Opinion
Civil Action No. 03-3325-CM.
August 10, 2005
MEMORANDUM AND ORDER
Plaintiff Sandy Hill filed the instant action on August 7, 2003, claiming that defendants Colonel Colleen L. McGuire, Commandant of the United States Disciplinary Barracks ("USDB") and Master Sergeant Jemmott, USDB's Publications Review Officer, violated his First Amendment rights. On January 7, 2005, defendants filed a Motion for Summary Judgment (Doc. 20). Plaintiff failed to file a timely response. On February 9, 2005, the court directed plaintiff to show cause, in writing, on or before February 17, 2005, why defendants' Motion for Summary Judgment (Doc. 20) should not be granted. The court further directed plaintiff to file a response to defendants' motion on or before February 24, 2004. The court specifically cautioned plaintiff: "Where plaintiff fails to respond to this order, the court will consider defendants' Motion for Summary Judgment (Doc. 20) without the benefit of plaintiff's response, as set out in Rule 7.4." To date, plaintiff has failed to respond to the court's show cause order and has failed to respond to defendants' Motion for Summary Judgment.
Rule 7.4 of the Rules of Practice provides that the "failure to file a brief or response within the time specified within [Rules 6.1 and 7.1(c)] shall constitute the waiver of the right thereafter to file such brief or response, except upon a showing of excusable neglect." D. Kan. R. 7.4; see also Reed v. Bennett, 312 F.3d 1190, 1195 (10th Cir. 2002) (noting in summary judgment context that by "failing to file a response within the time specified by the local rule, the nonmoving party waives the right to respond"). Because plaintiff has failed to respond to the instant motion, the court will makes its ruling without the benefit of a response from plaintiff.
Because plaintiff wholly failed to respond to defendants' summary judgment motion, the court deems those facts set forth by defendants admitted for purposes of summary judgment. D. Kan. R. 56.1(a).
Plaintiff is an inmate who has been confined at the USDB since October 7, 1998.
The USDB is the Department of Defense's only long-term maximum security prison, which houses some of the United States military's most dangerous prisoners, including those who have been convicted of murder and violent sex crimes. Security and internal order and control are major considerations for actions taken by officials at the USDB.
Policy for Department of Defense Corrections is established by the Secretary of Defense in Department of Defense Directive 1325.4, Confinement of Military Prisoners and Administration of Military Correctional Programs and Facilities (August 17, 2001), and in Department of Defense Instruction 1325.7, Administration of Military Correctional Facilities and Clemency and Parole Authority (July 17, 2001). Policy, procedures, and responsibilities associated with the Army Corrections System were established by the Secretary of the Army in AR 190-47, The Army Corrections System (August 15, 1996). Procedures for the computation of sentences to confinement of persons subject to the Uniform Code of Military Justice ("UCMJ") serving sentences in the custody of the Department of the Army are set out in AR 633-30, Military Sentences to Confinement (February 28, 1989).
Copies of all the regulations cited herein are available on the website of the Army Publishing Directorate, www.usapa.army.mil/usapahome.asp.
All printed material mailed to inmates at the USDB is screened in accordance with USDB Regulation 28-1 ("Regulation 28-1"). According to Paragraph 5-1a(2)(a) of this regulation, mail may be rejected if it "[c]ontains sexually explicit material to include but not limited to, homosexual acts, sodomy, or bondage, which by its nature or content poses a threat to the security, good order or discipline of the institution or undermines treatment programs."
USDB inmates are allowed to receive a wide range of magazines and reading material through the mail. Printed material that is considered questionable for release to inmates under Regulation 28-1 is set aside by mail room personnel for review by the Publications Review Official ("PRO"). When the PRO believes that a publication violates the standards of Regulation 28-1, the PRO advises the inmate in writing of the decision and the reason for it. The inmate then has several choices: (1) accept the decision and dispose of the publication as required by the Prisoner Personal Property Regulation; (2) appeal the PRO's decision to the Commandant by submitting a request in writing through The Advisory Board ("TAB"); or (3) request an exception to policy from the Commandant through TAB.
TAB serves as an advisory body to the Commandant, individually reviews each publication, and determines, by majority vote, what reading material should be excluded from or allowed into the inmate population in accordance with guidelines in Regulation 28-1. The Commandant reviews the publication, the inmate's appeal, and TAB's recommendation and determines whether to accept or deny the inmate access to the publication.
On July 2, 2003, plaintiff signed a Notification of Rejected Publication form that indicated that the PRO reviewed and initially denied the August 2003 edition of Playboy magazine. On August 19, 2003, plaintiff signed a Notification of Rejected Publication form that indicated that the PRO reviewed and initially denied the books The Midnight Café and Black Moon Inn, both written by Laurell K. Hamilton. Both Notification of Rejected Publication forms notified plaintiff that the publications were rejected because they contained sexually explicit material as referenced at paragraph 1(a) of the Notification form.
