Williams v. Ryan

          ORDER

          David G. Campbell Senior United States District Judge

         Plaintiff DaJuan Torrell Williams, currently confined in Arizona State Prison Complex-Eyman, brought this civil rights action under 42 U.S.C. § 1983. (Doc. 15.) Defendants move for summary judgment, and Plaintiff opposes. (Docs. 65, 86.) For the following reasons, the Court will grant the motion in part and call for additional briefing.^[1]

         I. Background.

         On screening of Plaintiff's First Amended Complaint pursuant to 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated First Amendment claims against Arizona Department of Corrections (ADC) Director Charles L. Ryan and Correctional Officers Barnes, Anderson, Osler, Mangan, Williams, and Antolin. (Doc. 17 at 9.) The Court required Defendant Ryan to answer Counts One and Two, and required Defendants Barnes, Anderson, Osler, Mangan, Williams, and Antolin to answer Counts Three through Seven. (Id. at 11.) The Court dismissed Count Eight. (Id. at 11.)^[2]

         Plaintiff's claims relate to ADC's Department Order (DO) 914.07, which prohibits prisoners from sending, receiving, or possessing “sexually explicit material or content that is detrimental to the safe, secure, and orderly operation of the facility.” (Doc. 15 at 5.) Plaintiff alleges that even though he is a general population (GP) prisoner and not a sex offender, DO 914.07 applies to him, and that before Defendant Ryan became the ADC Director, prisoners were allowed to have non-obscene sexually explicit material. (Id. at 6-8.) Plaintiff seeks damages and injunctive relief. (Doc. 15-1 at 14.)

         II. 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 (a fact that might affect the outcome of the suit under the governing law) and that the dispute is genuine (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). But 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).

         The Court'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. The Court must believe the nonmovant's evidence and draw all inferences in the nonmovant's favor. Id. at 255. The Court is required to consider only the cited materials, but may choose to consider any other materials in the record. Fed.R.Civ.P. 56(c)(3).

         III. Facts.

         A. The Policy.

         Defendants assert that prior to 2010, ADC allowed prisoners to receive any type of sexually related photographs, magazines and writings, including those depicting nudity, as long as they did not depict or disrespect people in uniform. (Doc. 62 (Defs.' Statement of Facts) ¶ 6.) Plaintiff disputes that inmates were allowed to receive “virtually” any “pornography/sexually explicit material, ” and asserts that the pre-2010 policy only allowed prisoners to receive and possess “non-obscene” pornography and sexually explicit materials, and that publications depicting coercion, rape, sexual violence, sado-masochism, bondage, incest, and bestiality were not allowed. (Doc. 87 at 3 ¶ 6.)

         While the pre-2010 policy was in effect, ADC administrators received consistent complaints from prison employees that the prisoners' use of sexually explicit material created a hostile work environment for staff and volunteers because prisoners were frequently harassing primarily female staff members and volunteers with the sexually explicit materials they possessed. (Doc. 62 ¶¶ 7-9.) Plaintiff disputes that there was ever a problem or “significant issue” of GP inmates harassing females, staff, or each other because “GP inmates do not tolerate any type of sexual offenses or violations, ” which is why sex offenders are not a part of the GP.^[3] (Doc. 87 ¶ 8.)

         According to Defendants, the presence of sexually explicit pictures and text in the prison negatively impacted rehabilitation and treatment because the content encouraged general disrespect, especially towards females.^[4] (Doc. 62 ¶ 10.) Based on the experience of ADC administrators and staff, ADC concluded that the presence of sexually explicit photographs and text in the prison was detrimental to staff safety and the orderly operation of the prison, and began in 2010 to regulate sexually explicit material entering the prison. (Id. ¶ 12.) After the adoption of those regulations, staff reported that they generally felt more comfortable because they were not exposed to unwanted images and text with graphic sexual content.^[5] (Id. ¶ 14.)

         ADC DO 914 sets forth the procedure for receipt, screening, and delivery of mail at the facility. (Id. ¶ 16.) DO 914.07 is titled “Unauthorized Content” and provides:

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 or content that is detrimental to the safe, secure, and orderly operation of the facility as set forth in this Department Order.^[6]

(DO 914.07 § 1.1 (Doc. 62-1 at 28).) Relevant to this action, prohibited publications include:

[c]ontent in publications, photographs, drawings, or in any type of image or text that may, could reasonably be anticipated to, could reasonably result in, is or appears to be intended to cause or encourage sexual excitement or arousal or hostile behaviors, or that depicts sexually suggestive settings, poses or attire, and/or depicts sexual representations of inmates, correctional personnel, law enforcement, military, medical/mental health staff, programming staff, teachers or clergy.

