IN THE UNITED STA TES DISTRICT COURT 

CHRISTOPHER GONZALEZ, 

Plaintiff, 

v. 

COLETTE PETERS, 

Director of Oregon 

Department of Corrections, 

Defendant. 

JONES,J: 

DISTRICT OF OREGON 

PORTLAND DIVISION 

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Case No. 2: 14-CV-02053-JO 

OPINION AND ORDER 

Plaintiff Clu·istopher Gonzalez, acting pro se, sued Defendant Colette Peters, Director of 

the Oregon Department of Corrections ("ODOC"), requesting declaratory relief, injunctive relief, 

and reimbursement of filing fees incurred pursuant to 42 U.S.C. § 1983. (# 2 p. 6). Gonzalez 

alleges that Peters violated his First Amendment rights by imposing a policy restricting personal 

reading materials for inmates housed in the Intensive Management Unit ("IMU"). Specifically, 

Gonzalez challenges OAR 291-055-0020(2)(a) and (b), a regulation prohibiting inmates from 

possessing personal reading materials until their behavior warrants a promotion to a less 

restrictive level of the IMU, contending the regulation is facially unconstitutional. Peters filed 

this motion for summary judgment (#27). For the following reasons, I grant Peters' motion. 

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Case 2:14-cv-02053-JO Document 39 Filed 04/28/16 Page 1 of 11
BACKGROUND 

Gonzalez, an inmate in the custody of the ODOC, is housed in the IMU at program level 

two. (#36 p. 2). The IMU segregates inmates who engage in misconduct that threatens the safe, 

secure, and orderly operation of the institution. Prisoners' behaviors that warrant IMU 

segregation include threatening or inflicting bodily injury on another person, posing an 

immediate risk of escape, promoting threatening group activities, or paiiicipating in other 

activities that significantly threaten the safe and secure operation of the facility. OAR 291-055-

0019(1); OAR 291-055-0010(6)(a)-(e). 

The IMU consists of five program levels. The lower program levels impose progressively 

increased restrictions on inmates' personal possessions. OAR 291-055-0020. When the ODOC 

assigns an inmate to the IMU, the inmate begins at level two, the second most restrictive 

program level. (#27). The IMU Inmate Program Committee evaluates each inmate's conduct to 

determine whether the inmate deserves a promotion to a higher, less restrictive program level. 

(#28 p. 3). IMU program levels one and two restrict inmates' reading materials to legal, 

religious, and educational materials, personal correspondence, and up to three paperback books 

checked out on a scheduled exchange basis from the prison library. OAR 291-055-0020(l)(a), 

(b ). The regulation excludes personal reading materials from the list of permitted items. 

Gonzalez argues that Peters violated his First Amendment rights by depriving him of 

personal reading materials while housed in the IMU. In his complaint, Gonzalez alleges that 

OAR 291-055-0020(2)(a) and (b) is unconstitutional on its face because the policy deprives him 

of his First Amendment right to read. (#2 p. 6). In her motion for summary judgement, Peters 

argues: 

(1) Gonzalez cannot mount a facial challenge to ODOC's rules; 

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Case 2:14-cv-02053-JO Document 39 Filed 04/28/16 Page 2 of 11
(2) ODOC's rules pass constitutional muster under the First Amendment; 

(3) The Prison Litigation Reform Act ("PLRA") bars Gonzalez's claim for overbroad 

iajunctive relief. 

ST AND ARD OF REVIEW 

The district comi should grant summary judgment ifthere are no genuine issues of 

material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 

56(c). If the moving pmiy shows that there are no genuine issues of material fact, the nonmoving pmiy must go beyond the pleadings and designate facts showing an issue for trial. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A scintilla of evidence, or evidence that is 

merely colorable or not significantly probative, does not present a genuine issue of material fact. 

