Warr v. Zavaras et al

Filing 77

ORDER ACCEPTED 75 Report and Recommendations of the United States Magistrate Judge. Granting 65 Defendants Motion for Summary Judgment; The Clerk shall enter judgment for Defendants on all claims, with all parties to bear their own attorneys fees and costs. by Judge William J. Martinez on 12/12/2011.(ervsl, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 09-cv-02477-WJM-KLM
JOSEPH WARR,
Plaintiff,
v.
ARISTEDES W. ZAVARAS,
CAPTAIN GONZALES,
IVETT RUIZ, and
RICHARD BOLDRIDGE,
Defendants.

ORDER ADOPTING NOVEMBER 4, 2011 RECOMMENDATION OF
UNITED STATES MAGISTRATE JUDGE AND GRANTING
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT

This matter is before the Court on the November 4, 2011 Recommendation by
U.S. Magistrate Judge Kristen L. Mix (ECF No. 75) that Defendants’ Motion for
Summary Judgment be granted. The Recommendation is incorporated herein by
reference. See 28 U.S.C. § 636(b)(1)(B); Fed. R. Civ. P. 72(b).
I. BACKGROUND
The facts are detailed in the Recommendation, which the Court incorporates
herein. Briefly, Plaintiff is a pro se prisoner at the Bent County Correctional Facility in
Las Animas, Colorado. Defendants are employees of the Colorado Department of
Corrections (“CDOC”). Plaintiff’s Complaint brings three claims against Defendants;
two of Plaintiff’s claims were dismissed in a prior Order. (ECF No. 62.) The only
remaining claim is that Plaintiff’s First Amendment rights are being violated by the

CDOC’s policy that does not allow him to possess Victoria’s Secret magazines because
he is classified as a sex offender. (ECF No. 7 at 8-9.)
After their Motion to Dismiss was denied as to Plaintiff’s First Amendment claim,
Defendants filed a Motion for Summary Judgment. (ECF No. 65). The Court referred
the Motion for Summary Judgment to Magistrate Judge Mix. (ECF No. 66.) The
Magistrate Judge recommends granting the Motion for Summary Judgment. (ECF No.
75.) Plaintiff has objected to this recommendation. (ECF No. 76.)
II. STANDARD OF REVIEW
When a Magistrate Judge issues a recommendation on a dispositive matter,
Federal Rule of Civil Procedure 72(b)(3) requires that the District Judge “determine de
novo any part of the magistrate judge’s [recommendation] that has been properly
objected to.” FED . R. CIV. P. 72(b)(3). An objection is proper if it is filed within fourteen
days of the Magistrate Judge’s recommendations and specific enough to enable the
“district judge to focus attention on those issues–factual and legal–that are at the heart
of the parties’ dispute.” United States v. 2121 East 30th Street, 73 F.3d 1057, 1059
(10th Cir. 1996) (quoting Thomas v. Arn, 474 U.S. 140, 147 (1985)). In the absence of
a timely and specific objection, “the district court may review a magistrate . . . [judge’s]
report under any standard it deems appropriate.” Summers v. Utah, 927 F.2d 1165,
1167 (10th Cir. 1991) (citing Thomas v. Arn, 474 U.S. 140, 150 (1985)); see also FED .
R. CIV. P. 72 Advisory Committee's Note (“When no timely objection is filed, the court
need only satisfy itself that there is no clear error on the face of the record.”).
In addition, Plaintiff is proceeding pro se; thus, the Court must liberally construe

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his pleadings. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). The Court, however,
cannot act as advocate for Plaintiff, who must still comply with the fundamental
requirements of the Federal Rules of Civil Procedure. See Hall v. Bellmon, 935 F.2d
1106, 1110 (10th Cir. 1991).
III. ANALYSIS
The First Amendment protects a prisoner’s right to receive mail. Thornburgh v.
Abbott, 490 U.S. 401, 407 (1989). However, such right is not absolute. Prison officials
may regulate a prisoner’s receipt of mail as long as the regulation is “‘reasonably
related to legitimate penological interests.’” Id. at 409 (quoting Turner v. Safley, 482
U.S. 78, 89 (1987)). The Turner test requires a court to weigh four factors: (1) whether
there is a “valid, rational connection between the prison regulation and the legitimate
governmental interest put forward to justify it”; (2) “whether there are alternative means
of exercising the right that remain open to prison inmates”; (3) “the impact
accommodation of the asserted constitutional right will have on guards and other
inmates, and on the allocation of prison resources generally”; and (4) the “absence of
ready alternatives” to the regulation. 482 U.S. at 89–90. Defendants bear the burden
of satisfying the first three prongs of the Turner test but Plaintiff must satisfy the fourth.
Thornburgh, 490 U.S. at 418. When examining these four factors, the Court must give
“substantial deference” to prison authorities. Frazier v. Dubois, 922 F.2d 560, 562 (10th
Cir. 1991).
The Magistrate Judge found that Defendant had satisfied the first three prongs of
the Turner test and that Plaintiff had failed to show that there were any ready

