Fred Stephens, Appellant V. Department Of Corrections, Respondent

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IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON
FRED STEPHENS,
Appellant,
v.
DEPARTMENT OF CORRECTIONS,
Respondent.
No. 	72950-1-1
DIVISION ONE
UNPUBLISHED OPINION
FILED: 	March 7, 2016
Appelwick, J. —Stephens challenged the constitutionality of a Department of
Corrections policy restricting incoming third-party correspondence. 	The trial court
dismissed his claims on summary judgment. 	Because the Department demonstrated
that the policy was reasonably related to legitimate penological interests of security
and 	safety, 	the trial 	court properly dismissed 	Stephens's claims 	under the 	First
Amendment. 	Stephens's remaining arguments are also without merit. We affirm.
FACTS
Fred Stephens is an inmate currently incarcerated in the Twin Rivers Unit at
the Monroe Correctional Complex. 	RCW 72.09.530 authorizes the Secretary of the
Department of Corrections (Department) to adopt a policy and methods for regulating
incoming and outgoing mail, "consistent with constitutional constraints," that provide

No. 72950-1/2
"maximum protection of legitimate penological interests, including prison security and
order and deterrence of criminal activity."
In accordance with 	RCW 72.09.530, 	the 	Department 	has 	adopted 	Policy
450.100,1 	which 	establishes 	procedures 	"governing 	mail 	services for offenders,
defining staff responsibility for managing mail and maintaining safety and security of
the public, 	staff, 	offenders, 	and facilities." 	Among 	other things, 	Policy 450.100
contains the Department's detailed regulations governing the sending and receipt of
mail. 	The policy also prohibits various types of incoming and outgoing mail, including
mail "that is deemed a threat to legitimate penological objectives." 	The Department
has determined that third-party correspondence, Le,, correspondence or mail from
someone other than the sender, presents a threat to the safety and security of the
facility.
Between October 2013 and April 	2014, 	the Department rejected 	multiple
pieces of Stephens's incoming mail as third-party correspondence. 	In each case, the
rejection involved printed or e-mailed correspondence that was forwarded by a third-
party commercial forwarding agent. 	The forwarded mailings included profiles and
personal communications from pen-pal web sites and two envelopes with unidentified
1Dep't of Corr., Policy 450.100 (revised July 25, 2011) (Mail for Prison
Offenders). 	A copy ofthe Policy appears in the record on review.

No. 72950-1/3
addresses. 	Stephens appealed 	each 	rejection, 	and the 	Department upheld the
rejections. The Department notified Stephens that he could correspond directly via e-
mail through the JPay System (a correctional e-mail system used to communicate
with an offender in a Washington state prison).
In 	May 2014, 	Stephens filed 	this action 	against the Department and two
Department 	employees, 	seeking 	a 	declaratory 	judgment, 	injunctive 	relief, 	and
monetary damages. 	Among other things, 	Stephens alleged that the Department
violated his constitutional rights by rejecting his incoming third-party correspondence.
Stephens claimed that he was entitled to relief under both the federal and state
constitutions.
The 	Department 	moved 	for 	summary 	judgment, 	relying 	primarily 	on 	the
declaration of Roy Gonzalez, a correctional manager responsible for the oversight of
offender mail. 	Gonzalez stated that Policy 450.100 contained a variety of provisions
designed to prevent third-party correspondence, including limiting the processing of
offender 	mail 	by 	other 	inmates, 	limiting 	incoming 	mail 	to 	correspondence 	and
property for the receiving offender, limiting outgoing mail to the correspondence and
property of the sending offender, 	limiting the salutation of non-legal 	mail to the
addressee, and prohibiting mail without an identifiable author or sender.

No. 72950-1/4
Gonzalez explained that the restriction on third-party correspondence through
commercial 	forwarding 	agents 	was 	necessary 	to 	ensure 	the 	safety 	of 	both
Department facilities and the public:
Because these mailings [are] from 	third 	party commercial forwarding
agents, the Department cannot discern the identity of the true sender.
