United States District Court, D. Arizona
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 ...