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IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF ARIZONA 

Prison Legal News, 

Plaintiff, 

v. 

Charles L Ryan, et al., 

Defendants. 

No. CV-15-02245-PHX-ROS

ORDER 

 This case concerns the constitutionality of inmate mail policies at correctional 

facilities within Arizona managed by the Arizona Department of Corrections (“ADC”). 

Plaintiff Prison Legal News (“Prison Legal”) sued under 42 U.S.C. § 1983 alleging 

Defendants Charles L. Ryan, Gail A. Rittenhouse, Jeffrey A. Hood, Alf Olson, and James 

Riggs (“Defendants”) violated the First Amendment by promulgating and implementing 

an ADC mail policy which rejected Prison Legal publications mailed to ADC inmates. 

Prison Legal also brought a § 1983 claim alleging Defendants violated the Fourteenth 

Amendment by failing to provide both Prison Legal and inmates with notice and 

opportunity to appeal the prison’s censorship decision. 

 Defendants filed a partial motion for judgment on the pleadings.1

 (Doc. 114.) 

Prison Legal opposed, and Defendants replied. (Docs. 120, 132.) Defendants’ motion 

 

1

 Defendants captioned their filing as “Motion to Partially Dismiss First Amended Complaint, but substantively requested relief under Rule 12(c) as a motion for judgment on the pleadings. (Doc. 114 at 1.) Thus, the Court will construe this motion as a Rule 

12(c) motion for judgment on the pleadings. 

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for judgment on the pleadings will be GRANTED in part and DENIED in part. 

I. BACKGROUND

 The First Amended Complaint (“FAC”) alleges the following. Prison Legal 

publishes and distributes a monthly journal of corrections news and analysis called 

Prison Legal News: Dedicated to Protecting Human Rights (“Prison Legal News”). 

(Doc. 83 at 6.) It also publishes and distributes paperback books about the criminal 

justice system and legal issues impacting prisoners to help prisoners foster a better 

understanding of criminal justice policies. (Id.) Through engaging in issues including 

“operations of corrections facilities, jail and prison conditions, prisoner health and safety, 

and prisoners’ rights,” Prison Legal promotes public safety through educational and 

journalistic avenues. (Id. at 7.) At the time Prison Legal filed the FAC, it had ninetyseven monthly subscribers at ADC facilities. (Id.) 

 A. ADC Mail Policy and Alleged Censorship 

 Prison Legal alleges Defendants promulgated and implemented policies, 

procedures, and practices at the ADC which censored and denied delivery of certain 

publications to prisoners at the ADC. (Id. at 4.) Specifically, Prison Legal alleges the 

following Defendants were responsible for promulgating and implementing ADC policies 

in the instant case: (1) Defendant Charles Ryan (“Ryan”), Director of the ADC who has 

ultimate responsibility for ADC policies; (2) Defendant Gail Rittenhouse 

(“Rittenhouse”), Division Director of Support Services of ADC; (3) Defendant Jeff Hood 

(“Hood”), Deputy Director of ADC; (4) Defendant Alf Olson (“Olson”), ADC employee 

in the Office of Publication Review who retired as of May 31, 2016; and (5) Defendant 

James Riggs (“Riggs”), ADC employee and Quality Assurance Administrator in the 

Office of Publication Review. (Id. at 5.) 

 Beginning in March 2014, Defendants began refusing to deliver certain issues of 

Prison Legal News to prisoner subscribers. (Id. at 7.) Pursuant to ADC mail policy, 

facilities prohibited publications containing “depictions or descriptions that incite, aid, or 

abet riots, work stoppages, or means of resistance” or “pictures, photographs, 

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illustrations, text or other content that may encourage unacceptable sexual or hostile 

behaviors, or creates a hostile environment for volunteers, including but not limited to 

sexual representations of inmates, law enforcement, military, professional medical staff, 

teachers and Clergy.” (Id. at 8; Doc. 83-1, Ex. A., ADC DO 914.08, Policy Numbers 

1.1.1; 1.1.18.) The policy also prohibited “sexually explicit material.”2

 (Doc. 83-1, Ex. 

