United States District Court, W.D. Virginia, Roanoke Division
Glen E. Conrad Chief United States District Judge.
Fauconier, a prisoner proceeding pro se, commenced this civil
action pursuant to 42 U.S.C. § 1983 against four
defendants in their individual and official capacities:
Harold Clarke, Director of the Virginia Department of
Corrections ("VDOC"); David Robinson, Chief of
Corrections Operations at Augusta Correctional Center
("ACC"); John A. Woodson, Warden at ACC; and T.
McDougald, member of the Publication Review Committee
("PRC"). Fauconier asserts that defendants are
violating his First, Fifth, and Fourteenth Amendment rights
guaranteed by the United States Constitution because VDOC
Operating Procedure No. 803.2 ("OP 803.2")
prohibits him from purchasing or possessing magazines with
nude photographs. He seeks injunctive relief and monetary
damages. The matter is currently before the court on
defendants' motion for summary judgment. For the reasons
stated below, the court will grant the defendants'
803.2 relates to publications received by prison inmates. The
regulation was updated in 2015, and the revised version
prohibits inmates "from receiving publications that
contain nudity, promote violence, disorder, or the violation
of state or federal law; or any material containing sexually
explicit acts, including child pornography or sexual acts in
violation of state or federal law." VDOC OP 803.2,
Docket No. 33-1. "[O]ffenders 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."
Id. § IV(B). "Nudity" is defined 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."
Id. § III. However, publications that contain
nudity "illustrative of medical, educational, or
anthropological content may be acceptable." Id.
VDOC implements the regulation in the following manner. When
an inmate requests a publication, the Facility Unit Head
determines whether the requested publication has already been
reviewed and disapproved by the PRC. See id §
IV(D). If the publication has already been reviewed and
disapproved, the Facility Unit Head informs the offender of
such disapproval. Id., The offender may then appeal the
PRC's determination. See id § IV(F). If the
publication has not been reviewed by the PRC, the Facility
Unit Head makes a case-by-case determination as to whether to
approve or disapprove the publication in accordance with
standards set forth in OP 803.2. See id §
IV(D). If the Facility Unit Head disapproves the publication,
he or she submits the publication to the PRC for review. See
id If the PRC disapproves the publication, the
offender may appeal this determination. If the PRC approves
the publication, the publication is sent to the offender.
Id. § IV(E).
March 6, 2015, defendant Robinson issued a memorandum to all
VDOC facilities, detailing the new standards and procedures.
See Mem. to Facility Unit Heads, Docket No. 33-1. The new
prohibition was implemented in phases so that, prior to July
1, 2015, offenders were still permitted to receive orders
already placed and cancel existing subscriptions.
Id. From July 1 to October 1, 2015, offenders were
afforded the opportunity to dispose of any publications that
violated VDOC 803.2. After October 1, 2015, publications
containing nudity would be considered contraband and would be
subject to confiscation. Id.
have presented evidence demonstrating that the decision to
eliminate all publications and commercial photographs that
contain nudity arose out of the detrimental effect such
materials have on VDOC's public safety mission.
See Aff. of Robinson ¶ 6, Docket No. 33-1.
Defendants also contend that an inmate's possession and
exchange of nude photographs can lead to stealing, fights,
assaults, gambling, and other disruptive activities that
threaten institutional security. Id. Prior to
implementing the revised OP 803.2, the VDOC deliberated for
about seven years on how best to address publications
containing nudity. Id. ¶ 7.
alleges that OP 803.2 prevented him from enjoying his
subscription to Playboy magazine. Compl. ¶ 37.
He claims that, pursuant to OP 803.2, defendants have
intercepted and confiscated six issues of the magazine.
Id. ¶ 38. Plaintiff also complains that from
October 2015 through April 2016 defendant Woodson and members
of the PRC prevented Fauconier from receiving the October
2015 issue of Esquire magazine. Id. ¶
39. The Esquire issue contains a cartoon depicting
nudity. Fauconier appealed the decisions relating to both the
Playboy magazines and the Esquire magazine.
See Id. ¶ 18-31. On April 4, 2016, he received
a copy of the October 2015 issue of Esquire as a
result of his appeal. Id. ¶¶ 31, 53.
makes three arguments in support of his contention that OP
803.2 violates his First and Fourteenth Amendment rights.
First, he asserts that the policy is facially invalid in
violation of the First Amendment because of its overbroad
application. Second, he argues that the policy is
unconstitutional as applied to the instant case, also in
violation of the First Amendment. Third, he contends that the
vague language of the policy leads to arbitrary enforcement
in violation of the Due Process Clause of the Fourteenth
Amendment. The defendants have moved for summary
judgment, and there is no dispute that Fauconier exhausted
his administrative remedies. See Defs.' Br. in Supp. 6,
Docket No. 33 ("Fauconier has exhausted his
administrative remedies via the inmate grievance
procedures."). The issues have been fully briefed and
are ripe for review.
judgment is properly granted if "there is no genuine
dispute as to any material fact and the ... moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). For a party's evidence to raise a genuine issue of
material fact to avoid summary judgment, it must be
"such that a reasonable jury could return a verdict for
the non-moving party." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). In determining whether
to grant a motion for summary judgment, the court must view
the record in the light most favorable to the non-moving
party. Terry's Floor Fashions, Inc. v. Burlington
Indust, Inc., 763 F.2d 604, 610 (4th Cir. 1985).
First Amendment Claims
an inmate retains his rights afforded to him by the First
Amendment of the Constitution. See Pell v.
Procunier, 417 U.S. 817, 822 (1974). In the prison
context, however, an inmate's First Amendment rights must
be balanced with other valid penological concerns, such as a
prison's institutional needs of security, discipline, and
general administration. See O'Lone v. Estate of
Shabazz, 482 U.S. 342, 349 (1987); Montcalm
Publ'g Corp. v. Beck, 80 F.3d 105, 107 (4th Cir.
1996). "[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)).
Whether a prison regulation restricting speech or expression
is reasonably related depends on four factors:
(1) [W]hether 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
Id. at 200 (quoting Turner, 482 U.S. at
89-92). The prisoner has the burden of disproving the
validity of a prison regulation. Overton v.
Bazzetta, 539 U.S. 126, 132 (2003). Therefore, to defeat
summary judgment, Fauconier must demonstrate that the
regulation is not reasonably related to a legitimate
penological interest or that there is a genuine issue of
material fact regarding its applicability to the materials at
issue. See Bahrampour v. Lambert, 356 F.3d 969, 973
(9th Cir. 2004) (citing Far Out Prods., Inc. v.
Oskar, 247 F.3d 986, 992 (9th Cir. 2001)). In analyzing
whether a regulation is reasonably related to a legitimate
penological interest, courts are instructed to give deference
to state prison officials regarding day-to-day prison
operations. See Turner. 482 U.S. at 84-85 (citing
Procunier v. Martinez, 416 U.S. 396, 404-05 (1974)).
Whether There Is a Valid, Rational Connection
first Turner factor the court addresses is whether
there is a "valid, rational connection" between the
prison regulation and the legitimate governmental interest
put forward to justify it. In doing so, the court examines
the scope of the regulation, its purported content-neutral
objective, and the fit between the two. Aiello v.
Litscher,104 F.Supp.2d 1068, 1075 (W.D. Wis. 2000). In
other words, the court must determine whether the
"objective underlying the policy is (1) legitimate, (2)
neutral, and (3) whether the policy is 'rationally