Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 1 of 28

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JACOB BARRETT, Plaintiff,
v.

No. 6:11-CV-06358-HZ
FINDINGS OF FACT AND CONCLUSIONS OF LAW

JEFF PREMO, MICHELLE DODSON, JANE DOE, COLETTE PETERS, KELLY RATHS,

Defendants.

Blerina Kotori William F. Martson, Jr. TONKON TORP LLP 1600 Pioneer Tower 888 SW Fifth Avenue Suite 1600 Portland, OR 97204

Attorneys for Plaintiff

Shannon Vincent OREGON DEPARTMENT OF JUSTICE Trial Division, CLS 1162 Court Street, NE Salem, OR 97301

Attorney for Defendants

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HERNÁNDEZ, District Judge: This case concerns the constitutionality of the Oregon Department of Corrections’
decision to reject an incoming piece of mail because it had artwork on the front of the envelope. Plaintiff Jacob Barrett, an Oregon Department of Corrections (ODOC) inmate, brings a claim for relief under 42 U.S.C. § 1983, which provides a cause of action against state and local governments and their officials for violations of a person’s federal constitutional and statutory rights. Plaintiff brings this claim against Jeff Premo, Superintendent of the Oregon State Penitentiary (OSP); Michelle Dodson, former Executive Assistant to Superintendent Premo; Jane Doe1; Colette Peters, Director of ODOC; and Kelly Raths, Administrator of the Office of Inmate and Community Advocacy at ODOC; (collectively, “Defendants”). Plaintiff alleges that Defendants violated his First Amendment rights by rejecting and returning a letter that Plaintiff sent to an inmate at OSP because of a picture Plaintiff had drawn on the front of the envelope.
This Court conducted a one-day bench trial on February 19, 2015. These are the Court’s Findings of Fact and Conclusions of Law. Fed. R. Civ. P. 52 (a)(1). As explained below, Defendants violated Plaintiff’s First Amendment rights. As a result, Plaintiff is awarded declaratory and injunctive relief.
FINDINGS OF FACT I. Rejection of Plaintiff’s Letter
Pursuant to the Interstate Corrections Compact, Plaintiff was housed in New Mexico at the time of the incident at issue and is currently housed in Florida. Stipulation of Admitted Facts, 1 While Jane Doe is a named defendant, the parties’ Pre-Trial Order does not mention Doe. [66]. Based on the parties’ order and the absence of any mention of Doe at trial, the Court construes Plaintiff’s position as having voluntarily dismissed Doe from the action. See Hunt v. Cnty. of Orange, 672 F.3d 606, 617 (9th Cir. 2012) (explaining that a district court was within its power to sua sponte dismiss a defendant who was not included in the pretrial order).
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at 1, [171]. The Oregon Administrative Rules governing incoming inmate mail apply to Plaintiff to the extent he sends mail to inmates in ODOC custody.
In approximately January of 2011, Plaintiff sent a letter to his cousin, Christopher Weedmark, an ODOC inmate who was housed at OSP. Plaintiff’s letter to Mr. Weedmark was inside an envelope. On the front of the envelope, Plaintiff had drawn a picture of three skulls, dice, and barbed wire. Pl.’s Ex. 3. Plaintiff’s envelope was rejected by mailroom staff at OSP and returned to him, unopened, with a note on the front of the envelope stating “no writing on front of envelope” and a checkmark next to a box indicating “violates inmate mail rule.” Id.
On or about February 2, 2011, Plaintiff wrote a letter to OSP’s Mailroom Administrator seeking administrative review of the mail violation. Pl.’s Ex. 4. On February 24, 2011, Superintendent Premo responded to Plaintiff’s request for administrative review. Pl.’s Ex. 5. Superintendent Premo stated that “the letter was returned to you due to art work being on the envelope,” and that “in accordance with [OAR 291-131-0025]2, incoming mail will be denied and returned to sender if that mail contains anything other than postage, the sender’s name and return address, and the addressed inmate’s name, SID number and address.” Id.
On March 8, 2011, Plaintiff sent a letter to OSP’s Grievance Coordinator, requesting a reversal of Superintendent Premo’s decision. Pl.’s Ex. 6. On March 16, 2011, Michelle Dodson, in her role as the Grievance Coordinator’s supervisor, responded to Plaintiff in a letter. Pl.’s Ex. 7. Ms. Dodson cited Oregon Administrative Rule 291-131-0037, Disposition of Prohibited Mail:
No administrative review shall be available if the rejection is based on the presence of an unauthorized attachment, substance or enclosure on or with the mail, or if the rejection is based on any violation not related to the written or pictorial content.
2 Superintendent Premo’s letter cited “Oregon Revised Statute, 291-131-0025.” Pl.’s Ex. 5. However, it is clear from the record that this was a typographical error and that he intended to cite Oregon Administrative Rule 291-131-0025. 3- FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Id. Ms. Dodson further stated that Plaintiff was “not eligible for any further review on this issue.” Id. Plaintiff filed a Tort Claim Notice on April 8, 2011. Pl.’s Ex. 8. Plaintiff filed the present lawsuit on November 10, 2011. Complaint, [2].
In September 2014, during the pendency of this lawsuit, Plaintiff sent letters to four ODOC inmates housed in three different ODOC facilities.3 Each letter was enclosed in an envelope with a drawing of a “tribal turtle”4 on the outside. Pl.’s Ex. 10. The letters were delivered to the inmates as addressed. Stipulation of Admitted Facts at 5, [171]. None of the “turtle envelopes” were rejected, despite having artwork on the front of the envelope. II. Plaintiff’s Testimony
At trial, Plaintiff testified that he has been incarcerated for approximately 21 years. He stated that he has drawn consistently on envelopes since approximately 1996 or 1997, and that this was the first time one of his envelopes had been rejected by ODOC. Plaintiff testified that he did not know that drawings were not allowed on the front of envelopes until his envelope was rejected in early 2011. Plaintiff testified that his drawing of skulls, dice, and barbed wire did not contain any code or promote criminal activity.
Plaintiff testified that he draws as much as possible, sometimes even for hours in a day. He said that drawing has changed his life because it is a way he can express his emotions. He testified that it has a positive impact on his relationships, including with other inmates, because he can inspire people and lift their spirits with his artwork. He also testified that being able to draw could help with his rehabilitation if he is released from prison. Plaintiff testified that few
3 Plaintiff prepared the letters and envelopes and had his attorney mail them. 4 Plaintiff refers to the drawing as a “tribal turtle.” The drawing is a simple, hand-drawn, black and white depiction of a turtle. Pl.’s Ex. 10. 4- FINDINGS OF FACT AND CONCLUSIONS OF LAW

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inmates draw consistently. He estimated that within OSP, approximately 5-10 inmates draw. He did not know how many of those inmates draw on envelopes.
Plaintiff testified that inmates have very limited access to resources to draw in prison. He testified that being able to draw on the front of envelopes was important because it was a completely flat surface, as opposed to the back of an envelope, and it did not take up space on the paper enclosed in the envelope. In addition, Plaintiff explained that ODOC often puts an address label on the back of envelopes; therefore, if Plaintiff drew on the back, his artwork may be covered by a label. Plaintiff also testified that indigent inmates only receive two pieces of paper and five envelopes per month. Therefore, every inch of space is a valuable resource. Finally, Plaintiff testified that the front of envelopes was a specific medium for him to express himself, similar to any artist who chooses a preferred medium for expression. III. Mail Processing within the Oregon Department of Corrections
ODOC strives to deliver incoming inmate mail within 48 hours of its arrival at the prison. At OSP, where Plaintiff sent the letter to his cousin, there are four full-time staff in the mailroom who are responsible for, among other things, processing incoming mail. In addition, there are often up to three additional staff members assigned temporarily to assist in the mailroom. The OSP mailroom staff processes an average of 800-1200 pieces of incoming mail per day. Defs.’ Ex. 504.
ODOC mailroom staff members go through various steps to process each piece of incoming mail. First, the mail is inspected for technical violations on the exterior of the envelope. If there are no technical violations, the incoming mail’s SID5 number must be verified against the inmate’s name. The staff member looks up the SID number in a computer program to
5 Each inmate is assigned a state offender identification (SID) number. 5- FINDINGS OF FACT AND CONCLUSIONS OF LAW

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determine where the inmate is located and then writes the inmate’s housing unit and bunk on the front of the envelope. Then, the staff member opens each piece of mail and searches its contents. Finally, the staff member places the envelope in a bin for distribution to the housing units. All mail is delivered by other ODOC employees. No inmate ever handles, sorts, or distributes mail.
If a mailroom staff member finds a technical violation, the mail is returned to the sender with a sticker, stamp, or handwritten notation, indicating the cause of the violation. Staff members refer to this process as “violating” an envelope. At trial, witness testimony varied as to how long it takes to violate an envelope. Kelly Raths, Administrator of the Office of Inmate and Community Advocacy at ODOC, testified that it takes about 5 minutes; Chris Toombs, OSP Mailroom Lead Worker, testified that it takes between 15 and 30 seconds; and Brandon Kelley, Assistant Superintendent of Security at OSP, testified that it takes 20 seconds.
ODOC does not track how many envelopes are violated per day, nor does it track how many envelopes are violated because they have artwork on the front. Mr. Toombs estimated that 25-100 envelopes are violated out of the approximately 1200 pieces of mail that OSP receives per day. Mr. Toombs did not know how many were violated due to artwork, as opposed to other technical violations.
In addition to first class mail, mailroom staff members process books, magazines, legal mail, inmate emails, video visits (similar to skype), electronic photo uploading services, and a service similar to text messages. IV. Oregon Department of Corrections’ Incoming Mail Rule
Oregon Administrative Rule 291-131-0025 states, in relevant part: Incoming Mail: (1) Incoming mail shall require the sender’s name and return address on the front of the envelope and shall be addressed to the inmate using only his/her committed name and SID number.
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Pl.’s Ex. 1 at 6. The plain language of the incoming mail rule does not ban artwork on the front of envelopes. The rule only addresses what the front of envelope must include, not what it must exclude.
Every ODOC witness testified that this was the only rule at issue in this case and the only rule that purportedly establishes a de facto ODOC policy of prohibiting artwork on the front of envelopes. Plaintiff testified that he was unaware of this OAR until his letter was returned to him.
Ms. Raths testified that, among other job duties, she fills the role of “central mail administrator” and that one of her responsibilities is to oversee the mail rules, including how they are applied and interpreted. Ms. Raths testified that OAR 291-131-0025 does not clearly state that artwork is prohibited on the front of an envelope. She also testified that there is no other ODOC rule or policy that prohibits artwork from the front of envelopes. Ms. Raths explained that, in practice, mailroom staff may interpret the rule to prohibit artwork from the front of envelopes but that the interpretation could vary by facility or staff member.
Ms. Raths stated that in Plaintiff’s case, the mailroom staff interpreted the incoming mail rule to indicate that Plaintiff’s artwork violated the rule. She was not aware of how frequently envelopes were refused for having drawings on the front, but she stated that a drawing on the front of an envelope would not necessarily lead to an envelope being violated. When asked whether there were any plans within ODOC to adopt a policy or practice to permit artwork on the front of envelopes, Ms. Raths stated that because there was no current policy prohibiting artwork on the front of envelopes, it followed that there were no plans to change any policy.
As to the “turtle envelopes,” Ms. Raths testified that she did not know why they were not violated. She hypothesized that, given the volume of mail processed daily, violating the “turtle
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envelopes” was a low priority for mailroom staff. Ms. Raths testified that she imagined that most of her mailroom staff would not have concerns with smaller pieces of artwork on an envelope, such as a small image embossed into an envelope for Valentine’s Day.
Ms. Raths distinguished the incoming mail rule from ODOC’s “Outgoing Mail” rule, which expressly states that “[t]he outside of the envelope shall contain only the inmate’s committed name, SID number, and return address, and the addressee’s name and address . . . .” See Pl.’s Ex. 1 at 5 (emphasis added). Ms. Raths explained that artwork on the front of envelopes is clearly forbidden in the plain language of the outgoing mail policy but not the incoming mail policy.
On examination by Defendants’ attorney, Ms. Raths adjusted her testimony somewhat. She stated that while the incoming mail rule did not explicitly prohibit artwork on the front of envelopes, superintendents throughout ODOC had consistently applied the rule to prohibit artwork on the front of incoming mail. Ms. Raths further stated that, in her role as Administrator of the Office of Inmate and Community Advocacy, she deferred to the superintendents’ interpretation of the rule and that she had never heard of any superintendents interpreting the rule differently. Ms. Raths testified that in the 10 months she has been working in her current position at ODOC, this was the only case she had been confronted with regarding the violation of an envelope with a drawing on the front.
Mr. Toombs, OSP Mailroom Lead Worker, testified that it is part of his job duties to be aware of and familiar with the ODOC mail rules. He also stated that it is his job to apply those rules to the processing of inmate mail. Mr. Toombs testified that an incoming envelope with artwork on the front will be violated. He explained that in 2011, the then-supervisor of the mailroom instructed mailroom staff to violate mail with excessive writing, drawings, and stickers
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on the front of envelopes because it was causing difficulties for mailroom staff members trying to read the inmates’ SID numbers. Mr. Toombs testified that artwork on the back of envelopes has been permitted since 2011. Mr. Toombs also testified that he derived his understanding that artwork is not allowed on the front of envelopes from OAR 291-131-0025. When asked whether he relied on any other source in his understanding, he said he did not.
Mr. Toombs estimated that, as part of his job, in the 3-4 days before trial he had rejected 20-30 envelopes with drawings on them.6 Mr. Toombs also testified that it was error for a staff member not to violate the “turtle envelopes.” Mr. Toombs testified that he was familiar with Plaintiff’s name because he mailed information to Plaintiff from the legal library.
Mr. Kelley, Assistant Superintendent of Security at OSP, testified that the incoming mail rule was his only basis for understanding that artwork is not allowed on the front of envelopes. He testified that in his experience at the three ODOC institutions he has supervised, the rule is enforced consistently.
Mr. Kelley testified that the problem with artwork on the front of envelopes is that it distracts mailroom staff members who are on tight timelines to process large volumes of mail. Mr. Kelley explained that staff members must be able to clearly and quickly see the addresses of the sender and recipient. Mr. Kelley testified that if drawings were allowed on the front of envelopes, it would inhibit the ability of mailroom staff members to efficiently do their job, because it would increase the time required to process a letter from approximately 5 to 20 seconds. In addition, Mr. Kelley testified that ODOC staff members need room to write on the envelope if it needs to be rerouted to a different housing area or facility.
6 The trial was held on February 19. Mr. Toombs explained that there were higher than average numbers of envelopes with drawings, doodles, and other forbidden artwork on the days near February 14, Valentine’s Day. 9- FINDINGS OF FACT AND CONCLUSIONS OF LAW

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Mr. Kelley also testified that incoming postcards could not have any drawings on them. However, he was unable to point to any rule that supported his assertion. When pressed on crossexamination to identify a rule that prohibits drawings on postcards, Mr. Kelley referred to OAR 291-131-0025(6), which says nothing about drawings or postcards.7
Prior to trial, Defendants argued that the ban on artwork on the front of envelopes is needed to promote the goals of security and efficiency. At trial, Defendants’ primary argument was based on efficiency. Mailroom staff must sort hundreds of pieces of incoming mail every day and, arguably, it would hurt efficiency to allow drawings on the front of envelopes because it would make it more difficult for staff members to read the recipient’s SID number and address. In addition, drawings could interfere with the space on the envelope needed by staff members to write the recipient’s bunk number and, potentially, to correct that bunk number if the mail later needed to be rerouted. Defendants argued that security would be impacted as an offshoot of the impact on efficiency. Because staff members would spend more time processing envelopes with drawings on them, they would not be able to spend as much time ensuring that all of the mail was properly screened for security issues.
CONCLUSIONS OF LAW To prevail on a § 1983 claim, a plaintiff must prove by a preponderance of evidence (1) that a right secured by the Constitution or laws of the United States was violated, and (2) that the alleged violation was committed by a person acting under the color of state law. Long v. Cnty. of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006) (elements of § 1983 claim); Dias v. Elique,
7 OAR 291-131-0025(6) states: “Inmates may receive catalogs, advertisements, brochures, promotional materials, pamphlets, sweepstakes, and contest materials solicited by the inmate provided the materials are properly addressed with the inmate’s full name and SID number and are received directly at the correct address of whether the inmate is currently housed. These materials must conform to any content restrictions contained within this rule.” Pl.’s Ex. 1. 10- FINDINGS OF FACT AND CONCLUSIONS OF LAW

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436 F.3d 1125, 1129 (9th Cir. 2006) (a plaintiff must prove § 1983 claim by a preponderance of

evidence). There is no dispute in this case that Defendants acted under color of state law. Thus,

the only question is whether Defendants violated rights secured by the Constitution.

Prisoners have a “First Amendment right to send and receive mail.” Witherow v. Paff, 52

F.3d 264, 265 (9th Cir. 1995) (citation omitted). A prisoner's First Amendment rights, however,

are “subject to substantial limitations and restrictions in order to allow prison officials to achieve

legitimate correctional goals and maintain institutional security.” Walker v. Sumner, 917 F.2d

382, 385 (9th Cir. 1990) (citations omitted). “Where a state penal system is involved, federal

courts have . . . additional reason to accord deference to the appropriate prison authorities.”

Turner v. Safley, 482 U.S. 78, 85 (1987) (citation omitted).

I.

No Policy or Practice Prohibiting Artwork from the Front of Envelopes

As an initial matter, the Court finds that, despite Defendants’ assertion (which Plaintiff

appeared to accept for the purposes of this case), there is no ODOC policy or practice that

prohibits artwork on the front of envelopes containing incoming mail for inmates.

Unquestionably, there is no written policy. The plain language of OAR 291-131-0025,

the rule that every witness relied on, says nothing about what is prohibited on the front of

incoming mail envelopes. Furthermore, Defendants failed to present credible testimony

demonstrating the existence of any de facto policy or practice.

