Colten et al v. Hobbs et al
ORDER ADOPTING REPORT AND RECOMMENDATIONS: granting in part and amending in part 78 proposed report and recommendations; granting defendants' 71 motion for summary judgment and dismissing plaintiff's complaint with prejudice. Signed by Judge Kristine G. Baker on 3/28/2014. (mmd)
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
PINE BLUFF DIVISION
Case No. 5:12-cv-00263-KGB-JTK
RAY HOBBS, et al.
The Court has received the proposed findings and recommendations from United States
Magistrate Judge Jerome T. Kearney (Dkt. No. 78). The Court has reviewed those proposed
findings and recommendations, as well as the timely objections received thereto from plaintiff
(Dkt. No. 79) and defendants (Dkt. No. 80), and plaintiff’s objection to defendants’ objections
(Dkt. No. 81). The Court has reviewed the record de novo. For the reasons set forth below, the
Court hereby grants defendants’ motion for summary judgment (Dkt. No. 71) and adopts in part
and amends in part the proposed findings and recommendations (Dkt. No. 78).
Plaintiff William Colten is a state inmate incarcerated at the Cummins Unit of the
Arkansas Department of Correction (“ADC”). He filed this action pursuant to 42 U.S.C. § 1983,
alleging defendants violated his First and Fourteenth Amendment rights by confiscating a book
and several magazine issues for displaying female nudity, gang signs, and guns. Mr. Colten asks
for a declaratory judgment and monetary and injunctive relief. In his complaint, Mr. Colten
states that defendants Hobbs, May, Kelley, Lowe, Lay, Warner, and Weekly are responsible for
creating the publications policies and defendants Wilson, Banks, J.D. Smith, Cook, West, and J.
Smith comprise the Publication Review Committee (Dkt. No. 3). Defendants Baxter, Thompson,
J. Smith, Mills, and Wade are identified as Cummins Unit mail room staff who approve or reject
incoming books and publications. Mr. Colten alleges that several issues of Esquire, Maxim, and
Outdoor Life which were mailed to him were rejected as containing nudity, gang signs, and guns.
He complains that some of the magazines rejected did not contain nudity, that none of the
articles promoted gang activity, and that other prisoners have been permitted to receive the same
publications which were denied to him. Mr. Colten states in his objections to the proposed
findings that “guns are no longer an issue as defendants no longer deny them” (Dkt. No. 79).
Finally, he complains that he purchased a book in January 2012, entitled MAJESTIKA: THE ART
by Michael Moore, which was rejected and later destroyed.
Official Capacity Claims
Defendants correctly assert that Mr. Colten’s monetary claims against them in their
official capacities should be dismissed, as barred by sovereign immunity. See Will v. Michigan
Dep’t. of State Police, 491 U.S. 58, 65–66 (1989); Murphy v. State of Arkansas, 127 F.3d 750,
754 (8th Cir. 1997). The Court adopts the proposed findings and recommendations as to the
official capacity claims (Dkt. No. 78).
Exhaustion Requirement under the Prison Litigation Reform Act
Defendants ask the Court to dismiss Mr. Colten’s complaint for failure to exhaust his
administrative remedies as required by the Prison Litigation Reform Act (“PLRA”), 42 U.S.C. §
1997e. Defendants state that Mr. Colten filed and exhausted two grievances about the rejected
publications but only named separate defendant Aundrea Weekly in one of the grievances.
Defendants argue that the other defendants should be dismissed because the ADC grievance
policy requires an inmate to specifically identify the persons involved in the grievances which
were filed. See ADC Administrative Directive 10-32, Inmate Grievance Procedure (Dkt. No.
71-5 at IV(C)(4) (“Grievances must specifically name each individual involved for a proper
investigation and response to be completed by ADC. Inmates must fully exhaust the grievance
prior to filing a lawsuit. Inmates who fail to name all parties during the grievance process may
have their lawsuit or claim dismissed by the court or commission for failure to exhaust against all
According to the PLRA:
No action shall be brought with respect to prison conditions under section 1983 of this
title, or any other Federal law, by a prisoner confined in any jail, prison, or other
correctional facility until such administrative remedies as are available are exhausted.
