Sikorski v. Whorton (631 F. Supp. 2d 1327, 2009)

ORDER

LARRY R. HICKS, District Judge.

The Court has considered the Report and Recommendation of U.S. Magistrate Judge Valerie P. Cooke (# 91) entered on April 30, 2009, in which the Magistrate Judge recommends that the Plaintiffs’ Motion for Partial Summary Judgment (# 77) be denied and Defendants’ Motion for Summary Judgment (# 78) be granted as to all counts. No objections were filed. The Court has considered the pleadings and memoranda of the parties and other relevant matters of record and has made a review and determination in accordance with the requirements of 28 U.S.C. § 636 and applicable case law, and good cause appearing, the court hereby

ADOPTS AND ACCEPTS the Report and Recommendation of the United States Magistrate Judge (# 91); therefore, Plaintiffs’ Motion for Partial Summary Judgment (# 77) is DENIED and Defendants’ Motion for Summary Judgment (#78) is GRANTED as to all counts.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION OF U.S. MAGISTRATE JUDGE

VALERIE P. COOKE, United States Magistrate Judge.

This Report and Recommendation is made to the Honorable Larry R. Hicks, United States District Judge. The action was referred to the undersigned Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and LR IB 1-4. Before the court is plaintiffs’ motion for partial summary judgment (# 77) and defendants’ motion for summary judgment (# 78). Defendants opposed plaintiffs’ motion (# 81), and plaintiffs replied (# 85). Plaintiffs opposed defendants’ motion (#86) and defendants replied (# 90). The court has thoroughly reviewed the record and the motions and recommends that plaintiffs’ motion for partial summary judgment (# 77) be denied and defendants’ motion for summary judgment (# 78) be granted.

I. HISTORY & PROCEDURAL BACKGROUND

A. Procedural Background

Plaintiff John Witherow (“Witherow”) is currently incarcerated at Nevada State Prison (“NSP”) in the custody of the Nevada Department of Corrections (“NDOC”) (# 78). Witherow’s claims involve events that occurred while he was incarcerated at Lovelock Correctional Center (“LCC”). Id. Plaintiff Julie Sikorski (“Sikorski”) is Witherow’s mother (# 61). Plaintiff Linda Dittmer (“Dittmer”) is Witherow’s sister. Id. Plaintiffs brought this action pursuant to 42 U.S.C. § 1983, alleging prison officials violated their First and Fourteenth Amendment rights during Witherow’s incarceration at LCC because defendants censored, refused to deliver, and returned various pieces of mail addressed to Wither-ow and failed to provide plaintiffs with notice and an opportunity to appeal their decisions. Id. Witherow also alleges that defendants retaliated against him for his use of the prison grievance system. Id. Plaintiffs name as defendants Glen Whorton, NDOC Director; Jackie Crawford, former NDOC Director; Greg Cox, NDOC Assistant Director of Operations; Jack Palmer, LCC warden; Lenard Vare, former warden of LCC; Robert LeGrand, LCC Associate Warden of Programs; Cami Perino and Celia Chacon, Correctional Caseworker Specialists at LCC, Pamela Feil, Diana Carey, and Kristina Tupa, correctional officers at LCC; Joe Gutierrez, training officer at LCC and John/Jane Doe IV-X, responsible for training defendants Feil, Carey, and Tupa. Id. p. 2-4. Plaintiffs allege ten causes of action, as follows:

Count I — Declaratory Relief — plaintiffs request the court grant them declaratory relief that they have clearly established rights to due process of law under the Fourteenth Amendment, to freedom of speech, association, and to petition the government for redress under the First Amendment, which rights are protected by the Due Process Clause of the Fourteenth Amendment, and to be free from retaliation for engaging in constitutionally protected activities. Id. p. 9. Additionally, plaintiffs request the court grant them declaratory relief by determining that the names and addresses of citizens of the United States are not confidential and that NDOC employees may not prohibit a prisoner from receiving via the mail the names and addresses of citizens without a valid regulation advancing a legitimate penological interest. Further, that defendants Feil and Tupa were not adequately trained by defendants Gutierrez and John/Jane Doe IV-X, and that defendants Whorton and Crawford failed to “adopt, implement or enforce adequate or sufficient regulations, policies or procedures for the training of NDOC employees in their duties and responsibilities in the handling of prisoner mail and correspondence.” Id.

Count II — Injunctive Relief — plaintiffs request permanent injunctive relief requiring defendant Whorton and his successors, “to adopt, implement and enforce adequate and sufficient regulations, policies and procedures to ensure all NDOC employees involved in any manner in the handling of prisoner mail and correspondence are adequate and sufficiently trained in the constitutional requirements and NDOC regulations, policies and procedures governing and controlling the handling of prisoner mail and correspondence.” Id.

Count III — Violation of First and Fourteenth Amendment Rights (Damages)— plaintiffs allege that defendants Feil, Perino, Vare, and Cox denied Wither-ow’s First and Fourteenth Amendment rights when defendant Feil censored and refused to deliver to him mail from C. Rodriguez, which included a petition to then governor Kenny Guinn signed by forty-eight non-inmates, without a legitimate penological purpose, and when defendants Perino, Vare and Cox denied plaintiffs grievances. Id. p. 10.

Count IV and V — Violation of First and Fourteenth Amendment Rights (Damages) — plaintiffs allege that defendants Feil, Chacon, Palmer, and Cox denied their First and Fourteenth Amendment rights when defendant Feil “between November 7, 2005 and November 20, 2005 censored and refused to deliver to plaintiff Witherow mail from plaintiff[s] Sikorski [and Dittmer] and returned that mail to plaintiffis] Sikorski [and Dittmer] without notice or an opportunity to appeal the censorship decision, and when defendants Chacon, Palmer, and Cox denied Plaintiff Witherow any relief in the grievance process.” Id. p. 10-12. Count VI — Violation of First and Fourteenth Amendment Rights (Damages)— Witherow alleges that defendants Carey, LeGrand, Palmer, and Cox denied his First and Fourteenth Amendment rights when defendants Carey and LeGrand censored and refused to deliver mail from Connie Sager to Witherow on February 27, 2006, and when defendants LeGrand, Palmer, and Cox denied Witherow’s grievances. Id. p. 12.