Ms. Raths’ job responsibilities include oversight of the administration and interpretation

of the mail rules, yet she testified that no ODOC policy prohibits artwork from the front of

envelopes and that the practice of individual mailroom staff members will vary. While she later

sought to correct her testimony by stating that all superintendents within ODOC consistently

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applied the rule to prohibit artwork on the front of incoming mail, this testimony is not credible in light of her previous candid assertions.
Mr. Toombs presented conflicting testimony as well. On the one hand, he explained that his understanding that artwork is prohibited from the front of envelopes was derived from instructions from the prior mailroom supervisor in 2011. He later stated that OAR 291-131-0025 provided the only basis for his understanding yet, as discussed above, OAR 291-131-0025 says nothing about prohibited content.
Finally, while Mr. Kelley testified that OAR 291-131-0025 is interpreted to forbid artwork on the front of envelopes, his credibility was called into question by his insistence that ODOC also forbids drawing on postcards, an assertion that contradicts Defendants’ position earlier in this case and has no support in the OAR Mr. Kelley cited.
On the other hand, Plaintiff credibly testified that he has sent numerous envelopes with artwork on the front during the time he has been incarcerated and has never had an envelope violated, except the one at issue in this case. The “turtle envelopes” add credibility to Plaintiff’s testimony and support the conclusion that there is no consistent policy or practice of violating these kinds of envelopes.
Mr. Toombs testified that there was no problem with the content of Plaintiff’s drawing, only the location of it on the front of the envelope. Mr. Toombs also testified that he was familiar with Plaintiff’s name because Plaintiff requested materials from the legal library to be sent to him. Plaintiff testified that he has filed several lawsuits against ODOC. If mailroom staff knew Plaintiff’s name, considered him an adversary of ODOC, and therefore targeted his mail, this would constitute a violation of Plaintiff’s First Amendment rights. The Court finds it more likely
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that Plaintiff’s envelope was violated due to its content—a drawing of barbed wire, three skulls, and dice. This too violates the First Amendment.
The Supreme Court has made clear that “a prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). Given that there is neither a policy nor practice that is consistently enforced to prohibit artwork on the front of envelopes of incoming mail, the Court must conclude that Plaintiff’s envelope was violated either because of Plaintiff’s identity or because of the content of the drawing. Defendants are unable to assert any legitimate policy reason that would justify violating Plaintiff’s envelope for either reason. II. Turner Factors
While the analysis could end here, the Court nevertheless assumes for the sake of argument that ODOC has a de facto policy prohibiting artwork from the front of envelopes. Even granting Defendants this benefit of the doubt, Plaintiff prevails. The Court analyzes the constitutionality of this policy under the Turner factors and concludes that Plaintiff’s First Amendment rights were violated.
To determine whether a correctional institution's regulation that “impinges on inmates' constitutional rights” is valid, the court must determine whether that regulation “is reasonably related to legitimate penological interests.” Id. at 89. To “guide[ ] courts in determining whether a challenged regulation passes constitutional muster,” the Ninth Circuit applies the four-pronged test set forth in Turner. Frost v. Symington, 197 F.3d 348, 354 (9th Cir. 1999). Under this test, courts must determine:
(1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to 13- FINDINGS OF FACT AND CONCLUSIONS OF LAW

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exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, 482 U.S. at 89– 90). “The first of these factors constitutes a sine qua non,” Walker, 917 F.2d at 385, meaning that “if a regulation is not rationally related to a legitimate and neutral governmental objective, a court need not reach the remaining three factors.” Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005). a. Rational Relationship Under the first Turner factor, “there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89 (internal quotation marks and citation omitted). This requires the Court to “determine whether the governmental objective underlying the policy is (1) legitimate, (2) neutral, and (3) whether the policy is ‘rationally related to that objective.’” Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (en banc) (quoting Thornburgh v. Abbott, 490 U.S. 401, 414 (1989)). As discussed in the Findings of Fact, Defendants identified two objectives in enforcing the incoming mail policy: (1) to promote efficiency, and (2) to enhance security. Efficiency and security are legitimate penological objectives. Prison Legal News v. Columbia Cnty., 942 F. Supp. 2d 1068, 1082 (D. Or. 2013) (quoting Freeman v. Tex. Dep't of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004) (“staff and space limitations, as well as financial burdens, are valid penological interests”), and Abbott, 490 U.S. at 415 (the “legitimacy of the Government's purpose in [protecting prison security] is beyond question”)). Whether a regulation is neutral depends on whether it operates “without regard to the content of the expression.” Turner, 482 U.S. at 90. On its face, ODOC’s incoming mail policy 14- FINDINGS OF FACT AND CONCLUSIONS OF LAW

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does not restrict mail based on content. However, the evidence suggests that, in practice, the application of the policy is content-based. Plaintiff’s drawing of skulls, dice, and barbed wire was rejected, while his drawings of turtles on four separate envelopes were not rejected. This suggests that mailroom staff members make decisions as to whether to reject drawings based on their content. Because the entire policy is unwritten and is based on the interpretation of a rule, the Court finds it likely that mailroom staff members’ interpretation of the rule’s meaning varies.
Witness testimony at trial supports this conclusion. Plaintiff testified that he has sent mail to other inmates with drawings on the front of envelopes for many years and the envelopes have never been rejected. 8 Ms. Raths testified that staff members’ interpretation of the policy likely varied and that she imagined that most mailroom staff would not have concerns with a small piece of artwork on an envelope. She also testified that taking the time to violate an envelope with a turtle drawing would probably be a lower priority for mailroom staff members than enforcing other violations of the incoming mail rule.
Even assuming arguendo that the policy is applied in a neutral manner, with no restrictions based on content, ODOC fails to show that the policy is rationally related to the objectives of promoting efficiency and enhancing security. A “regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.” Turner, 482 U.S. at 89–90. Although the Court must uphold a regulation that bears a rational relationship to a legitimate penological interest, this standard “is not toothless.” Abbott, 490 U.S. at 414 (internal quotation marks and citation omitted). “Turner requires prison authorities to show more than a formalistic logical connection between a regulation and a penological objective.” Beard v. Banks, 548 U.S. 521, 535 (2006). 8 Plaintiff also testified that his envelope was rejected as retaliation for his pending lawsuits against ODOC. The Court does not find evidence to support this allegation. 15- FINDINGS OF FACT AND CONCLUSIONS OF LAW

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The government may demonstrate a rational relationship by showing “an intuitive, common[-]sense connection” between the prison's policy and its objectives. Frost, 197 F.3d at 356. If the plaintiff does not “present sufficient evidence to refute [that] common-sense connection . . . ‘[the government] need not prove that the banned material actually caused problems in the past, or that the materials are “likely” to cause problems in the future.’” Prison Legal News v. Cook, 238 F.3d 1145, 1150 (9th Cir. 2001) (quoting Mauro, 188 F.3d at 1060). “The only question is whether prison administrators reasonably could have thought the regulation would advance legitimate penological interests.” Id. If, however, the plaintiff presents sufficient evidence to refute the government's common-sense connection between the regulation and its objectives, the government “must present enough counter-evidence to show that the connection is not so ‘remote as to render the policy arbitrary or irrational.’” Frost, 197 F.3d at 357 (quoting Mauro, 188 F.3d at 1060).
With respect to promoting efficiency, Defendants argue that the incoming mail policy saves mailroom staff members time. There is a common-sense connection between the policy and promoting efficiency: If the fronts of envelopes are clear of any extraneous information, then mail room staff members will be able to process the envelopes more quickly and they will be able to deliver them to inmates more efficiently.
However, Plaintiff presented convincing evidence to refute this common-sense connection. The evidence establishes that mailroom staff does not uniformly reject all envelopes with artwork on the front. Therefore, the process of screening envelopes with artwork on them is not a fast, uniform decision requiring no discretion. Instead, the evidence suggests that staff is taking time to determine, based on the content, whether to violate each piece of mail.
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Violating a piece of mail takes extra time. It is undisputed that it takes longer to violate a piece of mail than to allow it through. Witnesses testified that it adds anywhere from 20 seconds to 5 minutes of additional time to a staff member’s work. Therefore, processing an envelope with a drawing on it that poses no distraction to staff members and does not obstruct the recipient’s name or address takes less time than rejecting it. There is no evidence to suggest that, if artwork were allowed on the front of envelopes, all subsequent artwork would be distracting and interfere with staff members’ ability to process the mail. The “turtle envelopes” provide an example of how staff members are able to process an envelope with artwork that does not encroach upon the recipient’s address.
The question of efficiency boils down to whether, in the absence of a policy banning artwork from the front of envelopes, there would be a significant increase, not just of envelopes with artwork on the front, but envelopes with artwork on the front that caused a distraction or delay in staff members’ processing times. The Court finds that it is unlikely that such an increase would result from a change in policy. Alternatively, any increase would be de minimis. In Prison Legal News v. Columbia Cnty., 942 F. Supp. 2d 1068, 1084 (D. Or. 2013), the court found that the jail’s potential time savings of a few minutes each day by enacting a postcard-only policy was “too small to create a rational connection between the policy and promoting efficiency at the Jail.” Similarly here, Defendants have put forward no evidence to support a rational connection between banning artwork on the front of envelopes and increasing efficiency within the prison.
As to security, there is not an intuitive, common-sense connection between banning artwork on the front of envelopes and enhancing prison security. Defendants’ security argument is intertwined with their efficiency argument. Defendants contend that, because the policy enhances efficiency, it must also positively impact security because mailroom staff members
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have more time to effectively screen mail for security issues. This rationale, however, is only compelling to the extent that the policy increases efficiency. Because the evidence does not establish that it does, Defendants’ security argument fails.
No evidence was presented at trial to support the contention that allowing artwork on the front of envelopes would cause security problems. Granted, under Ninth Circuit precedent, Defendants need not prove that there have been past security lapses due to mailroom staff spending time processing envelopes with artwork on the front. See Casey v. Lewis, 4 F.3d 1516, 1521 (9th Cir. 1993). However, the absence of any evidence that artwork on the front of envelopes leads to a security problem or has led to one in the past undermines Defendants’ arguments. Mauro, 188 F.3d at 1060 n. 3 (“Although it is not required that prison officials be able to show that the prohibited materials have actually caused problems in the past, ... their ability to do so certainly strengthens their case.” (internal citation omitted)). Turner does not give prison officials a “blank check” to restrict constitutional rights. See Johnson v. California, 543 U.S. 499, 547 (2005) (Thomas, J., dissenting).
Furthermore, pursuant to OAR 291-131-0025(11)(B) and all of the witnesses’ testimony, “hand-made drawings” may be allowed if they are enclosed in the envelope. Additionally, all of the witnesses testified that artwork is allowed on the back of envelopes. Therefore, any security concern that could arise by allowing artwork on the front of envelopes is refuted by the fact that ODOC allows it in other places. Such an outcome demonstrates that the policy is arbitrary, and is not rationally related to enhancing prison security.
The Court concludes, therefore, that the incoming mail policy fails to satisfy Turner's rational relationship factor. Because “the rational relationship factor is the sine qua non,” if a policy is not rationally related to a legitimate and neutral governmental objective, a court need
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 19 of 28
not reach the remaining three factors. Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Morrison v. Hall, 261 F.3d 896, 904 (9th Cir. 2001).
Nevertheless, the Court analyzes the remaining Turner factors. Even if the first factor were not dispositive, the remaining three Turner factors either similarly favor Plaintiff or are neutral as to favoring any party. In examining the remaining factors, the Court must bear in mind that the “real task ... is not balancing these factors, but rather determining whether [Defendants] show[ ] more than simply a logical relation” between the incoming mail policy and their legitimate penological goals. Beard, 548 U.S. at 533.
b. Alternative Avenues The second factor of the Turner test “is whether there are alternative means of exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90. “In applying this factor, ‘the right in question must be viewed sensibly and expansively.’” Mauro, 188 F.3d at 1061 (quoting Abbott, 490 U.S. at 417). Thus, the Supreme Court has upheld a prohibition on inmates' ability to attend the Jumu'ah, a Muslim religious ceremony, because inmates were permitted to participate in other Muslim religious ceremonies. O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). The Supreme Court has also upheld a restrictive prisoner visitation policy in part because “inmates may communicate with persons outside the prison by letter and telephone.” Overton v. Bazzetta, 539 U.S. 126, 135 (2003). The Court noted that “[a]lternatives to visitation need not be ideal ...; they need only be available.” Id. Defendants assert that Plaintiff has the alternative means of sending mail with his drawing on the back of the envelope or enclosed in the envelope. Plaintiff testified that, in terms of his self-expression, there is no alternative to sending art on the front of the envelope. He testified that resources are limited for inmates and that this is an avenue in which he may express
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 20 of 28
himself without using up precious room on paper reserved for letters. He also explained that it is important for his rehabilitation.
In balancing the parties’ positions and considering evidence presented at trial, the Court concludes that this factor is neutral. Defendants’ incoming mail policy limits an important avenue of communicating art, but inmates retain alternative avenues, including sending art within the contents of the mailing itself or alternative mailing mediums such as postcards.
c. Effects on staff, inmates, and resources The third Turner factor “is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner, 482 U.S. at 90. According to Turner, “courts should be particularly deferential to the informed discretion of corrections officials” when accommodating a constitutional right that will have “have a significant ‘ripple effect’ on fellow inmates or on prison staff.” Id. In Turner, the Court found that allowing certain inmate-to-inmate correspondence could “be exercised only at the cost of significantly less liberty and safety” for inmates and staff generally and, therefore, the court upheld certain restrictions on such correspondence. Id. at 92– 93. This factor often weighs heavily when courts consider mail policies that restrict potentially disruptive content, such as depictions or descriptions of violence, escape, or criminal activity, sexually-explicit materials, and role-playing games, see, e.g., Frost, 197 F.3d at 351–52; Bahrampour v. Lampert, 356 F.3d 969 (9th Cir. 2004), or where the challenged regulation saves the prison substantial resources, see, e.g., Overton v. Bazzetta, 539 U.S. 126, 135 (2003). Here, accommodating envelopes with drawings on the front of the envelopes is unlikely to have a “significant ripple effect” on inmates and staff. Defendants present no evidence showing that art placed on the outside of the envelope poses a greater risk than the same art
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 21 of 28
placed on the inside of the envelope and no evidence showing the effects envelope art has on staff or prisoners. Because no inmates see or handle mail until it is delivered to them, in their cell, there is no difference in the number of people who will see art on the front of the envelope from those who would see that same art on the inside or on the back. In addition, as explained above, Defendants present no evidence showing that the time or money saved by unconditionally rejecting all art on the front of envelopes is anything more than de minimis. Thus, the third Turner factor suggests that the incoming mail policy is not rationally related to legitimate penological goals.
d. Easy and Obvious Alternatives The final Turner factor requires the court to “consider ‘whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.’” Morrison, 261 F.3d at 905 (internal quotation omitted). If a “claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Turner, 482 U.S. at 91. Here, several obvious, easy alternatives exist. For example, ODOC could prohibit artwork on envelopes only if it interfered with mailroom staff members’ ability to see the sender’s and recipient’s addresses. Or a policy could prescribe a certain portion of the envelope that must be left blank in order to accommodate mailroom staff members’ needs to write the bunk number on the envelope. Furthermore, witnesses at trial discussed an impending technological improvement in the mailroom, whereby staff members will print labels for incoming mail instead of handwriting inmates’ housing location. These labels may obviate some of the need for extra blank space on an envelope. This fourth factor favors Plaintiff.
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 22 of 28
e. Summary of Turner Factors In sum, the Court finds that, with regard to the four Turner factors, three of the four favor Plaintiff and one is neutral. The incoming mail policy blocks a narrowly defined form of expression—artwork on the front of envelopes—at too great an expense to the First Amendment rights of inmates and their correspondents. Plaintiff has thus proven by a preponderance of the evidence that Defendants violated his First Amendment rights. III. Injunctive Relief The parties stipulated that, for the purpose of ordering injunctive relief, Ms. Raths and Colette Peters, current director of ODOC, are proper defendants in their official capacities. See Pre-Trial Order, [166]. Ms. Raths and Ms. Peters will be responsible for implementing and administering any injunctive relief with regard to ODOC’s mail policies that may be ordered by the Court in this case. Id. To obtain a permanent injunction, a “plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.” eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006). “The decision to grant or deny permanent injunctive relief is an act of equitable discretion by the district court[.]” Id. Where, as here, a plaintiff seeks an injunction against a state or local government agency, “federal courts must be constantly mindful of the special delicacy of the adjustment to be preserved between federal equitable power and State administration of its own law.” Rizzo v. Goode, 423 U.S. 362, 378 (1976) (internal quotation marks and citation omitted).
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 23 of 28
a. Irreparable injury Plaintiff has demonstrated irreparable harm because the “loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Assoc. Gen. Contractors 1091 of Cal., Inc. v. Coal. for Econ. Equity, 950 F.2d 1401, 1412 (9th Cir. 1991) (“We have stated that an alleged constitutional infringement will often alone constitute irreparable harm.” (internal quotation marks, citation, and alterations omitted)). b. Inadequacy of damages In cases, like this one, that involve constitutional violations, this factor merges with the first factor. See Stormans, Inc. v. Selecky, 586 F.3d 1109, 1138 (9th Cir. 2009) (quoting Nelson v. Nat'l Aeronautics & Space Admin., 530 F.3d 865, 872 (9th Cir. 2008) (“Unlike monetary injuries, constitutional violations cannot be adequately remedied through damages and therefore generally constitute irreparable harm.”). Because Plaintiff has shown that Defendants violated the First Amendment, and because the loss of First Amendment freedom constitutes irreparable harm, Plaintiff has demonstrated that monetary damages are inadequate. c. Balance of equities The third factor requires the court to balance the equities. “In assessing whether the plaintiffs have met this burden, the district court has a duty to balance the interests of all parties and weigh the damage to each.” Stormans, 586 F.3d at 1138 (internal quotation marks, citation, and alteration omitted). The party seeking a permanent injunction “must satisfy the court that relief is needed. The necessary determination is that there exists some cognizable danger of recurrent violation.” United States v. W.T. Grant Co., 345 U.S. 629, 633 (1953).
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 24 of 28
Plaintiff has established that ODOC’s incoming mail policy burdens his First Amendment rights, as well as the First Amendment rights of other inmates and their correspondents. Defendants face the possibility of spending a minimal amount of additional time each day looking more closely at envelopes in order to read the recipient’s address. The constitutional hardship is far greater than the insignificant potential impact on Defendants' time and resources.
At trial, Ms. Raths testified that there are no current plans to change ODOC’s incoming mail policy as to what is allowed on the front of envelopes. There has been no indication from any of the parties that ODOC will change its policy absent a court-ordered permanent injunction. Therefore, the Court concludes that the balance of equities tips in favor of granting a permanent injunction.
d. Public interest “The public interest inquiry primarily addresses [the] impact on non-parties rather than parties.” Sammartano v. First Judicial Dist. Court, 303 F.3d 959, 974 (9th Cir. 2002). “When the reach of an injunction is narrow, limited only to the parties, and has no impact on non-parties, the public interest will be at most a neutral factor in the analysis rather than one that favors granting or denying the preliminary injunction.” Stormans, Inc., 586 F.3d at 1138–39 (internal quotation marks, citation, and alteration omitted). Here, however, the public interest favors entering a permanent injunction. As this case deals with ODOC’s incoming mail policy, it affects all members of the public who wish to communicate with inmates. A permanent injunction enjoining Defendants from enforcing a blanket ban on artwork on the front of envelopes will permit inmates and nonparty members of the public to more easily and effectively communicate with each other by mail.
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 25 of 28
No envelope will be rejected solely because it has artwork on it, which will enable mail to reach inmates more quickly. The parties have not suggested that a permanent injunction will affect any other non-parties.
e. Scope of injunction After considering each of the four factors set forth by the Supreme Court in eBay, the Court concludes that a permanent injunction enjoining the incoming mail policy is warranted. Before issuing a permanent injunction, however, the Court must consider the Prison Litigation Reform Act (“PLRA”), 18 U.S.C. § 3626. The PLRA provides: Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of the Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a). An “injunction employs the least intrusive means necessary when it heels close to the identified violation, and 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.” Clement v. Cal. Dep't of Corr., 364 F.3d 1148, 1153 (9th Cir. 2004) (internal quotation marks, citations, and alterations omitted). As described in the Conclusion below, the Court will issue a permanent injunction enjoining Defendants from rejecting or otherwise prohibiting incoming mail due to artwork on the front of the envelope, unless the art is found to violate other ODOC rules, such as those against violence. The Court will also require ODOC to provide notice to inmates, informing them that they are permitted to receive envelopes with artwork on them, as long as the artwork complies with other applicable ODOC rules. The injunction will address only the incoming
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 26 of 28
inmate mail policy and does not intrude on any other aspect of ODOC’s administration. The injunction will not provide for ongoing Court supervision and will not require Defendants to submit compliance reports, institute trainings, or submit revised policies to the Court for review. The Court finds, therefore, that such an injunction would be narrowly drawn, extend no further than necessary to correct the First Amendment violations, and is the least intrusive means necessary to correct the violation of the federal right. See id. (upholding district court injunction where injunction did not require court supervision and was only broad enough to enjoin the unconstitutional policy); see also, Prison Legal News v. Columbia Cnty., 942 F. Supp. 2d 1068, 1090-92 (D. Or. 2013). IV. Declaratory Judgment
The Court also grants Plaintiff a declaratory judgment that ODOC’s policy violated his First Amendment rights. The Declaratory Judgment Act, 28 U.S.C. § 2201, allows individuals to seek a declaration of the constitutionality of a disputed governmental action. See Duke Power Co. v. Carolina Envtl. Study Grp., Inc., 438 U.S. 59, 71 n. 15 (1978). To issue a declaration, the Court must address two conditions. “First, the court must inquire whether there is a case of actual controversy within its jurisdiction.” Am. States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir. 1994). Second, “the court must decide whether to exercise that jurisdiction. The statute gives discretion to courts in deciding whether to entertain declaratory judgments[.]” Id. at 143–44.
The parties agree that Ms. Raths and Ms. Peters, in their official capacities, are properly named as defendants as to declaratory relief. However, Defendants argue that Mr. Premo and Ms. Dodson are not liable to Plaintiff because they did not personally participate in the violation of his constitutional rights when they reviewed and denied his request for administrative review of his rejected envelope.
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 27 of 28
To establish a Section 1983 claim against an individual defendant, a plaintiff must establish personal participation by the defendant in the alleged constitutional deprivation. Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009); Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). A supervisor may be liable based on his or her personal involvement in the alleged deprivation, or if there is a sufficient causal connection between the supervisor's alleged wrongful conduct and the alleged deprivation, Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989), but a “supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989), citing Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680–81 (9th Cir. 1984).
Defendants argue that Section 1983 liability may not be based merely on a plaintiff’s dissatisfaction with the administrative process or a decision on appeal. Defendants cite cases from the Ninth Circuit that establish that there is not a “separate constitutional entitlement to a specific prison grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003); see also Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988).
However, Plaintiff is not merely dissatisfied with the administrative process. Plaintiff alleges that Mr. Premo and Ms. Dodson knew of the violation of his constitutional rights and failed to act. The evidence shows that Mr. Premo and Ms. Dodson were aware of the mailroom staff members’ conduct in rejecting Plaintiff’s letter. Both Mr. Premo and Ms. Dodson rejected Plaintiff’s attempt to appeal based on the unconstitutional incoming mail rule. Pl.’s Ex. 5, 7. Mr. Premo and Ms. Dodson, as the Superintendent of OSP and the OSP Grievance Coordinator’s supervisor, respectively, could have acted to prevent the violation of Plaintiff’s rights. Therefore,
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Case 6:11-cv-06358-HZ Document 173 Filed 03/30/15 Page 28 of 28
the evidence shows that Mr. Premo and Ms. Dodson’s denial of Plaintiff’s appeal constituted a direct violation of his constitutional rights.
CONCLUSION Defendants violated Plaintiff’s First Amendment rights. Plaintiff is entitled to declaratory judgment and a permanent injunction enjoining Defendants from rejecting or otherwise prohibiting incoming mail for containing artwork on the front of envelopes. Plaintiff is also entitled to an order requiring Defendants to inform inmates that they are permitted to receive letters with artwork on the front of envelopes. Plaintiff shall prepare a judgment in accordance with these Findings of Fact and Conclusions of Law. After conferring with Defendants, Plaintiff shall submit the proposed judgment to the Court for review within 30 days of the date below. If the parties cannot agree on a judgment, Plaintiff shall notify the Court, which will then schedule a telephone conference with counsel. IT IS SO ORDERED.
Dated this ______ day of ____________________, 2015.
MARCO A. HERNÁNDEZ United States District Judge
28- FINDINGS OF FACT AND CONCLUSIONS OF LAW

