PLN v. Stolle, et al., VA, Summary Judgment, censorship, 2015
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Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 1 of 48 PageID# 3042
FILED
~
UNITED STATES DI STRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division
CU:ht\, u::
::;,s :-n. CT COURT
i1CiP;:'°CLK, VA
PRI SON LEGAL NEWS, a projec t of the
HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
Civil No. 2 :13cv4 24
v.
KEN STOLLE, Sheriff for Virginia
Beach, Virginia, et . a l ,
Def endants.
OPINION AND ORDER
Thi s
partial
mat ter
is
be f ore
t he
Court
77 ,
as
well
as
motion for partial
is
a
a
reserved
issue
summary judgment,
in
Virginia
of
( "the Sheriff"),
the Virgi ni a
with the Sheriff ,
this
Court
the majority of
issue d
the
a
News,
a
for
project
o r iginal
Also pending
35 .
cross motion for summary
Sheriff fo r
Virginia
and the eight named defendant
Beach Sheriff ' s
" Defendants") .
motion
Pla i ntiff ' s
ECF No .
fi l ed collectively by Ken Stolle,
employees
2014,
s econ d
( "Plaintiff," or "PLN"), ECF
previous ly re s erved portion of a
judgme n t
Beach,
a
summary judgment filed by Prison Legal
of the Human Right s Defense Center,
No .
on
ECF No .
Off ice
49 .
(c ollec t ively
On December 8 ,
detailed Opinion and Order resolving
parties '
i nitial cross mo t ions
for s u mmary
judgment, but reserved ruling on the parties' dispute related to
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 2 of 48 PageID# 3043
the
constitutionality
of
the
"sexually
explicit
materials"
policy adopted by the Sheriff and implemented by Defendants at
the
Virginia
Beach
Correctional
Center
( "VBCC")
The
Cour t
having now rec eived add it ional briefing on the reserved issue,
and having conducted an on-the-record conference call with the
parties on March 1 7,
2015,
the prior motions on the
explicit materials policy, as well as Plaintiffs '
filed motion seeking summary judgment on a
sexually
more recently
due process claim,
are ripe for review.
I . Factual and Procedural Background
This
Court
previously
outlined
the
relevant
factual
procedural background in detail in its December 8,
and
Order,
herein .
and
such
In short,
background
is
incorporated
and
2014 Opinion
by
reference
PLN is the publisher of a monthly magazine
titled " Prison Legal News," which is marketed mainly t o inmates .
Over the pas t
by
Sheriff
several years,
Stolle
( "VBSO"), have no t
Legal
News
and
the
Virginia
Beach
which is operated
Sheriff's
Office
been permitted to receive the month l y Prison
magaz ine .
constitutionality
inmates at VBCC,
of
This
Court's
Defendants'
prior
decision
Opinion
upheld
not
allow
to
the
past
issues of s uch magazine into the VBCC based on the VBSO ban on
all
incoming
prices .
publications
that
contain
"ordering
forms"
with
The Court reserved ruling on the alternative reason for
rejection of past i ss ues of Prison Lega l
2
News
based on v a rious
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 3 of 48 PageID# 3044
non-explicit,
but a rguab ly " sexually sugges ti ve, " advertisements
contained therein,
sexually
with such ads displaying varying degrees of
suggestive
photographs
across
different
issues
of
Prison Legal News .
Subsequent
parties
to
this
filed
constitutionality
Court's
December
supplemental
briefs
of
the
VBSO
2014
sexually
Opinion,
both
regarding
explicit
the
materials
policy, and the briefs address whether such legal issue is moot
in
light
of
either :
(1) this
Court 's
prio r
ruling
on
the
ordering form policy; and/or (2) the VBSO's recent adoption of a
new
sexually
requested,
explicit
and
was
materials
granted,
leave
seeking partial summary judgment,
PLN's
allegations
associated
with
that
the
censoring
policy .
file
a
second
PLN
motion
the second motion focusing on
VBSO's
incoming
"publication review policy")
to
Additionally ,
notice
and
publications
was unconstitutional
review
policy
(hereinafter
as
it fai l ed
to provide publ ishers with adequate notice and/or an adequate
opportunity
to
be
heard
when
the
publication from entering the VBCC.
action was pending,
review policy,
VBSO
prohibited
Notably,
a
certain
while the instant
the VBSO has twice amended its publication
with both voluntary changes occurring prior to
this Court ' s issuance of its December 8, 2014 Opinion .
Notwithstanding the
fact
that compensatory damages are no
longer at issue in this case , and the fact that Defendants have
3
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 4 of 48 PageID# 3045
modified,
and
unque s tionably
improved
from
a
cons titutiona l
standpoint, both the VBSO sexually explicit materials policy and
the
VBS O publication
March
17,
2015
reso l ve thei r
review
conf erence
dispute s as
policy,
call,
as
the
confirmed
parties
during
are
the
unable
to the now-abandoned policies .
to
This
Court the refore now p roc eeds to r eso l ving t he pendi n g mot ions.
II . Standard o f Review
The
Federal
Ru l es
of
Civil
Procedure
d istrict cour t shall g rant summary judgment
provide
that
a
i n favor of a movant
if such party "shows that there is no genuine dispute as to any
material f ac t and the movant is entitled t o judgment a s a matter
o f law. "
Fed . R . Civ . P . 56(a)
"[T)he mere exis tence of some
alleged factual dispute between the parties will not defeat an
o therwise
properly
s u p ported motion
for
summary
judgment;
the
requirement is that t here be no genuine issue of ma t erial fact . "
Anderson v . Liberty Lobby Inc . , 477 U. S.
242,
247 - 48
(1986) .
A
fact is "mater i al " if it "might a ffect the o u tcome of the suit ,"
a nd
a
dispute
is
"genuine"
if
"the
evidence
is
such
that
a
reasonable jury could return a verdict for the nonmoving party."
I d . at 248 .
If a movant has properly advanced evidence supporting entry
of summary judgment,
the non-moving party may not rest upon the
mere a llega t i ons of
the pleadings ,
specific
facts
in
the
form
of
but
instead mus t
exhibits,
4
set
forth
sworn statements,
or
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 5 of 48 PageID# 3046
other
materials
that
i l lustrate
Ce l otex Corp . v . Catrett,
Civ .
P.
himself
56(c)
At
to weigh
genuine
477 U.S . 3 17,
that point,
"the
judge's
there
Anders on, 477 U. S . at 249 .
i s sue
322 - 24
the evi dence and determine
ma tt er but to d e termi ne whether
trial ."
a
is
a
for
(1986);
Fed . R .
function
the
trial.
is
not
truth of
the
ge nuine
issue
for
In do ing s o, the j ud ge must
construe the facts and all "justifiable inferences" in the light
most favorable
to the non-moving party,
and the
judge may not
Id. at 255; T-Mobile Northeast
make credibility determinations.
LLC v . City Counc il of City of Newport News,
Va . , 674 F.3d 380,
38 5 (4t h Cir . 20 12 ).
When confronted
with cross motions
for
summary
judgment ,
"the court must review each motion separately on its own merits
to determine whether either of the parties deserves judgment as
a matter of l aw ."
Cir.
to
200 3)
each
Rossignol v. Voorhaar,
316 F . 3d 51 6, 523
(i ntern al quot a tion marks and citation o mitted) .
sep arate
mo tion ,
the
Cou rt
must
sepa rat e ly
(4th
As
r esolve
factual disputes and competing rational inferences i n favor of
the non-movant .
Id.
III . Di sc ussion
A. Legal Standard Governing Restrictions on
Incomi ng Publi cat i o n s at a Pri son/ Jail
This Court's prior Opinion in this case provided a detailed
sur vey o f
t he applicable law governing the cons t itu t ionality of
5
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 6 of 48 PageID# 3047
censoring incoming publications at a prison or jail, ECF No . 65,
at 7-10,
In
and such analysis is incorporated by reference herein .
short,
it
is
well-established
in
the
Fourth
Circuit
that,
notwithstanding "the First Amendment's somewhat limited reach in
the prison context," publishers have a
First Amendment right to
communicate with inmate subscribers .
Beck ,
80
courts
F . 3d 105 ,
are
officials
109
required
(4 th Cir .
to
give
in all matters of
Montcalm Publ' g Corp .
1996) .
That
substantial
said ,
deference
distric t
to
institutional management,
v.
prison
with the
standard for reviewing a challenge to a prison policy requiring
the Court to consider :
(1) whether there is a "valid, rational connection"
between the prison regulation or action and the
interest asserted by the government, or whether this
interest is
"so remote as
to render the policy
arbitrary or irrational";
(2)
whether "alternative
means of exercising the right
remain open to
prison inmates"
( 3) what impact the desired
accommodation would have on security staff, inmates,
and the allocation of prison resources;
and
(4)
whether there exist any "obvious, easy alternatives "
to the chal l enged reg ulation or action, which may
suggest that it is " not reasonable , but is [instead]
an exaggerated respon se to prison concerns ."
Lovelace
Turner v.
v.
Safley,
original)
"bears
regulations
472
F . 3d
it is
the
174,
482 U . S . 78,
(hereinafter
Turner test,
that
Lee,
"the
200
89-92
Turner
(4th
Cir.
(1987))
test").
2006)
(quoting
(first omission in
In
applying
the
the party challenging the prison regulation
burden
are
of
not
showing
reasonably
6
that
[challenged]
the
related
to
legitimate
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 7 of 48 PageID# 3048
penological
response'
or
objectives,
that
they
are
an
'exaggerated
Prison Legal News v.
to such concerns . "
Livingston,
683 F . 3d 201,
215
(5th Cir . 2012)
(citing Overton v.
539 U. S .
132
(2003);
482 U.S.
126,
Turner,
at 87)) .
such burden falls squarely on PLN in this case,
required to at
least articulate a
disputed po lices such that
rationale
v.
521,
Raemisch,
burden
of
535
(2006)
658
F.3d
persuasion
validity
of
a
articulate
[prison]
their
regulation . ")
on
786
(7th
the
[plaintiff]
regulation,
legitimate
Cir.
the
meaningful
Beard v . Banks,
(plurality opinion);
is
Defendants are
the Court can perform a
778,
Although
in support of
review of the challenged policy under Turner.
548 U.S.
Bazzetta,
see Van den Bosch
2011)
to
defendants
governmental
("While
the
disprove
the
must
interest
still
in
the
(citations omitted) .
B. Outstanding Summary Judgment Claims
PLN's first motion for partial summary judgment challenges
the
former
VBSO policy
publications,
"offensive"
persons."
which
and
ECF
banning
extended
materials
No .
