Thompson v. Ivy

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
CARL K. THOMPSON,
Plaintiff,
vs.
DANA IVY, Mailroom Officer at WCC,
Defendant.
Case No. 3:21-cv-00069
ORDER DISMISSING CASE
(Docket 10)
I. 	BACKGROUND
Plaintiff, Carl Thompson, filed a pro se § 1983 Complaint with this
Court against the Commissioner of the Alaska Department of Corrections (“DOC”)
and the mailroom officer at Wildwood Correctional Complex (“WCC”), where
Plaintiff is incarcerated.1 According to the First Amended Complaint, Defendant
Ivy returned three pieces of mail sent to Plaintiff because one envelope was “non-
white” and two envelopes had “address labels affixed” to them.2 The Complaint
alleges violations of the First Amendment and due process. Plaintiff seeks damages
of six dollars ($6.00), a declaration that Plaintiff has a guaranteed right to receive
1 Docket 5.
2 Id.
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mail, and an order requiring Defendants to “cease enforcement of DOC Policy
810.03 II C 1 & 5.”3 The First Amendment claim was previously dismissed, and the
Commissioner was dismissed as a defendant, leaving only the mailroom officer as a
defendant.4
This Court offered to facilitate a settlement between the parties on the
due process issues, which Defendants declined.5 Instead, the sole remaining
defendant wishes to proceed with the Motion to Dismiss, construed by this Court as
a Motion for Summary Judgment.6 Plaintiff has opposed Plaintiff’s Summary
Judgment motion, which the Court construes as a Cross-Motion for Summary
Judgment.7 Both parties have filed additional responses.8
II. 	DOC POLICIES AND PROCEDURES
The DOC Policies and Procedures (“P&P”) regarding Prisoner Mail,
Publications and Packages are found at DOC P&P 810.03.9 Under “General
Information,” subsection II.C prohibits “non-white” envelopes and those with
adhesives, at paragraphs 1 and 5 (hereinafter “Unopened Policy”). Such items are
3 Docket 5 at 8.
4 Docket 7.
5 Dockets 9 & 12.
6 Dockets 10, 11, & 15.
7 Docket 16.
8 Dockets 17 & 18.
9 See Docket 18-1.
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not delivered to the prisoner and, according to the Policy, are to be returned to the
sender, unopened.
Envelopes 	which 	cannot 	be 	effectively 	searched 	may
provide a means of introducing controlled substances (for
example Suboxone or Fentanyl) into an institution, posing
a threat to the safety of individuals. 	Unless received
directly from an approved vendor or publisher, or marked
as “Privileged” mail the following envelopes [including
non-white envelopes and those with adhesives] will not be
accepted by mail staff and shall be returned, unopened,
to the sender.10
Under “Disposition of Prohibited Material,” subsection VI.C addresses “Non-
Delivery of Mail,” but only addresses opened incoming mail (hereinafter the
“Opened Mail Policy”):
If mail staff opens mail and decides that it is prohibited,
staff shall give notice to the affected persons as described
below . . . (1) Non-Delivery of Incoming Mail: Mail staff
shall send the prisoner written notice within two (2)
working days after receiving the prohibited mail, that
states 	the 	specific 	reason(s) 	why 	the 	mail 	was 	not
delivered to the prisoner. 	The Prisoner Mail Action
Form (Attachment A) may be used to notify the prisoner
of the prohibited mail. The Superintendent or designee
must sign the notice.11
Section X states that a “prisoner may file a grievance regarding any
action that the Department takes concerning this policy.”12 The PRISONER MAIL
10 Alaska Department of Corrections Mail Policy, DOC Form 810.03A [Rev. 02/02/17].
https://doc.alaska.gov/pnp/pdf/810.03.pdf (emphasis added).
11 Id. (emphasis added).
12 Id.
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A CTION FORM (hereinafter “the form”) is used to inform prisoners of actions taken
with respect to both opened and unopened mail.
III. 	DISCUSSION
A. 	First Amendment Argument
This Court previously dismissed Plaintiff’s First Amendment claim,13
but as it informs the due process argument, a brief explanation is provided herein.
