Elfand v. Sonoma County Men's Adult Detention Facility

Filing 32

ORDER by Judge William Alsup granting 22 Motion for Summary Judgment (Attachments: # 1 Certificate/Proof of Service) (dt, COURT STAFF) (Filed on 3/13/2013)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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JONATHAN CRAIG ELFAND,

No. C 11-0863 WHA (PR)

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Plaintiff,

ORDER GRANTING MOTION FOR
SUMMARY JUDGMENT

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For the Northern District of California

United States District Court

v.
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COUNTY OF SONOMA; SHERIFFCORONER STEVE FREITAS;
(Docket No. 22)
Defendants.

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/
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INTRODUCTION

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Plaintiff was an inmate in Sonoma County Jail when he filed this pro se civil rights

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action under 42 U.S.C. 1983 claiming that his First Amendment right to receive magazines

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were violated when he was incarcerated there. He has since been released from the jail and now

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resides in New Jersey. Defendants’ motion to dismiss was granted in part. Following that

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order, the remaining defendants are the County of Sonoma and the Sonoma County Sheriff-

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Coroner Steve Frietas in his official capacity. These defendants have filed a motion for

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summary judgment. Plaintiff has filed a brief opposition, and defendants have filed a reply.

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For the reasons discussed below, the motion for summary judgment is GRANTED.
ANALYSIS

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A.

SUMMARY JUDGMENT STANDARD
Summary judgment is proper where the pleadings, discovery and affidavits show that

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there is "no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect

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the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute

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as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a

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verdict for the nonmoving party.

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The moving party for summary judgment bears the initial burden of identifying those

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portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine

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issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving

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party has met this burden of production, the nonmoving party must go beyond the pleadings

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and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine

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issue for trial. If the nonmoving party fails to produce enough evidence to show a genuine issue
of material fact, the moving party wins. Ibid.

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For the Northern District of California

United States District Court

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B.

PLAINTIFF’S CLAIM

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Plaintiff claims that defendants violated his First Amendment rights by denying

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magazines he subscribed to on the grounds that they violated the jail’s policy against sexually-

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oriented material (Compl. 3). Following defendants’ motion to dismiss for lack of exhaustion,

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the portion of plaintiff’s claim that remains concerns the denial of three issues of Maxim

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magazine and one issue of GQ magazine in February 2010 (ibid.; Toby Decl. ¶ 7, Exh. B).

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As an initial matter, it is noted that the only relief available to plaintiff is for nominal

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damages. He seeks injunctive relief directing the jail to return the confiscated magazines to him

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and to change its policies against sexually-oriented material (Compl. 3-4). This request is moot

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because defendants have returned the magazines to plaintiff now that he is no longer in jail

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(Toby Decl. Exh. D), and his release from the jail deprives him of standing to obtain an

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injunction changing the jail’s practice and procedures. Plaintiff also seeks $5000 in damages

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“for denying his First Amendment rights” (Compl. 4). Plaintiff cannot recover compensatory

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damages because the magazines were returned to him, and damages for emotional or mental

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injury are barred because there is no physical injury, see 42 U.S.C. 1997e(e). Punitive damages

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also cannot be recovered against defendants because they are a municipality and a county

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official sued in his official capacity only. See City of Newport v. Fact Concepts, Inc., 453 U.S.

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247, 271 (1981) (prohibiting punitive damage recovery against municipality); see also
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McMillan v. Monroe County, 520 U.S. 781, 785 n.2 (1997) (county official sued in official

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capacity is same as suit against county). Thus, plaintiff’s remaining claim is for nominal

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damages based on the denial of four magazines while he was in defendants’ custody.

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Defendants argue that the jail policy prohibiting sexually-oriented materials and the

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denial of the four magazines pursuant to that policy was constitutional. The policy is described

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in detail in the order of dismissal. In addition to banning depictions of sexual acts and

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unclothed genitalia and female areolae, the policy bans pictures that have “the purpose of

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arousing sexual stimulation in its intended audience” if “there is a reasonable belief that the

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material will jeopardize safety, security, rehabilitation or other legitimate Facility interests, or
create a hostile work environment of other violation of [federal laws against workplace

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For the Northern District of California

United States District Court

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discrimination]” (Toby Decl. Exh. A at 3, 5-6).