Count VII — Violation of First and Fourteenth Amendment Rights (Damages) — Plaintiffs allege that defendant Tupa violated Witherow’s First and Fourteenth Amendment rights when she “censored and refused to deliver to plaintiff Witherow mailed from Pat Hines and when she returned that mail to Pat Hines without notice or an opportunity to appeal the censorship decision.” Id. p. 13.

Count VIII — Violation of First and Fourteenth Amendment Rights (Damages) — Plaintiffs claim that defendants Feil, Chacon, Vare, and Cox violated Witherow’s First and Fourteenth Amendment rights when defendant Feil retaliated against Witherow for using the grievance and judicial process, and when defendants Chacon, Vare, and Cox denied Witherow’s grievances. Id.

Count IX — Violation of First and Fourteenth Amendment Rights (Damages/Failure to Train) — Plaintiffs contend that defendants Gutierrez and John/Jane Doe IV-X violated plaintiffs’ First and Fourteenth Amendment rights when they “failed to adequately or sufficiently train Defendants Feil and Tupa in their duties and responsibilities as mail room officers and in the handling of prisoner mail and correspondence.” Id. p. 14.

Count X — Violation of Constitutional First and Fourteenth Amendment Rights (Damages/Failure to Adopt Training Procedures) — Plaintiffs assert that defendants Whorton and Crawford violated plaintiffs’ First and Fourteenth Amendment rights when they “failed to adopt, implement and enforce adequate and sufficient regulations, policies and procedures for the training of NDOC employees in the constitutional requirements of NDOC regulations, policies and procedures governing and controlling the handling of prisoner mail and correspondence and their duties and responsibilities as mail room officers.” Id. p. 14-15.

Plaintiff's also request punitive damages. Id. p. 15.

B. Factual Background

Based on plaintiffs’ First Amended Complaint (# 61), defendants’ answer (# 69), the pending motion for summary judgment (# s 78, 80, 82), opposition (# 86), and reply (# 90), and the pending motion for partial summary judgment (# 77), opposition (# 81), and reply (# 85), and all exhibits attached to these documents, the following facts are undisputed and supported by evidence:

1. Petition (Count III)

1. On December 28, 2004, defendant Feil opened and visually scanned a piece of incoming, general mail, which was addressed to Witherow. Feil described the mail as a “Petition for recommendations regarding parole & sentencing procedures,” (the “Petition”) and issued an “unauthorized mail notification” to Witherow (# 78, p. 3, D-MSJ 916, # 86, p. 3).

2. On December 28, 2004, Witherow filed an informal grievance, appealing the unauthorized mail notification (Grievance No. 2004-19-8297). Witherow claimed that his receiving the Petition would not violate NDOC rules and regulations, and that Feil’s refusal to deliver the Petition violated his First and Fourteenth Amendment rights, among others. Witherow requested the name and address of the sender of the Petition. On January 10, 2005, defendant Perino denied the informal grievance. She stated: “It is within the guidelines of AR 750 and NRS 209.365 to protect the citizens of the State of Nevada from their names and addresses being used in an inappropriate manner. This [Petition ... should have been turned in to the Parole Board ... The citizens named give no indication that their names were written down with the intent of being reviewed by you or anyone else except the governing body that would rewrite law” (# 78, D-MSJ 917-919)

3. On January 19, 2005, Witherow filed a first level appeal, in which he claimed defendant Perino’s response was “inaccurate and incorrect.” He stated that his Constitutional rights were being violated and that no specific provisions of AR 750 or the Nevada Revised Statutes prohibited him from having the names and addresses, because this information is public. Defendant Vare again denied this grievance, reiterating that “there is no indication that there is permission granted for this and the citizens have an expectation that their signature will be forwarded to the governing body for which they were intended.” Id. D-MSJ 920-923.

4. Witherow then filed a second level grievance on January 31, 2005, arguing that the fact that the Petition was mailed to him indicates that the signatories consented and intended to have the Petition sent to Witherow. Finally, on February 22, 2005, defendant Cox again denied the grievance. (Id. p. 3, D-MSJ 924-927; # 86, p. 3; # 90, p. 2).

5. On April 4, 2005, the Petition was mailed to then Governor Kenny Guinn (#78, D-MSJ 717-718). The envelope containing the Petition also contained the following documents: (a) a two-page document, entitled, “TO THE GOVERNOR AND LEGISLATURE OF THE STATE OF NEVADA RECOMMENDATIONS REGARDING PAROLE AND SENTENCING PROCEDURES ” (emphasis in original); and (b) three pages containing the signatures and addresses of forty-eight Nevada citizens (non-inmates) (# 78, p. 4; D-MSJ 712-716).

2. Lammers/Lader Letter (Count VIII)

1. On July 7, 2005, defendant Feil opened and visually scanned an article of incoming general mail addressed to Witherow. The mail contained a letter from a Rebecca Lammers, in which Lammers requested Witherow’s advice regarding another inmate, Philip Lader’s, legal claims (“Lader” letter or “Lammers/Lader” letter). Lammers attached a letter from Lad-er’s attorney and a Nevada Supreme Court decision regarding Lader’s case (# 78, D-MSJ 725-729).

2. On July 8, 2005, defendant Feil issued Witherow a notice of charges, in violation of AR 700, 722, 724, as it appeared that he was helping an inmate in another institution with his legal work. Witherow stated at his hearing that he was not doing legal work for Lader, and that he cannot control what another person sends him in the mail. The charges against Witherow were dismissed (#78, D-MSJ 719-722).

3. Scarborough Letter (Count VIII)

1. On or about August 29, 2005, an unknown LCC mail worker opened and visually scanned an article of incoming general mail addressed to Witherow. The mail worker issued an Unauthorized Mail Notification form to Witherow, in which he or she described the mail as “A letter from inmate to inmate from Scarborough” (“Scarborough letter”) (# 78, D-MSJ 885). On August 30, 2005, Witherow sent an “inmate request form” to the mail room officer in which he requested the correct spelling, return address of the sender, and the institution in which the person is confined. Defendant Feil sent Witherow the name and return address. Witherow requested that the letter be sent to his attorney or returned to the sender. Defendant Feil responded that the letter was inmate-to-inmate piggybacked, and was now contraband (# 78, D-MSJ 886-887). Wither-ow did not file a grievance about this unauthorized mail notification or the withholding of the Scarborough mail, and no disciplinary charges were brought against him (# 78, p. 7; # 86, p. 5).

