Starr v. Coulombe , 368 F. App'x 156 ( 2010 )


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  •                   Not for Publication in West's Federal Reporter
    United States Court of Appeals
    For the First Circuit
    No. 09-1446
    DARREN F. STARR,
    Plaintiff, Appellant,
    v.
    TIMOTHY COULOMBE, Corporal,
    Northern NH Correctional Facility, Et Al.,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF NEW HAMPSHIRE
    [Hon. Steven J. McAuliffe, U.S. District Judge]
    Before
    Lynch, Chief Judge,
    Boudin and Stahl, Circuit Judges.
    Darren F. Starr on brief pro se.
    Michael A. Delaney, Attorney General, and Glenn A. Perlow,
    Assistant Attorney General, on brief for appellees.
    March 25, 2010
    Per Curiam.      New Hampshire state inmate Darren Starr
    appeals from a district court Order dated January 29, 2009, which
    granted summary judgment in defendants' favor on claims raised in
    Starr's complaint under 
    42 U.S.C. § 1983
    .              On de novo review, we
    affirm the district court's judgment for the following reasons.
    1.      Judgment in defendants' favor on Starr's First
    Amendment claim based on the denial and destruction of his letter
    from Trina Catalino was warranted.              In his written complaints
    relating to the handling of his "mail" from Catalino, Starr made no
    mention of a letter, and he affirmatively represented that her mail
    included only copies of state law printed from an Internet website.
    As to the letter, therefore, Starr failed to include the "nature of
    [his] complaint,” as was required by the DOC's grievance policy.
    Hence, this First Amendment claim was not properly exhausted.
    Jones v. Bock, 
    549 U.S. 199
    , 218 (2007) (the "level of detail
    necessary    in    a   grievance"    required    for   proper    exhaustion   is
    determined    by    reference   to    the    requirements   of    the   prison's
    grievance procedures) (citing Woodford v. Ngo, 
    548 U.S. 81
    , 88
    (2006)).
    2.     For reasons essentially given by the district court,
    we agree that entry of judgment in defendants' favor was warranted
    on Starr's First Amendment claim that defendants had unreasonably
    applied a volume limit and the DOC's Publisher's Only Rule (POR) to
    deny him the 38-page printout of state laws that was sent by
    -2-
    Catalino.         On   appeal,     Starr    essentially    proffers   only   legal
    arguments    that      are   not    persuasive.      For   example,   he   ignores
    relevant reasoning in Bell v. Wolfish, 
    441 U.S. 520
     (1979), which
    partly upheld the POR in that case because it was reasonably
    related to the facility's legitimate interest in having staff avoid
    time-consuming searches of each page of incoming publications. 
    Id. at 549, 551
    .       In addition, he relies on Clement v. Calif. Dept. of
    Correction, 
    220 F. Supp. 2d 1098
    , 1108 (N.D. Cal. 2002), aff'd, 
    364 F.3d 1148
     (9th Cir. 2004), which is distinguishable on its facts.
    3.    Starr's argument that provisions in the DOC's mail
    policy, PPD 5.26, which were applied to deny the Internet printouts
    he received were unconstitutionally vague is unpersuasive.                   During
    the summary judgment proceedings, moreover, he did not press that
    claim relative to Catalino's letter, so we need not address it.
    Medical Mut. Ins. Co. of Maine v. Indian Harbor Ins. Co., 
    583 F.3d 57
    , 61 (1st Cir. 2009) (a claim not advanced in the district court
    "is procedurally defaulted") (citation omitted).
    4.    Starr's claim that defendants deprived him of the
    full 10-day appeal period in the DOC's mail policy, PPD 5.26, and
    effectively shortened it to 5 days, asserts at best a violation of
    state law. Under federal law, Starr was entitled to a "reasonable"
    opportunity to protest the denial of his mail.                Bonner v. Outlaw,
    
    552 F.3d 673
    ,      676   (8th    Cir.    2009)   (construing   Procunier    v.
    Martinez, 
    416 U.S. 396
    , 418-19 (1974)); accord Lena v. Dubois, 19
    -3-
    F.3d 1427, *1 (1st Cir. 1994) (unpublished per curiam).   He has not
    presented arguments showing that a de facto appeal period of 5 days
    was unreasonable.
    Affirmed.
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