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Imprisonment does not automatically deprive an inmate of certain important

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constitutional protections, including those of the First Amendment. Beard v. Banks, 548 U.S.

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521, 527 (2006). However, the Constitution does permit greater restriction of such rights in a

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prison than it would allow elsewhere. Id. at 527-30. Regulations limiting prisoners' access to

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publications or other information are valid only if they are reasonably related to legitimate

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penological interests. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); see Mauro v. Arpaio,

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188 F.3d 1054, 1058-59 (9th Cir. 1999) (en banc). This determination entails consideration of

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the four-factor test set forth in Turner v. Safley, 482 U.S. 78, 89-90 (1987): (1) whether there is

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a rational relationship between the regulation and the proffered legitimate government interest;

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(2) whether inmates have alternative means of exercising their asserted rights; (3) how

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accommodation of the claimed constitutional right will affect guards, a prisoner's fellow

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inmates, and the allocation of prison resources; and (4) whether there are easy or obvious

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alternatives to the policy such that the policy is an "exaggerated response" to the prison's

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concerns. Ibid. Courts owe "substantial deference to the professional judgment of prison

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administrators,” and plaintiff bears the burden of proving that the regulations are not valid

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under the Turner factors. Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

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Defendants have presented evidence, undisputed by plaintiff, of legitimate government
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interests rationally served by their policy against sexually-oriented materials in jail. This

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evidence indicates that sexually-oriented materials exacerbate sexual harassment of jail staff,

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especially female staff, which undermines important government interests in two ways: first, it

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creates a hostile work environment for the staff, in violation of federal employment laws, and

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second such harassment diminishes respect for and the authority of jail officers, which in turn

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increases inmate rule-breaking (Toby Decl. ¶ 8). In addition, defendants’ evidence indicates

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that sexually stimulating materials can increase sexual aggression and non-consensual sex

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between inmates, and allows inmates to depersonalize past and potential future victims insofar

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as it depicts women or men as sex objects (ibid.).
Federal courts have recognized these government interests as legitimate and rationally

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For the Northern District of California

United States District Court

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related to bans on sexually-oriented materials in prisons and jails. See Bahrampour v. Lampert,

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356 F.3d 969, 976 (9th Cir. 2004) (rational connection between sexually oriented materials and

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harmful inmate behavior such as sexual predation); Mauro, 188 F.3d at 1059 (reducing sexual

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harassment of guards and protecting their safety is legitimate and rationally related to ban on

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sexually oriented materials); Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993) (rational relation

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between ban on pornography and curtailing sexual aggression by inmates). The courts have

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upheld bans that extend not only to overt depictions of sexual acts and unclothed genitalia, but

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also to sexually-oriented or stimulating materials similar to those denied in this case. See

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Bahrampour, 356 F.3d at 976 (upholding denial of issues of Muscle Elegance magazine);

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Zarate v. Tilton,2009 U.S. Dist. LEXIS 14345 (N.D. Cal. 2009) (Illston, J.) (upholding denial of

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issues of Maxim and Maxim Espanol magazine); Ashker v. Schwarzenegger, 2009 U.S. Dist.

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LEXIS 25092 (N.D. Cal. 2009) (Wilken, J.) (upholding denial of art magazine Juxtapoz); Self v.

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Horel, 2008 U.S. Dist. LEXIS 95623 (N.D. Cal. 2008) (upholding denial of “The Practical

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Guide to Drawing”).

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Under Turner’s second factor, defendants have presented unrefuted evidence that under

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their policy, inmates are allowed to exercise their rights under alternative means because they

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are allowed a broad range of magazines, articles and other publications, including ones about

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sex, as long as their purpose is not to sexually stimulate the recipient (Toby Decl. ¶ 4, Exh. A).
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See Thornburgh, 490 U.S. at 418 (when jail mail regulations restricting sexually-oriented

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otherwise materials permit a broad range of publications, the second Turner factor is satisfied).

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The third Turner factor is also satisfied because sexually-oriented material can easily be

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circulated among inmates, increase sexual harassment of guards and diminish their authority,

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and exacerbate the problem of sexual aggression and non-consensual sex among inmates. See

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ibid. (circulation of sexually-oriented materials produces precisely the kind of “ripple effect”

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that Turner’s third factor is designed to address).