A., ADC DO 914.07, Policy Numbers 1.2.) Defendants’ mail policy does not contain an 

exception permitting delivery of publications that describe sexual acts in a non-salacious 

way such as reporting on the facts of a published legal decision. (Id. at 9.) 

 Under the mail policy implemented and executed by Defendants, four issues of 

Prison Legal News were excluded: March 2014, April 2014, July 2014, and October 

2014. (Id. at 7.) Prison Legal eventually heard from subscribers that the ADC excluded 

these issues. (Id. at 8.) Prison Legal’s investigation revealed that Defendants claimed 

these issues contained depictions of riots, sexually explicit material, or material that may 

encourage unacceptable sexual or hostile behaviors. (Id. at 10-11, 12-13, 15, 18.) 

 However, ADC did not indicate which pages were at issue, and Prison Legal 

alleges none of the articles contained the type of content cited by the ADC. (Id. at 11, 13, 

15-16, 18.) Rather, Prison Legal believes these four issues were censored because they 

all contained news articles about court cases and legal opinions involving prisoners who 

suffered rapes and sexual assaults by jail or prison guards.3

 (Id.) Prison Legal asserts 

 

2

 “Sexually explicit material” is defined as “publications that contain any of the following acts and behaviors either visually, written or in audio (non-lyric) form: [(1)] Physical contact by another person with a person’s unclothed genitals, pubic area, buttocks, or if such a person is a female, breast[; (2)] Sadomasochistic abuse[; (3)] Sexual 

intercourse, vaginal or anal, fellatio, cunnilingus, bestiality or sodomy[; (4)] Masturbation, excretory functions, and lewd exhibition of the genitals[; (5)] Incestuous 

sexual activity[; (6)] Sexual activity involving an unwilling participant, or a participant who is the subject of coercion, or any sexual activity involving children.” (Doc. 83-1, 

Ex. A., ADC DO 914.07, Policy Numbers 1.2.) 

3

 Prison Legal believes these issues were censored because of the following articles: (1) “Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive; State Bears 

Burden of Rebutting Presumption”; (2) “Kitchen Supervisor Gets Prison Time for 

Sexually Abusing Two Prisoners”; (3) “New York Jail Guard Sentenced for Sexually Abusing Seven Prisoners”; and (4) “Tenth Circuit Holds ‘Consensual’ Sex Defeats 

Prisoner’s Eighth Amendment Claim.” (Id. at 11, 13, 16, 18.) 

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Defendants did not return the censored issues on their own volition, nor did they provide 

notice to Prison Legal regarding their refusal to deliver these issues. (Id. at 7-8.) 

 From at least February 2011 to May 2015, Defendants censored a book distributed 

by Prison Legal called The Celling of America an Inside Look at the U.S. Prison Industry. 

(Id. at 19.) Prison Legal did not receive any notice from Defendants that this book 

would not be delivered to the addressed recipients, nor did Defendants provide an 

opportunity for Prison Legal to appeal the decision to refuse delivery of this mail. (Id. at 

19-20.) Prison Legal eventually found out Defendants excluded this publication from 

ADC facilities pursuant to DO 914.08, “Unauthorized Publications and Material,” 

because of “Riots/Work Stoppages/Resistance,” under Policy Number 1.1.1. (Id.) 

However, Prison Legal does not believe there is any such material in this publication. 

(Id. at 19-20.) Prison Legal never received notice from Defendants about this exclusion 

and at no time did Defendants provide an opportunity for Prison Legal to appeal the 

rejection of the mail. (Id. at 20.) 

 Prison Legal believes that ADC’s censorship policies and practices are widespread 

as Defendants refused to deliver issues to ADC inmate subscribers from publications 

such as Bloomberg Business, The Economist, National Geographic, and Newsweek. (Id. 

at 9.) 