 
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• 


Case 6:11-cv-06358-HZ Document 2 Filed 11/10/11 Page 18 of 23

regon
Theodore R. Kulongoski, Governor
February 24, 2011

Department of Corrections
Oregon State Penitentiary 2605 State Street Salem, OR 97310 (503) 378-2453
FAX: (503) 378-3897

Mr. Jacob Barrett, NMCD #72237 Penitentiary of New Mexico PO Box 1059 Santa Fe, New Mexico 87504-1059
Dear Mr. Barrett:
This is in response to your request for a mail review regarding a letter you sent to inmate Chris Weedmark, #13949338. The letter was returned to you due to art work being on the envelope.
Oregon Revised Statute, 291-131-0025, Mail (Inmate) states, "Incoming Mail: (1) Incoming mail shall require the sender's name and return address on the front of the envelope and shall be addressed to the inmate using only his/her committed name and SID number."
In accordance with the above rule, incoming mail will be denied and returned to sender if that mail contains anything other than postage, the senders name and return address and the addressed inmate's name, SID number and address.
You will not be reimbursed the postage of the letter to inmate Weedmark or the letter you sent appealing the violation.
Sincerely,

JP:jhd
cc: J. Hanson, Grievance/Mail Review File

Case 6:11-cv-06358-HZ Document 2 Filed 11/10/11 Page 19 of 23 " 


• 


Case 6:11-cv-06358-HZ Document 2 Filed 11/10/11 Page 20 of 23

Dregon
Theodore R. Kulongoski, Governor
March 16, 2011

Department of Corrections
Oregon State Penitentiary 2605 State Street Salem, OR 97310 (503) 378-2453
FAX: (503) 378-3897

Mr. Jacob Barrett, #72237 Penitentiary of New Mexico PO Box 1059 Santa Fe, New Mexico 87504-1059
Dear Mr. Barrett:
This is in response to your letter to Jason Hanson, OSP Grievance Coordinator, dated March 8, 2011, requesting a review of Superintendent Premo's decision denying your appeal for a mail violation.
OAR 291-131-0037, Disposition of Prohibited Mail states, "No administrative review shall be available if the rejection is based on the presence of an unauthorized attachment, sUbstance or enclosure on or with the mail, or if the rejection is based on any violation not related to the written or pictorial content."
You are not eligible for any further review on this issue. I consider the matter closed
and no further communications on this topic will be addressed.
~ Whitn~ ~
Michelle Executive Assistant to the Superintendent
mwd
cc: J. Premo, Superintendent J. Hanson, Grievance/Mail Review 
 File 


Case 6:11-cv-06358-HZ Document 2 Filed 11/10/11 Page 21 of 23
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f

Case 6:11-cv-06358-HZ Document 2 Filed 11/10/11 Page 22 of 23

"Oregon

Department of Administrative Services

John A. Kitzhaber, MD, Governor

State Services Division Risk Management

1225 Ferry ?treet SE, U150

Salem, Oregon 97301-4287

April 26, 2011

Phone (503) 373-7475 FAX (503) 373-7337

JACOB BARRETT ISID 72237 NORTH 3A-Q-107 PO BOX 1059 SANTA FE NM 87504

Re: Claimant:

Jacob Barrett

Claim Number: L146818

Date of Loss: February 02, 2011

ACKNOWLEDGMENT

We have received your notice of claim.
We are currently conducting an investigation through the Department of Corrections. You will be contacted when it is completed.

Inmate Claims Unit 6818d26a

Case 6:11-cv-06358-HZ Document 2 Filed 11/10/11 Page 23 of 23
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 Case 6:11-cv-06358-HZ Document 176 Filed 05/14/15 Page 1 of 2

UNITED STATES DISTRICT COURT DISTRICT OF OREGON

JACOB BARRETT,
Plaintiff, v.
COLETTE PETERS, et al.,
Defendants.

Civil No. 6:11-cv-06358-HZ JUDGMENT

HERNÁNDEZ, District Judge:

The Court heard a trial on this case on February 19, 2015, on claims that Defendants

prohibit drawings on envelopes in violation of the First Amendment. The Court reviewed the

memoranda, declarations, pleadings on file, exhibits, and arguments of counsel, and heard

testimony from the parties' witnesses. On March 30, 2015, the Court issued Findings of Fact and

Conclusions of Law, [173]. Based upon those Findings and Conclusions, the Court enters this

Final Judgment in favor of Plaintiff and against all Defendants as follows:

I.

INJUNCTIVE RELIEF

The Court orders injunctive relief as follows:

A. Permanent Injunction Against Prohibiting Artwork on Envelopes

Defendants are permanently enjoined from rejecting, refusing to deliver or process, or

otherwise prohibiting incoming mail to inmates due to artwork on the front of the envelope,

1 - JUDGMENT

Case 6:11-cv-06358-HZ Document 176 Filed 05/14/15 Page 2 of 2

unless the art is found to violate other applicable rules of the Oregon Department of Corrections

("ODOC"), such as those against violence.

B. Notice to Inmates

Defendants are ordered to provide notice to inmates, informing them that they are

permitted to receive envelopes with artwork on them as long as the artwork complies with other

applicable ODOC rules, such as those against violence. ODOC shall provide this notice through

the ODOC newsletter that is issued to inmates on a routine basis.

II.

DECLARATORY RELIEF

The Court orders relief pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, as

follows: ODOC's policy of rejecting inmate mail for containing drawings or artwork on the front

of the envelope violated Plaintiff's First Amendment rights. Defendants Jeff Premo and Michelle

Dodson violated Plaintiff's First Amendment rights by denying Plaintiff's appeal of ODOC's

rejection of his letter for containing artwork on the envelope and affirming that rejection.

III.

ATTORNEY FEES, COSTS, AND DISBURSEMENTS

Pursuant to the Civil Rights Attorney's Fee Award Act, the Court awards to Plaintiff his

reasonable attorney fees, costs, and disbursements in an amount to be determined consistent with

42 U.S.C. § 1988 and, to the extent deemed applicable by the Court, 42 U.S.C. § 1997e(d).

Plaintiff shall submit a statement of attorney fees and costs within 14 days of the date below.

IT IS SO ORDERED.

DATED this

day of

, 2015.

Marco A. Hernández United States District Judge

2 - JUDGMENT

 
 Case 6:11-cv-06358-HZ Document 29 Filed 06/05/12 Page 1 of 12

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Barrett v. Peters et al, Docket No. 6:11-cv-06358 (D. Or. Nov 10, 2011), Court Docket
General Information

Court
Federal Nature of Suit Docket Number Status

United States District Court for the District of Oregon; United States District Court for the District of Oregon
Prisoner Petitions - Civil Rights[550]
6:11-cv-06358
Closed

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 13

 
 Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION

JACOB BARRETT, Plaintiff,
v. MAX WILLIAMS, et al.,
Defendants.
Jacob Barrett # 72237 North 3A-Q-107 Penitentiary of New Mexico PO Box 1059
Pro se Plaintiff Shannon M. Vincent OREGON DEPARTMENT OF JUSTICE Trial Division, CLS 1162 Court Street, NE Salem, OR 97301-0346
Attorney for Defendants
1 - OPINION & ORDER

Case No. 6:11-cv-06358-HZ OPINION & ORDER

Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 2 of 12
HERNANDEZ, District Judge: Jacob Barrett is an inmate of the Oregon Department of Corrections (“ODOC”) and is
currently in the custody of the New Mexico Corrections Department. While in custody at the New Mexico Corrections Department, plaintiff sent an envelope to his cousin, an inmate at the Oregon State Penitentiary (“OSP”). On the outside of the envelope was a picture that plaintiff had drawn. Because of the picture, the letter was returned to plaintiff.
Plaintiff alleges that (1) Max Williams, the former Director of ODOC; (2) Jeff Premo, the Superintendent at OSP; (3) Michelle Whitney Dodson, the Supervising Executive Assistant to Premo; and (4) “Jane Doe”, a mailroom administrator at OSP violated his First Amendment free speech rights and his Fourteenth Amendment due process rights. Plaintiff also alleges that defendants rejected his mailing in retaliation for lawsuits he has pending against the New Mexico Corrections Department.
Defendants filed a motion for summary judgment and motion for stay of discovery. Plaintiff, however, failed to file any response to defendants’ motions–even after being granted three extensions of time. For the reasons that follow, defendants’ motion for summary judgment (doc. #48) is GRANTED, and defendants’ motion for stay of discovery (doc. #55) is DENIED as moot.
STANDARD Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. E.g.,
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Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 3 of 12
Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party need only demonstrate that there is an absence of evidence to support the non-moving party’s case. Id. at 325.
Once the moving party has met its burden, the burden shifts to the non-moving party to “set out ‘specific facts showing a genuine issue for trial.’” Id. at 324 (quotation omitted). To carry this burden, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986).
In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. “Credibility 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 .” Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ’n Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
DISCUSSION I. First Amendment Free Speech Rights
Prisoners enjoy a “First Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citing Thornburgh v. Abbott, 490 U.S. 401, 407 (1989)). A prisoner’s First Amendment rights, however, are “subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security.” Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990) (citations
3 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 4 of 12
omitted). “Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.” Turner v. Safley, 482 U.S. 78, 85 (1987) (citation omitted).
To determine whether a correctional institution’s regulation that “impinges on inmates’ constitutional rights” is valid, the court must determine whether that regulation “is reasonably related to legitimate penological interests.” Id. at 89. Legitimate penological interests include “security, order, and rehabilitation.” Procunier v. Martinez, 416 U.S. 396, 413 (1974) (overruled on other grounds by Thornburgh, 490 U.S. at 413-14). To “guide[] courts in determining whether a challenged regulation passes constitutional muster”, the Ninth Circuit applies the fourpronged test set forth in Turner. Frost v. Symington, 197 F.3d 348, 354 (9th Cir. 1999). Under this test, courts must determine:
(1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, 482 U.S. at 8990). A. The First Turner Factor The first Turner factor has two sub factors. First, there must be “a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Id., 482 U.S. at 90 (citation and quotation marks omitted). A regulation cannot be sustained where the “logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational”. Id. at 90-91 (citation omitted). Second, the “governmental objective must be . . . legitimate and neutral”. Id. The correctional institution
4 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 5 of 12
may demonstrate a rational relationship by showing “an intuitive, common[-]sense connection between the state’s policy and its objectives.” Frost, 197 F.3d at 356.
Defendants maintain that they satisfy the first Turner factor. Defendants contend that the ODOC mail rules prohibit the placement of any drawings on the outside of envelopes, citing Oregon Administrative Rule (“OAR”) 291-131-0025(1). OAR 291-131-0025(1) provides that all “[i]ncoming mail shall require the sender’s name and return address on the front of the envelope and shall be addressed to the inmate using only his/her committed name and SID number.” Defendants assert that pursuant to OAR 291-131-0025(1), only names, applicable state identification (“SID”) numbers, and addresses of senders and intended recipients may be placed on the outside of envelopes.
Plaintiff concedes that he “drew a picture” on the envelope he sent to his cousin and concedes that his letter was rejected pursuant to OAR 291-131-0025 because of the picture he had drawn. Second Am. Compl., ¶¶ VI(1)-(2), (6). Plaintiff, however, alleges that the drawing constitutes “art”, and therefore the rejection of his letter violated his First Amendment right to free speech. Id. ¶¶ VI(1)-(2), VII(1)-(2). Plaintiff further alleges that defendants’ “blanket ban” on “envelope art” is not rationally related to a legitimate penological objective, that defendants’ rejection of his letter was an “unreasonable application of the ODOC mail prohibition rules” not “rationally related to any legitimate security concerns”, and that the ODOC rules under which his letter was rejected is “overbroad”. Id. ¶¶ VII(A)(1)-(5). I disagree with plaintiff’s allegations.
1. Rational Connection Defendants establish an intuitive, common-sense connection between ODOC’s mail regulations and the government’s objectives of efficiently processing all incoming mail and maintaining a safe and secure environment within OSP. With regard to efficiency, defendants
5 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 6 of 12
present evidence showing that OSP processes “as much as 5,000 pieces of mail daily” and that allowing mailroom staff to reject mail not satisfying the “technical requirements” of ODOC’s mail rules increases efficiency and saves money. See Declaration of Randy Geer (“Geer Decl.”), ¶¶ 8, 9 12-15. They also present evidence showing that allowing OSP mail staff to return mail violating “technical portion[s]” of the ODOC mail rules saves time and money because it permits mail staff to return mail “without opening [mail] and without cost” to ODOC. Id., ¶ 8.
With respect to security, defendants present evidence showing that restricting what may be placed on the outside of mailings helps to maintain a safe and secure environment. Defendants present evidence showing that all mail received may pose some threat of “criminal activity or discussion of past criminal acts” or may “illuminate[] the workings of criminal networks.” Id. ¶ 12. They contend that even a “drawing as innocuous as a fish or a tree on the outside of the envelope could alert [an] . . . inmate recipient to something special in the content of the letter” or “could be used to trigger another to act on same pre-arranged instruction.” Id. ¶ 14.
Based on the uncontroverted evidence before me, I conclude that ODOC’s mail regulations are rationally connected with legitimate government interests–namely, maintaining the safety and security of OSP’s inmates and staff and promoting the efficient use of OSP’s limited resources. See Thornburgh, 490 U.S. at 415 (“protecting prison security . . . is central to all other corrections goals”) (citation and quotation marks omitted); Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004) (“staff and space limitations, as well as financial burdens, are valid penological interests”) (citation omitted).
6 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 7 of 12
2. Neutrality The record before me also establishes that the mail regulations and the actions taken by defendants operated in a neutral fashion without regard to the content of plaintiff’s drawing. Defendants proffer declarations by Geer, the Chief of Inmate Services at ODOC, and Dodson which state that plaintiff’s letter was rejected because a drawing had been placed on the envelope, not because of the contents of the drawing. See Geer Decl., ¶¶ 1, 13; Dodson Decl., ¶ 10. The ODOC mail regulations themselves meet the neutrality criterion in Turner because they prohibit the placement of all drawings on the outside of envelopes, regardless of the contents of the drawings. In sum, the ODOC mail regulations to which plaintiff objects are rationally related to legitimate and neutral governmental objectives. Accordingly, I conclude that the first Turner factor weighs in favor of defendants. B. The Second Turner Factor The second Turner factor examines “whether there are alternative means of exercising the right that remain open to prison inmates.” Id., 482 U.S. at 89-90. The record here does not establish that plaintiff or any other inmate at OSP are foreclosed from exercising their free speech rights. To the contrary, the record demonstrates that inmates at OSP retain the right to engage in free expression so long as they do not make such expressions on the outside of envelopes. Indeed, plaintiff does not argue, and nothing in the record shows, that plaintiff was or remains precluded from sending the same drawing he placed on the outside of the envelope within the contents of a mailing. In light of the above, I conclude that the second Turner factor weighs in defendants’ favor.
7 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 8 of 12
C. The Third Turner Factor The third Turner factor considers the impact that the “accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. at 90. “When accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Id. (citation omitted). Here, the undisputed facts demonstrate that accommodating plaintiff’s right to include drawings on the outside of mailings would have a significant adverse impact on the prison as a whole because as noted above, it would adversely affect the efficiency in which OSP processes mail and the safety and security of OSP. Geer Decl., ¶¶ 8-9, 12, 14. Accordingly, I find that the third Turner factor weighs in favor of defendants. D. The Fourth Turner Factor The fourth and final Turner factor considers the absence and existence of alternatives. See id., 482 U.S. at 91. The “absence of ready alternatives is evidence of the reasonableness of a prison regulation” whereas the “existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns.” Id. (citation and quotation marks omitted). If a “claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. The Ninth Circuit, however, has made clear that “[t]his is not a least restrictive alternative test: prison officials do not have to set up and then shoot down every conceivable alternative method of
8 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 9 of 12
accommodating the claimant’s constitutional complaint.” Id. at 91-92 (citation and quotation marks omitted).
The record before me is devoid of any obvious or easy alternative to the ODOC mail regulations. Notably, Plaintiff does not point to a single alternative that would fully accommodate his rights at de minimis cost to the government’s valid penoligical interests, but rather simply seeks the elimination of the ODOC regulations that restrict drawings on envelopes in their entirety. See Second Am. Compl., ¶ VIII(B)(1)-(2). Because the ODOC mail regulations at issue here do not amount to an “exaggerated response” and because no obvious, easy alternative is readily available, I conclude that the fourth Turner factor weighs in favor of defendants.
In sum, the ODOC mail regulations which plaintiff challenges do not violate his First Amendment rights. Defendants’ motion for summary judgment as to plaintiff’s first claim for relief is therefore granted. II. Fourteenth Amendment Due Process Rights
Plaintiff alleges that Premo and Dodson violated his due process rights when they failed to provide him with a “reasonable and fair opportunity to object to [his mail] violation.” Id. ¶ (7)(B)(1)-(3), (5). Plaintiff further alleges that Dodson violated his due process rights by “refus[ing] to review [his] objections” and by refusing to “reasonably or fairly consider [his] appeal”. Id. ¶ (7)(B)(1)-(4).
It is well settled that “withhold[ing] delivery of [inmate mail] must be accompanied by minimum procedural safeguards.” Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (citation omitted). Constitutional due process requires that an inmate whose mail is rejected receive notice of the rejections and that any complaint be referred to a prison official other than the
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Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 10 of 12
person who originally disapproved the correspondence. See Procunier, 416 U.S. at 417-19 (overruled on other grounds by Thornburgh, 490 U.S. at 413-14); see also Krug v. Lutz, 329 F.3d 692, 697-98 (9th Cir. 2003) (withholding delivery of inmate mail must be accompanied by the “notice to the prisoner” and “the right to appeal the exclusion of incoming publications to a prison official other than the one who made the initial exclusion decision”).
The undisputed evidence here demonstrates that plaintiff was provided the requisite due process notice and right to appeal. Specifically, the record shows that plaintiff received notice by OSP that his mailing had been rejected because it contained a drawing on the outside. Second Am. Compl., ¶ VI(3); Dodson Decl., ¶ 4; Id., Attach. 2, p. 1. The record further shows that plaintiff appealed the rejection of his letter to Premo, and that Premo responded by informing him that his mailing violated OAR 291-131-0025(1). Second Am. Compl., ¶¶ V, VI(5)-(6); Dodson Decl., ¶¶ 6-7; Id., Attach. 2, pp. 1-3. The evidence also shows that plaintiff requested an administrative review of Premo’s decision, but was informed by Dodson that his request for review had been denied. Second Am. Compl., ¶ VI(7); Dodson Decl., ¶ 8-10; Id., Attach. 2, pp. 4, 6. Although plaintiff disagrees with the rejection of his letter and the denial of his grievances, it is apparent that plaintiff was provided the minimal procedural safeguards. Accordingly, defendants’ motion for summary judgment as to plaintiff’s due process claim is granted. III. Retaliation
Lastly, plaintiff alleges that the rejection of his letter was in retaliation “for having pending civil actions against the [New Mexico Corrections Department]”. Second Am. Compl., ¶ VII(H)(2). “A prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and
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Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 11 of 12
discipline.” Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)). “Of fundamental import to prisoners are their First Amendment right[s] to file prison grievances and to pursue civil rights litigation in the courts.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.2005) (citations and quotation marks omitted). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Id. at 567-568 (citations omitted).
Plaintiff makes no argument and presents no evidence supporting his retaliation claim. As discussed above, the record shows that defendants’ act of rejecting plaintiff’s letter advances legitimate penological goals. In addition, there is no showing in the record of a connection between the rejection of plaintiff’s letter and the alleged lawsuits he had against the New Mexico Corrections Department. In fact, plaintiff presents no evidence showing that he had any pending lawsuit against the New Mexico Corrections Department. Even if plaintiff were able to show that he had a pending lawsuit against the New Mexico Corrections Department, his claim would still fail because he presents no facts showing that defendants knew or had reason to know of any of his lawsuits. Plaintiff’s bare allegations by themselves are simply insufficient to create a triable issue of fact as to his retaliation claim. Defendants’ motion for summary judgment as to plaintiff’s retaliation claim is therefore granted.1
1 Having concluded that all of plaintiff’s claims against defendants must be dismissed, I decline to address whether defendants are entitled to qualified immunity. 11 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 73 Filed 02/22/13 Page 12 of 12

CONCLUSION

For the reasons stated above, defendants’ motion for summary judgment (doc. #48) is

GRANTED, and defendants’ motion for stay of discovery (doc. #55) is DENIED as moot.

