“We have held that ‘[i]t is beyond question that both jail security and rehabilitation are legitimate penological interests.’” (alteration in original) (citation omitted)
How later courts described this case
- “We have held that ‘[i]t is beyond question that both jail security and rehabilitation are legitimate penological interests.’” (alteration in original) (citation omitted)
- “[A] general constitutional rule already identified in the decisional law may apply with obvious clarity to the specific conduct in question, even though the very action in question has not previously been held unlawful.” (citation modified
- “[Q]ualified immunity is inappropriate where the preexisting law was sufficient to provide the defendant with ‘fair warning’ that his conduct was unlawful.” (quoting Lanier, 520 U.S. at 270–71)
- “[T]his circuit has repeatedly acknowledged that withholding delivery of inmate mail must be accompanied by the minimum procedural safeguards established in [Procunier].”
Written by the judges who cited it.
The opinion
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
HUMAN RIGHTS DEFENSE No. 24-2552
CENTER, INC.,
D.C. No.
4:21-cv-05047-
Plaintiff - Appellant,
TOR
v.
JEFFERY ALFRED UTTECHT, OPINION
Superintendent of Coyote Ridge
Corrections Center of the Washington
Department of Corrections in his
individual and official capacities;
JOHN D. TURNER, Mailroom
Sergeant of Coyote Ridge
Corrections Center in his individual
and official capacities,
Defendants - Appellees.
Appeal from the United States District Court
for the Eastern District of Washington
Thomas O. Rice, District Judge, Presiding
Argued and Submitted April 3, 2025
Portland, Oregon
Filed December 11, 2025
2 HRDC, INC. V. UTTECHT
Before: Jay S. Bybee and Danielle J. Forrest, Circuit
Judges, and Xavier Rodriguez, District Judge. *
Opinion by Judge Forrest
SUMMARY **
Prisoner Mail
In a 42 U.S.C. § 1983 action brought by Human Rights
Defense Center (HRDC) challenging prison officials’
refusal to deliver and delays in delivering copies of its
publication The Habeas Citebook to inmates housed at the
Coyote Ridge Corrections Center, the panel (1) affirmed in
part and reversed in part the district court’s summary
judgment in favor of prison officials; (2) reversed the district
court’s denial of HRDC’s motion for a permanent
injunction; and (3) remanded.
In 2018, the Washington State Department of
Corrections (DOC) revised its prisoner-mail policies to
prohibit inmates from possessing case law documents
(Policy One) or legal materials containing information about
other Washington state inmates (Policy Two). Relying on
those policies, Coyote Ridge officials refused to deliver
copies of The Habeas Citebook that were mailed to
inmates. DOC’s Publication Review Committee
*
The Honorable Xavier Rodriguez, United States District Judge for the
Western District of Texas, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
HRDC, INC. V. UTTECHT 3
overturned Coyote Ridge’s decision, but HRDC was not
informed of that reversal. And after the Publication Review
Committee’s decision, the Coyote Ridge mailroom delayed
delivery of The Habeas Citebook to inmates.
The panel affirmed the district court’s summary
judgment for prison officials on HRDC’s request for
damages on its claim that the two DOC policies limiting
prisoners’ possession of legal materials received by mail
violate the First Amendment. The panel held that defendants
were entitled to qualified immunity because no precedent
clearly establishes that the challenged DOC policies were
unconstitutional.
However, the panel reversed the district court’s denial of
HRDC’s motion for injunctive relief seeking to prevent
enforcement of Policy Two on the grounds that it violated
the First Amendment both facially and as applied. The panel
held that the district court erred by not requiring defendants
to prove that the challenged DOC policies advanced the
asserted penological interests in protecting inmates from
harm caused by other inmates, and remanded for the district
court to correctly assess the merits of HRDC’s claims and
the other factors that govern the appropriateness of
injunctive relief.
The panel reversed the district court’s summary
judgment for prison officials on HRDC’s claim that prison
officials violated the First Amendment by delaying delivery
of the The Habeas Citebook. Defendants were not entitled
to qualified immunity because HRDC’s asserted right
against delayed delivery in this context was clearly
established. After the Publication Review Committee’s
decision, there was no longer a penological justification for
4 HRDC, INC. V. UTTECHT
withholding The Habeas Citebook and no “security
inspection” was needed.
The panel affirmed the district court’s summary
judgment for prison officials on HRDC’s request for
damages on its claim that prison officials violated the
Fourteenth Amendment by not providing notice of the
Publication Review Committee’s decision reversing the
mailroom’s censorship of The Habeas
Citebook. Defendants were entitled to qualified immunity
because HRDC’s due process right to be notified of the
Committee’s decision was not clearly established.
However, the panel reversed the district court’s denial of
HRDC’s request for a permanent injunction requiring prison
officials to give publishers timely notice of the Publication
Review Committee’s decisions. The panel remanded for the
district court to analyze HRDC’s motion for injunctive relief
by assessing, among other things, whether requiring Coyote
Ridge to notify publishers of the Publication Review
Committee’s decisions would not be unduly burdensome.
HRDC, INC. V. UTTECHT 5
COUNSEL
Katherine C. Chamberlain (argued), Jesse A. Wing, and
Nathaniel Flack, MacDonald Hoague & Bayless, Seattle,
Washington; Jonathan P. Picard, Human Rights Defense
Center, Lake Worth, Florida; for Plaintiff-Appellant.
Katherine J. Faber (argued) and Sarah C. Brisbin, Assistant
Attorneys General, Corrections Division; Robert W.
Ferguson, Washington Attorney General; Office of the
Washington Attorney General, Olympia, Washington; for
Defendants-Appellees.
Melissa R. Lee and Jessica Levin, Ronald A. Peterson Law
Clinic, Seattle, Washington; Laurel Jones, Columbia Legal
Services, Seattle, Washington; for Amici Curiae Center for
Civil Rights and Critical Justice, Fred T. Korematsu Center
for Law and Equality, and Columbia Legal Services.
