Page 1
397 F.3d 692; 2005 U.S. App. LEXIS 1556, *

PRISON LEGAL NEWS, a Washington corporation; ROLLIN A. WRIGHT,
Plaintiffs-Appellees, v. JOSEPH LEHMAN, in his official and individual capacities;
ELDON VAIL, in his official and individual capacities; CAROL PORTER, in her
official and individual capacities; JAMES BLODGETT, Superintendent, in his
official and individual capacities; KAY WALTER, in her official and individual
capacities; ALICE PAYNE, in her official and individual capacities; MAGGIE
MILLER-STOUT, in her official and individual capacities; RICHARD MORGAN,
in his official and individual capacities; BOB MOORE, in his official and individual
capacities; JOHN LAMBERT, in his official and individual capacities; DOUG
WADDINGTON, in his official and individual capacities; BELINDA D. STEWART,
in her official and individual capacities, Defendants-Appellants. PRISON LEGAL
NEWS, a Washington corporation; ROLLIN A. WRIGHT, Plaintiffs-Appellants, v.
JOSEPH LEHMAN, in his official and individual capacities; ELDON VAIL, in his
official and individual capacities; CAROL PORTER, in her official and individual
capacities; JAMES BLODGETT, Superintendent, in his official and individual
capacities; KAY WALTER, in her official and individual capacities; ALICE
PAYNE, in her official and individual capacities; MAGGIE MILLER-STOUT, in
her official and individual capacities; RICHARD MORGAN, in his official and
individual capacities; BOB MOORE, in his official and individual capacities; JOHN
LAMBERT, in his official and individual capacities; DOUG WADDINGTON, in his
official and individual capacities; BELINDA D. STEWART, in her official and
individual capacities; SCOTT FRAKES, in his official and individual capacities,
Defendants-Appellees.
No. 03-35608, No. 04-35185
UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
397 F.3d 692; 2005 U.S. App. LEXIS 1556
November 1, 2004, Argued and Submitted, Seattle, Washington
February 1, 2005, Filed

PRIOR HISTORY: [*1] Appeal from the United
States District Court for the Western District of
Washington. D.C. No. CV-01-01911-RSL, D.C. No. CV01-01911-RSL. Robert S. Lasnik, District Judge,
Presiding.
Prison Legal News v. Lehman, 272 F.
Supp. 2d 1151, 2003 U.S. Dist. LEXIS 11915 (W.D.
Wash., 2003)

Jesse Andrew Wing, MacDonald, Hoague & Bayless,
Seattle, Washington, for the plaintiffs-appellees.
Steven R. Powers, Office of the Oregon Attorney
General, Salem, Oregon, for the amicus.

DISPOSITION: AFFIRMED.

JUDGES: Before: Arthur L. Alarcon, William A.
Fletcher, and Johnnie B. Rawlinson, Circuit Judges.
Opinion by Judge Alarcon.

LexisNexis(R) Headnotes

OPINIONBY: Arthur L. Alarcon
OPINION: ALARCON, Circuit Judge:

COUNSEL: Shannon Elizabeth Inglis and Carol A.
Murphy, Office of the Washington Attorney General,
Olympia, Washington, for the defendants-appellants.

The Washington Department of Corrections
("DOC") appeals from the grant of summary judgment
and permanent injunctive relief on Prison Legal News
and Rollin A. Wright's (collectively "PLN") claim that
the DOC prohibition against the receipt by inmates of

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397 F.3d 692; 2005 U.S. App. LEXIS 1556, *