42 U.S.C. § 1997e(a). Courts have interpreted this provision as a mandatory requirement that
administrative remedies be exhausted prior to the filing of a lawsuit. In Booth v. Churner the
Supreme Court held that in enacting the PLRA, “Congress has mandated exhaustion clearly
enough, regardless of the relief offered through administrative procedures.” 532 U.S. 731, 741
In addition, the Eighth Circuit held, “[t]he statute’s requirements are clear:
administrative remedies are available, the prisoner must exhaust them.” Chelette v. Harris, 229
F.3d 684, 688 (8th Cir. 2000). In Johnson v. Jones the Eighth Circuit held that “[u]nder the plain
language of section 1997e(a), an inmate must exhaust administrative remedies before filing suit
in federal court. . . . If exhaustion was not completed at the time of filing, dismissal is
mandatory.” 340 F.3d 624, 627 (8th Cir. 2003) (emphasis in original). Finally, in Jones v. Bock
the Supreme Court held that, while the PLRA itself does not require that all defendants be
specifically named in an administrative grievance, “it is the prison’s requirements, and not the
PLRA, that define the boundaries of proper exhaustion.” 549 U.S. 199, 218 (2007).
However, the United States Court of Appeals for the Eighth Circuit recently ruled that if
prison officials decide a procedurally-flawed grievance on the merits, they effectively waive the
argument that an inmate failed to exhaust because he did not strictly comply with the grievance
procedures. In Hammett v. Cofield an inmate relied on grievances which were not exhausted or
which were filed outside of mandatory time limits. 681 F.3d 945 (8th Cir. 2012). The Court
decided, however, that the “PLRA’s exhaustion requirement is satisfied if prison officials decide
a procedurally flawed grievance on the merits.” Id. at 947.
The issue in this case is whether Mr. Colten’s failure to name specifically defendants in
his grievances constitutes a procedural flaw such that Mr. Colten has fulfilled the exhaustion
requirement of the PLRA. The Eighth Circuit has conflicting recent opinions on this issue. The
Eighth Circuit determined in Bower v. Kelley that an inmate who failed to comply with ADC
procedures requiring that defendants be specifically named had satisfied the exhaustion
requirement. 494 F.App’x. 718 (8th Cir. Dec 13, 2012) (per curiam) (citing Hammett, 681 F.3d
at 947). The Eighth Circuit in Parks v. Corizon, Inc. also found that a prisoner who did not name
defendants in his otherwise exhausted grievance had exhausted his administrative remedies if the
prison decided the grievance on the merits. 511 F. App’x 588, 588–89 (8th Cir. June 27, 2013)
On the other hand, in Jones v. Hobbs, No. 12-2002 (8th Cir. Jan 22, 2013) (per curiam),
the Eighth Circuit held that “Jones failed to exhaust his administrative remedies as to defendants
Hobbs and Harris, because he did not name either of them in his grievance papers, as required by
the grievance policy of the Arkansas Department of Correction,” and in Champion v. Akins, 498
F.App’x. 670 (8th Cir. Feb. 25, 2013) (per curiam), the Eighth Circuit held that, while plaintiff
addressed two defendants as readers in his grievances about another defendant, plaintiff did not
state how the two defendants were involved in the grieved incidents, as required by the ADC
grievance policy, and thus that his administrative remedies were not exhausted with regard to
those two defendants.
In attempt to reconcile this precedent, the Court notes first that, Bower, Parks, Jones, and
Champion, as unpublished opinions, are not binding precedent. 8th Cir. R. 32.1(A); United
States v. Lovelace, 565 F.3d 1080, 1085 (8th Cir. 2009). Second, the Court notes that this
Court’s overwhelming recent precedent has harmonized these Eighth Circuit opinions:
by focusing on whether—despite the procedural flaw—prison officials reached and
decided the merits of the specific claims asserted against each defendant. To make that
determination, the Court must look beyond the prisoner’s grievances and examine the
issues that the prison officials reviewed and decided during the administrative appeal
process. This approach is consistent with the Hammett opinion and the purposes of the
PLRA’s exhaustion requirement.
Morrow v. Kelley, 2013 WL 6500616 (E.D. Ark. Dec. 11, 2013); Jones v. Bond, 2013 WL
6332681 (E.D. Ark. Dec. 5, 2013); Hooper v. Kelley, 2013 WL 5881613 (E.D. Ark. Oct. 30,
2013); Scott v. Burl, 2013 WL 5522404 (E.D. Ark. Oct. 1, 2013); Wallace v. Warner, 2013 WL
5531280 (E.D. Ark. Sept. 30, 2013).
Thus, the question is whether, in the instant case, prison officials reviewed and decided
the merits of the specific claims against each defendant. In this case, Mr. Colten filed two
grievances, CU-12-00347 and CU-12-00533. In grievance 347, Mr. Colten grieved the denial of
issues of Esquire and Maxim due to nudity and gang signs content (Dkt. No. 71-1, p. 4). He
named defendant Warden Weekly in the grievance, and stated, “I retain the right to name others
as they become know (sic)” (Id.). The Warden/Center Supervisor denied his grievance, and Mr.