2.The Scarborough mail was a letter to Witherow from someone named Chris, who identified himself as another inmate in NDOC (#78, D-MSJ 884). It appears that Chris sent the letter to his mother in Massachusetts, who then sent it to Wither-ow. He also asked Witherow to send his response to his mother’s address, rather than directly to him. Id. D-MSJ 883 (“My mom is moving back to Massachusetts as I write. The address to respond to is on the return on the envelope”); D-MSJ 884 (“Oh, if you need a first initial for the return name, it’s J.”) The purpose of the letter was to seek legal advice and assistance from Witherow. Id. D-MSJ 883 (discussing his medical problems and electricity failure issues at the prison and asking Witherow if he would be interested in helping him bring suit against NDOC).

4. Varnum — Returned Mail (Count VIII)

1. On September 19, 2005, defendant Feil opened and visually scanned an article that had been returned to Witherow by the U.S. Postal Service as undeliverable. Witherow had asked the addressee, a Jackie Varnum, to give newspaper clippings to another NDOC inmate, Joseph Maresca, which Witherow thought might pertain to his case (# 78, p. 8; D-MSJ 735, 738).

2. On September 20, 2005, defendant Feil issued a notice of charges against Witherow for “piggybacking” a letter to another inmate [which] is a blatant violation of AR 750 (# 78, D-MSJ 735).

3. The hearing officer dismissed the charges against Witherow, finding that “such a relay of information did not meet [the] requirement for inmate-to-inmate correspondence” (# 78, p. 8).

4. On October 24, 2005, Witherow filed an informal grievance (Grievance No. 2005-19-12643) against defendant Feil, alleging that Feil had retaliated against him “through unwarranted and unfounded disciplinary reports in matters related to my mail....” Witherow went on to explain that “the problem with C/O Feil began on 12/28/04 when she wrote an Unauthorized Mail Notification” based on the Petition. Witherow claimed that defendant Feil “has since embarked on a campaign to retaliate against me for engaging in those constitutionally protected activities by writing unfounded and unwarranted disciplinary charges against me. Since that time she has written 3 major and 1 general disciplinary charges against me. There was no factual basis for any of those disciplinary charges and she only wrote those disciplinary charges against me to retaliate and punish me for writing the above referenced grievance and for sending the Petition and Unauthorized Mail Notification to the Governor” (# 78 D-MSJ 871-873). Defendant Chacon replied to Witherow’s grievance on October 27, 2005. She informed him that he needed to attach “All documents & factual allegations available to [him],” pursuant to AR 740, 1.4.1.5, as defendant Chacon did not have details of Feil’s charges, but only of Witherow’s complaints against her. Id. D-MSJ 874. She also stated that “the evidence does not indicate that C/O Feil is violating or has violated your 1st Amendment rights nor that she has embarked upon a campaign to retaliate against you. She is simply conducting her duties as outlined in her job description.” Id.

5. Witherow then filed a first level grievance, in which he reiterated his retaliation allegations. Witherow again did not attach any supporting documents, but stated that the “NOC are in NDOC I-File on me and the original of the records are available to staff in the grievance process.” Id. D-MSJ 875. Defendant Vare denied the first level grievance on November 9, 2005, because Witherow did not provide the required documentation, and because there was no evidence of retaliation. Id. D-MSJ 876. The second level grievance was also denied. Id. D-MSJ 877-79.

5. Sikorski/Dittmer Unopened Mail (Counts IV and V)

1. On about November 15, 2005, defendant Feil returned mail from plaintiffs Sikorski and Dittmer. The envelopes were not opened, and defendant Feil noted that the mail was “unauthorized correspondence,” and “refused” because “tape [is] unauthorized,” which was found on the outside of the envelopes (# 78, D-MSJ 906-907). Witherow was not given notice that this mail was returned to the senders unopened. Id., D-MSJ 899. However, Witherow first discovered on December 18, 2005 that this mail had been returned (# 86, p. 9).

2. Witherow filed an informal grievance regarding the return of the Sikorski and Dittmer mail on December 18, 2005 (Grievance No. 2005-19-15552). He objected to the fact that he had not been given notice or an opportunity to appeal the decision to return the mail. He argued that AR 750 required that such process be given to him. Id. D-MSJ 897-98. Defendant Chacon denied Witherow’s grievance, but noted that “Per AR 750, you should have been notified by the Mail Room with a DOC-1518, informing you that Unauthorized Mail was received at LCC and returned to sender. Your mail was returned to sender through the U.S. Mail without being opened. The mail in question was considered ‘Adulterated’ and the only option you would have had, had you been afforded the opportunity, would be to send it out or have it destroyed. The Mailroom officer’s failure to follow or know all of the proper procedures can’t be construed as an ‘illegal activity’ or a purposeful ‘violation of your Constitutional Rights.’ LCC has addressed the issue and will do everything to prevent this from occurring again.” Id. D-MSJ899.

3.In Witherow’s First Level Grievance, he claimed that he was entitled to some recourse as LCC officials admitted that they violated AR 750. He also argued that placing tape on an article of mail is not an adulteration as defined by AR 750. Id. D-MSJ 900-01. Defendant Palmer again denied the grievance and set out the definition of adulterated mail. Id. D-MSJ 902. Witherow’s grievance was again denied at the second level. Id., D-MSJ 903-OS.

6. Hines Mail (Count VII)

1. LCC received a letter from a Pat Hines (“Hines” Mail) on or about February 13, 2006 (see # 78, D-MSJ 913-post-marked date). Defendant Tupa returned this letter to the sender unopened because it contained an address label sticker on the envelope, and she wrote “No Stickers” on the envelope. Defendant Tupa did not issue an Unauthorized Mail Notification to Witherow (# 78, p. 12). Witherow first learned on April 12, 2006 that this mail had been returned (# 86, p. 9; # 90, p. 11).

