4t.' . .........-' "

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Flt.ED IN THE

us. DISTRICT COUAT

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EASTERN OISTRICT OF WASHINGTON

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SE? 2 2 1997

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JAMES A wa'N

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YAKIM"

c.. ~~

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Ul~T~ED

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DONALD D. MacFARLANE
Plaintiff,

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DISTRICT COURT

EASTERN DISTRICT OF WASHINGTON

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S:L'A.T~.s

v.
KAY WALTER, et al.,
Defendants.

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NO.

9~-CY-.3lo.:J..

-LRS

REPORT AND RECOMMENDATION

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Before the court is defendants' Motion for Summary Judgment
and Dismissal.

ct. Rec. 20.

On hearing without oral argument,

plaintiff appeared pro se, and Assistant Washington state Attorney
General Colleen B. Evans represented defendant.
Plaintiff is an inmate incarcerated at Airway Heights
Correction Center (AHCC).

Plaintiff filed suit under 42 U.S.C.

§

1983, claiming that defendants violated his First and Fourteenth
Amendment rights by prohibiting delivery of publications to which
he sUbscribed, Prison Legal News and the American Civil Liberties
Union National Prison Project Journal, without issuing mail
rejection notices.

These publications are sent as non-profit

third-class mailings.

Plaintiff maintains that he received these

publications while housed at other Washington state correctional
facilities.

Plaintiff argues that AHCC's prohibition against bulk

mail has been unconstitutionally applied to his sUbscription
REPORT AND RECOMMENDATION - 1

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1 publications.

Defendants claim that they have a legitimate

2 penological interest in prohibiting delivery of Mbulk mail," a
3 category in which plaintiff's subscription publications are
4 included.

Further, defendants maintain that plaintiff was given

5 adequate due process by virtue of notice of the bulk mail policy.
6

The constitutionality of AHCC's prohibition against non-

7 profit paid subscription publications, inclUding Prison Legal
8

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was recently ruled upon in this district.

In Miniken y.

9 Walter. et al., No. CS-97-407-JLQ, the JUdge Quackenbush found
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that subscription publications sent via non-profit third-class

11 mail, or ·standard mail," did not fall within the definition
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contained in AHCC Field Instruction 450.100.

Thus, the court

13 ruled that such publications cannot be denied delivery on the
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basis of the ·bulk mail" definition.

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found that the defendants Mhave set forth no rational connection

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between the prohibition of non profit paid SUbscription

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publications such as Prison Legal News and any legitimate neutral

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penological purpose."

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JLQ, MemorandlIm opinion and

Ord~r

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Summary Judgment at p. 12.

Additionally, Judge Quackenbush ruled

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that plaintiff Miniken's due process rights were violated by the

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Moreover, Judge Quackenbush

Miniken y. Halter. et al., No. CS-97-407Granting Plaintiff's Motion for

22 defendants failure to notify either plaintiff or the publisher of
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the rejection of the pUblication.

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that defendants were not entitled to qualified immunity.

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Accordingly, Judge Quackenbush enjoined defendants from denying

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delivery of subscription publications sent Mstandard mail" and

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awarded plaintiff Miniken damages.

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III
REPORT AND RECOMMENDATION - 2

Finally, JUdge Quackenbush held

As such, under the law of this

1 district, the AHCC policy at issue is unconstitutional as applied
2 to plaintiff's subscription publications.
3

Furthermore, the doctrine of issue preclusion mandates the

4 same result in this case.
5

Issue preclusion is appropriate when:

(1) the issue decided in the prior adjudication is substantially

6 identical to the issue in the subsequent action;
7 final jUdgment on the merits;

(2) there was a

and (3) the party against whom the

8 estoppel is asserted was a party to or in privity with a party in
9 the first action.
10

Durkin y. Shea & Gould, 92 F.3d 1510, 1516 (9th

Cir. 1996), cert. denied, 117 S. ct. 1553 (1997), citing Pension

11 Trust Fund for Operating Engers y. Triple A Machine Shop, Inc.,
12
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942 F.2d 1457, 1462 (9th Cir. 1991).
In this instance, plaintiff raises the same issue that was
the subject of the Miniken decision: whether the AHCC practices of

15 prohibiting delivery of subscription publications mailed via the
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standard rate and failing to give rejection notices for such

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publications violate inmates First and Fourteenth Amendment

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rights.

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and found that the

Judge Quackenbush issued a final jUdgment on the merits
AIICe

practice was uncons"\:.itutional.