IT IS SO ORDERED.

Dated this

day of ____________, 2013.

MARCO A. HERNANDEZ United States District Judge

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 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JACOB BARRETT,
Plaintiff,
v.
MAX WILLIAMS, et al.,
Defendants.
Jacob Barrett # 72237 North 3A-Q-107 Penitentiary of New Mexico PO Box 1059
Pro se Plaintiff
Shannon M. Vincent OREGON DEPARTMENT OF JUSTICE Trial Division, CLS 1162 Court Street, NE Salem, OR 97301-0346
Attorney for Defendants
1 - OPINION & ORDER

Case No. 6:11-cv-06358 OPINION & ORDER

HERNANDEZ, District Judge: This action arises out of a letter Jacob Barrett sent in January 2011 to his cousin, an
inmate at the Oregon State Penitentiary (“OSP”), when Plaintiff was in custody at the New Mexico Corrections Department (“NMCD”).1 Plaintiff’s letter was rejected and returned because of a picture he had drawn on the outside of the envelope. Plaintiff alleges that (1) Max Williams, the former Director of the Oregon Department of Corrections (“ODOC”); (2) Jeff Premo, the Superintendent at OSP; (3) Michelle Whitney Dodson, the Supervising Executive Assistant to Premo; and (4) “Jane Doe”, a mailroom administrator at OSP violated Plaintiff’s First Amendment free speech rights and his Fourteenth Amendment due process rights. Plaintiff also alleges that Defendants rejected his letter in retaliation for filing actions against ODOC and NMCD.
Now before me are Defendants’ motion for summary judgment (dkt. #48), Defendants’ motion for stay of discovery (dkt. #55), Plaintiff’s Motion to Dismiss Defendant Williams and Substitute Defendant Colette Peters (dkt. #90), Plaintiff’s Motion for Settlement Hearing (dkt. #91), and Plaintiff’s Motion for Supplamental [sic] Complaint Pursuant to Rule 15(d) (dkt. #92). For the reasons that follow, Defendants’ motion for summary judgment (dkt. #48) is GRANTED in part and DENIED in part, Defendants’ motion for stay of discovery (dkt. #55) is DENIED, Plaintiff’s Motion to Dismiss Defendant Williams and Substitute Defendant Colette Peters (dkt. #90) is GRANTED, Plaintiff’s Motion for Settlement Hearing (dkt. #91) is DENIED, and Plaintiff’s Motion for Supplemental Complaint Pursuant to Rule 15(d) (dkt. #92) is DENIED. / / /
1 At the time that this action arose, Plaintiff was in the custody of NMCD. Plaintiff was subsequently transferred to the Florida Department of Corrections (“FDOC”), where he is currently in custody. 2 - OPINION & ORDER

BACKGROUND Plaintiff filed this action on November 10, 2011, alleging twelve “counts” based on the rejection of his January 2011 letter. On February 27, 2012, Plaintiff filed an amended complaint without seeking leave of court. On May 9, 2012, Plaintiff filed a motion for leave to file a Second Amended Complaint, which I granted. The Second Amended Complaint–the operative complaint–alleges that Defendants violated Plaintiff’s First Amendment free speech rights, his Fourteenth Amendment due process rights, and unlawfully retaliated against him for lawsuits filed against ODOC and NMCD. Defendants subsequently filed a motion for summary judgment and a motion for stay of discovery. Because Plaintiff failed to file any response to Defendants’ motions–even after I granted him three extensions of time, I granted Defendants’ motion for summary judgment, denied Defendants’ motion for stay of discovery as moot, and entered a judgment dismissing this case. Plaintiff subsequently filed a Motion to Reopen Case, Reconsideration and Extension of Time. After carefully considering Plaintiff’s motion, I found Plaintiff was entitled to relief under Rule 60(b)(1). Accordingly, Defendants’ motion for summary judgment (dkt. #48) and motion for stay of discovery (dkt. #55) were reopened. Plaintiff then filed a motion to dismiss, motion for settlement hearing, and motion to supplement his complaint. I held oral argument on October 31, 2013, where the parties addressed the following two issues: (1) whether ODOC’s mail rules allow incoming postcards; and (2) how ODOC processes incoming mail. / / /
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DISCUSSION I. Motion for Settlement Hearing
I turn first to Plaintiff’s motion for settlement hearing. Defendants are not interested in settlement negotiations at this time, and I find no rule requiring me to hold a settlement hearing as requested by Plaintiff. Although Rule 16(c)(2)(I) permits me to “consider and take appropriate action on . . . settling the case and using special procedures to assist in resolving the dispute when authorized by statute or local rule[,]” Local Rule 16-4(b) precludes the application of this rule to “[p]risoner [s]uits”. Because Plaintiff is an inmate currently in the custody of the FDOC, this action is exempt from Rule 16(c)(2)(I).
I decline to order a settlement hearing at this time–especially where Defendants have expressed that they are unwilling to engage in settlement negotiations at this point. Plaintiff’s motion is denied. II. Motion For Supplemental Complaint
Plaintiff seeks to file a supplemental complaint pursuant to Rule 15(d). Plaintiff states that his supplemental complaint seeks to “add facts which have arisen since this action was filed, substitute[] defendant Williams for defendant Peters and add[] additional defendants as a result of the new facts.” Plaintiff also files the supplemental complaint to “moot” Defendants’ motion for summary judgment, to “moot[]” Defendants “[q]ualified [i]mmunity defense”, and to “address[] any deficiencies raised in defendants [sic] summary [judgment] motion . . . .” Mot. for Supplemental Compl., p. 1.
Defendants contend that Plaintiff’s motion must be denied because they would be unduly prejudiced if Plaintiff’s motion were granted, Plaintiff unduly delayed in seeking to supplement his complaint, Plaintiff’s motion is brought in bad faith, and Plaintiff’s proposed amendment
4 - OPINION & ORDER

would be futile.2 Plaintiff does not respond to Defendants’ arguments. For the reasons that
follow, I conclude that Plaintiff is not entitled to supplement his complaint pursuant to Rule
15(d).
Rule 15(d) provides that “[o]n motion and reasonable notice, the court may, on just
terms, permit a party to serve a supplemental pleading setting out any transaction, occurrence, or
event that happened after the date of the pleading to be supplemented.” “Rule 15(d) is intended
to give district courts broad discretion in allowing supplemental pleadings.” Keith v. Volpe, 858
F.2d 467, 473 (9th Cir. 1988). “Rule 15(d) permits the filing of a supplemental pleading which
introduces a cause of action not alleged in the original complaint and not in existence when the
original complaint was filed.” Cabrera v. City of Huntington Park, 159 F.3d 374, 382 (9th
Cir.1998) (internal quotation marks and citation omitted). “The purpose of Rule 15(d) is to
promote as complete an adjudication of the dispute between the parties as possible by allowing
the addition of claims which arise after the initial pleadings are filed.” William Inglis & Sons
Baking Co. v. ITT Cont’l Baking Co., Inc., 668 F.2d 1014, 1057 (9th Cir. 1982) (citations
omitted). The factors relevant to a Rule 15(a) motion to amend complaint are considered when
addressing a motion to amend under Rule 15(d). E.g., Al Haramain Islamic Found., Inc., 2012
2 Defendants construe Plaintiff’s motion as a motion to amend under Rule 15(a), not a motion to supplement the pleadings under Rule 15(d). This is inconsequential to my analysis because the “legal standard for granting or denying a motion to supplement under Rule 15(d) is the same as the standard for granting or denying a motion under Rule 15(a).” Athena Feminine Tech., Inc. v. Wilkes, 2013 WL 450147, No. C 10-4868 SBA, at *2 (N.D. Cal. 2013) (citation omitted); see also Al Haramain Islamic Found., Inc. v. U.S. Dep’t of the Treasury, 2012 WL 6203136, Civil No. 3:07-CV-01155-KI, at *8 (D. Or. 2012) (“[F]actors relevant to a Rule 15(a) motion to amend complaint have been used in this context [of a Rule 15(d) motion]. Those factors include: (1) bad faith; (2) undue delay; (3) prejudice to the opponent; and (4) futility of the amendment.”) (Citations omitted); Morrow v. City of San Diego, 2012 WL 2675454, No. 11-cv-01497-IEG (KSC), at *1 (S.D. Cal. 2012) (“Because the same standard governs consideration of motions to amend or to supplement, it is unnecessary here to distinguish when Plaintiffs seek to amend or to supplement.”) (Citations omitted). 5 - OPINION & ORDER

WL 6203136, Civil No. 3:07-CV-01155-KI, at *8 (D. Or. 2012). “Those factors include: (1) bad faith; (2) undue delay; (3) prejudice to the opponent; and (4) futility of the amendment.” Id.
Plaintiff’s Third Amended Complaint adds three new claims: (1) that ODOC’s ban on envelope art violated Plaintiff’s rights under the Religious Land Use and Institutionalized Persons Act, 42 U.S.C. § 2000cc (“RLUIPA”); (2) Plaintiff’s transfer to FDOC violated his rights under RLUIPA; and (3) ODOC’s ban on envelope art violated his right to free speech under the Oregon Constitution. Plaintiff’s proposed complaint also seeks new declaratory and injunctive relief, including that he be returned to ODOC.
A. Undue Delay Defendants argue that Plaintiff unduly delayed in adding his claims alleging violations of RLUIPA and the Oregon Constitution. I agree with Defendants and conclude that Plaintiff’s delay counsels against allowing Plaintiff to supplement his pleadings at this late stage of the proceeding. Plaintiff’s new RLUIPA and Oregon Constitution claims arise out of the same facts alleged in his initial complaint and constitute causes of action in existence when Plaintiff filed his original complaint–not facts or causes of action occurring after Plaintiff filed his original complaint. Indeed, Plaintiff’s initial complaint specifically alleged violations under “Article 1, Section 8 of the Oregon Constitution”, but he expressly struck them from his Second Amended Complaint. Compl., p. 12; Second Am. Compl., pp. 2, 5-8. Plaintiff provides no argument as to why he is entitled to supplement his complaint with these new claims and proffers no reason for the delay in seeking to supplement his complaint with claims he knew or should have known existed at the time he filed his complaint. Accordingly, I find that this factor weighs against allowing Plaintiff to supplement his complaint with new claims at this stage. See Fed. R. Civ. P
6 - OPINION & ORDER

15(d) (Rule 15(d) permits “supplemental pleadings setting forth transactions or occurrences or events that have happened since the date of the pleading sought to be supplemented”).
B. Prejudice Courts may consider the prejudice to Defendants when deciding whether to grant a Rule 15(d) motion. See Volpe, 858 F.2d at 476. Currently before me is Defendants’ fully briefed motion for summary judgment, which seeks summary judgment on all of Plaintiff’s claims. Allowing Plaintiff to supplement the operative complaint with new claims based on new legal theories would likely require additional discovery and additional extensions of time. In addition, the circumstances here weigh in favor of denying Plaintiff leave to supplement his complaint with new claims because the crux of Plaintiff’s proposed Third Amended Complaint is to respond to Defendants’ motion for summary judgment, not merely to supplement it with new facts as required under Rule 15(d). As stated above, Plaintiff concedes that he filed his Third Amended Complaint to “address[] any deficiencies raised in defendants [sic] summary motion” and to “moot[]” Defendants’ “[q]ualified [i]mmunity defense”. Mot. For Supplemental Compl., p. 1. I find no authority permitting the filing of a supplemental complaint for such purposes. This factor weighs against allowing Plaintiff to supplement his complaint with new claims. C. Futility The goal of the rule governing supplemental pleadings is to promote judicial efficiency. Planned Parenthood of S. Ariz. v. Neely, 130 F.3d 400, 402 (9th Cir. 1997) (citation omitted). A proposed amendment is futile “only if no set of facts can be proved under the amendment to the pleadings that would constitute a valid and sufficient claim or defense.” Miller v. RykoffSexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988) (citation omitted). / / /
7 - OPINION & ORDER

1. Plaintiff’s New Third Claim for Relief Plaintiff’s new third claim for relief alleges that he “practice[s] the religion of Druidism,” which allegedly “asks [followers] . . . to open [themselves] to the inspiration and beauty of Nature and Art, through its celebration of creativity.” Third Am. Compl., p. 9. Plaintiff’s third claim for relief also alleges that Defendants’ “blanket ban on art on envelopes violates [his] religious exercise rights in violation of [RLUIPA] . . . .” Id., p. 20. Plaintiff’s proposed claim does not warrant supplementing his complaint at this late stage with this new claim. As discussed above, Plaintiff unduly delayed in bringing his new third claim almost two years after filing his initial complaint. In addition, this claim arises out of the same facts alleged at the time Plaintiff filed his initial complaint, not facts arising after he filed his initial complaint as required under Rule 15(d). See Neely, 130 F.3d at 402 (Rule 15(d) cannot be used to introduce a “separate, distinct and new cause of action” or where “the supplemental pleading could be the subject of a separate action”) (internal citations and quotations omitted). Even if Plaintiff’s RLUIPA claim were not futile, the balancing of factors weigh against allowing Plaintiff to supplement his complaint to add this belated claim.
2. Plaintiff’s New Fourth Claim for Relief The fourth claim in Plaintiff’s Third Amended Complaint alleges that his “transfer to . . . [FDOC] . . . [was] in retaliation for this civil suit” and therefore violates his rights under RLUIPA. Third Am. Compl., p. 20. Plaintiff’s claim is futile and thus weighs against allowing Plaintiff to supplement his complaint.
a. Exhaustion Under the Prison Litigation Reform Act of 1995 (“PLRA”), “[n]o action shall be brought with respect to prison conditions under section 1983 . . . by a prisoner confined in any jail,
8 - OPINION & ORDER

prison, or other correctional facility until such administrative remedies as are available are exhausted.” 42 U.S.C. § 1997e(a); see, e.g., Porter v. Nussle, 534 U.S. 516, 524 (2002) (“state prisoners must exhaust administrative processes prior to instituting a § 1983 suit”). There must be “proper exhaustion” of available administrative remedies, meaning the inmate must “us[e] all steps the agency holds out . . . .” Woodford v. Ngo, 548 U.S. 81, 90 (2006) (internal quotation marks and citation omitted). Administrative remedies must be exhausted prior to filing suit and may not be exhausted during the pendency of the suit. McKinney v. Carey, 311 F.3d 1198, 1199 (9th Cir. 2002); see also Vaden v. Summerhill, 449 F.3d 1047, 1150-51 (9th Cir. 2006).
Here, Plaintiff’s Third Amended Complaint does not allege that Plaintiff exhausted his RLUIPA claim. Indeed, Plaintiff makes no argument and presents no evidence to the contrary. Because Plaintiff has not exhausted this claim as required under the PLRA, it is futile and weighs against allowing Plaintiff to supplement his complaint.
b. Section 1983 In an action brought under 42 U.S.C. § 1983, as here, “[l]iability . . . arises only upon a showing of personal participation by the defendant. . . . A supervisor is only liable for constitutional violations of his subordinates if the supervisor participated in or directed the violations, or knew of the violations and failed to act to prevent them. There is no respondeat superior liability under section 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (citations omitted). Here, Plaintiff presents no evidence showing personal participation by any of the Defendants with regard to his retaliation claims. Accordingly, Plaintiff’s retaliation claims in his Third Amended Complaint are futile.
9 - OPINION & ORDER

