Melvin A. McCabe & Mark H. Madsen v. Arvon J. Arave, Warden, Idaho State Penitentiary Al Murphy, Dir., Idaho State Dep't of Corr., 827 F.2d 634 (9th Cir. 1987). · Go Syfert
Melvin A. McCabe & Mark H. Madsen v. Arvon J. Arave, Warden, Idaho State Penitentiary Al Murphy, Dir., Idaho State Dep't of Corr., 827 F.2d 634 (9th Cir. 1987). Cases Citing This Book View Copy Cite
201 citation events (117 in the last 25 years) across 31 distinct courts.
Strongest positive: Jones v. Southwest Gas Corporation (nvd, 2019-08-22)
Treatment trajectory · 1987 → 2026 · click a year to view as-of
1987 2006 2026
Top citers, strongest first. 50 distinct citers.
discussed Cited as authority (verbatim quote) Jones v. Southwest Gas Corporation
D. Nev. · 2019 · quote attribution · 1 verbatim quote · confidence high
ourts are to make reasonable 5 allowances for pro se litigants and to read pro se papers liberally.
discussed Cited as authority (verbatim quote) Best Odds Corp. v. Ibus Media Ltd.
9th Cir. · 2016 · signal: see · quote attribution · 1 verbatim quote · confidence high
for a sanction to be validly imposed, the conduct in question must be sanctionable under the authority relied on.
examined Cited as authority (verbatim quote) Amatel, Joseph v. Hawk, Kathleen
D.C. Cir. · 1998 · quote attribution · 1 verbatim quote · confidence high
given the strength of first amendment protection for freedom of belief, prison authori- ties have no legitimate penological interest in excluding reli- gious books from the prison library merely because they contain racist views.
discussed Cited as authority (verbatim quote) Linda Marie Zambrano, and Jose E. Tafolla, Esq. Philip W. Orr, Esq., Claimants-Appellants v. City of Tustin David Kreyling (2×) also: Cited as authority (rule)
9th Cir. · 1989 · quote attribution · 1 verbatim quote · confidence high
court would have to make a finding of bad faith
examined Cited as authority (quoted) Xie v. Wu
D. Or. · 2023 · signal: see also · quote attribution · 1 verbatim quote · confidence low
ourts are to make reasonable allowances for pro se litigants and to read pro se papers liberally. the analysis, therefore, includes the possibility of the court imposing sanctions based on its inherent powers.
discussed Cited as authority (quoted) Sharper v. RAMCO- Right Away Maintenance Company
M.D. La. · 2023 · quote attribution · 1 verbatim quote · confidence low
courts are to make reasonable allowances for pro se litigants and to read pro se papers liberally
discussed Cited as authority (quoted) Williams v. Louisiana Department of Education
M.D. La. · 2021 · quote attribution · 1 verbatim quote · confidence low
courts are to make reasonable allowances for pro se litigants and to read pro se papers liberally
discussed Cited as authority (quoted) Badon v. Perdue
M.D. La. · 2020 · quote attribution · 1 verbatim quote · confidence low
courts are to make reasonable allowances for pro se litigants and to read pro se papers liberally
discussed Cited as authority (rule) Spikes v. Simpson (2×) also: Cited "see"
D. Nev. · 2025 · confidence medium
Although the Ninth Circuit directs courts 17 “to make reasonable allowances for pro se litigants and to read pro se papers liberally,” McCabe v. 18 Arave, 827 F.2d 634, 640 (9th Cir. 1987), Spikes does not proffer any newly discovered evidence, 19 demonstrate that I committed clear error, or show that there was an intervening change in the 20 controlling law that would warrant reconsideration of my prior decision.
discussed Cited as authority (rule) Anthony Schmitt v. Jolene Rebertus
8th Cir. · 2025 · confidence medium
“For example, although ‘inmate rehabilitation’ is a legitimate government interest, a prison may not censor ‘literature advocating racial purity’ on the ground that exposure to racist ideas inhibits rehabilitation.” Sisney, 15 F.4th at 1190 (first quoting Dawson, 986 F.2d at 261 ; then quoting McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987)).5 5 See also Thornburgh, 490 U.S. at 416 n.14 (explaining that “regulations barr[ing] writings that ‘unduly complain’ or ‘magnify grievances,’ express ‘inflammatory political, racial, religious or other views,’ or are ‘defama…
discussed Cited as authority (rule) Saxena v. Martinez-Hernandez (2×) also: Cited "see"
D. Nev. · 2025 · confidence medium
Haw. 1987), rev’d on other grounds, 855 F.2d 860 (9th Cir. 1988)). 19 The Ninth Circuit directs courts “to make reasonable allowances for pro se litigants and 20 to read pro se papers liberally.” McCabe v. Arave, 827 F.2d 634, 640 (9th Cir. 1987).
discussed Cited as authority (rule) Karr v. Ford Motor Company
S.D. Cal. · 2025 · confidence medium
“For a 24 sanction to be validly imposed, the conduct in question must be sanctionable under the 25 authority relied on.” Cunningham v. County of Los Angeles, 869 F.2d 481 , 490 (9th Cir. 26 1989) (citing McCabe v. Arave, 827 F.2d 634, 639 (9th Cir. 1987)).