United Steelworkers of America v. Phelps Dodge, 865 F.2d 1539, 1542 (9th Cir. 1989). The 

substantive law governing a claim determines whether a fact is material. Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 248 (1986); see also T.W. Elec. Service v. Pacific Elec. Contractors, 

809 F.2d 626, 630 (9th Cir. 1987). Reasonable doubts as to the existence of a material factual 

issue are resolved against the moving pmiy. T. W. Elec. Service, 809 F.2d at 631. Inferences 

drawn from facts are viewed in the light most favorable to the non-moving party. T. W. Elec. 

Service, 809 F.2d at 630-31. 

DISCUSSION 

I. Facial Challenge of Oregon Administrative Rules 

Under the First Amendment, a patiy prevails on a facial challenge only ifthe party proves 

"a substantial nmnber of [the statute's] applications m·e unconstitutional, judged in relation to the 

statute's plaiμly legitimate sweep." US. v. Stevens, 559 U.S. 460, 461 (2010). See also 

Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 449, n. 6 (2008) 

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(stating that a law impeding on First Amendment rights is facially invalid only if a substantial 

number of its applications are unconstitutional). A party can make this showing by asserting 

factual instances in which the application of the law is unconstitutional. New York State Club 

Ass'n, Inc. v. City of New York, 487 U.S. 1, 14 (1988). Courts disfavor facial challenges because 

of the likelihood of "premature interpretations of statutes in areas where their constitutional 

application might be cloudy." United States v. Raines, 362 U.S. 17, 22 (1960). 

Gonzalez does not assert any unconstitutional applications of OAR 291-055-0020(a) and 

(b ). Instead, Gonzalez argues that OARs are not laws and thus restrictions on facial challenges 

do not apply. (#35 p. 14). This argument fails because administrative rules have the same effect 

as legislative enactments. 1 Gonzalez fails put forth any facts showing a substantial number of 

instances in which the ODOC cannot apply OAR 291-055-0020(a) and (b) constitutionally. 

Therefore, Gonzalez's facial challenge fails as a matter of law. 2 

Although Gonzalez does not prevail in his facial challenge, I analyze whether OAR 291-

005-0020(a) and (b) pass constitutional muster under the First Amendment. I do this to give 

Gonzalez, a pro se litigant, full review of the merits of his case. 

II. First Amendment Claims 

The First Amendment protects an individual's right to read. Ashcroft v. Free Speech 

Coal., 535 U.S. 234, 245 (2002) (emphasizing the general principle that the government may not 

dictate what individuals read, speak, or hear). Further, "[p ]rison walls do not fotm a barrier 

1 The Ninth Circuit stated when Federal courts interpret Oregon State law, "our role is to 'interpret the law as 

would the [Oregon] Supreme Court."' Powell's Books, Inc. v. Kroger, 622 F.3d 1202, 1209 (9th Cir. 2010) (citing 

Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 925 (9th Cir. 2004)). The Oregon Supreme Court 

stated, "[a]dministrative rules and regulations are to be regarded as legislative enactments having the same effect 

as if enacted by the legislature as part of the original statute." Bronson v. Moonen, 270 Or. 469, 528 (1974). 

2 Gonzalez brings a facial challenge to OAR 291-055-0020(a) and (b) because an "as applied" challenge is 

unavailable to him. Liability under 42 U.S.C. § 1983 must be based on personal involvement by the defendant. May 

v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). Gonzalez only brought action against Peters who is not responsible 

for applying the restriction on Gonzalez's personal reading materials. Therefore, Peters is not Hable due to her lack 

of personal involvement. 