48 - 4 .
summary judgment challenges
policy,
adequate
arguing
"notice"
from
to
photos
dealing
PLN's
VBCC
"sexually explicit"
and
with
second
writings
"scantily
motion
for
deemed
clothed
partial
the former VBSO publication review
that
it
failed
to
and
an
"opportunity
provide
to
be
incoming publication was rejected by the VBSO.
7
constitutionally
heard"
after
an
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 8 of 48 PageID# 3049
Defendants '
cross
opposes
PLN's
sexually
explicit
are
entitled
former
motion
for
constitut iona l
to
policy
materials
summary
was
partial
challenge
policy,
judgment
summary
to
t he
asserting
on
such
former
t hat
issue
prope r
constitutionally
judgment
VBSO
Defendants
because
under
the
Turner.
Defendants' cross motion for summary judgment on t he former VBSO
publication review policy is no longer pending as it was denied
i n this Court ' s Decembe r 8 , 2014 Opinion and Order .
C. Analysis
1. Mootness
Thi s
whether
Court
or
pre viously
not
the
invited
dispute
over
the
the
parties
former
to
VBSO
address
sexually
explicit materials policy was "moot" due to the Court's ruling
in favor of Defendants
l ight of
t he
issue
Prison
of
fact
that
Legal
contained ordering
on the VBSO
it
News
forms.
is
"order ing
undisputed
that
was
f orm"
that
every
excluded
Addit ionally,
as
policy in
from
no ted
relevant
the
above,
VBCC
the
VBSO adopted a new sexually explicit materials pol i cy after this
Court issued its prior Opinion,
t hat
the
adoption
of
s uch
and Defendants t herefore argue
new
policy
constitutes
separate
grounds for finding this issue to be moot.
Having
filings,
rnootness ,
carefully
considered
the
the Court fi nds that Defendan ts ,
have
failed
parties'
the part ies asserting
to demonstrate either
8
supplemental
tha t
thi s
Court's
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 9 of 48 PageID# 3050
prior ruling,
materials
and
or
the
VBSO' s
publication
adoption of
review
have
of
the
primary focus
failed to demonstrate
this
litigation,
policies.
they
of
the
that,
will
policies,
sexually explicit
have
mooted
the
As to the change in policies,
disputes remaining in this case.
which is
new
parties'
subsequent
not
briefs,
to
the
re-implement
Defendants
termination
the
challenged
Notably, as recently explained by the Fourth Circuit :
It is well established that a defendant's "voluntary
cessation o f a cha l lenged practice" moots an action
only if "subsequent events made it absolutely clear
that
the
allegedly
wrongful
behavior
cou l d
not
reasonably be expected to recur."
Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.
167, 189; see Knox v . Service Employees Int ' 1 Union,
Local 1000 ,
132 s . Ct .
2277,
2287
(2012)
("The
voluntary cessation of challenged conduct does not
ordinarily render a case moot because a dismissal for
mootness would permit a resumption of the challenged
conduct as soon as the case is dismissed . ") .
Were it
otherwise, "courts would be compelled to leave ' [t] he
defendant
free to return to his old ways.'"
City of Mesquite v . Aladdin's Castle, 455 U . S. 283 ,
289 n . 10 (1982) (quoting United States v . W. T . Grant
Co., 345 U.S. 629, 632 (1953))
" The ' heavy burden of
persua[ding]' the court that the challenged conduct
cannot reasonably be expected to start up again l ies
with the party asserting mootness."
Laidlaw, 528 U.S.
at
189 ,
(quo t ing
United
States
v.
Concentrated
Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)).
Wall v.
Wade,
741 F.3d 492,
497
(4th Cir . 2014)
(alterations in
original) .
Here,
Defendants
have
never
VBSO policies are unconstitutional,
other
Defendant,
submitted
an
acknowledged
the
nor has the Sheriff,
affidavit
9
that
stating,
even
prior
or any
without
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 10 of 48 PageID# 3051
admitt i ng
t he
unconstitutionality of
the prior policies are
therefore,
will
at
never
the
prior policies,
least constitut ionall y
be
reimplemen t ed
According l y , Defenda n ts do not poin t
suspect,
by
to any l e ga l
that
the
and
VBSO .
or prac t ical
barrier preve nting them from readopting the disputed policies,
and they have fai l ed to even offer a bald conclusory pledge not
to
re turn
to
such
See
pol i cies .
id .
(" [W] hen
a
defendant
retains the a uthority and capacity to repeat an alleged harm,
p laint i ff ' s c laims should not be dismisse d as moot . " ) .
result,
Defendants
have
clearly
failed
to
meet
a
As a
their
"heavy
burden," and this Court will proceed to consider the merits of
PLN' s
claims
as
to
both
the
former
VBSO
s exually
explicit
materials policy and former VBSO publication review pol i cy . 1
2. Former VBSO Sexually Explicit Ma t erials Policy
PLN's
i n i tial
motion
for
par t ial
supporting memoranda challenge Defendants'
summary
j udgment
and
policy banning from
VBCC "sexu al l y expl icit " photos or publications, which under the
former VBSO p olicy,
extended not only to what i s
1
trad itionally
This Court's earlier concern regarding mootnes s based on its prior
ruling centered on whether PLN 's "as applied" challenge to the
sexually expl i cit ma t erial s policy was moot in light of the fact that
this Court already concluded that the e xc lusion of the same issues of
Prison Legal News,
that
form
the basis for
this claim,
was
constitutional on other grounds.
Defendants' briefs , however , fail to
demonstrate that this Court's prior ru ling renders such issue moot.
Moreover, even if the "as applied" challenge were deemed moot, as
describe d above , in light of the Sheriff's failure to acknowledge
under o a th that he is prohibited from returning to the prior sexually
explicit materials policy on constitutional grounds,
the facial
challenge to such policy would plainly remain a live controversy .
10
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 11 of 48 PageID# 3052
considered
"pornography ,"
pictures
which
may
"material
dealing
with
persons."
ECF No.
48-4 .
to
such
policy
dispute
and
Defendants'
975
(9th Cir .
"as
963
to
deemed
an
"as
assertion
that
challenge,
the
to
(4 th
involving
the
prison
fa cial
of
chal l enge
Cir .
mail
20 1 3)
context,
person
focusing
or
on
11
how
en tity)
was
not
applies
to
3 56 F. 3d
that
the
in
a
731 F.3d
lies in the
firs t
policy
is
light
of
the
official s are afforded in this arena.
11
a
s cope
focusing on the
applied
oppose
not
between
to its impact on the plaintiff,
such
470
also
case
"difference
with the
11
see
Inc. v . Insl e y,
(descr ib ing ,
Defendants
in
does
Lamper t ,
to
PLN' s
a
and the
speci fic
motion
favor on t his
fo r mer VBSO sexually exp lici t
constitutional
test
restriction) ;
separately seek summary judgment in their
argu ing that the
a nd
(applying Turner to an inmate's
a
the constitutional inquiry ,
second
Turner
and an as-applied challenge
policy "without regard
to
c l othed
challenges ." ); Warde ll v . Duncan,
challenge
n.5
as
("The Turner analysis applies equally
20 06)
298
well
"fac ial" challenge
See Bahrampour v.
2004)
as
scantily
applied"
[or]
wr it ings
off e nsive"
Educational Media Co . at Virginia Tech,
291,
" any
displaying
(10th Ci r .
applied"
also
PLN advances both a
to fac ial and ' as applied'
F.3d 954 ,
be
or
bot h types of challenges.
969,
but
and
issue,
mat e rials policy
wide-latitude
t hat
prison
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 12 of 48 PageID# 3053
A survey of case law on the issue of prison regulations on
themed
sexually
materials
notwithstanding
a
possess
can
what
pornography,"
private
be
prison
constitutionally
plainly
citizen's
First
generally
and
restrict
Amendment
categorized
jail
right
as
and
See,
similar
e.g . ,
to
"adult
administrators
pornography
explicit" writings and photographs.
that,
demonstrates
can
"sexually
Bahrampour,
356
F . 3d at 976 (upholding as constitutional an Oregon Department of
Corrections
publications
regu lation
that
that
prohibited
contained
images
inmates
from
portraying
receiving
actual
or
simulated sexual acts or sexual contact, but that permitted nude
images); Jones v . Salt Lake County,
Cir.
2007)
(upholding as constitutional a
"sexually explicit material"
of
"sexually explicit prose or pictures of clothed women/men") .
As
prison
and
that included a ban on photographs
to
federal
"breasts
county jai l 's ban on
extend
to
exposed
503 F . 3d 1147, 1155 - 56 (10th
genitals"
facilities,
the
but
Federal
did
not
Bureau
of
Prisons
( "BOP") applies a statue passed by Congress in 1996 known as the
"Ensign
Amendment,
11
which
precludes
federal
prisons
from
distribut ing or making available to prisoners "any commercially
published i n formation or material that is sexually explicit or
features nudity."
Ensign Amendment,
28 U.S.C.
§
530C(b) (6).
"In response to the
the BOP promulgated an implementing regulation
that narrows the scope of the statute by defining key statutory
12
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 13 of 48 PageID# 3054
terms," and interprets t he Ensign Amendment as applying only to
pictorial representations. 2
17
(10th
Cir.
regulation
20 11)
defines
Jordan v . Sosa, 654 F . 3d 101 2 , 1016-
(citing
"nudity
28
as
11
C . F.R.
"a
pictorial
genitalia or female breasts are exposed,
explicit"
sexual
as
"a
acts
mas t urbation .
pictorial
including
28
11
depiction
sexual
C. F . R.
regulation defines "features,
11
Such
depiction
where
and defines "sexually
of
actual
intercourse ,
540 . 72(b).
§
540.72).
§
or
simulated
sex,
or
Additionally,
the
oral
as used in the Ensign Amendment,
11
to mean that the "publication contains depictions of nudity or
sexual l y
explicit
promotes
itself
individual
based
one-time
"[p)ublications
educational,
Reno,
156
conduct
issues,
a
F.3d
192,
202
and
11
(D .C.
The
"Incoming
requirements,
content.
noting
scoring
force
Publications
that
a
2
in
an
11
Id . ;
11
1998)
warden
on
"Program
must
case
of
for
see Arna tel v.