 B. March 4, 2016 Revised Policy and Alleged Censorship 

 In March 4, 2016, a new ADC policy went into effect (“2016 Revised Policy”). 

(Id. at 21.) Under the 2016 Revised Policy, the ADC still prohibited publications based 

on “sexually explicit material,” and depictions that “incite, aid, or abet riots, work 

stoppages, means of resistance,” however, the Office of Publication Review must now 

notify publishers within seven days when a publication is excluded and inmates may 

request an appeal in some situations. (Doc. 114-1 at 17, Ex. A., ADC DO 914.08-1.2.1, 

1.2.1.1.) Even with the revision, Prison Legal alleges Defendants’ policies remain 

constitutionally invalid, and Defendants have failed to comply with the policy as revised. 

(Id. at 21.) Specifically, the First Amended Complaint alleges that under the 2016 

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Revised Policy, Defendants censored Prison Legal News’s March 2016 and April 2016 

issues without providing any notice to Prison Legal or any opportunity to appeal the 

rejection decision. (Id.) 

 C. Claims of Relief 

 Prison Legal brought two claims of relief against Defendants under 42 U.S.C. 

§ 1983. (Id. at 24.) First, under the First Amendment claim, Prison Legal brings a facial 

challenge alleging the mail policy to censor written sexually explicit publications without 

any exceptions is not rationally related to a penological interest. (Id. at 22.) Further, 

Prison Legal argues that the ADC mail policy is overbroad. (Id. at 21-22.) Prison Legal 

also brought an as-applied First Amendment challenge for the issues and the book that 

ADC censored. (Id. at 22.) 

 Second, Prison Legal claims the ADC mail policy facially failed to provide due 

process in violation of the Fourteenth Amendment. (Id. at 24-25.) Further, Prison Legal 

brings an as-applied challenge claiming Defendants’ failure to give Prison Legal 

sufficient notice of the censorship and an opportunity to be heard deprived Prison Legal’s 

liberty and property without due process in violation of the Fourteenth Amendment. (Id.) 

 Prison Legal sues Defendants Ryan, Rittenhouse, Hood, and Riggs in their official 

capacity for equitable relief and sues all five defendants in their individual capacity for 

damages. (Id. at 4-5.) 

II. DISCUSSION 

 A motion for judgment on the pleadings is “functionally identical” to a motion to 

dismiss for failure to state a claim. Dworkin v. Hustler Magazine, Inc., 867 F.2d 1188, 

1192 (9th Cir. 1989). The only significant difference is that a Rule 12(c) motion is 

properly brought “after the pleadings are closed—but early enough not to delay trial.” 

Fed. R. Civ. P. 12(c). The Court may grant a Rule 12(c) motion for judgment on the 

pleadings only if taking all the allegations in the pleading as true, the moving party is 

entitled to judgment as a matter of law. Hal Roach Studios, Inc. v. Richard Feiner & Co., 

896 F.2d 1542, 1550 (9th Cir. 1989). Dismissal is appropriate only where the complaint 

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lacks a cognizable legal theory or sufficient facts to support a cognizable legal theory. 

Mendiondo v. Centinela Hosp. Med. Ctr., 521 F.3d 1097, 1104 (9th Cir. 2008). 

Generally, district courts have been unwilling to grant a Rule 12(c) dismissal “unless the 

movant clearly establishes that no material issue of fact remains to be resolved and that 

he is entitled to judgment as a matter of law.” Doleman v. Meiji Mut. Life Ins. Co., 727 

F.2d 1480, 1482 (9th Cir. 1984). 

 Defendants’ partial motion for judgment on the pleadings makes three kinds of 

arguments: (1) the First and Fourteenth Amendment as-applied claims for damages 

against Defendants in their individual capacity should be dismissed because Defendants 

are entitled to qualified immunity; (2) Prison Legal’s claims should be dismissed because 

the complaint lacks a cognizable legal theory or sufficient facts to support such a theory; 

and (3) Prison Legal’s First and Fourteenth Amendment claims are moot in light of the 

ADC’s 2016 Revised Policy. The Court will analyze each of Prison Legal’s claims 

implicated by Defendants’ motion, but because mootness is a jurisdictional issue, the 

Court will address it first. 

