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Hoglan v. Robinson

United States District Court, W.D. Virginia, Roanoke Division

March 21, 2017

A. DAVID ROBINSON, et al., Defendants.


          Jackson L. Kiser Senior United States District Judge

          Plaintiff Douglas A. Hoglan, a Virginia inmate proceeding pro se, filed an amended complaint pursuant to 42 U.S.C. § 1983. Plaintiff names four staff of the Virginia Department of Corrections ("VDOC") as defendants: A. David Robinson, the VDOC's Chief of Corrections Operations; C. Eacho, the former Chair of the VDOC Publications Review Committee ("PRC"); and former PRC members D. Ratliffe-Walker and Birckhead.[1] Presently before me are Plaintiffs and Defendants' various motions, including motions for summary judgment based on qualified immunity.[2] After reviewing the record, I grant Defendants' and deny Plaintiffs motions for summary judgment to award qualified immunity to Defendants in their individual capacities, and I dismiss without prejudice the parties' motions as to Defendants in their official capacities.


         Plaintiff pursues four claims in the amended complaint against Robinson, Eacho, Ratliffe-Walker, and Birckhead. First, VDOC Operating Procedure ("OP") 802.1 is overbroad and vague for deeming "modified or altered" publications and other items as contraband. Second, OPs 802.1 and 803.2 are unconstitutional, both facially and as applied, because they prohibit sexually explicit communications. Third, OP 803.2 unlawfully allowed the PRC to prohibit Plaintiffs possession of Successful Glamour Photography. Fourth, OP 803.2 violates due process because thse actual notice of disapproved photographs and publications is too vague to constitute adequate notice. Plaintiff generally alleges that, in relation to the four claims, Defendants:

a.) [P]articipated directly in the alleged violation, and/or b.) after being informed of the violations through letter, report, complaint, grievance, counsel, or other means failed to remedy the injury, and/or c.) created a policy, procedure, practice, or custom under which unconstitutional acts occurred, or allowed the persistence of said instruments, and/or d.) was grossly negligent in supervising subordinates who participated in committing the wrongful acts, and/or e.) exhibited deliberate indifference or tacit authorization in the violations of rights of the plaintiff and those not before the Court.

(Am. Compl. ¶ 9.) Plaintiff seeks injunctive relief and damages against Defendants in their official and individual capacities for all four claims.


         The first claim is that VDOC Operating Procedure ("OP") 802.1, "Offender Property, " is overbroad and vague for deeming as contraband any publication or other item that is "modified or altered." Notably, none of the parties filed a copy of OP 802.1, and consequently, I rely on the amended complaint's description of it.

         OP 802.1 defines contraband to include "[s]tate or personal property, regardless of how acquired, that is inoperable or has been modified or altered without written authorization." For example, a full page removed from a publication or a publication with a missing or a cut page is deemed "modified or altered" and must be discarded as contraband unless the inmate had received written authorization.[3]

         Plaintiff generally complains that, during his overall time in the VDOC, staff has confiscated from him loose pages, publications missing parts of pages or full pages, headphone cords repaired with tape, and torn sneakers that were deemed contraband for being "modified or altered." Plaintiff believes the phrase "modified or altered" is too vague, and he is upset that OP 802.1 does not "address the scope of contraband with regards to modified or altered property by linking them to specific penological goals" like other states' correctional agencies.


         The second, third, and fourth claims involve OP 803.2, "Incoming Publications." Plaintiff argues that OP 803.2 violates due process because the actual notice of disapproved photographs and publications is too vague to constitute adequate notice and that OP 803.2 violates the First Amendment because, as of February 18, 2015, it prohibits inmates' receipt of items containing "nudity."

         The OP recites:

In order to maintain security, discipline, and good order in DOC facilities and to assist with rehabilitation and treatment objectives, reduce sexual harassment, and prevent a hostile environment for offenders, staff and volunteers, offenders are not permitted to send, receive or possess material that emphasizes explicit or graphic depictions or descriptions of sexual acts or contains nudity as defined in this operating procedure.

         The OP defines "nudity" as "[t]he showing (human or cartoon) of the male or female genitals, pubic area, female breast with less than a fully opaque covering of the areola, or male or female buttocks with less than a full opaque covering of the anus." The OP exempts "nudity illustrative of medical, educational, or anthropological content[.]"

         Staff should not allow an inmate to receive a publication if it can be "reasonably documented" to contain "nudity" or if it violates other criteria. The other criteria include: "emphasizes explicit or graphical depictions or descriptions of sexual acts"[4]; solicits or promotes activity in violation of federal or state law[5]; contains instructions or information that implicates prison security[6]; emphasizes the depiction or promotion of violence, disorder, or criminal activity in violation of federal or state laws or the prison's disciplinary regulations[7]; has content that "could be detrimental" to an inmate's rehabilitation; has gang-related content; is written in code or a language other than English or Spanish unless obtained from an approved vendor; or is larger than eleven inches by fourteen inches.

         Materials received at a prison are checked against the PRC's Disapproved Publications List, which is available to inmates and staff. If the material is already on the list, staff sends a Notification of PRC Disapproval Form to the inmate instead of sending the already-disapproved title. The Disapproval Form informs the inmate of the title, the author or issue number, the date of receipt, and a check mark next to the applicable disapproval criteria from OP 803.2. The Disapproval Form for photographs informs the inmate of the sender and a general reason of the violation, such as "nudity." The inmate may appeal a disapproved publication through the Offender Grievance Procedure within seven days of the written notification of the decision.

         If the material is not already on the Disapproved Publications List, staff should forward "questionable material" to the three-member PRC.[8] PRC members review materials for compliance with OPs, and their majority vote determines whether something is approved or disapproved.[9] The PRC adds a disapproved publication's title to the Disapproved Publications List if any portion of it contains disapproved content.

         Plaintiff complains that the Disapproval Form does not specifically identify the objectionable content, its location, or how the item is prohibited by OP 803.2. Plaintiff believes that OP 803.2 should require staff to show the objectionable material to the inmate for the inmate's inspection if it would not be an "irrevocable threat" to penological goals. Plaintiff explains ...

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