United States District Court, D. Arizona
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 ...