A Notification of Rejected Publication form under Regulation 28-1 gives the inmate notice of the reason for the rejection of the publication by citing the provision of Regulation 28-1 that it violates. The specific ground on which the PRO determined that the Playboy magazine, Black Moon Inn and The Midnight Café posed such a threat or undermined treatment programs was that the publications contained images and words depicting homosexual acts, sodomy, rape, and bondage. Defendants contend that the denials were made in accordance with Regulation 28-1.
Plaintiff requested that the publications be sent through the Publication Advisory Board ("PAB"), also referred to as TAB, for final decision by the Commandant. On July 21, 2003, and September 2, 2003, after reviews by TAB, defendant Colonel Colleen McGuire, the USDB Commandant, denied plaintiff's appeals, and rejected admission of the publications into the USDB.
After TAB's review on September 2, 2003, defendant Master Sergeant Jemott, the PRO, was notified of the decision to reject admission of the The Midnight Café and Black Moon Inn for distribution to plaintiff. Master Sergeant Jemott then notified the USDB librarian of the decision to reject the two books and removed the two books from the library shelves.
Plaintiff's complaint alleges that defendants, in their official capacities, violated plaintiff's First Amendment rights by denying plaintiff access to the August 2003 Playboy Magazine and the two books, The Midnight Café and Black Moon Inn. Plaintiff also alleges that the USDB's policy to withhold certain publications in their entirety, instead of redacting the parts that violate USDB's rules and regulations, violates his First Amendment rights. Plaintiff contends that he has exhausted his administrative remedies and seeks declaratory and injunctive relief.
Defendants contend that the United States is the proper defendant for plaintiff's claims and that the restrictions on plaintiff's mail did not violate plaintiff's First Amendment rights.
II. Summary Judgment Standards
Summary judgment is appropriate if the moving party demonstrates that there is "no genuine issue as to any material fact" and that it is "entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). In applying this standard, the court views the evidence and all reasonable inferences therefrom in the light most favorable to the nonmoving party. Adler v. Wal-Mart Stores, Inc., 144 F.3d 664, 670 (10th Cir. 1998) (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). A fact is "material" if, under the applicable substantive law, it is "essential to the proper disposition of the claim." Id. (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). An issue of fact is "genuine" if "there is sufficient evidence on each side so that a rational trier of fact could resolve the issue either way." Id. (citing Anderson, 477 U.S. at 248).
The moving party bears the initial burden of demonstrating an absence of a genuine issue of material fact and entitlement to judgment as a matter of law. Id. at 670-71. In attempting to meet that standard, a movant that does not bear the ultimate burden of persuasion at trial need not negate the other party's claim; rather, the movant need simply point out to the court a lack of evidence for the other party on an essential element of that party's claim. Id. at 671 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986)).
Once the movant has met this initial burden, the burden shifts to the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256; see Adler, 144 F.3d at 671 n. 1 (concerning shifting burdens on summary judgment). The nonmoving party may not simply rest upon its pleadings to satisfy its burden. Anderson, 477 U.S. at 256. Rather, the nonmoving party must "set forth specific facts that would be admissible in evidence in the event of trial from which a rational trier of fact could find for the nonmovant." Adler, 144 F.3d at 671. "To accomplish this, the facts must be identified by reference to affidavits, deposition transcripts, or specific exhibits incorporated therein." Id. Finally, the court notes that summary judgment is not a "disfavored procedural shortcut;" rather, it is an important procedure "designed to secure the just, speedy and inexpensive determination of every action." Celotex, 477 U.S. at 327 (quoting Fed.R.Civ.P. 1).
The court acknowledges that plaintiff appears pro se. However, this does not excuse plaintiff from the burden of coming forward with evidence to support his claims as required by the Federal Rules of Civil Procedure and the local rules of this court. Pueblo Neighborhood Health Ctrs., Inc. v. Losavio, 847 F.2d 642, 649 (10th Cir. 1988). Even a pro se plaintiff must present some "specific factual support" for his allegations. Id.
III. Discussion
A. Naming of Proper Defendant
Plaintiff has stated that the named defendants were acting in their official capacity during the alleged incidents. A suit against an officer or agent of the United States Government, with respect to actions taken in his or her official capacity, generally is held to be a suit against the United States. Weaver v. United States, 98 F.3d 518, 520 (10th Cir. 1996). Thus, to the extent plaintiff's action seeks injunctive relief from defendants in their official capacity, the United States is substituted as the sole defendant.
Therefore, for the remainder of this opinion, the court will refer to the defending parties as "defendant."
