Prison Legal News v. Ryan

          ORDER

          ROSLYN O. SILVER UNITED STATES DISTRICT JUDGE.

         Prison Legal News (“PLN”) publishes books and magazines about the criminal justice system and issues involving prisoners, including a monthly journal eponymously titled Prison Legal News. Prisoners in the custody of the Arizona Department of Corrections (“ADC”) subscribe to publications by PLN. Since 2014, some of these publications have been excluded and/or redacted pursuant to ADC's policy prohibiting sexually explicit material. PLN brought claims against Defendants-officers and employees of ADC-under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments.

         The parties cross-moved for summary judgment. (Docs. 233, 235.) For the following reasons, Defendants' Motion for Summary Judgment (Doc. 233) is granted in part and denied in part. PLN's Motion for Summary Judgment (Doc. 235) is granted in part and denied in part.^[1]

         BACKGROUND

         I. The Parties

         Plaintiff Prison Legal News (“PLN”) is a project of the Human Rights Defense Center.^[2] (Doc. 236 at 3.) For over 27 years, PLN has published and distributed books and magazines about the criminal justice system and issues impacting prisoners, including Prison Legal News-a monthly journal of corrections news and analysis-and the book The Celling of America: An Inside Look at the U.S. Prison Industry (“Celling”). (Doc. 236 at 3.) PLN's publications contain information on “prison operations and conditions, legal updates on prison litigation, prisoner health and safety, and prisoners' rights.” (Doc. 236 at 3.) PLN's stated purpose is to “disseminate legal information on issues affecting prisoners and their loved ones on the outside and to educate prisoners and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society.” (Doc. 236 at 3-4.) Prison Legal News has been distributed to prisoners in over 3, 000 correctional facilities in the nation, including prisons within the correctional systems of the Arizona Department of Corrections (“ADC”). (Doc. 236 at 3.) There are approximately 133 subscribers to Prison Legal News at ADC facilities.^[3] (Doc. 236 at 4.)

         Defendants are officers and employees of ADC, sued in their official and individual capacities.^[4] Defendant Charles L. Ryan (“Ryan”) was ADC's Director during the relevant time period. Ryan signed and executed each version of the department order challenged by PLN. (Doc. 236 at 20.) Defendant Jeff Hood (“Hood”) was ADC's Deputy Director during the relevant time period. (Doc. 236 at 21.) Defendant Gail Rittenhouse (“Rittenhouse”) was ADC's Division Director for Support Services from May 2012 until March 17, 2017. (Doc. 234-1 at 40.) She was the immediate supervisor of Defendant James Riggs (“Riggs”), Quality Assurance Coordinator of the Office of Publication Review (“OPR”) from July 2012 until May 2016. (Docs. 218-1 at 23; 234-1 at 15; 241 at 31.) Defendant Olson was an OPR employee from 2013 until his retirement in May 2016. During his time with OPR, Olson had “primary responsibility” over OPR duties-which included conducting reviews of incoming publications-while Riggs supervised and helped him. (Doc. 218-1 at 27.) Defendant Jamie Guzman (“Guzman”) assumed Olson's position after his retirement. (Doc. 218-1 at 28.)

         II. ADC's 2010 Publication Review Policy

         Before 2010, ADC allowed inmates to “receive virtually any type of sexually-related photographs, magazines and writings, including those depicting nudity, as long as it did not involved depictions of people in uniform or disrespect people in uniform.” (Doc. 234-1 at 6.) After complaints from staff about sexual harassment, ADC decided in 2010 to regulate sexually explicit material entering the prison through Department Order (“DO”) 914 (“2010 Policy”). (Docs. 234-1 at 6-7; 234-2 at 2.) DO 914.07-1.1 provided: “In order to assist with rehabilitation and treatment objectives, reduce sexual harassment and prevent a hostile environment for inmates, staff and volunteers, inmates are not permitted to send, receive or possess sexually explicit material. For the purpose of this Departmental Order, sexually explicit material is defined as publications that feature nudity and/or the publication is promoted based on such depictions and/or the intent of the publication is sexual arousal or gratification.” (Doc. 234-2 at 14.) DO 914.07 provided a non-exhaustive list of prohibited publications, including publications that depict sexual intercourse, sadomasochistic abuse, and masturbation. (Doc. 234-2 at 14.) Since the regulations were adopted in 2010, “staff has reported that they generally feel more comfortable, especially female staff, because they are not exposed to unwanted images and text of graphic, explicit sexual content.” (Doc. 234-2 at 7.)

