United States District Court, W.D. Virginia, Roanoke Division
DOUGLAS A. HOGLAN, Plaintiff,
A. DAVID ROBINSON, et al., Defendants.
JACKSON L. KISER, Senior District Judge.
Plaintiff Douglas A. Hoglan, a Virginia inmate proceeding pro se, filed a verified Complaint and amendments pursuant to 42 U.S.C. § 1983, naming various staff of the Virginia Department of Corrections ("VDOC") as defendants. Defendants had filed a motion for summary judgment, which I denied as to claim 7, denied without prejudice as to Plaintiff's exhausted claims of retaliation due to the pendency of claim 7, directed Defendants to file a motion for summary judgment about claim 7, and granted the motion for summary judgment as to all other claims. After reviewing Defendants' second motion for summary judgment and Plaintiff's response, I award summary judgment to Plaintiff on claim 7 against defendant Warden Young and determine that a jury is necessary to resolve factual disputes about defendant Regional Administrator Hinkle's deliberate indifference as to claim 7, the exhausted claims of retaliation related to claim 7 against defendants Officer Sutphin, Institutional Investigator Cartwright, Unit Manager Hall, and Senior Psychologist Boyd, and the amount, if any, of damages.
Claim 7 concerns a brief ban on only Pocahontas State Correctional Center ("PSCC") inmates' receipt of commercial photographs. On March 27, 2012, Warden Young issued a memorandum, informing PSCC inmates they would no longer be allowed to order commercially distributed photographs from any vendor. Citing Warden Young's memo, PSCC staff refused to order or deliver Plaintiff's requests for commercial photos, regardless to whether the photos contained "adult" content.
About six months later on October 12, 2012, Warden Young lifted the ban by a second memorandum, informing PSCC inmates that they would be allowed to order commercially distributed photographs from the online vendor Surrogate Sisters after verifying the company's licensure and that ordered items still needed to comply with VDOC Operating Procedure ("OP") 803.2, "Incoming Publications." On September 29, 2014, defendant A. David Robinson, the VDOC's Chief of Corrections Operations, issued a memorandum to remind wardens that all commercially distributed photographs are to be reviewed by facility staff and disapproved on a case-by-case basis to determine if they violate any of the criteria set forth in OP 803.2.
A party is entitled to summary judgment if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact. Fed.R.Civ.P. 56(a). Material facts are those necessary to establish the elements of a party's cause of action. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine issue of material fact exists if, in viewing the record and all reasonable inferences drawn therefrom in a light most favorable to the non-moving party, a reasonable fact-finder could return a verdict for the non-movant. Id. The moving party has the burden of showing - "that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case." Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the movant satisfies this burden, then the non-movant must set forth specific, admissible facts that demonstrate the existence of a genuine issue of fact for trial. Id. at 322-23. A party is entitled to summary judgment if the record as a whole could not lead a rational trier of fact to find in favor of the non-movant. Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991).
Defendants argue that I should find claim 7 moot because the ban imposed on March 2, 2012, at PSCC was lifted about six months later; the VDOC Chief of Corrections Operations has since reiterated that wardens should follow VDOC OPs related to commercial photographs; and, upon counsel's information and belief, the VDOC has no future plan to ban commercial photographs coming into its facilities, stating that "although VDOC has the ability to change its own policy, it is not probable that they will do so." I find that claim 7 is not moot due to Plaintiff's claim for damages. Covenant Media of S.C., LLC v. City of N. Charleston, 493 F.3d 421, 429 n.4 (4th Cir. 2007). Furthermore, I may not rely on counsel's belief that it is improbable that the VDOC will revive the ban. Wall v. Wade, 741 F.3d 492, 497-98 (4th Cir. 2014).
In claim 7, Plaintiff alleges that defendants Young, Walz, Hinkle, Garman, A. Robinson, and Clarke violated Plaintiff's First Amendment right to receive publications in prison by banning all commercial photographs, including those without "adult" content. For the following reasons, Plaintiff's claims against Warden Young and Regional Administrator Hinkle will proceed to trial.
Inmates retain protections afforded by the First Amendment, including the right to communicate beyond prison walls. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 407 (1989); Procunier v. Martinez, 416 U.S. 396, 408-09 (1974). However, prisoner's rights are subject to prisons' institutional needs of security, discipline, and general administration. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348-49 (1987). Consequently, it has been held that "a prison regulation that abridges inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests.'" Lovelace v. Lee, 472 F.3d 174, 199 (4th Cir. 2006) (citing Turner v. Safley, 482 U.S. 78, 84 (1987)).
Defendants argue that qualified immunity should shield them from damages in their individual capacities. Qualified immunity protects government officials from "bad guesses in gray areas" and ensures that they may be held personally liable only for "transgressing bright lines." Maciariello v. Sumner, 973 F.2d 295, 298 (4th Cir. 1992). Qualified immunity involves a two step inquiry: (1) whether a constitutional or statutory right would have been violated on the alleged facts, and (2) whether the right was clearly established. Saucier v. Katz, 533 U.S. 194, 201-02 (2001). "Clearly established includes not only already specifically adjudicated rights, but those manifestly ...