                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                               JUL 23 2015

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

MARK ALAN LANE,                                  No. 13-35427

              Petitioner - Appellant,            D.C. No. 3:12-cv-02360-PA

  v.
                                                 MEMORANDUM*
MARION FEATHER,

              Respondent - Appellee.



MARK ALAN LANE,                                  No. 13-35640

              Petitioner - Appellant,            D.C. No. 3:13-cv-00005-PA

  v.

MARION FEATHER,

              Respondent - Appellee.



MARK ALAN LANE,                                  No. 13-35677

              Petitioner - Appellant,            D.C. No. 3:13-cv-00100-PA

  v.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
MARION FEATHER,

              Respondent - Appellee.


                  Appeal from the United States District Court
                           for the District of Oregon
                 Owen M. Panner, Senior District Judge, Presiding

                        Argued and Submitted July 7, 2015
                                Portland, Oregon

Before: PREGERSON, N.R. SMITH, and OWENS, Circuit Judges.

      In three separate cases,1 federal prisoner Mark Alan Lane appealed the

denials of his 28 U.S.C. § 2241 habeas corpus petitions. In each of the three

petitions, Lane challenged the loss of 27 days of good-conduct time following

prison disciplinary decisions, finding that he “[t]hreaten[ed] another with bodily

harm” in violation of Bureau of Prisons (“BOP”) Prohibited Act Code 203, 28

C.F.R. § 541.3 Table 1, 203. The statements for which Lane was punished were

contained in letters Lane sent to various individuals and government entities. We

have jurisdiction under 28 U.S.C. §§ 1291 and 2253. We vacate and remand.




      1
       This memorandum disposition addresses Case Nos. 13-35427, 13-35640,
and 13-35677. The cases have been consolidated for the purpose of this
disposition only.

                                          2
      When a prisoner is punished for statements made in outgoing mail, the

prisoner’s First Amendment rights are implicated, and the regulation authorizing

the punishment must satisfy the test outlined in Procunier v. Martinez, 416 U.S.

396 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401

(1989). Barrett v. Belleque, 544 F.3d 1060, 1062 (9th Cir. 2008) (per curiam). For

a prison regulation to be valid under Procunier, the regulation must “further an

important or substantial government interest,” and impose limitations “no greater

than is necessary or essential to the protection” of those interests. 416 U.S. at 413.

      The government argues that the issue of whether section 203 satisfies the

Procunier test was not presented to the district court and, therefore, this court

should not address the issue in the first instance. Instead, the government argues

that the only issue properly on appeal is whether there is “some evidence” to

support the Discipline Hearing Officers’ conclusions that Lane threatened another

with bodily harm. See Superintendent v. Hill, 472 U.S. 445, 455 (1985). However,

to determine whether there is some evidence that Lane “threaten[ed] another”

under section 203, we must first know how to define “threat.”

      Lane argues that to prevent any constitutional issues, section 203 must be

defined to only prohibit “true threats,” or “those statements where the speaker

means to communicate a serious expression of an intent to commit an act of


                                           3
unlawful violence to a particular individual or group of individuals.” Virginia v.

Black, 538 U.S. 343, 359 (2003). Conversely, the government argues that the

section 203 should be interpreted to prohibit all threatening statements, whether

they amount to true threats or not.

      The plain language of section 203 does not suggest that “threaten another”

prohibits only true threats, and Lane has not provided any controlling authority in

the prison context that would so require. See Boumediene v. Bush, 553 U.S. 723,

787 (2008) (“The canon of constitutional avoidance does not supplant traditional

modes of statutory interpretation. We cannot ignore the text and purpose of a

statute in order to save it.” (citation omitted)). Therefore, we agree with the BOP’s

interpretation of section 203, which prohibits all threatening communications.

However, as Lane has argued, adopting the BOP’s interpretation implicates Lane’s

First Amendment rights. See Witherow v. Paff, 52 F.3d 264, 265 (9th Cir. 1995)

(per curiam) (holding that a prisoner “enjoys a First Amendment right to send and

receive mail”). For a regulation that implicates a prisoner’s First Amendment

rights in the outgoing mail context to be valid, it must pass the Procunier test.

Barrett, 544 F.3d at 1062.

      The record is not sufficiently developed for us to evaluate whether section

203 satisfies Procunier. The record does not contain sufficient evidence


                                          4
concerning (1) the government’s substantial or important interests in prohibiting

threats sent out of prisons by prisoners, or (2) whether section 203’s limitations are

“no greater than . . . necessary or essential to the protection” of those interests.

Procunier, 416 U.S. at 413. Therefore, we remand to the district court to

determine whether section 203 satisfies Procunier.2 The parties shall bear their

own costs on appeal.

      VACATED and REMANDED.




      2
      Because we vacate and remand based on Lane’s First Amendment
argument, we do not reach Lane’s alternative challenges.

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