2. On April 18, 2006, Witherow filed an informal grievance regarding the return of the Hines mail. He argued that he should have been afforded notice and an opportunity to appeal before the mail was returned, pursuant to AR 750. He also complained of the training and supervision of the mail room personnel (#78, D-MSJ 909-910). On May 3, 2006, Caseworker Carla Van Pelt responded to Witherow’s grievance, stating that the Hines mail was returned due to safety and security concerns because of the sticker placed on the envelope. She also noted that she agreed with Witherow that AR 750 was violated when no Unauthorized Mail Notification was sent to the inmate. She stated that she would send a copy of the grievance to higher authorities to ensure mail room officers adhere to AR 750. It appears that Van Pelt did pass the grievance along to defendant LeGrand, as there is a handwritten note on her response, which reads; “Mail officers have been sending letters with stickers and lipstick back to sender as a courtesy to the I/Ms and save them a stamp, but as Witherow points out, it violates AR 750.” Id, D-MSJ 910-912. Witherow filed no further grievances. It is unclear whether defendant LeGrand ever followed up with Van Pelt or Wither-ow.

7. Sager Mail (Count VI)

1. On February 27, 2006, defendant Carey opened and visually scanned an article of incoming legal mail to Witherow from a Connie Sager (“Sager” Mail). The mail contained legal documents of another inmate, where the names on the documents were blacked out, but still visible (# 78, D-MSJ 888, 893). Defendant Carey issued an Unauthorized Mail Notification against Witherow and sent the article of mail to defendant LeGrand to approve or disapprove. Id., D-MSJ 888.

2. On February 28, 2006, Witherow filed an informal grievance (Grievance No. 2006-19-3251) against defendant Carey for withholding the mail, which he claimed violated his constitutional rights. Id. D-MSJ 889-891. Defendant LeGrand responded to this grievance on March 1, 2006, stating that the mail was unauthorized because an inmate may not possess another inmate’s legal work if the inmates are not in the same institution (among other requirements). Further, the “documents contained sensitive information about another inmate’s crime. These documents are considered contraband and are prohibited by AR 722.” Id., D-MSJ 891.

3. Witherow then filed a first level grievance on March 15, 2006. He argued that he was not violating AR 722 because the documents were sent to him by Sager, a free citizen, and not by another inmate. He also claimed the inmate to whom the documents pertained (“Dickinson”) was not a Nevada inmate. Id. D-MSJ 892. Defendant Palmer again denied Witherow’s grievance, stating that Dickinson was a Nevada inmate, and that possessing another inmate’s legal documents was a violation of AR 722. Id. D-MSJ 893.

4.Witherow filed a second level grievance on March 27, 2006, arguing that information pertaining to another inmate’s crime is public record and not confidential, and there is no regulation which prohibits him from having it. Defendant Cox again denied the grievance, and stated: “The department will not allow you to have other inmate’s legal materials or information about their crime, except as authorized by AR 722 or a court order.” Id. D-MSJ 894-896.

II. DISCUSSION & ANALYSIS

A. Discussion

1. Summary Judgment Standard

Summary judgment allows courts to avoid unnecessary trials where no material factual disputes exist. Northwest Motorcycle Ass’n v. U.S. Dept. of Agriculture, 18 F.3d 1468, 1471 (9th Cir.1994). The court grants summary judgment if no genuine issues of material fact remain in dispute and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In deciding whether to grant summary judgment, the court must view all evidence and any inferences arising from the evidence in the light most favorable to the nonmoving party. Bagdadi v. Nazar, 84 F.3d 1194, 1197 (9th Cir.1996). In inmate cases, the courts must

[distinguish between evidence of disputed facts and disputed matters of professional judgment. In respect to the latter, our inferences must accord deference to the views of prison authorities. Unless a prisoner can point to sufficient evidence regarding such issues of judgment to allow him to prevail on the merits, he cannot prevail at the summary judgment stage.

Beard v. Banks, 548 U.S. 521, 526, 126 S.Ct. 2572, 2576, 165 L.Ed.2d 697 (2006). Where reasonable minds could differ on the material facts at issue, however, summary judgment should not be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The moving party bears the burden of informing the court of the basis for its motion, and submitting evidence which demonstrates the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the moving party has met its burden, the party opposing the motion may not rest upon mere allegations or denials in the pleadings but must set forth specific facts showing that there exists a genuine issue for trial. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548.

2. Prisoners’ General Constitutional Rights

“ ‘Lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system.’ ” Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), citing Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 125, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977) and quoting Price v. Johnston, 334 U.S. 266, 285, 68 S.Ct. 1049, 92 L.Ed. 1356 (1948); see also Shaw v. Murphy, 532 U.S. 223, 229, 121 S.Ct. 1475, 149 L.Ed.2d 420 (2001) (“the constitutional rights that prisoners possess are more limited in score than the constitutional rights held by individuals in society at large.”)

However, “prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), “nor do they bar free citizens from exercising their own constitutional rights by reaching out to those on the ‘inside.’ ” Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Nevertheless, these right must be weighed with “due regard for the ‘inordinately difficult undertaking’ that is modern prison administration.” Id. at 407, 109 S.Ct. 1874 quoting Turner, 482 U.S. at 85, 107 S.Ct. 2254. Prison officials must weigh the need for internal order and security against the rights of prisoners and those on the outside who seek to communicate with such prisoners. Id.

3. First Amendment Rights-Inmate Correspondence

Generally, prisoners have “a First Amendment right to send and receive mail.” Witherow v. Paff, 52 F.3d 264, 265 (9th Cir.1995) (per curium). However there must be a “delicate balance” between prisoners’ First Amendment rights and the discretion given to prison administrators to govern the order and security of the prison. Thornburgh, 490 U.S. at 407-08, 109 S.Ct. 1874. Prison officials have more leeway to regulate incoming than outgoing mail because of the greater security risks inherent in materials coming into a prison. Id. at 413, 109 S.Ct. 1874. Turner is applicable to regulations and policies regarding all incoming mail; therefore, regulations and policies involving incoming mail are “valid if [they] are reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89, 107 S.Ct. 2254.

Turner sets out a four-part test which governs prison policies and regulations concerning incoming mail: (1) whether there is a “ ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) whether there are “alternative means of exercising the rights that remain open to prison inmates”; (3) what “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and, (4) whether the “absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Turner, 482 U.S. at 89-90, 107 S.Ct. 2254. As to the first element of the test, the Turner court found that in the First Amendment context it is important to inquire whether the restriction operate in a “neutral fashion, without regard to the content of the expression.” Id. at 90, 107 S.Ct. 2254.

