FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JACOB HENRY BARRETT, 

Plaintiff-Appellant, No. 06-35667

v. D.C. No.

BRIAN BELLEQUE; J. NOFZIGER;  CV-06-00510-JE

REBECCA PRINSLOW; GARY RUSSELL;

OPINION J. TAYLOR; KENT PARKER,

Defendants-Appellees. 

Appeal from the United States District Court

for the District of Oregon

Garr M. King, District Judge, Presiding

Argued and Submitted

March 14, 2008—Seattle, Washington

Filed September 22, 2008

Before: Betty B. Fletcher and Richard A. Paez,

Circuit Judges, and William W Schwarzer,* District Judge.

Per Curiam Opinion

*The Honorable William W Schwarzer, Senior United States District

Judge for the Northern District of California, sitting by designation. 

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COUNSEL

Leonard J. Feldman, Heller Ehrman LLP, Seattle, Washington, for the plaintiff-appellant. 

Hardy Myers, Attorney General, Mary H. Williams, Solicitor

General, Janet A. Metcalf, Assistant Attorney General, Salem,

Oregon, for the defendants-appellees. 

OPINION

PER CURIAM:

Plaintiff-Appellant Jacob Barrett’s pro se complaint was

dismissed sua sponte by the district court, with prejudice, for

failure to state a claim. Barrett, a prisoner at the Oregon State

Penitentiary, attempted to mail a series of letters to his grandmother and mother—those letters used vulgar and offensive

racist language to describe prison officials. After reviewing

the letters, prison officials cited Barrett for violation of various prison disciplinary rules, resulting in a loss of good time,

BARRETT v. BELLEQUE 13349
revocation of certain privileges, and other punitive measures.

Barrett responded by filing a complaint in federal court pursuant to 42 U.S.C. § 1983, alleging that the prison officials violated his rights under the First and Fourteenth Amendments.

Acting without the benefit of any substantive briefing from

the parties, the district court reasoned that the prison had a

“legitimate penological interest[ ]” in preventing Barrett from

using “crude and racist language,” that outweighed any countervailing First Amendment interest. The district court’s dismissal relied on an incorrect legal standard; under the correct

standard Barrett has stated a claim for relief. We therefore

reverse and remand.1

[1] Dismissal for failure to state a claim is reviewed de

novo. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.

2007). Factual allegations in the complaint are taken as true

and all reasonable inferences are drawn in the plaintiff’s

favor. Id. “Pro se complaints are to be construed liberally and

may be dismissed for failure to state a claim only where it

appears beyond doubt that the plaintiff can prove no set of

facts in support of his claim which would entitle him to

relief.” Id. (citation and internal quotation marks omitted). 

[2] The standards for evaluation of a First Amendment

claim concerning outgoing correspondence sent by a prisoner

to an external recipient were established by the Supreme

Court in Procunier v. Martinez, 416 U.S. 396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S.

401, 413-14 (1989). Under these standards, censorship of

prisoner mail is justified only if “the regulation or practice in

question [ ] further[s] an important or substantial governmental interest unrelated to the suppression of expression” and

“the limitation of First Amendment freedoms [is] no greater

than is necessary or essential to the protection of the particular

governmental interest involved.” Id. at 413. Procunier is controlling law in the Ninth Circuit and elsewhere as applied to

1We have jurisdiction pursuant to 28 U.S.C. § 1291. 

13350 BARRETT v. BELLEQUE
claims involving outgoing prisoner mail. Bradley v. Hall, 64

F.3d 1276, 1281 n.2 (9th Cir. 1995); Loggins v. Delo, 999

F.2d 364, 366 (8th Cir. 1993); Brooks v. Andolina, 826 F.2d

1266, 1268-69 (3d Cir. 1987); McNamara v. Moody, 606 F.2d

621, 624 (5th Cir. 1979). 

[3] Barrett’s complaint—which unequivocally pleads facts

alleging that the prison censored his outgoing mail and punished him for its contents—states a claim that is clearly cognizable under Procunier. The district court was not in a position

to decide, on the pleadings, whether the Oregon State Penitentiary’s rules “further an important or substantial government

interest,” or impose limitations “no greater than is necessary

or essential to the protection” of those interests. Procunier,

416 U.S. at 413. These are questions that go to the merits of

Barrett’s claim, not to whether he has stated a claim. 

[4] Instead of analyzing Barrett’s claim under Procunier,

which is precedent that takes account of the fact that the

recipient’s First Amendment rights are implicated when outgoing prisoner mail is censored, the district court relied on

case law addressing prison regulations that concern communications between prisoners. See, e.g., Jones v. North Carolina

Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977); see also

Turner v. Safley, 482 U.S. 78 (1987). These authorities are not

controlling here.2

REVERSED AND REMANDED.

2We note that, after dismissal, Barrett brought Procunier and its progeny to the district court’s attention in a motion for reconsideration. That

motion was denied by the district court without comment. 

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