non-subscription bulk mail and catalogs violates the First
and Fourteenth Amendments. The thirteen individual
defendants ("prison officials") appeal from the denial of
their motion for summary judgment based on their
defense of qualified [*2] immunity from damages as a
result of restricting inmates from receiving third-party
legal materials.
PLN has filed a cross-appeal from the order granting
summary judgment to the thirteen individuals based on
their defense of qualified immunity regarding PLN's
claim that the defendants violated its constitutional
rights.
We affirm the district court's decision. Under the test
laid out in Turner v. Safley, 482 U.S. 78, 89-90, 96 L.
Ed. 2d 64, 107 S. Ct. 2254 (1987), the DOC's ban on
non-subscription bulk mail and catalogs is not rationally
related to a legitimate penological interest and is
therefore unconstitutional. Although the ban violates
PLN's First Amendment rights, the prison officials are
entitled to qualified immunity because their actions did
not violate clearly established law. We also hold that the
district court did not err by declining to grant qualified
immunity to the officials for their policies regarding
third-party legal materials. If the evidence produced at
trial demonstrates that the DOC applied its policy in a
discriminatory fashion based on the content of the legal
materials as PLN contends, the prison officials are not
entitled to qualified immunity because [*3] they violated
clearly established law. The district court correctly
concluded that this disputed factual question must be
resolved at trial.
I
Prison Legal News is a Washington nonprofit
corporation that publishes and distributes publications
regarding legal issues of interest to inmates, such as
prisoners' rights. It publishes a monthly subscription
magazine, which has 3,000 subscribers across the United
States, including 120 who are inmates in Washington's
state correctional facilities. Its editor, Paul Wright, is an
inmate in a Washington state correctional facility.
The prison officials are policymaking employees in
the DOC. The DOC operates fifteen Washington
correctional institutions that house 16,000 inmates. The
DOC employs approximately one mailroom staff person
per 600 persons served at each institution, including
inmates and staff.
This is the fourth case since 1996 brought by PLN
against the DOC. The previous cases are Miniken v.
Walter, 978 F. Supp. 1356 (E.D. Wash. 1997),
MacFarlane v. Walter, No. 96-cv-03102-LRS (E.D.
Wash. 1997), and Humanists of Washington v. Lehman,
No. 97-cv-05499-FDB-JKA (W.D. Wash. 1999).

The DOC's Policy Directive [*4] 450.100, entitled
"Mail for Offenders," sets forth rules and procedures
regarding mail delivery to inmates. The district court
summarized the portions relevant to this appeal:

First, the directive prohibits inmates from
receiving "bulk mail" unless that bulk
mail is a subscription publication. In
contrast to first and second class mail
rejected due to prohibited content, "no
rejection notice is required for bulk mail
that is not a subscription publication."
Additionally, inmates are not permitted to
receive catalogs by mail, whether sent
first class, second class, or at a "bulk
mail" rate. If mail other than that
constituting bulk mail is rejected for
delivery, inmates receive notice of the
rejection and may appeal the decision.

Prison Legal News v. Lehman, 272 F. Supp. 2d 1151,
1154 (W.D. Wash. 2003) (alterations in original)
(citations omitted) ("PLN II"). The court further
explained, "The Department defines bulk mail as mail
which is clearly marked non-profit or bulk rate. This type
of mail is also referred to as bulk business mail or
advertising mail and includes, but is not limited to,
catalogs and circulars." Id. at n.2 (alterations in [*5]
original) (citations and quotations omitted). "The
Department defines 'catalog' as '[a] publication which is
predominantly or substantially focused on offering items
for sale.'" Id. at n.3 (alterations in original) (citations
omitted). The court also explained the DOC's policy
regarding third-party legal material:
DOC 450.100 prohibits the delivery of
"mail containing information which, if
communicated, could create a risk of
violence and/or physical harm to any
person . . . .
Third-party legal materials-Must meet the
following requirements
a. Mail which consists of judicial opinions
(published and unpublished), reports and
recommendations, orders, complaints or
answers, settlement agreements, class
action notices, legal briefs and
memoranda, and motions, and
b. Mail which otherwise complies with
DOC Policy 450.100 Mail for Offenders

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397 F.3d 692; 2005 U.S. App. LEXIS 1556, *

and has been stamped "approved thirdparty legal materials" by correctional
staff.

Id. at 1161 (citations omitted).
PLN sued the DOC under 42 U.S.C. § 1983,
arguing that these regulations violated its First and
Fourteenth Amendment rights. The district court held
that the DOC's policies [*6] regarding non subscription
bulk mail and catalogs violated PLN's First Amendment
rights, id. at 1159, but that the officials were entitled to
qualified immunity for their decisions. Id. at 1163. The
district court further concluded that summary judgment
was not appropriate for the claim regarding third-party
legal material, because "resolution of these issues
requires highly fact-dependent inquiries that . . . are not
amenable to summary determination." Id. at 1162.
Furthermore, the district court limited its finding of
qualified immunity to the issues resolved on summary
judgment, and expressed no opinion regarding whether
the officials will be entitled to qualified immunity if PLN
should ultimately prevail on its claim regarding thirdparty legal materials. Id. at 1163 n.14.

