United States District Court, D. Arizona
ORDER
HONORABLE SUSAN VI. BRNOVICH UNITED STATES DISTRICT JUDGE.
Plaintiff
John Leo Davis, who is currently confined in Maricopa County
Jail, brought this civil rights case pursuant to 42 U.S.C.
§ 1983. (Doc. 20.) Pending before the Court are the
Report and Recommendations (R&R) of Magistrate Judge
Bridget S. Bade addressing Plaintiff's First Amended
Complaint (FAC) (Doc. 21)[1] and recommending that Defendant Elias
be dismissed for failure to serve (Doc. 36). Also before the
Court are Defendant Anderson-Mata's Motion for Summary
Judgment (Doc. 53)[2] and Plaintiff's Motions to Strike
(Docs. 69, 71). Plaintiff opposes the Motion for Summary
Judgment. (Doc. 63.)[3]
The
Court will accept and modify the R&Rs as discussed
herein, and Defendants Elias, A6941, Miceli, Murphy,
Hollingshead, Tijerina, Fisk, and Karas must answer
Plaintiff's First Amendment and due process claims
alleged in the FAC. The Court will grant Defendant
Anderson-Mata's Motion for Summary Judgment and dismiss
her from the action and deny Plaintiff's Motions to
Strike.
I.
Pending R&Rs
A.
Legal Standard
This
Court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1). It is “clear
that the district judge must review the magistrate
judge's findings and recommendations de novo if
objection is made, but not otherwise.” United
States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.
2003) (en banc); accord Schmidt v. Johnstone, 263
F.Supp.2d 1219, 1226 (D. Ariz. 2003) (“Following
Reyna- Tapia, this Court concludes that de
novo review of factual and legal issues is required if
objections are made, ‘but not otherwise.'”);
Klamath Siskiyou Wildlands Ctr. v. U.S. Bureau of Land
Mgmt., 589 F.3d 1027, 1032 (9th Cir. 2009) (the district
court “must review de novo the portions of the
[magistrate judge's] recommendations to which the parties
object.”). District courts are not required to conduct
“any review at all . . . of any issue that is
not the subject of an objection.” Thomas v.
Arn, 474 U.S. 140, 149 (1985) (emphasis added); see
also 28 U.S.C. § 636(b)(1) (“A judge of the
court shall make a de novo determination of those portions of
the [R & R] to which objection is made.”).
B.
January 11, 2018 R&R
On
January 11, 2018, Magistrate Judge Bade issued an R&R
screening Plaintiff's FAC and recommending that the Court
find that Plaintiff stated First Amendment claims against
Defendants Elias, A6941, Miceli, Murphy, Anderson-Mata,
Hollingshead, Tijerina, Fisk, and Karas in Counts One, Three,
Five, and Seven. (Doc. 21 at 5.) Magistrate Judge Bade also
recommended that the Court find that Plaintiff stated due
process claims against these same Defendants in Counts Two,
Four, Six, and Eight. (Id.) The time to file
objections to this R&R has expired, and neither party
filed objections. The Court is therefore not obligated to
review the R&R. See Reyna-Tapia, 328 F.3d at
1121; Fed.R.Civ.P. 72(b)(3) (“[t]he district judge must
determine de novo any part of the magistrate judge's
disposition that has been properly objected to”). Even
so, the Court has reviewed Judge Bade's R&R and
incorporates and adopts it. However, because Defendant
Anderson-Mata's Motion for Summary Judgment is being
granted, the Court will modify the portion of the R&R
recommending that Defendant Anderson-Mata answer the FAC and
instead dismiss Defendant Anderson-Mata from the action. The
Court will therefore order Defendants Elias, A6941, Miceli,
Murphy, Hollingshead, Tijerina, Fisk, and Karas to answer
Plaintiff's First Amendment and due process claims as
recommended in the R&R.
C.
March 12, 2018 Report and Recommendation
On
March 12, 2018, Magistrate Judge Bade issued an R&R
recommending that Defendant Elias be dismissed without
prejudice for failure to serve. (Doc. 36.) On March 30, 2018,
Plaintiff filed an objection to the R&R. (Doc.
39.)[4]
In light of Plaintiff's FAC, which the Court has now
screened and determined states claims against Defendant
Elias, the Court will modify the R&R to extend the
deadline for serving Defendant Elias.
II.
Motion for Summary Judgment
In
Counts Three through Eight of the FAC, Plaintiff brings First
Amendment and due process claims against Defendant Maricopa
County Detention Officer Anderson-Mata and alleges that on
November 8 and December 20, 2016, Defendant rejected
Plaintiff's December 2016 and January 2017 issues of
Cosmopolitan magazine, and on February 14, 2017, Defendant
rejected his March 2017 issue of Marie Claire. (Doc. 20 at
11-24.) Plaintiff alleges that Defendant returned the
magazines to the publisher before he could appeal the
rejections. (Id.) Defendant moves for summary
judgment on the grounds that the rejection of the magazines
did not violate Plaintiff's constitutional rights and
that she is entitled to qualified immunity. (Doc. 53.)
A.