Brent Low, Jazmyn Clark, and La Rond Baker, American
Civil Liberties Union of Washington, Seattle, Washington,
for Amicus Curiae American Civil Liberties Union of
Washington Foundation.
Christopher M. Petroni and Gregory C. Link, Washington
Appellate Project, Seattle, Washington, for Amicus Curiae
Washington Appellate Project.
6 HRDC, INC. V. UTTECHT
OPINION
FORREST, Circuit Judge:
This case concerns the constitutional protections that
apply to prisoner mail. Plaintiff Human Rights Defense
Center (HRDC) publishes legal materials for prisoners
representing themselves in litigation. One of its publications
is The Habeas Citebook: Ineffective Assistance of Counsel
(The Habeas Citebook), which HRDC has sent to thousands
of prisoners across the United States. In 2018, the
Washington State Department of Corrections (DOC) revised
its prisoner-mail policies to prohibit inmates from
possessing “case law documents” and any legal materials
containing information about other Washington state
inmates. Relying on those policies, officials at the Coyote
Ridge Corrections Center (Coyote Ridge), located in
Connell, Washington, refused to deliver copies of The
Habeas Citebook that were mailed to inmates housed at that
facility. DOC’s Publication Review Committee later
overturned Coyote Ridge’s decision, but HRDC was not
informed of that reversal. And even after the Publication
Review Committee’s decision, the Coyote Ridge mailroom
delayed delivery of The Habeas Citebook to inmates, in one
case for 493 days.
HRDC sued two Coyote Ridge officials, Jeffrey A.
Uttecht, the former superintendent, and John D. Turner, the
mailroom sergeant. HRDC asserts that Defendants violated
the First and Fourteenth Amendments, and it seeks monetary
relief under 42 U.S.C. § 1983 and a permanent injunction. In
a prior appeal, we reversed the district court’s grant of
summary judgment for Defendants. Before us now is the
district court’s second grant of summary judgment for
HRDC, INC. V. UTTECHT 7
Defendants and its denial of HRDC’s cross-motion for
summary judgment and motion for permanent injunctive
relief. We affirm in part, reverse in part, and remand. The
district court correctly granted summary judgment for
Defendants on HRDC’s request for damages on its First
Amendment claim challenging DOC’s prisoner-mail
policies and its Fourteenth Amendment claim. But we
reverse the district court’s grant of summary judgment as to
HRDC’s request for injunctive relief on these two claims and
as to HRDC’s requests for both damages and injunctive
relief on its First Amendment claim challenging delayed
delivery of The Habeas Citebook after the Publication
Review Committee determined this publication was
permissible.
BACKGROUND
A. DOC Policies
DOC adopted the two prisoner-mail policies at issue here
in 2018. These policies state:
[1] Individuals will not possess case law
documents, including discovery material,
unless approved by the Superintendent/
designee.
[2] Individuals will not possess legal
materials (e.g., case law, legal
documents) containing information about
another [] Washington State incarcerated
individual.
DOC interpreted “case law” to include all “[l]aw that comes
from decisions made by judges in previous cases.”
8 HRDC, INC. V. UTTECHT
DOC adopted these policies to promote inmate safety. It
was concerned about “paper checking,” which is when
inmates demand that one of their peers produce
documentation to determine if, for example, that peer is a sex
offender or gang member, has “told on another individual,”
or has accurately reported the things they have done so that
other inmates can assess whether they are “a solid individual
in the incarcerated’s eyes.” Defendants assert that an
inmate’s refusal to produce such documentation upon
demand often results in violence.
After DOC adopted the two policies at issue, Defendant
Uttecht, who was then Superintendent of Coyote Ridge,
issued an Operational Memorandum directing staff to follow
DOC’s policies.
B. Coyote Ridge Rejects The Habeas Citebook
Between June 2019 and June 2020, HRDC sent The
Habeas Citebook to at least 18 prisoners incarcerated at
Coyote Ridge. This book was published to assist pro se
prisoners with habeas litigation, and it contains sample
pleadings with party names redacted. The mailroom at
Coyote Ridge rejected at least 16 copies of the book between
April and July 2020. The mailroom notified HRDC of each
rejection, citing both DOC policies and stating that the book
“contains case law.” The notices explained that “[a]n appeal
request is not needed for . . . rejected publications, which are
automatically reviewed by the Superintendent/designee or
Publication Review Committee.” 1 The Publication Review
Committee is located at DOC Headquarters, not Coyote
Creek.
1
DOC policy states that rejected publications “will be referred to the
Publication Review Committee for further review and a final decision.”
HRDC, INC. V. UTTECHT 9
HRDC wrote to Defendant Turner, Coyote Ridge’s
mailroom sergeant, stating that censorship of The Habeas
Citebook violated HRDC’s First Amendment right to
communicate with Coyote Ridge prisoners, that there was no
penological reason this book should be rejected, and that this
book had been delivered to thousands of prisoners across the
country without incident. Despite the notice’s assurance that
rejected publications are automatically reviewed,
Sgt. Turner initially did not forward The Habeas Citebook to
the Publication Review Committee for review of Coyote
Ridge’s rejection decision because he believed the book
clearly violated DOC policy. Two months after the first
rejection, Sgt. Turner contacted the Publication Review
Committee, asking that it uphold the mailroom’s decision.
But the Committee overturned the mailroom, concluding
that the book did “not violate policy.”
DOC policy requires that publishers “be notified of the
[C]ommittee’s decision . . . within 10 business days.”
Sgt. Turner never notified HRDC of the Committee’s
reversal decision, and he testified that providing notice to
publishers of the Publication Review Committee’s decisions
is not required. Additionally, after the Publication Review
Committee reversed the mailroom’s rejection of The Habeas
Citebook, the mailroom failed to promptly deliver the book
to numerous prisoners. The delivery delays ranged from
several weeks to over a year, and in one case, the book still
had not been delivered 493 days after the Committee’s final
decision. Several prisoners never received the book before
their release from Coyote Ridge.