Both 	incoming 	and 	outgoing 	third-party 	mail 	interferes 	with 	the
Department's 	ability 	to 	identify 	parties 	with 	whom 	offenders 	are
corresponding. 	It is important for the Department to know the identity of
people who are corresponding with offenders to ensure they are not
attempting to contact those with whom correspondence is prohibited.
Identifying 	parties 	with 	whom 	offenders 	correspond 	is 	important to
public safety, as many offenders have limitations on whom they may
contact including minor children, victims of their crimes, other offenders,
or individuals who 	may 	have a 	no[-]contact order against particular
offenders. 	Requiring all parties who are corresponding with offenders
to 	properly 	identify 	themselves 	also 	allows 	Department 	staff 	to
accurately assess whether the mail presents security concerns without
having to do extensive research for each piece of mail. 	Without an
identifiable sender or author, the Department cannot accurately discern
whether correspondence is in violation of any no-contact order.
The 	trial 	court 	entered 	summary 	judgment 	in 	favor 	of 	the 	Department.
Stephens appeals.
DISCUSSION
I. 	Standard of Review
We review the trial court's decision on summary judgment de novo. 	Keck v.
Collins, 184 Wn.2d 358, 370, 357 P.3d 1080 (2015). 	We consider the materials
before the trial court and construe the facts and inferences in the light most favorable

No. 72950-1/5
to the nonmoving party. 	Id. Summary judgment is proper only if there is no genuine
issue of material fact. 	CR 56(c); Keck v. Colins, 184 Wn.2d at 370.
II. 	First Amendment
Stephens contends that the Department's restrictions on incoming third-party
correspondence violate his First Amendment right to free speech. 	"A prisoner retains
those First Amendment rights that are consistent with his status as a prisoner or with
the legitimate penological objectives of the corrections system." 	In re Pers. Restraint
of Parmelee. 	115 Wn. App. 273, 281, 63 P.3d 800 (2003). 	"As a condition of
confinement, an inmate's First Amendment right to send and receive mail lawfully
may be restricted by prison regulations reasonably related to legitimate penological
interests." 	Livingston v. Cedeno, 164 Wn.2d 46, 56, 186 P.3d 1055 (2008).
When determining 	whether a 	prison 	regulation 	is reasonably related 	to
legitimate penological goals, Washington courts consider the four factors set forth in
Turner v. Saflev, 482 U.S. 78, 87-89, 107 S. Ct. 2254, 96 L .Ed .2d 64 (1987):
"First, there must be a 'valid, rational connection' between the prison
regulation and the legitimate governmental interest put forward to justify
it. 	Second, courts consider whether there are 'alternative means of
exercising the [constitutional] right that remain open to prison inmates.'
Third, 	courts 	consider 	'the 	impact accommodation 	of the 	asserted
constitutional right will have on guards and other inmates, and on the
allocation of prison resources generally.' 	And fourth, 'the absence of
ready alternatives is evidence of the 	reasonableness 	of a 	prison
regulation.'"
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No. 72950-1/6
Parmelee. 	115 Wn. App. at 282 (alteration in original) (citations omitted) (quoting
Turner, 482 U.S. at 89-90); see also In re Pers. Restraint of Arsenau. 98 Wn. App.
368, 375-76, 989 P.2d 1197 (1999); cf McNabb v. Dep't of Corr., 163 Wn.2d 393,
404-05, 180 P.3d 1257 (2008). 	The Turner analysis applies to prison regulations
restricting incoming mail. 	Thombura v. Abbott, 490 U.S. 401, 413, 109 S. Ct. 1874,
104 L. Ed. 2d (1989). 	Because judgments regarding prison security " 'are peculiarly
within the province and professional expertise of corrections officials,'" courts should
" 'ordinarily defer to their expert judgment' " absent substantial evidence to indicate
an exaggerated response. 	Arsenau, 98 Wn. App. at 375 (quoting Turner, 482 U.S. at
86).
In 	addressing 	the first 	Turner factor, 	the Department 	maintains 	that 	the
incoming third-party mail restriction serves the penological interests of ensuring the
safety and security of the inmates, the Department facilities, and the general public.
