James Dirk Roberts v. Craig Apker;

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES DIRK ROBERTS,
Plaintiff - Appellant,
v.
CRAIG APKER; et al.,
Defendants - Appellees.
No. 12-15302
D.C. No. 4:09-cv-00181-RCC
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Raner C. Collins, Chief District Judge, Presiding
Argued and Submitted April 7, 2014
Pasadena, California
Before: BRIGHT,** FARRIS, and HURWITZ, Circuit Judges.
The Plaintiff, James Roberts, was a convicted sex offender housed in a
penitentiary classified as a Sex Offender Management Program site. Beginning in
March 2009, Roberts began receiving notices that his mail was being rejected for
FILED
APR 17 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Myron H. Bright, Senior Circuit Judge for the U.S.
Court of Appeals for the Eighth Circuit, sitting by designation.

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containing “sexually suggestive” photographs. The photographs were
commercially produced, individual photos of women in various states of undress
and sex-related poses—most contained no full-frontal nudity, and none depicted
sexual acts. The rejections were pursuant to an official memorandum that
prohibited receipt of incoming photographic material that “depicts sexually
suggestive posing,” and required that the photos be returned to the sender without
any chance for the inmate to review it. Roberts sued the prison officials who
created and implemented that policy for money damages under Bivens v. Six
Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971),
alleging First and Fifth Amendment violations. The district court granted summary
judgment in favor of the officials, finding no Constitutional violations, and also
finding that the Defendants were entitled to qualified immunity. Roberts now
appeals. All claims in this case are reviewed de novo as questions of law or
constitutional rulings resolved on summary judgment. Al Haramain Islamic
Found., Inc. v. U.S. Dept. of Treas., 686 F.3d 965, 976 (9th Cir. 2012). We have
jurisdiction under 28 U.S.C. § 1291.
Government officials are protected by qualified immunity when sued in their
personal capacity. Acosta v. City of Costa Mesa, 718 F.3d 800, 824 (9th Cir. 2013).
Officials are not liable unless (1) the official violated a constitutional right of the
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Plaintiff, and (2) that right was clearly established. Id. We may decide to answer
these questions in whatever order we wish, and if we find that one prong is not
satisfied we need not continue on to the second. Id. We find no Constitutional
violations.
First Amendment claims in the prison context are reviewed under the four-
part framework of Turner v. Safley, 482 U.S. 78 (1987). See Bahrampour v.
Lampert, 356 F.3d 969, 973-76 (9th Cir. 2004). Rejection of incoming mail that is
“sexually explicit” was upheld by this court in Bahrampour, 356 F.3d at 972.
Rejection of incoming mail that contains full-frontal nudity was upheld in Mauro
v. Arpaio, 188 F.3d 1054, 1063 (9th Cir. 1999). Given the baselines of
Bahrampour and Mauro, we need only ask whether anything changes in the
context of a convicted sex offender housed in a prison containing other such
offenders when the application of the Turner factors moves from content that is
“sexually explicit” (depicts actual or simulated sexual acts, Bahrampour, 356 F.3d
at 972) or contains full-frontal “nudity” to content that is only “sexually
suggestive” (depicts sexual “posing”).
The answer is “no.” This case is nearly indistinguishable from Mauro and
Bahrampour: “sexually suggestive” images are nearly indistinguishable from
“sexually explicit” or “nude” images with respect to the threats they pose to
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prisons—all categories contain sexually arousing content. The Plaintiff cannot
point to any reason—nor can we conceive of any—why the Turner analysis would
come out differently with respect to the images at issue, particularly in the context
of this case. All of the observations made in Mauro and Bahrampour are equally
applicable here.
Prisoners do have a liberty interest in receiving mail, and therefore they are
entitled to some procedural due process when they are deprived of that mail. See
Krug v. Lutz, 329 F.3d 692, 696 (9th Cir. 2003). Three baseline protections must
be afforded: (1) notice to the inmate of the rejection, (2) a reasonable opportunity
to appeal the rejection, and (3) review by an independent official. See Martinez,
416 U.S. at 418-19; Krug, 329 F.3d at 697 (independent, 2-level review); Frost v.
Symington, 197 F.3d 348, 353 (9th Cir. 1999) (notice). Roberts argues that two
rights flow from the Martinez requirement of being “given a reasonable
opportunity to protest” a decision: (1) a right for prisoners to review rejected mail,
and (2) a right to require prisons to retain that mail (or at least copies of it) for
purposes of appeal.
In assessing whether the process afforded to an inmate is adequate, three
factors must be considered: (1) the private interest affected by the official action,
(2) the risk of erroneous deprivation of that interest using the procedure in place
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and the probable value of alternate safeguards, and (3) the governmental interest,
including financial and administrative cost, that additional safeguards would
impact. Al Haramain Islamic Found., Inc., 686 F.3d at 979; State of California ex
rel. Lockyer v. F.E.R.C., 329 F.3d 700, 709 n.8 (9th Cir. 2003) (this is the “general
test that applies in all but a few contexts”).
The first factor weighs against the Plaintiff: although he has a strong interest
in receiving publications more generally, a sex offender’s interest in receiving
sexually suggestive publications while in a sex-offender treatment program is
essentially zero. The second factor weighs only slightly in favor of him: while it is
probably true that fewer non-sexually suggestive publications would be
erroneously rejected were a third set of eyes to review them (a second-level review
is already guaranteed), this risk of error is low to begin with, given that this is a
simple pictorial assessment. The third factor weighs strongly against the Plaintiff:
the government has an interest in entirely preventing sex offenders from viewing
potentially sexually suggestive materials. Viewing the material, however briefly,
undermines the goal of offender rehabilitation. A prisoner could get his or her “fix”
by arranging for a publication to be sent and rejected, all so that he or she could get
a chance to inspect the picture on appeal and satisfy his or her urges. Moreover, a
requirement that the prison retain the photographs indefinitely for purposes of
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appeal would create an administrative and fiscal burden; the authorities here
retained photocopies of the pictures, and that is sufficient to allow review if a
grievance if filed. A standard post-deprivation remedy is thus sufficient: should the
prisoner win in the end, he or she can always have the mail re-sent. See Sorrels v.
McKee, 290 F.3d 965, 972 (9th Cir. 2002) (if post-deprivation remedy in prison
mail context is sufficient then no pre-deprivation procedures need be afforded).
AFFIRMED.
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