In sum, Plaintiff fails to establish that he should be granted leave to supplement his
Second Amended Complaint under Rule 15(d). Plaintiff’s motion to supplement his complaint is
therefore denied.
III. Motion for Stay of Discovery
Defendants move for a stay of discovery pursuant to Rule 26(b)(1) pending my resolution
as to whether they are entitled to qualified immunity. Defendants assert that their motion for
stay of discovery should be granted because the issue of qualified immunity is “purely legal and
based on undisputed facts”. Mot. for Stay of Discovery, p. 2. Defendants’ motion is denied.
Rule 26(b)(1) provides that
[u]nless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense–including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter. For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. All discovery is subject to the limitations imposed by Rule 26(b)(2)(C).
Rule 26(b)(2)(C) provides that
[o]n motion . . . , the court must limit the frequency or extent of discovery otherwise allowed by these rules or by local rule if it determines that: (i) the discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive; (ii) the party seeking discovery has had ample opportunity to obtain the information by discovery in the action; or (iii) the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.
Here, Defendants do not argue, let alone show, that all of the discovery is unreasonably
cumulative or duplicative or can be obtained from a source satisfying the requirements of Rule
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26(b)(2)(C)(i). Defendants also do not show that Plaintiff has had ample opportunity to obtain the information as required under 26(b)(2)(C)(ii). Finally, Defendants do not show that the burden or expense of discovery outweighs its likely benefit pursuant to 26(b)(2)(C)(iii). Finally, as discussed in detail below, Defendants are not entitled to qualified immunity on all of Plaintiff’s claims. Defendants’ motion for stay of discovery is denied. IV. Motion for Summary Judgment
A. Standard Summary judgment is proper if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c). The moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact. E.g., Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The moving party need only demonstrate that there is an absence of evidence to support the non-moving party’s case. Id. at 325. Once the moving party has met its burden, the burden shifts to the non-moving party to “set out ‘specific facts showing a genuine issue for trial.’” Id. at 324 (quotation omitted). To carry this burden, the non-moving party must “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). “The mere existence of a scintilla of evidence . . . will be insufficient; there must be evidence on which the jury could reasonably find for the [non-moving party].” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). In deciding a summary judgment motion, the court must view the evidence in the light most favorable to the non-moving party and draw all justifiable inferences in its favor. Id. at 255. “Credibility determinations, the weighing of the evidence, and the drawing of legitimate
11 - OPINION & ORDER

inferences from the facts are jury functions, not those of a judge . . . ruling on a motion for summary judgment .” Id. However, conclusory, speculative testimony in affidavits and moving papers is insufficient to raise genuine issues of fact and defeat summary judgment. See Thornhill Publ’n Co., Inc. v. GTE Corp., 594 F.2d 730, 738 (9th Cir. 1979).
B. Qualified Immunity Defendants assert they are entitled to qualified immunity because they did not violate any of Plaintiff’s constitutional rights, they rejected Plaintiff’s letter in a routine application of the mail rules, and it would not have been clear to a reasonable official that doing so would be illegal. I agree with Defendants in part: Defendants are only entitled to qualified immunity against Plaintiff’s claim for damages, not Plaintiff’s claims for equitable relief. Qualified immunity is not available as a defense in § 1983 actions “against individuals where injunctive relief is sought instead of or in addition to damages.” Henry A. v. Willden, 678 F.3d 991, 999 (9th Cir. 2012) (internal quotation marks and citation omitted); see also Hydrick v. Hunter, 669 F.3d 937, 942 (9th Cir. 2012) (“[C]laims for injunctive and declaratory relief are unaffected by qualified immunity.”) (Citation omitted). “Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2080 (2011) (internal quotation marks and citation omitted). “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Willden, 678 F.3d at 999-1000 (internal quotation marks and citation omitted). “This is not to say that an official action is protected by qualified immunity unless the
12 - OPINION & ORDER

very action in question has previously been held unlawful, but it is to say that in the light of pre-
existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739 (2002)
(citations omitted).
The evidence before me does not show that Plaintiff’s rights were “clearly established” at
the time of the challenged conduct such that every reasonable official would have understood
what he was doing violated Plaintiff’s rights. The evidence shows that Defendants were simply
following an administrative rule that they believed, in the interest of security and efficiency,
required them to reject envelopes with drawings on them. Plaintiff presents no evidence showing otherwise.3 I also find no judicial determination at the time that Plaintiff’s January
2011 letter was rejected specifically holding that rejecting envelopes with pictures drawn on
them pursuant to OAR 291-131-0025 is unconstitutional or otherwise establishing that
Defendants’ actions were improper. The record does not establish that it would be clear to a
reasonable officer that his conduct was unlawful when confronted with the situation faced by Defendants.
Based on the above, I conclude that Defendants are entitled to qualified immunity insofar
as Plaintiff seeks money damages. See Hydrick, 669 F.3d at 942 (holding defendants were
entitled to qualified immunity with respect to plaintiffs’ claims for money damages, but not
plaintiffs’ claims for declaratory and injunctive relief).
/ / /
3 Plaintiff repeatedly relies on the allegations in his complaint to support his opposition to Defendants’ motion for summary judgment. Plaintiff’s reliance on the allegations in his complaint is misplaced because as the nonmoving party, Plaintiff must present evidence sufficient to demonstrate a genuine issue for trial or to support his opposition. See Devereaux v. Abbey, 263 F.3d 1070, 1076 (9th Cir. 2001) (nonmovingparty “may not rest upon the mere allegations or denials of the adverse party’s pleading, but must provide affidavits or other sources of evidence that set forth specific facts showing that there is a genuine issue for trial”) (internal quotation marks and citations omitted). 13 - OPINION & ORDER

C. Claims Against Williams Defendants seek to dismiss Plaintiff’s claims against Williams, the former Director of ODOC, because he fails to allege any personal participation by Williams. I conclude that Plaintiff presents no triable issue of fact supporting his claims against Williams. A supervisor may be liable under § 1983 “if there exists either (1) his or her personal involvement in the constitutional deprivation, or (2) a sufficient causal connection between the supervisor’s wrongful conduct and the constitutional violation”. Starr v. Baca, 652 F.3d 1202, 1206-07 (9th Cir. 2011) (citation and internal quotation marks omitted). Here, Plaintiff’s Second Amended Complaint does not specifically allege, and the record is devoid of any evidence specifically showing, any personal participation by Williams or causal connection between Williams’ conduct and Plaintiff’s alleged constitutional violations. Defendants’ motion for summary judgment as to Plaintiff’s claims against Williams is granted.4 D. First Amendment Free Speech Rights Prisoners enjoy a “First Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995) (citation omitted). A prisoner’s First Amendment rights, however, are “subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security.” Walker v. Sumner, 917 F.2d 382, 385 (9th Cir. 1990) (citations omitted). “Where a state penal system is involved,
4 To the extent Plaintiff seeks to substitute Peters with Williams, the current Director of ODOC, pursuant to his motion to substitute (dkt. # 90), Plaintiff’s claims against Peters would fail for the same reason his claims against Williams fails. Specifically, Plaintiff proffers no evidence showing any personal participation by Peters or any causal connection between Peters’ conduct and Plaintiff’s alleged constitutional violations. However, as discussed below, Plaintiff’s free speech claim survives summary judgment. Plaintiff is therefore allowed to substitute Peters for the specific purpose of allowing Peters to implement the injunctive relief sought by Plaintiff should it be necessary. 14 - OPINION & ORDER

federal courts have . . . additional reason to accord deference to the appropriate prison authorities.” Turner v. Safley, 482 U.S. 78, 85 (1987) (citation omitted).
To determine whether a correctional institution’s regulation that “impinges on inmates’ constitutional rights” is valid, the court must determine whether that regulation “is reasonably related to legitimate penological interests.” Id. at 89. Legitimate penological interests include “security, order, and rehabilitation.” Procunier v. Martinez, 416 U.S. 396, 413 (1974) (overruled on other grounds by Thornburgh, 490 U.S. at 413-14). To “guide[] courts in determining whether a challenged regulation passes constitutional muster”, the Ninth Circuit applies the fourpronged test set forth in Turner. Frost v. Symington, 197 F.3d 348, 354 (9th Cir. 1999). Under this test, courts must determine:
(1) whether the regulation is rationally related to a legitimate and neutral governmental objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials. Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, 482 U.S. at 8990).
1. The First Turner Factor Under the first Turner factor, there must be “a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 90 (citation and quotation marks omitted). A court must “determine whether the governmental objective underlying the policy is (1) legitimate, (2) neutral, and (3) whether the policy is rationally related to that objective.” Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (citation and internal quotation marks omitted). / / /
15 - OPINION & ORDER

a. Legitimate Penological Objective Defendants proffer evidence showing that they have a legitimate penological objective of promoting security and efficiency at ODOC. With regard to efficiency, Defendants present the declaration of the Chief of Inmate Services at ODOC, Randy Geer, in which he states that ODOC processes “as much as 5,000 pieces of mail daily” and that allowing mailroom staff to reject mail not satisfying the “technical requirements” of ODOC’s mail rules increases efficiency and saves money. See Geer Decl., ¶¶ 8, 9 12-15. Defendants also present Geer’s statements that allowing ODOC mail staff to return mail violating “technical portion[s]” of the ODOC mail rules saves time and money because it permits mail staff to return mail “without opening [mail] and without cost” to ODOC. Id., ¶ 8. With respect to security, Defendants proffer Geer’s statements that all mail received may pose some threat of “criminal activity or discussion of past criminal acts” or may “illuminate[] the workings of criminal networks.” Id. ¶ 12. Geer also states that even a “drawing as innocuous as a fish or a tree on the outside of the envelope could alert [an] . . . inmate recipient to something special in the content of the letter” or “could be used to trigger another to act on same pre-arranged instruction.” Id. ¶ 14. Based on the evidence above, I conclude that Defendants show a legitimate objective of promoting security and efficiency. See Thornburgh v. Abbott, 490 U.S. 401, 415 (1989) (“protecting prison security . . . is central to all other corrections goals”) (citation and internal quotation marks omitted); Freeman v. Tex. Dep’t of Criminal Justice, 369 F.3d 854, 861 (5th Cir. 2004) (“staff and space limitations, as well as financial burdens, are valid penological interests”) (citation omitted).
b. Neutral Regulation Whether a regulation is neutral depends on whether it operates “without regard to the content of the expression.” Turner, 482 U.S. at 90. Here, the evidence shows that Plaintiff’s
16 - OPINION & ORDER

January 2011 mailing was rejected pursuant to OAR 291-131-0025. See Barrett Aff., Attach. 3, p. 1. OAR 291-131-0025(1) requires all “[i]ncoming mail [to include] . . . the sender’s name and return address on the front of the envelope and . . . be addressed to the inmate using only his/her committed name and SID number.” None of the evidence before me demonstrates that Defendants applied OAR 291-131-0025(1) inconsistently or that they rejected Plaintiff’s January 2011 mailing because of the content drawn on the envelope. Indeed, Plaintiff concedes that Defendants’ policy of rejecting all envelopes with art on them amounts to a “total ban on art on envelopes”. Resp., p. 6. Based on the above, I conclude that Defendants’ policy of rejecting all envelopes with art on them is content-neutral.
c. Rational Connection A regulation cannot be sustained where the “logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.” Turner. 482 U.S. at 89-90. Defendants may demonstrate a rational relationship by showing “an intuitive, common[-]sense connection between the state’s policy and its objectives.” Frost, 197 F.3d at 356. Defendants assert that pursuant to the mail rules, only names, applicable state identification (“SID”) numbers, and addresses of senders and intended recipients may be placed on the outside of envelopes. Defendants contend that the mail rules allow ODOC to quickly process a huge volume of incoming mail and to “protect[] institutional security, safety, health, order, discipline, and inmate rehabilitation.” Mem. in Supp. of Mot. for Summ. J., p. 4. They also assert that pictures on the outside of envelopes could alert inmate recipients to special messages or trigger dangerous behavior. The evidence proffered by Defendants fails to show an
17 - OPINION & ORDER

intuitive, common-sense connection between Defendants’ mail policy and enhancing security and promoting efficiency.
With respect to security, the evidence presented by Defendants actually undermines their position. Defendants proffer evidence showing that pursuant to OAR 291-131-0025(11)(b), “hand-made drawings” may be allowed if they are “enclosed in the envelope.” Dodson Decl., Attach. 1, p. 7. Indeed, Defendants concede that Plaintiff could have simply put “the same drawing that he placed on the outside of the envelope within the contents of [his] mailing.” Reply, p. 4. In addition, at oral argument on October 31, 2013, Defendants admitted that incoming mail is never handled by inmates, but rather only by “Office Specialist 2s” and ODOC staff. Defendants also admitted at oral argument that incoming postcards are allowed under their mail rules even if they have drawings or pictures on them, and that envelopes that contain handmade drawings may be permissible. Under Defendants’ own evidence, it is therefore possible that a drawing placed on the outside of an envelope could be rejected, but on the other hand be permissible simply because it is placed within the envelope or on a postcard. Such an outcome demonstrates that Defendants’ mail policy is arbitrary and irrational. Whether a sender places a drawing on an envelope, within an envelope, or on an alternative mailing medium, such as a postcard, should have no bearing on the security of Defendants’ facility because it involves the same picture. Notably, Defendants’ position that rejecting envelopes with drawings on them helps to address security concerns is further undermined by the fact that only “Office Specialist 2s” and ODOC staff handle incoming mail, not inmates. In short, Defendants fail to establish an intuitive, common-sense connection between its mail policy and promoting security.
Defendants also fail to establish an intuitive, common-sense connection between its mail policy and promoting efficiency. Contrary to Defendants assertion, OAR 291-131-0025(1) does
18 - OPINION & ORDER

not expressly preclude pictures on the outside of envelopes. OAR 291-131-0025(1) simply requires incoming mail to include the “sender’s name and return address” and requires mailings to “be addressed to the inmate using only his/her committed name and SID number”. The regulation on which Defendants rely does not explicitly preclude drawings on the outside of envelopes.
Additionally, Defendants’ argument that rejecting all envelopes with drawings on them saves them time misses the mark. Time saved from rejecting mailings and reducing the number of letters Defendants need to deliver must be based on a proper policy–not an arbitrary or irrational policy as the one here. I recognize that relying on an arbitrary and irrational policy to reject all envelopes with drawings on them undoubtedly saves Defendants time by allowing them to avoid processing more mail. Such a policy, however, may not support a logical, commonsense connection with Defendants’ asserted goal of saving time. Indeed, even if I were to assume that Defendants’ mail policy was proper, Defendants still fail to demonstrate that they satisfy the first Turner factor. Defendants fail to show that rejecting envelopes with pictures on them results in significant timesaving. Viewing the evidence in the light most favorable to Plaintiff and drawing all justifiable inferences in his favor, I conclude that the first Turner factor weighs in Plaintiff’s favor.
2. The Second Turner Factor The second Turner factor examines “whether there are alternative means of exercising the right that remain open to prison inmates.” Id., 482 U.S. at 89-90. Defendants assert that Plaintiff had the alternative means of sending “mail with properly addressed envelopes” or re-sending his January 2011 letter “without the drawing on the envelope.” Mem. in Supp. of Mot. for Summ. J., p. 5. Plaintiff responds that there is no alternative to sending envelope art and that a more
19 - OPINION & ORDER

reasonable alternative would be to permit envelope art and only reject art that poses a threat to Defendants’ penological interests. When balancing the parties’ positions, I conclude that this factor is neutral: Defendants’ mail policy limits an important avenue of communicating art, but inmates retain alternative avenues, including sending art within the contents of the mailing itself or on alternative mailing mediums such as postcards.
3. The Third Turner Factor The third Turner factor considers the impact that the “accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. at 90. Pursuant to Turner, “courts should be particularly deferential to the informed discretion of corrections officials” when accommodating a constitutional right that will have “have a significant ripple effect on fellow inmates or on prison staff.” Id. (internal quotation marks and citation omitted). Defendants assert that their mail policy prevents prohibited conduct and allows for the quicker processing of mail. Plaintiff responds that Defendants present no evidence showing that art placed on the outside of the envelope poses a greater risk than the same art placed on the inside of the envelope and no evidence showing the effects envelope art has on staff or prisoners. I conclude that this factor weighs in Plaintiff’s favor. Allowing envelope art is unlikely to have a “significant ripple effect” on inmates and staff. As discussed above, ODOC inmates never handle incoming mail, and it is nonsensical that a drawing on the outside of an envelope may be rejected while at the same time be permitted if placed within the envelope or on a postcard. In addition, as explained above, Defendants present no evidence showing that the time or money saved by unconditionally rejecting all envelope art is anything more than de minimus. Accordingly, this factor weighs in Plaintiff’s favor.
20 - OPINION & ORDER

4. The Fourth Turner Factor The fourth and final Turner factor considers the absence and existence of alternatives. See id. at 91. The “absence of ready alternatives is evidence of the reasonableness of a prison regulation” whereas the “existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an exaggerated response to prison concerns.” Id. (citation and internal quotation marks omitted). If a “claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. The Ninth Circuit has made clear that “[t]his is not a least restrictive alternative test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” Id. at 91-92 (citation and quotation marks omitted). Defendants contend there are no “no readily available alternatives to [requiring plainly labeled] envelopes, other than to allow . . . improperly addressed mail.” Reply, p. 6. Plaintiff responds that Defendants have the reasonable alternative of only censoring art that poses a security threat, instead of sweepingly rejecting all envelope art. As discussed above, the mail policy on which Defendants relied when rejecting Plaintiff’s mail, namely OARS 291-131-0025(1), does not expressly preclude envelopes with drawings on the outside. The lack of any language in OAR 291-131-0025 explicitly precluding envelopes with art on them belies Defendants’ position that Plaintiff’s January 2011 letter violated an explicit rule. In addition, the existence of obvious, easy alternatives of allowing drawings to be placed within envelopes or on alternative mediums such as postcards supports the
21 - OPINION & ORDER

conclusion that Defendants’ mail policy is unreasonable. The fourth Turner factor weighs in Plaintiff’s favor.
In sum, Defendants fail to establish that they are entitled to summary judgment with regard to Plaintiff’s First Amendment claim. Defendants’ motion for summary judgment as to Plaintiff’s first claim is denied.
E. Fourteenth Amendment Due Process Rights Defendants argue the evidence does not demonstrate that Plaintiff’s due process rights were violated. Plaintiff does not respond and proffers no evidence refuting Defendants’ position. I conclude that the evidence supports the conclusion that Plaintiff’s Fourteenth Amendment due process rights were not violated. It is well-settled that “withhold[ing] delivery of [inmate mail] must be accompanied by minimum procedural safeguards.” Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002) (citation omitted). Constitutional due process requires that an inmate whose mail is rejected receive notice of the rejections and that any complaint be referred to a prison official other than the person who originally disapproved the correspondence. See Procunier, 416 U.S. at 417-19 (overruled on other grounds by Thornburgh, 490 U.S. at 413-14); see also Krug v. Lutz, 329 F.3d 692, 697-98 (9th Cir. 2003) (withholding delivery of inmate mail must be accompanied by the “notice to the prisoner” and “the right to appeal the exclusion of incoming publications to a prison official other than the one who made the initial exclusion decision”). The undisputed evidence before me demonstrates that Plaintiff was provided the requisite due process notice and right to appeal. Specifically, the record shows that Plaintiff received notice by OSP that his mailing had been rejected because it contained a drawing on the outside. Second Am. Compl., p. 3; Dodson Decl., ¶ 4; Id., Attach. 2, p. 1. The record further shows that
22 - OPINION & ORDER

Plaintiff appealed the rejection of his letter to Premo, and that Premo responded by informing him that his mailing violated OAR 291-131-0025(1). Second Am. Compl., pp. 2-3; Dodson Decl., ¶¶ 6-7; Id., Attach. 2, pp. 1-3. The evidence also shows that Plaintiff requested an administrative review of Premo’s decision, but was informed by Dodson that his request for review had been denied. Second Am. Compl., p. 3; Dodson Decl., ¶ 8-10; Id., Attach. 2, pp. 4, 6. The evidence establishes that Plaintiff was provided the minimal procedural safeguards. Accordingly, Defendants’ motion for summary judgment as to Plaintiff’s due process claim is granted.
F. Retaliation Plaintiff alleges that the rejection of his letter was in retaliation for filing civil actions against ODOC and NMCD. Second Am. Compl., pp. 5-6. “A prisoner suing prison officials under section 1983 for retaliation must allege that he was retaliated against for exercising his constitutional rights and that the retaliatory action does not advance legitimate penological goals, such as preserving institutional order and discipline.” Barnett v. Centoni, 31 F.3d 813, 816 (9th Cir. 1994) (citing Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985)). “Of fundamental import to prisoners are their First Amendment right[s] to file prison grievances and to pursue civil rights litigation in the courts.” Rhodes v. Robinson, 408 F.3d 559, 567 (9th Cir.2005) (citations and quotation marks omitted). “Within the prison context, a viable claim of First Amendment retaliation entails five basic elements: (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Id. at 567-568 (citations omitted).
23 - OPINION & ORDER

Here, Plaintiff presents no evidence supporting his claim that Defendants retaliated against him by rejecting his January 2011 letter because of the alleged lawsuits he has pending against ODOC and NMCD. Plaintiff proffers no evidence showing that he has any pending or previous lawsuits against ODOC or NMCD. In addition, Plaintiff presents no evidence showing that any of the named Defendants knew that he had any lawsuits against ODOC or NMCD. Plaintiff’s bare allegations, by themselves, are insufficient to create a triable issue of fact supporting his retaliation claim. Defendants’ motion for summary judgment as to Plaintiff’s retaliation claim is granted.
G. Mootness Defendants raise for the first time in their reply that Plaintiff’s claims for injunctive relief impacting “only the rights of ODOC inmates are moot”. Reply, p. 9. Defendants argue that because Plaintiff was transferred to FDOC, any change in policy or practice regarding ODOC’s rules as applied to ODOC inmates sending mail and receiving mail would have no effect on Plaintiff and are therefore moot. I disagree with Defendants. Defendants’ argument is improper because it was raised for the first time in their reply brief. See Graves v. Arpaio, 623 F.3d 1043, 1048 (9th Cir. 2010) (“[A]rguments raised for the first time in a reply brief are waived.”). Even if I were to consider Defendants’ argument, however, it would still fail. “A case might become moot if subsequent events make it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 170 (2000) (citation omitted). The “party alleging mootness bears a heavy burden in seeking dismissal.” Rosemere Neighborhood Ass’n v. U.S. Envtl. Prot. Agency, 581 F.3d 1169, 1173 (9th Cir. 2009) (internal quotation marks and citation omitted). The simple fact that Plaintiff is currently being housed at
24 - OPINION & ORDER

FDOC does not moot his allegations that Defendants’ application of OAR 291-131-0025 violated

his constitutional rights. Additionally, it is clear that Defendants intend to continue their policy

of rejecting envelopes with pictures on them, which would necessarily include any envelopes

Plaintiff sends to ODOC with drawings on them. Defendants fail to meet their heavy burden of

demonstrating that the allegedly wrongful conduct could not reasonably be expected to recur.

