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Fauconier v. Clarke

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

June 28, 2017

HAROLD CLARKE, et al., Defendants.


          Hon. Glen E. Conrad Chief United States District Judge.

         Douglas 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' motion.


         VDOC OP 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. § IV(H).

         The 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).

         On 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.

         Defendants 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.

         Fauconier 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.

         Fauconier 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.[1] 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.

         Standard of Review

         Summary 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).


         I. First Amendment Claims

         Generally, 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 prison concerns."

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)).

         A. Whether There Is a Valid, Rational Connection

         The 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 related ...

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