Prison Legal News v. Lehman

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PRISON LEGAL NEWS, a Washington 

corporation; ROLLIN A. WRIGHT,

Plaintiffs-Appellees,

v.

JOSEPH LEHMAN, in his official and

individual capacities; ELDON VAIL,

in his official and individual

capacities; CAROL PORTER, in her

official and individual capacities;

JAMES BLODGETT, Superintendent,

in his official and individual

capacities; KAY WALTER, in her No. 03-35608

official and individual capacities;

ALICE PAYNE, in her official and  D.C. No.

CV-01-01911-RSL

individual capacities; MAGGIE

MILLER-STOUT, in her official and

individual capacities; RICHARD

MORGAN, in his official and

individual capacities; BOB MOORE,

in his official and individual

capacities; JOHN LAMBERT, in his

official and individual capacities;

DOUG WADDINGTON, in his official

and individual capacities; BELINDA

D. STEWART, in her official and

individual capacities,

Defendants-Appellants.



1283

1284 PRISON LEGAL NEWS v. LEHMAN

PRISON LEGAL NEWS, a Washington 

corporation; ROLLIN A. WRIGHT,

Plaintiffs-Appellants,

v.

JOSEPH LEHMAN, in his official and

individual capacities; ELDON VAIL,

in his official and individual

capacities; CAROL PORTER, in her

official and individual capacities;

JAMES BLODGETT, Superintendent,

in his official and individual

capacities; KAY WALTER, in her

official and individual capacities; No. 04-35185

ALICE PAYNE, in her official and

individual capacities; MAGGIE  D.C. No.

CV-01-01911-RSL

MILLER-STOUT, in her official and

OPINION

individual capacities; RICHARD

MORGAN, in his official and

individual capacities; BOB MOORE,

in his official and individual

capacities; JOHN LAMBERT, in his

official and individual capacities;

DOUG WADDINGTON, in his official

and individual capacities; BELINDA

D. STEWART, in her official and

individual capacities; SCOTT

FRAKES, in his official and

individual capacities,

Defendants-Appellees.



Appeal from the United States District Court

for the Western District of Washington

Robert S. Lasnik, District Judge, Presiding

PRISON LEGAL NEWS v. LEHMAN 1285

Argued and Submitted

November 1, 2004—Seattle, Washington

Filed February 1, 2005

Before: Arthur L. Alarcón, William A. Fletcher, and

Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Alarcón

PRISON LEGAL NEWS v. LEHMAN 1287

COUNSEL

Shannon Elizabeth Inglis and Carol A. Murphy, Office of the

Washington Attorney General, Olympia, Washington, for the

defendants-appellants.

1288 PRISON LEGAL NEWS v. LEHMAN

Jesse Andrew Wing, MacDonald, Hoague & Bayless, Seattle,

Washington, for the plaintiffs-appellees.

Steven R. Powers, Office of the Oregon Attorney General,

Salem, Oregon, for the amicus.

OPINION

ALARCÓN, Circuit Judge:

The Washington Department of Corrections (“DOC”)

appeals from the grant of summary judgment and permanent

injunctive relief on Prison Legal News and Rollin A. Wright’s

(collectively “PLN”) claim that the DOC prohibition against

the receipt by inmates of non-subscription bulk mail and cata-

logs violates the First and Fourteenth Amendments. The thir-

teen individual defendants (“prison officials”) appeal from the

denial of their motion for summary judgment based on their

defense of qualified immunity from damages as a result of

restricting inmates from receiving third-party legal materials.

PLN has filed a cross-appeal from the order granting sum-

mary judgment to the thirteen individuals based on their

defense of qualified immunity regarding PLN’s claim that the

defendants violated its constitutional rights.

We affirm the district court’s decision. Under the test laid

out in Turner v. Safley, 482 U.S. 78, 89-90 (1987), the DOC’s

ban on non-subscription bulk mail and catalogs is not ratio-

nally related to a legitimate penological interest and is there-

fore unconstitutional. Although the ban violates PLN’s First

Amendment rights, the prison officials are entitled to quali-

fied immunity because their actions did not violate clearly

established law. We also hold that the district court did not err

by declining to grant qualified immunity to the officials for

their policies regarding third-party legal materials. If the evi-

PRISON LEGAL NEWS v. LEHMAN 1289

dence produced at trial demonstrates that the DOC applied its

policy in a discriminatory fashion based on the content of the

legal materials as PLN contends, the prison officials are not

entitled to qualified immunity because they violated clearly

established law. The district court correctly concluded that

this disputed factual question must be resolved at trial.