"that
[Turner v . )
further
or
medical,
of
(finding
adequately
BOP
the
basis
exception
illustrative
Cir .
in
regular
includes
and regulation satisfy
currently
or
depictions
nudity
reasonableness,
factors") .
routine
such
or anthropological
for
governing
upon
containing
[Ensign Amendment)
demand
on
the
Safley' s
all
four
Statement
11
discusses
BOP
consider
each
Although the implementing regulation limits the Ensign Amendment to
pictures that are sexually explicit or contain nudity, a separate BOP
regulation can be invoked to exclude a sexually explicit writing that
"by its nature or content poses a threat to the security, good order,
or discipline of the institution, or facilitates criminal activity . "
28 C . F .R. § 540 . 7l(b) (7); see Jordan, 654 F.3d at 1017 .
13
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 14 of 48 PageID# 3055
publication on an issue-by-issue basis
and
provides
examples
allowed,
such as :
nudity;
a nd
( 2)
(1)
publ i cations
5266 . 11,
is
are
9,
general l y
issues"
they contain nudity.
Nov .
rejected,
even if it contains
swimsuit
Illustrated
unless
it
t ha t
National Geographic,
"Sports
"Lingerie catalog s ,"
Statement
of
before
2011,
and
BOP Program
availab l e
at
http://www.bop.gov/policy/progstat/52 66_011.pdf . 3
Although
not
Department of
more
lenien t
applicable
Corrections
standard
expressly prohibit
to
the
VBCC,
( "Virg inia DOC")
than
the
"nudity,"
federa l
but
the
appears
BOP,
as
Virginia
to apply a
it
does
not
instead excludes publications
that "emphasize[] explicit or graphic depictions or descriptions
of
sexual
acts . "
Incoming Publi cations
at
Virginia
§
DOC
Operating
IV . G, effective Jan . 1,
Procedure
2015,
803 . 2:
available
https : //vadoc . v irginia . gov/about/procedures/documents/800/
8 03 -2 . pdf . 4
The Virginia DOC rule is followed by a "Note" that
3
The federal BOP program statement was not expressly r elied on by the
parties to this case.
However, it was cited within prior federal
op inions on this is sue , and wa s conside red by this Court in the
context of fully understanding the reasoning of such prior opin i ons .
4
The Court not es that , on March 17 , 2O15 , the Governor of Virginia
s igne d HB 19 58 which relates to the powers and duties o f the "Board of
Directors" o f the Virginia DOC as well as the "Director" of the DOC .
Such newly enacted law provides that the DOC Board of Directors and
the DOC Direc tor have the power a nd duty to adopt , promulgate, and
enforce "regulations prohibiting the possession of obs cene materials,
as defined and described in Article 5 (§ 18 . 2-372 et . seq . ) of Chapter
8 of Ti tle 18 . 2 , by prisoners incarcerated in state correctional
facil i ties."
Va. Acts of Assembly-2015 Session, Chapter 293 , H 1958
(approved March 17, 2015) , available at https : // lis.virginia.gov/cgi14
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 15 of 48 PageID# 3056
clarifies :
"This
criterion
shall
not
be
used
to
exclude
publications that describe sexual acts in the context of a story
or mora l
teaching unless
primary purpose of
recognized
as
the description of
the publication .
having
a rt istic
or
737
F.
Supp .
2d
unconstitutional
561 ,
und e r
(W.D .
Turner
a
the
value
should
be
Id.; cf . Couch v . Jabe,
II
567
is
No publicat i on generally
literary
excluded under this criterion .
such acts
Va.
(rejecting
20 10)
prior
versi on
of
as
Virginia
Operating Procedure 803 . 2 as it excluded all publications that
included any "descriptions of sexual acts," e xp laining that "it
is unlikely that a cogent argumen t could be advanced which would
explain how a
regul a tion which forbids
but permits Hugh Hefner ' s Playboy,
J ames Joyce' s
Ulysses,
has a rational re l at i onship"
to maintaining the "securi t y , discipline,
and good order in the
facility") .
The Court has considere d the parties'
of
federa l
c a ses
a pp l ying
approaches taken by federal,
the
Turner
s ta te ,
briefs and an array
test
to
the
various
and local pri son and jail
bin/legp604 . exe? 15 1 +ful+CHAP0293+pdf.
As the con templated regulations
have not yet been adopted , it is impossible to pre dic t the future
Virginia DOC st a ndard f or regulati n g
i ncoming publications that
contain material that is sexual in nature .
That said, the newly
enacted law ' s cross-reference to § 1 8 . 2-372 , which defines o bs cenity,
arguably suggests that any such regu l ation will not ban images that
display n on - sex ac t nudity, as the Virgi ni a Sup reme Court has longrecognized t hat t.he Virginia statute defining obscenity " limits the
class of works which might be found obscene to portraya ls of sexual
activi ty or excretion , not including mere nudity , which go b eyond the
customary l i mits of candor in representing such matters . /1
Price v.
Commonwea l th, 214 Va. 4 90 , 493 (1 97 4) (emphasis added) .
15
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 16 of 48 PageID# 3057
facilities
images
to regulate
(to
include
sexually explicit materials and/or nude
broad
definitions
of
"nudity").
carefully considering the case- specific facts
presented to this Court,
After
in the record as
the Court finds that,
even taking the
evidence in a light most favorable to Defendants, as is required
when
analyzing
PLN' s
summary
judgment
motion,
the
challenged
former policy lacks a rational connection to a valid penological
goal because it was so broad as written, and as applied to PLN,
that it allowed for the exclusion of publications based on an
amorphous
standard
Although Defendants
for
banning
that
the
"valid,
to
VBSO
policy
images,
was
connection"
rational
cannot
valid
prison
concerns.
surely assert valid penological objectives
sexually explicit
former
regulation
untethered
be
so
to
sustained
the
record demonstrates
broad
such
where
that
it
objectives,
the
logical
lacked
a
and
"a
connection
between the regulation and the asserted goal is so remote as to
render the policy arbitrary or irrational."
Turner,
482 U. S .
Although a discussion of all four Turner factors follows
89-90.
below,
the Court provides
the most in depth discussion of the
first factor, as relevant case law and common sense both suggest
that
"the first
inquiry
may
in
factor
some
remaining factors."
looms especially large,"
circumstances
"tend[]
to
and that such
encompass
the
Amatel, 156 F.3d at 196; see Van den Bosch
v. Raemisch, 658 F.3d 778,
785 n.6 (7th Cir. 2011)
16
(noting that,
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 17 of 48 PageID# 3058
"though
each
of
the
reasonab l eness of a
a threshold")
factors
is
relevant
in
assessing
the
the first factor serves as
regulation
(internal quotation marks and citations omitted) .
a . Rational Conne c ti o n
This Court begins its analysis under Turner by reiterating
that
it affords substantial deference
exceedingly
difficult
arena
of
to administrators
managing
a
jail
Lovelace, 472 F . 3d at 199 ; see United States v.
83,
86
(4th Cir .
1991)
(explaining
that
a
or
Stotts,
in the
prison.
925 F.2d
heightened scrutiny
standard would result in unworkable intertwinernent of the courts
in difficult institutional judgments,
approach for a
and therefore,
the proper
reviewing court is "one of caution").
Moreover,
the Court reiterates that the burden is "not on
[Defendants]
prove the validity of prison regulations but on the
to
disprove
Court
is
it."
Overton,
mindful of
the
539
not
toothless."
at
1 32.
Supreme Court's
Turner reasonableness standard,
"is
U . S.
to
[Plaintiff]
That
"confidence"
said,
the
that
the
while not particularly onerous,
Thornburgh
v.
Abbott,
490
U. S .
401,
414
(1989).
The first step of the Turner analysis requires the Court to
consider
"valid,
explicit
whether,
rational
based
on
the
connection"
materials
policy
record
between
and
a
before
the
valid
it,
former
there
VBSO
penological
is
a
sexually
goal,
or
whether the goal is "so remote as to render the policy arbitrary
17
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 18 of 48 PageID# 3059
or irrational .''
pictures
or
censorship
Turner,
text,
based
the
on
482 U. S.
broad
the
at 89-90 .
VBSO
content
former
being
Whe n a pplied to
policy
deemed
a l l owed
"offensive"
because it mere ly dealt with "scantily c lothed persons."
standard
was
not
tied
photograph or writing,
in
any
way
to
the
context
the
former
viewpo int - based
or
Such
of
the
nor was ic wr it ten in a manner that tied
censorship to institutional security concerns .
of
for
standard
appears
censorship
of
on
its
photos
The first part
face
or
to
allow
writings
as
for
a
publication coul d be rejected merely because a jail official was
personally
displeased
wi t h
t he
content
picture" and thus deemed it "offe nsive . "
of
5
"a ny
writi ng
or
Cf . Abbo tt, 490 U. S.
at 404 - 05, 419 (upho l ding the facial validity of t he fe de ral BOP
res t riction prohibiting pub l ications deemed
t he
inst itu tion, "
expressly noting that such res trictions prohi b it
the rejection
securi t y ,
good
order ,
or
discipline
of
" detrimental to the
of a pu b l ication " solely because its content
or repugnant" )
standard,
(emphasis added) .
broadly
banning
any
5
i s unpopular
The second pa rt of the VBSO
"material
deali ng
with
or
There is no evidence in this case that such standard was ac tually
applied in a manner intended to suppress any specific viewpoint, and
the Court does not intimate in any way that Defendant s targeted any
person, entity, or group .
Moreover, the record indicates that such
standard was not authored by the current Sheriff , but was inst ead
adopted from the rule in place from the prior admini s tration .
That
said,
the face of the policy does not withst a nd constitutional
scrutiny.
18
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 19 of 48 PageID# 3060
displaying
scantily
differen ti ate between a
nude model
clothed
graphic
persons,"
photograph of
in an overtly sexual
a
position and a
family in bathing suits at the beach,
or a
subject
in a
forme r VBSO policy:
non-sexual
nude
a
but "scantily
Accordingly,
context .
the
(1) can be (and has been) applied at VBCC to
in non-graphic detail,
or scantily clothed person; 6 and
(2) can be
a naked
(and apparently has
applied to ban any image of a person in a bathing suit
regardless of the context. 7
(indicati ng
prohibition
inc lude
law ,"
or near
picture of
ban written text "dealing with,"
been)
not
reproduction of a
centuries old oil painting depicting a non-nude,
clothed,"
did
that
on
" [a]ny
is
the
all
Cf . Couch , 737 F. Supp. 2d at 567 - 71
"expansive
expl i cit
sexual
over broad
acts
even
descriptions
in
violation
under
reasonableness standard because
material,
reach"
the
of
a
of
sexual
of
Virginia
state
acts,
DOC
to
or
federal
undemanding
Turner
it reaches a wealth of written
including literary works of art , that could not "have
any ef feet on the security,
discipline,
and good order of the
6
After the instant l awsuit was filed, c ertain advertisements in later
issues of Prison Legal News that discussed photographs of nude models
or near - nude models were identified as prohibited under the former
VBSO sexually explicit ma terial s po l icy even though they contained no
pictures . See ECF Nos. 43-2 , at 2, 42 - 1, at 27.