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alternatives to the CDOC’s regulation as necessary to satisfy the fourth Turner prong.
(ECF No. 75 at 14-16.) Plaintiff does not object specifically to any of the Magistrate
Judge’s findings. Rather, his Objection states that he “would object to the findings in its
entirety referencing all points relevant to such recommendations therein.” (ECF No. 76
at 1.) The Objection then rehashes the arguments he made in his prior opposition
papers.
The regulation at issue here is AR-300-26 (“Regulation”) which, in pertinent part,
prohibits inmates that are classified as sex offenders from “subscrib[ing] to or having in
[their] possession any sexually oriented materials or periodicals, or other reading or
viewing material deemed to be pornographic or contrary to [their] individualized
rehabilitative interests and goals.” (ECF No. 24-1 at 17.) In its earlier Order on
Defendant’s Motion to Dismiss, the Court found that the Defendants had satisfied the
first two prongs of the Turner test. (ECF No. 62 at 3.) The law of the case doctrine
prevents the Court from revisiting that finding. McIlravy v. Kerr-McGee Coal Corp., 204
F.3d 1031, 1034 (10th Cir. 2000). Thus, the Court finds that, for purposes of the instant
Motion, Defendants have met their burden with respect to the first and second Turner
factors. Therefore, these factors weigh in favor of upholding the Regulation.
With respect to the third factor, Defendants must show that allowing Plaintiff
access to the Victoria’s Secret magazines would have an adverse impact on the facility.
The Regulation states: “Research has shown that although pornography does not
cause people to become sex offenders, it can exacerbate existing problems for sex
offenders and can increase their potential for acting out, either sexually or violently;
therefore, pornography is contrary to rehabilitative goals.” (ECF No. 24-1 at 17.) In
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support of their Motion for Summary Judgment, Defendants submitted the affidavit of
Burl McCullar, the Program Manager for the Sex Offender Treatment and Monitoring
Program. (ECF No. 65-1.) McCullar cites research supporting the statement in the
Regulation and states that allowing sex offenders such as Plaintiff to have access to
materials with sexual content would have a negative impact on the facility because
“those materials may exacerbate a sex offender’s propensity for acting out.” (Id. ¶ 17.)
McCullar also states that, when sex offenders act out, “they victimize other offenders,
prison staff, or other individuals with whom they come into contact. This also includes
volunteers, visitors to the prison, and the families and friends of other offenders.” (Id. ¶
18.) Plaintiff provides no evidence to rebut the assertions in McCullar’s affidavit. Thus,
the Court finds that Defendants have shown that allowing Plaintiff access to Victoria’s
Secret catalogue would have an adverse impact on the facility. Accordingly, the third
Turner factor weighs in favor of upholding the Regulation.
As previously noted, Plaintiff bears the burden with respect to the fourth Turner
factor. That is, Plaintiff must show that “obvious, easy alternatives exist that fully
accommodate inmates’ rights at de minimis cost to valid penological interests.” Jones
v. Salt Lake Cty., 503 F.3d 1147, 1154 (10th Cir. 2007). In both his opposition to the
Motion for Summary Judgment and the Objection to the Magistrate Judge’s
Recommendation, Plaintiff utterly fails to meet this burden. Plaintiff has proffered no
alternative, much less a reasonable one that could accommodate his rights at a de
minimis cost to valid penological interests. Accordingly, the Court finds that the fourth
Turner factor weighs in favor of upholding the Regulation.

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Because all four Turner factors weigh in favor of upholding the Regulation, the
Court agrees with the Recommendation and finds that summary judgment in favor of
Defendants is appropriate.
IV. CONCLUSION
Accordingly, it is hereby ORDERED that the Recommendation of the United
States Magistrate Judge (ECF No. 75), filed November 4, 2011, is ACCEPTED. For the
reasons cited therein, Defendants’ Motion for Summary Judgment (ECF No. 65) is
GRANTED. The Clerk shall enter judgment for Defendants on all claims, with all parties
to bear their own attorney’s fees and costs.
Dated this 12th day of December, 2011.
BY THE COURT:

William J. Martínez
United States District Judge

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