Colten filed an appeal, which also was denied (Id. at 5–8). In grievance 533, Mr. Colten
complained that employees in the mail room were withholding publications from him in
retaliation for his past grievances, complained about not receiving issues of Outdoor Life,
complained about the rejection of the art book MAJESTIKA, and again purported to retain the right
to name others as they became known (Id. at 9). Although Mr. Colten did not specifically name
any individuals in this grievance, the grievance was responded to on the merits and ultimately
denied on appeal (Id. at 9–13).
The Court finds that Mr. Colten exhausted his administrative remedies in these
grievances for the following reasons. In both grievances Mr. Colten purported to retain the right
to name others as they became known. Whether or not that notation in fact caused him to retain
this right, defendants addressed the merits of both grievances, despite the fact that Mr. Colten
only named Ms. Weekly in grievance 347 and did not specifically identify any individuals in
grievance 553. Thus, the Court finds that prison officials reviewed and decided on the merits the
specific claims against each defendant in this case, that Mr. Colten’s grievances were denied on
appeal, and that Mr. Colten exhausted his administrative remedies with regard to these
Defendants also argue that Mr. Colten did not exhaust all available remedies with regard
to the copy of MAJESTIKA that was denied him because, while he appealed grievance 553, in
which he complained of the rejection of MAJESTIKA, he did not appeal the actual rejection of
MAJESTIKA by the Publication Review Committee back to the Publication Review Committee as
his decision letter told him to do (See Dkt. No. 71-2, p. 16). Defendants state that an appeal of
the Publication Review Committee’s rejection to the Publication Review Committee is an
available administrative remedy that Mr. Colten was aware of but failed to use. Defendants also
state that the PLRA requires exhaustion of all available remedies and that, because Mr. Colten
failed to appeal the Publication Review Committee’s rejection of MAJESTIKA back to the
committee which denied him in the first place, he did not exhaust all available administrative
remedies with regard to the book. Thus, pursuant to the requirements of the PLRA, defendants
argue that Mr. Colten cannot bring this suit with regard to the rejection of MAJESTIKA. The
Court agrees. See Woodford v. Ngo, 548 U.S. 81, 85 (2006) (“Prisoners must now exhaust all
available remedies . . . .”) (quotations omitted). Because Mr. Colten failed to appeal the
Publication Review Committee’s rejection of MAJESTIKA, he did not exhaust all available
administrative remedies and, pursuant to the PLRA, cannot sue defendants on this issue.
For the reasons stated, the Court adopts in part and amends in part the proposed findings
and recommendations as to the exhaustion requirement (Dkt. No. 78).
First Amendment Claim
Defendants state that the law is well settled that appropriate deference be given to the
decisions of prison administrators, and that prison rules which protect the security and good
order of the prison have been found to serve legitimate penalogical interests. Jones v. North
Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977); Hosna v. Groose, 80 F.3d 298
(8th Cir. 1996). The publications policy at issue, AD 09-44, provides that publications “are
subject to inspection and may be rejected if found to be detrimental to the security, discipline or
good order of the institution . . .” (Dkt. No. 71-2, p. 6.). Nudity is described as a “depiction in
which genitalia, buttock(s) or female breasts are fully exposed” (Id. at 7). Publications may be
rejected for containing, “but not limited to,” a variety of information, including “[s]exually
explicit material . . . which features nudity which by its nature or content poses a threat to the
security, good order, or discipline of the institution.” (Id.). Defendants also provide to the Court,
under seal, excerpts from the magazines and the book which are at issue in this case (Dkt. No.
Defendants rely on Turner v. Safley, where the Supreme Court held that a prison
regulation which allegedly impinges on prisoners’ constitutional rights is valid if it is reasonably
related to legitimate penalogical interests. 482 U.S. 78, 89 (1987). Defendants state that the
purpose behind the challenged publications policies in this case is to minimize security threats
and maintain discipline and good order (Dkt. No. 71-2, p. 1). In Turner, the Supreme Court
noted four factors to consider when determining if a restriction is reasonable: (1) whether a
valid, rational connection exists between the regulation and the interest asserted; (2) whether
alternative means of exercising the right exist; (3) the effect of the accommodation on the guards,
other inmates, and the allocation of prison resources; and (4) whether an alternative exists which
will accommodate the prisoner’s needs with de minimis impact on the prison’s asserted interests.
Id. at 89–91.
In analyzing the restrictions on nudity and gang signs in light of the four factors set forth
in Turner, defendant Rex Lay states that rejecting publications which contain gang signs serves a
legitimate security interest because the ADC must ensure that units are free from gang activity,
which could result in violence to staff and other inmates (Dkt. No. 71-2, p. 4–5). Similarly, Mr.
Lay states rejection of nudity and sexually explicit publications helps ensure the good order of
the institution because permitting such publications could interfere with rehabilitation goals of
sex offenders and with security since inmates might try to traffic and trade with others (Id. at 5).