Stephens 	does 	not 	dispute 	that 	security 	and 	safety 	are 	legitimate 	and 	neutral
penological objectives. 	Nor does Stephens dispute that the Department has the right
to review certain types of incoming mail to further these penological interests.
As 	explained 	in 	the 	declaration 	of 	Gonzalez, 	third-party 	incoming
correspondence poses a threat to the safety of the inmates, corrections officers, and
the general 	public because the 	Department generally cannot determine the true

No. 72950-1/7
identity 	of 	the 	sender. 	The 	Department 	therefore 	cannot 	ascertain 	if 	the
correspondence involves a prohibited sender. 	As Gonzalez noted, inmates are often
restricted from contacting various individuals, including minor children, victims of the
crime, 	and 	other 	offenders. 	Under 	the 	circumstances, 	the 	Department 	has
demonstrated a valid, rational connection between the restrictions on incoming third-
party correspondence and legitimate penological interests. 	The first Turner factor
favors the validity of the challenged policy.
Stephens 	contends 	the 	Department 	failed 	to 	demonstrate 	a 	rational
connection between the mail restriction and the penological goals, citing Clement v.
Cal. Dep't of Corr., 364 F.3d 1148 (9th Cir. 2004). 	In Clement, the Ninth Circuit
affirmed a trial court injunction against the enforcement of a prison internet mail
policy that prohibited "mail containing material that has been downloaded from the
internet but is not violated if information from the internet is retyped or copied into a
document generated in a word processor program." 	IdL at 1150-51. 	The court found
that the prohibition of "all internet-generated mail" was an arbitrary way to achieve the
intended 	reduction in mail 	volume and 	that the 	evidence failed 	to support the
corrections department's claim that "coded messages" are more likely to be inserted
into internet-generated materials than into word-processed documents. 	]a\ at 1152.
Under the 	circumstances, 	the 	court 	concluded 	that 	the 	mail 	policy 	did 	not

No. 72950-1/8
demonstrate a 	rational connection 	between the policy and 	legitimate penological
interests. 	Id.
Stephens makes no showing that the sweeping ban of internet materials at
issue in Clement bears any resemblance to the more narrow restrictions here, which
are based on the Department's undisputed need to ascertain, in most circumstances,
the identity of individuals who are sending correspondence to inmates. 	Nothing in
Clement 	undermines 	the 	Department's 	policy 	of 	restricting 	incoming 	third-party
correspondence.
The second Turner factor considers whether Stephens has alternative means
for exercising his constitutional rights. 	Stephens asserts that there "is simply no
alternative to the internet." 	But the issue before us is the validity of the third-party
incoming 	mail 	restriction, 	not 	the 	Department's 	internet 	access 	policy. 	The
Department's policy restricts Stephens's ability to correspond through commercial
forwarding 	agents. 	Stephens 	retains 	the 	right 	to 	communicate 	directly 	with
individuals. 	The Department expressly advised Stephens that he was permitted to
conduct direct e-mail correspondence through the authorized JPay system.
The third and fourth Turner factors also weigh 	in favor of the Department's
policy. 	Accommodation 	of 	third-party 	correspondence 	would 	clearly 	impose
significant burdens on Department staff and resources, given the inherent difficulty of
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No. 72950-1/9
determining 	the 	identity 	of the 	sender of forwarded 	correspondence, 	e-mail, 	or
website printouts. 	Stephens asserts that "e-mails and websites are fully traceable"
and that this court should "presume that [website providers] will not participate in
illegal activities." 	But, Stephens fails to indicate how this approach would be feasible
or practical in the prison setting. 	Nor does he indicate how, even if the Department
could reasonably determine the originating IP address (Internet Protocol address—a
numerical 	label 	assigned 	to 	each 	device, 	i.e., 	computer) 	of 	a 	computer, 	that
information would permit identification of the sender.
Stephens also asserts that there is no evidence that internet providers have
facilitated prohibited contact. 	But, even if true, this does not undermine the rational
connection between the restriction on incoming third-party mail and the Department's
safety concerns:
To show a rational relationship between a regulation and a legitimate
penological interest, 	prison officials need 	not prove that the banned
material actually caused problems in the past, or that the materials are
'likely' to cause problems in the future. . . . 	The only question that we
must answer is whether the defendants' judgment was 'rational,' that is,
whether the defendants might reasonably have thought that the policy
would advance its interests.
Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999) (citations omitted).
Based 	on 	a 	consideration 	of 	the 	Turner factors, 	the 	trial 	court 	properly
dismissed Stephens' First Amendment challenge on summary judgment.

No. 72950-1/10
III. 	Article 1. § 5
Stephens contends that the trial court committed "plain error" by failing to
consider 	his 	challenge 	to 	the 	Department's 	incoming 	mail 	policy 	based 	on 	an
independent analysis of Article 1, § 5, the free speech provision of the Washington
Constitution. 	Article 1, § 5 provides "Every person 	may freely speak, write and
publish on all subjects, 	being responsible for the abuse of that right." 	Stephens
asserts that article 1, § 5 independently mandates broader protection for an inmate's
free speech rights than the First Amendment of the United States Constitution. 	He
argues that under the State constitution, he therefore "has the same right to receive
internet speech as other citizens," unless the 	Department demonstrates that the
incoming third-party mail policy furthers a substantial government interest. Stephens
has not provided any coherent legal theory or citation to relevant authority to support
his sweeping claims.
It is undisputed that article 1, § 5 provides broader constitutional protection in
some circumstances and 	is subject to 	independent interpretation. 	See State v.
Reece, 110 Wn.2d 766, 778, 757 P.2d 947 (1988); Bradburn v. N. Cent. Rea'l Library
Dist.. 168 Wn.2d 789, 800, 231 P.3d 166 (2010). 	Our Supreme Court has noted that
no greater protection than the First Amendment "is afforded to obscenity, speech in
nonpublic 	forums, 	commercial 	speech, 	and 	false 	or 	defamatory 	statements."
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No. 72950-1/11
Bradburn, 168 Wn.2d at 800; City of Seattle v. Huff, 111 Wn.2d 923, 926, 767 P.2d
572 (1989): Nat'l Fed'n of Retired Persons v. Ins. Comm'r, 120Wn.2d 101, 119, 838
P.2d 680 (1992); 	Richmond v. Thompson. 	130 Wn.2d 368, 382, 922 P.2d 1343
(1996).
Contrary to Stephens' suggestions, the relevant inquiry
must focus on the specific context in which the state constitutional
challenge is raised. 	Even where a state constitutional provision has
been subject to independent interpretation 	and found 	to be 	more
protective 	in 	a 	particular 	context, 	it 	does 	not 	follow 	that greater
protection is provided in all contexts.
Ino Ino. Inc. v. Citv of Bellevue, 132 Wn.2d 103, 115, 937 P.2d 154 (1997) (sexually
explicit dance did not warrant application of the more protective time, place, and
manner analysis developed under art. 1, § 5). 	In undertaking this analysis, courts
should use the nonexclusive criteria set forth in State v. Gunwall, 106 Wn.2d 54, 720
P.2d 808 (1986), to determine "whether the state constitution ultimately provides
greater protection than its corresponding federal provision." 	Ino Ino v. Bellevue, 132
Wn.2d at 114-15.
In support of his claim that article 1, § 5 is more protective of an inmate's
incoming mail rights than the First Amendment, Stephens provides no meaningful
legal argument. 	Rather, he relies on broad generalizations of free speech rights and
citations from various cases taken out of context. 	Nor has he provided an adequate
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No. 72950-1/12
analysis of the Gunwall factors. 	We therefore decline to address Stephens's claim
that article 1, § 5 provides greater protection than the First Amendment in the context
of the challenged mail policy. 	See Saunders v. Lloyd's of London. 113 Wn.2d 330,
345, 779 P.2d 249 (1989) (appellate court will decline to consider issues unsupported
by cogent legal argument and citation to relevant authority).
