Griffin Jr. v. Hickenlooper et al

Filing 104

ORDER the Court GRANTS IN PART and DENIES IN PART summary judgment to Mr. Griffin on his claims against the Defendants as follows. The Defendants are entitled to summary judgment on Mr. Griffins claims against them for money Damages. However, the Co urt grants summary judgment to Mr. Griffin and against the Defendants insofar as the Defendants are enjoined and directed to provide Mr. Griffin with the photographs identified previously as Images 3, 5, 6, and 7, and to do so within 7 days of the date of this Order. The Clerk of the Court shall enter judgment consistent with this Order and thereafter close this case. Entered by Judge Marcia S. Krieger on 3/19/2021. (rkeec)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Senior Judge Marcia S. Krieger
Civil Action No. 17-cv-03019-MSK-KMT
HENRY LEE GRIFFIN JR.,
Plaintiff,
v.
VIRGINIA GORMAN,
AMY MORRISON,
BRYAN COLEMAN, and
DAVE LISAC,
Defendants.
______________________________________________________________________________
OPINION AND ORDER GRANTING, IN PART, SUMMARY JUDGMENT TO
PLAINTIFF
______________________________________________________________________________
THIS MATTER comes before the Court sua sponte, following up on the Court’s
February 2, 2021 Opinion and Order Granting Motion For Summary Judgment, in part (# 98).
The Court assumes the reader’s familiarity with the February 2021 Order. In summary,
the Court granted summary judgment to the Defendants (collectively, “CDOC”) on Mr. Griffin’s
claims that CDOC’s confiscation of certain photographs depicting a degree of nudity was
constitutional. But the Court determined that certain other images – identified in that Order and
herein as Images 3, 5, 6, and 7 – were not encompassed by CDOC’s regulations prohibiting
inmate receipt of sexually-explicit content, as the images did not meet that regulation’s definition
of proscribed content. The Court further found that the Defendants were not entitled to qualified
immunity on Mr. Griffin’s claims relating to those four images.

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Because Mr. Griffin had not moved for summary judgment in his favor on his claims
relating to these images, the Court directed the parties to address, pursuant to Fed. R. Civ. P.
56(f), whether summary judgment in Mr. Griffin’s favor on the claims relating to these images
was appropriate. In response, Mr. Griffin submitted a brief (# 102) seeking reconsideration of
certain aspects of the Court’s February 2021 Opinion. The Defendants submitted a brief (# 103)
that addressed only the Court’s finding that the the contours of Mr. Griffin’s claim were “clearly
established” as constitutional violations for purposes of denying qualified immunity to the
Defendants on Mr. Griffin’s claim for money damages. The Court takes up the two briefs in
turn.
A. Mr. Griffin’s brief
Most of Mr. Griffin’s arguments do not warrant further elaboration. However, Mr.
Griffin argues that the Court erred in rejecting his argument that his claim encompassed more
than the 7 photographs initially discussed, and that he was contending that the Defendants had
improperly confiscated more than 100 photographs. The Court concluded that Mr. Griffin’s
administrative grievance to CDOC asked that “I’d like all (6) photos delivered to me
immediately” (plus a seventh photo received in a subsequent mailing), and thus, the Court found
that Mr. Griffin would have failed to exhaust his administrative remedies with regard to any
photographs beyond the 7 at issue here.
In his response brief, Mr. Griffin argues that decisions of the Reading Committee are not
proper subjects for inmate grievances pursuant to CDOC Administrative Regulation 85004(IV)(A)(4). Mr. Griffin is correct that AR 850-04 does provide that “the grievance procedure
may not be used to seek review of . . . decisions of the Reading Committee.” However, Mr.