Plaintiff’s claims are not moot.

CONCLUSION

For the reasons stated above, Defendants’ motion for summary judgment (dkt. #48) is

GRANTED in part and DENIED in part, Defendants’ motion for stay of discovery (dkt. #55) is

DENIED, Plaintiff’s Motion to Dismiss Defendant Williams and Substitute Defendant Colette

Peters (dkt. #90) is GRANTED, Plaintiff’s Motion for Settlement Hearing (dkt. #91) is

DENIED, and Plaintiff’s Motion for Supplemental Complaint Pursuant to Rule 15(d) (dkt. #92)

is DENIED.

IT IS SO ORDERED.

Dated this

day of ____________, 2013.

MARCO A. HERNANDEZ United States District Judge

25 - OPINION & ORDER

 
 Case 6:11-cv-06358-HZ Document 11 Filed 01/02/12 Page 1 of 4

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON EUGENE DIVISION

JACOB BARRETT, Plaintiff,
v. MAX WILLIAMS, et.al.,
Defendants.

CV. 11-6358-HZ ORDER

HERNANDEZ, District Judge. This 42 U.S.C. § 1983 civil rights action comes before the
court on Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order (#5). Plaintiff asks the Court to arrange for Plaintiff's transfer, pursuant to Or. Rev. Stat. §§ 179.473-179.477, for the purpose of evaluation and/or treatment. (#5.) Plaintiff provides a detailed list of the mental health evaluations and tests he requests, and the required qualifications of the professionals to be consulted. (Id.) For the reasons that follow, Plaintiff's motion is DENIED.
1 -- ORDER

Case 6:11-cv-06358-HZ Document 11 Filed 01/02/12 Page 2 of 4
STANDARDS "A preliminary injunction is an extraordinary remedy never awarded as of right." Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 24 (2008). "A plaintiff seeking a preliminary injunction must establish [1] that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable harm in the absence of preliminary relief, [3] that the balance of equities tips in his favor, and [4] that an injunction is in the public interest." Id., at 20 (emphasis added); Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011). In the Ninth Circuit, assuming the other elements of the Winter test are met, a "sliding scale" approach may be taken and "[a] preliminary injunction is appropriate when a plaintiff demonstrates ... that serious questions going to the merits were raised and the balance of hardships tips sharply in the plaintiff's favor." Alliance for the Wild Rockies, 632 F.3d at 1131-35 ("'serious questions' approach survives Winter when applied as part of the four-element Winter test").
DISCUSSION Plaintiff filed this civil rights action on November 10, 2011, alleging Department of Corrections personnel are engaged in violating his First Amendment, Eighth Amendment, and Fourteenth Amendment rights under the United Stated Constitution (Counts 1-3; 11;12), and his rights under the Oregon Constitution (Counts 4-10)
2 -- ORDER

Case 6:11-cv-06358-HZ Document 11 Filed 01/02/12 Page 3 of 4
when they "restricted and violated a letter written by Plaintiff for having art work on the envelope" and delayed initiating mental health exams and rehabilitative treatment. (#2, at 11-14.) Plaintiff filed the motion before the court for preliminary injunction and temporary restraining order with his complaint.
In the affidavit supporting the motion for preliminary injunction, Plaintiff argues "[t]his case raises several issues concerning whether the delay and/or absence of meaningful and adequate rehabilitative programming and treatment violates the rights of prisoners like plaintiff convicted under Aggravated Murder pursuant to ORS 163.105[;]" and that "[w]hile courts in general have not recognized an unequivocal right to rehabilitation for prisoners, a closer examination of the[] [previously cited] cases indicates at least one which sets the standard for a right to rehabilitation, and in some cases to be transferred to a mental hospital." (#6, at 2-3.) Plaintiff asks this court to order a mental health evaluation pursuant to Fed. R. Civ. Proc. 35, and also cites to Oregon statutes authorizing the transfer of inmates to the Oregon State Hospital for evaluation. (Id., at 4.)
"The purpose of a preliminary injunction is merely to preserve the relative positions of the parties until a trial on the merits can be held," and it is generally not appropriate for a federal court at the preliminary injunction stage to give a final judgment on the merits. University of Texas v. Camenisch, 451 U.S. 391, 395
3 -- ORDER

Case 6:11-cv-06358-HZ Document 11 Filed 01/02/12 Page 4 of 4

(1981); Regents of University of California v. ABC, Inc., 747 F.2d 511, 514 (9th Cir. 1984) ("the function of a preliminary injunction is to preserve the status quo ad litem"); see also Marlyn Nutraceuticals, Inc. v. Mucas Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009)(mandatory injunction, which goes beyond maintaining the status quo, is particularly disfavored). The injunctive relief that Plaintiff seeks changes the status of the parties and would, in essence, constitute a judgment on the merits of one or more of his underlying claims. It is therefore inappropriate. Moreover, Plaintiff has not shown that he is likely to succeed on the merits of the claims tied to the injunctive relief he seeks. Winter v. Natural Res. Def. Council, Inc., 129 S.Ct. 365, 374 (2008)(plaintiff seeking preliminary injunction must demonstrate that he is likely to succeed on the merits); see also 18 U.S.C. § 3626(a)(2)(providing that preliminary injunctive relief in civil action with respect to prison conditions must be narrowly drawn).
CONCLUSION Plaintiff's Motion for Preliminary Injunction and Temporary Restraining Order (#5) is DENIED. IT IS SO ORDERED. DATED this 2nd day of January, 2012.

4 -- ORDER

/s/ Marco A. Hernandez Marco A. Hernandez United States District Judge

 
 Case 6:11-cv-06358-HZ Document 108 Filed 02/26/14 Page 1 of 6

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

JACOB BARRETT,
Plaintiff,
v.
MAX WILLIAMS, et al.,
Defendants.
Jacob Barrett #72237 North 3A-Q-107 Penitentiary of New Mexico PO Box 1059
Pro Se Plaintiff
Shannon M. Vincent OREGON DEPARTMENT OF JUSTICE Trial Division, CLS 1162 Court Street, NE Salem, OR 97301-0346
Attorney for Defendants
1 - OPINION & ORDER

Case No. 6:11-cv-06358-HZ OPINION & ORDER

Case 6:11-cv-06358-HZ Document 108 Filed 02/26/14 Page 2 of 6
HERNANDEZ, District Judge: Plaintiff Jacob Barrett, appearing pro se and proceeding in forma pauperis (“IFP”), filed
two motions that are currently before this Court: a motion for appointment of counsel [106] and a motion for reconsideration of my November 14, 2013, Opinion & Order [105]. For the reasons set forth below, I GRANT Plaintiff’s motion for appointment of counsel and DENY Plaintiff’s motion for reconsideration.
BACKGROUND Plaintiff Jacob Barrett is an inmate of the Oregon Department of Corrections (“ODOC”) and is currently in the custody of the Florida Department of Corrections. Plaintiff was previously in the custody of the New Mexico Corrections Department (“NMCD”) and while there, sent an envelope with a drawing on it to his cousin who was an inmate at the Oregon State Penitentiary (“OSP”). Because Plaintiff’s mailing violated ODOC’s policy precluding envelopes with drawings on them, Plaintiff’s mailing was returned. Plaintiff alleges that Defendants violated his First Amendment free speech rights and his Fourteenth Amendment due process rights when they rejected his mailing. Defendants filed a motion for summary judgment on all of Plaintiff’s claims. I concluded in my November 14, 2013, Opinion & Order that Defendants were entitled to qualified immunity insofar as Plaintiff sought money damages.1 I, however, denied Defendants’ motion for summary judgment as to Plaintiff’s First Amendment free speech claim, which alleges that Defendants violated Plaintiff’s First Amendment free speech rights when they rejected his envelope containing a drawing on it.
1 Plaintiff also alleged that Defendants rejected his envelope in retaliation for filing actions against ODOC and NMCD. As discussed in my November 14, 2013, Opinion & Order, Plaintiff failed to create a triable issue of fact as to this claim. 2 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 108 Filed 02/26/14 Page 3 of 6
STANDARDS I. Motion for Counsel
When a plaintiff is proceeding IFP, as here, the district court “may request an attorney to represent any person unable to afford counsel.” 28 U.S.C. § 1915(e)(1). There is no constitutional right to counsel in a civil case, and 28 U.S.C. § 1915 does not “authorize appointment of counsel to involuntary service.” U.S. v. 30.64 Acres of Land, More or Less, Situated in Klickitat Cnty., State of Wash., 795 F.2d 796, 801 (9th Cir. 1986). Pursuant to 28 U.S.C. § 1915(e)(1), “the decision to appoint . . . counsel is within the sound discretion of the trial court and is granted only in exceptional circumstances.” Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004) (internal quotation marks and citation omitted). “A finding of the exceptional circumstances of the plaintiff seeking assistance requires at least an evaluation of the likelihood of the plaintiff’s success on the merits and an evaluation of the plaintiff’s ability to articulate his claims in light of the complexity of the legal issues involved.” Id. “Neither of these considerations is dispositive and instead must be viewed together.” Palmer v. Valdez, 560 F.3d 965, 970 (9th Cir. 2009) (citation omitted). II. Motion for Reconsideration
Rule 60 of the Federal Rules of Civil Procedure allows a party to file a motion seeking relief from a final judgment or order. Fed. R. Civ. P. 60(b). “A district court may properly reconsider its decision if it (1) is presented with newly discovered evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is an intervening change in controlling law.” Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950, 955 (9th Cir. 2013) (internal quotation marks and citation omitted). “Clear error occurs when the reviewing court on the entire record is left with the definite and firm conviction that a mistake has been committed.” Id. The
3 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 108 Filed 02/26/14 Page 4 of 6
Ninth Circuit has cautioned that Rule 60 “is to be used sparingly as an equitable remedy to prevent manifest injustice and is to be utilized only where extraordinary circumstances prevented a party from taking timely action to prevent or correct an erroneous judgment.” Harvest v. Castro, 531 F.3d 737, 749 (9th Cir. 2008) (citations and internal quotation marks omitted).
DISCUSSION I. Motion for Appointment of Counsel
As discussed in my November 14, 2013, Opinion & Order, Defendants failed to demonstrate they were entitled to summary judgment as to Plaintiff’s claim that Defendants violated his First Amendment free speech rights when rejecting his mailing containing a drawing on it. For the same reasons discussed in my November 14, 2013, Opinion & Order, I find Plaintiff will likely succeed on his First Amendment claim. Considering that this action is on the eve of trial, Plaintiff would benefit from the assistance of counsel at this time. Accordingly, I grant Plaintiff’s motion for counsel.2 II. Motion for Reconsideration
Plaintiff asks me to reconsider my November 14, 2013, Opinion & Order, in which I held that Defendants were entitled to qualified immunity for money damages because the rights Plaintiff asserted were not “clearly established.” Pl.’s Mot. for Recons. 1-2. Plaintiff does not argue that his motion for reconsideration must be granted based on newly discovered evidence or an intervening change in controlling law. Rather, Plaintiff argues that I committed clear error because his rights were “clearly established” at the time his mailing was rejected and because Defendants should have reasonably known that their conduct violated his rights. Id. at 2. I disagree.
2 Defendants did not file a response to Plaintiff’s motion for counsel. 4 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 108 Filed 02/26/14 Page 5 of 6
“Qualified immunity shields federal and state officials from money damages unless a plaintiff pleads facts showing (1) that the official violated a statutory or constitutional right, and (2) that the right was clearly established at the time of the challenged conduct.” Ashcroft v. alKidd, 131 S. Ct. 2074, 2080 (2011) (internal quotation marks and citation omitted). “A Government official’s conduct violates clearly established law when, at the time of the challenged conduct, the contours of a right are sufficiently clear that every reasonable official would have understood that what he is doing violates that right.” Willden, 678 F.3d at 999-1000 (internal quotation marks and citation omitted). As explained in my November 14, 2013, Opinion & Order, it was not sufficiently clear at the time of Defendants’ conduct that rejecting all envelopes with drawings on them pursuant to an institutional-wide policy banning all such mailings violated Plaintiff’s First Amendment rights. The contours of Plaintiff’s rights in such circumstances were simply not sufficiently clear that every reasonable official would have understood that what he was doing violated Plaintiff’s rights. None of the cases on which Plaintiff relies establishes that under the facts here, Defendants violated clearly established law. In short, I am not left with a definite and firm conviction that a mistake has been committed in this instance. Plaintiff’s motion to reconsider is denied. / / / / / / / / / / / / / / / / / / / / /
5 - OPINION & ORDER

Case 6:11-cv-06358-HZ Document 108 Filed 02/26/14 Page 6 of 6

CONCLUSION Based on the foregoing, Plaintiff’s motion for appointment of counsel [106] is GRANTED and Plaintiff’s motion for reconsideration [105] is DENIED. IT IS SO ORDERED.

Dated this

day of February, 2014.

MARCO A. HERNANDEZ United States District Judge

6 - OPINION & ORDER

 
 Case 6:11-cv-6358 As of 06/11/2015 05:28 PM PDT Page 1 of 15 Page ID#: <pageID>
CT,IFP,PR1983,PROBONO,REOPENED,TERMINATED
U.S. District Court District of Oregon (Eugene (6)) CIVIL DOCKET FOR CASE # 6:11−cv−06358−HZ

Barrett v. Peters et al Assigned to: Judge Marco A. Hernandez Cause: 42:1983 Prisoner Civil Rights
Plaintiff Jacob Barrett

Date Filed: 11/10/2011 Date Terminated: 05/14/2015 Jury Demand: Defendant Nature of Suit: 550 Prisoner: Civil Rights Jurisdiction: Federal Question
represented by Blerina Kotori Tonkon Torp LLP 1600 Pioneer Tower 888 SW Fifth Avenue Suite 1600 Portland, OR 97204−2099 (503) 802−2055 Fax: (503) 972−3755 Email: blerina.kotori@tonkon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
William F. Martson , Jr. Tonkon Torp LLP 1600 Pioneer Tower 888 SW Fifth Avenue Suite 1600 Portland, OR 97204−2099 503−802−2005 Fax: (503) 972−3705 Email: rick.martson@tonkon.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
David T. Johnson OlsenDaines PC P.O. Box 12829 Salem, OR 97309 503−362−9393 Fax: 503−362−1375 Email: djohnson@olsendaines.com TERMINATED: 03/05/2014
Troy Garrett Sexton Motschenbacher and Blattner LLP 117 SW Taylor St. Suite 200 Portland, OR 97204 503−417−0517 Fax: 503−417−0527 Email: tsexton@portlaw.com TERMINATED: 03/07/2014

V.
Defendant
Max Williams TERMINATED: 11/14/2013

represented by Shannon M. Vincent Oregon Department of Justice Trial Division, CLS 1162 Court Street, NE

Case 6:11-cv-6358 As of 06/11/2015 05:28 PM PDT Page 2 of 15 Page ID#: <pageID>

Salem, OR 97301−0346 (503) 947−4700 Fax: (503) 947−4791 Email: shannon.m.vincent@doj.state.or.us TERMINATED: 02/26/2014 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline Sadker Kamins State of Oregon Department of Justice 1515 SW Fifth Ave., Suite 410 Portland, OR 97201 (503) 947−4700 Fax: (503) 947−4794 Email: jacqueline.kamins@doj.state.or.us TERMINATED: 04/04/2012

Kristin A. Winges−Yanez Oregon Department of Justice 1515 SW Fifth Avenue Suite 410 Portland, OR 97201 (971) 673−1880 Fax: (971) 673−5000 Email: kristin.a.winges−yanez@doc.state.or.us TERMINATED: 12/06/2012

Defendant Jeff Premo

represented by Shannon M. Vincent (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline Sadker Kamins (See above for address) TERMINATED: 04/04/2012

Kristin A. Winges−Yanez (See above for address) TERMINATED: 12/06/2012

Defendant Michelle Whitney Dodson

represented by Shannon M. Vincent (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline Sadker Kamins (See above for address) TERMINATED: 04/04/2012

Kristin A. Winges−Yanez (See above for address) TERMINATED: 12/06/2012

Defendant Jane Doe

Defendant
Janna Russell TERMINATED: 02/27/2012

represented by Shannon M. Vincent (See above for address)

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LEAD ATTORNEY ATTORNEY TO BE NOTICED

Jacqueline Sadker Kamins (See above for address) TERMINATED: 04/04/2012

Kristin A. Winges−Yanez (See above for address) TERMINATED: 12/06/2012

Defendant
Oregon Department of Corrections TERMINATED: 06/05/2012

represented by Jacqueline Sadker Kamins (See above for address) TERMINATED: 04/04/2012

Defendant
Colette Peters substituted in place of Max Williams

represented by Shannon M. Vincent (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Kelly Raths

represented by Shannon M. Vincent (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 11/10/2011 11/10/2011
11/10/2011 11/10/2011
11/10/2011 11/10/2011
11/10/2011
11/22/2011 01/02/2012
01/02/2012

# Docket Text
1 Application for Leave to Proceed IFP. Filed by Jacob Barrett. (ljb) (Entered: 11/15/2011)
2 Complaint. Demand for Jury Trial.Filed by Jacob Barrett against Michelle Whitney Dodson, Jane Doe, Oregon Department of Corrections, Jeff Premo, Janna Russell, Max Williams. (ljb) (Entered: 11/16/2011)
3 Motion for Appointment of Counsel. Filed by Jacob Barrett. (ljb) (Entered: 11/16/2011)
4 Motion for Court to Take Judicial Notice and to Disqualify Magistrate Judges Cooney, Jelderks and District Court Judges Hogan and King. Filed by Jacob Barrett. (ljb) (Entered: 11/16/2011)
5 Motion for Preliminary Injunction, Motion for Temporary Restraining Order. Filed by Jacob Barrett. (ljb) (Entered: 11/16/2011)
6 Memorandum in Support. Filed by Jacob Barrett. (Related document(s): Motion for Preliminary Injunction, Motion for Temporary Restraining Order 5 .) (ljb) (Entered: 11/16/2011)
7 Affidavit of Jacob Barrett in Support of Motion. Filed by Jacob Barrett. (Related document(s): Motion for Preliminary Injunction, Motion for Temporary Restraining Order 5 .) (ljb) (Entered: 11/16/2011)
8 Clerk's Notice of Mailing to Plaintiff Jacob Barrett − receive−stamped copies of documents filed with the court. (mr) (Entered: 11/22/2011)
9 ORDER: Plaintiff's Motion for Appointment of Counsel 3 is DENIED. See attached 3−page order. Signed on 1/2/2012 by Judge Marco A. Hernandez. Copy of order mailed to plaintiff. (mr) (Entered: 01/03/2012)
10 ORDER: Plaintiff's motion for the court to take judicial notice of bias and disqualify judges 4 is DENIED as moot. See attached 1−page order. Signed on 1/2/2012 by Judge Marco A. Hernandez. Copy of order mailed to plaintiff. (mr)

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01/02/2012 01/02/2012
01/03/2012 01/05/2012 01/05/2012 02/06/2012 02/27/2012 02/27/2012 03/01/2012
03/01/2012 04/04/2012 04/16/2012 04/30/2012 05/09/2012 05/11/2012 05/11/2012