7
The record indicates that magazines including any images of "scantily
clad women" were not permitted to enter the VBCC under the former
policy .
See ECF No . 36-6 at 5 ( indicating that issues of ESPN
Magazine and Sports Illustrated Maga zine were banned for having
"scantily clad women," which included images "even in a bathing
suit") .
19
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 20 of 48 PageID# 3061
prison");
(W.D.
Aie l lo
Wis.
motion,
v.
2000)
Litscher,
(denying
recognizing
connection
between
that
a
104
the
F.
2d
defendants'
although
prison
Supp.
ban
there
on
is
1079-82
summary
judgment
surely a
rational
explicit
advancing legitimate penological goals,
1068 ,
pornography
and
the defendants had not
demonstrated a valid rational connection between such goals and
the broadly sweeping
regulation at
issue,
specifically noting
that the record "reveals no debate among scholars or experts on
the
effect
literature,
on
rehabilitation
of
discussed
Defendants'
issue ,
the
works
of
art
and
[such as nude images from the Sistine Chapel]
and common sense suggests none")
As
great
in
qualified
Cou rt
faith efforts
h as
this
(emphasis added).
Court ' s
immunity
no
as
reason
prior
to
Opinion
money
addressing
damages
on
to question Defendants'
this
good-
to seek to bar sexually explicit materials from
VBCC .
Howev er,
t he
former
VBSO
policy,
banned:
(1) issues of Prison Legal News based on images of women
in mini-skir t s or tight clothing ; and (2)
as
appl ied
to
PLN,
issues of Prison Legal
News based on text-only ads that included no photos of any kind .
See ECF Nos . 41-2,
42-1 , 43-2,
48-18,
48-19
(demonstrati ng that
certain issues of Prison Legal News were rejected by Defendants
on the basis of the inclusion of "sexually suggesti ve ads" based
20
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 21 of 48 PageID# 3062
on images of women i n short skirts or tight fitting clothing) ; 8
ECF
Nos .
issues
part,
43 -2,
of
at
Prison
2,
42 -1,
Legal
27
(demonstrat ing
were
News
rejected
by
that
certain
Defendants,
in
for containing "sexuall y suggestive ads " when t he ads were
text-only and described
and
at
"beauties posing
catalogs/pictures
just fo r
you,"
of
available
"gorgeous
for
lad ies"
purchase
in
eit her "nude" or "BOP friendly" non-nude formats wi thout further
describ ing the actual images in any degree of detail .
This Court,
relevant
federal
fede ra l
court
in agreeme nt wit h PLN 's characterization of the
law
on
upholding
this
the
issue ,
unaware
constitutionality of
restriction on "scantily clothed"
i n a bath ing s u it ,
is
regardless o f
individuals,
context.
9
of
any
such
a
other
broad
to include those
Moreove r,
even with
It appears tha t one or two of the thumbnail i mage s in certain
advertisements in issues of Pri son Legal News in l ate 2013 and early
2014 arguably could be described as not just short ski rts, but as
"lingerie . " See , e . g ., ECF No . 42-1 , at 9 , 25 .
However , such images
meas u re only approximately ~ inch tall by ~ inch wide .
The si ze and
difficultly in making out what such images even depi ct f urther
suggests t hat barring Prison Legal News on the basis of such thumbnail
images was an "exaggerated response ."
Cf . Smith v . Roy , No . 10 - 2193,
2012 WL 1004 985 , at * 10 (D . Minn . Jan . 2 5, 2012) (noting that only
publications that
"feature " nudity were banned by t he relevant
regulation, and that such determination "is based in part on the ratio
of nude images to the total number of pages of t he publication [and]
the manner in which the nude images are displayed ( includ ing size) " ) .
9
One of the broadest restrictions on publications of which this Court
is aware that h as been upheld as constitutional is a Kansas DOC
a dministrative regulation that precludes inmates from possessing
material if : (1) "the purpose of the mat erial is sexual arousal or
gratification"; and (2)
t he material contains either display or
simulation of sex acts or "[c ]ontains nudity" which is defined as " the
depiction or disp lay of any state of undress in which the human
genitals, pubic region , buttock, or female breast at a point below the
21
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 22 of 48 PageID# 3063
the s ubs tan tial defere n c e
owed
dist r i c t
suppor t
cour t
Defenda n t s '
it
opinion s
to prison authori t ies,
t hi s
Cou rt ' s
multiple
fi nding
that
former policy fails to pass cons t itutional mus t er as
permitted censorship based on
images or writings
involving
top of the aerola [sic] is less than completely and opaquely covered."
Kan. Admin . Regs . 44-12-313 .
In Strope v . Collins, 492 F . Supp . 2d
1289 (D . Kan . 2007) the district court denied cross mot i ons for
summary judgment filed on an undeveloped record, noting that " in the
absence of any meaningful argument from the parties under the four
Turner factors, a genuine issue of material fact exists p r ecluding
summary judgment in favor o f either party about whether the regulation
is rea s onably related to l e gitimate penological interests . "
Id . at
12 96 .
The Court further explained that denial of the cross motions
was particularly appropriate because "there appears to be no precedent
upholding the constitutionality of a regulation that contains as broad
of a prohibition as the KDOC regulation in the manner in which it is
being a pplied in this case, " which involved "the censorship of entire
publica t ions because they contain what app ears to be a few photographs
of wome n's partially b a re but tocks ."
Id .
Later in that same case,
the Court granted summary judgment in favor of the defendants after
the record was further developed and the Court received an affidavit
from
the
"Secretary"
of
the
Kansas
Department
of
Corrections
specifically outlining the penological
concerns associated with
"materials containing depictions of bare buttocks."
Strope v.
Collins, No . 06-3150-JWL, 2008 WL 24 3 5560, at *2-3 (D . Kan . June 12,
2008) .
In reaching this conclusion, the dist.rict. court acknowledged
that the material at issue in that case "included images of women
wearing various types of underwear (thong-style, high cut, etc.) in
such a wa y as to reveal their partial l y bare buttocks" which "would
more accurately be characterized as sexy, revealing images rather than
pure pornography, in the more t.raditional sense of that word" but
nevertheless concluded that, in line with the regulation, "the only
plausible purpose for the censored images is sexual pleasure . "
Id . at
*6; s ee also Elfand v . County of Sonoma, No . C-11-0863, 2013 WL
1007292 , a t *2 (N . D. Cal . Mar . 13, 2013) (banning images that have
"the purpose of arousing sexual stimulation in its intended audience"
if prison authorities have a "reasonable belief" that the banned
images would jeopardize " safety, security , rehabilitation or other
legit i mat e Facility interests " ) ; Smith, 2012 WL 1004 985 , at *7 , * 10
(uphol d i ng the constitutionality of a correctional facility policy
banning publications that feature "nudity," to include woman in
swimsuits or lingerie that are "see - through" or otherwise di s play "a
substantial portion of the [female] breast below the nipple," but
noting as part of the Turner analysis that prisoners "can receive a
publica t ion that contains a nude photograph because publications are
only p r o hibited if they ' f eature' nudity," and that "photographs that
show only cleavage or buttocks are not prohibited") .
22
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 23 of 48 PageID# 3064
"scantily clothed" persons regardless of any sexual connotac.ion
and making no exception for materials widely accepted as having
educational
and/or artistic
based censorship
stemming
image or
was
writing
County of Ventura,
10
No. 14 -0773,
concede
court
analysis
and
warranted
to
deliver
2014)
that
"sexually suggestive"
district
from
it
permitted viewpoint
censor's
See
decision
that
an
Prison Legal
News
v.
2014 WL 2736103 , at *9 n.6,
preclude
past
such
that
the
practice
prior
a
of
county
jail
of
sexually
from
barring
from
to
its
own
injunction
was
"refus[ing]
Plaintiff
'suggestive'
all
but that the
practices
preliminary
publications
publishers on account
*9-
(indicating that not only did the
images was unconstitutional,
conc luded
of
the
their
subjected
copies
and
"offensive ."
(C . D. Cal. June 16,
defendants
value,
to
or
other
content
unless
the publication contains actual nudity or graphic depictions of
sexual acts"); Boyd v. Stalder,
at
*6
(W . D.
La.
Dec.
as
to
27,
a
No.
2006)
summary
judgment
banning
"all publications that
03-1249-P,
(denying
prison's
2006 WL 3813711,
cross
motions
then - abandoned
featured women in
policy
for
of
'sexy poses'
even if they were full y clothed," noting t hat Defendants "devote
scant a tt ention to this aspect of Pl aintiff's claims,
cite no authority that would authorize such a broad
and they
. ban in
the general population of a prison") ; 10 Abbott, 490 U.S. at 40410
In Boyd,
after a
jury trial
re s ul ted in a hung jury ,
23
the district
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 24 of 48 PageID# 3065
05 ,
419
(upholding
the
facial
validity
of
the
federal
BOP's
image restriction expressly tied to "security" and "good order"
of the prison,
expressly noting that such res tric tions prohibit
the rejection of a publication "solely because its content
is unpopu lar or repugnant"); Aiel l o,
(denying
the
defendants'
summary
104 F . Supp . 2d at 1079-82
judgment
motion
in
a
involving a prison's broadly sweeping censorship policy ,
that while there is
"no doubt
case
noting
that defendants could craft and
implement a regulation" c e nsoring sexual ly explicit photographs,
the regulation in question "in effect sweeps
so broadly as
to
capture muc h pictorial and writ t en material for which there is
no
rational
rehabilitation) .
connection"
to
prison
security
or
Notably, here, Defendants have not arti cul ated
any basis for treating a picture of a woman or man in a bathing
suit, or a p icture of a woman in a mini - skirt , or grea t works of
art
portraying
a
subject
paragraph describing a
with minimal
clothing,
"scantily clothed"
or a
individual ,
written
the same
court denied a renewed motion for summary judgment seeking qualified
immunity, explaining that the warden's testimony failed to establish a
"valid rational connection" between the ban on "all genera l population
inmates receiving .
publications with non-obscene matters such as
pictures of women in bikinis or miniskirts . "
Boyd v . Stalder , No. 031249 - P , 200 8 WL 2977363 , at *3 (W . D. La . Aug . 1 , 2008) .
