet material on mail volume. This evidence sufficiently “refutes a common-sense connection between a legitimate objective and a prison regulation.” Frost, 1197 F.3d at 357.

Moreover, the Collins court concluded that California Code of Regulations section 3133 prohibited the defendant prison 
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from imposing limitations on the number of pieces of correspondence a prisoner may receive, or the number of pages a prisoner may receive in each piece of correspondence. Collins, 86 Cal. App. 4th at 1186. This regulation states that “there shall be no limitations placed upon the number of persons with whom an inmate may correspond . . . .” On its face, this regulation says nothing about the number of pages or the quantity of separate pieces of correspondence a prisoner may receive. Because of the differing procedural posture of Collins and this case and because this Court does not construe C.C.R. § 3133 as prohibiting  reasonable limitations on the quantity of prisoner mail, the Court declines to follow Collins here.

In support of the reasonableness of this regulation, Defendants also point to other States that, they contend, have addressed similar penological concerns with substantially similar regulations. Defendants contend that Arizona and Minnesota have each enacted regulations “encompassing the instant issue.” Defendants’ Reply at 8:12-14. The Minnesota statute relied on by Defendants states, in its entirety, 
 
 

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Minn. Stat. Ann. § 243.556. This statute regulates Minnesota prisoners’ access to “any Internet service.” The Arizona statute relied on by Defendants similarly regulates prisoners’ “access to the internet through the use of a computer, computer system, network, communication service provider or remote computing service.” Ariz. Rev. Stat. §§ 31-235, 31-242.

As noted above, California prisoners do not have access to the Internet. The regulation at issue in this motion prohibits people outside the prison from sending to the prison information published on the Internet. Because neither the Minnesota nor the Arizona statute purports to address prisoners’ access to  information published on the Internet, these statutes offer no support for Defendants’ position that the disputed regulation is reasonable.

F. Qualified Immunity

Defendants argue that they are immune from liability for any First Amendment violation because the Pelican Bay policy “did not violate clearly established statutory or constitutional rights of which a reasonable person would have known." Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). Qualified immunity,  however, is limited to actions for damages against a government official in his individual capacity. It is not available to a government entity when an official is sued in his official capacity. See Brandon v. Holt, 469 U.S. 464, 472-73 (1985); Owen v. City of Independence, 445 U.S. 622, 651 (1980). Nor is it available when the only relief sought is injunctive. See American Fire, Theft & Collision Managers, 
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Inc. v. Gillespie, 932 F.2d 816, 818 (9th Cir. 1991).
Plaintiff’s First Amendment claim is brought against Defendants in their official capacity and seeks only injunctive relief.10  Therefore, Defendants are not entitled to immunity from suit.

V. Summary Judgment and Prospective Relief

Plaintiff did not move for summary judgment. However, a review of the record and the papers submitted by the parties shows that there are no disputes of material fact for trial. At the hearing on this motion, Defendants stated that they had no additional evidence to present in response to a contemplated motion for summary judgment from Plaintiff. Consequently, because the parties have had a full opportunity to present the issues and any evidence in support of their respective positions, the Court, on its own motion, grants Plaintiff summary judgment on his claim that Pelican Bay’s refusal to allow him to receive Internet-generated material through the United States mail violates his First Amendment rights.

Plaintiff seeks injunctive relief precluding Defendants from confiscating or returning mail containing Internet-generated material. A party is entitled to a permanent injunction if it shows actual success on the merits and the likelihood of  irreparable harm. Easy Riders Freedom F.I.G.H.T. v. Hannigan, 92 F.3d 1486, 1495 (9th Cir. 1996); Sierra Club v. 
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10 Plaintiff sought damages from Defendants on his Eighth Amendment claims. However, because there was no substantive Eighth Amendment violation, the Court need not determine if immunity would apply. See Conn v. Gabbert, 526 U.S. 286, 290 (1999) (a court considering a claim of qualified immunity must first determine whether the plaintiff has alleged the deprivation of an actual constitutional right, then proceed to determine if the right was “clearly established”).
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Penfold, 857 F.2d 1307, 1318 (9th Cir. 1988). For the reasons already stated, Plaintiff has shown that the prison’s policy of prohibiting Internet-produced material from being received by prisoners violates the First Amendment. “[T]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” S.O.C., Inc. v. County of Clark, 152 F.3d 1136, 1148 (9th Cir.) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976)), amended by 160 F.3d 541 (9th Cir. 1998). Consequently, Plaintiff is entitled to permanent injunctive relief.