(Entered: 01/03/2012)
11 ORDER: Plaintiff's Motion for Preliminary Injunction and TemporaryRestraining Order 5 is DENIED. See attached 4−page order. Signed on 1/2/2012 by Judge Marco A. Hernandez. Copy of order mailed to plaintiff. (mr) (Entered: 01/03/2012)
12 ORDER TO PROCEED IN FORMA PAUPERIS AND TO COLLECT INMATE FILING FEE: Plaintiff's provisional in forma pauperis status is CONFIRMED. IT IS ORDERED that the Oregon Department of Corrections shall collect payments from Plaintiff's trust account and shall forward those payments to the Clerk of the Court in accordance with the formula set forth above until a total of $350.00 has been collected and forwarded. IT IS SO ORDERED. Signed on 1/2/2012 by Judge Marco A. Hernandez. (gw) (Entered: 01/05/2012)
14 Notice of Lawsuit and Request for Waiver of Service of Summons. Waiver of Service is due by 2/6/2012. (Attachment: # 1 Complaint) (gw) (Entered: 01/05/2012)
13 Clerk's Notice of Mailing to Oregon Department of Corrections Central Trust Unit of Order to Proceed IFP and to Collect Inmate Filing Fee 12 . (gw) (Entered: 01/05/2012)
15 Clerk's Notice of Mailing to Jacob Barrett of Order to Proceed IFP and to Collect Inmate Filing Fee 12 , and Notice of Lawsuit 14 . (gw) (Entered: 01/05/2012)
16 Waiver of Service of Summons Returned Executed Filed by Janna Russell, Michelle Whitney Dodson, Jeff Premo, Oregon Department of Corrections, Max Williams. (Kamins, Jacqueline) (Entered: 02/06/2012)
17 Answer to 2 Complaint with Jury Demand (titled as Defendants' Answer to Plaintiff's Complaint and Affirmative Defenses − Jury Demand). Filed by Michelle Whitney Dodson, Oregon Department of Corrections, Jeff Premo, Janna Russell, Max Williams. (Kamins, Jacqueline) (Entered: 02/27/2012)
18 Amended Complaint. No motion for leave to file amended complaint included. Filed by Jacob Barrett against Michelle Whitney Dodson, Jane Doe, Oregon Department of Corrections, Jeff Premo, Max Williams. (Attachments: # 1 Attachments 1−3, # 2 Certificate of Service) (gw) (Entered: 02/28/2012)
19 Scheduling Order for Civil Rights Actions Filed by Incarcerated Plaintiffs. Summary Judgment Advice Notice and Consent Form. All pretrial, discovery, and dispositive motions are due by 5/3/2012. Signed on 3/1/2012 by Deputy Clerk G. Williams. (gw) Modified on 3/1/2012 to show that order was signed by G. Williams, not Judge Hernandez (gw). (Entered: 03/01/2012)
20 Clerk's Notice of Mailing to Jacob Barrett of Prisoner Civil Rights Scheduling Order and Summary Judgment Advice Notice 19 . (gw) (Entered: 03/01/2012)
21 Notice of Attorney Substitution:Attorney Kristin A. Winges−Yanez is substituted as counsel of record in place of Attorney Jacqueline Sadker Kamins Filed by Janna Russell, Michelle Whitney Dodson, Jeff Premo, Max Williams (Winges−Yanez, Kristin) (Entered: 04/04/2012)
22 Motion for Extension of Time. Filed by Jacob Barrett. (gw) (Entered: 04/19/2012)
23 ORDER: Plaintiff's Motion for Extension of Time 22 is GRANTED. All pretrial, discovery, and dispositive motions are due by 7/2/2012. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 04/30/2012)
24 Motion for Leave to File Second Amended Complaint. Filed by Jacob Barrett. (Attachments: # 1 Proposed Second Amended Complaint, # 2 Attachments 1, 2 and 3, # 3 Certificate of Service) (gw) (Entered: 05/11/2012)
25 Motion for Extension of Time . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Winges−Yanez, Kristin) (Entered: 05/11/2012)
26 Declaration of Kristin A. Winges−Yanez . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Related document(s): Motion for Extension of Time 25 .) (Winges−Yanez, Kristin) (Entered: 05/11/2012)

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05/23/2012
06/05/2012
06/05/2012 06/15/2012 07/02/2012 07/02/2012 07/03/2012
07/09/2012 07/09/2012 07/09/2012 07/18/2012
07/18/2012
07/18/2012 07/26/2012 07/26/2012 08/01/2012
08/07/2012

27 ORDER: Defendants' Motion for Extension of Time 25 is GRANTED. The deadline for Defendants to respond to Plaintiff's First Request for Production of Documents and Admissions is 6/11/2012. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 05/23/2012)
28 ORDER: Plaintiff's unopposed Motion to file a Second Amended Complaint 24 is GRANTED. The Second Amended Complaint, docket # 24 , attachment #1, supersedes all previously filed complaints. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 06/05/2012)
29 Second Amended Complaint. Filed by Jacob Barrett against Michelle Whitney Dodson, Jane Doe, Jeff Premo, Max Williams. (Attachments: # 1 Attachment). (mr) (Entered: 06/15/2012)
30 Answer to 29 Amended Complaint with Jury Demand . Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Winges−Yanez, Kristin) (Entered: 06/15/2012)
31 Motion for Extension of Time . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Winges−Yanez, Kristin) (Entered: 07/02/2012)
32 Declaration of Kristin Winges−Yanez . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Related document(s): Motion for Extension of Time 31 .) (Winges−Yanez, Kristin) (Entered: 07/02/2012)
33 ORDER: Defendants' Motion for Extension of Time 31 is GRANTED. The deadline for filing of dispositive motions is reset to 8/31/2012. Ordered by Judge Marco A. Hernandez. Copy of order mailed to plaintiff. Modified to update service information on 7/3/2012 (mr). (Entered: 07/03/2012)
34 Motion to Strike Answer to Second Amended Complaint 30 and Affirmative Defenses and Order for Defendants to File a Proper Response and Answer. Filed by Jacob Barrett. (ljb) (Entered: 07/09/2012)
35 Motion for Extension of Time. Filed by Jacob Barrett. (ljb) (Entered: 07/09/2012)
36 Notice of Dispute over Discovery and Request to Resolve the Dispute. Filed by Jacob Barrett (ljb) (Entered: 07/09/2012)
37 STRICKEN per order dated 7/18/2012. ORDER − Granting Plaintiff's Motion for Extension of Time 35 .Dispositive motions are due by 9/6/2012. Ordered by Judge Michael H. Simon. (mja) Modified on 7/18/2012 (mr). (Entered: 07/18/2012)
38 Order for Administrative Correction of the Record pursuant to Fed. R. Civ. P. 60(a) regarding Order on motion for extension of time 37 . A Clerical error has been discovered in the case record. The Clerk is directed to make the following administrative corrections to the record: The order shall be stricken and ruling shall be made by the presiding judge in the case. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 07/18/2012)
39 ORDER: Granting Plaintiff's Motion for Extension of Time 35 . Plaintiff's dispositive motions are due by 9/4/2012. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 07/18/2012)
40 Motion for Extension of Time . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Winges−Yanez, Kristin) (Entered: 07/26/2012)
41 Declaration of Kristin Winges−Yanez . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Related document(s): Motion for Extension of Time 40 .) (Winges−Yanez, Kristin) (Entered: 07/26/2012)
42 ORDER: Granting Defendants' Motion for Extension of Time 40 . Defendants' response to Plaintiff's Motion to Strike 34 is due 8/9/2012. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 08/01/2012)
43 Response to Motion to Strike Answer to Amended Complaint 30 34 . Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Winges−Yanez, Kristin)

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08/07/2012 08/22/2012
08/22/2012 08/22/2012 08/27/2012 08/27/2012 08/27/2012 08/27/2012 08/28/2012 08/28/2012 08/28/2012
08/28/2012 09/04/2012
09/05/2012 09/05/2012 09/06/2012

(Entered: 08/07/2012)
46 Defendants' Amended Answer to Plaintiff's Second Amended Complaint 29 and Affirmative Defenses, with Jury Demand. Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (gw) (Entered: 08/22/2012)
44 ORDER regarding Response to Motion to Strike 43 . The Clerk of the Court is DIRECTED to detach pages 3−7 (Attachment 1) from Defendant's Response To Plaintiff's Motion to Strike 43 , and file that attachment as a separate docket entry entitled Defendants' Amended Answer to Plaintiff's Second Amended Complaint and Affirmative Defenses. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 08/22/2012)
45 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Order 44 . (mr) (Entered: 08/22/2012)
47 Clerk's Notice of Mailing to Jacob Barrett of Defendants' Amended Answer to Plaintiff's Second Amended Complaint 46 . (gw) (Entered: 08/22/2012)
48 Motion for Summary Judgment . Oral Argument requested. Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Winges−Yanez, Kristin) Modified per order dated 8/28/2012 (mr). Motion re−opened on 5/30/2013 (mr). (Entered: 08/27/2012)
49 Memorandum in Support . Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Related document(s): Motion for Summary Judgment 48 .) (Winges−Yanez, Kristin) (Entered: 08/27/2012)
50 Declaration of Randy Geer . Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Related document(s): Motion for Summary Judgment 48 .) (Winges−Yanez, Kristin) (Entered: 08/27/2012)
51 Declaration of Michelle Dodson . Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Related document(s): Motion for Summary Judgment 48 .) (Winges−Yanez, Kristin) (Entered: 08/27/2012)
52 ORDER: Plaintiff's Motion to Strike Answer to Amended Complaint 34 is DENIED as moot. Respondents' Amended Answer to Plaintiff's Second Amended Complaint 46 supercedes the previously−filed answer. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 08/28/2012)
53 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Order 52 . (mr) (Entered: 08/28/2012)
54 ORDER regarding Motion for Summary Judgment 48 . At counsel's request, the request for oral argument contained in the motion shall be stricken as oral argument was requested by mistake. The clerk is directed to strike the words "oral argument requested" from the docket text. Ordered by Judge Marco A. Hernandez. A copy of this order mailed to plaintiff. (mr) (Entered: 08/28/2012)
55 Motion for Stay Discovery. Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Winges−Yanez, Kristin) Motion re−opened on 5/30/2013 (mr). (Entered: 08/28/2012)
56 Summary Judgment Advice Notice and Scheduling Order regarding Motion for Summary Judgment 48 . Plaintiff shall file his opposition to defendants' motion for summary judgment within 30 days of the date of this order. Defendants shall file their reply within 14 days thereafter, at which time defendants' motion for summary judgment shall be taken under advisement. Ordered by Judge Marco A. Hernandez. (gw) (Entered: 09/05/2012)
57 Clerk's Notice of Mailing to Jacob Barrett of Summary Judgment Advice Notice and Scheduling Order 56 . (gw) (Entered: 09/05/2012)
58 Motion to Compel (titled by filer "Motion for Production of Documents"). Filed by Jacob Barrett. (gw) (Entered: 09/05/2012)
59 Motion for Extension of Time to File a Response/Reply to Motion for Stay Discovery 55 , Motion for Summary Judgment 48 . Filed by Jacob Barrett. (ljb)

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09/17/2012 09/24/2012 09/24/2012 09/25/2012 10/09/2012 10/29/2012
10/29/2012 11/01/2012 11/19/2012
11/19/2012 12/06/2012 01/02/2013
01/10/2013 02/22/2013 02/25/2013

(Entered: 09/06/2012)
60 ORDER: Granting Plaintiff's Motion for Extension of Time to File Response to Motion for Summary Judgment 48 and Motion for Stay 55 . Response is due by 10/31/2012. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff Jacob Barrett. (mr) (Entered: 09/17/2012)
61 Motion for Extension of Time . Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Winges−Yanez, Kristin) (Entered: 09/24/2012)
62 Declaration of Kristin Winges−Yanez . Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Related document(s): Motion for Extension of Time 61 .) (Winges−Yanez, Kristin) (Entered: 09/24/2012)
63 ORDER: Granting Defendants' Motion for Extension of Time 61 to respond to Plaintiff's Motion to Compel 58 . Response is due by 10/9/2012. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 09/25/2012)
64 Response to Motion to Compel 58 . Filed by Michelle Whitney Dodson, Jeff Premo, Max Williams. (Winges−Yanez, Kristin) (Entered: 10/09/2012)
65 ORDER: Plaintiff's motion to compel 58 is GRANTED in part and DENIED in part. Plaintiff's Request No. 1, Request No. 2, and Request No. 6 are denied as overly broad. Plaintiff's Request No. 3 is GRANTED in part: defendants are to provide plaintiff with the names of the mailroom staff at the Oregon State Penitentiary and the title of their positions. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 10/29/2012)
66 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Order 65 . (mr) (Entered: 10/29/2012)
67 Motion for Extension of Time. Filed by Jacob Barrett. (ljb) (Entered: 11/02/2012)
68 ORDER: Granting Plaintiff's Motion for Extension of Time 67 AS FOLLOWS: Responses to Defendant's Motion for Summary Judgment 48 and Motion for Stay of Discovery 55 are DUE by 12/21/2012. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff along with a courtesy copy of the Motion for Stay of Discovery. (mr) (Entered: 11/19/2012)
69 Motion for Extension of Time. Filed by Jacob Barrett. (ljb) (Entered: 11/20/2012)
70 Notice of Attorney Substitution:Attorney Shannon M. Vincent is substituted as counsel of record in place of Attorney Kristin A. Winges−Yanez (titled "Notice of Substitution of Counsel") Filed by Janna Russell, Michelle Whitney Dodson, Jeff Premo, Max Williams (Vincent, Shannon) (Entered: 12/06/2012)
71 ORDER: Granting Plaintiff's Motion for Extension of Time 69 . It appears to the court that Plaintiff's Motion for Extension of Time 67 , extending time for plaintiff to respond to 12/21/2012, was filed the same day as Plaintiff's Motion for Extension of Time 69 was received. Since it is unclear if plaintiff intends to respond to the motions, final extension for response to both the Motion for Summary Judgment 48 and Motion to Stay Discovery 55 is granted to 2/1/2013. If no response is received to the motions by 2/1/2013, the motions will be taken under advisement. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 01/02/2013)
72 Mail Returned − Undeliverable: Order 71 sent to Jacob Barrett returned as undeliverable. (gw) (Entered: 01/14/2013)
73 OPINION &ORDER: Defendants' motion for summary judgment 48 is GRANTED, and defendants' motion for stay of discovery 55 is DENIED as moot. See 12−page opinion &order attached. Signed on 2/22/2013 by Judge Marco A. Hernandez. (mr) (Entered: 02/25/2013)
74 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Opinion &Order 73 . (mr) (Entered: 02/25/2013)

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02/25/2013
03/22/2013 04/08/2013 05/08/2013 05/10/2013 05/10/2013 05/22/2013 05/22/2013 05/22/2013 05/22/2013 05/22/2013 05/22/2013
05/27/2013
05/30/2013
06/10/2013 06/10/2013 06/10/2013 06/10/2013 06/14/2013

75 JUDGMENT: IT IS ORDERED AND ADJUDGED that this action is DISMISSED. Pending motions, if any, are DENIED AS MOOT. Signed on 2/25/2013 by Judge Marco A. Hernandez. Copy of judgment mailed to plaintiff. (mr) (Entered: 02/25/2013)
76 Motion to Reopen Case, Motion for Reconsideration of Judgment (# 75 ), and Motion for Extension of Time. Filed by Jacob Barrett. (eo) (Entered: 03/26/2013)
77 Response to Motion to Reopen CaseMotion for Reconsideration of Judgment 75 Motion for Extension of Time 76 . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Vincent, Shannon) (Entered: 04/08/2013)
78 Notice of Change of Address. Filed by Jacob Barrett. (ljb) (Entered: 05/10/2013)
79 Reply to Motion 76 . Filed by Jacob Barrett. (Attachment: # 1 Attachment No. 1) (gw) (Entered: 05/10/2013)
80 Notice re Reply to Motion 79 . Filed by Jacob Barrett. (Related document: Reply to Motion 79 .) (gw) (Entered: 05/10/2013)
81 Response, titled "Plaintiffs Reply to Defendants Motion for Summary Judgment." Filed by Jacob Barrett. (Related document: Motion for Summary Judgment 48 .) (gw) (Entered: 05/24/2013)
82 Memorandum in Support. Filed by Jacob Barrett. (Related document: Response 81 .) (gw) (Entered: 05/24/2013)
83 "Statement of Undisputed Facts" re Response 81 and Memorandum in Support 82 . Filed by Jacob Barrett. (gw) (Entered: 05/24/2013)
84 Affidavit of Jacob Barrett. Filed by Jacob Barrett. (gw) (Attachment added on 5/24/2013: # 1 Attachments) (gw). (Entered: 05/24/2013)
85 Affidavit of Chris Weedmark. Filed by Jacob Barrett. (gw) (Entered: 05/24/2013)
86 Notice re Response 81 , Memorandum in Support 82 , Concise Statement 83 , Affidavit 84 and Affidavit 85 . Filed by Jacob Barrett. (Related documents: Response 81 , Memorandum in Support 82 , Concise Statement 83 , Affidavit 84 , Affidavit 85 .) (gw) (Entered: 05/24/2013)
87 OPINION &ORDER: Plaintiff's motion 76 is GRANTED. The Clerk is ordered to reopen the case. See 5−page opinion &order attached. Signed on 5/27/2013 by Judge Marco A. Hernandez. Copy of opinion &order mailed to plaintiff. (mr) (Entered: 05/30/2013)
88 ORDER: Based upon the Opinion &Order 87 issued 5/30/2013, the court orders the following action: The Opinion &Order 73 and the Judgment 75 are hereby VACATED. Defendants' Motion for Summary Judgment 48 and defendants' Motion for Stay of Discovery 55 are RE−OPENED. Plaintiff's Response 81 to the Motion for Summary Judgment 48 , as well as his supporting documentation to the response, filed 5/22/2013, are deemed timely. Defendants' reply, if any, to the Motion for Summary Judgment is due by 6/14/2013. Plaintiff's response to the Motion for Stay of Discovery 55 is due by 6/17/2013. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 05/30/2013)
89 Response to Motion for Stay Discovery 55 . Filed by Jacob Barrett. (ljb) (Entered: 06/10/2013)
90 Motion to Dismiss Defendant Williams and Substitute Defendant Colette Peters. Filed by Jacob Barrett. (ljb) (Entered: 06/10/2013)
91 Motion for Settlement Hearing. Filed by Jacob Barrett. (ljb) (Entered: 06/10/2013)
92 Motion for Supplemental Complaint (with supplemental complaint and certificate of service included). Filed by Jacob Barrett. (ljb) (Entered: 06/10/2013)
93 Reply (in support of) to Motion for Summary Judgment 48 . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Vincent, Shannon) (Entered: 06/14/2013)

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06/21/2013 06/21/2013 06/26/2013 07/18/2013 07/18/2013 07/18/2013 07/18/2013 10/08/2013
10/31/2013
11/14/2013
11/14/2013 12/02/2013 12/16/2013 12/18/2013