B. Whether Defendant's Actions Violated Plaintiff's First Amendment Rights
In Thornburgh v. Abbott, 490 U.S. 401 (1989), the Supreme Court held that regulations governing the receipt of reading materials by inmates must be analyzed under a reasonableness standard, and that such regulations are valid if they are reasonably related to a legitimate penological interest. These determinations should be made using the four-prong inquiry established in Turner v. Safley, 482 U.S. 78 (1987). Under this standard, courts must consider (1) whether there is a rational connection between the prison policy and a legitimate governmental interest; (2) whether there are alternative means for inmates to exercise their constitutional rights; (3) the effect that accommodating the exercise of the disputed rights would have on guards, other inmates, and prison resources; and (4) whether there are ready, easy-to-implement alternatives that would accommodate the inmates' rights. Id. at 89-90.
The court begins by considering whether the objective underlying the disputed policy is legitimate and neutral and whether the policy is logically or rationally related to that objective. Defendant contends that the objective of the USDB policy excluding material containing homosexuality, rape, and bondage is to eliminate potential threats to the security and good order of the institution, as well as to its treatment programs for sex offenders, by minimizing inmates' exposure to homosexuality and violent sexual activity such as rape and bondage. Defendant further contends that prison security and rehabilitation are legitimate penological interests.
The legitimacy of promoting prison security and rehabilitation is beyond question. Pell v. Procunier, 417 U.S. 817, 823 (1974) (protecting prison security is "central to all other corrections goals" and rehabilitation is "another paramount objective of the corrections system"). From the facts before the court, it also appears that the policy is legitimate and neutral. Regulation 28-1 prohibits materials that contain sexually explicit material such as homosexual acts, sodomy, or bondage, that could pose a threat to the security and good order of the USDB or undermine treatment programs, which are legitimate penological interests. While the review of publications is conducted by mail room personnel who exercise discretion in determining which publications contain prohibited sexually explicit material, any questionable materials are set aside for review by the PRO. If the PRO decides not to allow the publication, the prisoner has at least two means of appealing the PRO's decision. Moreover, "[w]here the regulations at issue concern the entry of materials into the prison, . . . a regulation which gives prison authorities broad discretion is appropriate." Thornburgh, 490 U.S. at 416.
The court next considers whether there are alternative means for plaintiff to exercise his constitutional rights. In this case, plaintiff is permitted to receive a wide variety of publications, including other issues of Playboy magazine, and other books, including books written by Laurell K. Hamilton, so long as they do not contain the prohibited material. Accordingly, plaintiff has alternative means of exercising his rights to receive publications, including sexually explicit publications, so long as they do not contain images and words depicting homosexual acts, sodomy, rape, and bondage.
The third factor concerns the effect that accommodating the exercise of the disputed right would have on guards, other inmates, and prison resources. Defendant contends that the restriction ensures the safety and good order and discipline of the institution for the benefit of other inmates and corrections staff. Defendant further contends that USDB officials legitimately concluded that accommodating plaintiff's requests for materials that contain homosexual content and discussion of rape and bondage could cause a loss of good order and discipline within the facility and possibly undermine the treatment programs, especially if such materials are made widely available to all inmates, including inmates that are sex offenders. Based on defendant's arguments, and without the benefit of a response from plaintiff on this issue, the court defers to the "informed discretion of corrections officials." Thornburgh, 490 U.S. at 418 (quoting Turner, 482 U.S. at 92).
Finally, the court examines whether there are ready, easy-to-implement alternatives that would accommodate plaintiff's rights. The Court in Turner expressly stated that this is not a "least restrictive alternative" test. Turner, 482 U.S. at 90. Instead, the court should focus on whether "an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests." Id. at 90-91. In his complaint, plaintiff suggested that USDB staff redact prohibited material instead of completely banning publications that contain prohibited material. Defendant contends that the amount of mail handled by the USDB, 179,939 pieces in 2003, is voluminous and that redacting the prohibited material in every publication reviewed by the PRO would be an extraordinary and costly task, thus an alternative to the existing policy is not reasonable. Defendant notes that publications can be denied to inmates for a variety of reasons, and the USDB staff of five persons is not equipped to redact all the language and pictures prohibited by USDB policy. The court finds that such an alternative, while accommodating plaintiff's rights, would result in significant adverse effects on the USDB's resources and the running of the institution. Moreover, "the absence of ready alternatives is evidence of the reasonableness of a prison regulation." Id. at 90 (citing Block v. Rutherford, 468 U.S. 576, 587 (1984)). Accordingly, the court defers to the USDB administration's judgment in implementing Regulation 28-1. See Hammons v. Saffle, 348 F.3d 1250, 1257 (10th Cir. 2003).
In consideration of the Turner factors, the court concludes that the application of USDB Regulation 28-1 in these circumstances is reasonably related to legitimate penological interests and does not violate plaintiff's constitutional rights.
IT IS THEREFORE ORDERED that defendants' Motion for Summary Judgment (Doc. 20) is granted. It is further ordered that this case is hereby dismissed.