discussed Cited as authority (rule) (PC) Martinez v. Galvin
E.D. Cal. · 2025 · confidence medium
Cal. Oct. 25, 2011) (finding that an isolated incident of mail mishandling, without evidence that the delay was based 14 on the content of the letter or that the one-year delay was purposeful, fails to show First 15 Amendment violation); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (“Challenges to 16 restrictions of first amendment rights must be analyzed in terms of the legitimate policies and 17 goals of the correctional institution in the preservation of internal order and discipline, 18 maintenance of institutional security, and rehabilitation of prisoners.”). 19 When considering…
discussed Cited as authority (rule) Bolero v. McCarley
D. Nev. · 2024 · confidence medium
Haw. 1987), rev’d on other grounds, 855 F.2d 860 (9th Cir. 1988)). 4 The Ninth Circuit directs courts “to make reasonable allowances for pro se litigants and 5 to read pro se papers liberally.” McCabe v. Arave, 827 F.2d 634, 640 (9th Cir. 1987).
discussed Cited as authority (rule) Trueblood v. Valley Cities Counseling and Consultation
W.D. Wash. · 2024 · confidence medium
Rather, the district court has discretion to strike a 18 late-filed answer, and it may issue such a sanction only upon a finding of bad faith. 19 McCabe, 827 F.2d at 640 (finding no abuse of discretion in declining to strike untimely 20 answer filed on the first day of trial where defense counsel’s delay was in “good faith, but 21 inadvertent”). 22 // 1 The court declines to strike or otherwise disregard VCCC’s untimely answer 2 because the record does not a support a finding of bad faith.
discussed Cited as authority (rule) Hafner v. Lombardo
D. Nev. · 2024 · confidence medium
Haw. 1987), rev’d on other grounds, 855 F.2d 860 (9th Cir. 1988)). 14 The Ninth Circuit directs courts “to make reasonable allowances for pro se litigants and 15 to read pro se papers liberally.” McCabe v. Arave, 827 F.2d 634, 640 (9th Cir. 1987).
discussed Cited as authority (rule) (PC) McClinton v. St. Andre
E.D. Cal. · 2024 · confidence medium
When considering prison regulations regarding incoming 22 publications, “[s]ome content regulation is permissible in the prison context.” McCabe v. Arave, 23 827 F.2d 634, 638 (9th Cir. 1987); see Beard v. Banks, 548 U.S. 521, 531-32 (2006) (discussing 24 Turner factors as applied to regulation restricting access to newspapers, magazines, and 25 photographs). 26 To state a claim an inmate must allege facts showing that “the type of activity he engaged 27 in was protected under the [F]irst [A]mendment and that the state impermissibly infringed on his 28 right to engage in the protected ac…
discussed Cited as authority (rule) (PC) Drake v. McComas
E.D. Cal. · 2024 · confidence medium
Cal. Oct. 25, 2011) 15 (finding that an isolated incident of mail mishandling, without evidence that the delay was based 16 on the content of the letter or that the one-year delay was purposeful, fails to show First 17 Amendment violation); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (“Challenges to 18 restrictions of first amendment rights must be analyzed in terms of the legitimate policies and 19 goals of the correctional institution in the preservation of internal order and discipline, 20 maintenance of institutional security, and rehabilitation of prisoners.”). 21 When consider…
discussed Cited as authority (rule) Cooper v. Miller
M.D. Penn. · 2024 · confidence medium
Of particular significance here, Rule 70 “cannot be used as the authority for contempt or sanctions where [the] defendants failed to answer on time.” See McCabe v. Arave, 827 F.2d 634, 639 (9th Cir. 1987).
discussed Cited as authority (rule) Ivanov v. Fitness Elite Training Center, Inc.
D. Idaho · 2023 · confidence medium
“A court has wide latitude when it determines whether there has been a contemptuous defiance of its order.” McCabe v. Arave, 827 F.2d 634, 640 (9th Cir. 1987); accord Neebars, Inc. v. Long Bar Grinding, Inc., 438 F.2d 47, 48 (9th Cir. 1971) (per curiam).
discussed Cited as authority (rule) (PC) McClinton v. St. Andre
E.D. Cal. · 2023 · confidence medium
When considering prison regulations regarding incoming 20 publications, “[s]ome content regulation is permissible in the prison context.” McCabe v. Arave, 21 827 F.2d 634, 638 (9th Cir. 1987); see Beard v. Banks, 548 U.S. 521, 531-32 (2006) (discussing 22 Turner factors as applied to regulation restricting access to newspapers, magazines, and 23 photographs). 24 To state a claim an inmate must allege facts showing that “the type of activity he engaged 25 in was protected under the [F]irst [A]mendment and that the state impermissibly infringed on his 26 1 California Code of Regulations, t…
discussed Cited as authority (rule) (PC) Bland v. Jennings
E.D. Cal. · 2023 · confidence medium
