Joseph M. Allen v. Mark Miller

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOSEPH M. ALLEN,

Plaintiff-Appellant,

v.

MARK MILLER,

Defendant-Appellee,

and

SCOTT HAUKINS, Property Sergeant; et
al.,

Defendants.

No. 19-35323

D.C. No. 2:17-cv-01625-JCC

MEMORANDUM
*

Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding

Submitted August 4, 2020
**

San Francisco, California

Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit
Judges.

*
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).
FILED

AUG 6 2020

MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

2
Joseph Allen appeals the district court’s dismissal of his 42 U.S.C. § 1983
action. We review de novo the district court’s order granting Mark Miller’s
motion for summary judgment. See Frost v. Symington, 197 F.3d 348, 353 (9th
Cir. 1999). We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
The district court correctly held that Mark Miller is entitled to qualified
immunity for each of Allen’s three constitutional claims. When a defendant raises
a qualified immunity defense, we ask “whether the plaintiff’s allegations, if true,
establish a constitutional violation.” Wilkins v. City of Oakland, 350 F.3d 949, 954
(9th Cir. 2003). We further inquire whether “the actions alleged violate a clearly
established constitutional right, where ‘clearly established’ means that ‘it would be
clear to a reasonable officer that his conduct was unlawful in the situation he
confronted.’” Id. (emphasis in original) (quoting Saucier v. Katz, 533 U.S. 194,
202 (2001)). Failure to meet either prong is sufficient to sustain the defendant’s
qualified immunity defense. See Pearson v. Callahan, 555 U.S. 223, 236 (2009)
(holding that either prong of the qualified immunity test can be addressed first).
Allen first alleges that Miller retaliated against him in response to his
protected conduct, in violation of the First Amendment. In the prison context, a
retaliation claim has five elements: “(1) An assertion that a state actor took some
adverse action against an inmate (2) because of (3) that prisoner’s protected
conduct, and that such action (4) chilled the inmate’s exercise of his First

3
Amendment rights, and (5) the action did not reasonably advance a legitimate
correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005)
(footnote omitted). Importantly, “a plaintiff must show that his protected conduct
was the substantial or motivating factor behind the defendant’s conduct.”
Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (internal quotation marks
removed) (quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th
Cir. 1989)).
Allen has failed to allege facts that establish that Miller’s search and
confiscation did not reasonably advance a legitimate correctional goal. At least
some of the confiscated artwork was sexual in nature, which is prohibited as
“sexually explicit material” in Washington correctional facilities by the
Washington Administrative Code. See Wash. Admin. Code § 137–48–020(13).
The district court therefore correctly held that Miller was entitled to qualified
immunity on Allen’s retaliation claim.
Second, Allen argues that Miller’s confiscation of his artwork constitutes a
constitutional violation of his First Amendment right to freedom of expression. A
reasonable officer could have believed that confiscating Allen’s sexually explicit
artwork was consistent with the First Amendment. We have previously upheld a
correctional regulation that prohibited inmates from possessing materials depicting
“frontal nudity” on the basis that it was reasonably related to legitimate

4
penological interests such as jail security and the reduction in sexual harassment of
female officers. See Mauro v. Arpaio, 188 F.3d 1054, 1058–59 (9th Cir. 1999).
Washington state similarly prohibits sexually explicit materials in its correctional
facilities and Miller could have reasonably believed that Allen’s confiscated
artwork was prohibited under the relevant administrative regulations. See Wash.
Admin. Code § 137–48–020(13). Miller is therefore entitled to qualified immunity
with respect to Allen’s First Amendment claim.
Finally, Allen alleges a Fourteenth Amendment claim for deprivation of
personal property. Here too Miller is entitled to qualified immunity because where
a state employee engages in a random, unauthorized deprivation of property, either
negligently or intentionally, there is no cognizable constitutional violation so long
as the state provides an adequate post-deprivation remedy. See Hudson v. Palmer,
468 U.S. 517, 533 (1984). Washington state provides an adequate post-deprivation
remedy and so Allen lacks a cognizable constitutional claim. See Wash. Rev.
Code §§ 4.92.090–.100.
AFFIRMED.