Summary Judgment Standard
A court
must grant summary judgment “if the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The movant bears
the initial responsibility of presenting the basis for its
motion and identifying those portions of the record, together
with affidavits, if any, that it believes demonstrate the
absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323.
If the
movant fails to carry its initial burden of production, the
nonmovant need not produce anything. Nissan Fire &
Marine Ins. Co., Ltd. v. Fritz Co.,
Inc., 210 F.3d 1099, 1102-03 (9th Cir. 2000). But if
the movant meets its initial responsibility, the burden
shifts to the nonmovant to demonstrate the existence of a
factual dispute and that the fact in contention is material,
i.e., a fact that might affect the outcome of the suit under
the governing law, and that the dispute is genuine, i.e., the
evidence is such that a reasonable jury could return a
verdict for the nonmovant. Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 250 (1986);
see Triton Energy Corp. v. Square D. Co., 68 F.3d
1216, 1221 (9th Cir. 1995). The nonmovant need not establish
a material issue of fact conclusively in its favor, First
Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S.
253, 288-89 (1968); however, it must “come forward with
specific facts showing that there is a genuine issue for
trial.” Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)
(internal citation omitted); see Fed. R. Civ. P.
56(c)(1).
At
summary judgment, the judge's function is not to weigh
the evidence and determine the truth but to determine whether
there is a genuine issue for trial. Anderson, 477
U.S. at 249. In its analysis, the court must believe the
nonmovant's evidence and draw all inferences in the
nonmovant's favor. Id. at 255. The court need
consider only the cited materials, but it may consider any
other materials in the record. Fed.R.Civ.P. 56(c)(3). . . .
B.
Relevant Facts
Maricopa
County Sheriff's Office (MCSO) policy DK-1 governs inmate
mail and allows MCSO inmates to subscribe to publications as
long as the publications do not “interfere with
legitimate penological objectives (e.g. deterrence of crime,
good order of the facility, threaten jail safety, to ensure
an environment free of sexual harassment, etc.)[.]”
(Doc. 54-1 at 18 (Policy DK-1 ¶ 1(E)).) Restricted
subject matter includes “[d]rawings or photographs
depicting nudity or sexual conduct.” (Id.
¶ 1(E)(5).) The policy defines “nudity” as:
The showing of the human male or female genitals, pubic area
or buttocks with less than a full opaque covering, or the
showing of the female breast with less than a fully opaque
covering of any portion thereof below the top of the nipple,
or the depiction of covered male genitals in a discernibly
turgid state, as specified in ARS § 13-3501(4).
(Id. at “Definitions”.) The policy
defines “sexual conduct” as “[a]cts of
masturbation, homosexuality, sexual intercourse, or physical
contact with a person's clothed or unclothed genitals,
pubic area, buttocks or, if such person is a female, breast,
as specified in ARS § 13-3501(7).” (Id.)
Incoming publications are reviewed on a case-by-case basis,
and if a publication is determined to violate policy, the
mailroom staff must send a Mail Rejection Notification form
to the inmate recipient. (Id. ¶ 1(F).) The
inmate may appeal the rejection through the jail's
grievance procedure. (Id.) Section 17 of the MCSO
Rules and Regulations for Inmates prohibits inmates from
receiving incoming mail that contains nudity or sexual
conduct. (Doc. 54-1 at 23.) Plaintiff received a copy of the
Rules and Regulations on March 27, 2015. (Id. at
26.)
On
November 8, 2016, Defendant issued a Mail Rejection
Notification to Plaintiff regarding the December issue of
Cosmopolitan magazine. (Doc. 64 at 26.) The magazine was
rejected for containing nudity and sexual conduct as defined
in policy DK-1, and the notice gave the reason for the
rejection as “[n]udity, sexual acts or touching of
clothed or unclothed genitals is not authorized.”
(Id.)[5] Defendant provided the Court with copies
of the pages that violated policy DK-1. (Doc. 59 at 8-11.)
The Court has reviewed the pages, and they contain several
drawings of naked individuals having sexual intercourse and a
photo of a woman with her naked buttocks exposed.
(Id.)
On
December 20, 2016, Defendant issued a Mail Rejection
Notification to Plaintiff regarding the January issue of
Cosmopolitan. (Doc. 64-1 at 7.) The magazine was rejected for
containing nudity and sexual conduct as defined in policy
DK-1, and the rejection notice provided the same explanation
as the November 8, 2016 rejection notice. (Id.) The
Court has reviewed the prohibited pages, and they depict
several drawings of naked individuals having sexual
intercourse and a photo of a partially-dressed couple engaged
in sexual intercourse. (Doc. 59 at 14-24; Doc. 59-1 at 1-2.)
On
February 14, 2017, Defendant issued a Mail Rejection
Notification to Plaintiff regarding the March issue of Marie
Claire magazine. (Doc. 64-1 at 20.) The stated reason was
identical to the November 8 and December 20, 2016 rejection
notices. (Id.) Defendant added a comment stating
“March issue MarieClair [sic] page 32 nipple's
[sic] showing not allowed in.” (Id.) The Court
reviewed the prohibited page, and it shows a model ...