See 15 Turner, 482 U.S. at 89-91 ; Mauro; 188 F.3d at 1058-59 . 16 When considering prison regulations on in-coming publications, “[s]ome content 17 regulation is permissible in the prison context.” McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 18 1987); Mauro, 188 F.3d at 1059 .
discussed Cited as authority (rule) Edwards v. Juan Martinez, Inc.
D. Nev. · 2023 · confidence medium
Federal courts in this and other circuits 14 generally hold that the untimeliness of an answer, even if extreme like in the 15 present case, is not, by itself, a sufficient reason for granting a motion to strike. 16 See McCabe v. Arave, 827 F.2d 634, 63940 (9th Cir. 1987) (concluding that a 17 district judge did not abuse his discretion by denying the plaintiffs’ request that 18 the defendants' defenses be stricken from an answer that plaintiffs received on 19 the day of trial); Beal v. U.S. Dept. of Agriculture, 2012 WL 3113181 , at *2 (E.D. 20 Wash. Jul. 31, 2012) (declining to strike an a…
discussed Cited as authority (rule) (PC) Drake v. McComas
E.D. Cal. · 2022 · confidence medium
Cal. Oct. 25, 2011) 12 (finding that an isolated incident of mail mishandling, without evidence that the delay was based 13 on the content of the letter or that the one-year delay was purposeful, fails to show First Amendment violation); Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir. 1985) (“Challenges to 14 restrictions of first amendment rights must be analyzed in terms of the legitimate policies and 15 goals of the correctional institution in the preservation of internal order and discipline, 16 maintenance of institutional security, and rehabilitation of prisoners.”). 17 When considering…
discussed Cited as authority (rule) GORDON v. PHILLIP
M.D.N.C. · 2022 · confidence medium
Holdings, Inc. v. Gilmore, 252 F.3d 316 , 347 (4th Cir. 2001), “[i]n harmony with Rule 12(f), federal district courts have ‘inherent power’ to impose sanctions—say, striking an untimely answer—for violations of Rule 12(a),” Lawson, 2019 WL 1754744 , *2 (quoting McCabe v. Arave, 827 F.2d 634, 640 (9th Cir. 1987)); see Kihn v. Vavala, No. 8:18-CV-02619-PX, 2019 WL 2492350 , at *3 (D.
discussed Cited as authority (rule) Charles Sisney v. Denny Kaemingk
8th Cir. · 2021 · confidence medium
For example, although “inmate rehabilitation” is a legitimate government interest, Dawson v. Scurr, 986 F.2d 257, 261 (8th Cir. 1993), a prison may not censor “literature advocating racial purity” on the ground that exposure to racist ideas inhibits rehabilitation, McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987).
discussed Cited as authority (rule) Mitchell Jr v. Borrowman
D. Nev. · 2021 · confidence medium
“Some content regulation is permissible 1 in the prison context.” McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987); see Thornburgh v. 2 Abbott, 490 U.S. 401, 415-16 (1989). 3 Here, Plaintiff alleges a colorable claim for violation of his First Amendment rights by 4 alleging that the deprivation of his books did not have a legitimate penological interest.
discussed Cited as authority (rule) Allen v. Campbell
D. Idaho · 2021 · confidence medium
“A court has wide latitude when it determines whether there has been a contemptuous defiance of its order.” McCabe v. Arave, 827 F.2d 634, 640 (9th Cir. 1987); accord Neebars, Inc. v. Long Bar Grinding, Inc., 438 F.2d 47, 48 (9th Cir. 1971) (per curiam).
discussed Cited as authority (rule) Allen v. Campbell
D. Idaho · 2021 · confidence medium
“A court has wide latitude when it determines whether there has been a contemptuous defiance of its order.” McCabe v. Arave, 827 F.2d 634, 640 (9th Cir. 1987); accord Neebars, Inc. v. Long Bar Grinding, Inc., 438 F.2d 47, 48 (9th Cir. 1971) (per curiam).
cited Cited as authority (rule) Williams v. Kernan
N.D. Cal. · 2021 · confidence medium
McCabe v. Arave, 827 F.2d 634, 637 (9th Cir. 1987).
discussed Cited as authority (rule) Deborah Barefield v. HSBC Holdings, Plc
9th Cir. · 2021 · confidence medium
P. 12(a)(4)(A); McCabe v. Arave, 827 F.2d 634, 639-40 (9th Cir. 1987) (the district court did not abuse its discretion by denying plaintiffs’ motion for sanctions for failing to file a timely answer because failure to file was due to inadvertence).
cited Cited as authority (rule) Wilson v. JPMorgan Chase, N.A.
W.D. Wash. · 2020 · confidence medium
LCR 7(h)(2). 10 The Ninth Circuit directs courts “to make reasonable allowances for pro se 11 litigants and to read pro se papers liberally,” McCabe v. Arave, 827 F.2d 634, 640 (9th 12 Cir. 1987).
cited Cited as authority (rule) United States v. Buckardt
W.D. Wash. · 2020 · confidence medium
LCR 7(h)(2). 15 The Ninth Circuit directs courts “to make reasonable allowances for pro se 16 litigants and to read pro se papers liberally,” McCabe v. Arave, 827 F.2d 634, 640 (9th 17 Cir. 1987).
discussed Cited as authority (rule) Austin v. Brown
S.D. Cal. · 2020 · confidence medium