that the officials waived their qualified immunity defense
as to the third-party legal material claim because they
only asserted qualified immunity with regard to the nonsubscription bulk mail and catalog claims. We disagree.
In their motion for summary judgment, the officials ask
for qualified immunity, and do not specifically limit their
request to the non-subscription bulk mail and catalog
claims. The heading on that portion of their argument is
"Defendants Should be Entitled to Qualified Immunity
From Damages." The section of their motion addressing
qualified immunity reads in its entirety:

In the event that this Court determines
plaintiffs' constitutional rights were
violated, defendants should be entitled to
qualified immunity from damages.
Saucier v. Katz, 533 U.S. 194, 201, 121 S.
Ct. 2151, 2156, 150 L. Ed. 2d 272 (2001).
Based on relevant case law in this and
other circuits, as well as unpublished
Washington
opinions,
defendants
reasonably believed that their policy, and
actions in adopting and enforcing the
catalog and non-subscription bulk mail
restrictions were lawful. See Sorrels v.
McKee, 290 F.3d 965, 971 (9th. Cir.
2002) [*9] (citing Prison Legal News v.
Cook, 238 F.3d 1145, 1152) (unpublished
district court decisions may be considered
for purposes of determining qualified
immunity).

II
The district court had jurisdiction under 42 U.S.C. §
1983. We have jurisdiction to review the district court's
decision to grant summary judgment for PLN and its
decision to grant qualified immunity to defendants
regarding PLN's claims under 28 U.S.C. § 1291. We
have jurisdiction to review the grant of permanent
injunctive relief to PLN [*7] relating to catalogs and
non-subscription bulk mail and notice under 28 U.S.C. §
1292(a)(1).
We have jurisdiction under 28 U.S.C. § 1291 over
an interlocutory appeal regarding the issue of qualified
immunity. Wilkins v. City of Oakland, 350 F.3d 949, 951
(9th Cir. 2003) (citing Jeffers v. Gomez, 267 F.3d 895,
903 (9th Cir. 2001) (per curiam); Schwenk v. Hartford,
204 F.3d 1187, 1195 (9th Cir. 2000)). "In such
circumstances, however, appellate review is generally
limited to issues of law, and 'does not extend to claims in
which the determination of qualified immunity depends
on disputed issues of material fact.'" Wilkins, 350 F.3d at
951 (quoting Jeffers, 267 F.3d at 903) (internal citation
omitted). "Where disputed facts exist, we will determine
if the denial of qualified immunity was proper by
assuming that the version of events offered by the
nonmoving party is correct." Id.
The parties dispute whether we have jurisdiction
over the officials' assertion that the district court
improperly denied qualified immunity from the claim
relating to third-party [*8] legal materials. PLN argues

While the second sentence supports only their arguments
based on the non-subscription bulk mail and catalog
claims, the first sentence of the argument does not limit
the request in any way. We are persuaded that the
officials did not waive their argument that they are
entitled to qualified immunity from the claim concerning
third-party legal materials.
PLN also argues that because the officials dispute
the factual merits of the third-party legal materials claim,
rather than the legal basis, that claim is outside the scope
of this Court's interlocutory jurisdiction. We disagree. As
noted above, cases in this circuit establish that when
disputed facts exist, we have jurisdiction to decide the
claim, but must assume that the version of events offered
by the nonmoving party is correct. Wilkins, 350 F.3d at
951. Therefore, we have jurisdiction to hear the appeal of
the district court's denial of qualified immunity.
III
We review de novo a district court's decision to
grant or deny summary judgment. [*10]
Botosan v.

