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  IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

FRED STEPHENS,
                                                    No. 72950-1-1
                     Appellant,
                                                    DIVISION ONE
  v.



DEPARTMENT OF CORRECTIONS,                          UNPUBLISHED OPINION

                     Respondent.                    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). Acopy 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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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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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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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:


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