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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1 2 3 4 IN THE UNITED STATES DISTRICT COURT 5 6 FOR THE NORTHERN DISTRICT OF CALIFORNIA 7 8 JONATHAN CRAIG ELFAND, No. C 11-0863 WHA (PR) 9 Plaintiff, ORDER GRANTING MOTION FOR SUMMARY JUDGMENT 10 For the Northern District of California United States District Court v. 11 12 COUNTY OF SONOMA; SHERIFFCORONER STEVE FREITAS; (Docket No. 22) Defendants. 13 / 14 INTRODUCTION 15 16 Plaintiff was an inmate in Sonoma County Jail when he filed this pro se civil rights 17 action under 42 U.S.C. 1983 claiming that his First Amendment right to receive magazines 18 were violated when he was incarcerated there. He has since been released from the jail and now 19 resides in New Jersey. Defendants’ motion to dismiss was granted in part. Following that 20 order, the remaining defendants are the County of Sonoma and the Sonoma County Sheriff- 21 Coroner Steve Frietas in his official capacity. These defendants have filed a motion for 22 summary judgment. Plaintiff has filed a brief opposition, and defendants have filed a reply. 23 For the reasons discussed below, the motion for summary judgment is GRANTED. ANALYSIS 24 25 26 A. SUMMARY JUDGMENT STANDARD Summary judgment is proper where the pleadings, discovery and affidavits show that 27 there is "no genuine issue as to any material fact and that the moving party is entitled to 28 judgment as a matter of law." Fed. R. Civ. P. 56(c). Material facts are those which may affect 1 the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,248 (1986). A dispute 2 as to a material fact is genuine if there is sufficient evidence for a reasonable jury to return a 3 verdict for the nonmoving party. 4 The moving party for summary judgment bears the initial burden of identifying those 5 portions of the pleadings, discovery and affidavits which demonstrate the absence of a genuine 6 issue of material fact. Celotex Corp.v. Cattrett, 477 U.S. 317, 323 (1986). When the moving 7 party has met this burden of production, the nonmoving party must go beyond the pleadings 8 and, by its own affidavits or discovery, set forth specific facts showing that there is a genuine 9 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. 11 For the Northern District of California United States District Court 10 B. PLAINTIFF’S CLAIM 12 Plaintiff claims that defendants violated his First Amendment rights by denying 13 magazines he subscribed to on the grounds that they violated the jail’s policy against sexually- 14 oriented material (Compl. 3). Following defendants’ motion to dismiss for lack of exhaustion, 15 the portion of plaintiff’s claim that remains concerns the denial of three issues of Maxim 16 magazine and one issue of GQ magazine in February 2010 (ibid.; Toby Decl. ¶ 7, Exh. B). 17 As an initial matter, it is noted that the only relief available to plaintiff is for nominal 18 damages. He seeks injunctive relief directing the jail to return the confiscated magazines to him 19 and to change its policies against sexually-oriented material (Compl. 3-4). This request is moot 20 because defendants have returned the magazines to plaintiff now that he is no longer in jail 21 (Toby Decl. Exh. D), and his release from the jail deprives him of standing to obtain an 22 injunction changing the jail’s practice and procedures. Plaintiff also seeks $5000 in damages 23 “for denying his First Amendment rights” (Compl. 4). Plaintiff cannot recover compensatory 24 damages because the magazines were returned to him, and damages for emotional or mental 25 injury are barred because there is no physical injury, see 42 U.S.C. 1997e(e). Punitive damages 26 also cannot be recovered against defendants because they are a municipality and a county 27 official sued in his official capacity only. See City of Newport v. Fact Concepts, Inc., 453 U.S. 28 247, 271 (1981) (prohibiting punitive damage recovery against municipality); see also 2 1 McMillan v. Monroe County, 520 U.S. 781, 785 n.2 (1997) (county official sued in official 2 capacity is same as suit against county). Thus, plaintiff’s remaining claim is for nominal 3 damages based on the denial of four magazines while he was in defendants’ custody. 4 Defendants argue that the jail policy prohibiting sexually-oriented materials and the 5 denial of the four magazines pursuant to that policy was constitutional. The policy is described 6 in detail in the order of dismissal. In addition to banning depictions of sexual acts and 7 unclothed genitalia and female areolae, the policy bans pictures that have “the purpose of 8 arousing sexual stimulation in its intended audience” if “there is a reasonable belief that the 9 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 11 For the Northern District of California United States District Court 10 discrimination]” (Toby Decl. Exh. A at 3, 5-6). 