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Hoglan v. Robinson

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

March 30, 2018

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. I had granted Defendants' and denied Plaintiff's motions for summary judgment as to award qualified immunity to Defendants in their individual capacities. Presently before me is Defendants' second motion for summary judgment as to their official capacities, to which Plaintiff responded. Thereafter, the parties conducted additional discovery pursuant to my Order entered on November 15, 2017. After reviewing the record, I grant Defendants' motion for summary judgment.



         Plaintiff pursues four claims in the amended complaint.[1] First, VDOC Operating Procedure (“OP”) 802.1 and OP 803.2 is facially overbroad and vague for deeming “modified or altered” items and publications as contraband, in violation the First and Fourteenth Amendment rights of Plaintiff and “those not before the court.”[2] (Am. Compl. ¶ 39.) Second, OP 803.2 is facially unconstitutional because it prohibits certain sexually explicit communications, in violation of the First Amendment rights of Plaintiff and “those not before the court.”[3] (Id. ¶ 41.) Third, the PRC's application of OP 803.2 to prohibit Plaintiff's possession of Successful Glamour Photography violated the First Amendment. (Id. ¶ 42.) Fourth, OP 803.2 is facially unconstitutional because the notice of disapproved photographs and publications is too vague to constitute adequate notice, in violation of the Fourteenth Amendment. (Id. ¶ 40.)


         Tangential to these claims is the fact, as Plaintiff recognizes in his filings for this case, that he is imprisoned for sexual crimes. In January 2009, Plaintiff was imprisoned after he pleaded guilty to two counts of adulterate drink to injure, two counts of adulterate food, three counts of aggravated sexual battery, one count of unlawful filming/photography, and two counts of possession of child pornography.[4] Commonwealth v. Hoglan, No. CR08000102, CR08000417, CR07000982, CR07001101 (Circuit Ct. Stafford Cnty.) (available via Virginia Circuit Court Case Information, /CJISWeb/circuit.jsp); see, e.g., Fed.R.Evid. R. 201(b)(2); In Re Katrina Canal Breaches Consol. Litig., 533 F.Supp.2d 615, 631-33 & nn.14-15 (E.D. La. 2008); Williams v. Long, 585 F.Supp.2d 679, 686-88 & n.4 (D. Md. 2008). Plaintiff explains, “In 2007, . . . [P]laintiff spiked a twenty-year old female's drink with a prescription sleep aide, and as she slept he moved aside her clothes and took photos of her private areas. . . . [Plaintiff] also installed a spy camera in the bathroom of the victim that he used to film her undressing. . . .”[5] (Am. Compl. ¶ 14.) Also, child pornography was found on his computer. (Id. ¶ 16.) Consequently, Plaintiff will have to register as a violent sex offender when released from imprisonment, which is likely to be within ten years.

         Also tangential to these claims is the fact that the VDOC has enacted “treatment plans” for Plaintiff during various periods of his incarceration.

In December 2011, . . . the Senior Psychologist at [a VDOC prison] created a Case Plan Agreement . . . that, inter alia, prohibited Plaintiff from viewing or possessing any publications, materials, or photos which may be detrimental to the treatment plan or that may promote deviant behaviors including sexually deviant behaviors. . . . Plaintiff's continued attempts to receive pornographic photos, flyers, pamphlets, and books allegedly prompted [prison] staff to retaliate by searching his cell, seizing images of children and women, and convicting Plaintiff of various institutional infractions for violating the terms of the treatment plan.

Hoglan v. Robinson, Civil Action No. 7:13-cv-00258, 2014 U.S. Dist. LEXIS 131975, at *2, 2014 WL 4680704, at *1 (W.D. Va. Sep. 19, 2014) (internal quotation marks omitted). This provision was removed from the treatment plan after he was transferred to Green Rock Correctional Center, but prison staff renewed the provision during this action in April 2016.[6](ECF No. 60 at 3.)



         A party is entitled to summary judgment if the pleadings, the disclosed materials on file, and any affidavits show that there is no genuine dispute as to any material fact. Fed.R.Civ.P. 56(a); see Williams v. Griffin, 952 F.2d 820, 823 (4th Cir. 1991) (recognizing 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). “Material facts” are those facts 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 dispute 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 facts that demonstrate the existence of a genuine dispute of fact for trial. Id. at 322-24. A court may not resolve disputed facts, weigh the evidence, or make determinations of credibility. Russell v. Microdyne Corp., 65 F.3d 1229, 1239 (4th Cir. 1995); Sosebee v. Murphy, 797 F.2d 179, 182 (4th Cir. 1986). Instead, a court accepts as true the evidence of the non-moving party and resolves all internal conflicts and inferences in the non-moving party's favor. Charbonnages de France v. Smith, 597 F.2d 406, 414 (4th Cir. 1979).


         In response to the motion for summary judgment, Plaintiff invokes Fed.R.Civ.P. 56(d), seeking to postpone a ruling on summary judgment until more discovery can be required. I deny his request to postpone the adjudication of Defendants' motion.