All

20 parties in this actions were either a named party in Miniken or in
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privity thereto as employees of the Department of Corrections.

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Finally, application of the doctrine will not work an injustice.

23 Quite the contrary; to fail to apply the doctrine of issue
24 preclusion would cause an injustice.
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Therefore, the undersigned

finds that judgment should be rendered in favor of plaintiff.
The only remaining issue involves whether the claims against

27 defendants Ervin and Riveland should be dismissed.
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Defendants

Ervin and Riveland claim that they did not personally participate
REPORT AND RECOMMENDATION - 3

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in the violations of plaintiff's First Amendment rights and

2 therefore must be dismissed from the action.

Plaintiff agrees

3 that dismissal of defendant Ervin is appropriate.

However,

4 plaintiff opposes defendant's argument with respect·to defendant
5 Riveland.

Plaintiff claims that defendant Riveland had knOWledge

6 of AHCC's practice regarding personal subscription pUblication
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sent via bulk rate mail and approved this policy.

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In order to hold a defendant liable for damages, plaintiff

9 must show that the defendant either participated in or directed
10

the violations, or knew of the violations and failed to act to

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prevent them.

Taylor y. List, 880 F.2d 1040, 1045 (9th Cir.

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1989); Leer y.

Mu~hy,

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case, defendant Riveland knew thatAHCC destroyed, without notice,

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personal subscription publications sent non-profit third-class

15 mail.

844 F.2d 628, 633 (9th Cir. 1988).

In this

Apparently, the publisher of Prisoo Legal News wrote to

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defendant Riveland in October of 1995, long before plaintiff filed

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this action.

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2(d).

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To~

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the policy at AHCC.

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admissions, defendant Riveland admitted that AHCC's policy had

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been brought to his attention.

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of such evidence, it is clear that defendant Riveland knew of

see

plaintiff's First Amended Complaint, Exhibit

In fact, defendant Riveland directed Director of Prisons

Rolfs to respond tQ this letter, in which Mr. Rolfs de!ended
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Exhibit 2(E).

Further, in a response to

ct. Rec. 40, Exhibit 12.

In light

24 AHCC's policy administered in violation of plaintiff's First and
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Fourteenth Amendment Rights.

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28.

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REPORT AND RECOMMENDATION - 4

Therefore,

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IT IS HEREBY RECOMMENDED that:

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1.

Defendant Riveland's motion for dismissal for lack of

3 personal participation be DENIED, and defendant Ervin's motion for
4 dismissal.for lack of personal participation be GRANTED.
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2.

Plaintiff's Motion for-Summary Judgment regarding

6 violations of his First Amendment rights and Fourteenth Amendment
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right to procedural due process be GRANTED and Defendant's Motion

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for Summary Judgment regarding the same be DENIED in accordance

9 with the ruling in Miniken y. Walter. et al., No. CS-96-407-JLQ.
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2.

Defendants be PERMANENTLY ENJOINED from prohibiting

11 delivery of an inmate's paid-for SUbscription to a profit or
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nonprofit publication on the sole basis that the publication is

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mailed via ·standard mail,· in accordance with the ruling in

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Miniken y. Walter. et al., No. CS-96-407-JLQ.

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3.

Plaintiff be AWARDED actual damages in addition to costs,

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with the deadline for submission of plaintiff's affidavit of costs

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and damages to be set by the referring jUdge. Plaintiff's actual

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damages are those suffered as a direct result of defendants'

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failure to deliver his

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publications referenced in his Complaint.

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subscrip~ion publica~ions

ot Prison Legal

and the ACLU's National Prison Project Journal, the

Any party may object·to the Magistrate Judge's proposed

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findings, recommendations or report within ten (10) days after

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being served with a copy thereof.

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holi~ays

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file with the Clerk of the Court and serve on all parties written

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objections, specifically identifying the portions to which

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objection is being made, and the basis therefor.

are· excluded.

Intermediate weekends and legal

Fed. R. civ. Proc. 6(a).

REPORT AND RECOMMENDATION - 5

Such party shall

Any response to

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1 the objection shall be filed within ten (10) days after receipt of
2 the objection.
3 excluded.
4

Intermediate weekends and leqal holidays are

Fed. R. Civ. Proc. 6(a).

Attention is directed to Fed.