Page 4
397 F.3d 692; 2005 U.S. App. LEXIS 1556, *

Paul McNally Realty, 216 F.3d 827, 830 (9th Cir. 2000).
We apply the same standard used by the trial court under
Rule 56 of the Federal Rules of Civil Procedure. Meade
v. Cedarapids, Inc., 164 F.3d 1218, 1221 (9th Cir. 1999).
We must determine, viewing the evidence in the light
most favorable to the nonmoving party, whether there are
any genuine issues of material fact and whether the
district court correctly applied the relevant substantive
law. Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir.
2000) (en banc). We also review a grant or denial of
qualified immunity de novo. Bahrampour v. Lampert,
356 F.3d 969, 976 (9th Cir. 2004).
A
We first consider whether the district court correctly
found that PLN was entitled to summary judgment on its
claims that the ban on non-subscription bulk mail and
catalogs was unconstitutional. In Prison Legal News v.
Cook, 238 F.3d 1145 (9th Cir. 2001) ("PLN I"), we held
that publishers and prisoners have a constitutionally
protected right to receive subscription non-profit bulk
mail and that a ban on bulk mail [*11]
was
unconstitutional as applied to such mail. Id. at 1152-53.
In Morrison, we held that a similar ban on subscription
for-profit bulk mail was likewise unconstitutional.
Morrison v. Hall, 261 F.3d 896 (9th Cir. 2001). In this
case, we are squarely presented with the question of
whether a ban on non-subscription bulk mail and
catalogs is also unconstitutional.
Publishers have a First Amendment right to
communicate with prisoners by mail, and inmates have a
First Amendment right to receive this mail. PLN I, 238
F.3d at 1149 (citing Thornburgh v. Abbott, 490 U.S.
401, 408, 104 L. Ed. 2d 459, 109 S. Ct. 1874 (1989)).
But this right is subject to "substantial limitations and
restrictions in order to allow prison officials to achieve
legitimate correctional goals and maintain institutional
security." Walker v. Sumner, 917 F.2d 382, 385 (9th Cir.
1990) (citations omitted). In order for the DOC's ban on
non-subscription bulk mail to be upheld, it must be
"reasonably related to legitimate penological interests."
Turner v. Safley, 482 U.S. at 89.
In Turner, the Supreme Court laid out a four-factor
[*12] test to determine whether a prison regulation is
"reasonably related to legitimate penological interests":

(1) whether the regulation is rationally
related to a legitimate and neutral
governmental objective, (2) whether there
are alternative avenues that remain open
to the inmates to exercise the right, (3) the
impact that accommodating the asserted
right will have on other guards and

prisoners, and on the allocation of prison
resources; and (4) whether the existence
of easy and obvious alternatives indicates
that the regulation is an exaggerated
response by prison officials.

PLN II, 272 F. Supp. 2d at 1155 (citing PLN I, 238 F.3d
at 1149 and Turner, 482 U.S. at 89). "The first factor of
these factors constitutes sine qua non." Walker, 917 F.2d
at 385. Therefore, if a regulation is not rationally related
to a legitimate and neutral governmental objective, a
court need not reach the remaining three factors. Id. As
in the previous cases challenging restrictions on bulk
mail, the district court in this case found that because the
ban on non-subscription bulk mail was not rationally
related to [*13] a neutral government objective, it did
not reach the remaining factors of the test. PLN II, 272
F. Supp. 2d at 1159 (holding that the court need not
consider the other factors because the DOC had failed to
demonstrate the regulation was rationally related to a
neutral government objective); see also PLN I, 238 F.3d
at 1151 (same); Morrison, 261 F.3d at 904 (same).
The DOC offered four penological goals which it
claims justifies the ban on non-subscription bulk mail
and catalogs: (1) reducing the volume of mail to be
searched in order to increase the likelihood of mailroom
staff preventing contraband from entering the facility; (2)
reducing the amount of mail coming into the jail
generally in order to reduce the amount of work required
to sort the mail and deliver it to inmates; (3) reducing the
amount of clutter in each inmate's cell to reduce the risk
of fires; and (4) reducing the amount of clutter in each
inmate's cell to make searching the cell and enforcing
limitations on personal property more efficient and
effective.
The DOC offered the same arguments in the
previous cases challenging bans on subscription nonprofit mail, [*14] see PLN I, 238 F.3d at 1150-51, and
subscription for-profit mail, see Morrison, 261 F.3d at
902-03. We rejected each contention in those cases.
Regarding the DOC's justification that the ban
would reduce the volume of mail that may contain
contraband, we believe that it is far more likely that
contraband would be contained in first class mail than in
bulk mail. The district court properly found that there is
no rational relation between this regulation and the
penological objective of reducing the amount of mail that
may contain contraband.
The DOC also argues that the regulation is justified
because it reduces the volume of mail generally. Our
previous cases analyzing the efficient use of staff time
argument also apply here. While the DOC's mailroom