 A. Preliminary Legal Issues - Mootness

Defendants argue Prison Legal’s First Amendment and Fourteenth Amendment 

claims should be dismissed as moot because Prison Legal seeks injunctive relief and the 

ADC has since voluntarily amended its policies. (Doc. 114 at 16-21.) “A case becomes 

moot—and therefore no longer a ‘Case’ or ‘Controversy’ for purposes of Article III—

when the issues presented are no longer ‘live’ or the parties lack a legally cognizable 

interest in the outcome.” Already, LLC v. Nike, Inc., 133 S. Ct. 721, 726 (2013). 

However, the question of mootness “is not whether the precise relief sought at the time 

[the case] was filed is still available” but rather “whether there can be any effective 

relief.” McCormack v. Herzog, 788 F.3d 1017, 1024 (9th Cir. 2015). 

 However, even when the issues presented are no longer “live,” a “defendant’s 

voluntary cessation of allegedly unlawful conduct ordinarily does not suffice to moot a 

case.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 174 (2000). 

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A case is moot only if “subsequent events made it absolutely clear that the allegedly 

wrongful behavior could not reasonably be expected to recur.” Id. at 189. The party 

alleging mootness bears a heavy burden in seeking dismissal. Rosemere Neighborhood 

Ass’n v. U.S. Envtl. Protection Agency, 581 F.3d 1169, 1173 (9th Cir. 2009). Mootness 

“inquiries . . . require courts to look to changing circumstances that arise after the 

complaint is filed.” Clark v. City of Lakewood, 259 F.3d 996, 1006 (9th Cir. 2001) 

(emphasis added). Here, Defendants have not met their heavy burden. 

To determine whether Defendants met their burden, the Ninth Circuit examines the 

type of executive action at issue. “[W]hile a statutory change ‘is usually enough to render a 

case moot,’ an executive action that is not governed by any clear or codified procedures 

cannot moot a claim.” McCormack, 788 F.3d at 1025 (quoting Bell v. City of Boise, 709 

F.3d 890 (9th Cir. 2013)). A court is “less inclined to find mootness where the [executive 

action] could be easily abandoned or altered in the future.” See Bell, 709 F.3d at 901 

(analyzing an executive action in the form of a new policy as opposed to an individualized 

determination). “[R]epeal or amendment of an ordinance by a local government or agency 

does not necessarily deprive a federal court of its power to determine the legality of the 

practice.” Id. at 899. 

 First, Defendants argue Prison Legal’s First Amendment claims are moot because 

in their view the FAC only dealt with the initial policy. (Doc. 114 at 21.)4

 However, this 

view is incorrect as the FAC also makes allegations pertaining to the 2016 Revised 

Policy. And even though Defendants changed their mail policy in 2016, the 2016 

Revised Policy on its face still censors publications based on written sexually explicit 

material. (Id. at 21; Doc. 114-1 at 17, Ex. A., ADC DO 914.08-1.2.1, 1.2.1.1.) 

Furthermore, the 2016 Revised Policy does not moot Prison Legal’s overbroad argument, 

nor does it moot Prison Legal’s as-applied challenge since the FAC alleges Defendants 

continued to censor additional issues in March and April of 2016 under the 2016 Revised 

 

4

 Note this argument is inconsistent with Defendants’ subsequent argument where they construe separate constitutional claims against the 2016 Revised Policy and they ask the Court to dismiss the claims for the 2016 Revised Policy. 

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Policy. (Doc. 83 at 21-23.) The 2016 Revised Policy even explicitly states that 

previously excluded publications shall not be re-submitted for review or appeal. (Doc. 

114 at 2 n.2.) Thus, Prison Legal’s First Amendment challenges remain live 

controversies, and the 2016 Revised Policy does not render the First Amendment claims 

moot. 

