Prison Legal News v. Lehman

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

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 No. 03-35608
official and individual capacities;
ALICE PAYNE, in her official and  D.C. No.
CV-01-01911-RSL
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.


1283
1284 PRISON LEGAL NEWS v. LEHMAN

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; No. 04-35185
ALICE PAYNE, in her official and
individual capacities; MAGGIE  D.C. No.
CV-01-01911-RSL
MILLER-STOUT, in her official and
OPINION
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.

Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
 PRISON LEGAL NEWS v. LEHMAN 1285
Argued and Submitted
November 1, 2004—Seattle, Washington

Filed February 1, 2005

Before: Arthur L. Alarcón, William A. Fletcher, and
Johnnie B. Rawlinson, Circuit Judges.

Opinion by Judge Alarcón
 PRISON LEGAL NEWS v. LEHMAN 1287

COUNSEL

Shannon Elizabeth Inglis and Carol A. Murphy, Office of the
Washington Attorney General, Olympia, Washington, for the
defendants-appellants.
1288 PRISON LEGAL NEWS v. LEHMAN
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.

OPINION

ALARCÓN, Circuit Judge:

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 non-subscription bulk mail and cata-
logs violates the First and Fourteenth Amendments. The thir-
teen individual defendants (“prison officials”) appeal from the
denial of their motion for summary judgment based on their
defense of qualified 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 sum-
mary 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 (1987), the DOC’s
ban on non-subscription bulk mail and catalogs is not ratio-
nally related to a legitimate penological interest and is there-
fore unconstitutional. Although the ban violates PLN’s First
Amendment rights, the prison officials are entitled to quali-
fied 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 evi-
 PRISON LEGAL NEWS v. LEHMAN 1289
dence 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 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 pub-
lishes a monthly subscription magazine, which has 3,000 sub-
scribers across the United States, including 120 who are
inmates in Washington’s state correctional facilities. Its edi-
tor, Paul Wright, is an inmate in a Washington state correc-
tional 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 450.100, entitled “Mail for
Offenders,” sets forth rules and procedures regarding mail
delivery to inmates. The district court summarized the por-
tions relevant to this appeal:

First, the directive prohibits inmates from receiving
“bulk mail” unless that bulk mail is a subscription
1290 PRISON LEGAL NEWS v. LEHMAN
publication. In contrast to first and second class mail
rejected due to prohibited content, “[n]o rejection
notice is required for bulk mail that is not a subscrip-
tion publication.” Additionally, inmates are not per-
mitted 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 [m]ail which is clearly marked non-profit
or bulk rate. This type of mail is also referred to as bulk busi-
ness mail or advertising mail and includes, but is not limited
to, catalogs and circulars.” Id. at n.2 (alterations in original)
(citations and quotations omitted). “The Department defines
‘catalog’ as ‘[a] publication which is predominantly or sub-
stantially 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 mate-
rial:

DOC 450.100 prohibits the delivery of “[m]ail con-
taining 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 (pub-
lished and unpublished), reports and recommenda-
tions, orders, complaints or answers, settlement
agreements, class action notices, legal briefs and
memoranda, and motions, and

b. Mail which otherwise complies with DOC Pol-
icy 450.100 Mail for Offenders and has been
 PRISON LEGAL NEWS v. LEHMAN 1291
stamped “approved third-party 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 regard-
ing 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 judg-
ment 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 dis-
trict 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 third-party legal materials. Id. at 1163 n.14.

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 relating to cata-
logs 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 inter-
locutory 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
1292 PRISON LEGAL NEWS v. LEHMAN
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.’ ” Wil-
kins, 350 F.3d at 951 (quoting Jeffers, 267 F.3d at 903) (inter-
nal 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 legal
materials. PLN argues 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 non-subscription bulk mail and catalog claims. We dis-
agree. 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 dam-
ages. Saucier v. Katz, 533 U.S. 194, 201, 121 S. Ct.
2151, 2156 (2001). Based on relevant case law in
this and other circuits, as well as unpublished Wash-
ington opinions, defendants reasonably believed that
their policy, and actions in adopting and enforcing
the catalog and non-subscription bulk mail restric-
tions were lawful. See Sorrels v. McKee, 290 F.3d
965, 971 (9th. Cir. 2002) (citing Cook, 238 F.3d at
1152) (unpublished district court decisions may be
 PRISON LEGAL NEWS v. LEHMAN 1293
considered for purposes of determining qualified
immunity).

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 fac-
tual 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 ver-
sion of events offered by the nonmoving party is correct. Wil-
kins, 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. Botosan v. Paul McNally Realty,
216 F.3d 827, 830 (9th Cir. 2000). We apply the same stan-
dard 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 sub-
stantive 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

[1] We first consider whether the district court correctly
found that PLN was entitled to summary judgment on its
1294 PRISON LEGAL NEWS v. LEHMAN
claims that the ban on non-subscription bulk mail and cata-
logs 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
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.

[2] Publishers have a First Amendment right to communi-
cate with prisoners by mail, and inmates have a First Amend-
ment right to receive this mail. PLN I, 238 F.3d at 1149
(citing Thornburgh v. Abbott, 490 U.S. 401, 408 (1989)). But
this right is subject to “substantial limitations and restrictions
in order to allow prison officials to achieve legitimate correc-
tional 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 peno-
logical interests.” Turner v. Safley, 482 U.S. at 89.