         DO 914 also set forth the procedures for receipt, screening, and delivery of publications sent to ADC inmates. ADC operates ten prison complexes, with each complex made up of anywhere between three and nine housing units. Each housing unit consists of anywhere between 200 and 2000 inmates. (Doc. 234-1 at 17.) ADC mail is delivered from the post office and processed at each of the complexes. (Doc. 234-1 at 17.) Each complex receives “hundreds of magazines and publications a week.” (Doc. 234-1 at 17.) At the complex level, mail is opened for contraband inspection and publication review. (Doc. 234-1 at 8.) Complex-level staff reviews the publication and checks a statewide database to see if the publication has already been excluded by another complex. (Doc. 234-1 at 8.) If complex-level staff is unclear or unsure about whether a publication should be excluded, they often consult OPR. (Doc. 234-1 at 8.)

         Under the 2010 Policy, if staff decided to exclude a sexually explicit publication sent to an inmate, ADC was required to notify the inmate. (Doc. 234-2 at 15.) The inmate could then request an appeal-or “second-level review”-to be conducted by OPR. (Doc. 234-2 at 15.) OPR's decision on appeal was final. (Doc. 234-2 at 15.) Some types of material-such as those that contained nudity and sexual behaviors/acts for artistic, medical, educational, or anthropological purposes-were sent to OPR to be “approved on an individualized basis.” (Doc. 234-2 at 14.) In other words, OPR made the first-level decision to allow or exclude these publications. If an inmate wished to request second-level review, he was required to appeal OPR's decision to the Division Director or Director's designee. (Doc. 234-2 at 15.)

         Notably, the 2010 Policy did not provide a process to give publishers notice and an opportunity to appeal exclusion decisions. (Doc. 234-1 at 19.)

         III. 2014 Exclusion and Redaction of Prison Legal News and Celling

         Under the 2010 Policy, four issues of Prison Legal News and the PLN-distributed book Celling were initially excluded. Prior to 2014, ADC routinely allowed the delivery of PLN publications, including over 90 different monthly issues of Prison Legal News. (Doc. 236 at 4.) In 2014, ADC excluded delivery of the following four issues of Prison Legal News: March 2014, April 2014, July 2014, and October 2014. These issues were excluded pursuant to ADC's prohibition of sexually explicit material.

         The March 2014 issue was excluded because of an article titled “Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive; State Bears Burden of Rebutting Presumption”; the April 2014 issue was excluded because of articles titled “Kitchen Supervisor Gets Prison Time for Sexually Abusing Two Prisoners” and “Sexual Abuse by Oregon Jail Guard Nets Probation; Defense Attorney Blames Victim”; the July 2014 issue was excluded because of an article titled “New York Jail Guard Sentenced for Sexually Abusing Seven Prisoners”; the October 2014 issue was excluded because of an article titled “Tenth Circuit Holds ‘Consensual' Sex Defeats Prisoners' Eighth Amendment Claim.” (Doc. 236 at 4- 6.) OPR employee Defendant Olson participated in the review and exclusion of these four issues. (Doc. 250 at 13.)

         When ADC initially excluded the 2014 issues, it did not provide PLN with notice or an opportunity to appeal the exclusion decisions. (Doc. 236 at 6.) PLN eventually learned of ADC's exclusion decisions from its inmate-subscribers and contacted ADC through counsel. OPR subsequently reversed its exclusion decisions with regard to the March 2014, April 2014, and July 2014 issues. (Doc. 234 at 8.) These issues were delivered to ADC subscribers in February and March 2015. (Doc. 236 at 4-5.) In September 2015, OPR redacted two paragraphs from the October 2014 issue and delivered the redacted issues to subscribers. (Doc. 236 at 6.) The parties dispute whether all ADC subscribers ultimately received their issues, as some subscribers may have been released in the interim and ADC may not have retained all issues. (Doc. 242 at 20.)