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separating prison inmates from the protections of the Constitution." lvforrison v. Hall, 261 F.3d 

896, 900 (9th Cir. 2001 ). However, in some instances, the Constitution permits greater restriction 

of rights in a prison environment compared to other environments. Beard v. Banks, 548 U.S. 521, 

528 (2006). For example, a prisoner does not retain First Amendment rights that are inconsistent 

with the legitimate penological objectives of a prison. Pell v. Procunier, 417 U.S. 817, 822 

(1974). If a prison regulation reasonably relates to legitimate penological interests, there is no 

violation of the First Amendment and thus no genuine issue for trial. }vfay v. Baldwin, 109 F.3d 

557, 560 (9th Cir. 1997). To determine whether a prison regulation reasonably relates to 

legitimate penological interests, the Supreme Court sets out four factors: 

(1) whether a valid, rational connection exists between the regulation and the stated 

legitimate government interest; 

(2) whether inmates retain an alternative means of exercising the right; 

(3) the impact the requested accommodation will have on inmates, the prison staff, and 

prison resources generally; and, 

( 4) whether there is an absence of ready alternative methods of accommodating the 

prisoner. Turner v. Safley, 482 U.S 78, 89-91 (1987). 

The Turner factors present a balancing test with the first factor the most significant. 

Ashker v. Cal. Dep't a/Corr., 350 F.3d 917, 922 (9th Cir. 2003); Shakur v. Schriro, 514 F.3d 

878, 891 (9th Cir. 2008). When dete1mining the reasonableness of a prison regulation, the Court 

must "accord substantial deference to the professional judgment of prison administrators, who 

bear a significant responsibility for defining the legitimate goals of a conections system and for 

dete1mining the most appropriate means to accomplish them." Overton v. Bazzetta, 539 U.S. 

126, 132 (2003). 

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A. Rational Connection to Prison's Legitimate Interests 

Improving inmate behavior constitutes a legitimate penological interest, and providing 

behavioral incentives establishes a valid basis for withholding personal reading materials. Beard 

v. Banks, 548 U.S. 521, 530 (2006). The state does not bear the burden to prove the validity of 

the prison regulation. Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Rather, the prisoner must 

put forth evidence to disprove the regulation's validity. Overton, 539 U.S. at 132. If the prisoner 

presents sufficient evidence to refute a rationale connection between the regulation as applied 

and the penological interest, then the government must present enough counter-evidence to show 

that the connection is not "so remote as to render the policy arbitrary or irrational." Jv!auro v. 

Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999). 

Gonzalez does not submit any rep011s, prison memorandum, factual findings, or other 

external documents as evidence, but rather relies on his own personal experience. He states that 

almost every inmate he witnessed complete the IMU program eventually returned to the IMU. 

(#36 p. 3). Specifically, Gonzalez contends that inmates engage in the same disruptive behavior 

that results in a return to the IMU even after ODOC restricted their personal reading materials 

during their initial placement in the IMU. (#36 p. 3).Gonza!ez asserts that this fact establishes 

that there is no logical connection between the challenged deprivations and the penological 

interest of improved prisoner behavior. 

In Walker v. Sumner, 917 F.2d 383 (9th Cir. 1990), the Nevada Depmiment of Prisons 

("DOP") implemented a directive that required all inmates to submit to a blood withdrawal, 

contending the blood withdrawal contributed to the safety of prisoners and staff. When Walker 

refused, the DOP used physical force to draw his blood. Walker, 917 F.2d at 384. This incident 

caused Walker to file a 42 U.S.C. § 1983 action alleging a violation of his constitutional rights. 

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The Ninth Circuit found that the Walker proffered sufficient evidence to refute a connection 

between the blood withdrawal and its purported penological interest when he stated, based on 

personal experience, that the prison screened inmates for AIDS at intake and thus additional 

screening by the prison did not relate to legitimate penological interest of security. Walker, 917 

F.2d at 387. Similarly, Gonzalez presents sufficient evidence, based on his own personal 

experience, to refute a connection between inmate behavior improvement and a restriction on 

personal reading materials. Therefore, the burden shifts to Peters to present enough counterevidence to show that the connection is not so remote as to render the policy arbitrary or 

inational. Frost v. Symington, 197 F.3d 348, 357 (9th Cir. 1999). 

The evidence Peter's puts f01ih is in the form of an affidavit from Captain Jost, a 

Conectional Captain of the ODOC with 17 years of experience. (#28). Captain Josi's affidavit 

states that the restriction on personal reading materials improves inmate behavior (#28 p. 5). 