In evaluating this 18 factor, the Court may consider security concerns, as well as whether the “appearance of 19 favoritism . . . could generate resentment and unrest.” Standing Deer v. Carlson, 831 F.2d 20 1525, 1529 (9th Cir. 1987); McCabe v. Arave, 827 F.2d 634, 637 (9th Cir. 1987). 21 Defendants have presented evidence that all chapel services are subject to the same 22 cancellation policies at RJD.
cited Cited as authority (rule) Robert Rose v. Lynn Guyer
9th Cir. · 2020 · confidence medium
This rule authorizes a district court to enforce its judgment “only when a party refuses to comply with [the] judgment.” McCabe v. Arave, 827 F.2d 634, 639 (9th Cir. 1987); see also Westlake N. Prop.
discussed Cited as authority (rule) Robledo 250767 v. Bautista
D. Ariz. · 2020 · confidence medium
McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987). 4 For example, courts have upheld restrictions on sexually explicit materials, Bahrampour v. 5 Lampert, 356 F.3d 969, 973 (9th Cir. 2004), and materials that were deemed to pose a 6 threat to the order and security of the institution, Harper v. Wallingford, 877 F.2d 728 , 733 7 (9th Cir. 1989).
discussed Cited as authority (rule) Robledo 250767 v. Bautista
D. Ariz. · 2020 · confidence medium
McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987). 7 For example, courts have upheld restrictions on sexually explicit materials, Bahrampour v. 8 Lampert, 356 F.3d 969, 973 (9th Cir. 2004), and materials that were deemed to pose a 9 threat to the order and security of the institution, Harper v. Wallingford, 877 F.2d 728 , 733 10 (9th Cir. 1989). 11 In Counts One and Two, Plaintiff alleges that Defendant Bautista confiscated one 12 page of his incoming mail pursuant to the prison mail policy regarding sexually explicit 13 content.
cited Cited as authority (rule) Frantz v. Idaho Independent Bank
D. Idaho · 2020 · confidence medium
Idaho 2016); In re Jacksen, 105 B.R. 542, 543 (B.A.P. 9th Cir. 1989) (citing McCabe v. Arave, 827 F.2d 634, 640, n.6 (9th Cir. 1987)).
discussed Cited as authority (rule) Smith v. Holbrook
E.D. Wash. · 2019 · confidence medium
Additionally, rejecting material that is 17 reasonably thought to encourage violence promotes a valid penological interest. 18 See McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987) (suggesting that literature 19 that advocates violence as a means of achieving racial purity may be prohibited in 20 the prison setting) (citing Murphy v. Missouri Dep’t of Corrections, 814 F.2d 1252 , 21 1257 (8th Cir. 1987) (prisons may prohibit materials that are racially inflammatory 1 in such a way that they may cause violence)); see also Aikens v. Jenkins, 534 F.2d 2 751, 756–57 (7th Cir. 1976) (“Materi…
discussed Cited as authority (rule) Hougland v. Franco (2×)
Bankr. D.N.M. · 2019 · confidence medium
For example, the Barefield court stated: “The Federal Rules of Civil Procedure do not . . . ‘provide a specific sanction for late filing of an answer.’” 2019 WL 918206 at *2, quoting McCabe v. Arave, 827 F.2d 634, 641 (9th Cir. 1987); see also Franklin v. County of Placer, 2018 WL 1940956 , at *6 (E.D.
discussed Cited as authority (rule) Kevin Sawyer v. R. Cavagnolo
9th Cir. · 2019 · confidence medium
Likewise, the law was clearly established in 2011 that correctional officers violate the First Amendment by seizing notes or literature "not advocating violence or illegal activity" and not "reasonably likely to cause violence at the prison." McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987).
discussed Cited as authority (rule) GCIU-Employer Retirement Fund v. Quad/Graphics, Inc.
C.D. Cal. · 2017 · confidence medium
Life Co., 214 F.3d 1041 , 1045 (9th Cir. 2000); McCabe v. Arave, 827 F.2d 634, 640 (9th Cir. 1987); Loveridge, 567 Fed.Appx. at 662 (applying abuse of discretion standard to the question whether or not a party acted in bad faith within the meaning of § 4221.10(c)).
discussed Cited as authority (rule) Forter v. Geer
D. Or. · 2012 · confidence medium
Although McCabe held that, pursuant to Turner , "literature advocating racial purity, but not advocating violence or illegal activity as a means of achieving this goal, and not so racially inflammatory as to be reasonably likely to cause violence at the prison, cannot be constitutionally banned as rationally related to rehabilitation,” id. at 638 (emphasis added), the context involved a facial challenge to a regulation that allowed literature to be banned solely on the basis of its racist content.
discussed Cited as authority (rule) Daker v. Ferrero
N.D. Ga. · 2007 · confidence medium
See, e.g., Sutton v. Rasheed, 323 F.3d 236 (3d Cir.2003) (concluding denial of Nation of Islam religious books was unconstitutional but defendants were nonetheless entitled to qualified immunity because right not clearly established); McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987) (addressing a “ban” on Church of Jesus Christ books touting white supremacy from a prison library and holding “literature advocating racial purity, but not advocating violence or illegal activity as a means of achieving this goal, and not so racially inflammatory as to be reasonably likely to cause violence …
