Davis v. Penzone

          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 ...