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Griffin himself acknowledges that he did have an “available administrative remedy[:] to file an
appeal, which I did and in that appeal I challenged the confiscation of all (101) photos.”
The record does not confirm Mr. Griffin’s statement. The only document reflecting an
appeal by Mr. Griffin of the Defendants’ decision is found at Docket # 84-9 at 6. That Appeal
Statement refers to a decision by the Reading Committee that specifically identified the
censorship of three photos. See Docket # 84-9 at 5 (identifying 18 photos received and
indicating that “Censored in part; pages censored: 3 photos”). Nothing in that appeal informs the
Reading Committee that Mr. Griffin is objecting to the confiscation of photographs that were not
deemed to depict sexually-explicit content. Indeed, given the timing of the appeal procedure and
the information depicted in the record, it would seem that Mr. Griffin’s appeal – filed on October
3, 2016 (Docket # 84-9 at 6) and in response to a Notice of Rejection/Disposition of Mail dated
September 29, 2016 (Docket # 84-9 at 7) – could not possibly have objected to a determination
by the Reading Committee because the Reading Committee did not make any determination on
the status of the mailing until October 10, 2016 (Docket # 84-9 at 5). Both the process flow
depicted in Docket # 84-9 and the process described in AR 300-26 contemplate that the
mailroom will initially notify an inmate that a mailing has been preliminarily confiscated and is
being diverted to the Reading Committee. AR 300-26(IV)(B)(1)(b). The inmate files an appeal
statement in response to that notice. AR 300-26(IV)(B)(1)(e)(2). That appeal is forwarded on to
the Reading Committee for consideration alongside the confiscated mailing.1 AR 300-

AR 300-26(IV)(B)(3) contemplates an additional layer of review, by which the
Administrative Head of the facility reviews the Reading Committee’s decisions. The regulation
does not appear to allow an inmate an opportunity to be heard again in the interim. Rather, the
Administrative Head “will review the censorship decisions, the publication, and any statements
received from [an] offender,” apparently the same statement generated earlier in the process.
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26(IV)(B)(1)(e)(2)(d) and (IV)(B)(2)(b) (“the committee must review the publication and any
statements submitted by[an] offender”). In short, Mr. Griffin’s appeal to the Reading Committee
could not have raised an objection to the Committee confiscating some 12 (or more) photographs
that had been reviewed and deemed non-explicit because any such appeal would have pre-dated
any such determination and confiscation.
The Court finds that resort to the regular administrative remedy process under AR 850-04
was appropriate for Mr. Griffin’s situation here. The record reflects that the mailroom
embargoed a shipment of 15 or so photographs because some portion of the shipment might be
deemed contraband. The mailroom forwarded the entire shipment on to the Reading Committee
and, after considering Mr. Griffin’s appeal statement, the Committee deemed 3 of those 15
photos to be prohibited, notifying Mr. Griffin of that result. Mr. Griffin appears to assert here
that he was nevertheless not provided with the 12 photos that had passed muster. The Court
cannot say that the failure to deliver the 12 permissible photographs is a “decision of the Reading
Committee” that is un-grievable under AR 850-04 – indeed, it appears that the Reading
Committee already decided that Mr. Griffin could receive those 12 photos, a finding that is
embodied by Docket # 84-9 at 5. Whatever defect in the process prevented Mr. Griffin from
receiving the 12 permissible photos, it would appear that AR 850-04 permitted Mr. Griffin to
grieve that failure. Significantly, it appears that Mr. Griffin understood that matters collateral to
Reading Committee determinations were nevertheless grievable through AR 850-04. On July
25, 2016, in response to the Reading Committee’s determination to confiscate a portion of a prior
shipment of photos to Mr. Griffin, Mr. Griffin filed an administrative grievance complaining of
the non-delivery of 6 photos that he believed had survived the Reading Committee’s review.