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397 F.3d 692; 2005 U.S. App. LEXIS 1556, *

staff may have to spend more time analyzing the content
of non-subscription bulk rate mail and catalogs, such a
ban on non-subscription bulk rate mail and catalogs is
not rationally related to the goal of reducing contraband.
As we explained in Morrison, "Prohibiting inmates from
receiving mail based on the postage rate at which the
mail was sent is an arbitrary means of achieving the goal
of volume [*15] control." Morrison, 261 F.3d at 90304.
The DOC also asserts that the restrictions help
reduce the risk of fire. While a greater volume of mail
will enter inmates' cells as a result of our decision to void
this regulation, it is irrational to prohibit prisoners from
receiving bulk rate mail and catalogs on the theory that it
reduces fire hazards because the DOC already regulates
the quantity of possessions that prisoners may have in
their cells. See Morrison, 261 F.3d at 902 (holding that
"although the number of subscription for-profit
publications that enter the OSP may be greater than the
number of subscription non-profit publications, because
the OSP already regulates the quantity of possessions
that prisoners may have in their cell, it is similarly
'irrational' to prohibit prisoners from receiving
subscription for-profit mail on the theory that it reduces
fire hazards").
Finally, we reject the DOC's proposition that this
regulation is justified because it increases the efficiency
of cell searches, for the same reason that we reject the
fire hazard argument. See Morrison, 261 F.3d at 902
("In light of the regulation limiting [*16] the total
amount of property in a cell . . . permitting inmates to
receive for-profit, subscription publications could not
possibly increase the total volume of cell materials.");
PLN I, 238 F.3d at 1151 (determining that a ban on nonprofit subscription publications "is not rationally related
to the Department's interest in rendering efficient cell
searches").
It should be noted that PLN was not sending mail to
Washington's correctional facilities to be distributed to
all inmates, regardless of whether they had expressed
interest in receiving it. This case is therefore
distinguishable from Jones v. North Carolina Prisoners'
Labor Union, Inc., 433 U.S. 119, 53 L. Ed. 2d 629, 97 S.
Ct. 2532 (1977), in which the Supreme Court upheld a
ban on junk mail sent indiscriminately to all inmates. In
Jones, the inmates were permitted to receive mail that
was sent to them individually. Id. at 131 n.8. In this
case, every piece of mail sent by PLN is sent as a result
of a request by the recipient, but the inmates were not
allowed to receive it.
The only way to distinguish this case from
Morrison and PLN I is that the inmates in this case did
not [*17] pay for the mail that was sent to them. But it is

the fact that a request was made by the recipient, and not
the fact that the recipient is paying to receive the
publication, that is important. As a Washington district
court explained in one of the previous cases brought by
PLN against the DOC, "the sender's interest in
communicating the ideas in the publication corresponds
to the recipient's interest in reading what the sender has
to say . . . We can perceive no principled basis for
distinguishing publications specifically ordered by a
prison inmate from letters written to that inmate for
purposes of first amendment protection . . ." Miniken v.
Walter, 978 F. Supp. 1356, 1362 (E.D. Wash. 1997)
(quoting Brooks v. Seiter, 779 F.2d 1177, 1180) (6th Cir.
1985)). Although the Miniken case involved a
subscription publication, it indicates that it is the request
on the part of the receiver and compliance on the part of
the sender, and not the payment of money, that is
relevant to the First Amendment analysis.
This case is not a scenario in which a publisher has
attempted to flood a facility with publications sent to all
inmates, regardless of whether [*18] they requested the
publication. In fact, PLN submitted evidence that at one
of the correctional facilities, the mailroom received an
average of only thirty-one catalogs and non-subscription
bulk rate mail per day. PLN argues persuasively that this
amount is virtually indistinguishable from the fifteen to
thirty pieces of mail that were prohibited by the ban at
issue in PLN I, an amount which we held was "minimal."
PLN I, 238 F.3d at 1151.
In addition to its First Amendment claim, PLN
argues that the DOC's practice of failing to provide
notice and review of rejections of non-subscription bulk
mail and catalogs that are not delivered under the ban
violates the Due Process clause as explained in
Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224,
94 S. Ct. 1800 (1974). In Procunier, the Court held that
prison officials must provide minimum procedural
safeguards to protect inmates' interest in receiving mail
by notifying inmates of their decision not to deliver
letters. Id. at 417-19. In PLN I, we held that as a
consequence of our decision that inmates have a First
Amendment right to receive subscription non-profit bulk
mail, "it follows [*19] that such mail must be afforded
the same procedural protections as first class and
periodicals mail." PLN I, 238 F.3d at 1152-53. The
district court in this case correctly determined that
because it was recognizing inmates' First Amendment
rights to receive non-subscription bulk mail and catalogs,
the same procedural protections must be afforded to
inmates with regard to this mail as with first class,
periodical, or subscription bulk rate mail. PLN II, 272 F.
Supp. 2d at 1159.
B