R. civ. Proc. 6(e) which adds another three (3) days from the date

5 of mailinq where service is by mail.
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A District Judge shall make a de novo determination of those
portions to which objection is made and may accept, reject, or

8 modify the maqistrate's determination.

The JUdqe need not conduct

9 a new hearinq or hear arguments and may consider the Maqistrate
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Judqe's record and make his own determination thereon.

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may also receive further evidence or recommit the matter to the

12 Maqistrate JUdqe with instructions.
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The Judqe

See 28 U.S.C. Sec.

636(b) (1) (B) and (C), Fed. R. civ. P. 73 and LMR 4.
A Maqistrate Judqe's recommendation cannot be appealed to a

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Court of Appeals; only the District Judqe's order or jUdqment can

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be appealed.

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The Clerk of the Court shall file this report and

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recommendation and serve copies of it on the petitioner, counsel

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for respondent, and the referrinq jUdqe, the Honorable Robert H.

20 Whaley.
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DATED this

2.2-~day of September, 1997.

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United States Maqistrate JUdqe

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REPORT AND RECOMMENDATION - 6

FILEOINTHE
U.S. OISTRICT COURT
EASTERN OISTRlCT OFWASHINGTON

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OCT 2 0 1997

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JAMES R. LARSEN. Clerk
·Oeputy

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF WASHINGTON

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DONALD D. MacFARLANE,
Plaintiff,
v.
KAY WALTER, et ale ,
Defendants.

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NO •.

~-96-3102-LRS

ORDER ADOPTING REPORT AND
RECOMMENDATION

Magistrate Judge Suko filed a report and recommendation on

15 September 22, 1997 recommending:
16

1.

Defendant Riveland's motion for dismissal for lack of

17 personal participation be denied and defendant Ervin's motion for
18 dismissal for lack of personal participation b~ qranted.
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2.

Plaintiff's Motion for sUmmary JUd~ent ~egarding

20 violations of his First Amendment riqhts and Fourteenth Amendment
21 right to procedural due process be qranted and Defendant's Motion
22 for Summary Judgment regarding the same be denied in accordance
23 with the ruling in Miniken y. Walter. et al., No.
24

3.

CS-96-407-~.

Defendants be permanetly enjoined prohibiting delivery of

25 an inmate's paid-for subscription to a profit or nonprofit
26 publication on the sole basis that the publication is mailed via
27 ·standard mail,· in accordance with the rUling in
28 et al., No. CS-96-407-JLQ.
ORDER ADOPTING REPORT AND RECOMMENDATION - 1

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4.

Plaintiff be awarded actual damages in addition to costs,

2 with the deadline for submission of plaintiff's affidavit of costs
3 and damages to be set by the referring jUdge.

Plaintiff's actual

4 damages are those suffered as a direct result of defendants'
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failure to deliver his subscription publications of Prison Legal

6 Hen-and the"-ACLU's National Prison Project Journal, the
7 publications referenced in his complaint.
S

Having reviewed the report and there being no objections

9 thereto, said report is ADOPTED in its entirety and IT IS ORDERED
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that plaintiff's complaint is DISMISSED without prejudice.
1.

Defendant Riveland's motion for dismissal for lack of

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personal participation be DENIED, and defendant Ervin's motion for

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dismissal for lack of personal participation be GRANTED.

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. 2.

Plaintiff's Motion for Summary JUdgment regarding

15 violations of his First Amendment rights and Fourteenth Amendment
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right to procedural due process be GRAN"rED and Defendant's Motion

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for Summary JUdgment regarding the same be DENIED.

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3.

Defendants be PERMANENTLY

ENJO~NED

fro~ pr~hibiting

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delivery of an inmate's paid-for subscription to "a profit or

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nonprofit publication on the sole basis that the publication is

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mailed via Mstandard mail.

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4.

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Plaintiff be AWARDED actual damages in addition to costs,

23 with the deadline for submission of plaintiff's affidavit of costs
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and damages to be set by the court.

Plaintiff's actual damages ar

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those suffered as a direct result of defendants' failure to

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deliver his subscription publications of Prison Legal News and the

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ACLU's National Prison Project Journal, the publications

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referenced in his complaint.
ORDER ADOPTING REPORT AND RECOMMENDATION - 2

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The Clerk of the Court shall forward a copy of this order to

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the plaintiff and counsel for the defendant and shall close the

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file.

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DATED this

2Q day of October,

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JUdge

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ORDER ADOPTING REPORT AND RECOMMENDATION - 3