The issue of returning a prisoner’s incoming mail to sender was addressed by the
District of Oregon on very similar facts, and affirmed by the Ninth Circuit in an
unpublished opinion.14 The court found that “prohibiting stickers and adhesives on
incoming mail does not deprive prisoners of their right to send and receive mail;
rather, inmates can still receive mail that is free from contraband adhesives, and
senders have the opportunity to resend their letters after correcting the identified
violations.”15
The alternative suggested by Plaintiff is reasonable and seems no more
cumbersome than the current system.16 But, for the reasons discussed in Jeffries and
13 Docket 7.
14 See Jeffries v. Snake River Corr. - Oregon, No. CIV. 05-1851-JO, 2008 WL 3200802, at *4 (D.
Or. Aug. 4, 2008), aff'd, 362 F. App'x 587 (9th Cir. 2010).
15 Id. at *4.
16 The current system at WCC involves returning unopened mail after photocopying the envelope
and completing and distributing a Prisoner Mail Action Form. Plaintiff suggests that WCC should employ
the system used at other facilities in the state, where the outer envelope is photocopied and delivered to the
prisoner with the screened contents of the envelope. Defendants argue that that system is too cumbersome.
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this 	Court’s 	prior 	order, 	Plaintiff’s 	First 	Amendment 	claim 	previously 	was
dismissed.17
B. 	Due Process Arguments
While the rejection of Plaintiff’s mail is a First Amendment issue, a
lack of notice of such rejection involves due process.18 Due process guarantees apply
“when a constitutionally protected liberty or property interest is at stake.”19
Defendant asserts that “it is questionable whether an inmate has a right to receive
notice when mail is returned, unopened, for facial deficiencies.”20
Defendant is wrong. 	It is well-established that prisoners have “a
Fourteenth Amendment due process liberty interest in receiving notice that [their]
incoming mail is being withheld by prison authorities.”21 Additionally, deprivation
caused by “conduct pursuant to established state procedure” states a § 1983 claim,
and “post-deprivation remedies [will] not satisfy due process.”22 The Ninth Circuit
has specifically held that “if the failure to provide notice was pursuant to prison
policy . . . this constitute[s] a due process violation actionable under § 1983.”23
17 Docket 7.
18 Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir. 2002).
19 Prison Legal News v. Cook, 238 F.3d 1145, 1152 (9th Cir. 2001), citing Board of Regents v.
Roth, 408 U.S. 564, 569 (1972).
20 Docket 17 at 4.
21 Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999).
22 Sorrels, 290 F.3d at 972, citing Hudson v. Palmer, 468 U.S. 517, 532 (1984).
23 Sorrels, 290 F.3d at 972 (emphasis added).
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In this case, however, Plaintiff was provided notice. 	And Defendant
argues that the DOC Policies and Procedures “do not create a state liberty interest
that required Ms. Ivy to obtain the Superintendent’s signature or to provide
Mr. Thompson the opportunity to file a grievance prior to returning unopened mail
that is rejected for facial deficiencies.”24 The issue before this Court, therefore,
is whether the notice was adequate to satisfy the “minimum procedural
safeguards” 	required 	by 	due 	process.25 Plaintiff 	alleges 	the 	notice 	was
inadequate, and therefore violated due process, for two reasons: (1) it was not signed
by the Superintendent,26 and (2) he was not permitted to consider how he wanted to
dispose of the mail. 27
1. 	Failure to obtain Superintendent signature
The mail clerk signed each of the forms as the “Mail Officer,” but left
the “Superintendent/Designee” line blank.28 Defendant asserts that unopened mail
does not require a superintendent signature, pursuant to the Unopened Policy, and
that only the Opened Mail Policy requires a superintendent’s signature on the form.29
But 	the 	Court 	notes 	that, 	although 	the 	Policy 	does 	not 	clearly 	require 	the
24 Docket 17 at 1-2.
25 Sorrels, 290 F.3d at 972 (“It is undisputed that “withhold[ing] delivery of [inmate mail] must be
accompanied by minimum procedural safeguards.”)
26 Docket 5 at 5; Docket 5-5.
27 Docket 5 at 4.
28 See Dockets 11-2, 11-3, & 11-4.
29 Docket 11 at 6.
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Superintendent’s 	signature 	before 	returning 	unopened 	mail, 	neither 	does 	it
specifically state that it is not required, as Defendant suggests. The Policy is silent
regarding the Superintendent’s signature with respect to returning unopened mail.