Defendants further state that Mr. Colten possesses alternatives to exercise the right to freedom of
expression because he maintains the right to send, receive, and read a broad range of publications
which do not include those restrictions. Defendants maintain that accommodating Mr. Colten’s
right to these restricted publications would adversely affect guards, other inmates, and prison
resources and could interfere with rehabilitation goals set for sex offenders. Finally, defendants
argue that no alternative exists which would allow Mr. Colten to possess the restricted materials
at little or no cost to prison security. Therefore, pursuant to Turner, defendants state that the
publications policies do not violate Mr. Colten’s constitutional rights.
Mr. Colten objects to what he believes was a hearing before the Magistrate Judge
Kearney with defendants excluding Mr. Colten. Mr. Colten is mistaken in this regard. The
Court granted defendants’ motion to submit excerpts from the magazines and book denied Mr.
Colten (Dkt. Nos. 69, 75), but neither Magistrate Judge Kearney nor this Court held a hearing on
the matter. The Court agrees with defendants that these exhibits were properly filed under seal.
Allowing Mr. Colten unredacted copies of the publications in question would frustrate ADC’s
policy forbidding them in the first place. Mr. Colten states that he “has not and will not ask for
real nudity in either photos or magazines. . . . This case is not about nudity, I have never
requested that.” (Dkt. No. 79). Mr. Colten is also mistaken in this regard. The Court reviewed
the documents filed under seal and agrees with defendants that the January 2012 issue of Esquire
contains a depiction of nudity on page 32, the February 2012 issue of Esquire contains a
depiction of nudity on page 71, the February 2012 issue of Maxim contains depictions of gang
signs on page 24, and MAJESTIKA contains depictions of nudity throughout (Dkt. No. 76).
Mr. Colten’s next objection to the proposed findings and recommendations is that
prohibiting depictions of nudity is not “reasonably related” to the “legitimate penalogical
interest” of ensuring the good order of the institution. See Turner, 482 U.S. at 89 (holding that a
prison regulation which allegedly impinges on prisoners’ constitutional rights is valid if it is
reasonably related to legitimate penalogical interests). Mr. Colten states that this justification for
the policy ignores the years prisoners were allowed to receive Playboy and Hustler, as well as
“hardcore” pornography, during which time female guards worked in prison areas with no
instance of nude pictures causing harm or assaults on female guards. However, defendants are
not, as Mr. Colten suggests, required to demonstrate specific violations or incidents that justify
their security or good order claims.
The Court notes that “lawful incarceration brings about the necessary withdrawal or
limitation of many privileges and rights, a retraction justified by the considerations underlying
our penal system.” Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125
(1977) (quotations omitted). In addition, “[b]ecause the realities of running a penal institution
are complex and difficult, we have also recognized the wide-ranging deference to be accorded
the decision of prison administrators.” Id. at 126. Pursuant to the four factors set forth in
Turner, 482 U.S. at 87, the Court finds that the ADC has a legitimate penalogical objective in
minimizing security threats, maintaining discipline, and maintaining good order and that the
publications policies are reasonably related to furthering such interests. Therefore, the Court
finds that defendants’ restrictions do not violate Mr. Colten’s First Amendment rights. The
Court thus adopts the proposed findings and recommendations in regard to Mr. Colten’s First
Amendment claim (Dkt. No. 78).
Mr. Colten in his objections also brings up various other issues that are not properly
before the Court at this time, including the potential claims of Inmate Jackie Breeden, alleged
strip searches conducted by female guards, the depiction of homosexual activity in movies
purportedly shown by the ADC, the ADC’s duty to notify the publisher of rejections of their
publications, and whether a total ban of all publications by the ADC would be constitutional.
Qualified Immunity and Fourteenth Amendment Claim
The Court has received no objections to, and adopts in full, the proposed findings and
recommendations with regard to defendants’ qualified immunity and Mr. Colten’s Fourteenth
Amendment claim. The Court finds that defendants acted reasonably under the circumstances.
No reasonable fact-finder could find that the facts alleged or shown, construed in the light most
favorable to Mr. Colten, established a violation of a constitutional or statutory right. Further, Mr.
Colten does not have a Fourteenth Amendment claim because state law provides adequate postdeprivation remedies.
For the reasons stated in this Order, the Court adopts in part and amends in part the
proposed findings and recommendations (Dkt. No. 78). It is therefore ordered that defendants’
motion for summary judgment is granted (Dkt. No. 71) and that plaintiff’s complaint against
defendants is dismissed with prejudice. An appropriate Judgment shall accompany this Order.
SO ORDERED this 28th day of March, 2014.
Kristine G. Baker
United States District Judge
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