United States District Court, E.D. Virginia, Norfolk Division
PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER, Plaintiff,
KEN STOLLE, Sheriff for Virginia Beach, Virginia, et. al, Defendants.
OPINION AND ORDER
MARK S. DAVIS, District Judge.
This matter is before the Court on a motion for partial summary judgment filed by Prison Legal News, a project of the Human Rights Defense Center, ("Plaintiff, " or "PLN"), and a cross-motion for summary judgment filed collectively by Ken Stolle, Sheriff for Virginia Beach, Virginia ("Sheriff Stolle, " or "the Sheriff"), and the eight named defendant employees of the Virginia Beach Sheriff's Office (collectively with the Sheriff, "Defendants"). For the reasons set forth below, the Court TAKES UNDER ADVISEMENT the parties' cross motions for summary judgment as to the constitutionality of Defendants' "sexually explicit materials" policy in order to permit additional briefing on such subject. As to the cross motions for summary judgment on Defendants' "ordering form policy, " Defendants' motion is GRANTED and Plaintiff's motion is DENIED. Additionally, the Court GRANTS Defendants' motion to the extent Defendants invoke the doctrine of qualified immunity. All other arguments in support of summary judgment contained in the cross motions are DENIED.
I. Factual and Procedural Background
PLN is the publisher of a monthly magazine titled "Prison Legal News, " which includes articles and news about various legal issues, access to courts, prison conditions, mail censorship, prisoner litigation, visitation rights, religious freedom, and prison rape, among other things. ECF No. 36, at 1. Contained in the monthly Prison Legal News magazine are advertisements from various vendors selling adult oriented photographs, which are frequently offered in two versions: "Nude" and "Non-Nude: Bureau of Prisons Friendly." Some advertisements are text only, some include various sized pictures of women in tight clothing and/or miniskirts, and some include thumbnail images of women or men wearing skimpy bathing suits or lingerie or otherwise in a state of undress. None of the images in Prison Legal News display nudity, but some images do include women or men posed in overtly sexual positions with a star shaped censor (hereinafter, "censor star") strategically placed to avoid any technical nudity. Although the censor star images avoid any technical "nudity, " the use of the star is plainly designed to be suggestive by giving the impression that the woman or man in the photograph is revealing their genital area, or alternatively, that the woman is revealing her breasts. In addition to the monthly Prison Legal News publication, PLN also publishes and distributes books and periodicals on issues related to the criminal justice and corrections systems. Id . From 2012 through the present, PLN advertised for many of these additional publications in each monthly issue of Prison Legal News. Additionally, PLN produces a stand-alone "informational packet" designed to familiarize prisoners with various PLN publications. It is undisputed that, during the time period relevant to the instant litigation, all informational packets, and all monthly issues of Prison Legal News, that were sent to inmates at Virginia Beach Correctional Center ("VBCC") included "ordering forms" with prices advertising PLN's various written publications.
Since April of 2012, neither the monthly Prison Legal News magazine nor PLN's informational packet have been permitted inside VBCC, which is operated by Sheriff Stolle and the Virginia Beach Sheriff's Office ("VBSO"). According to Defendants, they have censored issues of Prison Legal News "pursuant to VBSO policies as PLN's magazines have contained sexually explicit pictures, which may be intended to arouse sexual desire, may be deemed offensive, and/or include scantily clothed persons." ECF No. 48, at 2-3. Defendants assert that a policy preventing sexually explicit materials from entering VBCC is necessary to advance jail security and protect the safety of both jail personnel and VBCC inmates.
Separately, Defendants assert that Prison Legal News is not permitted at VBCC because it contains "ordering forms, " which are not permitted at VBCC. PLN's informational packets have likewise been excluded from VBCC because they contain ordering forms. Defendants assert in their summary judgment filings that the prohibition on ordering forms "protects the public and businesses from fraud" because "VBCC inmates do not have cash, credit cards, or funds available to order or purchase from outside vendors." Id. at 7.
