Thomas William Sinclair Richey, Plaintiff-appellant, v. James Spalding, Superintendent; et al., Defendants-appellees, 48 F.3d 1228 (9th Cir. 1995)

MEMORANDUM^** 

Washington state prisoner Thomas W.S. Richey appeals pro se the district court's summary judgment in favor of the defendants. Richey alleged that the defendants violated his First Amendment rights when they refused to let him receive a package containing three books sent from a retail bookstore. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we review de novo, see Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712 (9th Cir. 1990). We vacate the district court's judgment and remand for further proceedings.

On January 4, 1993, the Washington State Penitentiary mailroom received a package addressed to Richey containing three paperback books from Bauermeister Bookseller, a retail bookstore located in Scotland. The defendants rejected the package because the books were not prepaid from Richey's inmate account, but instead had been purchased and sent by Richey's aunt. After exhausting his administrative remedies, Richey instigated this action. The parties moved for summary judgment and the district court found that the three regulations in question were reasonably related to a legitimate penological interest and, therefore, constitutional under Turner v. Safley, 482 U.S. 78 (1987).

Richey raised a triable issue of fact as to whether the rule restricting the receipt of any item sent through the mail "if items are not ordered and approved in advance through facility-designated channels," Department of Corrections (DOC) Policy 450.100 Procedure (A) (2) (t), and the publisher-only rule, DOC Policy No. 450.100 Procedure (E) (1), are reasonably related to a legitimate penological objective in view of the exception which provides that inmates may receive quarterly packages containing Bibles, religious books, textbooks, diaries, or journals directly from family and friends, DOC Policy No. 450.100 Procedure (F). The district court's order does not address this argument.

This issue is material, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986), because the lack of a reasonable relationship with a valid penological objective would be fatal to the rule restricting the receipt of any item sent through the mail if items are not ordered and approved in advance through facility-designated channels and the publisher-only rule. See Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); Turner, 482 U.S. at 86-89. Furthermore, this issue is genuine, see Anderson, 477 U.S. at 248, because the exception which provides that inmates may receive quarterly packages containing Bibles, religious books, textbooks, diaries, or journals directly from family and friends might permit a reasonable jury to conclude the other policies are "arbitrary or irrational," Turner, 482 U.S. at 90, or represent an "exaggerated response" to legitimate penological concerns, id. at 87.

VACATED AND REMANDED.