In Turner, the Supreme Court laid out a four-factor 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 allo-
cation of prison resources; and (4) whether the exis-
tence of easy and obvious alternatives indicates that
the regulation is an exaggerated response by prison
officials.
 PRISON LEGAL NEWS v. LEHMAN 1295
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 legiti-
mate 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 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); Morri-
son, 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 contra-
band 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 non-profit mail, 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.

[3] 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 con-
1296 PRISON LEGAL NEWS v. LEHMAN
tained 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.

[4] 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 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,
“[P]rohibiting inmates from receiving mail based on the post-
age rate at which the mail was sent is an arbitrary means of
achieving the goal of volume control.” Morrison, 261 F 3d at
903-04.

[5] 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 regula-
tion, it is irrational to prohibit prisoners from receiving bulk
rate mail and catalogs on the theory that it reduces fire haz-
ards because the DOC already regulates the quantity of pos-
sessions that prisoners may have in their cells. See Morrison,
261 F.3d at 902 (holding that “[a]lthough the number of sub-
scription for-profit publications that enter the OSP may be
greater than the number of subscription non-profit publica-
tions, because the OSP already regulates the quantity of pos-
sessions 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”).

[6] Finally, we reject the DOC’s proposition that this regu-
lation 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 reg-
ulation limiting the total amount of property in a cell . . . per-
 PRISON LEGAL NEWS v. LEHMAN 1297
mitting inmates to receive for-profit, subscription publications
could not possibly increase the total volume of cell materi-
als.”); PLN I, 238 F.3d at 1151 (determining that a ban on
non-profit subscription publications “is not rationally related
to the Department’s interest in rendering efficient cell search-
es”).

It should be noted that PLN was not sending mail to Wash-
ington’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 (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.

[7] The only way to distinguish this case from Morrison
and PLN I is that the inmates in this case did not 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, “[t]he sender’s inter-
est 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 let-
ters 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.
1298 PRISON LEGAL NEWS v. LEHMAN
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 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 indistinguish-
able from the fifteen to thirty pieces of mail that were prohib-
ited by the ban at issue in PLN I, an amount which we held
was “minimal.” PLN I, 238 F.3d at 1151.

[8] 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 cata-
logs that are not delivered under the ban violates the Due Pro-
cess clause as explained in Procunier v. Martinez, 416 U.S.
396 (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 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

[9] 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
 PRISON LEGAL NEWS v. LEHMAN 1299
forth the test to be applied in determining whether state actors
are entitled to qualified immunity. “The first step is to deter-
mine 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 (2001)). Having
determined that the ban on non-subscription bulk mail and
catalogs is unconstitutional, we must now decide whether the
officials’ actions “violate[d] clearly established statutory or
constitutional rights of which a reasonable person would have
known.” Harlow v. Fizgerald, 457 U.S. 800, 818 (1982) (cita-
tions omitted). In determining whether PLN’s rights in this
case were clearly established, and whether a reasonable per-
son 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, “[W]e held that prohibiting inmates’
receipt of non-profit bulk mail was unconstitutional.”
Bahrampour, 356 F.3d at 977 (emphasis in original). PLN
also points 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 con-
flicts with the law of this circuit, it was not reasonable for the
officials to look to other circuits in light of binding precedent.

[10] The prison officials argue that a ban in this case is suf-
ficiently different from the bans that the Court struck down in
PLN I and Morrison, that the law was not clearly established,
1300 PRISON LEGAL NEWS v. LEHMAN
and that the officials did not act unreasonably. One paragraph
from the Court’s decision in Morrison is sufficient to demon-
strate 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, commer-
cial 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 prison-
ers from “possessing . . . 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, edu-
cational, or scientific value.” 15 Cal. Admin. Code
§ 30006(c)(11). Unlike the [the regulation at issue in
Morrison], the CDC regulation is specifically tai-
lored to permit inmates to receive for-profit, sub-
scription 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 cat-
alogs 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 may not be rebutted by evi-
dence that the defendant’s conduct was malicious or other-
wise improperly motivated.” Crawford-El v. Britton, 523 U.S.
574, 588 (1998). We may properly decide whether the prison
 PRISON LEGAL NEWS v. LEHMAN 1301
officials are entitled to qualified immunity without consider-
ing PLN’s evidence that they acted with impure motives.

C

We must consider whether the district court erred in refus-
ing to grant qualified immunity to the prison officials regard-
ing 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 pre-
cisely 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 correct. Wilkins
v. City of Oakland, 350 F.3d 949, 951 (9th Cir. 2003).

[11] The DOC’s policy regarding 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

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 pro-
hibiting mail that could create a risk of violence and physical
harm to any person is constitutional on its face. PLN II, 272
1302 PRISON LEGAL NEWS v. LEHMAN
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 deter-
mine on this record whether the prison officials are entitled to
qualified immunity. PLN contends that the DOC’s policy was
applied by the prison officials in a manner that singled out
PLN for discriminatory treatment, while allowing other pub-
lishers to deliver similar material. PLN challenges the DOC’s
refusal to deliver more than one hundred specific legal docu-
ments.

[12] PLN suggests that the real motive of the prison offi-
cials 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 quali-
fied 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 Amend-
ment 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 ban-
ning the receipt of the third-party legal materials.

Conclusion

The district court properly granted summary judgment to
PLN regarding the ban on non-subscription bulk mail and cat-
alogs, 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 deci-
sion to deny the prison officials’ motion for summary judg-
ment based on qualified immunity regarding PLN’s third-
 PRISON LEGAL NEWS v. LEHMAN 1303
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.