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397 F.3d 692; 2005 U.S. App. LEXIS 1556, *

PLN challenges the district court's decision that the
prison officials involved in banning non-subscription
bulk mail and catalogs were entitled to qualified
immunity. In Bahrampour v. Lampert, 356 F.3d at 976,
we recently set forth the test to be applied in determining
whether state actors are entitled to qualified immunity.
"The first step is to determine whether the alleged actions
are unconstitutional as a matter of law. If so, the next
step is to analyze whether the defendants are entitled to
qualified immunity because the rights asserted were not
clearly established at the time." Id. (citing Saucier v.
Katz, 533 U.S. 194, 201, 150 L. Ed. 2d 272, 121 S. Ct.
2151 (2001)). [*20] Having determined that the ban on
non-subscription bulk mail and catalogs is
unconstitutional, we must now decide whether the
officials' actions "violated clearly established statutory or
constitutional rights of which a reasonable person would
have known." Harlow v. Fitzgerald, 457 U.S. 800, 818,
73 L. Ed. 2d 396, 102 S. Ct. 2727 (1982) (citations
omitted). In determining whether PLN's rights in this
case were clearly established, and whether a reasonable
person would have known his or her actions violated
these rights, we may look at unpublished decisions and
the law of other circuits, in addition to Ninth Circuit
precedent. PLN I, 238 F.3d at 1152; Sorrels v. McKee,
290 F.3d 965, 970 (9th Cir. 2002).
PLN argues that after Morrison, PLN I, and
Bahrampour, a reasonable official could not conclude
that this ban on bulk mail and catalogs was
constitutional. PLN points to language from
Bahrampour, in which the Court explained its holding in
PLN I by saying, "We held that prohibiting inmates'
receipt of non-profit bulk mail was unconstitutional."
Bahrampour, 356 F.3d at 977 (emphasis in original).
PLN also points [*21] out that the district court cases
within the Ninth Circuit that the officials rely on to show
that the law was not clearly established predate PLN I
and Morrison. PLN argues that the officials' reliance
upon these cases was unreasonable. It further argues that
because the law of other circuits conflicts with the law of
this circuit, it was not reasonable for the officials to look
to other circuits in light of binding precedent.
The prison officials argue that a ban in this case is
sufficiently different from the bans that the Court struck
down in PLN I and Morrison, that the law was not
clearly established, and that the officials did not act
unreasonably. One paragraph from the Court's decision
in Morrison is sufficient to demonstrate how the officials
could have reasonably thought that the ban in this case
was constitutional:

Moreover, prisons can and have adopted
policies permitting prisoners to receive

for-profit, commercial publications, while
at the same time, prohibiting prisoners
from receiving unsolicited junk mail. For
example, the California Department of
Corrections ("CDC") adopted a regulation
that prohibits prisoners from "possessing .
. . [*22] catalogues, advertisements,
brochures, and materials whose primary
purpose is to sell a product(s) or service(s)
and when taken as a whole, lacks serious
literary, artistic, political, educational, or
scientific value." 15 Cal. Admin. Code §
3006(c)(11). Unlike the [the regulation at
issue in Morrison], the CDC regulation is
specifically tailored to permit inmates to
receive
for-profit,
subscription
publications such as The New York Times,
while at the same time prohibiting the
receipt of unsolicited junk mail.