The Turner test applies to the constitutional rights of both the inmates and the outsiders who communicate with them. See Thornburgh, 490 U.S. at 411, n. 9, 109 S.Ct. 1874 (“[a]ny attempt to forge separate standards for cases implicating the rights of outsiders is out of step [with cases in between Martinez and Turner ], which all involved regulations that affected the rights of prisoners and outsiders.”). Finally, the court stated in Turner that prison officials may entirely prohibit correspondence between inmates based on security concerns. Turner, 482 U.S. at 92-3, 107 S.Ct. 2254.

4. Fourteenth Amendment Right to Due Process

The procedural guarantees of the Fourteenth Amendment’s Due Process Clause apply only when a constitutionally-protected liberty interest is at stake. Tellis v. Godinez, 5 F.3d 1314, 1316 (9th Cir.1993), citing Board of Regents of State Colleges v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). Liberty interests can arise both under the Constitution and from state law. Wolff v. McDonnell, 418 U.S. 539, 557-58, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974).

With respect to liberty interests created under the Constitution, the Court has held that prisoners have a Fourteenth Amendment liberty interest in “uncensored communication by letter,” although this interest is “qualified by necessity by the circumstances of imprisonment.” Martinez, 416 U.S. at 417-18, 94 S.Ct. 1800; see also Frost v. Symington, 197 F.3d 348, 353 (9th Cir.1999) (prisoner have a “Fourteenth Amendment due process liberty interest in receiving notice that ... incoming mail is being withheld by prison authorities”), citing Thornburgh, 490 U.S. at 406, 109 S.Ct. 1874. This liberty interest is protected from “arbitrary government invasion,” and any decision to censor or withhold delivery of mail must be accompanied by “minimum procedural safeguards.” Martinez, 416 U.S. at 418, 94 S.Ct. 1800. The Court in Martinez noted that the following minimum procedures were required: (1) notifying the inmate of the rejection of a letter; (2) allowing the author of the letter a reasonable opportunity to protest the decision; and (3) referring any complaints to a prison official other than the person who made the censorship decision. Id. at 418-19, 94 S.Ct. 1800. The Ninth Circuit “has repeatedly acknowledged that withholding delivery of inmate mail must be accompanied by the minimum procedural safeguards” established in Martinez. Krug v. Lutz, 329 F.3d 692, 697-98 (9th Cir.2003), citing Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir.2002) and Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir.2001).

Regarding state-created liberty interests, the Supreme Court has held that states may under some circumstances create liberty interests protected by the Due Process clause, but that those liberty interests “will be generally limited to freedom from restraint which ... impose[s] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484, 115 S.Ct. 2293.

B. Analysis

Defendants move for summary judgment on all causes of action (# 78). Plaintiffs move for summary judgment on the first, third, fourth, fifth, sixth, seventh causes of action. They state that the “issues of liability of claims alleged in the ... Eighth, Ninth and Tenth Causes of Action and the amount of monetary damages should be reserved for determination by the trier of fact at trial” (#77, p. 2).

1. Third Cause of Action— The Petition

Defendants contend they are entitled to summary judgment on plaintiffs’ third cause of action because Witherow does not have a First Amendment right to mail the Petition because the forty-eight signatories did not signal their intent to communicate with Witherow, a convicted prisoner, simply by signing the Petition. Defendants acknowledge that the “First Amendment protects the flow of information to prisoners, and any limitation must reasonably relate to a legitimate penological interest (# 78, p. 17).” However, defendants argue that the free-flow of information to Witherow is not implicated “by the Signatories’ mere signing of the Petition, because the Signatories did not ‘seek out’ communication with Witherow; rather, the Petition was merely forwarded to Witherow by a third-party.” Id. Even assuming Wither-ow had a First Amendment right to the Petition, defendants’ decision to withhold the Petition were rationally related to a legitimate penological interest. Id. p. 18-20. Finally, defendants are entitled to qualified immunity. Id. p. 20.

Plaintiffs ask for summary judgment because Witherow had a right to receive the Petition, since the “signatories of the [Pjetition voluntarily placed their names and addresses in the public record when they signed the [Pjetition;” therefore, these names and address are public information, which “are not declared confidential by law” (# 86, p. 14; # 77, p. 13 (“The reason provided for the refusal to claim the mailed [Pjetitions to Witherow was that the names and addresses of citizens are confidential. There is no statute, regulation, or other law declaring the names and addresses of citizens confidential.”)). Further, the sender of the Petition clearly intended to deliver the Petition to Wither-ow, and there is no evidence that Wither-ow intended to use the information in an inappropriate manner. Id. “There was no legitimate reason for not delivering that mailed [Pjetition to him” (# 77, p. 13). Additionally, plaintiffs argue that because there is no prison rule or regulation prohibiting Witherow from receiving or possessing the names or addresses of private citizens, it is unnecessary to perform a Turner analysis on the validity of a prison regulation. Id. Rather, “the analysis to be conducted is whether there was an arbitrary government invasion of constitutional rights.” Id. p. 15. Additionally, defendants are not entitled to qualified immunity because Witherow has a clearly established right to receive and possess public record information.

Defendants reply that just because the signatories of the Petition voluntarily placed their names and addresses in the public record does not automatically mean that it is proper to show this particular information to an inmate (# 90, p. 18). Defendants withheld the Petition “based on the security concern that the public might have unwittingly set itself up for abuse or impropriety by NDOC inmates. Protecting persons from abuse and harassment is a legitimate government interest” (#81 p. 22). Further, it is immaterial whether Witherow intended to use the information in an inappropriate manner. “Otherwise, inmates could engage in dangerous conduct, on the theory that they had not yet been caught.” Id.

“It is well settled that the First Amendment protects the flow of information to prisoners; any limitation must reasonably relate to a legitimate penological interest.” Crofton v. Roe, 170 F.3d 957, 959 (9th Cir.1999). To determine whether a prison regulation or action is reasonably related to a legitimate penological interest, courts apply the four-part Turner analysis, as set forth in the legal background section above. Defendants first argue that Witherow has no First Amendment right to the Petition because there is no evidence that the signatories intended to communicate with Witherow specifically. Plaintiffs state that because the names and addresses are public information and the sender of the Petition intended the Petition to be delivered to Witherow, he has a First Amendment right to this information. The court disagrees. If the signatories were unaware that the Petition would be sent to Witherow, a prisoner, it is irrelevant whether the person who sent the Petition intended for Witherow to have this information.

