United States District Court, W.D. Virginia, Roanoke Division
GLEN E. CONRAD, Chief District Judge.
Jeffery Gardner, a Virginia inmate proceeding pro se, is pursuing this civil rights action pursuant to 42 U.S.C. § 1983, alleging violations of his rights under the First and Fourteenth Amendments. He alleges that on four occasions, prison officials ruled that mail order commercial photographs he had purchased violated prison regulations and immediately returned them to the vendors. Defendants have filed a motion to dismiss, and Gardner has filed a response. After review of the record, the court will grant defendants' motion.
Gardner is incarcerated at Pocohontas State Correctional Center ("PSCC"). In 2013, he submitted four separate orders for photographs of nude models to vendors, including Casey Nall and Branletts. PSCC mailroom staff processed each order under Virginia Department of Corrections ("VDOC") Operating Procedures ("OP") 803.1 and 803.2.
OP 803.1 contains various restrictions and procedures to ensure "the efficient, safe, and secure handling and processing of [incoming and outgoing] correspondence" for VDOC inmates. OP 803.1(I). "Commercially distributed or personal photographs... that by the nature of the content pose[ ] a threat to personal or facility safety and security, or meet the Specific Criteria for Publication Disapproval in [OP 803.2] are prohibited." OP 803.1(IV(B)(8)(a). The referenced criteria in OP 803.2 states, in pertinent part:
The Facility Unit Head should disapprove a publication for receipt and possession by offenders... if the publication can be reasonably documented to violate any of the following criteria:
A. Material that emphasizes explicit or graphic depictions or descriptions of sexual acts, including, but not limited to:
1. Actual sexual intercourse (vaginal, anal, or oral) including inanimate object penetration
2. Secretion or excretion of bodily fluids or substances in the context of sexual activity
3. Bondage, sadistic, masochistic, or other violent acts in the context of sexual activity
4. Any sexual acts in violation of state or federal law.
NOTE: This criterion shall not be used to exclude publications in the context of a story or moral teaching unless the description of such acts is the primary purpose of the publication. No publication generally recognized as having artistic or literary value should be excluded under this criterion. Questionable materials shall be submitted to the PRC[.]
When mailroom staff find that incoming correspondence contains items regulated by OP 803.1, such as commercial photographs, and includes items unauthorized under the policy, they will log and return the correspondence, including the prohibited items, to the sender. OP 803.1(IV)(B)(8)(a). The intended recipient inmate will be notified that his incoming package was disallowed and returned, and may file grievances about the incident, but he has "no input on disposition" of such items. OP 803.1(IV)(B)(20)(i). On the other hand, if prison officials reject an offender's incoming publication as sexually explicit under the policy criteria, the offender may seek review of that decision by the ...