10 HRDC, INC. V. UTTECHT
C. DOC Revises Policy
In March 2020, a DOC correctional manager indicated
that the policies restricting prisoners’ incoming mail
containing legal materials were being revised. She stated:
During the . . . revision, we may lift the ban
on restriction of all case law, and go back to
the rule that they cannot have case law with
information about other Washington State
DOC offenders. There is really no
penological reason that they cannot have case
law that may possibly pertain to their case,
with the exception noted here.
Several months later, in November 2020, Policy One was
rescinded. Policy Two remains in effect. While Policy Two
prohibits Washington prisoners from receiving legal
materials by mail that contain information about other
individuals currently incarcerated in Washington, prisoners
can access this same information through other sources,
including LexisNexis, which is available in the prison law
library.
D. HRDC’s Lawsuit
HRDC sued Defendants in their official and individual
capacities, alleging that DOC’s policies and the delayed
delivery of The Habeas Citebook after the Publication
Review Committee’s approval violated the First
Amendment and that the Defendants’ failure to notify
HRDC of the Committee’s decision violated the Fourteenth
Amendment. In June 2022, the district court granted
summary judgment for Defendants, concluding that the
constitutional challenge to Policy One was moot because it
HRDC, INC. V. UTTECHT 11
was rescinded, the challenge to Policy Two was
hypothetical, the delivery delays did not violate the First
Amendment because they were temporary, there was no
Fourteenth Amendment violation, and Superintendent
Uttecht did not personally participate in any of the alleged
violations. We largely reversed. Hum. Rts. Def. Ctr. v.
Uttecht (HRDC I), No. 22-35762, 2023 WL 7211396, at *1–
3 (9th Cir. Nov. 2, 2023). While HRDC’s challenge to Policy
One was moot as to injunctive relief, we held that it was not
moot as to damages, and that HRDC had standing to
challenge Policy Two. Id. at *1. We also held that there was
a genuine factual dispute concerning whether Coyote Creek
delayed delivery of The Habeas Citebook after it was found
not to violate DOC policy and that the district court
misapplied the law in rejecting HRDC’s Fourteenth
Amendment claim. Id. at *2. Finally, we concluded that
there was a genuine factual dispute concerning former-
Superintendent Uttecht’s personal liability. Id. at *3.
On remand, the parties cross-moved for summary
judgment, and HRDC sought a permanent injunction
preventing enforcement of Policy Two and requiring
Defendants to provide timely notice of the Publication
Review Committee’s decisions. The district court again
granted summary judgment for Defendants and denied
HRDC’s motion for an injunction.
The district court first concluded that neither Defendant
is personally liable as to Policy One because, among other
things, Superintendent Uttecht was not involved in the
censorship decisions, HRDC failed to rebut evidence that
Sgt. Turner timely put all copies of The Habeas Citebook
that Coyote Creek had received “in the mailbag for delivery
to the intended recipients” after the Publication Review
Committee made its decision, and“[i]n any event, the
12 HRDC, INC. V. UTTECHT
temporary delay in the delivery of a publication that is a
result of the prison’s security inspection is not a First
Amendment violation.” The district court also concluded
that HRDC’s challenge to Policy Two fails because the
policy is justified for penological reasons and granting
injunctive relief against the Defendants in this case would be
meaningless because Uttecht is no longer superintendent at
Coyote Creek and Sgt. Turner is required to follow DOC’s
and his supervisor’s directives.
In addressing HRDC’s Fourteenth Amendment
challenge and our prior instruction to determine whether
requiring the Publication Review Committee to provide
publishers notice of its final decisions would be unduly
burdensome, the district court asserted that it lacked
jurisdiction over the Committee and DOC. It also concluded
that failure to provide notice is a due-process violation only
if such failure is “pursuant to prison policy,” which it was
not here.
Finally, the district court concluded that Defendants
were protected by qualified immunity from any monetary
liability because the two DOC policies were reasonably
related to a legitimate penological interest and inmates were
provided alternative means for accessing caselaw.
Additionally, the district court concluded that no precedent
clearly established that either policy was unconstitutional.
HRDC timely appealed, challenging each of the district
court’s conclusions.
DISCUSSION
“We review a district court’s grant of summary judgment
de novo.” Long v. Sugai, 91 F.4th 1331, 1336 (9th Cir.
2024). “Summary judgment is appropriate if ‘there is no
HRDC, INC. V. UTTECHT 13
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.’ The deciding court
must view the evidence, including all reasonable inferences,
in favor of the non-moving party.” Reed v. Lieurance, 863
F.3d 1196, 1204 (9th Cir. 2017) (quoting Fed. R. Civ. P.
56(a)). We address the parties’ arguments and the district
court’s decisions as to each claim.
A. First Amendment—DOC Policies
HRDC first asserts that the two DOC polices limiting
prisoners’ possession of legal materials received by mail
violate the First Amendment. “Publishers have a First
Amendment right to communicate with prisoners by mail,
and inmates have a First Amendment right to receive this
mail.” Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th
Cir. 2005). But in the prison context, a regulation that
impinges on constitutional rights is nonetheless “valid if it is
reasonably related to legitimate penological interests.”
Turner v. Safley, 482 U.S. 78, 89 (1987). Prison regulations
restricting incoming publications are analyzed under the
Turner factors. Thornburgh v. Abbott, 490 U.S. 401, 413
(1989). These factors are:
(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
14 HRDC, INC. V. UTTECHT
(4) whether the existence of easy and
obvious alternatives indicates that the
regulation is an exaggerated response by
prison officials.
Lehman, 397 F.3d at 699 (citation omitted). “The Turner
analysis applies equally to facial and ‘as applied’
challenges.” Bahrampour v. Lampert, 356 F.3d 969, 975
(9th Cir. 2004).
In assessing HRDC’s challenge to DOC’s policies, we
address (1) whether Defendants are protected by qualified
immunity from monetary liability, and (2) whether HRDC is
entitled to an injunction barring enforcement of Policy Two.