 Second, Defendants also argue that Prison Legal’s Fourteenth Amendment claim 

based on inadequate notice was rendered moot when the Defendants changed their policy 

in 2016 to add a provision that requires notice to publishers. (Doc. 114 at 16-18.) The 

FAC contends there is still a live controversy over whether the 2016 Revised Policy is 

facially constitutional. (See Doc. 83 at 21.) However, according to the 2016 Revised 

Policy, the ADC is required to notify publishers within seven days of the decision to 

exclude, and publishers have thirty days to appeal this decision. Although Prison Legal 

contends there is still a live controversy, the facial Fourteenth Amendment claim is 

rendered moot. The FAC’s Fourteenth Amendment as-applied challenge, however, 

remains a live controversy. The FAC specifically alleges Defendants continued to censor 

publications under the new policy while failing to provide notice and opportunity to 

Prison Legal for censoring the March 2016 and the April 2016 issues. (Doc. 83 at 21.)5

 

Thus, Defendants’ voluntary act of changing its policies in 2016 does not render Prison 

Legal’s Fourteenth Amendment claims moot.6

 

 B. Qualified Immunity in § 1983 Claims 

 To state a claim under § 1983, the plaintiff must plead that (1) the defendants 

acting under color of state law (2) deprived plaintiffs of rights secured by the Constitution 

or federal statutes. Gibson v. United States, 781 F.2d 1334, 1338 (9th Cir. 1986). 

 

5

 Though the Court rejects Defendants’ mootness argument for the as-applied challenge at the outset, Prison Legal’s sur-reply (lodged at Doc. 162) proposes additional evidence that the Fourteenth Amendment claims remain live controversies. 

6

 Defendants separately argue the FAC lacks a cognizable legal theory with regard to the facial Fourteenth Amendment challenge of the 2016 Revised Policy and thus should be dismissed. (Doc. 114 at 21.) Because the Court finds the facial claim moot, 

this argument need not be addressed. 

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However, “[a]n official sued under § 1983 is entitled to qualified immunity unless it is 

shown that the official violated a statutory or constitutional right that was ‘clearly 

established’ at the time of the challenged conduct.” Plumhoff v. Rickard, 134 S. Ct. 

2012, 2023 (2014). The inquiry is two-fold. 

 First, it must be considered whether the facts “[t]aken in the light most favorable 

to the party asserting the injury . . . show the [defendant’s] conduct violated a 

constitutional right[.]” Brosseau v. Haugen, 543 U.S. 194, 197 (2004). Second, whether 

the right was “clearly established” at the time of the charged incident. Id. at 199-200. 

The Supreme Court in Ashcroft v. al-Kidd instructed courts “not to define clearly 

established law at a high level of generalization.” 563 U.S. 731, 742 (2011) (stating as an 

example that an unreasonable search or seizure violates the Fourth Amendment is of little 

help in determining whether the violative nature of particular conduct is clearly 

established”). The Supreme Court also instructed that it “do[es] not require a case 

directly on point.” Id. at 741; see also Hope v. Pelzer, 536 U.S. 730, 739 (2002) 

(reiterating “officials can be on notice that their conduct violates established law even in 

novel factual situations”). In situating a particular case between the two poles of al-Kidd, 

“[the] contours of the right must be sufficiently clear that a reasonable official would 

understand that what he is doing violates that right.” Hope, 536 U.S. at 739 (2002). 

 A plaintiff must succeed on both prongs to deny a defendant qualified immunity. 

Nelson v. City of Davis, 685 F.3d 867, 875 (9th Cir. 2012). The court may exercise its 

discretion in deciding which of the two prongs should be addressed first in light of the 

particular case’s circumstances. Liberal v. Estrada, 632 F.3d 1064, 1076 (9th Cir. 2011). 

Because Defendants only seek qualified immunity in limited contexts within both 

constitutional claims, the Court will only address Defendants’ arguments. 