Even if Witherow did have a First Amendment right to the signatures and address information, defendants demonstrated that the limitation is reasonably related to a legitimate penological interest. First, there is a “‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” The governmental interest defendants present is the protection of the forty-eight signatories. The withholding of the Petition is rationally related to this interest. Second, there are “alternative means of exercising the rights that remain open to prison inmates.” Wither-ow can solicit signatures for a petition and receive personal information from private citizens if he discloses that the names and addresses of the signatories will be sent to a prisoner. Third, “accommodation of the asserted constitutional right will have [a significant impact] on guards and other inmates, and on the allocation of prison resources generally.” The court agrees that there is cause for concern of a “ripple effect” that could strain prison resources in having to police whether information was being used innocently or with ill intent. See Frost, 197 F.3d at 358. Fourth, defendants have presented no alternatives to the policy of not allowing an inmate the names and addresses of private citizens without express, informed consent of the signatory. Turner, 482 U.S. at 89-90, 107 S.Ct. 2254. Therefore, because the Turner elements are met, defendants’ motion for summary judgment is granted as to the third cause of action.

2. Fourth and Fifth Causes of ActionSikorski/Dittmer Unopened Mail

Defendants assert that they are entitled to summary judgment on the fourth and fifth causes of action because they properly returned unopened mail to defendants Sikorski and Dittmer, and were not obligated to give defendant Witherow notice of their actions or an opportunity to appeal (#78, p. 20). Administrative Regulation 750 does not create a liberty interest to any procedural protections when mail is returned unopened. Defendants argue that the “Unopened Mail Policy” is now codified at OP 750 and that the return of unopened mail for various security reasons is rationally related to a legitimate penological interest. Id. p. 20-22. Defendants also contend that even assuming a right-of-notification does exist, defendants would still prevail under a Turner analysis. Id. p. 22. Finally, defendants are entitled to qualified immunity. Id. p. 23.

Plaintiffs’ view is that they have “the right to send and receive information to each other by letters and to notice [and] an opportunity to appeal each censorship decision before the mail is returned to sender” (# 77, p. 14). Additionally, AR 750 does not include an “Unopened Mail Policy;” rather the “Unopened Mail Policy” actually conflicts with AR 750 (# 86, p. 16). Further, “There is no valid, written approved and published policy authorizing the return of mail to sender without notice. A warden does not have the authority to promulgate a policy that conflicts with a prescribed, approved and published mail regulation.” Id. (emphasis in original). Plaintiffs state that Witherow does not claim a liberty interest under AR 750. They again argue that a Turner analysis is not appropriate because the alleged “Unopened Mail Policy” did not actually exist. Id. Plaintiffs also contend that defendants are not entitled to summary judgment because plaintiffs “had a clearly established right to notice and an opportunity to appeal the decision to withhold delivery of their mail before that mail was returned to sender.” Id. (emphasis in original).

Defendants state that “Witherow’s attack on the security and allocation-of-resource considerations underlying AR 750 and the Unopened Mail Policy implicate disputed matters of professional judgment; ” therefore, the court should accord deference to the views of prison authorities (#81, p. 24-25 and n. 49) (emphasis in original). Defendants argue that under a Turner analysis, they did not violate plaintiffs’ rights “when they refused to ‘accept’ from the USPS the Sikorski-Dittmer mail for security concerns.” Id. p. 25. They also respond that plaintiffs “offer no legal support for the proposition that, ‘[a] warden does not have the authority to promulgate a policy that conflicts with a prescribed, approved and published mail regulation.’ ” (# 90, p. 18). Finally, “even if returning the Sikorski-Dittmer Mail, and/or doing so without notice, was unconstitutional under Turner, any such unconstitutionality was not clearly established or sufficiently defined, given the competing authorities and the context of this case, at the time of the acts, entitling Defendants to have [qualified] immunity ...” (#81, p. 27).

AR 750 is the principal regulation governing general mail (AR 722 governs legal mail, which is not applicable here). AR 750 defines “general correspondence” as any mail that is not “privileged correspondence.” AR 750, definitions, D-MSJ 97. All general incoming mail may be opened and inspected for contraband outside the presence of the inmate, and in all cases where incoming mail is censored, the inmate and the sender are to be notified with the reason for the censorship and given the opportunity to appeal the decision. AR 750.06.1.4, 1.5, 1.7, D-MSJ 984. AR 750 defines censorship as “[t]he intent to suppress or delete anything considered objectionable under this regulation. Censorship may include, but is not limited to: [1] Deleting portions of a letter; [2] Returning the letter either in its entirety or in part to the sender; and, [3] Removing printing or pictures, adulterated mail or rendering any portion of the contents unintelligible.” AR 750, definitions, D-MSJ 973. General incoming correspondence may be censored if, among other things, it is found that the correspondence contains threats of criminal activity, addresses introducing contraband into the institution or sending contraband out of the institution, or concerns plans for activities in violation of institutional rules or for criminal activity. AR 750(V)(E)(l)-(9). Additionally, if an inmate’s name is misspelled and there is no identification number or an incorrect identification number, the mail will be returned unopened to the sender. AR 750.03.1.2.5. AR 750 defines “adulterated mail” as “[i]tems of correspondence or publications that have an unknown substance on it. Adulteration includes, but is not limited to, lipstick, stickers, white out, perfumes, and other unknown foreign substances.” AR 750, definitions, D-MSJ 973. With regard to “adulterated mail,” AR 750 states that “[a]ny envelope or correspondence, magazine or book that has evidence of adulteration or a foreign substance such as stickers, lipstick, or perfume will not be issued to the inmate.” AR 750.03.1.6, D-MSJ 981.

The court agrees with plaintiffs that when a prison rejects and returns or withholds opened mail to the sender because of the .content of the mail, the prisoner’s and the sender’s First Amendment rights are implicated and the prisoner is therefore entitled to the due process procedures set out in Martinez (“the decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards .... an inmate [must] be notified of the rejection of a letter ..., the author of that letter [must] be given a reasonable opportunity to protest that decision, and ... complaints [must] be referred to a prison official other than the person who originally disapproved the correspondence.” 416 U.S. at 417-418, 94 S.Ct. 1800). See, e.g. Witherow v. Crawford, 3:01-cv-00404-LRH-VPC, # 236, p. 3-4; see also Frost v. Symington, 197 F.3d 348 (9th Cir.1999) (holding that a prisoner has a “due process liberty interest in receiving notice that his incoming [magazines are] being withheld by prison authorities” based on obscenity concerns), Sorrels v. McKee, 290 F.3d 965, 972 (9th Cir.2002) (holding that withholding delivery of inmate mail must be accompanied by minimum procedural safeguards), Prison Legal News v. Cook, 238 F.3d 1145, 1152 (9th Cir.2001) (holding that a prisoner has a “constitutionally protected right” to receive a nonprofit organization’s newsletter).

