Barrett v. Belleque ( 2008 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JACOB HENRY BARRETT, 
Plaintiff-Appellant,
No. 06-35667
v.
BRIAN BELLEQUE; J. NOFZIGER;  D.C. No.
CV-06-00510-JE
REBECCA PRINSLOW; GARY RUSSELL;
OPINION
J. TAYLOR; KENT PARKER,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Garr M. King, District Judge, Presiding
Argued and Submitted
March 14, 2008—Seattle, Washington
Filed September 22, 2008
Before: Betty B. Fletcher and Richard A. Paez,
Circuit Judges, and William W Schwarzer,* District Judge.
Per Curiam Opinion
*The Honorable William W Schwarzer, Senior United States District
Judge for the Northern District of California, sitting by designation.
13347
BARRETT v. BELLEQUE 13349
COUNSEL
Leonard J. Feldman, Heller Ehrman LLP, Seattle, Washing-
ton, for the plaintiff-appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor
General, Janet A. Metcalf, Assistant Attorney General, Salem,
Oregon, for the defendants-appellees.
OPINION
PER CURIAM:
Plaintiff-Appellant Jacob Barrett’s pro se complaint was
dismissed sua sponte by the district court, with prejudice, for
failure to state a claim. Barrett, a prisoner at the Oregon State
Penitentiary, attempted to mail a series of letters to his grand-
mother and mother—those letters used vulgar and offensive
racist language to describe prison officials. After reviewing
the letters, prison officials cited Barrett for violation of vari-
ous prison disciplinary rules, resulting in a loss of good time,
13350 BARRETT v. BELLEQUE
revocation of certain privileges, and other punitive measures.
Barrett responded by filing a complaint in federal court pursu-
ant to 42 U.S.C. § 1983, alleging that the prison officials vio-
lated his rights under the First and Fourteenth Amendments.
Acting without the benefit of any substantive briefing from
the parties, the district court reasoned that the prison had a
“legitimate penological interest[ ]” in preventing Barrett from
using “crude and racist language,” that outweighed any coun-
tervailing First Amendment interest. The district court’s dis-
missal relied on an incorrect legal standard; under the correct
standard Barrett has stated a claim for relief. We therefore
reverse and remand.1
[1] Dismissal for failure to state a claim is reviewed de
novo. Weilburg v. Shapiro, 488 F.3d 1202, 1205 (9th Cir.
2007). Factual allegations in the complaint are taken as true
and all reasonable inferences are drawn in the plaintiff’s
favor. Id. “Pro se complaints are to be construed liberally and
may be dismissed for failure to state a claim only where it
appears beyond doubt that the plaintiff can prove no set of
facts in support of his claim which would entitle him to
relief.” Id. (citation and internal quotation marks omitted).
[2] The standards for evaluation of a First Amendment
claim concerning outgoing correspondence sent by a prisoner
to an external recipient were established by the Supreme
Court in Procunier v. Martinez, 416 U.S. 396 (1974), over-
ruled on other grounds by Thornburgh v. Abbott, 490 U.S.
401, 413-14 (1989). Under these standards, censorship of
prisoner mail is justified only if “the regulation or practice in
question [ ] further[s] an important or substantial governmen-
tal interest unrelated to the suppression of expression” and
“the limitation of First Amendment freedoms [is] no greater
than is necessary or essential to the protection of the particular
governmental interest involved.” Id. at 413. Procunier is con-
trolling law in the Ninth Circuit and elsewhere as applied to
1
We have jurisdiction pursuant to 28 U.S.C. § 1291.
BARRETT v. BELLEQUE 13351
claims involving outgoing prisoner mail. Bradley v. Hall, 64
F.3d 1276, 1281 n.2 (9th Cir. 1995); Loggins v. Delo, 999
F.2d 364, 366 (8th Cir. 1993); Brooks v. Andolina, 826 F.2d
1266, 1268-69 (3d Cir. 1987); McNamara v. Moody, 606 F.2d
621, 624 (5th Cir. 1979).
[3] Barrett’s complaint—which unequivocally pleads facts
alleging that the prison censored his outgoing mail and pun-
ished him for its contents—states a claim that is clearly cogni-
zable under Procunier. The district court was not in a position
to decide, on the pleadings, whether the Oregon State Peniten-
tiary’s rules “further an important or substantial government
interest,” or impose limitations “no greater than is necessary
or essential to the protection” of those interests. Procunier,
416 U.S. at 413. These are questions that go to the merits of
Barrett’s claim, not to whether he has stated a claim.
[4] Instead of analyzing Barrett’s claim under Procunier,
which is precedent that takes account of the fact that the
recipient’s First Amendment rights are implicated when out-
going prisoner mail is censored, the district court relied on
case law addressing prison regulations that concern communi-
cations between prisoners. See, e.g., Jones v. North Carolina
Prisoners’ Labor Union, Inc., 433 U.S. 119 (1977); see also
Turner v. Safley, 482 U.S. 78 (1987). These authorities are not
controlling here.2
REVERSED AND REMANDED.
2
We note that, after dismissal, Barrett brought Procunier and its prog-
eny to the district court’s attention in a motion for reconsideration. That
motion was denied by the district court without comment.