Barrett v. Premo

101 F.Supp.3d 980

Jacob BARRETT, Plaintiff,

v.Jeff PREMO, Michelle Dodson, Jane Doe, Colette Peters, Kelly Raths, Defendants.

No. 6:11–CV–06358–HZ.

United States District Court, D. Oregon.

Signed March 30, 2015.

Blerina Kotori, William F. Martson, Jr., Tonkon Torp LLP, Portland, OR, for Plaintiff.

Shannon Vincent, Oregon Department of Justice, Salem, OR, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HERNÁNDEZ, District Judge:

This case concerns the constitutionality of the Oregon Department of Corrections' decision to reject an incoming piece of mail because it had artwork on the front of the envelope. Plaintiff Jacob Barrett, an Oregon Department of Corrections (ODOC) inmate, brings a claim for relief under 42 U.S.C. § 1983, which provides a cause of action against state and local governments and their officials for violations of a person's federal constitutional and statutory rights. Plaintiff brings this claim against Jeff Premo, Superintendent of the Oregon State Penitentiary (OSP); Michelle Dodson, former Executive Assistant to Superintendent Premo; Jane Doe¹; Colette Peters, Director of ODOC; and Kelly Raths, Administrator of the Office of Inmate and Community Advocacy at ODOC; (collectively, “Defendants”). Plaintiff alleges that Defendants violated his First Amendment rights by rejecting and returning a letter that Plaintiff sent to an inmate at OSP because of a picture Plaintiff had drawn on the front of the envelope.

This Court conducted a one-day bench trial on February 19, 2015. These are the Court's Findings of Fact and Conclusions of Law. Fed.R.Civ.P. 52(a)(1). As explained below, Defendants violated Plaintiff's First Amendment rights. As a result, Plaintiff is awarded declaratory and injunctive relief.

FINDINGS OF FACT

I. Rejection of Plaintiff's Letter

Pursuant to the Interstate Corrections Compact, Plaintiff was housed in New Mexico at the time of the incident at issue and is currently housed in Florida. Stipulation of Admitted Facts, at 1, [171]. The Oregon Administrative Rules governing incoming inmate mail apply to Plaintiff to the extent he sends mail to inmates in ODOC custody.

In approximately January of 2011, Plaintiff sent a letter to his cousin, Christopher Weedmark, an ODOC inmate who was housed at OSP. Plaintiff's letter to Mr. Weedmark was inside an envelope. On the front of the envelope, Plaintiff had drawn a picture of three skulls, dice, and barbed wire. Pl.'s Ex. 3. Plaintiff's envelope was rejected by mailroom staff at OSP and returned to him, unopened, with a note on the front of the envelope stating “no writing on front of envelope” and a checkmark next to a box indicating “violates inmate mail rule.” Id.

On or about February 2, 2011, Plaintiff wrote a letter to OSP's Mailroom Administrator seeking administrative review of the mail violation. Pl.'s Ex. 4. On February 24, 2011, Superintendent Premo responded to Plaintiff's request for administrative review. Pl.'s Ex. 5. Superintendent Premo stated that “the letter was returned to you due to art work being on the envelope,” and that “in accordance with [OAR 291–131–0025]², incoming mail will be denied and returned to sender if that mail contains anything other than postage, the sender's name and return address, and the addressed inmate's name, SID number and address.” Id.

On March 8, 2011, Plaintiff sent a letter to OSP's Grievance Coordinator, requesting a reversal of Superintendent Premo's decision. Pl.'s Ex. 6. On March 16, 2011, Michelle Dodson, in her role as the Grievance Coordinator's supervisor, responded to Plaintiff in a letter. Pl.'s Ex. 7. Ms. Dodson cited Oregon Administrative Rule 291–131–0037, Disposition of Prohibited Mail:

No administrative review shall be available if the rejection is based on the presence of an unauthorized attachment, substance or enclosure on or with the mail, or if the rejection is based on any violation not related to the written or pictorial content.

Id.Ms. Dodson further stated that Plaintiff was “not eligible for any further review on this issue.” Id.Plaintiff filed a Tort Claim Notice on April 8, 2011. Pl.'s Ex. 8. Plaintiff filed the present lawsuit on November 10, 2011. Complaint, [2].

In September 2014, during the pendency of this lawsuit, Plaintiff sent letters to four ODOC inmates housed in three different ODOC facilities.³Each letter was enclosed in an envelope with a drawing of a “tribal turtle”⁴on the outside. Pl.'s Ex. 10. The letters were delivered to the inmates as addressed. Stipulation of Admitted Facts at 5, [171]. None of the “turtle envelopes” were rejected, despite having artwork on the front of the envelope.