While thi s
Court specifically does not adopt the qualified immunity analysis set
forth therein, such opinion evidences the lack of authority upholding
as constitutional broad bans on publications because they contain
pictures of women in " short skir ts " or " tight pants . " Id . at *5 .
24
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 25 of 48 PageID# 3066
as a publication f ea tur ing traditional
contrary,
essentially
Defendants
just ification for
"pornography . " 11
rest
t he i r
To the
penol o gica l
the former VBSO policy on t h e assertion that
11
There is an inherent difficul ty in a ttempting to portray the
contours and t enor of the images at issue in this case through words
alone .
See F . C . C . v. CBS Corp., 132 S . Ct . 2677, 267 8 (20 12 )
(Robe rt s, C . J . , concurri ng in the denial of certiorar i) ( "As every
schoolchild knows, a picture is worth a thousand words
. ") .
That said, borrowing f rom what is likely f amil iar te r minology to any
reader , the court characterizes the images included in the late 2013
and early 2014 issues of Prison Legal News as "thumbnail" images best
descri bed as con si s tent with a "PG" rating, whereas the chal l enged
policy (and limited explanation f o r such pol icy) appears to have
treated such ima ge s no differently than a full page "R" rat ed image .
Two s uch advert isements are reproduced below in a format that
approximates the size/format in which they appeared in multiple issues
of Prison Legal News. See , e . g ., ECF No . 42-1, at 9 , 25 .
m
PE-N'IA.L~.r~
/
~~
l.
~~--·- ~--
_...
...
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Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 26 of 48 PageID# 3067
it should be
clothed
"obvious"
person
must
why any visual depiction of a
be
banned.
However,
in
light
scantily
of
the
widespread existence of far more lenient policies in all federal
and Virginia DOC facilities
Virginia,
photos ,
which
the
either allow nude
penologica l
prohibiting photos of
(3d Cir.
2002)
or
"near-nude"
justification
i ndividuals
anyth ing but obviou s . 12
09
located within the Commonwealth of
"even
non-sex a ct
for
the
VBSO
policy
in a
bathing suit"
is
See Wolf v. Ashcroft, 297 F . 3d 305, 308-
("Whether the
requisite
connection
[between
the policy and the penological goal] may be f o und solely on the
basis of 'common sense'
the
nature
of
the
will depend on the nature of the right,
interest
asserted,
12
the
nature
of
the
When the Sherriff was a s ked in his deposition why sexually explicit
materials were not allowed in the VBCC under the former policy, his
response revealed that, in his opinion, it was obvious that allowing
what he considered to be sexually explicit materia l s would be a bad
idea, and that it would increase rapes and fights, and "ev e rything
sexually related."
ECF No . 36 - 3, at 15.
Ho we ve r , the Sheri ff ' s
testimony , whi c h appears to re l y p ri marily on common sense , offers no
targeted explana tion as to the claimed justification for banning a
wr itten
publication
based
on
the
inclusion
of
one
or
more
advertisements with images, reg ardless of their size or context, of
individuals in a bathing suit, tight shirt , or mini-skirt .
In other
words, the connection between the vaso' s valid concern about s exually
explicit materials entering the facility, and ban on publi cations with
images (particularly thumbnail images) of persons in bathing suits,
tight clothing or mini-skirts, was not articulated by Defendants .
Moreover, no explanation was offered for the policy's broad ban on
photos or writings deemed "offensive."
Although the burden to
demonstrate t hat the challenged policy is unconstitutional falls
squarely
on
PLN,
Defendants
must
at
least
articulate
their
justification for the broad policy in order for the Court to
effectively apply the Turner test and determine whe ther PLN has
carried its burden .
Absent some articulation, the Court wi ll not
merel y assume t hat a s uffi cient connection exists to warrant such a
b road policy
because
"common
sense"
does
not
s uggest
such
a
connection.
26
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 27 of 48 PageID# 3068
prohi biti on ,
and
t he
proffered intere st .
obviousness
of
its
connection
to
t he
The showing required will vary depending on
how close t he c ourt percei ves the connectio n t o be . " ) ; Aiello,
104 F . Su pp . 2d at 108 0 (indicating that neither record eviden ce
nor c ommon s ense s u ggests that legitimate p rison objec tives are
advanced by banning
"great works of
art a nd
l iterature " ) ;
see
also Cox v . Denning, No. 12-2571-DJW, 2014 WL 4843951, at *17-18
(D . Kan . 2014)
(grant i ng,
in part,
t he plaintiff ' s cross motion
for summary judgment chal lenging a
mail
policies,
finding
that
the
detention cent er ' s
defendants
had
incoming
" f a il[ed]
to
present a credible explanation" linking the policy to the stated
goal of avoiding the introduction of contraband into the jail,
further explaining that "[m)erely accepting Defendants' argument
of
a
rational
relationship without
any evidence or a
l ogical
explanation of why the [challenged] policy advances a particular
legitimate
penological
toothless,
which
the
interest
Supreme
(citing Abbott , 490 U.S . at 414)
the
would
Court
has
render
the
cautioned
standard
against . "
(emphasis added)) .
For all t he reasons discussed above,
the Court finds that
firs t
PLN
Turner
factor
strongly
favors
as
to
both
its
"facial " challenge and "as applied" challenge to the former VBSO
sexually
failed
to
explicit
mater i als
articu l ate
a
policy,
rational
as:
(1)
connection
Defendants
b etween
former policy a nd a valid penological goal ; and (2)
27
the
have
broad
there is no
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 28 of 48 PageID# 3069
obvious rational connec t ion between the broad fo rmer policy and
valid
penological
goals
such
as
institutional
safety
and
security.
b. Al ternative Means
The
second
Turner
f a ctor
requires
the
Court
to
consider
whe t he r there are alternative methods for PLN, and VBCC inmates,
to exercise their First Amendment r ights.
200.
The
constitut ional right at
issue
Lov e l ace,
in this
472 F .3d at
case ,
defined
expansively, 13 appears to include PLN' s ability a s a publi sher to
communicate with inmates at VBCC ,
right
to
receive
wr it ten
materials
publishers .
As discussed below,
favor
PLN or De f endants,
either
and t he inmates'
this
from
PLN
intertwined
and
other
factor can be argued to
but appears
to slightly favor
Defendants.
In
PLN ' s
favor,
t he
fo rmer
VBCC
policy
was
so
broad
as
written that it would appear to prohibit every magazine with a
single advertisement for Hanes underwear,
that included a woman,
man,
(such as a beach scene),
or o ther advertisement
or child in less than full clothing
which in an era where s ome form of "sex
symbol" i s us ed to adve rt ise an ever growing number of p roducts,
13
The Supreme Court has cautioned against a narrow interpretation of
"the right" in question , finding that it must be "viewed sensibly and
expans ively ."
Abbott, 490 U. S. at 417.
Accordingly, prison mail
restrictions that limit certain publications from entering the prison,
yet sti ll "pe rmit a broad range of publications to be sent, rec eived,
and read" favor the cons ti tut ionali ty of the challenged restriction .
Id . at 418 .
28
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 29 of 48 PageID# 3070
such
rul e ,
cover a
if
f a ithfull y
substantial
States,
United
dissenting)
symbols
sell"
liquor,
place ,
an
appear
t h igh s , ankles,
clothing,
buyer's
autos,
in De f endants'
the
record
490
to
See Ginzburg v.
(Douglas,
(1966)
"advertising
technique
U.S.
and
even
favor,
suggests
at
calves ,
at tent ion
J.
as
I
"sex
old
as
that
This
418.
to
(and)
bos o ms
lotions,
insurance
.
tires,
to
food,
policies")
In
even while such policies were in
range of publications to be sent ,
Abbott ,
482
463,
would
"[t) he advertisements of our best magazines
potential
contrast ,
U . S.
is
and that
the
written,
percentage of magazines.
383
are chock-full o f
draw
as
(recognizing nearly fifty years ago that u sin g
to
history,"
applied
the
VBSO
permitted
received,
and read"
element
therefore
"a
broad
at VBCC .
appears
to
slightly favor Defendants .
c. Impact of the Desired Accommodation
The third Turner factor requires the Court to consider the
likely impact on VBSO
staff,
inmates,
and prison resou rces
the challenged regulation is struck down .
200 .
Here,
in
light
update and improve
of
the
Sheriff 's
Lovelace,
voluntary
if
472 F . 3d at
decision
to
the VBSO sexually explicit materials policy
in advan ce of a Court ruling on this issue clearly demonstrates
that th i s
factor favors
restriction
of
PLN .
pornography
The new policy stil l
and
other
materials
permits the
that
truly
qualify as "sexually explicit," but it is far more targeted and
29
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 30 of 48 PageID# 3071
i n cludes
e x c eptions
anthropological
No .
76-2 ,
at
or
for
"pat ently
educational
21.
Plainly ,
medical,
commercial
Defendants
a r tistic,
publications."
do
not
policy , which was adopted without compulsion ,
view
ECF
the
new
to co nstitut e too
great of a d rain on jail resources or too great of a risk to
institutional security .
Moreover,
11
the desired accommodation"
s o ught by PLN i s not to f orce a new policy on Defendants, but to
preclude them from returning to the prior overb road policy .
there is no e vidence suggesting that
As
precluding Defendants from
returning t o an abandon ed policy would have any nega t ive i mpact
on jail resources,
the third element of the Turner test strongly
f avors PLN .
d . Obvious Alternatives
The
whether
fou r th Turner
there
are
any
factor
requ ires
"'obvious,
cha llenged r e g u lation or action ,
' not
reasonable,
but
prison concerns. ' "
482 U. S at
the
Court
90)
First
all,
Amendme nt
whether
penological interests . "
at
a
an
consider
tha t
exaggerated
the
it
is
response
to
(quoting Turner,
r e gulation,
accommodate
minim[i)s
to
St at ed d i f f e r ently,
an alternative
de
to
alternatives'
472 F.3d at 200
"would fully
rights
Court
which may s ug gest
[instead]
Lovelace,
easy
(alterat ion in o r i g i na l ) .
considers
regulation at
is
the
the
cost
or
no
[Plaintiff's]
to
legitimate
Woods v. Commissioner of the Ind . Dept.
of Corrections , 652 F . 3d 745, 750 (7th Cir. 2011).