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Docket # 95-1. Nothing in the record suggests that CDOC rejected that grievance as raising an
un-grievable issue.
As such, the Court finds that Mr. Griffin’s failure to invoke the administrative remedy
procedure to grieve the confiscation of as many as 100 photos that the Reading Committee has
already determined were permissible prevents him from raising claims relating to those photos
under 42 U.S.C. § 1997e(e). Consequently, the Court finds no error in its earlier analysis that the
proper scope of Mr. Griffin’s claims should be limited to the 7 photos previously discussed.
B. Defendant’s brief
The Defendants’ brief focuses solely on the Court’s analysis of the “clearly established”
prong of the Defendants invocation of the doctrine of qualified immunity, arguing that the Court
should find that they are entitled to such immunity on Mr. Griffin’s claims against them for
money damages.
To begin with, the Court repeats its prior finding that qualified immunity is a defense to a
claim for money damages. A fair reading of Mr. Griffin’s Complaint here is that Mr. Griffin
seeks both monetary and injunctive relief, the latter in the form of requiring the Defendants to
produce the improperly-withheld images. Despite having had an opportunity to be heard on the
question of whether Mr. Griffin should be granted summary judgment on his claims relating to
Images 3, 5, 6, and 7, the Defendants have not argued that Mr. Griffin should not be granted an
injunction directing that those photos be provided to him. The Court will therefore enter
summary judgment in Mr. Griffin’s favor, directing the Defendants to deliver those four
photographs to him within 7 days of this Order.
That leaves the issue framed by the Defendants: whether Mr. Griffin’s constitutional right
to receive Images 3, 5, 6, and 7 was “clearly established” as of 2016, such that a reasonable
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corrections official would have known that confiscating those images under the auspices of AR
300-26 would violate Mr. Griffin’s rights and expose that office to monetary liability. See e.g.
Whitington v. Moschetti, 423 Fed.Appx. 767, 772 (10th Cir. 2011). The Court must address that
issue by examining, at “a high degree of specificity,” whether “controlling authority or a robust
consensus of cases” have settled the question of whether the conduct at issue violates an
individual’s constitutional rights. District of Columbia v. Wesby, 138 S.Ct. 577, 589-90 (2018).
Wesby emphasizes that the “specificity” requirement is “especially important in the Fourth
Amendment context” because it requires factually-intensive assessments that “cannot be reduced
to a neat set of legal rules.” Id. at 590. The same could likely be said for First Amendment
issues that arise in prison mailrooms, as each individual piece of inmate mail presents its own
unique set of security concerns.
In Thornburgh v. Abbott, 490 U.S. 401, 407 (1989), the Supreme Court recognized both
an inmate’s First Amendment rights to communicate with and exchange ideas with persons
outside of prison, as well as prison officials’ rights to curtail the full measure of inmates’ First
Amendment exercise when such exercise rubs up against the need to maintain prison security.
Thornburgh emphasizes that “in the volatile prison environment, it is essential that prison
officials be given broad discretion to prevent such disorder.” Id. at 413.
Striking the appropriate balance between the two interests is particularly difficult in the
area of inmates’ access to sexually-explicit materials. Courts have upheld prison restrictions on
inmate access to such materials based on concerns that it could affect inmate rehabilitation
efforts, enable the sexual harassment of female detention officers, and that such materials could
become valuable trading commodities, among others. See generally Mauro v. Arpaio, 188 F.3d
1054, 1059 (10th Cir. 1999); Payton v. Cannon, 806 F.3d 1109, 1110 (7th Cir. 2015). In
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Callahan v. Federal Bureau of Prisons, 965 F.3d 520, 524-25 (6th Cir. 2020), the court declined
to allow a Bivens remedy for an inmate who, like Mr. Griffin, complained that the confiscation
of sexually-suggestive photographs deprived him of First Amendment rights, in part explaining
that “We ought to hesitate before volunteering the judiciary to extend deep enough into
everyday federal prison administration to apply those standards to endless variations of racy and
provocative images, decide the threshold for acceptable risk to personnel or inmate safety,
evaluate whether a particular piece of mail crosses that threshold, and determine what kind of
compensatory and punitive damages are available for such claims—all without input from the
legislative or executive branches.”
Here, CDOC has attempted to define the boundaries of what forms of sexually-suggestive
material are and are not permissible in its prison facilities, the result being AR 300-26. For the
reasons explained in the Court’s February 2021 Opinion, the constitutionality of AR 300-26 is
not implicated here, leaving only the question of whether the Defendants reasonably applied the
terms of that regulation. Although the 10th Circuit has not been called upon to assess the “clearly
established” prong of qualified immunity as it applies to CDOC employees misapplying AR 30026, as the Court has found that the Defendants here did, the District Courts of Colorado have
considered that question. In Ybanez v. Raemisch, 2018 WL 2994416 (D. Colo. June 14, 2018)
(slip op.), Magistrate Judge Carman issued a Recommendation,2 finding that although CDOC
officials might have improperly confiscated issues of Maxim, Lowrider, and Skin & Ink
magazines that “include[d] photographs of women and men in lingerie, skimpy swimsuits, or