I

Prison Legal News is a Washington nonprofit corporation

that publishes and distributes publications regarding legal

issues of interest to inmates, such as prisoners’ rights. It pub-

lishes a monthly subscription magazine, which has 3,000 sub-

scribers across the United States, including 120 who are

inmates in Washington’s state correctional facilities. Its edi-

tor, Paul Wright, is an inmate in a Washington state correc-

tional facility.

The prison officials are policymaking employees in the

DOC. The DOC operates fifteen Washington correctional

institutions that house 16,000 inmates. The DOC employs

approximately one mailroom staff person per 600 persons

served at each institution, including inmates and staff.

This is the fourth case since 1996 brought by PLN against

the DOC. The previous cases are Miniken v. Walter, 978 F.

Supp. 1356 (E.D. Wash. 1997), MacFarlane v. Walter, No.

96-cv-03102-LRS (E.D. Wash. 1997), and Humanists of

Washington v. Lehman, No. 97-cv-05499-FDB-JKA (W.D.

Wash. 1999).

The DOC’s Policy Directive 450.100, entitled “Mail for

Offenders,” sets forth rules and procedures regarding mail

delivery to inmates. The district court summarized the por-

tions relevant to this appeal:

First, the directive prohibits inmates from receiving

“bulk mail” unless that bulk mail is a subscription

1290 PRISON LEGAL NEWS v. LEHMAN

publication. In contrast to first and second class mail

rejected due to prohibited content, “[n]o rejection

notice is required for bulk mail that is not a subscrip-

tion publication.” Additionally, inmates are not per-

mitted to receive catalogs by mail, whether sent first

class, second class, or at a “bulk mail” rate. If mail

other than that constituting bulk mail is rejected for

delivery, inmates receive notice of the rejection and

may appeal the decision.

Prison Legal News v. Lehman, 272 F. Supp. 2d 1151, 1154

(W.D. Wash. 2003) (alterations in original) (citations omitted)

(“PLN II”). The court further explained, “The Department

defines bulk mail as [m]ail which is clearly marked non-profit

or bulk rate. This type of mail is also referred to as bulk busi-

ness mail or advertising mail and includes, but is not limited

to, catalogs and circulars.” Id. at n.2 (alterations in original)

(citations and quotations omitted). “The Department defines

‘catalog’ as ‘[a] publication which is predominantly or sub-

stantially focused on offering items for sale.’ ” Id. at n.3

(alterations in original) (citations omitted). The court also

explained the DOC’s policy regarding third-party legal mate-

rial:

DOC 450.100 prohibits the delivery of “[m]ail con-

taining information which, if communicated, could

create a risk of violence and/or physical harm to any

person . . . .

Third-party legal materials-Must meet the following

requirements

a. Mail which consists of judicial opinions (pub-

lished and unpublished), reports and recommenda-

tions, orders, complaints or answers, settlement

agreements, class action notices, legal briefs and

memoranda, and motions, and

b. Mail which otherwise complies with DOC Pol-

icy 450.100 Mail for Offenders and has been

PRISON LEGAL NEWS v. LEHMAN 1291

stamped “approved third-party legal materials” by

correctional staff.

Id. at 1161 (citations omitted).

PLN sued the DOC under 42 U.S.C. § 1983, arguing that

these regulations violated its First and Fourteenth Amendment

rights. The district court held that the DOC’s policies regard-

ing non subscription bulk mail and catalogs violated PLN’s

First Amendment rights, id. at 1159, but that the officials

were entitled to qualified immunity for their decisions. Id. at

1163. The district court further concluded that summary judg-

ment was not appropriate for the claim regarding third-party

legal material, because “resolution of these issues requires

highly fact-dependent inquiries that . . . are not amenable to

summary determination.” Id. at 1162. Furthermore, the dis-

trict court limited its finding of qualified immunity to the

issues resolved on summary judgment, and expressed no

opinion regarding whether the officials will be entitled to

qualified immunity if PLN should ultimately prevail on its

claim regarding third-party legal materials. Id. at 1163 n.14.