         From at least February 22, 2011, ADC has also excluded from delivery the PLN-distributed book Celling, pursuant to the DO 914.08-1.1.1 prohibition against “[d]epictions or descriptions that incite, aid, or abet riots, work stoppages, or means of resistance.” (Doc. 234-2 at 15.) In May 2015, ADC excluded Celling again because it had previously been excluded. (Doc. 236 at 6.) ADC did not provide PLN with any notice of its 2011 or 2015 decisions to exclude Celling or the opportunity to appeal the exclusion decisions. (Doc. 236 at 7.) PLN was not aware of ADC's exclusion of Celling until discovery in the present litigation. (Doc. 236 at 19.)

         IV. March 2016 Policy Revision and Subsequent Exclusions

         After the present lawsuit began in 2015, PLN amended its publication review policy in March 2016 (“2016 Policy”). The 2016 Policy required that publishers be given notice and an opportunity to appeal if their publications are excluded. (Doc. 234 at 4.)

         ADC continued to exclude issues of Prison Legal News under the 2016 Policy. The March 2016 and April 2016 issues were initially excluded at the complex level and inmates appealed the decisions. (Doc. 236 at 7-8.) In May 2016, OPR reversed the initial exclusion decisions and allowed the two issues. (Doc. 236 at 7.) However, the two issues were delivered only to the inmates who had appealed the initial decisions, not to all inmate subscribers. (Doc. 236 at 17-18.) Although the 2016 Policy required that ADC give publishers notice and an opportunity to appeal, ADC did not give PLN notice and an opportunity to appeal when ADC initially decided to exclude the March 2016 and April 2016 issues. (Doc. 236 at 7.)

         V. April 2017 Policy Revision and Subsequent Exclusions

         In April 2017, PLN once again amended DO 914 (“2017 Policy”). The 2017 Policy is currently effective and includes substantive amendments to the prohibition of sexually explicit material.^[5] (Doc. 236 at 12.) The Court examines the specific provisions in detail in the analysis section below.

         In May 2017, OPR trained ADC mailroom staff on the 2017 Policy. This training included review of the newly amended provisions, as well as a sample of sexual content in the form of images and text. (Doc. 236 at 14.) As an example, OPR told staff that Dante's Inferno falls under a DO 914 exception for “well-known and widely recognized religious or literary work.” (Doc. 236 at 12-13.) ADC followed up the training with an email informing mailroom staff of the following “bright-line, [u]nauthorized content”: depictions or descriptions of statutory nudity; masturbation; self-touching photographs; sex toys; sexual contact with an unwilling participant and/or child; spread eagle photographs; sexual representations of inmates, correctional personnel, law enforcement, military, medical/mental health staff, programming staff, teachers or clergy; statutory sadomasochistic abuse. (Doc. 236 at 15.)

         Under the 2017 Policy, the April 2017, May 2017, and June 2017 issues were initially excluded due to sexually explicit content. OPR reviewed the content and allowed each issue to be delivered with redactions. (Doc. 236 at 8-9.)

         LEGAL STANDARD

         Summary judgment is proper where “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). Material facts are those that “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute of material fact is only genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. In reviewing a motion for summary judgment, all evidence must be construed in the light most favorable to the non-moving party.

         “[W]hen simultaneous cross-motions for summary judgment on the same claim are before the court, the court must consider the appropriate evidentiary material identified and submitted in support of both motions, and in opposition to both motions, before ruling on each of them.” Tulalip Tribes of Wash. v. Wash., 783 F.3d 1151 (9th Cir. 2015) (quoting Fair Hous. Council of Riverside Cty. v. Riverside Two, 249 F.3d 1132, 1134 (9th Cir. 2001)).

         ANALYSIS

         I. Due Process

         a. Individual Liability

         PLN alleges Defendants violated the Due Process Clause of the Fourteenth Amendment, via 42 U.S.C. § 1983, as a result of ADC's failure to provide PLN with notice and an opportunity to appeal when it excluded the four 2014 and two 2016 issues of Prison Legal News, and when it excluded Celling in 2011 and 2015. (Doc. 235 at 16.) In addition to suing Defendants in their official capacities, PLN seeks damages from Defendants Ryan, Rittenhouse, Hood, Olson, and Riggs in their individual capacities. (Doc. 179 at 4-6.)

