Matthew Wright v. Michael Hathaway ( 2022 )


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  •                                                                             FILED
    NOT FOR PUBLICATION
    FEB 23 2022
    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MATTHEW WRIGHT,                                  No.   21-35026
    Plaintiff-Appellant,               D.C. No. 2:19-cv-01633-RSM
    v.
    MEMORANDUM*
    MICHAEL HATHAWAY; et al.,
    Defendants-Appellees,
    and
    WASHINGTON STATE DEPARTMENT
    OF SOCIAL AND HEALTH SERVICES;
    ELIZABETH HAINLINE,
    Defendants.
    Appeal from the United States District Court
    for the Western District of Washington
    Ricardo S. Martinez, Chief District Judge, Presiding
    Submitted February 9, 2022**
    Seattle, Washington
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    Before: BYBEE, BEA, and CHRISTEN, Circuit Judges.
    Plaintiff Matthew Wright appeals the district court’s grant of summary
    judgment in a lawsuit brought pursuant to 
    42 U.S.C. § 1983
     alleging that
    defendants violated his First Amendment right to receive mail in Washington state
    prison. We review de novo a district court’s decision on a summary judgment
    motion. Branch Banking & Tr. Co. v. D.M.S.I., LLC, 
    871 F.3d 751
    , 759 (9th Cir.
    2017). We have jurisdiction pursuant to 
    28 U.S.C. § 1291
    , and we affirm in part
    and reverse in part. Because the parties are familiar with the facts, we do not recite
    them here.
    1.     Wright argues the district court erred by granting summary judgment
    in defendants’ favor on his First Amendment retaliation claim. We disagree
    because Wright has failed to show evidence of a constitutional violation.
    Prisoners have a First Amendment right to receive mail in prison subject to
    reasonable regulation. See Thornburgh v. Abbott, 
    490 U.S. 401
    , 407–08 (1989).
    “[W]hen a prison regulation impinges on inmates’ constitutional rights, the
    regulation is valid if it is reasonably related to legitimate penological interests.”
    Turner v. Safley, 
    482 U.S. 78
    , 89 (1987). “First, there must be a valid, rational
    connection between the prison regulation and the legitimate governmental interest
    put forward to justify it.” 
    Id.
     (internal quotations and citations omitted). A second
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    factor is “whether there are alternative means of exercising the right that remain
    open to prison inmates.” 
    Id. at 90
    . A third factor is “the impact accommodation of
    the asserted constitutional right will have on guards and other inmates, and on the
    allocation of prison resources generally.” 
    Id.
     “Finally, the absence of ready
    alternatives is evidence of the reasonableness of a prison regulation.” 
    Id.
    The district court properly determined Wright has not raised a genuine
    dispute of material fact as to whether the rejection of his incoming mail was
    reasonably related to legitimate penological interests. The rejected mail contained
    unredacted documents with personal information about private citizens and other
    inmates, as well as duplicative and altered documents that were against the
    Department of Correction (DOC)’s mailing policy. See also Thornburgh, 
    490 U.S. at 413
     (noting prison officials have more leeway to regulate incoming mail than
    outgoing mail because of the greater security risks inherent in materials coming
    into a prison). Here, DOC has legitimate reasons to regulate the presence of
    sensitive information in prison. Cf. Nordstrom v. Ryan, 
    856 F.3d 1265
    , 1272 (9th
    Cir. 2017) (“Legitimate penological interests . . . include the prevention of criminal
    activity and the maintenance of prison security.” (internal quotations omitted)).
    DOC also has a legitimate interest in enforcing its rule against duplicative
    documents, a policy tailored to reduce the administrative burden of reviewing
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    voluminous mailings. Cf. Clement v. California Dept. of Corrections, 
    364 F.3d 1148
    , 1152 (9th Cir. 2004). Wright had an alternative means of exercising his
    right to receive mail by either having the documents redacted prior to sending them
    to the facility, or by accessing the documents through his attorney.
    Accommodating Wright’s request could have negatively impacted prison staff,
    other inmates, and third parties because the mail in question contained sensitive
    information. While Wright argues DOC could have redacted parts of the mailings
    that posed a security risk and returned the rest to him, the DOC apparently did send
    Wright copies of portions of the mailings that did not violate prison policy. Thus,
    Wright has not shown a constitutional violation because the prison’s rejection of
    the mailings was reasonably related to legitimate penological interests, regardless
    of whether the mail fell outside the scope of the injunctions against him. Wright
    did not present a viable claim of First Amendment retaliation, see Rhodes v.
    Robinson, 
    408 F.3d 559
    , 567–68 (9th Cir. 2005), and we affirm the district court’s
    entry of summary judgment. We need not reach defendants’ qualified immunity
    argument.
    2.     Wright submits that the district court abused its discretion by refusing
    to consider new evidence submitted with his Objections to the Report and
    Recommendation (R&R) to show he had exhausted his administrative remedies
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    with regard to the January 10 and August 8 mail rejections. The district court had
    discretion to consider new evidence submitted for the first time with objections to
    an R&R, but was not required to do so. See United States v. Howell, 
    231 F.3d 615
    ,
    621–22 (9th Cir. 2000). Here, Wright did not explain at the time of submitting his
    Objections why the new evidence should be considered, nor why counsel explicitly
    stated previously that Wright did not have the evidence. The district court also
    concluded the magistrate’s recommendations concerning exhaustion were
    supported even after considering the evidence. Thus, the district court’s ruling was
    neither illogical nor implausible based on the evidence before it, and we conclude
    there was no abuse of discretion.
    3.     Finally, Wright argues the district court erred by finding this case to
    be frivolous, and in counting it as a strike under the Three Strikes provision of the
    Prison Litigation Reform Act (PLRA) 
    28 U.S.C. § 1915
    (g). “[A] case is frivolous
    if it is ‘of little weight or importance: having no basis in law or fact.’” Andrews v.
    King, 
    398 F.3d 1113
    , 1121 (9th Cir. 2005) (citation omitted). In light of the fact
    that many of Wright’s original claims in this lawsuit were previously raised and
    deemed frivolous, see Wright v. Washington, No. C18-0927-RAJ-MAT, 
    2018 WL 5635124
     (W. Dist. Wash. Oct. 2, 2018), and Wright had not exhausted his
    5
    administrative remedies, we conclude the district court did not err in concluding
    this lawsuit was frivolous.
    However, we agree that this case does not count as a strike under the
    Three Strikes provision of the PLRA pursuant to this court’s precedent in Harris v.
    Mangum, 
    863 F.3d 1133
     (9th Cir. 2017). In Mangum, we clarified that the
    dismissal of a case originally filed in state court and then removed to federal court
    does not constitute a strike because the prisoner did not bring the action “in a court
    of the United States” as required by § 1915(g).          Id. at 1140. This suit was
    originally filed in state court. Thus, we reverse the district court’s determination
    that the frivolity finding triggers a “strike” in this case.
    AFFIRMED in part, REVERSED in part. The parties shall bear their
    own costs.
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