30
For the same
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 31 of 48 PageID# 3072
reasons
discussed
factor,
immediately
Defendants'
above
voluntary
in
adoption
ana l yz i ng
of
the
new
a
third
policy
demonstrates that this factor strongly favors PLN . 14
For all the reasons analyzed herein, most notably, three of
the four Turner factors
PLN,
the
the Court
VBSO ' s
GRANTS
former
(including the first)
strongly favoring
PLN's motion for summary judgment as to
policy
on
sexually
expl i cit
materials
DENIES Defendants '
cross motion for summa ry j ud g men t.
having
determined
previously
t hat
qua li f i ed immunity on such issue ,
Def e nd ant s
a re
the only r el i e f
and
However,
e nt itled
to
ava ilable to
PLN comes in t he form of a declarat i on that the f o r me r pol icy ' s
overbreadth
r u ns
afoul
injunction precl uding
policy . 15
The
Court
of
the
Const itution,
Defendants
finds
from
that
an
as
well
as
reinstating
such
former
injunction
an
precluding
14
As stated on the March 17, 2015 conference call in this case, the
Court commends the Sheriff for voluntarily changing the VBSO sexua lly
explicit materials policy and adopting a new policy that appears t o
fall in the heartland of jail/ prison policies that have been upheld by
federa l courts in the face of constitutional challenges .
Such acti o n
speaks volumes to the Sheriff's desire to manage important penologica l
concerns but at the same time respect the guarantees of the United
States Cons ti tut ion .
Al though the Sheriff's decision to adopt such
modified policy impacts the Turner analysis, it should be noted that
even if such action had not been taken, the apparently widespread
existence of policies at jails and prisons across the Commonwealth and
the country that are far less broad than the VBSO' s former policy
supports a finding that "obvious alternatives" existed to the former
policy .
15
Although not briefed by the parties , the we l l-established standard
for in j unctive relief requires that a plaintiff demonstrate :
(1) that it has suffered an irreparable injury ; (2) that
remedies available at law , such as monetary d a mages, are
inadequate
to
compensate
for
that
injury ;
( 3)
that,
31
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 32 of 48 PageID# 3073
Defendants from returning to a specific prior policy that is no
longer
in
f orc e
and
has
been
found
to
be
unconstitutional
comports with the requirement set forth in 18 U. S . C.
that
prospective
"narrowly drawn,
relief
associated
extends
no
with
further
the violation of the Federal right,
prison
§
3626 (a)
conditions
be
than necessary to correct
and is the least intrusive
means necessary to correct the violation of the Federal right.n
3. Forme r VBSO Public at ion Review Policies
Currently pending before the Court is PLN ' s recently-filed
motion
for
summary
review policy .
judgment
on
the
former
VBSO
publication
This Court previously denied Defendants'
summary
judgment mo t ion on this same issue , explaining as follows :
In Montca l m Publ' g , the Fourth Circuit expressly held
that a
magazine
publisher
"has
a
constitutional
interest in communicating with its inmate-subscribers"
and is t h erefore entitled to some degree of process
when a publication is censored.
Montcalm Publ' g, 80
F.3d at 109; see also Jack l ovich v. Simmons, 392 F . 3d
420 , 433 (10th Cir. 2004) (agreeing with the holding
in Montcalm Publ'g) .
Although the Fourth Circuit did
not express l y define the precise con tours of the
process necessary to satisfy the Constitution,
it
considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted ; and ( 4)
that the public interest would not be disserved by a
permanent injunction .
Legend Night Club v . Miller,
637 F.3d 291,
297 (4th Cir . 2011)
(quoting eBay Inc. v. MercExchange , L .L.C., 547 U . S . 388 , 391 (2006)) .
The Court has cons idered all of such factors and finds that PLN has
carried
its
burden
to
demonstrate
that
injunctive
relief
is
a pp ropriate in this case, as is demonstrated in part by the fact that
the 11 1 loss of Fi rst Amendment freedoms, for even min i mal periods of
time , unquestionably constitutes irreparable injury.'n Id . at 302
(quoting
Elrod v.
Burns,
427
U.S.
347,
373
(1976)
(plu rality
opinion)) .
32
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 33 of 48 PageID# 3074
"h[e]ld t hat publishers are entitled to notice and an
opportunity to be heard when their publications are
disapproved for receipt by inmate subscribers," and
appeared to discuss with favor a procedure that would
provide publishers a written rejection notice and an
opportunity to respond in writing.
Id . at 106, 109.
Here, it appears undisputed that Defendants first
notified PLN of a rejection of an issue of Prison
Legal News in April of 2012, and did not thereafter
notify PLN of subsequent rejections of any PLN
publications
until
late 2013,
after
the
instant
lawsuit was filed.
Moreover, the record demonstrates
that during a period of time in late 2013 when PLN was
receiving
notice
from
Defendants
of
censorship
decisions and seeking a rev iew of such decisions, the
"review procedure" merel y invol ved a VBSO employee
reviewing whether the rejection form was properly
filled out; it did not involve a review of the
rejected publication to determine whether it actually
violated VBSO rules.
ECF No . 52-2, at 2 - 5; see Jordan
v . Sosa, 577 F . Supp . 2d 1162, 1172-73 (D. Colo . 2008)
(concluding
that
a
BOP
program
statement
was
unconstitutional
"to
the
extent
it
permits
the
institution to return the [rejected] publication
to
the
publisher
prior
to
completion
of
the
administrative review") (emphasis added)
During the time period relevant to this case, the VBSO
has twice amended its policy associated with providing
notice and an opportunity to be heard, the first
amendment
appearing
to
ensure
that
"notice"
is
properly provided, and the second appearing to ensure
that a publisher be given the opportunity to be heard
as part of a meaningful review procedure.
Accordi ngly , because the current record, when viewed
in PLN' s favor, could plainly support a finding that
Defendants failed to provide PLN with constitutionally
adequate
notice ,
a
constitutionally
adequate
opportunity to be heard, or both, Defen dants ' s ummary
judgment motion is DENIED as to this issue.
ECF No. 65, at 29-32 (footnote omitted).
33
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 34 of 48 PageID# 3075
Subsequent
motion
for
to
this
summary
Court's
judgment on
decision
this
denying
issue,
the
Defendants'
Court
granted
PLN's motion for leave to file a second motion seeking partial
summary
time,
judgment,
and
allowing
PLN
to
assert,
that PLN is entitled to judgment as a
See ECF No. 74
this issue.
considered
the
summary judgment,
parties '
for
matter of
(granting ECF No . 72) .
briefs
on
PLN's
the
first
law on
Having fully
second
motion
for
the Court finds that PLN has demonstrated that
the prior VBSO policies infringed on PLN's due process rights as
to both "notice" and an "opportunity to be heard."
As to "notice," it is undisputed that Defendants first sent
PLN
a
"Mail
Restriction
Form"
rejecting
a
single
single issue of Prison Legal News in April of 2012.
1.
Defendants
do
not
dispute
the
fact
that
copy
of
a
ECF No . 81they
did
not
thereafter send another notice of rejection to PLN until October
of 2013,
although all
the monthly issues of Prison Lega l
were being censored during this time . 16
16
News
The April 19, 2012 form,
The Sheriff admits, without providing dates,
that one of his
rnailroorn employees, at least for a time, was failing to foll ow VBSO
policy as he was de livering copies of Prison Legal News to inmates .
Stolle Aff . ~ 8, ECF No . 48-3 .
l\s suggested in this Court's prior
Opinion, i f such deliveries were occurring between April 201 2 and
October of 2013, such fact undercuts Defendants' assertion that PLN
was "on notice" that its magazine was being consistently censored .
However, even assuming that no " outside of policy" deliveries were
made between April 20 12 and October of 2013, it is undisputed that
Def endant s'
individualized censorship decisions during this
time
period were not communicated by Defendants to PLN , as the Sheriff
acknowledges that, rather than returning a "sei zed" mail i tern to the
sender with a notice of rej ec tion, on some occasions prior to the
34
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 35 of 48 PageID# 3076
which
contains
some
rejected by the VBSO
prices"
and
that
is
difficult
to
read,
a single copy of an issue of Prison Legal News 17
indicates tha t
was
handwriting
"sexually
for
containing
explicit
"ordering forms
materials,"
and
with
that
the
publication was "Returned to Sender . "
Id .
Such form indicates
on
the
rejected
the
bottom
that
the
sender
of
mail
can
"challenge the seizure of the mailed contraband" and provides a
phone number of the "Property Division" which can be called by
the sender to challenge the seizure.
Id.
The "Reason/Comments"
section of such form was left entirely blank, and the form does
not otherwise
identify
the objectionable material,
providing a description or page number .
such as
by
Id.
Although Defendants assert that summary judgment in PLN' s
favor is not appropriate because there are disputed facts as to
whether constitutionally adequate
between May of 2012
notice)
and
rejection
was provided to PLN
(immediately after the April 2012 rejection
October
notices
"notice"
to
of
PLN
(when
2013
each
Defendants
month),
began
Defendants
sending
present
no
filing of this lawsuit, "the pink copy of the Mail Restri ction Form,
designated to the sender, was placed with the seized item in the
inmate s property box awaiting return to the inmate upon release,
rather than being sent to the sender."
Id. ~ 21.
The failure to
notify PLN upon non - delivery is further documented in an email
r eceived by PLN from Defendants in August of 20 12 , which is discussed
in greater detail below .
ECF No. 81 -2 .
1
17
Although unclear from the face of the difficult to read form, it is
undisputed that the Apri l 2012 "Mail Restriction Form" rejected an
issue of Prison Legal News.
ECF Nos . 81 , 81-1 .
35
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 36 of 48 PageID# 3077
evidence indicating that they notified PLN in May, June, or July
of 2012 that the VBSO was continuing to censor issues of Prison
Legal
To
News.
the
contrary,
indicates that on August 17,
in
this
case
informed
the
evidence
be f ore
the
Court
2012 , one of the Defendants named
PLN via email
that
the
practice
being
followed by the VBSO was to seize issues of Prison Legal News
and
keep
them
in
the
inmates'
"property
box"
for
an
indeterminate amount of time until that inmate was released from
ECF No . 81- 2 .
VBCC.
In light of the fact that it is undisputed
that Defendants were not sending "Mail Restriction Forms" to PLN
during this
time period,
the email corroborates the fact
that
Defendants were taking no steps between May and August of 2012
to notify PLN either of Defendants' decision to deny delivery to
inmate subscribers, but retain in VBCC,
and
July
2012
Defendants'
issues
of
Prison
individualized
the May 2012, June 2012,
Legal
decisions
News
to
or
censor
the
basis
such
for
issues.
