Santiago v. Wilkinson

Opinion

4 UNITED STATES DISTRICT COURT AT TACOMA 6 MARCO SANTIAGO, 7 No. 3:20-CV-5538-RSL-DWC Plaintiff, 8 v. ORDER ADOPTING REPORT AND BARRY WILKINSON, et al., 10 Defendants.

12 The Court, having reviewed the Report and Recommendation of Magistrate Judge David 13 W. Christel, objections to the Report and Recommendation, if any, and the remaining record, 14 does hereby find and ORDER: 15 (1) The Court adopts the Report and Recommendation with the following 16 modifications:

17 a. At page 6, line 6, replace “(per curium)” with “(per curiam”).

18 b. At page 8, after line 20 and before line 21, insert the following:

19 While “an inmate could marshal scientific studies or record evidence to 20 ‘refute an apparently obvious’ connection,” Frost, 197 F.3d at 356, the evidence plaintiff relies on fails to refute the connection here. Plaintiff cites 21 her public records request for records concerning verbal sexual assaults against DOC employees or contract staff involving an offender in possession 22 of content defined in WAC 137-48-020, to which DOC located no responsive records. Although plaintiff believes this shows that DOC employees/contract 23 staff have not been negatively impacted by this content in the last 15 years, 24 Dkt. 19 at 7, 10, the Court disagrees. Plaintiff’s public records request was limited to records that led to criminal charges being filed against the offender. 25 Dkt. 20 at 365–67. Bad behavior, even where it does not lead to criminal charges, can still interfere with legitimate penological interests. Additionally, 26 prison officials need not prove that the prohibited material caused problems in the past or that it is likely to cause problems in the future. There must simply

ORDER ADOPTING REPORT AND RECOMMENDATION- 1 1 be a rational relationship between the regulation and the legitimate penological interest. Mauro, 188 F. 3d at 1060. 2 c. At page 10, replace lines 4–13 with the following: 3 Plaintiff makes various arguments regarding this factor: (1) that defendants 4 have not offered evidence of negative impact, (2) that DOC has a policy 5 prohibiting inmates from borrowing, lending, trading, selling or giving property to another inmate, (3) that a book “intended for minors” will not 6 negatively impact DOC, Dkt. 19 at 10, and (4) that the content the DOC is complaining about is “already wide-spread throughout facilities by their own 7 approval process, and without recorded problems,” Dkt. 35 at 6. The Court takes these arguments in turn. 8

9 First, as discussed above, defendants need not prove past incidents of sexually explicit materials inciting bad behavior, and plaintiff’s public records request 10 evidence has not refuted the connection here. Second, while DOC may prohibit inmates from transferring their property to others, inmates may 11 disregard that policy, and even inmates committed to abiding by the policy 12 could be the targets of theft. Third, the Court finds that one publisher’s opinion of what teens should be reading is irrelevant to whether the material 13 in question meets the statutory definition of sexually explicit material. Fourth, prison administrators may draw distinctions between publications on the basis 14 of their potential implications for prison security, Thornburgh, 490 U.S. at 415, and the mere fact that some similar, less problematic publications have 15 been approved does not undermine defendants’ concern regarding the ripple 16 effect of permitting access to sexually explicit materials.

17 d. At page 11, line 8, replace “Turner, 482 U.S. at 90-91 (also finding “if a claimant can point to an alternative that fully . . .” with “Turner, 482 U.S. at 18 91 (also finding “if an inmate claimant can point to an alternative that fully . . .” 19

20 e. At page 13, line 1, replace “Marina Islands” with “Mariana Islands.”

21 (2) Defendants’ Motion for Summary Judgment (Dkt. 29) is granted, and Plaintiff’s Motion for Summary Judgment (Dkt. 19) is denied. Plaintiff’s claims are 22 dismissed with prejudice.

23 (3) The Clerk is directed to send copies of this Order to Plaintiff, counsel for 24 Defendants, and to the Hon. David W. Christel.

ORDER ADOPTING REPORT AND RECOMMENDATION- 2 1 DATED this 16th day of August, 2021. 2 A

3 Robert S. Lasnik United States District Judge 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26

ORDER ADOPTING REPORT AND RECOMMENDATION- 3