IV. 	Communications Decency Act
Stephens contends that the summary judgment must be reversed because the
Communications Decency Act (CDA), 47 U.S.C. § 230, preempts RCW 72.09.530
and 	Department 	Policy 450.100. 	Under the 	CDA, 	"No 	provider or 	user of an
interactive computer service shall be treated as the publisher or speaker of any
information provided by another information content provider." 47 U.S.C. § 230(c)(1);
see generally J.S. v. Vill. Voice Media Holdings. LLC, 184 Wn.2d 95, 359 P.3d 714
(2015); Schneider v. Amazon.com. Inc., 108 Wn. App. 454, 31 P.3d 37 (2001). 	But,
Stephens offers no coherent explanation of how the CDA supports his claims against
the Department. 	We therefore decline to consider Stephens's CDA contentions.
V. 	Retaliation
Stephens 	contends 	that 	his 	retaliation 	claim 	also 	precludes 	summary
judgment. 	Stephens alleges that the Department rejected his third-party mail and
denied 	him job opportunities in 	retaliation for a lawsuit that he filed 	against the
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No. 72950-1/13
Department. 	Generally, to prevail on a claim of retaliation under 42 U.S.C. §1983,
Stephens must establish, among other things, that he engaged in constitutionally
protected activity and that the conduct was a substantial or motivating factor for the
alleged retaliatory acts. 	See Brodheim v. Cry. 584 F3d 1262, 1271 (9th Cir. 2009).
Stephens relies on the declaration from another inmate who claims to have
received "postings from the internet" to establish that the Department treated him
differently by rejecting his internet mail. 	But, the declaration does not identify the
specific postings received, the date they were received, or any other circumstances
demonstrating 	some 	relevance 	to 	Stephens's 	retaliation 	claim. 	Under 	the
circumstances, the record fails to demonstrate a material factual 	dispute as to a
causal connection between Stephens's protected activity and the alleged retaliatory
actions. 	The trial court properly dismissed Stephens's retaliation claim on summary
judgment.
VI. 	Prior Restraint
Stephens 	contends 	that 	the 	Department's third-party 	mail 	policy 	is an
unconstitutional prior restraint under article 1, § 5. 	" 'Unlike the First Amendment,
article 1, section 5 categorically rules out prior restraints on constitutionally protected
speech 	under any circumstances.' " 	Voters 	Educ. 	Comm. 	v. 	Pub. Disclosure
Comm'n., 	161 Wn.2d 470, 493-94, 	166 P.3d 1174 (2007) (quoting O'Dav v. King
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No. 72950-1/14
County, 	109 Wn.2d 	796, 	804, 	749 	P.2d 	142 	(1988)). 	A prior restraint " 'is an
administrative or judicial order forbidding communications prior to their occurrence.
Simply stated, a prior restraint prohibits future speech, as opposed to punishing past
speech.' " |o\ at 494 (emphasis added) (quoting Soundgarden v. Eikenberrv, 123
Wn.2d 750, 764, 871 P.2d 1050 (1994)).
Stephens does not articulate how the Department's regulation of third-party
incoming mail prohibited his constitutionally protected speech. 	See Voters Educ.
Comm.ld. at 494-95. 	He therefore fails to demonstrate any basis for application of
the highly protective rules against prior restraints.
VII. 	Overbreadth
Stephens contends that both 	RCW 72.09.530 	and 	the 	Department Policy
450.100 are unconstitutionally overbroad. 	"A law is overbroad if it sweeps within its
prohibitions constitutionally protected free speech activities." 	jHuff, 111 Wn.2d 	925.
Overbreadth requires a showing that the enactment reaches a substantial amount of
constitutionally protected conduct, 	jd.
On its face, RCW 72.09.530 is not overbroad because it expressly authorizes
regulations 	"consistent 	with 	constitutional 	constraints." 	Moreover, 	Stephens's
overbreadth challenge to policy 450.100 appears to rest on the mistaken premise
that the policy prohibits "one of the most comprehensive and advanced platforms for
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No. 72950-1/15
free speech ever conceived -- the World Wide Web, the 	internet." 	But, as the
Department points out, the mail rejections at issue here were not based on the fact
that the communications originated on the internet, but on the fact they involved
prohibited communications from third parties. Stephens's overbreadth claim fails.
Affirmed.
WE CONCUR:
J ^vke vi 	J ^X,T,
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