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Perkins v. Demeyo

United States District Court, District of Nevada

November 6, 2014

Mark Harrison Perkins, Plaintiff
v.
Anthony Demeyo et al., Defendants

Mark Harrison Perkins, Plaintiff, Pro se, Pahrump, NV.

For Anthony Demeyeo, Sheriff of Nye County, Geathridge, Sargent, Lt. M. Dolphin, Defendants: Brian R. Hardy, Marquis Aurbach Coffing, Las Vegas, NV; Craig R. Anderson, Marquis & Aurbach, Las Vegas, NV.

ORDER GRANTING PARTIAL SUMMARY JUDGMENT [Doc. 13]

Jennifer A. Dorsey, United States District Judge.

This civil-rights action arises out of former detainee Mark Perkins's challenge of how officials at the Nye County Detention Facility (" NCDF") handled his mail.[1] Perkins sues Nye County Sheriff Anthony DeMeo and NCDF officers Lt. Dolfin and Sgt. Guthridge, who move for summary judgment.[2] The defendants' motion challenges only Perkins's claims arising from NCDF's mail policy under Turner v. Safley . I consider and grant summary judgment on Perkins's First Amendment challenge to the mail policy itself, which is liberally construed as counts one and three in the court's August 28, 2012, screening order.[3] This ruling does not fully resolve Perkins's claims. Perkins also raises an access-to-the-courts claim, construed as count two in the screening order, which defendants do not address in their summary-judgment motion.[4] Thus, I grant summary judgment only on the mail-policy counts, leaving the access-to-courts claim for further adjudication.

I also liberally construe all pro-se motions and pleadings. See Bernhardt v. L.A. Cnty., 339 F.3d 920, 925 (9th Cir. 2003). Plaintiff was timely provided with the notice required under Rand v. Rowland, 154 F.3d 952 (9th Cir. 1998) (en banc), Wyatt v. Terhune, 315 F.3d 1108 (9th Cir. 2003), and Klingele v. Eikenberry, 849 F.2d 409 (9th Cir. 1988).

Background

Perkins was booked into NCDF on March 7, 2012, as a pretrial detainee.[5] His first cause of action alleges that NCDF's mail policy, which permits only postcards and prohibits letters, violates his First Amendment right to free speech.[6] He alleges that he " could write only 198 words" on a standard three inch by five inch postcard; [7] on both sides of a letter-sized sheet, he could fit an average of 4, 860 words.[8] He further alleges that, because of this policy, he never received a $495 paycheck his mother sent him, nor was it returned to her; [9] and when he filed a grievance, he was told that " the post office must be to blame." [10] In addition, Perkins never received postcards from two friends, and the cards were also not returned to the senders.[11]

Perkins's second claim alleges a violation of his Sixth and Fourteenth Amendment " right to access courts by writing [people] to assist [him] in legal work." [12] He further alleged that, since he dismissed his attorney, he lacks " access to current federal case law in [unintelligible] law library." [13] He also contends that " the jail law library is inadequate" [14] and he " can't collect [his] own evidence" without the help of family and friends.[15] He alleges he filed a grievance over the mail policy, which was denied, and he believes it is pointless to seek his family's aid because Sgt. Guthridge told him that legal mail with " so much as a note [written] on it" would be discarded.[16] He alleges that the discard process is subject to a deputy's whim and that NCDF has " no accountability for the mail." [17]

Perkins's third and final claim is for violation of his Fourteenth Amendment rights " by not providing a process of denial of each particular piece of censored mail." [18] He believes his $495 paycheck was thrown away; when he asked to write his employer about it, he was told that he had to inquire via postcard.[19] In addition, he alleges that deputies gave him conflicting answers about his mail.[20]

At NCDF, inmate mail is divided into two categories. Privileged mail is legal correspondence between a detainee and his attorney.[21] Non-privileged mail covers all other mail, including letters and packages.[22] Nye County processes approximately 75 to 100 pieces of mail for 150 inmates each day; during holidays, the amount of mail increases.[23] As attempts to smuggle contraband in non-privileged mail grew, the County had to redirect substantial staff time from inmate security to mail security.[24] Glue on postage stamps and envelopes was used to smuggle heroin, phencyclidine (PCP), lyseric acid diethylamid (LSD), cocaine, body fluids, and other substances.[25] Notepad bindings were hollowed for items like handcuff keys, weapons, and saw blades.[26] All these items increase the risk of violence at NCDF, whether by direct use or because inmates trade contraband like money.[27] As a result, the county sheriff created a mail policy that limits the kinds of inmate mail NCDF officials must handle. The result was less smuggling, more prison-security monitoring, and more time to supervise personal visitation.[28]

Both Perkins and the defendants characterize the mail policy as a postcards-only policy.[29] Nye County Assistant Sheriff Richard Marshall states in his sworn declaration that " [t]he Mail Policy provides that inmates can receive an unlimited number of mail pieces, without any restriction on the content of the communication, so long as the communication is written in ink on a common post card." [30] He also states that the mail policy does not impact privileged mail " in any manner." [31]

A review of NCDF's mail policy itself indicates that, for the most part, inmates may only send and receive postcards.[32] Payroll and cashier checks must arrive in an envelope with no other contents; personal checks are returned.[33] The policy permits exceptions to the postcards-only rule including packages preapproved by NCDF staff.[34] Legal mail apparently is not exempted, but is " handled according to Policy." [35] Only loose paper contents are accepted for legal mail--all " paper clips, staples or binders shall be removed first" --and drawings are prohibited on the outside of all mail. Nothing is specified about notes written on mailed sheets of paper, though pencil and certain types of ink are allowed, while other types of ink are specifically disallowed.[36] When mail is rejected, it may be returned to the sender with " a copy of the current mail policy." [37] If the mail is confiscated without being returned, NCDF will place it in the inmate's property until he is released.[38]

Discussion

Summary judgment is appropriate when the pleadings and admissible evidence " show there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." [39] When considering summary judgment, the court views all facts and draws all inferences in the light most favorable to the nonmoving party.[40] If reasonable minds could differ on material facts, summary judgment is inappropriate because the purpose of summary ...


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