1. Qualified Immunity
The district court concluded that even if otherwise liable,
both Defendants are protected by qualified immunity from
monetary liability. “We review a district court’s
determination of qualified immunity de novo.” Id. at 976.
“The doctrine of qualified immunity protects government
officials from liability for civil damages insofar as their
conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would
have known.” Pearson v. Callahan, 555 U.S. 223, 231
(2009) (internal quotation marks and citation omitted). We
may assess in any order whether there has been a violation
and whether the purported violation was clearly established.
Id. at 236.
a.
At the outset, we reject HRDC’s argument that
Defendants waived the right to assert qualified immunity by
not pleading this defense in their answer. Waiver does not
HRDC, INC. V. UTTECHT 15
apply because Defendants raised qualified immunity at
summary judgment, and HRDC has not asserted that it was
prejudiced by Defendants not raising this issue at the
pleading stage. See Camarillo v. McCarthy, 998 F.2d 638,
639 (9th Cir. 1993). We also reject HRDC’s assertion that
we “previously denied qualified immunity sub silentio” by
reversing and remanding to the district court to address the
merits of HRDC’s claims. In HRDC I, we merely instructed
the district court to assess whether Defendants could be
individually liable. 2023 WL 7211396, at *2–3. We did not
foreclose Defendants from asserting qualified immunity.
b.
In assessing whether Defendants are protected by
qualified immunity, we begin with whether the violations
that HRDC asserts were clearly established at the time of
Defendants’ actions. “Clearly established means that, at the
time of the officer’s conduct, the law was sufficiently clear
that every reasonable official would understand that what he
is doing is unlawful.” District of Columbia v. Wesby, 583
U.S. 48, 63 (2018) (internal quotation marks and citation
omitted). The right at issue must be defined with
particularity, considering a case’s specific context, and not
“at a high level of generality.” Mullenix v. Luna, 577 U.S. 7,
12 (2015) (per curiam) (citation omitted). “[T]he question is
whether the defendant could . . . have
reasonably . . . believed that his or her conduct did not
violate the plaintiff’s rights.” Devereaux v. Abbey, 263 F.3d
1070, 1074 (9th Cir. 2001) (en banc).
HRDC argues that the unconstitutionality of DOC’s
policies is clearly established under Turner and Thornburgh.
These cases hold that a prison official’s censorship of
prisoner mail is unconstitutional if it is not reasonably
16 HRDC, INC. V. UTTECHT
related to a legitimate penological interest. Turner, 482 U.S.
at 89; Thornburgh, 490 U.S. at 413. HRDC contends that no
reasonable prison official could have believed that banning
The Habeas Citebook was lawful because a DOC
correctional manager wrote in an email that “[t]here is really
no penological reason that [prisoners] cannot have case
law.”
One DOC official’s opinion that no penological interest
was served by banning all caselaw does not establish that
“every reasonable official would understand that [enforcing
Policy One] is unlawful.” Wesby, 583 U.S. at 63 (emphasis
added) (internal quotation marks and citation omitted).
There is no precedent clearly establishing that the broad
caselaw restriction DOC imposed lacked a valid penological
justification, nor is there evidence that DOC announced the
position stated in the official’s email (sent to one person) to
its employees broadly. Defendants were bound to follow
DOC policies in their roles working at a DOC facility. And
whether Policy One served a legitimate penological interest
was open to judgment. Defendants could have reasonably,
even if erroneously, believed that enforcing Policy One “did
not violate the plaintiff’s rights.” Devereaux, 263 F.3d at
1074. Thus, it was not clearly established that Policy One
was unconstitutional. And because HRDC makes no
argument as to why Policy Two, which restricted a narrower
set of legal materials, should be treated differently, neither
was it clearly established that Policy Two was unlawful.
HRDC relies on Lehman, where we denied qualified
immunity to prison officials who censored caselaw sent to
prisoners. 397 F.3d at 703–04. There, the plaintiff
challenged a DOC policy “prohibit[ing] the delivery of ‘mail
containing information which, if communicated, could
create a risk of violence and/or physical harm to any
HRDC, INC. V. UTTECHT 17
person.’” Id. at 703. Analyzing that policy, we first noted
that “the DOC regulation prohibiting mail that could create
a risk of violence and physical harm to any person [wa]s
constitutional on its face.” Id. Thus, the issue related to how
the policy was applied. The plaintiff-publisher asserted that
prison officials “singled out [the plaintiff] for discriminatory
treatment, while allowing other publishers to deliver similar
material,” and that “the real motive of the prison officials
who prevented third-party legal materials from being
delivered was to suppress materials that embarrass the DOC
and educate inmates on how to file their claims.” Id. We held
that if these allegations were true, the prison officials clearly
violated the First Amendment, and we denied summary
judgment. Id.
Here, HRDC has not alleged that DOC’s policies were
applied in a discriminatory manner. And, as in Lehman, the
prisoner-mail restrictions were adopted for security reasons.
Thus, based on Lehman, Defendants could have reasonably
believed that enforcement of the policies was constitutional.
See Devereaux, 263 F.3d at 1074.
Because HRDC does not point to any precedent clearly
establishing that the challenged DOC policies are
unconstitutional, Defendants are entitled to qualified
immunity as to HRDC’s request for damages. 2 See Hughes
v. Rodriguez, 31 F.4th 1211, 1223 (9th Cir. 2022) (“The
plaintiff bears the burden of ‘point[ing] to prior case law that
articulates a constitutional rule specific enough to alert these
2
Because it was not clearly established that the DOC’s prisoner-mail
policies were unlawful at the time of Defendants’ challenged actions,
triggering qualified immunity, we do not address whether former-
Superintendent Uttecht can be held liable under the supervisor-liability
doctrine for implementing the DOC policies at Coyote Ridge.
18 HRDC, INC. V. UTTECHT
officers in this case that their particular conduct was
unlawful.’” (alteration in original) (citation omitted)).
