J.r. Wilkerson, Plaintiff-appellant, v. Charles D. Marshall, Warden, Defendant-appellee, 29 F.3d 638 (9th Cir. 1994)

MEMORANDUM^** 

J.R. Wilkerson, a California state prisoner, appeals pro se the district court's summary judgment in favor of defendant Charles Marshall in Wilkerson's 42 U.S.C. § 1983 action alleging that Marshall violated his First Amendment right to correspond and to marry. We have jurisdiction under 28 U.S.C. § 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 496 U.S. 937 (1990), and affirm.

Wilkerson contends that Marshall violated his First Amendment rights by implementing a prison policy that prohibited prisoners from soliciting pen pals from the general public. Although the policy was subsequently rescinded, Wilkerson seeks damages for three letters that were allegedly confiscated as a result of the policy. The letters were responses to Wilkerson's newspaper advertisement seeking a relationship with a woman. Marshall contends that even if the ban on pen pal solicitation violated Wilkerson's First Amendment rights, he was immune from suit by the doctrine of qualified immunity. We agree.¹ 

Whether an official may be held personally liable for an allegedly unlawful official action generally turns on the "objective legal reasonableness" of the action, assessed in light of the legal rules that were "clearly established" at the time the action was taken. Anderson v. Creighton, 483 U.S. 635, 639 (1987); Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). The contours of the right allegedly violated must have been sufficiently clear and particularized so that a reasonable official would have known that what he did violated the right. Anderson, 483 U.S. at 640. Thus, "in light of pre-existing law, the unlawfulness [of the official action] must be apparent." Id.

In determining whether the legal rules governing pen pal soliciations were clearly established at the time Marshall implemented the ban, we first look to binding precedent. See Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985). In the absence of binding precedent, we look to "whatever decisional law is available." Id.

Here, at the time defendant Marshall imposed the pen pal solicitation ban, there was no direct authority on the issue of whether such a ban violates a prisoner's First Amendment right. There was ample authority, however, supporting a variety of restrictions on prison correspondence. See eg., Turner v. Safley, 482 U.S. 78, 89 (1987) (upholding limitation on inmate to inmate correspondence); Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir. 1989) (upholding ban on incoming publications which prison officials determined were detrimental to prison security); Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) (upholding ban on receipt of chain letters); Holloway v. Pigman, 884 F.2d 365, 367 (8th Cir. 1989) (upholding ban on receipt of letter that do not conform to prison regulations). Accordingly, because the law on the constitutionality of prisoner pen pal solicitations was not clearly established at the time Marshall imposed the ban, Marshall was immune from suit. See Anderson, 483 U.S. at 640.² 

AFFIRMED.