12 Imprisonment does not automatically deprive an inmate of certain important 13 constitutional protections, including those of the First Amendment. Beard v. Banks, 548 U.S. 14 521, 527 (2006). However, the Constitution does permit greater restriction of such rights in a 15 prison than it would allow elsewhere. Id. at 527-30. Regulations limiting prisoners' access to 16 publications or other information are valid only if they are reasonably related to legitimate 17 penological interests. Thornburgh v. Abbott, 490 U.S. 401, 413 (1989); see Mauro v. Arpaio, 18 188 F.3d 1054, 1058-59 (9th Cir. 1999) (en banc). This determination entails consideration of 19 the four-factor test set forth in Turner v. Safley, 482 U.S. 78, 89-90 (1987): (1) whether there is 20 a rational relationship between the regulation and the proffered legitimate government interest; 21 (2) whether inmates have alternative means of exercising their asserted rights; (3) how 22 accommodation of the claimed constitutional right will affect guards, a prisoner's fellow 23 inmates, and the allocation of prison resources; and (4) whether there are easy or obvious 24 alternatives to the policy such that the policy is an "exaggerated response" to the prison's 25 concerns. Ibid. Courts owe "substantial deference to the professional judgment of prison 26 administrators,” and plaintiff bears the burden of proving that the regulations are not valid 27 under the Turner factors. Overton v. Bazzetta, 539 U.S. 126, 132 (2003). 28 Defendants have presented evidence, undisputed by plaintiff, of legitimate government 3 1 interests rationally served by their policy against sexually-oriented materials in jail. This 2 evidence indicates that sexually-oriented materials exacerbate sexual harassment of jail staff, 3 especially female staff, which undermines important government interests in two ways: first, it 4 creates a hostile work environment for the staff, in violation of federal employment laws, and 5 second such harassment diminishes respect for and the authority of jail officers, which in turn 6 increases inmate rule-breaking (Toby Decl. ¶ 8). In addition, defendants’ evidence indicates 7 that sexually stimulating materials can increase sexual aggression and non-consensual sex 8 between inmates, and allows inmates to depersonalize past and potential future victims insofar 9 as it depicts women or men as sex objects (ibid.). Federal courts have recognized these government interests as legitimate and rationally 11 For the Northern District of California United States District Court 10 related to bans on sexually-oriented materials in prisons and jails. See Bahrampour v. Lampert, 12 356 F.3d 969, 976 (9th Cir. 2004) (rational connection between sexually oriented materials and 13 harmful inmate behavior such as sexual predation); Mauro, 188 F.3d at 1059 (reducing sexual 14 harassment of guards and protecting their safety is legitimate and rationally related to ban on 15 sexually oriented materials); Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993) (rational relation 16 between ban on pornography and curtailing sexual aggression by inmates). The courts have 17 upheld bans that extend not only to overt depictions of sexual acts and unclothed genitalia, but 18 also to sexually-oriented or stimulating materials similar to those denied in this case. See 19 Bahrampour, 356 F.3d at 976 (upholding denial of issues of Muscle Elegance magazine); 20 Zarate v. Tilton,2009 U.S. Dist. LEXIS 14345 (N.D. Cal. 2009) (Illston, J.) (upholding denial of 21 issues of Maxim and Maxim Espanol magazine); Ashker v. Schwarzenegger, 2009 U.S. Dist. 22 LEXIS 25092 (N.D. Cal. 2009) (Wilken, J.) (upholding denial of art magazine Juxtapoz); Self v. 23 Horel, 2008 U.S. Dist. LEXIS 95623 (N.D. Cal. 2008) (upholding denial of “The Practical 24 Guide to Drawing”). 25 Under Turner’s second factor, defendants have presented unrefuted evidence that under 26 their policy, inmates are allowed to exercise their rights under alternative means because they 27 are allowed a broad range of magazines, articles and other publications, including ones about 28 sex, as long as their purpose is not to sexually stimulate the recipient (Toby Decl. ¶ 4, Exh. A). 4 1 See Thornburgh, 490 U.S. at 418 (when jail mail regulations restricting sexually-oriented 2 otherwise materials permit a broad range of publications, the second Turner factor is satisfied). 3 The third Turner factor is also satisfied because sexually-oriented material can easily be 4 circulated among inmates, increase sexual harassment of guards and diminish their authority, 5 and exacerbate the problem of sexual aggression and non-consensual sex among inmates. See 6 ibid. (circulation of sexually-oriented materials produces precisely the kind of “ripple effect” 7 that Turner’s third factor is designed to address). 