Burton v. Schneider

          ORDER ADOPTING REPORT AND RECOMMENDATION

          BENJAMIN H. SETTLE United States District Judge

         This 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).

         I. BACKGROUND

         Plaintiff, 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. Dkt. 17.

         On 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.

         On 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.

         II. DISCUSSION

         The 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. Fed.R.Civ.P. 72(b)(3).

         Plaintiff's 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 violated.

         A. First Objection: Summary Judgment Standard

         Plaintiff 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)).

         To 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, ...