On July 30, 2013, PLN filed the instant civil action in this Court challenging the "censorship of its monthly publication, books and other correspondence, " and further asserting a violation of due process based on Defendants' alleged failure to both timely notify PLN of such censorship and to provide PLN a meaningful opportunity to challenge such censorship. ECF No. 1, ¶ 1. On March 26, 2014, PLN filed an amended complaint, which continues to assert unlawful censorship and due process violations. ECF No. 17. Defendants, who are all represented by the same counsel, oppose the relief sought in the amended complaint, and deny that they committed any constitutional violations. ECF Nos. 23, 28, 32.
In May of this year the parties attended a settlement conference conducted by a United States Magistrate Judge, but attempts at settlement were unsuccessful. PLN thereafter filed its motion for partial summary judgment. Defendants oppose Plaintiff's motion, and separately filed a cross motion seeking summary judgment as to all of Plaintiff's claims. Alternatively, Defendants seek a ruling that they are shielded by qualified immunity as to claims seeking monetary relief. The cross-motions for summary judgment are now fully briefed and ripe for review.
II. Standard of Review
The Federal Rules of Civil Procedure provide that a district court shall grant summary judgment in favor of a movant if such party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). A fact is "material" if it "might affect the outcome of the suit, " and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248.
If a movant has properly advanced evidence supporting entry of summary judgment, the non-moving party may not rest upon the mere allegations of the pleadings, but instead must set forth specific facts in the form of exhibits, sworn statements, or other materials that illustrate a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Fed.R.Civ.P. 56(c). At that point, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In doing so, the judge must construe the facts and all "justifiable inferences" in the light most favorable to the non-moving party, and the judge may not make credibility determinations. Id. at 255; T-Mobile Northeast LLC v. City Council of City of Newport News, Va., 674 F.3d 380, 385 (4th Cir. 2012).
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 law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks and citation omitted). As to each separate motion, the Court must separately resolve factual disputes and competing rational inferences in favor of the non-movant. Id.
A. Legal Standard Governing Restrictions on Incoming Mail/Publications at a Prison/Jail
It is well-established that "the First Amendment plays an important, albeit somewhat limited, role in the prison context." Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 107 (4th Cir. 1996). As described in detail in the Fourth Circuit's Montcalm opinion, the contours of the legal standard governing a jail's censorship of incoming and outgoing mail has changed over time. Montcalm Publ'g, 80 F.3d at 107-08. The standard now applicable to regulations that censor incoming publications was established by the United States Supreme Court in Turner v. Safley, 482 U.S. 78 (1987), and later expressly extended to incoming publications in Thornburgh v. Abbott, 490 U.S. 401, 413 (1989).
As explained by the Supreme Court in Turner, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution"; however, the complexities of incarceration are such that "[r]unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Turner, 482 U.S. 84-85. Accordingly, the Turner opinion "specifically rejected the application of [a] strict scrutiny" standard applicable to prison regulations that impinge on constitutional rights, adopting instead a four-part test "to guide the review process" that gives "deference to the judgments of prison administrators faced with difficult problems." Montcalm Publ'g, 80 F.3d at 108. Such test requires 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 challenged regulation or action, which may suggest that it is "not reasonable, but is [instead] an exaggerated response to prison concerns."
Lovelace v. Lee, 472 F.3d 174, 200 (4th Cir. 2006) (quoting Turner, 482 U.S. 89-92) (first omission in original).
Further articulating the deference owed to prison administrators, the Fourth Circuit has repeated the Supreme Court's warning that "courts are ill equipped to deal with the increasingly urgent problems of prison administration.'" Id. at 199 (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974), overruled by Thornburgh, 490 U.S. at 413-14). Accordingly, "courts must accord deference to the officials who run a prison, overseeing and coordinating its many aspects, including security, discipline, and general administration." Id .; see In re Long Term Administrative Segregration of Inmates Designated as Five Percenters, 174 F.3d 464, 469 (4th Cir. 1999) (noting that "the evaluation of penological objectives is committed to the considered judgment of prison administrators, who are actually charged with and trained in the running of the particular institution under examination, " and that "[w]hen a state correctional institution is involved, the deference of a federal court is even more appropriate") (internal quotation marks and citations omitted). Such deference is, in part, built into the Turner test as such test "is less restrictive than the test ordinarily applied to alleged infringements of fundamental constitutional rights." Lovelace, 472 F.3d at 200; see United States v. Stotts, 925 F.2d 83, 86 (4th Cir. 1991) (describing the role of courts in this context as "one of caution").
