                                                                               FILED
                            NOT FOR PUBLICATION                                APR 06 2012

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



                            FOR THE NINTH CIRCUIT


JACOB BARRETT,                                   No. 11-35238

              Plaintiff - Appellant,             D.C. No. 3:06-cv-00510-JE

       v.
                                                 MEMORANDUM*
BRIAN BELLEQUE; J. NOFZIGER;
REBECCA PRINSLOW; GARY
RUSSELL; J. TAYLOR; KENT
PARKER, Lt.,

              Defendants - Appellees.

                    Appeal from the United States District Court
                             for the District of Oregon
                      Garr M. King, District Judge, Presiding

                       Argued and Submitted March 9, 2012
                                Portland, Oregon

Before: W. FLETCHER, FISHER and BYBEE, Circuit Judges.

      Jacob Barrett appeals the judgment of the district court dismissing his 42

U.S.C. § 1983 action alleging violations of the First Amendment arising from

disciplinary action taken against him for letters he wrote while a prisoner at the



        *
        This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Oregon State Penitentiary (OSP). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1.     The district court properly dismissed Barrett’s claims for declaratory

and injunctive relief as moot. Barrett is no longer affected by the Oregon

Department of Corrections’ (ODOC) policies concerning outgoing inmate mail

because he is currently housed at a prison in Oklahoma. See Alvarez v. Hill, 667

F.3d 1061, 1063-65 (9th Cir. 2012); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th Cir.

1995) (“An inmate’s release from prison while his claims are pending generally

will moot any claims for injunctive relief relating to the prison’s policies . . . .”).

The Oregon Supreme Court’s decision in Barrett v. Belleque, 176 P.3d 1272,

1276-77 (Or. 2008), is distinguishable because Barrett has not shown that the

disciplinary action challenged here has collateral consequences for him in

Oklahoma.

      The mootness exception for controversies that are capable of repetition yet

evading review does not apply because there is no reasonable expectation that

Barrett will be transferred back to the OSP and subjected again to the outgoing

mail policies he challenges in this litigation. See Dilley, 64 F.3d at 1369. Even if

there were such an expectation, there is no reason to believe that a federal lawsuit

challenging his discipline could not be litigated to completion before his transfer to


                                            2
another facility. See id. We recognize that the capable of repetition exception can

apply to an Oregon inmate who has been transferred to a prison in another state

under the Interstate Corrections Compact. See LeMaire v. Maass, 12 F.3d 1444,

1462 & n.5 (9th Cir. 1993). Here, however, there is no reasonable expectation that

Barrett will be returned to the OSP. Cf. id. at 1462 (“If [the plaintiff] resumes his

old ways, no doubt he may return yet again to the [OSP’s Disciplinary Segregation

Unit].”). Nor does this case involve an “ongoing” injunction applying to the

plaintiff and to “all persons similarly situated.” Id. at 1450, 1462 n.5.

      2.     The district court properly granted summary judgment to the

defendants on Barrett’s claim for damages because the defendants are entitled to

qualified immunity. See Pearson v. Callahan, 555 U.S. 223, 231 (2009) (“The

doctrine of qualified immunity protects government officials ‘from liability for

civil damages insofar as their conduct does not violate clearly established statutory

or constitutional rights of which a reasonable person would have known.’”

(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982))).

      Procunier v. Martinez, 416 U.S. 396, 415-16 (1974), overruled on other

grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989), established that prison

officials cannot censor outgoing inmate mail merely because it contains

exaggerated complaints; magnified grievances; expressions of inflammatory


                                           3
political, racial or religious views; unwelcome criticism of policies, rules or

officials; or disrespectful comments. Procunier, however, did not address whether

inmates can be disciplined for posting letters directing hostile and abusive

language to and at prison staff, which the defendants here reasonably believed

Barrett to have done. Rules prohibiting inmates from directing disrespectful

comments toward staff indisputably further legitimate penological interests in

security, order and rehabilitation. See Bradley v. Hall, 64 F.3d 1276, 1280 (9th

Cir. 1995), abrogated on other grounds by Shaw v. Murphy, 532 U.S. 223 (2001).

      Procunier also did not address whether an inmate can be disciplined for

posting letters that endorse a white supremacist prison gang that prison officials

have identified as a security threat group (STG). ODOC had identified Barrett as a

member of the Aryan Soldiers, a white supremacist STG. The defendants could

have reasonably believed that disciplining Barrett for posting letters expressing

support and endorsement for his STG furthered an important penological interest in

rehabilitation. The defendants are therefore entitled to qualified immunity.

      Because we hold that the defendants did not violate a right that was clearly

established at the time of their conduct, we do not address whether their conduct

violated the First Amendment. See Pearson, 555 U.S. at 232, 236 (describing the




                                           4
two prongs of the qualified immunity analysis and holding that courts have

discretion in deciding which of the two prongs should be addressed first).

      AFFIRMED.




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