Captain Jost states that ODOC designed the IMU to be an uncomf01iable living situation that 

encourages inmates to avoid committing offenses that will result in the ODOC placing the 

inmate in the IMU. (#28 p. 5). Captain Jost believes that the restriction on personal reading 

materials fosters discipline and order for the inmates both in and out of the IMU. (#28 p. 5). 

Capitan Jost identified the rational connection between restricting an inmate's personal 

possessions and motivating an inmate to take measures to avoid this restrictive living 

environment. Peters echoes Jost's sentiments contending that the primary justification for 

limiting personal prope1iy in the IMU is to provide incentive for better inmate behavior. (#27 p. 

9). 

This evidence, taken together, shows the connection between the jail's policy of 

prohibiting personal reading materials in the most restrictive levels of the IMU and the 

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penological interest of improving inmate behavior. See Beard, 548 U.S. at 531-32 (holding that a 

restriction on newspapers, magazines, and photos rationally related to the penological interest of 

behavior improvement in part because a prison official stated that the restriction served the 

identified function). Fmiher, courts must afford deference to prison officials to avoid "hampering 

their ability to anticipate security problems and to adopt innovative solutions to the intractable 

problems of prison administration." Ashker v. California Dep't o/Corr., 350 F.3d 917, 922 (9th 

Cir. 2003). The need of a prison to motivate better behavior of paiiicularly difficult inmates 

constitutes a valid penological interest. Beard, 548 U.S. at 530. 

I find that the restriction of personal reading materials for inmates in the IMU rationally 

connects to the penological interest of improving inmate behavior. Under the circumstances, this 

connection is not "so remote as to render the policy arbitrary or inational." Turner, 482 U.S. at 

89-90 (1987). Therefore, the first Turner factor weighs in favor of Peters. 

B. Alternative Means of Exercising the Right 

Peters argues that inmates retain an alternative means of exercising their rights because 

she permits inmates to read up to three library books on a scheduled exchange basis, personal 

correspondence, and religious, educational and legal materials. (# 27 p. 10). Gonzalez contends 

that these alternatives fail to provide a means of exercising his First Amendment right because 

reading religious books, legal work, and personal co1Tespondence does not replace personal 

reading materials and the ODOC library only possesses a limited selection of damaged books. (# 

35 p. 11). 

The First Amendment protects inmates' right to read but it does not provide inmates' the 

right to read any material they wish. Bahrampour v. Lampert, 356 F.3d 969, 976 (9th Cir. 2004); 

Frost, 197 F.3d at 357. In Turner, the regulation at issue prohibited inmate-to-inmate 

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coITespondence. Turner, 482 U.S. at 81-82. Although prison officials prohibited this type of 

coITespondence, the prison permitted inmates to coITespond with non-inmates. Turner, 482 U.S. 

at 81-82. The Comt found that the regulation "does not deprive prisoners of all means of 

expression. Rather, it bars communication only with a limited class of other people .... " Turner, 

482 U.S. at 92. Similarly, although the ODOC restricts Gonzalez's right to read personal 

materials, Gonzalez may still access other reading materials. Peters restricts only a limited class 

of reading materials in this case. 

The record establishes that even with the restriction on personal reading materials, that 

Gonzalez may still read up to three library books on a scheduled exchange basis, personal 

coITespondence, and religious, educational and legal materials. (# 27 p. 10). Therefore, Peters 

affords Gonzalez his protected First Amendment rights through alternative means. Accordingly, 

the second Turner factor also favors Peters. 

C. Effect of Accommodation on Prison Administration 

Peters argues that if inmates possess personal reading materials in the IMU, inmates will 

use the reading material to engage in destructive behavior such as clogging toilets, starting fires, 

and covering cell windows, which will require additional preventive security measures. (# 27 p. 

