Perez v. Peters

ERNIE JUNIOR PEREZ, Plaintiff, v. COLETTE PETERS, MARK NOOTH, RANDY GEER, MICHAEL CLEMENTS,KALLEE EVANS, CHRIS SHUPE, J. DOE, and LORI SCHULTZ, Defendants.

2:14-CV-380-PK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

February 7, 2017

OPINION AND ORDER

PAPAK, Magistrate Judge:

Plaintiff pro se Ernie Junior Perez, an incarcerated prisoner, filed this action in forma pauperis against defendants Colette Peters, Mark Nooth, Randy Geer, Michael Clements, Kallee Evans, Chris Shupe, John or Jane Doe, and Lori Schultz on March 6, 2014. Perez amended his complaint effective July 31, 2014, and added Kelly Raths as an additional defendant effective January 5, 2016. Perez amended his complaint a second time effective January 22, 2016.

By and through his second amended complaint, Perez alleges the defendants' liability pursuant to 42 U.S.C. § 1983 for the violation of his free speech rights under the First Amendment and, in a separately pled claim, under Section 1983 for the violation of his due process rights under the Fourteenth Amendment. By and through his First Amendment claim, Perez raises both facial and as-applied challenges to various specifically identified regulations promulgated by the Oregon Department of Corrections ("ODOC"), challenges defendants' conduct in rejecting certain mail and certain publications sent to him at the institution where he is incarcerated, and challenges certain policies related to those rejections. By and through his Fourteenth Amendment claim, Perez raises both facial and as-applied challenges to the adequacy of the procedures made available to him for seeking administrative review of mail and publication rejections, and in addition challenges the constitutionality of certain policies related to those procedures. Perez seeks injunctive relief to prevent further such deprivations of rights and prays for in excess of $540 in monetary damages.

Now before the court are Perez' motion (#151) for summary judgment, defendants' cross-motion (#160) for summary judgment, and Perez' motion (#176) for imposition of sanctions pursuant to Federal Civil Procedure Rule 11(b). I have considered the motions and all of the pleadings and papers on file. For the reasons set forth below, Perez' motion (#151) for summary judgment is granted in part as to his Fourteenth Amendment claim and otherwise denied in part as discussed below, defendants' motion (#160) for summary judgment is denied in part as to Perez' Fourteenth Amendment claim and otherwise granted as discussed below, and Perez'motion (#176) for imposition of sanctions is denied in its entirety.

LEGAL STANDARD

I. Cross-Motions for Summary Judgment

Summary judgment is appropriate "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A party espousing the position that a material fact either "cannot be or is genuinely disputed" must support that position either by citation to specific evidence of record "including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials," by showing that the evidence of record does not establish either the presence or absence of such a dispute, or by showing that an opposing party is unable to produce sufficient admissible evidence to establish the presence or absence of such a dispute. Fed. R. Civ. P. 56(c). The substantive law governing a claim or defense provides the metric for determining whether a fact is material. See Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365, 369 (9th Cir. 1998).

Summary judgment is not proper if material factual issues exist for trial. See, e.g., Celotex Corp. v. Catrett, 477 U.S. 318, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Warren v. City of Carlsbad, 58 F.3d 439, 441 (9th Cir. 1995), cert. denied, 116 S.Ct. 1261 (1996). In evaluating a motion for summary judgment, the district courts of the United States must draw all reasonable inferences in favor of the nonmoving party, and may neither make credibility determinations nor perform any weighing of the evidence, See, e.g., Lytle v. Household Mfg., Inc., 494 U.S. 545, 554-55 (1990); Reeves v. Sanderson PlumbingProducts, Inc., 530 U.S. 133, 150 (2000).

On cross-motions for summary judgment, the court must consider each motion separately to determine whether either party has met its burden with the facts construed in the light most favorable to the other. See Fed. R. Civ. P. 56; see also, e.g., Fair Hous. Council v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). A court may not grant summary judgment where the court finds unresolved issues of material fact, even where the parties allege the absence of any material disputed facts. See id.