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Under Turner’s fourth factor, there is no evidence of easy or obvious alternatives to

of the offending words and pictures in every magazine or publication received in the jail would

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For the Northern District of California

banning such publications. Defendants have presented evidence that redacting or cutting out all

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United States District Court

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be cost-prohibitive, and that under their current practice the magazines are returned unaltered to

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the inmates upon their release from jail (Toby Decl. ¶ 9). Plaintiff has presented no evidence to

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the contrary. As defendants’ evidence tilts all of the Turner factors in favor of finding the jail’s

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policy constitutional, and plaintiff presents no evidence to the contrary, there is no genuine

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issue of material fact as to whether the policy is constitutional.

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There is also no genuine issue of material fact as to whether the issues of Maxim and

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GQ denied in this case fall within the scope of defendants’ policy. These magazines were not

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denied for explicitly depicting sexual acts or unclothed genitalia or the female areola, but rather

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on the grounds that they have “the purpose of arousing sexual stimulation in its intended

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audience” and jail officials had the “reasonable belief” that they would “jeopardize safety,

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security, rehabilitation or other legitimate Facility interests, or create a hostile work

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environment of other violation of [federal laws against workplace discrimination]” (Toby Decl.

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Exh. A at 3, 5-6; Exh. B).

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The content of the magazines is not in dispute. They all contain pictures of women and

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some men in underwear, bikinis, and tight and scant clothing revealing breasts and buttocks, as

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well as articles about sex, including:

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• a picture of a woman on her hands and knees bending forward with her buttocks
spread,
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• pictures of a woman wearing only thigh-high stockings and underwear with an article

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about her “first stripper fight,” “first girl-on-girl kiss,” “first S&M scene,” and “first phone sex

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attempt,”

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• a picture of a woman in lace-up and see-through bra and “thong” underwear with her
buttocks raised,

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• a picture of a woman without a top or bra pulling down her underwear,

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• a picture of a woman lying in a tub with her legs spread open wearing see-through

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lingerie;
• advertisements for “Girls Gone Wild!” videos,
• a feature called “Sex” advising men on how to be sexually unfaithful to their partners;

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For the Northern District of California

United States District Court

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• pictures of a woman kneeling on the floor and draped over a chair with her bottom out

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wearing only lace underwear and exposing parts of her breasts;
• pictures of a man wearing only underwear, with his legs spread and his crotch in the

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foreground, and another man holding the inner thigh of a model in short shorts with her shirt off

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of her shoulder, and

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• pictures of a topless woman draped over and preparing to kiss a man in a suit (Toby

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Decl. Exh. B). The foregoing material has the purpose of “arousing sexual stimulation” and, for

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the reasons discussed under the Turner factors, can “reasonably” be found to jeopardize the

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safety of the jail and/or create a hostile work environment (id. Exh. A). No reasonable fact-

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finder can dispute that the Maxim and GQ magazines denied to plaintiff were prohibited under

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the terms of the jail policy.

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Plaintiff’s only argument in opposition is that the jail may not ban materials that do not

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depict sexual intercourse or unclothed genitalia unless the materials have “no literary content

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and is only specifically meant to arouse” (Opp. 1-2). He gives as examples an underwear and

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lingerie catalogue from Victoria’s Secret and the Sports Illustrated swimsuit issue, and he

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argues that because some people might not be sexually stimulated by them, they may not be

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prohibited under the First Amendment (ibid.) Plaintiff does not cite to any authority for this

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proposition, nor is there any. Thornburgh, Mauro, and Bahrampour and their progeny do not
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hold that a prison may only ban materials that are universally perceived as sexually stimulating.

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Under the case law cited above, materials whose purpose is to sexually stimulate the intended

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recipients may be banned from a jail without offending the First Amendment, regardless of

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whether there are some individuals who may not be stimulated by them.

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There is no genuine dispute of material fact as to whether the four magazines were

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denied pursuant to the jail policy, and there is no genuine issue of material fact as to whether

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the policy was constitutional under the four factors outlined in Turner. Consequently,

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defendants are entitled to summary judgment on plaintiff’s claim.
CONCLUSION

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Defendants’ motion for summary judgment (docket number 22) is GRANTED. The

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For the Northern District of California

United States District Court

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Clerk shall enter judgment and close the file.
IT IS SO ORDERED.

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Dated: March 13 , 2013.
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WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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