I 0). Gonzalez argues that Peters already permits inmates to possess materials that can cause the 

complained of destructive behavior in the IMU, therefore Peters' concern is unwaITanted. (# 35 

p. 35). 

The Court defers to prison officials regarding these accommodations because even minor 

accommodations affect prison administration. Turner, 482 U.S. at 90. If a prisons' regulation 

prevents only a small p01tion of the behavior it sets out to eliminate, a strong inference exists that 

the regulation is an exaggerated response. lvlann v. Smith, 796 F.2d 79, 82 (5th Cir. 1986). 

Inmates in the IMU may already engage in the complained of destructive behavior with the 

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materials available to them. Because the regulation at issue fails to prevent inmates from 

engaging in destructive behavior using permitted reading materials, there is a strong inference 

that this regulation is an exaggerated response in the context of effect on prison administration. 

Therefore, adding personal reading materials to the personal effects inmates may possess will not 

require the additional security measures Peters alleges. Because Peters does not asse1t a 

legitimate concern regarding the effect of the accommodation on prison administration, the third 

Turner·factor favors Gonzalez. 

D. Absence of Ready Alternatives 

Peters argues that inmates retain few privileges to restrict and thus there are no ready 

alternatives. (# 27 p.11 ). Gonzalez does not address ready alternatives in his response. If an 

inmate presents an alternative that "fully accommodates the prisoner's rights at de minimis cost 

to the valid penological interest," the alternative is evidence that the regulation does not satisfy 

the rational connection requirement. Turner, 482 U.S. at 91. Under the Turner analysis, the 

burden to prove a ready alternative remains on the Gonzalez. Overton, 539 U.S. at 132. In 

Overton, the Court acknowledged that high security inmates possess "few other privileges to 

lose" thus cou1is should defer to the discretion of prison officials. Overton, 539 U.S. at 134. 

Here, Gonzalez presents no alternatives that possess a de minimis cost to the valid penological 

interest of Peters. Accordingly, the fomih Turner factor favors Peters. 

E. Conclusion 

The Turner factors indicate whether a prison regulation rationally relates to a prison's 

legitimate penological interests. Turner, 482 U.S. at 89. In summary, factors one, two, and four 

favor Peters. Although factor three favors Gonzalez, this only provides some evidence that the 

regulation is umeasonable and is not conclusive of the overall reasonable relationship between 

the restriction and the legitimate penological interests. Beard, 548 U.S. at 532 (2006). 

10 Opinion and Order 

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Ultimately, the balance tips in favor ofa rational relation between OAR 291-055-0020(a) and (b) 

and the valid penological interest of behavior improvement. Prison regulations that rationally 

relate to legitimate penological interests do not violate an inmate's First Amendment rights. Pell, 

417 U.S. at 822. Thus, OAR 291-055-0020(a) and (b) pass constitutional muster and do not 

infringe on Gonzalez's First Amendment rights. 

III. Overbroad Injunctive Relief 

Peters argues that Gonzalez's request for injunctive relief does not comport with the 

requirements of the Prison Litigation Reform Act because the request is too broad. Gonzalez 

argues that his request for injunctive relief is sufficiently nanow because Peters may still restrict 

personal reading materials if inmates abuse these reading materials. Because I grant Peters 

motion for summary judgement, I do not reach the question of the scope of Gonzalez's requested 

injunctive relief. 

CONCLUSION 

The district cou1i should grant summary judgment if there are no genuine issues of 

material fact and the moving pmiy is entitled to judgment as a matter oflaw. Fed. R. Civ. P. 

56( c ). In this case, both pmiies agree to all the material facts. Peters proves that she is entitled to 

judgment as a matter of law because Gonzalez's facial challenge camtot prevail and OAR 291-

055-0020(a) and (b) pass constitutional muster. For all the foregoing reasons, I grant Peters' 

motion for summary judgement (#27). I deny any remaining pending motions as moot. 

IT IS SO ORDERED 

DATED this ;1'8~y of April, 2016. 

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