2. Injunctive Relief
HRDC also seeks an injunction preventing enforcement
of Policy Two because it violates the First Amendment both
facially and as applied. Whether a plaintiff is entitled to
permanent injunctive relief depends on the merits of the
claim. Indep. Training & Apprenticeship Program v. Cal.
Dep’t of Indus. Rels., 730 F.3d 1024, 1032 (9th Cir. 2013).
The plaintiff must demonstrate that (1) its claim succeeds on
the merits, (2) the plaintiff has suffered irreparable injury,
(3) the remedies available at law are inadequate, (4) the
balance of hardships justifies an equitable remedy, and
(5) the public interest would not be disserved by an
injunction. Id.
a.
Before addressing the merits of HRDC’s claim, we
consider the district court’s conclusion that injunctive relief
is not properly awarded against the named Defendants
because former-Superintendent Uttecht no longer works at
Coyote Ridge and Sgt. Turner “must follow the directives of
his superiors and DOC.” Both Superintendent Uttecht and
Sgt. Turner were sued in their individual and official
capacities. “Suits against state officials in their official
capacity . . . should be treated as suits against the State.
Indeed, when officials sued in this capacity in federal court
die or leave office, their successors automatically assume
their roles in the litigation.” Hafer v. Melo, 502 U.S. 21, 25
(1991) (internal citation omitted). Thus, if injunctive relief is
proper, it matters not that Uttecht no longer works at Coyote
Ridge—the relief would run against the individual currently
serving as Superintendent.
HRDC, INC. V. UTTECHT 19
As to whether injunctive relief is proper, “[b]ecause the
real party in interest in an official-capacity suit is the
government entity and not the named official, ‘the entity’s
“policy or custom” must have played a part in the violation
of federal law.’” Id. (quoting Kentucky v. Graham, 473 U.S.
159, 166 (1985)). Additionally, “[t]he individual state
official sued ‘must have some connection with the
enforcement of the [challenged state policy].’” Coal. to Def.
Affirmative Action v. Brown, 674 F.3d 1128, 1134 (9th Cir.
2012) (quoting Ex parte Young, 209 U.S. 123, 157 (1908)).
The connection between official capacity and enforcement
“must be fairly direct; a . . . general supervisory power over
the persons responsible for enforcing the challenged” policy
is insufficient. Id. (quoting L.A. County Bar Ass’n v. Eu, 979
F.2d 697, 704 (9th Cir. 1992)).
There is no question that the policies of the entity that the
named officials serve—Coyote Ridge, a DOC facility—
played a part in the asserted constitutional violation. And
Superintendent Uttecht’s and that Sgt. Turner’s roles are
directly connected to enforcement of the challenged policies.
Whatever the extent of Superintendent Uttecht’s role in
“proceduralizing” the DOC policies at issue, we are satisfied
that the Superintendent’s responsibility for establishing
policy and strategic direction at Coyote Ridge according to
DOC directives is enough to permit injunctive relief. See id.
Likewise, Sgt. Turner has not argued, nor could he, that his
role in the mailroom did not include enforcing DOC policy.
To the contrary, Sgt. Turner acknowledged that in addition
to overseeing the mailroom’s day-to-day operations, his
responsibilities included reviewing mail-rejection appeals.
For these reasons, the district court was incorrect that
awarding injunctive relief against the named officials in this
case would be inappropriate.
20 HRDC, INC. V. UTTECHT
b.
Turning to the merits of HRDC’s claim, as explained
above, we apply the Turner reasonableness factors. We have
established two different tests for assessing the first factor—
“whether there is a rational connection between the
challenged policy and a legitimate governmental interest.”
See Mauro v. Arpaio, 188 F.3d 1054, 1058–60 (9th Cir.
1999) (en banc); Walker v. Sumner, 917 F.2d 382, 385–86
(9th Cir. 1990). Under Mauro, courts must consider only
whether prison officials “might reasonably have thought that
the policy would advance [the prison’s] interests.” 188 F.3d
at 1060. Under Walker, by contrast, prison officials must do
more—they must “identify the specific penological interests
involved and then demonstrate both that those specific
interests are the actual bases for their policies and that the
policies are reasonably related to the furtherance of the
identified interests.” 917 F.2d at 386.
Which test applies depends on whether the plaintiff has
presented evidence refuting that the prison policy is
rationally related to a legitimate objective:
When the inmate presents sufficient (pre or
post) trial evidence that refutes a common-
sense connection between a legitimate
objective and a prison regulation, Walker
applies, and the state must present enough
counter-evidence to show that the connection
is not so “remote as to render the policy
arbitrary or irrational.” On the other hand,
when the inmate does not present enough
evidence to refute a common-sense
connection between a prison regulation and
the objective that government’s counsel
HRDC, INC. V. UTTECHT 21
argues the policy was designed to further,
Mauro applies and, presuming the
governmental objective is legitimate and
neutral, Turner’s first prong is satisfied.
Frost v. Symington, 197 F.3d 348, 357 (9th Cir. 1999)
(internal citations omitted).
Here, the district court applied the Mauro test and
reasoned that the first Turner factor was satisfied because
“DOC ha[d] expressed its penological reasons for keeping
certain documents out of jail cells and only allowing
prisoners to access case law in the law library.” The district
court “[took] judicial notice that the DOC’s concerns are
real” and did not require Defendants to make any showing
that Policy Two actually serves the asserted safety-and-
security interest.