II. Sanctions Pursuant to Federal Civil Procedure Rule 11(c)

Federal Civil Procedure Rule 11(c)(1) provides that the federal courts may impose appropriate sanctions on any attorney or party who, "after notice and an opportunity to respond," violates any of the provisions of Federal Civil Procedure Rule 11(b). Fed. R. Civ. P. 11(c)(1). A party moving for sanctions under Federal Civil Procedure Rule 11(c) must serve the motion on the party against whom sanctions are sought, and then may file the motion with the court any time following 21 days after service if the allegedly noncompliant filing is not withdrawn or otherwise appropriately corrected within that period. See Fed. R. Civ. P. 11(c)(2). Any sanction imposed pursuant to Rule 11(c) "must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated." Fed. R. Civ. P. 11(c)(4). Attorney fees may be awarded as a sanction under Rule 11(c) "if imposed on motion and warranted for effective deterrence," but must be limited to the fees and other expenses "directly resulting from the violation." Id. Rule 11(b) provides as follows:

By presenting to the court a pleading, written motion, or other paper — whether by signing, filing, submitting, or later advocating it — an attorney or unrepresented party certifies that to the best of the person's knowledge,information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

Fed. R. Civ. P. 11(b).

The courts have discretion to award a party prevailing on a Rule 11(c) motion its reasonable expenses, including attorney fees, incurred in connection with the motion, where such an award would be "warranted." Fed. R. Civ. P. 11(c)(2). The burden of establishing that sanctions are justified is borne by the party moving for imposition of sanctions. See Tom Growney Equip. v. Shelley Irrigation Dev., 834 F.2d 833, 837 (9th Cir. 1987).

MATERIAL FACTS

I. The Parties

Plaintiff Perez is, and at all material times was, an incarcerated prisoner of ODOC housed at the Snake River Correctional Institution ("SRCI"). Defendant Peters is, and at all material times was, the director of ODOC, Defendant Nooth is, and at all material times was, the superintendent of SRCI. Defendant Geer was at all material times until approximately March2014 the central mail administrator at SRCI. Defendant Clements is, and at all material times was, a correctional lieutenant at SRCI charged with review of challenged institutional decisions to withhold mail from inmates. Defendant Schultz is, and at all material times was, a clerical employee at SRCI charged with responding to inmate kytes and with review of challenged institutional decisions to withhold publications from inmates. Defendant Evans is, and at all material times was, a clerical employee at SRCI charged with inspecting incoming inmate mail. Defendant Shupe is, and at all material times was, a clerical employee at SRCI charged with inspecting publications sent to inmates through the mail. Defendant Raths is ODOC's Administrator of the Office of Inmate and Community Services, and is responsible for maintaining the ODOC Publication Violation List (the "PVL") (discussed below).

II. The Parties' Dispute¹

Perez' First Amendment claim arises out of defendants' conduct in rejecting his incoming mail on five occasions and in rejecting publications sent to him through the mail on three occasions, in promulgating and enforcing certain administrative regulations, and/or in failing to make the ODOC Publication Violation List readily available to him and to his correspondents. Perez' Fourteenth Amendment claim arises out of the administrative process he received in connection with his requests for administrative review of the eight rejections and/or out of defendants' purported failure to make the ODOC PVL readily available to him and to his correspondents.

A. Rejected Mail and Related Administrative Process

On August 29, September 5, 10, and 17, and October 2, 2013, defendant Evans inspected incoming mail to plaintiff Perez from his correspondent Jane Aston, See Second Amended Complaint, Exh. 1. On each of those occasions, Evans rejected the mail on the grounds that it contained "[s]exually explicit" content and that "[s]exually explicit material is prohibited." See id. Also on each of those occasions, Evans sent Perez a "Mail Violation Notice" so...