         Rule 56(d) requires a district court to defer ruling on a motion for summary judgment if the opposing party “shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition.” Fed.R.Civ.P. 56(d). This rule “mandates that summary judgment be [postponed] when the nonmovant ‘has not had the opportunity to discover information that is essential to his opposition.'” Pisano v. Strach, 743 F.3d 927, 931 (4th Cir. 2014) (quoting Ingle ex rel. Estate of Ingle v. Yelton, 439 F.3d 191, 195 (4th Cir. 2006)). A district court may deny a Rule 56(d) motion “when the information sought would not by itself create a genuine issue of material fact sufficient for the nonmovant to survive summary judgment.” Id.

         Plaintiff has had a reasonable opportunity to seek discovery in opposition. In August 2016, Plaintiff sent, and Defendants responded to, two separate sets of interrogatories and requests for production of documents. After qualified immunity was adjudicated in March 2017, the parties could conduct discovery. Indeed, the docket reflects that Plaintiff filed a third request for production of documents in May 2017, and Defendants responded in June 2017. Plaintiff filed another request for production of documents in August 2017, and Defendants responded in September 2017.

         In support of his Rule 56(d) request, Plaintiff believes that certain discovery is necessary. The requests include a motion to compel depositions; the return of his pictures depicting nude females, some of which were seized in April 2017 as “modified or altered” contraband; and the complete Disapproved Publications List. The requests also seek all communications between the VDOC and a corporate photo vendor that supposedly stopped doing business with VDOC inmates; all VDOC records involving all approvals or disapprovals of all incoming publication in all VDOC facilities since January 2011; names and duties for all members of the “VDOC Policy and Initiative Unit” since January 2011; all “VDOC ‘Work Description and Performance Plans' for the positions that typically are charged with reviewing publications and inmate property for compliance with VDOC's OP 803.2's ‘Specific Criteria '”; all “officially filed” reports about staff complaining about having to review incoming publications; and a “composite and comparative report of the number of sexual harassment complaints” VDOC staff filed since January 2013.

         After Plaintiff made the Rule 56(d) request, I granted in part and denied in part Plaintiff's motion to compel. I ordered Defendants to give Plaintiff the requested Disapproved Publications List and to give me the pictures for in camera review. I denied the motion to compel oral depositions as unduly burdensome in the context of prison administration because Plaintiff had the option to pursue written depositions under Rule 31. See, e.g., McKeithan v. Jones, 212 F. App'x 129, 131 n.3 (3d Cir. 2007) (denying the unorthodox request for an inmate to depose correctional officials without the means to execute the depositions). The obvious logistical, security, and legal concerns inherent in Plaintiff's proposal militated against oral depositions and supported using written depositions.

         In his motion for reconsideration of that denial in part, Plaintiff argues that, inter alia, he finds it too inconvenient to pursue written questions. Although given the opportunity to depose via Rule 31, Plaintiff ostensibly has not pursued that opportunity and has not sought additional time to do so. Also, Plaintiff's Rule 56(d) declaration does not identify any specific information not already provided that would create a genuine dispute of material fact. Instead, Plaintiff generally describes the potential benefits of a deposition. Thus, Plaintiff's desire for various “all VDOC” records amounts to a hope of finding something but does not point to information that by itself creates a genuine issue of material fact. In sum, Plaintiff has had a reasonable opportunity to seek discovery, albeit not in his preferred way brought about by his own incarceration, and his motion for reconsideration and Rule 56(d) request are denied.


         Plaintiff presents facial challenges to OP 802.1 and 803.2 and an as-applied challenge to OP 803.2. “A facial challenge considers the restriction's application to all conceivable parties, while an as-applied challenge tests the application of that restriction to the facts of a plaintiff's concrete case.” Colo. Right to Life Comm., Inc. v. Coffman, 498 F.3d 1137, 1146 (10th Cir. 2007). There are three ways in which a plaintiff may facially challenge a regulation under the First Amendment. A plaintiff can demonstrate that: no set of circumstances exists under which the regulation would be valid; the regulation lacks any plainly legitimate sweep; or the regulation is “overbroad” because a substantial number of its applications are unconstitutional, when judged in relation to the statute's plainly legitimate sweep. United States v. Stevens, 559 U.S. 460, 472-73 (2010).

         Plaintiff argues that 802.1 and 803.2 are facially overbroad. Whether a regulation is overbroad depends on its application “to real-world conduct, not fanciful hypotheticals.” Id. at 485 (Alito, J., dissenting). “[A]n overbreadth claimant bears the burden of demonstrating, from the text of [the regulation] and from actual fact, that substantial overbreadth exists.” Id. Similarly, “there must be a realistic danger that the [regulation] itself will significantly compromise recognized First Amendment protections of parties not before the Court for it to be facially challenged on overbreadth grounds.” Id. Courts should “not apply the strong medicine of overbreadth analysis where the parties fail to ...

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