According to the Court’s docket records, Ybanez was settled by the parties the day after
Judge Carman’s Recommendation and the matter was not taken up further by the Article III
judge or the 10th Circuit.
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other revealing clothing,” he concluded that “what may constitute ‘sexually explicit materials’”
under AR 300-26 “is not so clearly established” that it would have put Defendants on notice that
their conduct was unconstitutional. “Official are not liable for bad guesses in gray areas; they
are liable for transgressing bright lines,” he wrote. He also pointed out that “there is at least
some non-binding case law holding that arguably similar acts of censorship were constitutional,”
citing to various District Court cases granting qualified immunity to prison officials accused of
improperly censoring issues of the Sports Illustrated Swimsuit Edition, Maxim, and GQ
magazines and images of women “in underwear, bikinis, and tight and scant clothing revealing
breasts and buttocks.”
In Frazier v. Martinez, 2010 WL 924254 (D. Colo. Mar. 10, 2010), Judge Arguello
considered a First Amendment claim from a CDOC inmate whose access to material from
Billboard, Blender, and Rolling Stone magazines was withheld, partly due to the operation of AR
300-26 and partly due to rehabilitation restrictions that prevented the inmate from having access
to, among other things, “pictures of young women and girls in underwear and swimsuits.” In
dicta, after finding that the inmate had not stated a constitutional claim arising from CDOC’s
application of the restrictions to him, Judge Arguello also found that the defendants would be
entitled to qualified immunity on the “clearly established” prong in any event. She found that
the inmate’s citations to controlling law – namely, that “the First Amendment has existed since
1789 and that people should know stealing is unlawful” -- were “too general a proposition” in
light of the nuanced Turner inquiry that applied and the particular rehabilitative goals that the
prison’s Sex Offender Treatment staff had established for the inmate.

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In Brackeen v. Brown, 2013 WL 328937 (D.Colo. Jan. 8, 2013), Magistrate Judge Tafoya
recommended3 that a CODC defendant’s motion to dismiss on qualified immunity grounds be
denied because “the law is clearly established that inmates have a First Amendment right to
receive information while in prison and that prison officials may not censor prisoners' incoming
publications unless the censorship is reasonably related to a legitimate penological interest,”
citing Pell v. Procunier, 417 U.S. 817, 822 (1974). But Pell – which held that a prison
regulation prohibiting media interviews with inmates was not unconstitutional because the
inmates retained alternative means of communicating and exercising their First Amendment
rights -- predates several pertinent legal developments, including Thornburgh’s adoption of the
Turner standard for evaluating prison regulations on inmate First Amendment rights, and the
development of the specificity requirement of the qualified immunity analysis, among others. (It
is also worth noting that Brackeen was decided at the motion to dismiss stage, when the precise
nature of the content confiscated pursuant to AR 300-26 was presented.)
On the one hand, as this Court previously explained in its February 2021 Opinion, there
is scant 10th Circuit authority that implies, by negative inference, that prison officials should be
aware that confiscation of non-explicit photos of women in panties and swimsuits, like those
sought by Mr. Griffin here, would violate the First Amendment. Citing Elliott v. Cummings, 49
Fed.Appx. 220 (10th Cir. 2002). And, the Defendants’ most recent briefing notwithstanding, the
Court remains troubled that the Defendants misapplication of the definitions of AR 300-26 to the
images in question was so manifestly inappropriate as to present an "obvious” violation of Mr.
Griffin’s rights. Even in their most recent briefing, the Defendants present arguments that distort