 1. Fourteenth Amendment 

 Prison Legal brings both a facial and as-applied Fourteenth Amendment challenge 

to the mail policies. (Doc. 83.) However, Defendants’ qualified immunity argument 

only challenges the Fourteen amendment as-applied claim regarding the notice 

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component. (Doc. 114 at 11.) Defendants argue their individual claims for damages 

should be dismissed because they are entitled to qualified immunity from the as-applied 

challenge regarding providing notice to publishers. (Id. at 4, 11.) 

 a. Constitutional Violation

 The Fourteenth Amendment protects against the deprivation of property or liberty 

without procedural due process. Brady v. Gebbie, 859 F.2d 1543, 1547 (9th Cir. 1988). 

“To establish a due process violation, a plaintiff must show that he has a protected 

property interest under the Due Process Clause and that he was deprived of the property 

without receiving the process that he was constitutionally due.” Levine v. City of 

Alameda, 525 F.3d 903, 905 (9th Cir. 2008). The Ninth Circuit held that because both 

inmates and publishers have a constitutionally protected right to receive subscription nonprofit organization standard mail, such mail must be afforded the same procedural 

protections as first class and periodicals mail under Department regulations. Prison 

Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001) (holding that a department’s 

ban on standard rate mail was unconstitutional as applied to subscription mail). 

 Prisoners do have a liberty interest in receiving mail, and therefore they are 

entitled to some procedural due process when they are deprived of that mail. See Krug v. 

Lutz, 329 F.3d 692, 696-97 (9th Cir. 2003). “The interest of prisoners and their 

correspondents in uncensored communication by letter, grounded as it is in the First 

Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth 

Amendment.” Procuinier v. Martinez, 416 U.S. 396, 418 (1974), overruled on other 

grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989). Three baseline protections must 

be afforded: (1) notice of the rejection, (2) a reasonable opportunity to appeal the 

rejection, and (3) review by an independent official. See Procuinier, 416 U.S. at 418-19; 

Krug, 329 F.3d at 697 (independent, 2-level review); Frost v. Symington, 197 F.3d 348, 

353 (9th Cir. 1999) (notice). Publishers have a constitutional interest in notice and 

opportunity. Cook, 238 F.3d at 1152-53. Here, Prison Legal alleged that it did not 

receive notice a number of issues both under the original mail policy as well as under the 

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2016 Revised Policy. Thus, there was a constitutional violation. 

 b. Clearly Established Law

 Defendants argue that there is no clearly established law requiring notice to 

publishers of excluded publications and thus a reasonable prison official at the time could 

not have known that not providing notice would be unconstitutional. (Doc. 114 at 11.) 

This is incorrect. 

 Supreme Court and Ninth Circuit precedence before 2014 made clear that a 

publisher is entitled to some procedural due process, just like an inmate, when an inmate 

recipient is deprived of mail. Procuinier, 416 U.S. at 418-19; Cook, 238 F.3d at 1152-53. 

Although this right is not unqualified, baseline protections include providing notice. 

Cook, 238 F.3d at 1152-53. Thus, a reasonable prison official from 2014 to present 

would have known that he has to provide notice to Prison Legal (as well as the inmate) 

when censoring its publications. Thus, Defendants are not entitled to qualified immunity 

with respect to the as-applied claim under the Fourteenth Amendment. 

 2. First Amendment 

 Prison Legal brings both a facial and as-applied First Amendment challenge to 

ADC’s mail policies. (Doc. 83.) Prison Legal argues that the ADC’s policy of banning 

visual and textual descriptions of sexual content without exception, including legal 

discussions of sexual assault cases and decisions, is unconstitutional. (Doc. 120 at 5.) 

Prison Legal also contends that the application of the regulation as applied to him 

violated the First Amendment when the ADC withheld several publications involving a 

book and articles describing legal decisions. (Doc. 83 at 22.) However, Defendants’ 

motion only seeks qualified immunity from the as-applied challenge. (Doc. 114 at 4, 8-

11.) Specifically, Defendants do not challenge whether there was an as-applied 

constitutional violation, and only argues that there is no clearly established law that 

withholding sexually explicit written material is a First Amendment violation. 

 a. Constitutional Violation

 “Publishers have a First Amendment right to communicate with prisoners by mail, 

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and inmates have a First Amendment right to receive this mail.” Prison Legal News v. 