Defendant states that despite the understanding that notice is not
required, the facility routinely provides prisoners with notice that their unopened
mail was returned to sender.30 Plaintiff does not dispute receipt of three such notices,
but he cries foul at the distinction between opened and unopened mail. He argues
that minimum due process afforded to opened mail should also apply to unopened
mail that the mail officer finds unacceptable, as review by the superintendent would
“operate as a check on the Mail Officer’s authority to determine what is ‘non-
acceptable’ or ‘prohibited’ mail, or whether the prisoner can satisfactorily explain
why his mail should not be deemed prohibited.”31
2. 	Disposition of rejected mail
Plaintiff also argues that the forms provided to him after his mail had
been returned to the senders indicated that he had three working days to notify the
mail officer of what he wanted done with the three envelopes, which options
included: 	“Mail the item, at the prisoner’s expense to a family member/friend,”
“Return the item, at the prisoner’s expense to the sender,” or “Dispose of the item,
30 Docket 17 at 4. Implicit in Defendant’s argument is that there could be no due process violation
for failure to obtain the Superintendent’s signature, because submission of the form to Plaintiff was a
courtesy, rather than a requirement.
31 Docket 5 at 5.
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at no cost to the prisoner.”32 Plaintiff was afforded none of these options, as the
three letters immediately were returned to sender, which Plaintiff alleges was a
denial of due process. Defendant maintains that these options are not available with
respect to unopened mail.
IV. 	ANALYSIS
Although courts must give “substantial deference to the professional
judgment of prison administrators,”33 prison administrators cannot implement
policies or forms that eliminate due process rights. 	“When a prison regulation or
practice 	offends 	a 	fundamental 	constitutional 	guarantee, 	federal 	courts 	will
discharge 	their 	duty 	to 	protect 	constitutional 	rights.”34 Accordingly, 	when
considering whether the minimum standards of due process are met, this Court is not
bound by the DOC Policies and Procedures. Prisoners’ due process liberty interest
in receiving notice that mail is being withheld35 is meaningless if that notice is not
adequate and fairly rendered.
The DOC PRISONER MAIL A CTION FORM36 is the form used by the DOC
to inform an inmate when opened or unopened mail has been returned, conflating
32 Docket 5 at 4, citing Page 1-3. See also Dockets 5-5, 11-2, 11-3, & 11-4.
33 Beard v. Banks, 548 U.S. 521, 528 (2006) (citing Overton v. Bazzetta, 539 U.S. 126, 132 (2003)).
34 Procunier v. Martinez, 416 U.S. 396, 405–06 (1974), overruled on other grounds by Thornburgh
v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989).
35 Frost, 197 F.3d at 353; see also Sorrels, 290 F.3d at 972 (“It is undisputed that “withhold[ing]
delivery of [inmate mail] must be accompanied by minimum procedural safeguards.”)
36 DOC Form 810.03A [Rev. 02/02/17].
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the Unopened and Opened Policies. 	The form contains three sections, including
“Incoming Mail,” “Outgoing Mail,” and “Prohibited Mail/Publication Disposition
Options,” with each of these containing additional subsections. Much of the form is
irrelevant to Plaintiff’s situation.37
When the form is broken down into the parts that are relevant to this
case, the form reads as follows.38 On the first page:
[T]he above mail was 	not delivered to you as it is
prohibited [P&P 810.03, V.] for the below reason(s).39
Note: 	If 	one 	(1) 	item 	in 	an 	envelope/package 	is
prohibited, 	the 	entire 	envelope 	or 	package 	will 	be
considered prohibited and non-acceptable. 	No items
may 	be 	removed 	to 	make 	an 	envelope 	or 	package
acceptable. Prisoners must disburse the entire envelope or
package (See Disposition options below.)40
At the end of the second page, the form reads:
For any envelopes, packages or publications that were
prohibited or non-acceptable, please choose one of the
disbursement/disposition options below within three
(3) working days.
The disposition options previously noted follow.
