Opinion
2:08-cv-343-GEB-EFB.
May 6, 2008
ORDER
This motion was determined to be suitable for decision without oral argument. L.R. 78-230(h).
Defendant moves to dismiss Plaintiffs' Complaint for failure to state a claim upon which relief may be granted under Rule 12(b)(6), arguing Plaintiffs have no First Amendment right to force Defendant "to distribute copies of [Plaintiffs'] magazine to inmates in the Butte County Jail who have never requested the magazine." (Mot. at 1.)
Defendant argues since Plaintiffs fail to allege that any inmates at Butte County Jail requested their magazine, they do not allege facts showing they have a First Amendment right to distribute the magazine in the jail. (Mot. at 5:26-6:1, 8:27-9:4.) Plaintiffs counter "[i]t has long been established that publishers have a First Amendment right to communicate with prisoners by mail, in addition to inmates' First Amendment right to receive this mail." (Opp'n at 5:1-4.)
Since Defendant has not cited authority addressing the situation at issue here, the motion is denied.
Defendant argues in his reply brief that the California Insurance Commissioner has opined that the "distribution of Plaintiffs' publication, either directly or in bulk, is illegal," and that "this Court must defer to the Insurance Commissioner's decision. . . ." (Reply at 4:24-8:27.) However, this issue is not reached since "issues cannot be raised for the first time in a reply brief." Coleman v. Quaker Oats Co., 232 F.3d 1271, 1289 n. 4 (9th Cir. 2000).
IT IS SO ORDERED.