II

The district court had jurisdiction under 42 U.S.C. § 1983.

We have jurisdiction to review the district court’s decision to

grant summary judgment for PLN and its decision to grant

qualified immunity to defendants regarding PLN’s claims

under 28 U.S.C. § 1291. We have jurisdiction to review the

grant of permanent injunctive relief to PLN relating to cata-

logs and non-subscription bulk mail and notice under 28

U.S.C. § 1292(a)(1).

We have jurisdiction under 28 U.S.C. § 1291 over an inter-

locutory appeal regarding the issue of qualified immunity.

Wilkins v. City of Oakland, 350 F.3d 949, 951 (9th Cir. 2003)

(citing Jeffers v. Gomez, 267 F.3d 895, 903 (9th Cir. 2001)

(per curiam); Schwenk v. Hartford, 204 F.3d 1187, 1195 (9th

1292 PRISON LEGAL NEWS v. LEHMAN

Cir. 2000)). “In such circumstances, however, appellate

review is generally limited to issues of law, and ‘does not

extend to claims in which the determination of qualified

immunity depends on disputed issues of material fact.’ ” Wil-

kins, 350 F.3d at 951 (quoting Jeffers, 267 F.3d at 903) (inter-

nal citation omitted). “Where disputed facts exist, we will

determine if the denial of qualified immunity was proper by

assuming that the version of events offered by the nonmoving

party is correct.” Id.

The parties dispute whether we have jurisdiction over the

officials’ assertion that the district court improperly denied

qualified immunity from the claim relating to third-party legal

materials. PLN argues that the officials waived their qualified

immunity defense as to the third-party legal material claim

because they only asserted qualified immunity with regard to

the non-subscription bulk mail and catalog claims. We dis-

agree. In their motion for summary judgment, the officials ask

for qualified immunity, and do not specifically limit their

request to the non-subscription bulk mail and catalog claims.

The heading on that portion of their argument is “Defendants

Should be Entitled to Qualified Immunity From Damages.”

The section of their motion addressing qualified immunity

reads in its entirety:

In the event that this Court determines plaintiffs’

constitutional rights were violated, defendants

should be entitled to qualified immunity from dam-

ages. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.

2151, 2156 (2001). Based on relevant case law in

this and other circuits, as well as unpublished Wash-

ington opinions, defendants reasonably believed that

their policy, and actions in adopting and enforcing

the catalog and non-subscription bulk mail restric-

tions were lawful. See Sorrels v. McKee, 290 F.3d

965, 971 (9th. Cir. 2002) (citing Cook, 238 F.3d at

1152) (unpublished district court decisions may be

PRISON LEGAL NEWS v. LEHMAN 1293

considered for purposes of determining qualified

immunity).

While the second sentence supports only their arguments

based on the non-subscription bulk mail and catalog claims,

the first sentence of the argument does not limit the request

in any way. We are persuaded that the officials did not waive

their argument that they are entitled to qualified immunity

from the claim concerning third-party legal materials.

PLN also argues that because the officials dispute the fac-

tual merits of the third-party legal materials claim, rather than

the legal basis, that claim is outside the scope of this Court’s

interlocutory jurisdiction. We disagree. As noted above, cases

in this circuit establish that when disputed facts exist, we have

jurisdiction to decide the claim, but must assume that the ver-

sion of events offered by the nonmoving party is correct. Wil-

kins, 350 F.3d at 951. Therefore, we have jurisdiction to hear

the appeal of the district court’s denial of qualified immunity.

III

We review de novo a district court’s decision to grant or

deny summary judgment. Botosan v. Paul McNally Realty,

216 F.3d 827, 830 (9th Cir. 2000). We apply the same stan-

dard used by the trial court under Rule 56 of the Federal Rules

of Civil Procedure. Meade v. Cedarapids, Inc., 164 F.3d

1218, 1221 (9th Cir. 1999). We must determine, viewing the

evidence in the light most favorable to the nonmoving party,

whether there are any genuine issues of material fact and

whether the district court correctly applied the relevant sub-

stantive law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.

