Prison Legal News v. Ryan

          ORDER

          HONORABLE ROSLYN O. SILVER SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Prison Legal News (“PLN”) sued Defendants, current and former officers of the Arizona Department of Corrections (“ADC”), pursuant to 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments. PLN alleges that under ADC's policy prohibiting sexually explicit content, Defendants excluded certain publications sent by PLN to ADC inmates. The Court granted summary judgment to PLN with regard to the facial challenge of ADC's currently operative policy, as-applied challenges to ADC's exclusion of specific publications, and the individual liability of Defendant Charles L. Ryan. (Doc. 260.) Defendants then moved for reconsideration of the Court's summary judgment order (“Order”). (Doc. 272.) For the following reasons, Defendants' motion for reconsideration is denied.

         BACKGROUND

         Because the facts are familiar to the parties, the Court restates them only as necessary to explain its decision.

         Plaintiff Prison Legal News publishes 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.) 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. (Doc. 236 at 3.) There are over 100 subscribers to Prison Legal News at ADC facilities. (Doc. 236 at 4.) Defendants are current and former officers and employees of ADC, sued in their official and individual capacities, including ADC's Director Charles L. Ryan (“Ryan”).

         ADC has a publication review policy, under which officers review publications sent to inmates and prohibit certain materials from entering the prisons. The currently operative Department Order (“DO”) 914.07 prohibits “unauthorized content, ” including “sexually explicit” material. The regulations provide in relevant part:

• 914.07-1.1: “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.” (Doc. 234-2 at 62.)

• 914.07-1.2.2: “Prohibited publications include, but are not limited to . . . Publications that depict any of the following acts and behaviors in either visual, audio, or written form: Physical contact by another person with a person's unclothed genitals, pubic area, buttocks or, if such person is a female breast; Sadomasochistic abuse; Sexual intercourse, vaginal or anal, fellatio, cunnilingus, bestiality or sodomy; Masturbation, excretory functions, and lewd exhibition of the genitals; Incestuous sexual activity; Sexual activity involving an unwilling participant, or a participant who is the subject of coercion, or any sexual activity involving children.” (Doc. 234-2 at 62.)

• 914.07-1.2.17 prohibits: “Content 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.” (Doc. 234-2 at 63.)

• “Sexually explicit material” is defined as: “Any publication . . . which pictorially or textually depicts nudity of either gender, or homosexual, heterosexual, or auto-erotic sex acts including fellatio, cunnilingus, masturbation, sadism, sado-masochism, bondage, bestiality, excretory functions, sexual activity involving children, an unwilling participant, or the participant who is the subject of coercion.” (Doc. 234-2 at 69.)

         In addition to the prohibited content listed above, the policy contains several exceptions:

• 914.07-1.19: “Publications that contain nudity and/or descriptions of sexual behaviors/acts, or violent acts, shall not be withheld if such unauthorized content is within a publication commonly considered to constitute a well-known and widely recognized religious work (such as the Bible, the Koran, the Book of Mormon) or literary work (such as Shakespeare). (Doc. 234-2 at 61-62.)

• 914.07-1.18: “A legal publication that contains unauthorized content that is either (a) directly quoted from a trial or appellate court's decision, opinion, or order, or (b) otherwise taken from a court case, government publication, or news wire service (such as the Associated Press), shall not be withheld if the unauthorized content is reasonably necessary to understand the fundamental legal issue or legal principle of the legal publication. (Doc. 234-2 at 61.)

         Pursuant to ADC's policy prohibiting sexually explicit material, certain publications by PLN, including issues of Prison Legal News and Celling, have been excluded and/or redacted. Some of these publications were excluded without notice to PLN. PLN brought claims against Defendants under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments. In May 2018, the parties cross-moved for summary judgment. (Docs. 233, 235.) The Court granted summary judgment to PLN with regard to the facial challenge to ADC's operative policy, as-applied challenges to ADC's exclusion of certain issues of Prison Legal News, and the individual liability of Defendants Ryan and Olson. (Doc. 260.) In addition, the Court partially denied summary judgment to Defendants with regard to damages, concluding that PLN ...