discussed Cited as authority (rule) Daker v. Ferrero
N.D. Ga. · 2007 · confidence medium
See, e.g., Sutton v. Rasheed, 323 F.3d 236 (3d Cir.2003) (concluding denial of Nation of Islam religious books was unconstitutional but defendants were nonetheless entitled to qualified immunity); McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987) (addressing a “ban” of Church of Jesus Christ books touting white supremacy from a prison library and holding “literature advocating racial purity, but not advocating violence or illegal activity as a means of achieving this goal, and not so racially inflammatory as to be reasonably likely to cause violence at the prison, cannot be constitutiona…
discussed Cited as authority (rule) Lindell v. McCaughtry
7th Cir. · 2004 · confidence medium
See Chriceol v. Phillips, 169 F.3d 313, 316 (5th Cir.1999) (upholding a state “policy of withholding mail that advocates racial, religious, or national hatred that creates a serious danger of violence”); Murphy v. Missouri Dep’t of Corr., 814 F.2d 1252 , 1257 (8th Cir.1987) (state regulation banning racist publication constitutional provided that it is “limited to those materials that advocate violence or that are so racially inflammatory as to be reasonably likely to cause violence at the prison”); McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987) (stating that materials that advoca…
discussed Cited as authority (rule) Sutton v. Rasheed (2×)
3rd Cir. · 2003 · confidence medium
Cf. Williams v. Lane, 851 F.2d 867, 878 (7th Cir.1988) (examining the rights of inmates in protective custody status, which is made available to inmates who fear for their own safety); McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987) (addressing a "ban” of Church Jesus Christ Christian books touting white supremacy from a prison library and holding "literature advocating racial purity, but not advocating violence or illegal activity as a means of achieving this goal, and not so racially inflammatory as to be reasonably likely to cause violence at the prison, cannot be constitutionally banne…
discussed Cited as authority (rule) Sutton v. Rasheed
3rd Cir. · 2003 · confidence medium
After examining the inmates' claims, we required a hearing on the religious significance of "Muhammad Speaks." Id. at 822 . 40 Cf. Williams v. Lane, 851 F.2d 867, 878 (7th Cir.1988) (examining the rights of inmates in protective custody status, which is made available to inmates who fear for their own safety); McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987) (addressing a "ban" of Church Jesus Christ Christian books touting white supremacy from a prison library and holding "literature advocating racial purity, but not advocating violence or illegal activity as a means of achieving this goal, …
discussed Cited as authority (rule) Jael Fraise v. Jack Terhune, Commissioner. Alexander Kettles v. James Barbo Howard Beyer. John Harris v. James Barbo Howard Beyer (2×) also: Cited "see"
3rd Cir. · 2002 · confidence medium
As this issue is not before us, and was not before the District Court, we need not decide whether the FPN would satisfy these requirements, but only stress that non-traditional belief systems found to be religious in nature will be afforded the same protections as traditional ones See Africa v. Pennsylvania, 662 F.2d 1025, 1031-32 (3d Cir.1981) (setting forth three indicia to be used in determining whether a "religion" is at issue). 7 While the FPN tenets may be racial in tone, racism is not the same as violence See McCabe v. Arave, 827 F.2d 634, 638 (9th Cir.1987) ("[P]rison authorities have …
cited Cited as authority (rule) Williams v. Lara
Tex. · 2001 · confidence medium
See Anderson v. Angelone, 123 F.3d 1197, 1198-99 (9th Cir.1997); McCabe v. Arave, 827 F.2d 634, 637 (9th Cir.1987); Brown v. Johnson, 743 F.2d 408, 412 (6th Cir.1984).
Melvin A. McCABE and Mark H. Madsen, Plaintiffs-Appellants,
v.
Arvon J. ARAVE, Warden, Idaho State Penitentiary; Al Murphy, Director, Idaho State Department of Corrections, Defendants-Appellees
86-3640.
Court of Appeals for the Ninth Circuit.
Sep 11, 1987.
827 F.2d 634
Melvin A. McCabe, pro se., Mark H. Madsen, pro se., Anthony G. Cootz, Lay Representative, Idaho State Corr. Inst., Boise, Idaho, for plaintiffs-appellants., James T. Jones, D. Marc Haws, and Robert R. Gates, Boise, Idaho, for defendantsappellees.
Browning, Wright, Boochever.
Cited by 136 opinions  |  Published
2 passages pin-cited by 4 cases
Pinpoint authority: #17,641 of 633,719
Citer courts: M.D. Louisiana (3) · D. Oregon (1)
EUGENE A. WRIGHT, Circuit Judge:

This case requires us to determine the constitutionality of regulations governing prisoners at the Idaho State Correctional Institution in Boise. We affirm the district court’s judgment in favor of the state on the issues of group worship and group study by Church Jesus Christ Christian (CJCC) close-custody inmates, but reverse it as to the ban on storage of CJCC literature in the chapel library. We also vacate the portion of the judgment that pertains to facial hair and pork-free diets.

I. Background

McCabe and Madsen, [1] members of the CJCC, are close-custody inmates at the Idaho prison. They asked prison officials to allow them to hold congregational worship services and study classes with CJCC ministers. The prison chaplain requested information concerning the church and the Aryan Nation from McCabe. The chaplain was given only two documents. These were presented to the prison’s religious advisory council, composed of religious leaders in Boise, which recommended that the requests be denied.

Respondent Murphy, the Director of the Department of Corrections, visited the Hayden Lake compound where he spoke with Reverend Butler, the leader of both the CJCC and Aryan Nation. He then denied plaintiffs’ request.

Plaintiffs filed a section 1983 action alleging violations of their First Amendment rights. Specifically, they challenged the prison policy and regulations that prohibit their group study and worship, ban CJCC literature from the chapel library, and condition their ability to eat a pork-free diet and grow beards on the beliefs of other CJCC members.

The district court, while noting that the Aryan Nation was the alter ego of the CJCC, assumed that the CJCC was a religion. It found that Reverend Butler espouses racial hatred, revenge and violence and that admission of the CJCC to the prison would have a strong potential for compromising prison security. It found that, while 20 to 40 books are strongly suggested by the church, the plaintiffs had not used a grievance procedure to request an exception to the prison’s ten book limit. It did not rule on the legality of the procedure or the alternative of storing books in the chapel library. It found that plaintiffs’ beliefs concerning facial hair and pork-free diets were not required by the CJCC and were not common among its adherents. It gave judgment to the state officials.

[*637] II. First Amendment Claims

The Supreme Court has now clearly set forth the test for determining the constitutionality of regulations that impinge on the First Amendment rights retained by prisoners: “[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.” O’Lone v. Estate of Shabazz, 107 S.Ct. at 2404; Turner v. Safley, — U.S.-, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). [2]

In determining whether the challenged regulations are valid under that test, we are directed to consider (1) whether the regulation has a logical connection to the legitimate government interests invoked to justify it, (2) whether there are alternative means of exercising the rights that remain open to the inmates, (3) the impact that accommodation of the asserted constitutional right will have on other inmates, guards, and prison resources, and (4) the presence or absence of ready alternatives that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests. Turner, 107 S.Ct. at 2262; O’Lone, 107 S.Ct. at 2405-06. There is no separate burden on prison officials to prove that no reasonable method of accommodating the prisoner’s constitutional complaint exists. O’Lone, 107 S.Ct. at 2405; Turner, 107 S.Ct. at 2262. We now evaluate the prisoners’ claims in light of these factors.

McCabe and Madsen first claim that prison officials acted unconstitutionally in refusing to allow them to worship and study in groups. The court found that CJCC members were treated equally with other close custody inmates in this regard, McCabe v. Arave, 626 F.Supp. at 1206, and that Reverend Butler preaches racial hatred, revenge, and violence. Id. at 1204. Given these findings, we find the refusal to permit group worship or study to be logi-

cally connected to the legitimate government interests of security and safety that were invoked to justify it.

The second consideration, alternative means of exercising the right, also weighs in favor of prison officials. They now permit the prisoners to visit individually with CJCC ministers. Id. at 1202. Although these visits are not a perfect substitute, they certainly qualify as a reasonable alternative to group worship for close custody inmates.

Third, permitting group worship and study by close custody CJCC members would adversely affect the rights of others and prison resources. The security concerns expressed by prison officials are entitled to respect and deference. See O’Lone, 107 S.Ct. at 2405; see also Toussaint v. McCarthy, 801 F.2d 1080, 1104 (9th Cir. 1986). Officials said that group worship and study would result in a heightened possibility of violence. The safety and lives of guards and other inmates would be jeopardized by such violence, and its prevention would burden prison resources.

Fourth, no ready alternatives that fully accommodate prisoners’ rights at a de minimis cost to valid penological interests are apparent. Having worship services supervised by guards would do little to prevent espousal of violence by CJCC members. The prison ban on CJCC group worship and study is constitutional.

McCabe and Madsen next attack the ambiguous prison regulation that restricts inmates to ten books or to ten books and ten magazines. They assert that the officials’ failure to allow storage of CJCC literature in the chapel library is unconstitutional.

Examining the claim in light of Turner and O’Lone, we conclude that the regulation cannot stand in its present form. [3] In determining whether a regula[*638] tion has a valid and logical connection to a legitimate government interest, the Supreme Court has stressed that the government objective must be a legitimate and neutral one. Turner, 107 S.Ct. at 2262. Here, officials attempt to prevent violence and the spread of racism by banning CJCC literature from the chapel library. They do provide storage space for literature possessed by inmates of other faiths.