Additionally, because the April 2012 "Mail Restriction Form" did
not
include
any
page
numbers
or
other
descriptions
that
specifically identified the allegedly offending material in the
banned issue, such form did not provide PLN adequate notice that
future
issues of
its monthly publication would also be barred
from the VBCC.
Viewing the facts in Defendants'
resolving
PLN' s
summary
judgment
36
favor for the purposes of
motion,
it
appears
that
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 37 of 48 PageID# 3078
communicat ions bet ween Defendants and PLN in mi d - August of 2012
retroact i v e ly pu t
Legal
that month ly i ssues of
had bee n barred from VBCC the las t
News
However ,
PLN on notice
even
commun ications
assuming,
were
withou t
sufficient
d e ciding ,
to
put
several
t ha t
months .
t he
PLN on no tice
VBSO wou l d continue to ban future iss ue s of Pri s on L ega l
they contained s imilar content,
Prison
August
tha t
the
News if
there is st ill no evidence that
PLN was a t
t ha t
t ime informed of its r ight to participate in a
review
t he
pas t
v i ewi ng
of
the
facts
t ha t
De f e ndants ,
t he
requirements
p ub lishe r,
censorship
in
Defendants'
at leas t
of
adequa t e
decis i o ns.
for a
Montcalm
fav o r ,
PLN has
short time ,
Pu b l'g
Therefore,
by
even
demonstrated
fa i l ed to sa t isfy
providing
PLN,
a
notice that i ts monthl y maga z ine was being
banned d ur ing the summer of 2012 and a deq ua t e notice of how PLN
could challe nge s uc h censorship .
order,
the
fac t
that
PLN
may
18
As noted i n t h i s Court's prior
have
sus pected, 18
or
may
have
PLN admits t hat " starting in approximately Ap ril 2012 " it began
receivi n g s ome items ma il ed to VBCC inmates " r eturned to it through
the Un i t e d States Pos t a l Servi ce ' s ' Return to Sender' p rocess ."
ECF
Even a ssuming that one or more of t he May , J une , or July
No . 38 ~ 15 .
2012 issues we re returned to PLN through such posta l process , it is
undisputed t ha t Defendants were holding other copies of PLN ' s magazine
in inmate ' s proper ty boxes during that time period without giving
notice to PLN that such magazines were not being delivered .
ECF No .
81-2; see ECF No . 48-14 .
Accordingly, buttressed by the fact that
VBCC is a city jail with a transitory popu l ation, an item marked
"Return to Sender" received subsequent: to a
single notice that
Defendants censore d a single copy of a single edition of Prison Legal
News is insufficient to put PLN on notice ei t h e r that Defendants made
a jail-wide deci s ion to stop delivering all is sues of Prison Legal
News or to inform PLN how it could challenge such decision .
On this
37
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 38 of 48 PageID# 3079
actually been aware ,
that such issues were being rejected based
on communications from inmates to PLN appears largely irrelevant
because "while
[an]
inmate is free to not ify the publisher
censorship]
and
ask
authorities'
decision,
for
the
must not depend on that ." 19
help
in
challenging
publisher's
First
the
[of
prison
Amendment
right
Montcalm Publ'g, 80 F .3d at 109.
point, the inst ant facts are readily distinguishable from the facts of
Van Den Bosch v . Raemisch, No . 09cv62-bbc, 2009 WL 4663134, at *3
(W . D. Wis . Dec . 1, 2009), cited by Defendants , as in that case, no due
process violat ion was found when the publisher received from the
defendants 35 notices of non - d elivery out of the approxima tely 250
c opies of a s ing l e edition of a newsletter that was sent to prisoners
in Wisconsin state prisons .
Not only did Van Den Bosch involve more
than thirty notice s of t:he rejection of the exact same publication,
but "[m) any of the notices stated explicitly that the decision was a
'DOC WIDE DENIAL .'"
Id . at *4.
In contras t, here, PLN sen t different
monthly issues to VBCC inmates between April and Augus t of 2012 and
received from t he VBSO only a singl e rejection notice with respect to
a sing le copy of a single issu e , such notice failing to indicate that
other identical copies of the same issue had been censored, and
failing to indicate that future issues would als o be censored .
19
It appears that, at various times in April of 2012 and thereafter,
some VBCC inmates not only wrote letters to PLN about rejected PLN
mail , but attached copies of the "Mail Restriction Form" the VBSO
provided to that inmate .
ECF No. 48-14 .
As noted a bove, cont rolling
pre cedent indicates that such secondary communications from inma tes
cannot satisfy Defendants' duty to notify a publisher of a censorship
decision . Moreover, the copies of the notices before the Court do not
clearly indicate what t:ype of publication was rejected , and even
assuming that those rejection forms that reference "sexually explicit
materia ls " refer to issues of Prison Legal News, such fo rms do not
indicate which monthly issue was rejected.
Id.
Although VBCC inmates
suppli ed PLN with copies of VBSO rejection forms c lear ly dated in
April and May of 2012 that refe rence "sexually explicit materials,"
the two forms legibly dated in June of 2012 do not reference a
rej ection based on sexually explicit materials, and thus, may refer to
PLN publications other than Prison Legal News .
Id .
Moreover, there
are no forms legibl y dated July or August of 2012 .
Accordingly, the
se condary presentati on of such forms by inmates does not alter the
conc lu sions reached by the Court herein .
38
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 39 of 48 PageID# 3080
To better illustrate the above finding,
the Court turns to
a case relied on by Defendants for the proposition that "notice
is
not
required each and
every
201,
224-25
(5th
a
censorship decision
Prison Legal News v . Livingston,
made by jail authorities.
F.3d
time
Cir .
2012) .
In
Livingston,
the
11
is
683
Fifth
Circuit concluded that when a prior decision to exclude a static
publication
case,
not
has
a
been
finalized
(a
monthly magazine),
a
book
prison
provide a
second "review
and thus,
the sender has neither a right
be
heard on future
was
entitled
decision of
subsequent
has
issue
no
obligation
as
to
that
to
exact same
to
"notice"
of
a
subsequent
process,
the
Fifth
Circuit
the
censorship
right
Due process perta ins to the right to participate in
government decision making.
The "notice" required by
due process is notice of when, where, and how one can
be
heard
before
a
decision
becomes
final .
See
Londoner v . Denver, 210 U . S . 373, 385 (1908) ("[D]ue
process of law requires that
[a party] shall
have an opportunity to be heard, of which he must have
notice .
.
The right to receive notice exists
only
to
effectuate
the
right
to
be
heard,
and
therefore is inapplicable where a party has no right
to participate in the decision-making process.
11
)
•
(emphasis added) .
39
to a
explained
follows :
Id . at 224
that
to not ice or a right to
the static publication even absent
review
in
In rejecting the plaintiff ' s argument that it
I d.
least
at
process of the identical publication,
censorship decisions
publication .
at
11
was
as
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 40 of 48 PageID# 3081
The facts of
from
the ins tant case are clearly distinguishable
Livi ngston
discrete
because
issue s
of
a
this
case
monthl y
involves
non -static
censorship
of
publ ication ,
and
Defendan ts have failed to cite any case suggesting that PLN was
not
enti tled
denial.
to
Moreover ,
suggesting
that
where,
"when ,
notice
a nd
there
how"
individualized decisions
right
to
be
heard
as
to
each
is no evidence in the instant rec ord
Defendant s
and
a
ever
they
provided
could
rej ec ting
PLN
be
PLN' s
with
heard
May
2012,
notice
as
to
June
of
the
2012,
and July 2012 monthly magazines before such censorship decisions
became final . 20
Accordingly,
Id .
the Court finds that disputed
fac ts need no t be resolved in order to determ ine that,
for a short time ,
at least
Defendants fa iled t o provide adequate noti ce
to PLN that its monthly magazine was being censo red .
As
before
to an "opportunity to be heard,"
the
Court
suggesting
opportunity to challenge
2012,
or July 2012,
issues of
2006)
PLN
was
ever
provided
the censorship of its May 2012,
Lega l News v . Cheshire , No.
(D . Utah June 30,
that
there is no e vidence
Prison Legal News .
1 :04cvl73,
an
June
Cf .
Prison
2 006 WL 1868307,
at *10
(finding that even though a let ter sent
20
It appears to be unclear from the record whether the "Mail
Restr iction Form" dated April 19 , 2012 was assoc iated wit h the April
2012 issue or May 20 12 issue of Prison Legal News.
However, even
assum ing that the referenced issue was t he May 2012 issue , there is no
evidence that Defendants informed PLN that the June and July issues
had been rejected prior to the August discussion, which may have
retroactively made such announcement,
but did not provide any
suggestion that such prior decisions were still subject to appeal .
40
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 41 of 48 PageID# 3082
from the defendants to PLN in January of 2005 was arguably "not
sent contemporaneously"
with the jail's prior rejection of the
October,
December
News,
November,
and
2004
such letter "provided [PLN]
issues
Prison
of
Legal
with an opportunity to appeal
the prior rej ection s" and thus, PLN "re ceived all the process it
was required to re ceive in this context")
those months,
PLN has demonstrated both
Accordingly,
inadequate
as to
notice and
the associated failure to provide an opportunity to be heard.
Moreover,
even
if
the
evidence demonstrated that
PLN did
rec eive adequate notice and an adequate opportunity to be heard
(which it never invoked)
timeframe,
the
Defendants
provided
as to the May 2012 through August 2012
record clearly demonstrates
a
deficient
review
that
in late
2013,
process
that
wholly
undercut any meaningfulness of the review of a prior censorship
decision,
effec t ively
in
Specifically,
denying
October
of
PLN
the
2013 ,
right
aft er
to
PLN
be
heard .
filed
suit,
Defendants began providing PLN with notice each month indicating
that the monthly issue of Prison Legal News had been barred from
the VBCC.
forth
on
censorship
PLN then began utilizing
the
notice
decision,
issue was upheld .
a
period of
censored
time,
Prison
form,
the
and each
decision
However,
time
PLN was
prohibit
set
heard on
the
a
challenged
it is undisputed that , at least for
the VBSO was
Legal
to
the review procedure
News
not
retaining a
publication .
41
copy of
Accordingly,
the
the
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 42 of 48 PageID# 3083
undisputed
was
not
facts
a
demonstrate
review
to
see
violated VBSO policies,
that
if
the
the
VBSO
censored
procedure
content
actually
but was instead merely a review to make
sure that the VBSO "Mail Restriction Form"
Stated differently,
out.
"review"
was properly filled
the entire review process consisted of
a second set of eyes reviewing a copy of the "Mail Restriction
Form"
to see if the person who had completed such form claimed
that there was a basis for censorship .