HRDC argues that the district court erred by not applying
the Walker test because HRDC “presented evidence refuting
any claimed common-sense connection between the caselaw
bans and the purported objective of preventing paper-
checking.” The evidence that HRDC relies on includes:
• An admission from a DOC correctional
manager that “[t]here is really no
penological reason that [prisoners]
cannot have case law that may possibly
pertain to their case, with the exception”
of “case law with information about other
Washington State DOC offenders”;
• That the “[The Habeas Citebook] has
been delivered to thousands of prisoners
22 HRDC, INC. V. UTTECHT
in facilities across the United States
without incident”;
• Superintendent Uttecht’s statement that
he is not aware of any specific example of
incoming prisoner mail containing
caselaw that posed a safety or security
threat and does not “understand why they
didn’t allow some of those items in”;
• Sgt. Turner’s statement that he does not
know why prisoners were barred from
receiving all caselaw and has “no idea”
why they are allowed to view caselaw in
the law library but not to possess that
same information;
• Sgt. Turner’s statement that he could not
recall any circumstances where incoming
mail containing caselaw was identified as
a safety and security threat and sent to the
Intelligence & Investigations Unit for
investigation;
• That the DOC does not have data on how
frequently paper checking occurs or how
often it results in violence, whether the
risk is greater when an inmate possesses
documentation about another inmate, as
opposed to only oral reports, or whether
its mail restrictions make any difference
to the frequency of paper checking; and
• That the DOC does not take any steps to
prevent inmates from learning of other
prisoners’ crimes through print,
HRDC, INC. V. UTTECHT 23
television, or radio news, and inmates can
learn about other prisoners by using Lexis
Nexis in the law library.
We recognize that protecting inmates from harm caused
by other inmates, including through paper checking, is a
legitimate penological interest. See Prison Legal News v.
Ryan, 39 F.4th 1121, 1132 (9th Cir. 2022) (“We have held
that ‘[i]t is beyond question that both jail security and
rehabilitation are legitimate penological interests.’”
(alteration in original) (citation omitted)). But we agree that
HRDC’s evidence casts doubt on whether Policy Two serves
this interest because there is no indication of how it (or
Policy One) restricts the legal materials that an inmate may
possess in a way that reduces the frequency of paper
checking or inmate-on-inmate harm more generally. See
Walker v. Gomez, 370 F.3d 969, 975–77 (9th Cir. 2004)
(“Walker’s uncontested allegation that black inmates were
permitted to use the law library supervised only by a
vocational officer calls into question whether the prison’s
security concerns were really so acute that it was rational to
treat blacks as automatically ineligible for critical-worker
status.”).
Defendants recalled no circumstances where an inmate
possessing caselaw posed a security risk, and neither DOC
nor Coyote Ridge can demonstrate that banning inmates
from possessing legal materials has reduced the incidence of
paper checking. That inmates can obtain the same legal
materials they are banned from receiving by mail from other
permissible sources, including legal databases in the prison
law library, also undercuts the proposition that there is a
“valid, rational connection between the prison regulation and
the legitimate governmental interest put forward to justify
24 HRDC, INC. V. UTTECHT
it.” Turner, 482 U.S. at 89 (internal quotation marks and
citation omitted). Therefore, we conclude that the Walker
test applies and the district court erred by not requiring
Defendants to prove that the challenged DOC policies
advanced the asserted penological interest. See Frost, 197
F.3d at 357.
The district court observed that the Prison Litigation
Reform Act (PLRA) requires courts to give substantial
weight to any adverse impact on public safety. See 18 U.S.C.
§ 3626(a)(1)(A). Defendants similarly argue that courts
must accord substantial deference to the professional
judgment of prison administrators. See Rizzo v. Goode, 423
U.S. 362, 378–79 (1976) (“When a plaintiff seeks to enjoin
the activity of a government agency, even within a unitary
court system, his case must contend with the well-
established rule that the Government has traditionally been
granted the widest latitude in the dispatch of its own internal
affairs.” (citation modified)).
The PLRA does not subjugate constitutional rights to
public safety. Rather, it dictates that “[p]rospective relief . . .
with respect to prison conditions shall extend no further than
necessary to correct the violation of the Federal right.” 18
U.S.C. § 3626(a)(1)(A). Here, the district court did not reach
this scope consideration because it denied HRDC’s motion
for an injunction outright after misapplying the law. On this
record, we must reverse the district court and remand for it
to correctly assess the merits of HRDC’s claims and the
other factors that govern the appropriateness of injunctive
relief.
B. First Amendment—Delivery Delays
Next, HRDC asserts that Defendants violated the First
Amendment by not timely having DOC’s Publication
HRDC, INC. V. UTTECHT 25
Review Committee review the mailroom’s rejection of The
Habeas Citebook and by not timely delivering the book to
inmates after the Committee reversed the mailroom’s
censorship. Again, the First Amendment “protects the right
to receive information and ideas,” Stanley v. Georgia, 394
U.S. 557, 564 (1969), and this right extends to prisoners
“unless it is ‘inconsistent with a person’s status as a prisoner
or with the legitimate penological objectives of the
corrections system.’” Clement v. Cal. Dep’t of Corrs., 364
F.3d 1148, 1151 (9th Cir. 2004) (quoting Jones v. N.C.
Prisoners’ Lab. Union, Inc., 433 U.S. 119, 129 (1977))
(citation modified).
1. Qualified Immunity
Sgt. Turner personally participated in the challenged
action in his role as the direct supervisor of the mailroom and
its staff. But he again argues that he is protected by qualified
immunity because the failure to deliver The Habeas
Citebook after the Publication Review Committee
determined that it “d[id] not violate policy” was not a clearly
established First Amendment violation. We disagree.
a.
Delayed delivery of prisoner mail is constitutionally
permissible if it is temporary and “result[s] from the prison
official’s security inspection.” Crofton v. Roe, 170 F.3d 957,
961 (9th Cir. 1999). “[R]egulations affecting the sending of
a ‘publication’ . . . to a prisoner must be analyzed under the
Turner reasonableness standard.” Thornburgh, 490 U.S. at
413. Necessarily then, delays in delivering publications
mailed to prisoners violate the First Amendment if those
delays are not reasonably related to legitimate penological
interests. See id. (holding that regulations governing
incoming publications “are ‘valid if [they are] reasonably
26 HRDC, INC. V. UTTECHT
related to legitimate penological interests’” (alteration in
original) (quoting Turner, 482 U.S. at 89)).
