United States District Court, D. Arizona
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,
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