While these objectives are laudable, the officials are regulating on the basis of the content of the literature. The Supreme Court has consistently noted the absence of content regulation in upholding regulations that infringed on the First Amendment rights of prisoners. See, e.g., Bell v. Wolfish, 441 U.S. 520, 551, 99 S.Ct. 1861, 1880, 60 L.Ed.2d 447 (1979); Pell v. Procunier, 417 U.S. 817, 828, 94 S.Ct. 2800, 2807, 41 L.Ed.2d 495 (1974).

Some content regulation is permissible in the prison context. See Procunier v. Martinez, 416 U.S. at 416, 94 S.Ct. at 1812 (suggesting material that might be thought to encourage violence could be banned); Murphy v. Missouri Dep’t of Corrections, 814 F.2d 1252, 1257 (8th Cir.1987) (Aryan Nation materials that advocate violence or that are so racially inflammatory as to be reasonably likely to cause violence can be banned); Aikens v. Jenkins, 534 F.2d 751, 757 (7th Cir.1976) (Procunier does not prohibit ban on literature that may reasonably be thought to encourage violence). As these bans were upheld under the standard of Procunier, such literature can certainly be banned under the less rigorous standard of Turner and O’Lone. Evidence presented to the district court, however, showed that not all CJCC literature could be characterized as posing a threat of violence.

The difficult question then is whether the remaining literature can be banned because it advocates racism or racial purity. Given the strength of First Amendment protection for freedom of belief (see, e.g., Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 903, 84 L.Ed. 1213 (1940)), prison authorities have no legitimate penological interest in excluding religious books from the prison library merely because they contain racist views. Courts have repeatedly held that prisons may not ban all religious literature that reflects racism. Aikens v. Jenkins, 534 F.2d 751, 756-57 (7th Cir.1976); Long v. Parker, 390 F.2d 816, 822 (3rd Cir.1968).

The other factors Turner and O’Lone direct us to consider also weigh in favor of the prisoners. No viable alternative means of exercising these rights appear to exist because 20 to 40 books are strongly suggested for plaintiffs to study so that they may properly understand CJCC doctrine. The impact of admission of properly censored materials on guards, other inmates, and prison resources appears minimal and storage represents a ready alternative at a de minimis cost to legitimate penological interest.

We hold, therefore, that literature advocating racial purity, but not advocating violence or illegal activity as a means of achieving this goal, and not so racially inflammatory as to be reasonably likely to cause violence at the prison, cannot be constitutionally banned as rationally related to rehabilitation. The regulation is too restrictive. The prisoners are entitled to storage privileges for properly censored literature similar to those afforded other inmates. See Jones v. Bradley, 590 F.2d 294, 296 (9th Cir.1979) (quoting Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972)). [4]

We come now to plaintiffs’ claims that prison regulations governing facial hair and special diets unconstitutionally condition their ability to exercise religion on the beliefs of others. See, e.g., Thomas v. Review Board, 450 U.S. 707, 715, 101 S.Ct. 1425, 1430, 67 L.Ed.2d 624 (1981); Callahan v. Woods, 658 F.2d 679, 685-86 (9th Cir.1981); Africa v. Pennsylvania, 662 F.2d 1025, 1029 n. 5 (3d Cir.1981), cert. denied, 456 U.S. 908, 102 S.Ct. 1756, 72 L.Ed.2d 165 (1982). The regulations re[*639] quire the plaintiffs to obtain a statement from a recognized spokesman or authority of the professed religion stating that the practice is “deeply rooted in the religious beliefs” of the religion.

While there is no requirement that administrative remedies be exhausted in cases brought under 42 U.S.C. § 1983, Shell Petroleum, N. V. v. Graves, 709 F.2d 593, 597 (9th Cir.), cert. denied, 464 U.S. 1012, 104 S.Ct. 537, 78 L.Ed.2d 717 (1983); Murphy, 814 F.2d at 1257, the claim must be ripe, and not moot, to be reviewed properly.

McCabe and Madsen presented no evidence whether they intend to obtain, can obtain, or have already obtained the statement required for a permanent permit for a beard or special diet. They were granted temporary permits. There has been no showing that the regulations have been enforced. The supplemental briefs disclosed substantial changes in the regulation governing facial hair. Federal courts should not decide hypothetical questions. California Energy Resources Conservartion & Dev. Comm’n v. Johnson, 807 F.2d 1456, 1463 (9th Cir.1986); see also Murphy, 814 F.2d at 1257 (8th Cir.1987). The court erred in doing so.

III. The Videotape

The state offered a videotape of CJCC-Aryan Nation sermons and ceremonies to illustrate photographer Lake’s testimony. The plaintiffs did not object to the use of the videotapes for illustrative purposes. The court admitted them for that purpose. The court’s findings of fact, however, referred to the videotape rather than to Lake’s testimony.