It is readily apparent
that
PLN
such
review
procedure
deprived
(awarding declaratory and injunctive relie f
based
Statement"
on
the
finding
that
was unconstitutional
to
the
administrative review")
meaningful
the
"to the
in the plaintiff's
disputed
extent
institution to return the publication rejected
nudity]
a
See Jordan, 577 F . Supp. 2d at 1172-73
opportunity to be heard.
favor
of
publisher
prior
to
BOP
"Program
it permits
the
[for containing
completion
of
the
(emphasis added) .
Similar to the VBSO' s
sexually explicit materials policy,
the apparent infirmities with the VBSO publication review policy
that came to light during the pendency of this case were swiftly
rectified by the
Sheriff,
and he
should be
commended for
his
actions of twice amending the VBSO notice and review procedure.
The
that
first
VBSO
modification appears
employees
were
to have been aimed at ensuring
consistently
providing
notice
to
publishers of rejected publications, and the second modification
42
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 43 of 48 PageID# 3084
appears to have been aimed at ensuring that censored materials
are
retained
for
a
sufficient
meaningful review process. 21
period
That said,
of
violated
the
Constitution,
controlling standard articulated by the
to
permit
a
the question currently
before this Court is whether the Defendants '
practices
time
prior policies and
and
based
on
the
Fou rth Circuit holding
that publishers are entitled to both "notice and an opportunity
to be heard when their publications are disapproved for receipt
by inmate subscribers,
/1
illustrated
the
best
by
Montcalm Publ' g,
well-reasoned
80 F. 3d at 106, and as
and
squarely
opinion from the Colorado District Court in Jordan,
on-point
577 F . Supp.
2d at 1172-73 , this Court finds that PLN has demonstrated that a
due process violation occurred when PLN was denied a meaningful
opportunity to be heard for a period of several months beginning
in October of 2013.
21
According to the Sheriff's affidavit, the first amendment occurred
in September of 2013 and involved the revision of an internal
directive to ensure that the "pink copy of the [VBSO] Mail ~estriction
Form wou ld be sent to the sender " of the censored publication .
ECF
No. 48-3 ~ 22 .
Subsequently , in April of 2014 , a "VBSO Policy and
Procedure General Order" was modifi e d in orde r to clar ify that "seized
mail items are to be retained for 3 0 days to allow for their review in
the event of a challenge to the seizure .
Id . ~ 25; see id. ~ 24
(setting forth the language of the current policy which provides : (1)
notice to both the sender and the inmate;
( 2) the reason for the
seizure will be offered ; (3) a 30 day appeal period will follow during
which both
(t] he inmate and sender are allowed the opportunity to
challenge the seizure"; (4) the review of a seizure will be provided
by an individual that did not make the initial decision and who has
authority to overturn such decision; and (5) that after the review
period,
the seized item will be stored,
returned to sender, or
destroyed) .
/1
11
43
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 44 of 48 PageID# 3085
Although the Sheriff has l o ng-since implemented a corrected
policy
that
on
its
face
opportunity to be heard,
requested
by
PLN on
light of Defendants'
of
their
prior
the
conduct
this
issue
failure
remains
of
reasonably
a
notice
and
an
injunctive relief
live
controversy
in
to acknowledge that either version
See
suspect.
"heavy burden"
cannot
adequate
the declaratory and
policy/practices
constitutionally
that
provides
was
unconstitutional,
Wall,
741
F . 3d at
demonstrating
be
expected
with the party asserting mootness,"
that
to
and that
497
"the
star t
or
up
even
(noting
challenged
again
"when a
lies
defendant
retains the authority and capacity to repeat an alleged harm,
plaintiff's claims should not
citations omitted) .
be dismissed as
moot")
a
(internal
Because the Sheriff retains the ability to
change the VBSO policy on this issue at any time , and he has not
submitted an affidavit
to
either
of
the
recognizing
former
any
impediment
policies/practices,
the
GRANTS PLN's second motion for summary judgment.
the
Court
grants
PLN' s
request
for
a
to
judgment
returning
Court
hereby
In so ruling,
declaring
that
PLN 's due process r igh ts were violated during a period of months
in
the
period
middle of
of
2012,
months
likewise
grants
Sheriff
is
beginning
PLN's
hereby
policies/practices
and violated in a
in
request
ENJOINED
that
failed
October
for
from
to
44
of
different way for
2013 .
injunctive
returning
provide
The
relief,
to
publishers
Court
and
the
a
the
prior
adequate
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 45 of 48 PageID# 3086
notice or an opportunity to be heard "when the i r
publ ica tions
[were] disapproved for receip t by inmate subscribers . "
80
Publ' g,
§
3626(a),
F.3d
106 . 2 2
at
requiring
that
civil action associated
intrusive
Federal
me ans
right,"
including
language
Complaint
as
doing
Court
similar
so
compliance
prospective
with
relief
to
correct
dec l ines
to
that
appears
more
the
to
18
ordered
with prison conditions
necessary
this
In
Montcalm
be
an
requested
in
intrusive
in
"the
violation
issue
U. S . C.
of
any
least
the
inj un ction
the
than
Amended
necessary
because it would improperly interfer e with the Sh eriff ' s a bil ity
to maintain appropriate pol icies and procedures at VBCC . 23
IV. Mone t a ry Damage s
A. Initial Summary Judgment Mot ion
Monetary
damages
are
not
available
to
PLN
as
to
the
sexually explicit materials policy based on this Court's prior
rul ing t hat De fendants were qualifiedly immune f or money damages
22
As in the previ ous section of this Opinion analy zing the former VBSO
sexua lly explicit materials policy, the Court finds that PLN has
carried its burden to demonstrate that an injunc tion is proper under
the four-part test articul ated by the Supreme Court in eBay, 547 U.S.
at 391 .
23
The Amended Complaint requests an injunction requiring that
rejection notices specifically ident if y both the page numbers of
objectionable material as well as the penological just ification
claimed to be threatened by such material.
ECF No . 17.
PLN , however,
failed to demonstrat e that when it did receive notice of censorship
decisions from Defendants , such notice lacked sufficient particularity
to allow for a meaningful right to be heard as to that speci fic
rejection decision.
Absent such showing , a broader injunction is not
appropriate.
Moreover, it is notable that Defendants at some point
began specifically identifying the objectionable material, clearly a
better practice regardless of whether it is constitut iona lly required .
45
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 46 of 48 PageID# 3087
ECF No . 65, at 33-42.
on this issue .
Accordingly, there are no
outstanding issu es as to damages with resp ect to s uc h mo t i on.
B. PLN's Second Sununary Judgment Motion
As
to
entitled
PLN' s
to
due
"nominal
p rocess
claim ,
damagesu
and
PLN
asser t s
"punitive
that
damages"
it
in
is
the
event that summary judgment is granted in PLN's f a vor as to its
ECF No .
second motion for part i al summary judgment .
It appears from Defendants'
n.l .
at 3
83,
post conference call informal
status u pdate to t he Cou rt that Defendants ' pos ition is t ha t PLN
is entitled to no more than one dollar in nominal damages,
is
no t
entitled
to
punitive
damages
based
on
the
abs ence
and
of
evidentiary support .
As
agreement
the
on
pa rties
damages
have
in
requested
the
event
the
that
oppor tun ity
summary
this issue .
( 1 4)
a ddi tiona l
reach
judgment
granted in favor of PLN on its due process claim,
are hereby affor ded fourt een
to
was
the parties
days to confer on
If the parties have not reached an agreement by the
end of t h e fourteen
(14)
day period ,
they shal l ,
separat ely or
collectively, fi l e a "Status Updateu on the record.
v. Conclus ion
For the reasons set forth in detail above,
motion for summary judgment is
GRANT ED
as to the reserved issue
regarding the constitutionality of Defendants '
sexually explicit materials.
ECF No. 35 .
46
PLN' s original
former policy on
Such former policy is
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 47 of 48 PageID# 3088
declared
unconstitutional
Turner analysis
other
named
as
discussed
Defendants
is
in detail
are
reverting to such policy .
it
hereby
overbroad pursuant
herein .
to
the
The Sheriff and
permanently
ENJ OINED
from
Defendants' cross mot ion for summary
judgment on this issue is DENIED.
ECF No. 49 .
PLN's second motion for summary judgment is GRANTED, and it
is
hereby declared
policies
were
that
Defendants'
unconstitutional
as
former
they
publication review
failed
to
provide
adequate notice and an opportunity to be heard as to decisions
made by the VBSO to censor a uniqu e monthly publication sent to
inmate subscribers.
ECF No . 77.
Such ruling is based both on
the finding that PLN demonstrated that it was denied due process
during a period of mon t h s in the mi ddle of 2012 , and vio l a t ed in
a different way for a period of months beginning in October of
2013.
The
relief ,
Court
a nd
likewise grants
PLN' s
request
for
injunctive
the Sheriff and other named Defendants are hereby
permanently ENJOINED from r everting to the prior policies that
failed to provide publishers adequate notice and an opportunity
to
be
h eard
receipt by
"when
inmate
their
pu blicat ions
subscribers.
/1
[we ] r e
disapproved
Montcalm Publ 'g,
80
for
F . 3d at
106.
As
indic a t ed above ,
at
are hereby afforded f ourteen
the parties'
( 14)
request ,
add i ti onal days
the parties
to confer on
the issue of monetary damages, and the Court strongly encourages
47
Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 48 of 48 PageID# 3089
t he
part i e s
to
mee t
in person
reaching an a greement .
if
they
are
having
Should the parties desi re t o schedule a
continuation of settlement discussions with a
of
this Court ,
Magistrate Judge
t h ey should not hesi tate to c on tact t he deputy
clerk
responsib l e
J udge
tha t
for
p reviously
scheduling
handled
matters
settlement
with
the
Magistrate
di s cussions
in
this
If the parties h ave not re a c h ed an agre e ment by t h e end
c ase .
of
di f f iculty
the
fourteen
collectively ,
file
(14)
a
day
p er iod ,
"Status
they
Update"
on
shal l,
the
separate l y
record
or
i n c l uding
comments on whether a continuance of the se tt l e ment conf erence
has been scheduled and,
if not, whether PLN wi s hes to proceed to
a jury trial o n the issu e of nomina l and/or punitive damage s .
The Clerk i s REQUESTED t o send a copy o f
thi s Opinio n and
Order to al l counsel of record.
IT IS SO ORDERED.
/s/~
Ma rk S . Davis
United Stat es Distric t Judge
Norfolk , Vi r g i nia
March ~ , 201 5
48