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NOT FOR PUBLICATION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
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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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