Here, the Publication Review Committee conclusively
established that the prison had no penological justification
for withholding The Habeas Citebook from inmates, and
Coyote Ridge did not assert this justification after the
Committee’s decision. Nonetheless, the books were not
delivered to their intended recipients after the Committee’s
decision for periods ranging from 14 to 493 days, with most
delays lasting well over 100 days. Some copies were never
delivered before the intended recipients were released from
Coyote Ridge.
With no penological justification for withholding the
book after the Publication Review Committee’s decision,
existing precedent clearly establishes that not delivering the
book was unlawful. This is true even though none of our
precedent delineates a brightline rule for how much delay is
too much. See Hope v. Pelzer, 536 U.S. 730, 741 (2002)
(“[A] general constitutional rule already identified in the
decisional law may apply with obvious clarity to the specific
conduct in question, even though the very action in question
has not previously been held unlawful.” (citation modified)
(quoting United States v. Lanier, 520 U.S. 259, 270–71
(1997)); Schwenk v. Hartford, 204 F.3d 1187, 1197 (9th Cir.
2000) (“[Q]ualified immunity is inappropriate where the
preexisting law was sufficient to provide the defendant with
‘fair warning’ that his conduct was unlawful.” (quoting
Lanier, 520 U.S. at 270–71)). The principle that inmates
retain the right to obtain information to the extent this right
does not contravene legitimate penological interests is
clearly established. See Thornburgh, 490 U.S. at 413. After
it becomes clear that no penological justification for
withholding information sent to prisoners exists, it would be
HRDC, INC. V. UTTECHT 27
absurd to conclude that prison officials could nonetheless
continue to withhold the information simply because no case
has defined exactly what length of delay is permissible and
what length is not. And with most of the delays here lasting
over 100 days, this is not a close case.
The linchpin of the analysis is whether the prison has a
legitimate penological interest for withholding information
sent to an inmate. Id.; Clement, 364 F.3d at 1151. If no such
interest exists, the inmate’s First Amendment right to receive
the information remains operable and enforceable. Clement,
364 F.3d at 1151.
Of course, in some situations, penological interests
separate from those that led to the policies challenged here
might justify withholding information for a time. For
example, if a prison facility were on lockdown when it
became clear that there was no penological justification for
withholding an inmate’s mail, a delivery delay related to the
lockdown might not be unlawful. As with other
reasonableness standards, courts must consider the totality
of the circumstances. See Lehman, 397 F.3d at 699
(discussing Turner factors). But here, Defendants point to no
penological interests separate from concerns about whether
The Habeas Citebook was permissible under DOC policy.
Therefore, when this interest fell away after the Publication
Review Committee’s decision, “every reasonable official [in
this context] would understand that [withholding the subject
mail from prisoners] is unlawful.” Wesby, 583 U.S. at 63
(internal quotation marks and citation omitted).
b.
Because we conclude that HRDC’s asserted right against
delayed delivery in this context is clearly established, we
must consider whether HRDC has demonstrated that there is
28 HRDC, INC. V. UTTECHT
a question of fact concerning whether a violation occurred.
Pearson, 555 U.S. at 236. In HRDC I, we rejected the district
court’s conclusion that the delivery delays were “temporary”
under Crofton and, therefore, permissible. 2023 WL
7211396, at *2. But we also concluded that there were
genuine factual disputes regarding whether Sgt. Turner was
responsible for the delivery delays—specifically, whether he
placed the books in the mailbag for delivery after the
Committee reached its decision, as he testified. Id. We
remanded for the district court to assess whether the
“delivery delays due to the initial content-based rejection
were First Amendment violations” and whether “Turner can
be individually liable.” Id.
On remand, the district court again reasoned that the
delivery delays were “temporary” and due to “the prison’s
security inspection.” We rejected the district court’s factual
findings regarding the nature and circumstances of the delay
in HRDC I, and its return to these findings violated our
mandate. See S.F. Herring Ass’n v. Dep’t of Interior, 946
F.3d 564, 574 (9th Cir. 2019) (“[T]he mandate of an
appellate court forecloses the lower court from reconsidering
matters determined in the appellate court.” (quoting Nguyen
v. United States, 792 F.2d 1500, 1502 (9th Cir. 1986)). As
we have explained, after the Publication Review
Committee’s decision, there was no longer a penological
justification for withholding The Habeas Citebook and no
“security inspection” was needed. Crofton, 170 F.3d at 961.
The district court also concluded that HRDC failed to
show that Sgt. Turner was responsible for the delivery delays
because he testified that he “placed all books in the mailbag
for delivery to the intended recipients,” and HRDC’s
contention otherwise was mere speculation. Again, this was
error. Sgt. Turner supervised the mailroom and its personnel.
HRDC, INC. V. UTTECHT 29
He testified that he personally placed the previously
withheld copies of The Habeas Citebook into the mailbag for
delivery after the Publication Review Committee made its
decision. He also claimed that he did this “[o]n or around”
the day after the Committee’s decision. Yet the delays in
getting the books delivered are undisputed and unexplained.
This is sufficient circumstantial evidence to create a question
of fact regarding whether Sgt. Turner was responsible for the
delivery delays. See United States v. Kelly, 527 F.2d 961,
965 (9th Cir. 1976) (“[C]ircumstantial evidence can be used
to prove any fact, including facts from which another fact is
to be inferred.”).
For these reasons, we reverse the district court’s finding
of qualified immunity as it relates to HRDC’s First
Amendment delayed-delivery claim.
2. Injunctive Relief
HRDC does not seek stand-alone injunctive relief on its
delayed-delivery claim. Rather it seeks an injunction
requiring Defendants “to provide timely notice to [HRDC]
and other publishers of the [Publication Review
Committee]’s decisions to censor or deliver their
publications.” We address this aspect of HRDC’s motion for
injunctive relief in our discussion of its Fourteenth
Amendment notice claim.