However, none of these cases concerned a situation where mail was returned unopened because of perceived defects on the envelope, such as stickers or an incomplete address, as opposed to security concerns raised by the content of the mail. In Martinez, the Court struck down prison regulations that authorized “censorship of statements that ‘unduly complain’ or ‘magnify grievances,’ expression of ‘inflammatory political, racial, religious or other views,’ and matter deemed ‘defamatory’ or ‘otherwise’ inappropriate.’ ” 416 U.S. at 415, 94 S.Ct. 1800. The other cases also concern situations in which a prison censors or withholds delivery of mail based on the written content of letters or publications. Witherow’s mail was returned unopened due to defects on the envelope, specifically, the tape that was applied to the outside of the envelope, not because of the content of the letters themselves or because any contraband was found inside the envelope. The court finds this situation to be more similar to the facts in Jeffries v. Snake River Corrections-Oregon, cited by defendants.

In Jeffries, an Oregon Department of Corrections regulation directed officers to first check incoming mail for “noticeable violations” before accepting it into the prison. All mail with noticeable violations was returned to the sender via the United States Postal Service with a sticker notifying the sender of the violation. Inmates were not notified when their incoming mail was returned to sender for a noticeable violation. 2008 WL 3200802 *1 (D.Or.2008). The court found that the prison’s “policy of screening inmates’ mail and prohibiting incoming mail containing stickers or certain adhesives does not violate plaintiffs First Amendment right to receive mail.” Id. at *4. In reaching this conclusion, the court underwent a full Turner analysis. The court stated:

The state government has a legitimate penological interest in preventing narcotics, such as LSD, from coming into [the prison]. This interest is rationally served by prohibiting mail containing adhesives and stickers, which can facilitate the transmission of narcotics. Furthermore, prohibiting stickers and adhesives on incoming mail does not deprive prisoners of their right to send and receive mail; rather, inmates can still receive mail that is free from contraband adhesives, and senders have the opportunity to resend their letters after correcting the identified violations. Allowing adhesives and stickers to be introduced into the prison would result in adverse effects on guards, other inmates, and prison resources generally, because it would enable inmates to receive mail containing contraband such as narcotics.

Id. The court then discussed whether inmates had a right to notice when the prison rejected incoming mail for noticeable violations. The court acknowledged that the lack of notice was frustrating to the inmate, but stated that it was questionable whether an inmate has a First Amendment right to be notified when his mail is rejected for noticeable violations. The court likened the prison’s policy of returned mail to the sender without notice to the intended recipient to the “widely accepted U.S. Postal Service practice of not providing notice to intended recipients when ordinary mail is returned for lack of postage or some other technical deficiency.” Id. at *5.

Although the court did not believe inmates had a right to notice when mail was returned for noticeable violations, it nonetheless went through a Turner analysis, assuming that it applied “for the sake of argument.” The court discussed the large volume of mail that the prison received, and found that “[providing notice to each inmate recipient for each letter with a noticeable violation would drain already limited resources from security screening of mail that actually enters the institution, heightening chances that contraband may inadvertently be allowed into the prison.” Id. Further, “[d]espite the lack of notice, plaintiff would still have access to this mail once the sender corrects any deficiencies and re-sends the letter.” Id. Therefore, because the court concluded that the prison’s policy of not providing notice every time a piece of mail is rejected for having a noticeable violation satisfies the Turner requirements, it found that the policy did not violate the First Amendment. Id.

Plaintiffs argue that a Turner analysis is not applicable in this case because the “Unopened Mail Policy” was not “written, approved, and published” (# 86, p. 16). They argue that the alleged policy conflicts with AR 750 and clearly established law, and that “[a] Turner analysis of the alleged Unopened Mail Policy cannot be conducted because that policy did not, in fact, exist.'” Id. Further, “[a] Turner analysis is not required because Plaintiffs are not challenging the validity of a prescribed, approved and published regulation authorizing the infringement on Plaintiffs constitutional rights” (# 85, p. 15) (emphasis in original). As the court previously stated, Turner applies to prison regulations, policies, and practices. Both Feil and Tupa believed that tape and stickers on envelopes made it adulterated as provided by AR 750. It appears that even though there was not a written “unopened mail policy,” such policy existed in practice, and the mail room workers engaged in complying with such policy. Defendant Vare, the Warden at the time, also confirms the existence of the policy (# 78, D-DEC 025). Additionally, the practice of returning mail with noticeable defects on the envelopes without giving notice to the intended inmate recipient does not conflict with AR 750. AR 750 requires notice and an opportunity to appeal when mail is censored. Sikorski and Dittmer’s mail was not censored. Further, although tape is not specifically listed in the definition of “adulterated mail,” the definition specifically states that the list of examples of adulterated mail,provided is not inclusive. Therefore, tape can reasonably be considered a foreign substance within this definition. AR 750 states that any adulterated mail “will not be issued to the inmate.” Therefore, a Turner analysis is appropriate here.

Defendants’ practice of returning mail to the sender unopened when such mail contains an unknown or foreign substance (and is therefore “adulterated” under AR 750), is rationally connected to a legitimate governmental interest. The state has a legitimate interest in preventing illegal chemical drugs from coming into LCC, which can occur when such drugs are concealed under tape or stickers (# 78, p. 21). This interest is rationally served by prohibiting tape and stickers on incoming mail. Second, plaintiffs have alternative means of exercising their right to send and receive mail. Indeed, Sikorski and Dittmer both exercised this right by resending 'the mail without tape. Third, there would be a great impact in accommodating the receipt of incoming mail with tape or stickers. “Allowing adhesives and stickers to be introduced into the prison would result in adverse effects on guards, other inmates, and prison resources generally, because it would enable inmates to receive mail containing contraband such as narcotics.” Jeffries, 2008 WL 3200802, *4. Finally, plaintiffs do not provide any alternatives to the prison’s practice of returning such mail unopened. As all of the Turner factors are satisfied, defendants practice of returning such mail unopened is rationally related to a legitimate penological interest and does not violate plaintiffs’ First Amendment rights.