In applying the Turner test, it is the party challenging the prison regulation that "bears the burden of showing that the [challenged] regulations... are not reasonably related to legitimate penological objectives, or that they are an exaggerated response' to such concerns." Prison Legal News v. Livingston, 683 F.3d 201, 215 (5th Cir. 2012) (citing Overton v. Bazzetta, 539 U.S. 126, 132 (2003); Turner, 482 U.S. at 87). Although such burden falls squarely on PLN in the instant case, Defendants are nevertheless required to articulate a rationale in support of the disputed polices such that the Court can perform a meaningful review of the policy under Turner. Beard v. Banks, 548 U.S. 521, 535 (2006) (plurality opinion); see Van den Bosch v. Raemisch, 658 F.3d 778, 786 (7th Cir. 2011) ("While the burden of persuasion is on the [plaintiff] to disprove the validity of a [prison] regulation, defendants must still articulate their legitimate governmental interest in the regulation.") (citations omitted); Livingston, 683 F.3d at 215 (noting that in order for prison administrators to be "entitled to summary judgment, ... the record must be sufficient to demonstrate that the Policy is a reasonable one'" (quoting Beard, 548 U.S. at 533)).
B. Parties' Summary Judgment Claims
PLN's motion for partial summary judgment and supporting memoranda challenge Defendants' polices banning from VBCC "sexually explicit" photos or publications, which at VBCC extends not only to what is traditionally considered "pornography, " but also to "any writings [or] pictures. which may be deemed offensive" as well as to "material dealing with or displaying... scantily clothed persons." ECF No. 48-4. Separately, PLN challenges the VBSO policy banning incoming mail containing "ordering forms with prices." Id . Although PLN's amended complaint also alleges due process violations based on Defendants' handling of censored PLN publications, PLN does not pursue such issue on summary judgment. ECF No. 36, at 11 n.8.
Defendants' summary judgment motion and supporting memoranda oppose Plaintiff's constitutional challenge to the two jail policies at issue, and assert that Defendants are entitled to summary judgment on such issues because the sexually explicit material and order form restrictions are constitutionally proper under Turner. Defendants also assert that they are entitled to summary judgment on Plaintiff's due process claim, arguing that PLN was afforded sufficient notice, and an opportunity to challenge, the rejection of its publications. Additionally, to the extent PLN's amended complaint seeks money damages, as contrasted with declaratory or injunctive relief, Defendants seek summary judgment on such monetary claims based on their qualified immunity. The Sheriff also asserts that summary judgment should be entered in his favor because Plaintiff's claims against him are improperly based on Respondeat Superior liability.
1. Challenge to Ordering Form Ban
Considering first the VBSO ban on incoming publications containing "ordering forms, " Defendants' policy states: "Newspaper clippings, lyrics, poems, calendars, ordering forms with prices, catalogs, brochures, any information printed from the internet, checks or cash will not be accepted." ECF No. 48-4, ¶ 6 (emphasis added); ECF No. 48-13 (banning "Mail containing" the above listed items). Defendants assert in their summary judgment filings that because inmates at VBCC have no access to money, the order form ban is designed to protect the public from fraud, further stating that there have in the past been investigations into VBCC inmates fraudulently using credit cards to purchase goods from outside vendors, as well as problems with inmates using stamps as currency to purchase items from outside vendors. ECF No. 48-3, ¶¶ 12, 16-17. PLN responds by arguing that the Sherriff failed to articulate "fraud" as a justification for such policy during his deposition, and separately arguing that the disputed policy is not a rational means ...