94 Motion for Extension of Time . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Vincent, Shannon) (Entered: 06/21/2013)
95 Declaration of Shannon Vincent . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Related document(s): Motion for Extension of Time 94 .) (Vincent, Shannon) (Entered: 06/21/2013)
96 ORDER: Granting Defendants' Motion for Extension of Time 94 . Responses to motions 90 , 91 , and 92 are due by 7/18/2013. Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 06/26/2013)
97 Response in Opposition to Motion to Supplement 92 . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Vincent, Shannon) (Entered: 07/18/2013)
98 Response in Opposition to Motion for Hearing 91 , Motion for Summary Judgment 48 . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Vincent, Shannon) (Entered: 07/18/2013)
99 Reply in Support of Defendants' Motion to Stay Discovery. Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Related document(s): Order on motion for extension of time to file Response/Reply, 60 .) (Vincent, Shannon) (Entered: 07/18/2013)
100 Response in Opposition to Motion to Dismiss 90 . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Vincent, Shannon) (Entered: 07/18/2013)
101 Scheduling Order by Judge Marco A. Hernandez regarding Motions 48 , 90 , 91 , and 92 . The court sets Oral Argument for 10/31/2013 at 10:30AM in Portland Courtroom 14B before Judge Marco A. Hernandez. The plaintiff shall appear by either video or audio conference as the court is able to arrange with the custodial facility. The parties are to be prepared to address the following questions: (1) whether the Oregon Department of Corrections' mail rules allow incoming postcards; and, (2) how does the Oregon Department of Corrections process incoming mail, including who handles the mail from the time it is received and delivered, if at all, to the intended recipient? Ordered by Judge Marco A. Hernandez. Copy of this order mailed to plaintiff. (mr) (Entered: 10/08/2013)
102 MINUTES of Proceedings: Motion Hearing Held regarding Motions 48 , 90 , 91 and 92 . Judge Marco A. Hernandez presiding. The court hears argument. ORDER: Motions are taken under advisement as of 10/31/2013. Jacob Barrett, pro se plaintiff, appears by telephone. Shannon M. Vincent present as counsel for defendants. Court Reporter: Nancy Walker. (mr) (Entered: 10/31/2013)
103 OPINION &ORDER: Defendants' motion for summary judgment 48 is GRANTED in part and DENIED in part, Defendants' motion for stay of discovery 55 is DENIED, Plaintiff's Motion to Dismiss Defendant Williams and Substitute Defendant Colette Peters 90 is GRANTED, Plaintiff's Motion for Settlement Hearing 91 is DENIED, and Plaintiff's Motion for Supplemental Complaint Pursuant to Rule 15(d) 92 is DENIED. See 25−page opinion &order attached. Signed on 11/14/2013 by Judge Marco A. Hernandez. (mr) (Entered: 11/14/2013)
104 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Opinion &Order 103 . (mr) (Entered: 11/14/2013)
105 Motion for Reconsideration of Opinion &Order 103 , titled "Objections and Motion for Reconsideration to the Courts Opinion and Order." Filed by Jacob Barrett. (gw) (Entered: 12/03/2013)
106 Motion for Appointment of Counsel. Filed by Jacob Barrett. (kf) (Entered: 12/16/2013)
107 Response in Opposition to Motion for Reconsideration of Order on motion for summary judgment, Order on Motion to Dismiss, Order on Motion for Hearing, Order on Motion to Supplement,,,,,,,, 103 105 . Filed by Michelle Whitney Dodson, Jeff Premo, Janna Russell, Max Williams. (Vincent, Shannon) (Entered: 12/18/2013)

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02/26/2014
02/26/2014
02/26/2014
02/26/2014
02/26/2014 03/05/2014 03/05/2014 03/05/2014 03/06/2014
03/06/2014 03/07/2014 03/07/2014 03/07/2014 03/17/2014
03/31/2014

108 OPINION &ORDER: Plaintiff's motion for appointment of counsel 106 is GRANTED and Plaintiff's motion for reconsideration 105 is DENIED. See 6−page opinion &order attached. Signed on 2/26/2014 by Judge Marco A. Hernandez. (mr) Modified document type from standard to opinion on 2/27/2014 (kf). (Entered: 02/26/2014)
109 STRICKEN pursuant to order dated 2/26/2014. Order Appointing David T. Johnson for Jacob Barrett as Pro Bono Counsel (All Purpose Appointment). Counsel is to file the attached response form if representation is accepted, if a conflict of interest exists, or if termination of the appointment is requested for a reason other than a conflict of interest by 3/17/2014. Signed on 2/26/2014 by Judge Marco A. Hernandez. (mr) Modified on 2/26/2014 (mr). (Entered: 02/26/2014)
110 Order Appointing David T. Johnson as Pro Bono Counsel (All Purpose Appointment). Counsel is to file the attached response form if representation is accepted, if a conflict of interest exists, or if termination of the appointment is requested for a reason other than a conflict of interest by 3/17/2014. Signed on 2/26/2014 by Judge Marco A. Hernandez. (mr) (Entered: 02/26/2014)
111 Order for Administrative Correction of the Record pursuant to Fed. R. Civ. P. 60(a) regarding Order Appointing Pro Bono Counsel, 109 . A Clerical error has been discovered in the case record. The Clerk is directed to make the following administrative corrections to the record: the document did not generate and this entry was resubmitted as docket 110 . Docket 109 shall be stricken. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 02/26/2014)
112 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Opinion &Order 108 and Order Appointing Pro Bono Counsel 110 . (mr) (Entered: 02/26/2014)
113 Response Pro Bono Appointment. Filed by Jacob Barrett. (Johnson, David) (Entered: 03/05/2014)
114 Order Terminating David T. Johnson as Pro Bono Counsel. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 03/05/2014)
115 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Order Terminating Pro Bono Counsel 114 . (mr) (Entered: 03/05/2014)
116 Order Appointing Troy Garrett Sexton for Jacob Barrett as Pro Bono Counsel (All Purpose Appointment). Counsel is to file the attached response form if representation is accepted, if a conflict of interest exists, or if termination of the appointment is requested for a reason other than a conflict of interest by 3/24/2014. Signed on 3/6/2014 by Judge Marco A. Hernandez. (mr) (Entered: 03/06/2014)
117 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Order Appointing Pro Bono Counsel 116 . (mr) (Entered: 03/06/2014)
118 Pro Bono Appointment Response. Termination of the appointment is requested because my case load does not allow me to take on additional litigation at this time.. Filed by Jacob Barrett. (Related document(s): Order Appointing Pro Bono Counsel, 116 .) (Sexton, Troy) (Entered: 03/07/2014)
119 Order Terminating Troy Garrett Sexton as Pro Bono Counsel. Signed on 3/7/2014 by Judge Marco A. Hernandez. (mr) (Entered: 03/07/2014)
120 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Order Terminating Pro Bono Counsel 119 . (mr) (Entered: 03/07/2014)
121 Order Appointing William F. Martson, Jr. for Jacob Barrett as Pro Bono Counsel (All Purpose Appointment). Counsel is to file the attached response form if representation is accepted, if a conflict of interest exists, or if termination of the appointment is requested for a reason other than a conflict of interest by 4/3/2014. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 03/17/2014)
122 Pro Bono Appointment Response. Representation is accepted as specified in the Order Appointing Pro Bono Counsel. Filed by Jacob Barrett. (Related document(s): Order Appointing Pro Bono Counsel, 121 .) (Kotori, Blerina) (Entered: 03/31/2014)

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123 Pro Se Motion for Preliminary Hearing (Pre−Trial). Filed by Jacob Barrett. (gw) (Entered: 04/08/2014)
124 Pro Se Motion for Bench Trial. Filed by Jacob Barrett. (gw) (Entered: 04/08/2014)
125 Pro Se "Proposed Stipulated Facts." Filed by Jacob Barrett. (Attachment: # 1 Exhibits) (gw) (Entered: 04/08/2014)
126 Clerk's Notice of Mailing to Plaintiff Jacob Barrett regarding Order Appointing Pro Bono Counsel 121 , and Pro Bono Appointment Response Form 122 . (mr) (Entered: 04/09/2014)
127 ORDER: Denying Motion for Hearing 123 and Denying Motion 124 as they were filed by a plaintiff who is represented by counsel. Counsel for plaintiff shall notify him that any further motions should be submitted by his counsel. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 04/11/2014)
128 Scheduling Order by Judge Marco A. Hernandez. Scheduling Conference is set for 4/25/2014 at 11:00AM by Telephone before Judge Marco A. Hernandez. The parties shall call into the court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. The court will join the conference at or shortly after the appointed time. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 04/14/2014)
129 CORRECTED Scheduling Order by Judge Marco A. Hernandez. Due to a conflict in the court's calendar, Scheduling Conference is RESET AS TO TIME ONLY for 4/25/2014 at 10:00AM by Telephone before Judge Marco A. Hernandez. The parties shall call into the court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. The court will join the conference at or shortly after the appointed time. Ordered by Judge Marco A. Hernandez. Modified time of hearing on 4/18/2014; ECF notice regenerated. (mr) (Entered: 04/18/2014)
130 MINUTES of Proceedings: Scheduling Conference. Judge Marco A. Hernandez presiding. ORDER: At the parties' request, a further Status/Scheduling Conference is SET for 5/19/2014 at 01:30PM by Telephone before Judge Marco A. Hernandez. The parties shall call into the court's conference line (the phone number provided for today's conference) five minutes prior to the scheduled conference time. The court will join the conference at or shortly after the appointed time. Blerina Kotori present as counsel for plaintiff(s). Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Amanda LeGore. (mr) (Entered: 04/28/2014)
131 Scheduling Order by Judge Marco A. Hernandez. At the joint request of counsel, Status/Scheduling Conference is RESET FROM 5/19/2014 TO 6/2/2014 at 01:30PM by Telephone before Judge Marco A. Hernandez. The parties shall call into the court's conference line (the phone number provided for previous conference) five minutes prior to the scheduled conference time. The court will join the conference at or shortly after the appointed time. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 05/14/2014)
132 Scheduling Order by Judge Marco A. Hernandez. At the joint request of counsel, Status/Scheduling Conference is RESET FROM 6/2/2014 TO 6/10/2014 at 01:30PM by Telephone before Judge Marco A. Hernandez. The parties shall call into the court's conference line (the phone number provided for previous conference) five minutes prior to the scheduled conference time. The court will join the conference at or shortly after the appointed time. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 05/30/2014)
133 MINUTES of Proceedings: Scheduling Conference. Judge Marco A. Hernandez presiding. ORDER: This case is now a declaratory relief matter. Thus, Court Trial is SET for 10/15/2014 at 09:00AM in Portland Courtroom 14B before Judge Marco A. Hernandez. No pretrial is needed. Court Trial Management Order to follow. Blerina Kotori present as counsel for plaintiff(s). Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Nancy Walker. (mr) (Entered: 06/10/2014)

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134 Court Trial Management Order. See 4−page order attached. Signed on 6/10/2014 by Judge Marco A. Hernandez. (mr) (Entered: 06/10/2014)
135 Stipulated Motion for Resetting Trial Date. Filed by Jacob Barrett. (Kotori, Blerina) Modified on 8/1/2014 to correct event. (mr) (Entered: 07/31/2014)
136 ORDER: Granting Stipulated Motion for Resetting Trial Date 135 . 1−Day Court Trial is RESET FROM 10/15/2014 TO 12/4/2014 at 09:00AM in Portland Courtroom 14B before Judge Marco A. Hernandez. No pretrial is needed. The parties shall use the Court Trial Management Order previously issued in this matter to recalculate their pretrial submission deadlines. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 08/01/2014)
137 Joint Motion to Continue Trial Date and Pretrial Filing Deadlines. Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Vincent, Shannon) (Entered: 10/10/2014)
138 Declaration of Shannon Vincent . Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Related document(s): Motion to continue 137 .) (Vincent, Shannon) (Entered: 10/10/2014)
139 Declaration of Blerina Kotori in Support of Joint Motion for Continuance of Trial Date and Pretrial Filing Deadlines. Filed by Jacob Barrett. (Related document(s): Motion to continue 137 .) (Kotori, Blerina) (Entered: 10/10/2014)
140 ORDER: Granting Joint Motion to Continue Trial Date and Pretrial Filing Deadlines 137 . Court Trial is RESET from 12/4/2014 TO 2/19/2015 at 09:00AM (DATE CERTAIN) in Portland Courtroom 14B before Judge Marco A. Hernandez. No pretrial is needed. The parties shall use the Court Trial Management Order previously issued in this matter to recalculate their pretrial submission deadlines. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 10/21/2014)
141 ORDER VERIFYING TRIAL DATE AND ORDERING PLAINTIFF TO APPEAR TELEPHONICALLY See 1−page order attached. Signed on 1/9/2015 by Judge Marco A. Hernandez. (mr) (Entered: 01/09/2015)
142 Trial Memorandum . Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Vincent, Shannon) (Entered: 01/16/2015)
143 Exhibit List . Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Vincent, Shannon) (Entered: 01/16/2015)
144 Witness Statement s. Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Vincent, Shannon) (Entered: 01/16/2015)
145 Trial Memorandum . Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/16/2015)
146 Exhibit List . Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/16/2015)
147 Witness Statement . Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/16/2015)
148 Expert Statement . Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/16/2015)
149 OFFICIAL COURT TRANSCRIPT OF PROCEEDINGS FILED Motion hearing held on October 31, 2013 before Judge Marco A. Hernandez, Court Reporter Nancy M. Walker, telephone number 503−326−8186. Transcript may be viewed at Court's public terminal or purchased from the Court Reporter before the deadline for Release of Transcript Restriction. Afterwards it may be obtained from the Court Reporter (503−326−8186) or through PACER−See Policy at ord.uscourts.gov. Notice of Intent to Redact Transcript is due by 2/2/2015. Redaction Request due 2/17/2015. Redacted Transcript Deadline set for 2/26/2015. Release of Transcript Restriction set for 4/27/2015. (Walker, Nancy) (Entered: 01/22/2015)
150 Motion in limine (titled "Defendants' Motions in Limine"). Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Vincent, Shannon) (Entered: 01/23/2015)

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151 Objection to Trial Exhibit (titled "Defendants' Objections to Plaintiff's Witnesses and Exhibits"). Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Vincent, Shannon) (Entered: 01/23/2015)
152 Motion in limine . Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/23/2015)
153 Declaration of Blerina Kotori in Support of Plaintiff's Motions in Limine. Filed by Jacob Barrett. (Related document(s): Motion in Limine 152 .) (Attachments: # 1 Exhibit 1) (Kotori, Blerina) (Entered: 01/23/2015)
154 Objection to Trial Exhibit . Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/23/2015)
155 Amended Exhibit List . Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/23/2015)
156 Amended Witness List and Statements. Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/23/2015)
157 Response to Motion in limine 152 . Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Vincent, Shannon) (Entered: 01/30/2015)
158 Response to Plaintiff's Objection to Defense Exhibit 516. Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Related document(s): Objection to Trial Exhibit 154 .) (Vincent, Shannon) (Entered: 01/30/2015)
159 Proposed Findings of Fact and Conclusions of Law. Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo. (Vincent, Shannon) (Entered: 01/30/2015)
160 Proposed Findings of Fact and Conclusions of Law. Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/30/2015)
161 Response to Motion in limine (titled "Defendants' Motions in Limine") 150 . Filed by Jacob Barrett. (Attachments: # 1 Declaration of Blerina Kotori in Support of Plaintiff's Response to Defendants' Motions in Limine, # 2 Declaration of Alex M. Tinker in Support of Plaintiff's Response to Defendants' Motions in Limine, # 3 Declaration of Paul Wright in Support of Plaintiff's Response to Defendants' Motions in Limine) (Kotori, Blerina) (Entered: 01/30/2015)
162 Plaintiff's Rebuttal Witness List and Statements. Filed by Jacob Barrett. (Kotori, Blerina) Modified on 2/2/2015 per attorney's office call. (kf) (Entered: 01/30/2015)
163 Plaintiff's Response to Defendants' Objections to Plaintiff's Witnesses and Exhibits. Filed by Jacob Barrett. (Kotori, Blerina) Modified on 2/2/2015 per attorney's office call. (kf) (Entered: 01/30/2015)
164 Report Signed Expert Report of Paul Wright. Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 01/30/2015)
165 Joint Proposed Pretrial Order Lodged . Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 02/02/2015)
166 PRETRIAL ORDER. See 4−page order attached. Signed on 2/10/2015 by Judge Marco A. Hernandez. (mr) (Entered: 02/11/2015)
167 Joint Motion in limine "Joint Submission of Motions in Limine". Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 02/13/2015)
168 Joint Objection(s) "Agreed−Upon Chart of Objections to Witnesses / Exhibits". Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 02/13/2015)
169 ORDER (Unopposed) VERIFYING TRIAL DATE, REQUESTING PLAINTIFF TO APPEAR FOR DURATION OF TRIAL AND ORDERING OTHER RELIEF. See 2−page order attached. Signed on 2/17/2015 by Judge Marco A. Hernandez. (mr) (Entered: 02/17/2015)
170 Clerk's Notice of Sending to Union Correctional Institution regarding Order 169 . The order was faxed and emailed pursuant to the court's instructions contained in the order. (mr) (Entered: 02/17/2015)

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171 Stipulation of Admitted Facts by Michelle Whitney Dodson, Colette Peters, Jeff Premo, Kelly Raths. Filed by Michelle Whitney Dodson, Colette Peters, Jeff Premo, Kelly Raths. (Attachments: # 1 Attachment Declaration of Michelle Dodson) (Vincent, Shannon) (Entered: 02/18/2015)
172 MINUTES of Proceedings: Court Trial − Day 1 − completed. Judge Marco A. Hernandez presiding. Plaintiff Jacob Barrett appears via telephone. Defendant's motion to exclude expert is granted. Plaintiff's exhibit 2 is withdrawn and Plaintiff's exhibit 19 is received by stipulation. Both sides present opening statements. Witnesses sworn: Jacob Henry Barrett, Kelly Raths, Christopher Toombs, and Brandon Kelly. Plaintiff's exhibits 1, and 3−10 are received (ex. 19 previously received); Defendant's exhibits 501−516 are received. Defense motion for judgment as matter of law is denied. Plaintiff's motion for partial findings is denied. Both sides present closing argument and the matter is taken under advisement. Blerina Kotori present as counsel for plaintiff(s). Shannon M. Vincent with Certified Law Student Ivan Resendiz Gutierrez present as counsel for defendant(s). Court Reporter: Nancy Walker. Modified on 2/20/2015 to correct exhibits received. NEF regenerated. (mr) (Entered: 02/20/2015)
173 FINDINGS OF FACT AND CONCLUSIONS OF LAW. Defendants violated Plaintiff's First Amendment rights. Plaintiff is entitled to declaratory judgment and a permanent injunction enjoining Defendants from rejecting or otherwise prohibiting incoming mail for containing artwork on the front of envelopes. Plaintiff is also entitled to an order requiring Defendants to inform inmates that they are permitted to receive letters with artwork on the front of envelopes. Plaintiff shall prepare a judgment in accordance with these Findings of Fact and Conclusions of Law. After conferring with Defendants, Plaintiff shall submit the proposed judgment to the Court for review within 30 days of the date below. If the parties cannot agree on a judgment, Plaintiff shall notify the Court, which will then schedule a telephone conference with counsel. See 28−page document attached. Signed on 3/30/2015 by Judge Marco A. Hernandez. (mr) (Entered: 03/31/2015)
174 Scheduling Order: Hearing regarding form of judgment is SET for 5/13/2015 at 11:00AM by telephone before Judge Marco A. Hernandez. The parties shall call into the court's conference line (the phone number provided via separate email) five minutes prior to the scheduled conference time. The court will join the conference at or shortly after the appointed time. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 05/08/2015)
175 MINUTES of Proceedings: Status Conference. Judge Marco A. Hernandez presiding. Court and counsel discuss form of judgment. Court will incorporate changes as stated on the record and issue judgment. Blerina Kotori present as counsel for plaintiff(s). Shannon M. Vincent present as counsel for defendant(s). Court Reporter: Maureen Kelly. (mr) (Entered: 05/13/2015)
176 JUDGMENT. See 2−page judgment attached. Signed on 5/14/2015 by Judge Marco A. Hernandez. (mr) (Entered: 05/15/2015)
177 Stipulated Motion for Extension of Time to File Plaintiff's Petition for Attorneys' Fees and Costs. Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 05/26/2015)
178 Declaration of Blerina Kotori in Support of Stipulated Motion for Extension of Deadline to File Plaintiff's Petition for Attorney's Fees and Costs. Filed by Jacob Barrett. (Related document(s): Motion for Extension of Time 177 .) (Kotori, Blerina) (Entered: 05/26/2015)
179 ORDER: GRANTING Stipulated Motion for Extension of Deadline to File Plaintiff's Petition for Attorney Fees and Costs 177 . Petition for fees and costs to be filed by 6/11/2015. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 05/27/2015)
180 Stipulated Motion for Extension of Time to File Plaintiff's Petition for Attorneys' Fees and Costs (Second). Filed by Jacob Barrett. (Kotori, Blerina) (Entered: 06/09/2015)
181 Declaration of Blerina Kotori in Support of Second Stipulated Motion for Extension of Deadline to File Plaintiff's Petition for Attorneys' Fees and Costs. Filed by Jacob Barrett. (Related document(s): Motion for Extension of Time 180 .) (Kotori,

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06/09/2015

Blerina) (Entered: 06/09/2015)
182 ORDER: GRANTING Second Stipulated Motion for Extension of Deadline to File Plaintiff's Petition for Attorney Fees and Costs 180 . Petition for fees and costs to be filed by 7/1/2015. Ordered by Judge Marco A. Hernandez. (mr) (Entered: 06/09/2015)