Lehman, 397 F.3d 692, 699 (9th Cir. 2005); see also Hrdlicka v. Eniff, 631 F.3d 1044, 

1049 (9th Cir. 2011) (finding the well-established First Amendment interest in 

distributing and receiving applies to a publisher’s interest in distributing literature 

regardless of whether a recipient requested the information). 

 Although publishers have this First Amendment right to communicate with 

inmates by mail, this right is limited and can be regulated. The Supreme Court in Turner 

held that “when a prison regulation impinges on inmates’ constitutional rights, the 

regulation is valid if it is reasonably related to legitimate penological interests.” Turner 

v. Safley, 482 U.S. 78, 89 (1987). There are four factors relevant to the Turner 

reasonableness inquiry: (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 extent of 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. Id. at 89-90. The same 

analysis applies to regulations affecting a publisher’s rights to send materials to the 

prisoners. Cook, 238 F.3d at 1149 (citing Thornburgh, 490 U.S. at 413, which applied 

Turner to regulations affecting incoming inmate mail regardless of the sender’s identity). 

 But because the parties’ briefing did not address the merits of whether there is an 

as-applied constitutional violation to meet the first prong of the qualified immunity 

analysis, the Court will assume, without deciding, that there was a constitutional violation 

for the purposes of the qualified immunity analysis. 

 b. Clearly Established Law 

 Defendants argue there was no clearly established law that withholding the 

publications in question based on sexually explicit material would be an as-applied 

violation of Prison Legal’s First Amendment rights. (Doc. 114 at 8.) Specifically, 

Defendants contend they were simply implementing in good faith ADC regulations as 

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instituted by higher authorities.7 To determine whether there is clearly established law, 

courts in the Ninth Circuit look to decisional authority by the Supreme Court or the Ninth 

Circuit. Boyd v. Benton Cty., 374 F.3d 773, 781 (9th Cir. 2004). Here, Prison Legal has 

not identified a decisional authority, nor is the Court aware of one, that would have made 

the contours of the right sufficiently clear that a reasonable official would understand he 

was violating it when he censored the publications at issue. 

 While Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999) (en banc) does support 

Prison Legal’s assertion that Defendants cannot withhold sexually explicit material 

including text if it is not reasonably related to legitimate penological interests, it does not 

constitute clearly established law that would indicate to a reasonable prison official that 

his decision to censor the publications here is unconstitutional. Specifically, it does not 

place beyond debate that a reasonable prison official in as early as 2014 would know that 

such censorship is unconstitutional under the Turner factors (whether the regulation is 

rationally related, whether there are alternative avenues, the impact on the prison, and 

whether regulation is an exaggerated response by prison).8

 Based on the facts alleged in 

the FAC and the parties’ briefing, Defendants are entitled to qualified immunity with 

regard to the as-applied challenge under the First Amendment. The Court will dismiss 

the individual claims for damages against Defendants with regard to the as-applied 

challenge under the First Amendment. 

 C. Inadequate or Defective Pleading 

 Defendants’ motion also raises a few arguments regarding whether the FAC 

contains a cognizable legal theory or sufficient facts to support a cognizable legal theory. 

 

7

 The Court notes it appears this argument would not apply to all named Defendants since some named Defendants could constitute the “higher authorities” Defendants reference. But the parties have not focused on this distinction so the Court 

will not address it either. 

8

 Prison Legal also contends the question of whether the challenged policies are rationally justifiable by reference to a legitimate penological interest also comes down to a factual question. (Doc. 120 at 7.) However, clear established law is an inquiry based on the reasonable prison official so it is unclear what kind of factual dispute Prison Legal seeks to create. 