C. Fourteenth Amendment—Failure to Provide Notice
HRDC’s last claim asserts that Defendants violated the
Fourteenth Amendment by not providing notice of the
Publication Review Committee’s decision reversing the
mailroom’s censorship of The Habeas Citebook. The district
court originally dismissed this claim, concluding there was
no evidence that Defendants violated the Fourteenth
30 HRDC, INC. V. UTTECHT
Amendment under Procunier v. Martinez, 416 U.S. 396,
418–19 (1974), overruled on other grounds by, Thornburgh,
490 U.S. 401. We reversed in HRDC I because the district
court misread Procunier. 2023 WL 7211396, at *2. We
explained that “the right to learn of the final decision of the
decision-maker is included in the right to due process” and
that “the Supreme Court’s test is whether the due-process-
based requirements are ‘unduly burdensome’ in the prison
context.” Id. (quoting Procunier, 416 U.S. at 419). We then
vacated and remanded “for the district court to address if it
would be ‘unduly burdensome’ to require the Publication
Review Committee to notify HRDC of its final decision.” Id.
(emphasis added).
1. Qualified Immunity
HRDC argues that Procunier clearly establishes that
publishers have a due-process right to notice of censorship
decisions and that HRDC I held as much. We disagree.
While we discussed Procunier in HRDC I, qualified
immunity was not at issue. See id. Our prior decision cannot
fairly be read as holding that Procunier clearly established
that HRDC has a due-process right to be notified of the
Publication Review Committee’s decision regarding the
permissibility of The Habeas Citebook. And considering this
issue now, we conclude that Procunier does not clearly
establish this right.
Procunier is a prisoner-mail-delivery case where the
Supreme Court held that “the decision to censor or withhold
delivery of a particular letter must be accompanied by
minimum procedural safeguards.” 416 U.S. at 417. The
Court explained that “[t]he interest of prisoners and their
correspondents in uncensored communication by letter,
grounded as it is in the First Amendment, is plainly a
HRDC, INC. V. UTTECHT 31
‘liberty’ interest within the meaning of the Fourteenth
Amendment.” Id. at 418. But the Court did not define the
“minimum procedural safeguards” required in this context.
Rather, it considered the safeguards that the district court had
imposed in that case—“that an inmate be notified of the
rejection of a letter written by or addressed to him, that the
author of that letter be given a reasonable opportunity to
protest that decision, and that complaints be referred to a
prison official other than the person who originally
disapproved the correspondence”—and determined that
such procedural requirements were not “unduly
burdensome.” Id. at 418–19.
As we recognized in HRDC I, “the right to learn of the
prison censors’ final decision was not at issue in Procunier.”
2023 WL 7211396, at *2. Nor did Procunier address the
right to receive notice of a favorable decision reversing prior
censorship, like the Publication Review Committee’s
decision here. And while we previously recognized that
Procunier “did not purport to establish a complete list of
what due process requires,” id., that it did not consider the
specific notice right that HRDC asserts means that
Defendants could have reasonably believed that it was
constitutionally permissible not to notify HRDC of the
Publication Review Committee’s favorable decision. Thus,
we affirm the district court’s conclusion that qualified
immunity bars monetary liability on this claim.
2. Injunctive Relief
As previously indicated, HRDC seeks a permanent
injunction requiring Defendants to give publishers timely
notice of the Publication Review Committee’s decisions.
Following our prior remand, the district court declined to
address whether requiring the Publication Review
32 HRDC, INC. V. UTTECHT
Committee to give publishers notice of its decisions would
be unduly burdensome because neither DOC nor the
Committee are parties to this action and, therefore, the court
lacked jurisdiction over them. We agree that our prior
direction on this issue was careless. The district court should
have been instructed to consider whether it would be unduly
burdensome to require the officials named as Defendants to
provide publishers notice of Publication Review Committee
decisions. But as this claim was asserted against Defendants
in their official capacity, “the real party in interest . . . is the
governmental entity and not the named official.” Hafer, 502
U.S. at 25. Thus, the proper inquiry is whether it would be
unduly burdensome for Coyote Ridge to provide notice of
the Committee’s decision.
HRDC I otherwise correctly articulated Procunier’s
application to this case. See 2023 WL 7211396, at *2; accord
Krug v. Lutz, 329 F.3d 692, 697–98 (9th Cir. 2003) (“[T]his
circuit has repeatedly acknowledged that withholding
delivery of inmate mail must be accompanied by the
minimum procedural safeguards established in
[Procunier].”). Thus, we again remand for the district court
to analyze HRDC’s motion for injunctive relief by assessing,
among other things, whether HRDC is likely to prevail on
the merits of its due-process claim under Procunier by
showing that requiring Coyote Ridge to notify publishers of
the Publication Review Committee’s decisions would not be
unduly burdensome. 3
3
Defendants argue that they did not violate due process because, quoting
Sorrels v. McKee, they contend that “HRDC cannot show that this
mistake was anything other than a ‘random and unauthorized action.’”
See 290 F.3d 965, 972–73 (9th Cir. 2002). The problem is that in Sorrels,
HRDC, INC. V. UTTECHT 33
CONCLUSION
The district court correctly held that qualified immunity
bars monetary recovery on HRDC’s first claim asserting that
the challenged DOC policies violate the First Amendment
and its third claim asserting a Fourteenth Amendment due-
process violation for failure to provide HRDC notice of the
Publication Review Committee’s reversal of Coyote Ridge’s
censorship of The Habeas Citebook. But we reverse the
district court’s grant of qualified immunity as to HRDC’s
second claim challenging the delayed delivery of The
Habeas Citebook. We also reverse the district court’s denial
of HRDC’s motion for a permanent injunction. Therefore,
remaining in this case are (1) HRDC’s request for injunctive
relief on its first and third claims, and (2) HRDC’s request
for both monetary and injunctive relief on its second claim.
AFFIRMED in part, REVERSED in part, and
REMANDED. 4
there was no evidence of “a widespread refusal or a custom or practice
not to issue mail rejections,” and, therefore, the evidence could only
establish that the failure of notice was “a random mistake.” Id. at 972.
But here, there is evidence that Coyote Ridge has a common practice of
not providing notice of the Publication Review Committee’s decisions.
Thus, Sorrels does not control.
4
Each party shall bear its own costs.