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Neither party objected to the Recommendation and Judge Jackson summarily adopted it.
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the factual record and the language of AR 300-26, sometimes in patently-absurd ways. For
example, they argue that Image 3, a photograph of what appears to be professional football
cheerleaders performing during a game, could arguably have been properly deemed contraband
under AR 300-26 because “the purpose of cheerleading is to display young women in revealing
costumes and it could reasonably be interpreted to be a ‘sadistic practice” under the definition in
that regulation. They argue that the other images are “highly suggestive of sexual intercourse” or
are “sexually evocative,” ignoring the fact that AR 300-26 does not use “suggestive of” or
“evocative of” as its definitions, but instead limits its reach to “actual or simulated” sexual
activity. The Court continues to be concerned that, rather than applying the definitions of AR
300-26 to the subject photographs, the Defendants instead first concluded that the photos were
too “suggestive” and should be censored, then set about finding a justification within AR 300-26
to support that conclusion.
But, as the Defendants point out, the 10th Circuit is reluctant to deem its own
unpublished opinions, like Elliott, to suffice to “clearly establish” a proposition for qualified
immunity purposes. See Grissom v. Roberts, 902 F.3d 1162, 1168 (10th Cir. 2018) (“[a]n
unpublished opinion ... provides little support for the notion that the law is clearly established on
[a] point”). And cases like Wesby and Grissom make clear that, for the law to “clearly establish”
a constitutional violation, the clarity of the law must be to the degree that the obviousness of the
violation must be “beyond debate” among any reasonable officials. Here, although the Court
rejects the Defendants’ suggestion that the images in question present a “close call” as to
whether they violated AR 300-26 or not, the Court is prepared to say that it is a “close call” as to
whether every reasonable prison official would necessarily agree that such a conclusion is
obvious. As Judge Carman explained in Ybanez, qualified immunity requires a prison official to
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have transgressed a “bright line,” not merely made a “bad guess[ ] in [a] gray area.” This Court
has some doubt that there is that much “gray” in AR 300-26 (much less that the Defendants
made a “bad guess,” rather than an attempt to justify a predetermined conclusion when applying
it). But cases like Ybanez and Frazier that grant qualified immunity to prison officials in similar
circumstances kick up enough dust to cause some degree of “graying” of what might otherwise
be a bright line.
Accordingly, the Court vacates that portion of its February 2021 Opinion that finds that
the Defendants are not entitled to qualified immunity. Instead, finding that Mr. Griffin has not
shown that it was “clearly established” that their actions would deprive him of his constitutional
rights, the Court finds that the Defendants are entitled to qualified immunity on Mr. Griffin’s
claim against them for money damages.4
For the foregoing reasons, the Court GRANTS IN PART and DENIES IN PART
summary judgment to Mr. Griffin on his claims against the Defendants as follows. The
Defendants are entitled to summary judgment on Mr. Griffin’s claims against them for money
damages. However, the Court grants summary judgment to Mr. Griffin and against the
Defendants insofar as the Defendants are enjoined and directed to provide Mr. Griffin with the
photographs identified previously as Images 3, 5, 6, and 7, and to do so within 7 days of the date

As noted in the February 2021 Opinion, the extent of those monetary damages would be
limited to nominal damages -- $1 per Defendant – in any event.
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of this Order. The Clerk of the Court shall enter judgment consistent with this Order and
thereafter close this case.
Dated this 19th day of March, 2021.
BY THE COURT:

Marcia S. Krieger
Senior United States District Judge

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