2000) (en banc). We also review a grant or denial of qualified

immunity de novo. Bahrampour v. Lampert, 356 F.3d 969,

976 (9th Cir. 2004).

A

[1] We first consider whether the district court correctly

found that PLN was entitled to summary judgment on its

1294 PRISON LEGAL NEWS v. LEHMAN

claims that the ban on non-subscription bulk mail and cata-

logs was unconstitutional. In Prison Legal News v. Cook, 238

F.3d 1145 (9th Cir. 2001) (“PLN I”), we held that publishers

and prisoners have a constitutionally protected right to receive

subscription non-profit bulk mail and that a ban on bulk mail

was unconstitutional as applied to such mail. Id. at 1152-53.

In Morrison, we held that a similar ban on subscription for-

profit bulk mail was likewise unconstitutional. Morrison v.

Hall, 261 F.3d 896 (9th Cir. 2001). In this case, we are

squarely presented with the question of whether a ban on non-

subscription bulk mail and catalogs is also unconstitutional.

[2] Publishers have a First Amendment right to communi-

cate with prisoners by mail, and inmates have a First Amend-

ment right to receive this mail. PLN I, 238 F.3d at 1149

(citing Thornburgh v. Abbott, 490 U.S. 401, 408 (1989)). But

this right is subject to “substantial limitations and restrictions

in order to allow prison officials to achieve legitimate correc-

tional goals and maintain institutional security.” Walker v.

Sumner, 917 F.2d 382, 385 (9th Cir. 1990) (citations omitted).

In order for the DOC’s ban on non-subscription bulk mail to

be upheld, it must be “reasonably related to legitimate peno-

logical interests.” Turner v. Safley, 482 U.S. at 89.

In Turner, the Supreme Court laid out a four-factor test to

determine whether a prison regulation is “reasonably related

to legitimate penological interests”:

(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 allo-

cation of prison resources; and (4) whether the exis-

tence of easy and obvious alternatives indicates that

the regulation is an exaggerated response by prison

officials.

PRISON LEGAL NEWS v. LEHMAN 1295

PLN II, 272 F. Supp. 2d at 1155 (citing PLN I, 238 F.3d at

1149 and Turner, 482 U.S. at 89). “The first factor of these

factors constitutes sine qua non.” Walker, 917 F.2d at 385.

Therefore, if a regulation is not rationally related to a legiti-

mate and neutral governmental objective, a court need not

reach the remaining three factors. Id. As in the previous cases

challenging restrictions on bulk mail, the district court in this

case found that because the ban on non-subscription bulk mail

was not rationally related to a neutral government objective,

it did not reach the remaining factors of the test. PLN II, 272

F. Supp. 2d at 1159 (holding that the court need not consider

the other factors because the DOC had failed to demonstrate

the regulation was rationally related to a neutral government

objective); see also PLN I, 238 F.3d at 1151 (same); Morri-

son, 261 F.3d at 904 (same).

The DOC offered four penological goals which it claims

justifies the ban on non-subscription bulk mail and catalogs:

(1) reducing the volume of mail to be searched in order to

increase the likelihood of mailroom staff preventing contra-

band from entering the facility; (2) reducing the amount of

mail coming into the jail generally in order to reduce the

amount of work required to sort the mail and deliver it to

inmates; (3) reducing the amount of clutter in each inmate’s

cell to reduce the risk of fires; and (4) reducing the amount

of clutter in each inmate’s cell to make searching the cell and

enforcing limitations on personal property more efficient and

effective.

The DOC offered the same arguments in the previous cases

challenging bans on subscription non-profit mail, see PLN I,

238 F.3d at 1150-51, and subscription for-profit mail, see

Morrison, 261 F.3d at 902-03. We rejected each contention in

those cases.

[3] Regarding the DOC’s justification that the ban would

reduce the volume of mail that may contain contraband, we

believe that it is far more likely that contraband would be con-

1296 PRISON LEGAL NEWS v. LEHMAN

tained in first class mail than in bulk mail. The district court

properly found that there is no rational relation between this

regulation and the penological objective of reducing the

amount of mail that may contain contraband.