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 First, Defendants argue Ryan, Rittenhouse, Hood, and Riggs should be dismissed 

because Prison Legal has failed to allege sufficient facts about their involvement with 

withholding PLN’s publications.9

 (Doc. 114 at 12.) Since the Court will dismiss the asapplied First Amendment claim against Defendants in their individual capacities, only the 

official capacity claims against Ryan, Rittenhouse, Hood, and Riggs remain.10 

 The FAC does allege the job description for Ryan, Rittenhouse, Hood, and Riggs, 

and it also alleges Defendants promulgated and implemented these policies. (Doc. 83 at 

5.) However, the FAC does not provide sufficient facts to establish the conduct of each 

Defendant. To the extent that Prison Legal believes some of these defendants only 

served as a supervisor, the FAC does not allege sufficient facts about what the defendant 

knew, how the defendant directed others, or how the defendant promulgated or 

implemented a policy. Thus, the Court will grant Defendants’ motion to dismiss Ryan, 

Rittenhouse, Hood, and Riggs in their official capacity for the as-applied challenge 

brought under the First Amendment. And the Court will grant Prison Legal leave to 

amend its First Amendment claim. 

 Second, Defendants argue the as-applied Fourteenth Amendment claim for notice 

and opportunity lacks a cognizable legal theory because Prison Legal was ultimately 

aware the publications were excluded and were successful in contesting the withholding. 

(Doc. 114 at 15.) Defendants’ argument is based on the fact that Prison Legal heard from 

its subscribers certain publications were censored and that Prison Legal’s continuing 

efforts to investigate and rally led to ADC ultimately releasing many of the censored 

publications. However, this argument is unpersuasive. Just because Prison Legal was 

able to eventually obtain information through long drawn out efforts does not mean there 

 

9

 It is unclear exactly from which claims Defendants hope to dismiss Ryan, Rittenhouse, Hood, and Riggs. Because Defendants’ characterized it as a lack of 

involvement in “withholding PLN’s publications” (Doc. 114 at 12) and because it related 

this argument to the earlier discussion of qualified immunity, the Court construes this as an argument that the official capacity claims against Ryan, Rittenhouse, Hood, and Riggs for the as-applied First Amendment claim should be dismissed. 

10 Prison Legal did not allege an official capacity claim against Olsen. 

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was no constitutional violation. Thus, the Court rejects this argument. 

 Third, Defendants argue the Court should grant judgment on the pleadings with 

regard to the constitutional claims against the new policy because there are insufficient 

factual allegations with regard to the new policy. (Doc. 114 at 19-21.) The Court does 

not construe these allegations about the 2016 Revised Policy as allegations meant to 

establish independent constitutional claims, but rather allegations about continuing harm 

within the framework of Prison Legal’s existing constitutional claims. Thus, the Court 

will not dismiss claims based on this argument.11 

 Fourth, Defendants also argue the FAC lacks a cognizable legal theory with regard 

to the facial Fourteenth Amendment challenge of the 2016 Revised Policy and thus 

should be dismissed. (Doc. 114 at 21.) Since the facial Fourteenth Amendment claim is 

moot, the Court need not address this. 

IT IS ORDERED Defendants’ motion for judgment on the pleadings (Doc. 114) 

is GRANTED in part and DENIED in part. The facial claim under the Fourteenth 

Amendment is DISMISSED AS MOOT. With regard to the as-applied challenge under 

the First Amendment, the individual claims for damages against all Defendants and the 

official capacity claims against Ryan, Rittenhouse, Hood, and Riggs are DISMISSED. 

Prison Legal is GRANTED limited leave to amend its First Amendment claim. If Prison 

Legal chooses to amend to conform to evidence discovered thus far, it shall have until no 

later than Friday, October 13, 2017 to file a Second Amended Complaint. The remaining 

arguments in Defendants’ motion are DENIED. 

 Dated this 29th day of September, 2017. 

Honorable Roslyn O. Silver

Senior United States District Judge

 

11 To the extent they are entirely different claims, the parties should clarify and consider amending accordingly. 

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