JOSEPH ALLEN V. MARK MILLER, No. 19-35323 (9th Cir. 2020)

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NOT FOR PUBLICATION UNITED STATES COURT OF APPEALS FILED AUG 6 2020 MOLLY C. DWYER, CLERK FOR THE NINTH CIRCUIT JOSEPH M. ALLEN, No. Plaintiff-Appellant, v. U.S. COURT OF APPEALS 19-35323 D.C. No. 2:17-cv-01625-JCC MEMORANDUM* MARK MILLER, Defendant-Appellee, and SCOTT HAUKINS, Property Sergeant; et al., Defendants. Appeal from the United States District Court for the Western District of Washington John C. Coughenour, District Judge, Presiding Submitted August 4, 2020** San Francisco, California Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges. * This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Joseph Allen appeals the district court’s dismissal of his 42 U.S.C. § 1983 action. We review de novo the district court’s order granting Mark Miller’s motion for summary judgment. See Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999). We have jurisdiction under 28 U.S.C. § 1291, and we affirm. The district court correctly held that Mark Miller is entitled to qualified immunity for each of Allen’s three constitutional claims. When a defendant raises a qualified immunity defense, we ask “whether the plaintiff’s allegations, if true, establish a constitutional violation.” Wilkins v. City of Oakland, 350 F.3d 949, 954 (9th Cir. 2003). We further inquire whether “the actions alleged violate a clearly established constitutional right, where ‘clearly established’ means that ‘it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.’” Id. (emphasis in original) (quoting Saucier v. Katz, 533 U.S. 194, 202 (2001)). Failure to meet either prong is sufficient to sustain the defendant’s qualified immunity defense. See Pearson v. Callahan, 555 U.S. 223, 236 (2009) (holding that either prong of the qualified immunity test can be addressed first). Allen first alleges that Miller retaliated against him in response to his protected conduct, in violation of the First Amendment. In the prison context, a retaliation claim has five elements: “(1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and that such action (4) chilled the inmate’s exercise of his First 2 Amendment rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. Robinson, 408 F.3d 559, 567–68 (9th Cir. 2005) (footnote omitted). Importantly, “a plaintiff must show that his protected conduct was the substantial or motivating factor behind the defendant’s conduct.” Brodheim v. Cry, 584 F.3d 1262, 1271 (9th Cir. 2009) (internal quotation marks removed) (quoting Soranno’s Gasco, Inc. v. Morgan, 874 F.2d 1310, 1314 (9th Cir. 1989)). Allen has failed to allege facts that establish that Miller’s search and confiscation did not reasonably advance a legitimate correctional goal. At least some of the confiscated artwork was sexual in nature, which is prohibited as “sexually explicit material” in Washington correctional facilities by the Washington Administrative Code. See Wash. Admin. Code § 137–48–020(13). The district court therefore correctly held that Miller was entitled to qualified immunity on Allen’s retaliation claim. Second, Allen argues that Miller’s confiscation of his artwork constitutes a constitutional violation of his First Amendment right to freedom of expression. A reasonable officer could have believed that confiscating Allen’s sexually explicit artwork was consistent with the First Amendment. We have previously upheld a correctional regulation that prohibited inmates from possessing materials depicting “frontal nudity” on the basis that it was reasonably related to legitimate 3 penological interests such as jail security and the reduction in sexual harassment of female officers. See Mauro v. Arpaio, 188 F.3d 1054, 1058–59 (9th Cir. 1999). Washington state similarly prohibits sexually explicit materials in its correctional facilities and Miller could have reasonably believed that Allen’s confiscated artwork was prohibited under the relevant administrative regulations. See Wash. Admin. Code § 137–48–020(13). Miller is therefore entitled to qualified immunity with respect to Allen’s First Amendment claim. Finally, Allen alleges a Fourteenth Amendment claim for deprivation of personal property. Here too Miller is entitled to qualified immunity because where a state employee engages in a random, unauthorized deprivation of property, either negligently or intentionally, there is no cognizable constitutional violation so long as the state provides an adequate post-deprivation remedy. See Hudson v. Palmer, 468 U.S. 517, 533 (1984). Washington state provides an adequate post-deprivation remedy and so Allen lacks a cognizable constitutional claim. See Wash. Rev. Code §§ 4.92.090–.100. AFFIRMED. 4

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