261 F.3d at 905. The officials in this case could have
read this paragraph from Morrison and reasonably
(though incorrectly, as it turns out) believed that like the
CDC, they could ban catalogs and non-subscription bulk
mail, while allowing inmates to receive non-profit and
for-profit subscription bulk mail.
PLN also argues that the grant of summary judgment
was improper in light of the fact that PLN submitted
evidence to suggest that prison officials acted with "a
specific intent to interdict the information it offered
prisoners about their legal rights." The prison officials
correctly point out, however, that "a defense of qualified
immunity [*23] may not be rebutted by evidence that
the defendant's conduct was malicious or otherwise
improperly motivated." Crawford-El v. Britton, 523 U.S.
574, 588, 140 L. Ed. 2d 759, 118 S. Ct. 1584 (1998). We
may properly decide whether the prison officials are
entitled to qualified immunity without considering PLN's
evidence that they acted with impure motives.
C
We must consider whether the district court erred in
refusing to grant qualified immunity to the prison
officials regarding PLN's claim that the DOC's policy for
handling third-party legal materials violates PLN's
constitutional rights. There is considerable dispute about
the facts surrounding the third-party legal materials
claim. The district court declined to grant summary
judgment on this claim to either party precisely because
of the differing pertinent factual questions that need to be
resolved at trial. In evaluating whether the district court
improperly failed to grant qualified immunity to the
officials regarding this claim, we must assume that the
version of events offered by the nonmoving party is

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397 F.3d 692; 2005 U.S. App. LEXIS 1556, *

correct. Wilkins v. City of Oakland, 350 F.3d 949, 951
(9th Cir. 2003).

similar material. PLN challenges the DOC's refusal to
deliver more than one hundred specific legal documents.

The DOC's policy regarding [*24] third-party legal
material, contained in DOC 450.100, prohibits the
delivery of "mail containing information which, if
communicated, could create a risk of violence and/or
physical harm to any person." DOC 590.500 permits the
delivery of mail which

PLN suggests that the real motive of the prison
officials who prevented third-party legal materials from
being delivered was to suppress materials that embarrass
the DOC and educate inmates on how to file their claims.
Although an improper motive ordinarily will not defeat a
request for qualified immunity, see Crawford-El, 523
U.S. at 588, if the policy were applied in a discriminatory
fashion based on the content of the material, this would
clearly violate PLN's First Amendment rights. See
Turner v. Safley, 482 U.S. at 90 (restrictions on free
speech must operate without regard to the content of the
restricted material). Accordingly, we hold that the prison
officials are not entitled to qualified immunity regarding
PLN's claim that they violated its constitutional rights in
banning the receipt of the third-party legal materials.

a. consists of judicial opinions (published
and
unpublished),
reports
and
recommendations, orders, complaints or
answers, settlement agreements, class
action notices, legal briefs and
memoranda, and motions, and
b. otherwise complies with DOC Policy
450.100 Mail for Offenders and has been
stamped "approved third-party legal
materials" by correctional staff.
The district court correctly held that the DOC
regulation prohibiting mail that could create a risk of
violence and physical harm to any person is
constitutional on its face. PLN II, 272 F. Supp. 2d at
1162. The question presented in this case is whether the
prison officials applied this rule in a fashion that is
unconstitutional. Because we must, for purposes of this
appeal, accept the facts as laid out by PLN, we cannot
determine on this record whether the prison officials are
entitled to qualified immunity. PLN contends that the
DOC's policy was applied by [*25] the prison officials
in a manner that singled out PLN for discriminatory
treatment, while allowing other publishers to deliver

Conclusion
The district court properly granted summary
judgment to PLN regarding [*26] the ban on nonsubscription bulk mail and catalogs, because the ban is
not rationally related to a legitimate penological
objective. It also properly granted qualified immunity to
the prison officials on this claim because their actions
did not violate clearly established law. We further
conclude that the district court must be affirmed on its
decision to deny the prison officials' motion for
summary judgment based on qualified immunity
regarding PLN's third-party legal materials claim,
because we must accept as true its allegations that the
prison officials applied the policy in a way that
discriminated against PLN on the basis of the content of
the legal materials.
AFFIRMED.