(DO 914.07 § 1.2.17 (Doc. 62-1 at 29).) These include publications depicting nudity of either gender; contact with another person's unclothed genitals, pubic area, buttocks, or female breast; sadomasochistic abuse, sexual intercourse, masturbation, or incest; or sexual activity with an unwilling participant or child. (DO 914.07 §§ 1.2-1.2.2.6 (Doc. 62-1 at 28).) Defendants assert that DO 914 “does not prohibit any and all sexually related material in publications, but only sexually explicit material.” (Doc. 62 ¶ 37.) Plaintiff disputes this fact, asserting that “sexually related” and “sexually explicit” are interchangeable terms and that “anything involving a female, under current policies, is prohibited.” (Doc. 87 ¶ 37.)

         Plaintiff asserts in his Declaration that in 2010, Defendant Ryan issued DO 914.07, “Sexually Explicit Material, ” which focused on “removing and banning pornography from the prisons, ” but allowed men's magazines and non-nude photos of women in lingerie. (Doc. 87 at 23-24 ¶ 36.) Plaintiff states that by 2014 the focus shifted “because all of the pornography had been purged from the prisons, ” and by 2016 “any and everything related to sex or anything sexual, real or imagined, was being excluded - men's magazines and non-nude photos, non-pornographic books [and] novels, legal and religious text and, even fashion and gossip magazines, etc.” (Id. at 24 ¶ 37.) Under the 2016 revision of DO 914.07, the title was changed from “Sexually Explicit Material” to “Unauthorized Content, ” which Plaintiff asserts “allows for the prison [to] exclude every publication.” (Id. ¶ 38.)

         B. Application of the Policy Generally.

         ADC staff pick up ADC mail from the post office and process the mail at each prison complex. (Doc. 62 ¶ 16.) Because of the volume of magazines and publications received by prisoners, it is not possible for one person to review all the material to determine if it meets regulations. (Id. ¶ 21.) Each complex accordingly designates staff to review incoming magazines and publications, and staff are periodically trained on what to look for in reviewing these materials. (Id.) The Office of Publication Review (OPR) is consulted by publication review staff about publication decisions, and the OPR manages the publication review database, which is a statewide database containing information about all publications allowed or rejected by mailroom staff.^[7] (Id. ¶ 23.) Prisoners have 30 days to appeal to the OPR any decision to withhold a publication for having sexually explicit material. (Id. ¶ 29.)

         Prisoners at all custody levels have access to fiction, non-fiction, newspapers, magazines and general reference materials located in their complex's Resource Center/Library. (Id. ¶ 33.) Some books within the prison libraries may contain sexually explicit content because books are not part of the publication review under DO 914. But books with an obviously sexually explicit orientation may be excluded under DO 914. (Id. ¶ 34.) Depending on their custody level, prisoners have access to commercial television programming, including sexually related content, and ADC does not monitor or regulate the programming available to prisoners on those channels.^[8] (Id. ¶ 35.)

         C. The Policy as Applied to Plaintiff's Publications and Photographs.

         Defendants reviewed the Publication Review Database (PRD) to determine which of Plaintiff's publications were excluded, and located the following: on July 11, 2012, “Florence” excluded Pleasure Control; on April 30, 2014, C. Antolin excluded Seduction's Spell; and on January 1, 2016, E. Franco excluded Decadence. (Id. ¶¶ 48-49.) Defendants also searched the PRD's “miscellaneous file” and located an appeal decision upholding the exclusion of two publications printed from the internet titled XXX Adult Stories; Burning Desires and XXX Adult Stories: A Bride for the Whole Family, which Plaintiff says were seized by Defendants Osler and Mangan. (Id. ¶¶ 50-51; Doc. 87 at 13 ¶¶ 55-56.)

         In addition to those publications, Plaintiff submits evidence that Defendant Barnes withheld his publication, The Forever Kiss. (Doc. 87 at 12 ¶ 49.) He also presents evidence that Defendant Williams excluded a non-nude photograph catalog; that Defendant Mangan, seized, excluded, or redacted Plaintiff's November 2016 issue of Cosmopolitan, his January 2017 issue of Elle, his March 2017 issue of Harper's Bazaar, a non-nude photographs catalog, and other non-nude photographs; and that Defendant Antolin seized, excluded, or redacted Plaintiff's October 2014 issue of Prison Legal News. (Doc. 87 at 13 ¶¶ 57-62 and Doc. 87-3 at 9-11.)

         IV. Discussion.

         Defendants argue that ADC's publication policy is facially constitutional, they are entitled to qualified immunity, and if they are not entitled to qualified immunity, ...