The court may have erred. The role of illustrative evidence is “preferably that of a testimonial aid for a witness or as an aid to counsel during argument.” United States v. Cox, 633 F.2d 871, 874 (9th Cir.1980), ce rt. denied, 454 U.S. 844, 102 S.Ct. 159, 70 L.Ed.2d 130 (1981); see also United States v. Krasn, 614 F.2d 1229, 1238 (9th Cir.1980). But see McCormick on Evidence 671 (Cleary 3d ed. 1984) (practice of admitting photographs as illustrative evidence, but denying them substantive effect, creates a groundless distinction).

Reversal is required, however, only if the error affected the substantial rights of the parties or is “inconsistent with substantial justice.” See Powell v. Levit, 640 F.2d 239, 241 (9th Cir.) (section 1983 action), cert. denied, 454 U.S. 845, 102 S.Ct. 160, 70 L.Ed.2d 131 (1981). A review of the record indicates that the videotapes were cumulative. Lake had already testified to the events depicted in the tapes. There was no reversible error.

IV. Motion for Sanctions and Contempt

We are asked also to determine whether the district court properly denied plaintiffs’ motion for sanctions and contempt. We review for an abuse of discretion. Gifford v. Heckler, 741 F.2d 263, 266 (9th Cir.1984).

Defendants failed to file a timely answer to plaintiffs’ complaint. Fed.R.Civ.P. 12. Plaintiffs filed a motion for contempt and sanctions before trial and at trial requested specifically that defendants’ defenses be struck from the answer that plaintiffs received the day of trial. Judge Callister delayed ruling on the motion for contempt and sanctions until after trial when he denied it, finding no prejudice to plaintiffs.

For a sanction to be validly imposed, the conduct in question must be sanctionable under the authority relied on. [5] United States v. Stoneberger, 805 F.2d 1391, 1392 (9th Cir.1986). As authority for the imposition of sanctions, plaintiffs relied on Federal Rule Civil Procedure 70. Federal Rule Civil Procedure 70, however, is operative only when a party refuses to comply with a judgment. De Beers Consolidated Mines, Ltd. v. United States, 325 U.S. 212, 218, 65 S.Ct. 1130, 1133, 89 L.Ed. 166 (1945). Federal Rule Civil Procedure 70 cannot be used as the authority for contempt or sanctions where defendants failed to answer on time.

[*640] The district court could, however, have imposed sanctions by exercising its inherent power. [6] Stoneberger, 805 F.2d at 1393 (citing Roadway Express, Inc. v. United States, 447 U.S. 752, 764, 100 S.Ct. 2455, 2463, 65 L.Ed.2d 488 (1980)). The court would have to make a finding of bad faith. Stoneberger, 805 F.2d at 1393; Miranda v. So. Pacific Transp. Co., 710 F.2d 516, 520 (9th Cir.1983). Judge Callister accepted the defense attorney’s statement that the answer was not filed timely because of “inadvertence.” He is in the better position to assess counsel’s credibility. Defendants’ participation in discovery lends further support to a good faith, but inadvertent, failure to file an answer. We cannot say that the judge abused his discretion in denying plaintiffs’ motion for sanctions.

Nor can we say that he abused his discretion when he denied the contempt motion. Although defendants filed late, they did file an answer. A court has wide latitude when it determines whether there has been a contemptuous defiance of its order. Gifford, 741 F.2d at 266. Although Judge Callister did not abuse his discretion, this court strongly disapproves of the state’s failure to file a timely answer.

We REVERSE the judgment of the district court insofar as it upholds the ban on the storage of properly censored CJCC materials in the chapel library. We VACATE the portions of the judgment that concern facial hair and special diet. The judgment, including the denial of money damages, is otherwise AFFIRMED. [7]

1

. We stayed our decision in this case pending the Supreme Court’s decision in O’Lone v. Estate of Shabazz, — U.S. -, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987). We have been advised by supplemental briefs that Madsen is no longer incarcerated, but that McCabe remains in prison. A case or controversy thus remains.

2

. The district court assumed, without deciding, that plaintiffs beliefs were sincerely held and that the CJCC qualified as a religion. See McCabe v. Arave, 626 F.Supp. 1199, 1205 (D.Idaho 1986). We rely on these assumptions.

3

. Although the same result is likely under the heightened scrutiny of Procunier v. Martinez, 416 U.S. 396, 94 S.Ct. 1800, 40 L.Ed.2d 224 (1974), we decline to apply that standard here where the only question presented is the availability of storage space for the prisoners’ litera-

4

. The chaplain admitted that storage space was available. This is not a case where the prison is being asked to provide special facilities to a few inmates. See Cruz v. Beto, 405 U.S. at 322 n. 2, 92 S.Ct. at 1081 n. 2.

5

. Fed.R.Civ.P. 12 does not provide a specific sanction for late filing of an answer.

6

. Although the authority cited by the plaintiffs is incorrect, courts are to make reasonable allowances for pro se litigants and to read pro se papers liberally. Traguth v. Zuck, 710 F.2d 90, 95 (2nd Cir.1983). The analysis, therefore, includes the possibility of the court imposing sanctions based on its inherent powers.

7

. "Because the damage claims are asserted against the defendants in their official capacities, they are barred by the eleventh amendment." Rodriguez v. James, 823 F.2d 8, 11 n. 3 (2d Cir.1987).