[4] The DOC also argues that the regulation is justified

because it reduces the volume of mail generally. Our previous

cases analyzing the efficient use of staff time argument also

apply here. While the DOC’s mailroom staff may have to

spend more time analyzing the content of non-subscription

bulk rate mail and catalogs, such a ban on non-subscription

bulk rate mail and catalogs is not rationally related to the goal

of reducing contraband. As we explained in Morrison,

“[P]rohibiting inmates from receiving mail based on the post-

age rate at which the mail was sent is an arbitrary means of

achieving the goal of volume control.” Morrison, 261 F 3d at

903-04.

[5] The DOC also asserts that the restrictions help reduce

the risk of fire. While a greater volume of mail will enter

inmates’ cells as a result of our decision to void this regula-

tion, it is irrational to prohibit prisoners from receiving bulk

rate mail and catalogs on the theory that it reduces fire haz-

ards because the DOC already regulates the quantity of pos-

sessions that prisoners may have in their cells. See Morrison,

261 F.3d at 902 (holding that “[a]lthough the number of sub-

scription for-profit publications that enter the OSP may be

greater than the number of subscription non-profit publica-

tions, because the OSP already regulates the quantity of pos-

sessions that prisoners may have in their cell, it is similarly

‘irrational’ to prohibit prisoners from receiving subscription

for-profit mail on the theory that it reduces fire hazards”).

[6] Finally, we reject the DOC’s proposition that this regu-

lation is justified because it increases the efficiency of cell

searches, for the same reason that we reject the fire hazard

argument. See Morrison, 261 F.3d at 902 (“In light of the reg-

ulation limiting the total amount of property in a cell . . . per-

PRISON LEGAL NEWS v. LEHMAN 1297

mitting inmates to receive for-profit, subscription publications

could not possibly increase the total volume of cell materi-

als.”); PLN I, 238 F.3d at 1151 (determining that a ban on

non-profit subscription publications “is not rationally related

to the Department’s interest in rendering efficient cell search-

es”).

It should be noted that PLN was not sending mail to Wash-

ington’s correctional facilities to be distributed to all inmates,

regardless of whether they had expressed interest in receiving

it. This case is therefore distinguishable from Jones v. North

Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977),

in which the Supreme Court upheld a ban on junk mail sent

indiscriminately to all inmates. In Jones, the inmates were

permitted to receive mail that was sent to them individually.

Id. at 131 n.8. In this case, every piece of mail sent by PLN

is sent as a result of a request by the recipient, but the inmates

were not allowed to receive it.

[7] The only way to distinguish this case from Morrison

and PLN I is that the inmates in this case did not pay for the

mail that was sent to them. But it is the fact that a request was

made by the recipient, and not the fact that the recipient is

paying to receive the publication, that is important. As a

Washington district court explained in one of the previous

cases brought by PLN against the DOC, “[t]he sender’s inter-

est in communicating the ideas in the publication corresponds

to the recipient’s interest in reading what the sender has to say

. . . We can perceive no principled basis for distinguishing

publications specifically ordered by a prison inmate from let-

ters written to that inmate for purposes of first amendment

protection . . .” Miniken v. Walter, 978 F. Supp. 1356, 1362

(E.D. Wash. 1997) (quoting Brooks v. Seiter, 779 F.2d 1177,

1180) (6th Cir. 1985)). Although the Miniken case involved

a subscription publication, it indicates that it is the request on

the part of the receiver and compliance on the part of the

sender, and not the payment of money, that is relevant to the

First Amendment analysis.

1298 PRISON LEGAL NEWS v. LEHMAN

This case is not a scenario in which a publisher has

attempted to flood a facility with publications sent to all

inmates, regardless of whether they requested the publication.

In fact, PLN submitted evidence that at one of the correctional

facilities, the mailroom received an average of only thirty-one

catalogs and non-subscription bulk rate mail per day. PLN

argues persuasively that this amount is virtually indistinguish-

able from the fifteen to thirty pieces of mail that were prohib-

ited by the ban at issue in PLN I, an amount which we held

was “minimal.” PLN I, 238 F.3d at 1151.

