United States District Court, W.D. Washington, Tacoma
LONNIE L. BURTON, Plaintiff,
TRACY SCHNEIDER, et al., Defendants.
ORDER ADOPTING REPORT AND RECOMMENDATION
BENJAMIN H. SETTLE United States District Judge
matter comes before the Court on the Report and
Recommendation (“R&R”) of the Honorable J.
Richard Creatura, United States Magistrate Judge (Dkt. 31),
and Plaintiff Lonnie Burton's (“Plaintiff”)
objections to the R&R (Dkt. 32).
an inmate, alleges his First and Fourteenth Amendment rights
were violated when Defendants rejected his incoming and
outgoing mail at Clallam Bay Corrections Center
(“prison”) because the mailings contained
sexually explicit material and third party correspondence.
September 8, 2016, Plaintiff filed a motion for summary
judgment. Dkt. 22. In support of his motion, Plaintiff filed
a declaration. Dkt. 22-1. On September 12, 2016, in
opposition to Plaintiff's motion, Defendants filed a
cross-motion for summary judgment. Dkts. 23, 28. In support
of their motion, Defendants submitted the declarations of
Defendant Gonzalez, Rebecca Citrak, and Tara Hosler. Dkts.
24, 25, 26. On September 22, 2016, Plaintiff responded. Dkts.
27, 29. On October 7, 2016, Defendants replied. Dkt. 30.
November 29, 2016, Judge Creatura entered his R&R,
recommending that the Defendant's cross-motion for
summary judgment be granted, that Plaintiff's motion for
summary judgment be denied, and that the case be closed. Dkt.
31. On December 12, 2016, Plaintiff objected to the R&R.
Dkt. 32. On December 23, Defendants responded to the
objections. Dkt. 33.
district judge must determine de novo any part of the
magistrate judge's disposition that has been properly
objected to. The district judge may accept, reject, or modify
the recommended disposition; receive further evidence; or
return the matter to the magistrate judge with instructions.
objections are five-fold. First, he claims that R&R
improperly construes disputed facts in favor of Defendants.
Second, he claims that the R&R wrongly concludes that his
incoming mail was lawfully rejected. Third, he claims that
the R&R wrongly concludes that the prison's outgoing
mail restrictions were lawful. Fourth, he claims that the
R&R wrongly concludes that the photos in his incoming
mail were sexually explicit under the definition set forth in
the prison's policies. Fifth, he claims that the R&R
wrongly concludes that his due process rights were not
First Objection: Summary Judgment Standard
claims that the R&R violates the summary judgment
standard by construing disputes of fact in favor of
Defendants. Dkt. 32 at 2-3. On summary judgment, all facts
and reasonable inferences drawn therefrom must be construed
in the light most favorable to the nonmoving party.
Furnace v. Sullivan, 705 F.3d 1021, 1026 (9th Cir.
2013) (citing Torres v. City of Madera, 648 F.3d
1119, 1123 (9th Cir. 2011)).
support this objection, Plaintiff first argues that Judge
Creatura improperly viewed the nude photos of a buttocks
received by Plaintiff as “sexually explicit”
under DOC Policy 450.100. Dkt. 32 at 3. This prison policy
prohibits mail that “[c]ontains sexually explicit
material as defined in WAC 137-48-020 and/or references
sexually explicit behavior.” Dkt. 24-1. In turn, WAC
137-48-020 has defined “sexually explicit
materials” as follows:
(13) “Sexually explicit materials” consist of any
item displaying, portraying, depicting, or describing:
(a) Nudity, which includes exposed/visible (in whole or part,
including under or through translucent/thin materials
providing intimate physical detail) genitals/genitalia, anus,