II. Plaintiff's Testimony

At trial, Plaintiff testified that he has been incarcerated for approximately 21 years. He stated that he has drawn consistently on envelopes since approximately 1996 or 1997, and that this was the first time one of his envelopes had been rejected by ODOC. Plaintiff testified that he did not know that drawings were not allowed on the front of envelopes until his envelope was rejected in early 2011. Plaintiff testified that his drawing of skulls, dice, and barbed wire did not contain any code or promote criminal activity.

Plaintiff testified that he draws as much as possible, sometimes even for hours in a day. He said that drawing has changed his life because it is a way he can express his emotions. He testified that it has a positive impact on his relationships, including with other inmates, because he can inspire people and lift their spirits with his artwork. He also testified that being able to draw could help with his rehabilitation if he is released from prison. Plaintiff testified that few inmates draw consistently. He estimated that within OSP, approximately 5–10 inmates draw. He did not know how many of those inmates draw on envelopes.

Plaintiff testified that inmates have very limited access to resources to draw in prison. He testified that being able to draw on the front of envelopes was important because it was a completely flat surface, as opposed to the back of an envelope, and it did not take up space on the paper enclosed in the envelope. In addition, Plaintiff explained that ODOC often puts an address label on the back of envelopes; therefore, if Plaintiff drew on the back, his artwork may be covered by a label. Plaintiff also testified that indigent inmates only receive two pieces of paper and five envelopes per month. Therefore, every inch of space is a valuable resource. Finally, Plaintiff testified that the front of envelopes was a specific medium for him to express himself, similar to any artist who chooses a preferred medium for expression.

III. Mail Processing within the Oregon Department of Corrections

ODOC strives to deliver incoming inmate mail within 48 hours of its arrival at the prison. At OSP, where Plaintiff sent the letter to his cousin, there are four full- time staff in the mailroom who are responsible for, among other things, processing incoming mail. In addition, there are often up to three additional staff members assigned temporarily to assist in the mailroom. The OSP mailroom staff processes an average of 800–1200 pieces of incoming mail per day. Defs.' Ex. 504.

ODOC mailroom staff members go through various steps to process each piece of incoming mail. First, the mail is inspected for technical violations on the exterior of the envelope. If there are no technical violations, the incoming mail's SID⁵number must be verified against the inmate's name. The staff member looks up the SID number in a computer program to determine where the inmate is located and then writes the inmate's housing unit and bunk on the front of the envelope. Then, the staff member opens each piece of mail and searches its contents. Finally, the staff member places the envelope in a bin for distribution to the housing units. All mail is delivered by other ODOC employees. No inmate ever handles, sorts, or distributes mail.

If a mailroom staff member finds a technical violation, the mail is returned to the sender with a sticker, stamp, or handwritten notation, indicating the cause of the violation. Staff members refer to this process as “violating” an envelope. At trial, witness testimony varied as to how long it takes to violate an envelope. Kelly Raths, Administrator of the Office of Inmate and Community Advocacy at ODOC, testified that it takes about 5 minutes; Chris Toombs, OSP Mailroom Lead Worker, testified that it takes between 15 and 30 seconds; and Brandon Kelley, Assistant Superintendent of Security at OSP, testified that it takes 20 seconds.

ODOC does not track how many envelopes are violated per day, nor does it track how many envelopes are violated because they have artwork on the front. Mr. Toombs estimated that 25–100 envelopes are violated out of the approximately 1200 pieces of mail that OSP receives per day. Mr. Toombs did not know how many were violated due to artwork, as opposed to other technical violations.

In addition to first class mail, mailroom staff members process books, magazines, legal mail, inmate emails, video visits (similar to skype), electronic photo uploading services, and a service similar to text messages.

IV. Oregon Department of Corrections' Incoming Mail Rule

Oregon Administrative Rule 291–131–0025states, in relevant part:

Incoming Mail: (1) Incoming mail shall require the sender's name and return address on the front of the envelope and shall be addressed to the inmate using only his/her committed name and SID number.

Pl.'s Ex. 1 at 6. The plain language of the incoming mail rule does not ban artwork on the front of envelopes. The rule only addresses what the front of envelope must include,not what it must exclude.

Every ODOC witness testified that this was the only rule at issue in this case and the only rule that purportedly establishes a de factoODOC policy of prohibiting artwork on the front of envelopes. Plaintiff testified that he was unaware of this OAR until his letter was returned to him.

Ms....