[8] In addition to its First Amendment claim, PLN argues

that the DOC’s practice of failing to provide notice and

review of rejections of non-subscription bulk mail and cata-

logs that are not delivered under the ban violates the Due Pro-

cess clause as explained in Procunier v. Martinez, 416 U.S.

396 (1974). In Procunier, the Court held that prison officials

must provide minimum procedural safeguards to protect

inmates’ interest in receiving mail by notifying inmates of

their decision not to deliver letters. Id. at 417-19. In PLN I,

we held that as a consequence of our decision that inmates

have a First Amendment right to receive subscription non-

profit bulk mail, “it follows that such mail must be afforded

the same procedural protections as first class and periodicals

mail.” PLN I, 238 F.3d at 1152-53. The district court in this

case correctly determined that because it was recognizing

inmates’ First Amendment rights to receive non-subscription

bulk mail and catalogs, the same procedural protections must

be afforded to inmates with regard to this mail as with first

class, periodical, or subscription bulk rate mail. PLN II, 272

F. Supp. 2d at 1159.

B

[9] PLN challenges the district court’s decision that the

prison officials involved in banning non-subscription bulk

mail and catalogs were entitled to qualified immunity. In

Bahrampour v. Lampert, 356 F.3d at 976, we recently set

PRISON LEGAL NEWS v. LEHMAN 1299

forth the test to be applied in determining whether state actors

are entitled to qualified immunity. “The first step is to deter-

mine whether the alleged actions are unconstitutional as a

matter of law. If so, the next step is to analyze whether the

defendants are entitled to qualified immunity because the

rights asserted were not clearly established at the time.”

Id. (citing Saucier v. Katz, 533 U.S. 194, 201 (2001)). Having

determined that the ban on non-subscription bulk mail and

catalogs is unconstitutional, we must now decide whether the

officials’ actions “violate[d] clearly established statutory or

constitutional rights of which a reasonable person would have

known.” Harlow v. Fizgerald, 457 U.S. 800, 818 (1982) (cita-

tions omitted). In determining whether PLN’s rights in this

case were clearly established, and whether a reasonable per-

son would have known his or her actions violated these rights,

we may look at unpublished decisions and the law of other

circuits, in addition to Ninth Circuit precedent. PLN I, 238

F.3d at 1152; Sorrels v. McKee, 290 F.3d 965, 970 (9th Cir.

2002).

PLN argues that after Morrison, PLN I, and Bahrampour,

a reasonable official could not conclude that this ban on bulk

mail and catalogs was constitutional. PLN points to language

from Bahrampour, in which the Court explained its holding

in PLN I by saying, “[W]e held that prohibiting inmates’

receipt of non-profit bulk mail was unconstitutional.”

Bahrampour, 356 F.3d at 977 (emphasis in original). PLN

also points out that the district court cases within the Ninth

Circuit that the officials rely on to show that the law was not

clearly established predate PLN I and Morrison. PLN argues

that the officials’ reliance upon these cases was unreasonable.

It further argues that because the law of other circuits con-

flicts with the law of this circuit, it was not reasonable for the

officials to look to other circuits in light of binding precedent.

[10] The prison officials argue that a ban in this case is suf-

ficiently different from the bans that the Court struck down in

PLN I and Morrison, that the law was not clearly established,

1300 PRISON LEGAL NEWS v. LEHMAN

and that the officials did not act unreasonably. One paragraph

from the Court’s decision in Morrison is sufficient to demon-

strate how the officials could have reasonably thought that the

ban in this case was constitutional:

Moreover, prisons can and have adopted policies

permitting prisoners to receive for-profit, commer-

cial publications, while at the same time, prohibiting

prisoners from receiving unsolicited junk mail. For

example, the California Department of Corrections

(“CDC”) adopted a regulation that prohibits prison-

ers from “possessing . . . catalogues, advertisements,

brochures, and materials whose primary purpose is

to sell a product(s) or service(s) and when taken as

a whole, lacks serious literary, artistic, political, edu-

cational, or scientific value.” 15 Cal. Admin. Code

§ 30006(c)(11). Unlike the [the regulation at issue in

Morrison], the CDC regulation is specifically tai-

lored to permit inmates to receive for-profit, sub-

scription publications such as The New York Times,

while at the same time prohibiting the receipt of

unsolicited junk mail.