The form gives a prisoner the same disposition options regarding
opened and unopened mail. 	It is entirely reasonable that Plaintiff interpreted the
37 The section regarding “outgoing mail” is not relevant, nor are five of the six options for
“incoming mail” or the numerous paragraphs dedicated to “obscenity.” The location of the signature lines
near the top of the second page, rather than at the end of the form, further confuses a reader.
38 A copy of the form is attached to this Order.
39 In the space below this checkbox, Ivy identified the issues with the three envelopes.
40 Emphasis original to form.
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form to allow him three working days to choose his “disposition option” because
that is literally what the form says.41 Moreover, the public website for WCC states
that:
All incoming and outgoing mail will be scanned and
inspected for prohibited content and contraband per DOC
Policy 810.03, Prisoner Mail, Publications and Packages.
Prisoners receive written notice if their mail is not
delivered or mailed out because of prohibited content or
if it contains contraband or unauthorized items.
. . . .
The prisoner will be given notice to disburse the items within
30 days or they will be disposed of.42 . . .
The WCC website, as well as the form, endeavor to provide for
minimum due process without distinguishing between opened and unopened mail.43
To the extent the DOC policy can be interpreted to suggest that unopened mail can
be returned immediately, before informing the inmate and without any supervisory
review, 	the 	Policy 	does 	not 	comply 	with 	due 	process 	under 	Sorrels, 	as
“withhold[ing] delivery of [inmate mail] must be accompanied by minimum
41 The Court observes that this multi-step process for dealing with non-white envelopes or those
with adhesives may be the reason other facilities opt to just photocopy and discard the envelopes, and
forward it with the screened contents to the prisoner, thus rendering all objectional mail “opened mail.”
However, such procedure is contrary to the express language on the form, which states: “If one (1) item in
an envelope/package is prohibited, the entire envelope or package will be considered prohibited and non-
acceptable. No items may be removed to make an envelope or package acceptable.” But this language is
not found in the P&P.
42 https://doc.alaska.gov/institutions/wildwood-mail (emphasis added) (last visited December 4,
2021). 43 The form itself is confusing, but provides minimum procedural safeguards if used correctly.
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procedural safeguards.”44 Finally, the facility’s failure to properly execute the DOC
form, or to follow the guidelines posted on its own website, is a clear violation of
due process.
V. 	CONCLUSION
To state a claim under 42 U.S.C. § 1983, Plaintiff must assert that
persons, acting under color of state law, deprived him of a right, privilege or
immunity secured by the Constitution or federal law.45 Plaintiff’s Amended
Complaint does so.
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law.46 For
the reasons discussed in this Order, Defendant is not entitled to judgment as a matter
of law. Accordingly, Defendant’s Motion for Summary Judgment at Docket 10
is DENIED.
Furthermore, the Court does find merit to Plaintiff’s claims, in part, and
advises the DOC to clarify its mailroom policies consistent with established case
law. To the extent that the DOC Policy is internally inconsistent, conflicts with the
form, or conflicts with actual practice in various facilities, DOC would be well-
44 290 F.3d at 972.
45 American Mfr. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50 (1999); Johnson v. Knowles, 113
F.3d 1114, 1117 (9th Cir.), cert. denied, 522 U.S. 996 (1997).
46 Fed. R. Civ. P. 56(a).
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advised to reconcile these discrepancies to avoid further due process pitfalls and
lawsuits.
It is hereby ORDERED as follows:
1. 	Inasmuch as Defendant was executing her duties without malice
and pursuant to facility policy, and inasmuch as Plaintiff’s damage request of $6.00
is nominal, the Court will not enter judgment against Ivy;
2. 	In the interest of justice, the Court orders that the $420 filing fee
paid on behalf of Plaintiff be refunded by the Clerk of Court, once Plaintiff files a
Notice in this case providing the appropriate name address for the refund;47
3. 	If it becomes necessary within the next year for Plaintiff to
address this matter further, the Court will waive any filing fee; and
4. 	This matter is DISMISSED WITH PREJUDICE.
IT IS SO ORDERED this 14th day of December, 2021, at Anchorage,
Alaska.
/s/ Ralph R. Beistline
RALPH R. BEISTLINE
Senior United States District Judge
47 The Court notes that the filing fee was paid by “Terry Cline.”
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