8 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 11 For the Northern District of California banning such publications. Defendants have presented evidence that redacting or cutting out all 10 United States District Court 9 be cost-prohibitive, and that under their current practice the magazines are returned unaltered to 12 the inmates upon their release from jail (Toby Decl. ¶ 9). Plaintiff has presented no evidence to 13 the contrary. As defendants’ evidence tilts all of the Turner factors in favor of finding the jail’s 14 policy constitutional, and plaintiff presents no evidence to the contrary, there is no genuine 15 issue of material fact as to whether the policy is constitutional. 16 There is also no genuine issue of material fact as to whether the issues of Maxim and 17 GQ denied in this case fall within the scope of defendants’ policy. These magazines were not 18 denied for explicitly depicting sexual acts or unclothed genitalia or the female areola, but rather 19 on the grounds that they have “the purpose of arousing sexual stimulation in its intended 20 audience” and jail officials had the “reasonable belief” that they would “jeopardize safety, 21 security, rehabilitation or other legitimate Facility interests, or create a hostile work 22 environment of other violation of [federal laws against workplace discrimination]” (Toby Decl. 23 Exh. A at 3, 5-6; Exh. B). 24 The content of the magazines is not in dispute. They all contain pictures of women and 25 some men in underwear, bikinis, and tight and scant clothing revealing breasts and buttocks, as 26 well as articles about sex, including: 27 28 • a picture of a woman on her hands and knees bending forward with her buttocks spread, 5 1 • pictures of a woman wearing only thigh-high stockings and underwear with an article 2 about her “first stripper fight,” “first girl-on-girl kiss,” “first S&M scene,” and “first phone sex 3 attempt,” 4 5 • a picture of a woman in lace-up and see-through bra and “thong” underwear with her buttocks raised, 6 • a picture of a woman without a top or bra pulling down her underwear, 7 • a picture of a woman lying in a tub with her legs spread open wearing see-through 8 9 lingerie; • advertisements for “Girls Gone Wild!” videos, • a feature called “Sex” advising men on how to be sexually unfaithful to their partners; 11 For the Northern District of California United States District Court 10 • pictures of a woman kneeling on the floor and draped over a chair with her bottom out 12 13 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 14 foreground, and another man holding the inner thigh of a model in short shorts with her shirt off 15 of her shoulder, and 16 • pictures of a topless woman draped over and preparing to kiss a man in a suit (Toby 17 Decl. Exh. B). The foregoing material has the purpose of “arousing sexual stimulation” and, for 18 the reasons discussed under the Turner factors, can “reasonably” be found to jeopardize the 19 safety of the jail and/or create a hostile work environment (id. Exh. A). No reasonable fact- 20 finder can dispute that the Maxim and GQ magazines denied to plaintiff were prohibited under 21 the terms of the jail policy. 22 Plaintiff’s only argument in opposition is that the jail may not ban materials that do not 23 depict sexual intercourse or unclothed genitalia unless the materials have “no literary content 24 and is only specifically meant to arouse” (Opp. 1-2). He gives as examples an underwear and 25 lingerie catalogue from Victoria’s Secret and the Sports Illustrated swimsuit issue, and he 26 argues that because some people might not be sexually stimulated by them, they may not be 27 prohibited under the First Amendment (ibid.) Plaintiff does not cite to any authority for this 28 proposition, nor is there any. Thornburgh, Mauro, and Bahrampour and their progeny do not 6 1 hold that a prison may only ban materials that are universally perceived as sexually stimulating. 2 Under the case law cited above, materials whose purpose is to sexually stimulate the intended 3 recipients may be banned from a jail without offending the First Amendment, regardless of 4 whether there are some individuals who may not be stimulated by them. 5 There is no genuine dispute of material fact as to whether the four magazines were 6 denied pursuant to the jail policy, and there is no genuine issue of material fact as to whether 7 the policy was constitutional under the four factors outlined in Turner. Consequently, 8 defendants are entitled to summary judgment on plaintiff’s claim. CONCLUSION 10 Defendants’ motion for summary judgment (docket number 22) is GRANTED. The 11 For the Northern District of California United States District Court 9 12 Clerk shall enter judgment and close the file. IT IS SO ORDERED. 13 Dated: March 13 , 2013. 14 WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 15 16 17 18 19 20 21 22 23 24 25 G:\PRO-SE\WHA\CR.11\ELFAND0863.MSJ.wpd 26 27 28 7

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