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Newell v. Sauser

filed: September 11, 1995.

TERRY F. NEWELL, PLAINTIFF-APPELLEE,
v.
FRANK SAUSER; LOU EASTER; SHARON STARR, SGT.; DISCIPLINARY COMMITTEE CHAIRPERSON; TOM REIMER, SGT.; ROBERT HARTZLER, OFFICER OF THE SPRING CREEK CORRECTIONAL CENTER; IN THEIR INDIVIDUAL AND OFFICIAL CAPACITIES, DEFENDANTS-APPELLANTS.



Appeal from the United States District Court for the District of Alaska. D.C. No. CV-91-00163-JWS. John W. Sedwick, District Judge, Presiding.

Before: Eugene A. Wright, Cecil F. Poole, and Charles Wiggins, Circuit Judges. Opinion by Judge Poole.

Author: Poole

POOLE, Circuit Judge:

We consider the constitutional rights of "jailhouse lawyers." Appellee Terry Newell, a prisoner at Spring Creek Correctional Center in Seward, Alaska, sued prison superintendent Frank Sauser and other prison officials pursuant to 42 U.S.C. § 1983. Newell alleged that prison officials violated his civil rights by confiscating legal materials from his cell. The district court denied defendants' motion for a summary judgment and granted summary judgment in favor of Newell. Defendants now appeal interlocutorily. We have jurisdiction pursuant to 28 U.S.C. § 1291.*fn1 We affirm.

I. Background

Newell was the prison law librarian during the time at issue. He had a computer in his cell, as authorized by prison officials. On March 30, 1989, Officer Robert Hartzler entered his cell under the direction of Sergeant Tom Reimer. Officer Hartzler seized approximately 59 pages of computer-generated, rough draft legal materials written by Newell on behalf of an allegedly borderline mentally retarded inmate, Reuben Johnson.

Officer Hartzler wrote and filed an Incident Report indicating that Newell had violated 22 AAC 05.400(d)(7) by possessing "anything not authorized for retention or receipt by the prisoner, and not issued through regular facility channels." On April 11, 1989, the prison's disciplinary committee found Newell guilty of violating the provision, and gave him a verbal reprimand. The committee's decision became a permanent part of Newell's record, subject to review by the parole board. On April 21, 1989, the Department of Corrections ("DOC") issued a memorandum stipulating more explicit requirements for inmates' possession of other prisoners' legal materials.

Newell appealed the disciplinary committee's decision to Superintendent Frank Sauser and Regional Director Charles Moses, both of whom denied his appeal. After Newell exhausted his state remedies, he filed this claim in federal district court. The district court adopted almost in its entirety the recommendation of the magistrate Judge to grant summary judgment in favor of Newell.

II. Discussion

The sole issue on appeal is whether defendants are entitled to qualified immunity. We review de novo a district court's decision on qualified immunity in a section 1983 action. Elder v. Holloway, U.S. (1994), 114 S. Ct. 1019, 1023, 127 L. Ed. 2d 344 (1994); Trevino v. Gates, 23 F.3d 1480, 1482 (9th Cir. 1994).

The qualified immunity doctrine 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." Harlow v. Fitzgerald, 457 U.S. 800, 818, 73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982). In determining whether an official is entitled to qualified immunity, we (1) identify the specific right allegedly violated; (2) determine whether the right was "clearly established;" and (3) determine whether a reasonable officer could have believed that his or her conduct was lawful. Alexander v. City and County of San Francisco, 29 F.3d 1355, 1363-64 (9th Cir. 1994).

A. "Clearly Established" Rights

Newell alleged that prison officials violated his First Amendment and procedural due process rights. We apply the test articulated by the Supreme Court in Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987), to determine whether the right is "sufficiently clear that a reasonable official would understand that what he is doing violates that right."*fn2 Id. at 639-40. It is not necessary that the specific action in question previously have been declared unconstitutional, so long as the unlawfulness was apparent in light of preexisting law. Id. at 640. We consider whether " the ...


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