261 F.3d at 905. The officials in this case could have read this

paragraph from Morrison and reasonably (though incorrectly,

as it turns out) believed that like the CDC, they could ban cat-

alogs and non-subscription bulk mail, while allowing inmates

to receive non-profit and for-profit subscription bulk mail.

PLN also argues that the grant of summary judgment was

improper in light of the fact that PLN submitted evidence to

suggest that prison officials acted with “a specific intent to

interdict the information it offered prisoners about their legal

rights.” The prison officials correctly point out, however, that

“a defense of qualified immunity may not be rebutted by evi-

dence that the defendant’s conduct was malicious or other-

wise improperly motivated.” Crawford-El v. Britton, 523 U.S.

574, 588 (1998). We may properly decide whether the prison

PRISON LEGAL NEWS v. LEHMAN 1301

officials are entitled to qualified immunity without consider-

ing PLN’s evidence that they acted with impure motives.

C

We must consider whether the district court erred in refus-

ing to grant qualified immunity to the prison officials regard-

ing PLN’s claim that the DOC’s policy for handling third-

party legal materials violates PLN’s constitutional rights.

There is considerable dispute about the facts surrounding the

third-party legal materials claim. The district court declined to

grant summary judgment on this claim to either party pre-

cisely because of the differing pertinent factual questions that

need to be resolved at trial. In evaluating whether the district

court improperly failed to grant qualified immunity to the

officials regarding this claim, we must assume that the version

of events offered by the nonmoving party is correct. Wilkins

v. City of Oakland, 350 F.3d 949, 951 (9th Cir. 2003).

[11] The DOC’s policy regarding third-party legal material,

contained in DOC 450.100, prohibits the delivery of “mail

containing information which, if communicated, could create

a risk of violence and/or physical harm to any person.” DOC

590.500 permits the delivery of mail which

a. consists of judicial opinions (published and

unpublished), reports and recommendations, orders,

complaints or answers, settlement agreements, class

action notices, legal briefs and memoranda, and

motions, and

b. otherwise complies with DOC Policy 450.100

Mail for Offenders and has been stamped “approved

third-party legal materials” by correctional staff.

The district court correctly held that the DOC regulation pro-

hibiting mail that could create a risk of violence and physical

harm to any person is constitutional on its face. PLN II, 272

1302 PRISON LEGAL NEWS v. LEHMAN

F. Supp. 2d at 1162. The question presented in this case is

whether the prison officials applied this rule in a fashion that

is unconstitutional. Because we must, for purposes of this

appeal, accept the facts as laid out by PLN, we cannot deter-

mine on this record whether the prison officials are entitled to

qualified immunity. PLN contends that the DOC’s policy was

applied by the prison officials in a manner that singled out

PLN for discriminatory treatment, while allowing other pub-

lishers to deliver similar material. PLN challenges the DOC’s

refusal to deliver more than one hundred specific legal docu-

ments.

[12] PLN suggests that the real motive of the prison offi-

cials 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. Although an

improper motive ordinarily will not defeat a request for quali-

fied immunity, see Crawford-El, 523 U.S. at 588, if the policy

were applied in a discriminatory fashion based on the content

of the material, this would clearly violate PLN’s First Amend-

ment rights. See Turner v. Safley, 482 U.S. at 90 (restrictions

on free speech must operate without regard to the content of

the restricted material). Accordingly, we hold that the prison

officials are not entitled to qualified immunity regarding

PLN’s claim that they violated its constitutional rights in ban-

ning the receipt of the third-party legal materials.

Conclusion

The district court properly granted summary judgment to

PLN regarding the ban on non-subscription bulk mail and cat-

alogs, because the ban is not rationally related to a legitimate

penological objective. It also properly granted qualified

immunity to the prison officials on this claim because their

actions did not violate clearly established law. We further

conclude that the district court must be affirmed on its deci-

sion to deny the prison officials’ motion for summary judg-

ment based on qualified immunity regarding PLN’s third-

PRISON LEGAL NEWS v. LEHMAN 1303

party legal materials claim, because we must accept as true its

allegations that the prison officials applied the policy in a way

that discriminated against PLN on the basis of the content of

the legal materials.

AFFIRMED.