         The Due Process Clause requires that when a correctional facility refuses to deliver mail to an inmate, it must provide both sender and prisoner with notice and an opportunity for appeal to an official other than the one who made the initial decision to exclude. Procunier v. Martinez, 416 U.S. 396, 418-19 (1974), overruled on other grounds by Thornburgh v. Abbot, 490 U.S. 401 (1989); Krug v. Lutz, 329 F.3d 692, 697-68 (9th Cir. 2003); Prison Legal News v. Cook, 238 F.3d 1145, 1152 (9th Cir. 2001). Defendants admit that PLN was not given notice and an opportunity to appeal when ADC initially excluded the four 2014 and two 2016 issues of Prison Legal News, and when it excluded Celling in 2011 and 2015. (Doc. 236 at 6-7.) As to the exclusion decisions made from 2011 until 2015, ADC did not have any policy requiring notice and an opportunity to appeal for publishers. In 2016, ADC implemented a new policy requiring publishers be given notice and an opportunity to appeal if their mail is excluded. But ADC employees, in contravention of the 2016 Policy, continued to exclude Prison Legal News in 2016 without providing PLN with notice and an opportunity to appeal. Because Defendants admit ADC deprived PLN of its right to due process, summary judgment is granted to PLN with regard to its due process claim against Defendants in their official capacities.

         Next, the Court considers PLN's due process claim against Defendants in their individual capacities. “In order for a person acting under color of state law to be liable under section 1983 there must be a showing of personal participation in the alleged rights deprivation[.]” Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002). Defendants move for summary judgment to dismiss Defendants Ryan, Rittenhouse, Hood, and Riggs in their individual capacities on the basis that they did not personally participate in depriving PLN of its due process rights. (Doc. 233 at 9.) Of note, Defendants do not move to dismiss PLN's due process claim against Defendant Olson in his individual capacity and admit Olson personally participated in excluding the four 2014 issues without providing to PLN notice and an opportunity to appeal. (Doc. 233 at 13.)

         Summary judgment is granted to PLN with regard to Olson's individual liability in excluding the four 2014 issues and two 2016 issues of Prison Legal News. During the relevant time period, Olson worked in OPR as a Quality Assurance Coordinator. (Doc. 218-1 at 28.) Defendants admit that Olson personally reviewed and “initially excluded the four 2014 Prison Legal News issues.” (Doc. 233 at 13.) Further, in their Answer, Defendants admitted to PLN's allegation that “Olson participated in each act of censorship and failure to provide access alleged herein to have occurred before May 31, 2016, including by personally reviewing each issue.” (Docs. 179 at 10; 181 at 10.) The March 2016 and April 2016 issues were reviewed prior to May 31, 2016; thus, Olson participated in their exclusion decisions. (Docs. 236 at 7.) When he participated in the exclusion decisions, Olson neither provided nor directed others to provide PLN with notice and an opportunity to appeal. (Doc. 236 at 22.) Defendants do not dispute that Olson's conduct caused PLN's deprivation of due process. As such, Olson is individually liable for the due process violations involving the 2014 and 2016 issues of Prison Legal News. See Prison Legal News v. Babeu, 933 F.Supp.2d 1188, 1210 (D. Ariz. 2013) (finding that county jail mailroom staff was personally liable for due process violation when they “discarded or returned PLN materials, and in doing so provided no opportunity to contest or appeal the non-deliverability decision”).

         The other individual defendants, however, did not personally review and exclude without notice any of PLN's publications.^[6] PLN nevertheless argues they are individually liable because they advanced an unconstitutional policy that proximately caused PLN's harm. (Doc. 248 at 11.)

         The Ninth Circuit has instructed that “§ 1983 allows a plaintiff to impose liability upon a defendant-supervisor who creates, promulgates, implements, or in some other way possesses responsibility for the continued operation of a policy the enforcement (by the defendant-supervisor or her subordinates) of which ‘subjects, or causes to be subjected' that plaintiff ‘to the deprivation of any [constitutional] rights.'” OSU Student Alliance v. Ray, 699 F.3d 1053, 1076 (9th Cir. 2012) (citation omitted). In other words, a supervisor ...