Injunctive relief, in this case, must comply with the requirements of the PLRA. The PLRA states,
 
 

18 U.S.C. § 3626(a)(1)(A).

Plaintiff brings this action solely on his own behalf. However, he has introduced evidence that other prisoners, at other prisons, have been similarly affected by the ban on Internet-generated materials. See Lozano Dec ¶ 6; Declaration of Sheilah Glover (Glover Dec.) ¶ 8. The undisputed evidence shows that the violation of Plaintiff’s First Amendment rights is not an “isolated violation” but rather results from “policies or practices pervading the whole system.” Armstrong v. Davis, 275 F.3d 849, 870 (9th Cir. 2001).
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In this circumstance, in order to correct the violation, the Court must, at a minimum, enjoin the unconstitutional policy. Such an injunction is the “least intrusive means necessary” because a limited injunction directed only at the unconstitutional policy does not “require the continuous supervision of the court, nor do[es it] require judicial interference in the running of the prison system.” Gomez v. Vernon, 255 F.3d 1118, 1130 (9th Cir. 2001). Prohibiting Defendants from enforcing a policy of rejecting prisoner mail based solely on the fact that the mail contains information downloaded from the Internet “is not overly intrusive and unworkable and would not require for its enforcement the continuous supervision by the federal court over the conduct of state officers.” Armstrong, 275 F.3d at 872. Rather, such an injunction is narrowly tailored to redress the violation established by Plaintiff and is therefore authorized by the PLRA. Id. at 870 (“The scope of injunctive relief is dictated by the extent of the violation established.”) (quoting Lewis v.Casey, 518 U.S. 343, 359 (1994)); see also Crofton v. Roe, 170 F.3d 957 (9th Cir. 1999) (affirming district court’s injunction which prohibited, on First Amendment grounds, the defendant prison from enforcing a blanket ban on the receipt of gift publications).

VI. Evidentiary Objections

In support of their motion for summary judgment, Defendants submitted copies of three abstracts of judgments which show the crimes for which Plaintiff is currently incarcerated. Plaintiff objects to these three exhibits on the 
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grounds that they are “irrelevant and calculated to inflame the court and prejudice it against the plaintiff.” Plaintiff’s Objections to Defendants’ Evidence (Pl. Obj.) at 1. Defendants argue that the abstracts of judgment show Plaintiff’s potential for violence and that his violent tendencies are probative of the reasonableness of their policy prohibiting all prisoners at Pelican Bay from receiving Internet-generated information. As discussed above, Defendants argued that Internet-generated material facilitates transmission of criminal communications. Plaintiff’s criminal history may be evidence relevant to this contention. The Court does not find that this probative value “is substantially outweighed” by the danger of unfair prejudice. Fed. R. Evid. 403.

Plaintiff also objects, pursuant to Federal Rule of Evidence 705, to two paragraphs in the Declaration of Dwight Winslow. As noted above, these objections go to the weight of the evidence, not its admissibility. The Winslow Declaration is admissible in its entirety.

For the foregoing reasons, Defendants’ motion for summary judgment is granted in part and denied in part (Docket # 31). Plaintiff’s motion for a preliminary injunction is denied (Docket # 53). Plaintiff’s objections to evidence are overruled and his request for judicial notice is granted (Docket ## 63, 49).

The Court, on its own motion, grants Plaintiff summary judgment on his First Amendment claim. By separate order, the Court will permanently enjoin Defendants from enforcing any 
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policy prohibiting California inmates from receiving mail that contains Internet-generated information. Judgment shall enter accordingly. Each party shall bear its own costs.

DATED:      [Posted Internet September 12, 2002]

      CLAUDIA WILKEN
      United States District Judge
 
 

Full case can be found at:
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