Due Process also does not require defendants to provide plaintiffs notice and an opportunity to appeal the decision. Plaintiffs claim no liberty interest under AR 750, and “[i]t is questionable whether an inmate even has a First Amendment right to be given notice when his mail is rejected for such violations.” Id. at *5. Additionally, under a Turner analysis, LCC’s policy of not giving notice and an opportunity to appeal to inmates regarding mail that was returned to the sender because of noticeable violations on the outside of the envelope does not violate plaintiffs’ First or Fourteenth Amendment rights. First, defendants contend the governmental interest at stake here is the conservation of prison resources. There is a valid and rational connection between the practice of not providing notice to the inmate in these situations and this legitimate governmental interest. Providing notice to every inmate for every piece of mail containing tape, stickers, or other noticeable violations would misuse and drain very limited prison resources, which could actually “heighten!] [the] chances that contraband may inadvertently be allowed into the prison.” Second, inmates still have an alternative means of being notified of the returned mail and of receiving such mail. The sender is notified of the violation as soon as he or she receives the returned mail, as LCC staff mark that mail was returned because of the tape, stickers, or other noticeable violation. The sender can then return this mail in an envelope without tape, as actually occurred here. The sender could also inform the inmate via telephone that the mail had been returned. Third, accommodation of giving notice and an opportunity to appeal for every piece of mail with a noticeable violation would place a significant burden on prison resources. Forth, plaintiffs offer no ready alternatives to this practice that would not strain limited prison resources.

Neither plaintiffs nor defendants have indicated any controlling cases, which discuss an inmate’s rights or a prison’s duties when returning mail to the sender unopened for “noticeable violations” on the envelope. Although Jeffries is not binding on this court, it is informative of how another District Court has analyzed a prison’s policy to return unopened mail without giving notice. However, as there appear to be no binding cases discussing this issue, the law is certainly not clearly established, and defendants are entitled to qualified immunity, as more fully discussed below.

a) Qualified Immunity

“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.” Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 815, 172 L.Ed.2d 565 (2009) (internal quotation marks omitted). “For a constitutional right to be clearly established, its contours must be sufficiently clear that a reasonable official would understand that what he is doing violates that rights. This is not to say that an official action is protected by qualified immunity unless the very action in question has previously been held unlawful; but it is to say that in the light of pre-existing law the unlawfulness must be apparent.” Hope v. Pelzer, 536 U.S. 730, 739, 122 S.Ct. 2508, 153 L.Ed.2d 666 (2002) (citation omitted).

“Although earlier cases involving ‘fundamentally similar’ facts can provide especially strong support for a conclusion that the law is clearly established, they are not necessary to such a finding.” Id. At 741. Accordingly, qualified immunity will be denied if a case involves “the mere application of settled law to a new factual permutation.” Porter v. Bowen, 496 F.3d 1009, 1026 (9th Cir.2007). However, even if the violated right was clearly established, it may be difficult for an officer to fully appreciate how the legal constraints apply to the specific situation he or she faces. Motley v. Parks, 432 F.3d 1072, 1077 (9th Cir.2005 (en banc)). “Under such circumstance, if the officer’s mistake as to what the law requires is reasonable, ... the officer is entitled to the immunity defense.” Id. (brackets and internal quotation marks omitted). In essence, “[o]fficers are entitled to qualified immunity unless they have been given fair notice that their conduct was unreasonable in light of the specific context of the case.” Winterrowd v. Nelson, 480 F.3d 1181, 1186 (9th Cir.2007) (internal quotation marks omitted).

Prior to Pearson v. Callahan, — U.S. —, 129 S.Ct. 808, 172 L.Ed.2d 565 (2009), the Supreme Court mandated a two-step framework for deciding the issue of qualified immunity. First, courts were to decide whether “[t]aken in the light most favorable to the party asserting the injury, do the facts alleged show the officer’s conduct violated a constitutional right?” Saucier v. Katz, 533 U.S. 194, 201, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). If the court answered this question affirmatively, the court would then ask whether the constitutional right was clearly established. Id. In Pearson, the Supreme Court reconsidered the two-step framework and held that courts are not required to address whether there was a constitutional violation before deciding whether the constitutional right at issue was clearly established. 129 S.Ct. at 818. However, the Supreme Court also stated that courts may continue to follow the two-step framework as a matter of discretion. Id.

The court has not found, and plaintiffs have not cited, any case which stands for the proposition that plaintiffs are entitled to notice and an opportunity to appeal before or after mail is returned unopened due to defects on the envelope. Nearly all of the cases cited discuss when due process is required when mail is rejected and returned to sender or withheld from the prisoner due to the content of the letter or publication (obscenity, discussion of criminal activities, other security concerns). Jeffries is the only case cited that discusses a prisoner’s rights when mail is returned unopened. As stated earlier, this is a District of Oregon case and is therefore not binding on this court. Plaintiffs have cited any Ninth Circuit cases that are binding on this court that come to the opposite (or even the same) conclusion as Jeffries. Therefore, the law is not clearly established and defendants are entitled to qualified immunity.

3. Sixth Cause of Action — Sager Mail

Defendants next contend that they are entitled to summary judgment on the sixth cause of action because prison officials may prohibit correspondence between inmates based on security concerns (# 78, p. 23). Defendants state that the “Sager Mail” was returned because it contained confidential information about another NDOC inmate and the crime committed by that inmate. Id. Defendants again argue that plaintiff Witherow has no liberty interest in AR 750 and that their policy of prohibiting correspondence between inmates is rationally related to a legitimate penological interest and is valid under the Turner analysis. Defendants also defend their actions based upon AR 569, which prohibits inmates from possessing “information that would endanger the health or safety of the subject or other persons, endanger the security of any departmental facility, [or] disclose personal information pertaining to a person other than the inmate when the information would not reasonably be part of the inmate’s knowledge or experience” (# 81, p. 28). Additionally, defendants are entitled to qualified immunity.

Plaintiffs respond that because Sager was not an inmate, there was no inmate-to-inmate mail involved, and that the Sag