ROWE v. FINNAN et al

Filing 131

ENTRY Discussing Cross Motions for Summary Judgment - For the reasons explained later in this Entry and in the interest of clarity, the Indiana Department of Correction is now substituted for the individual defendants named in their official ca pacities as to the RLUIPA claims. The only remaining remedies Rowe is entitled to seek in this action for the alleged RLUIPA violations are equitable in nature. If Rowe requests counsel to represent him at the bench trial of this action, the court will undertake efforts to attempt to recruit counsel to represent him for that purpose. Rowe shall have through March 20, 2014, to make such a request. Consistent with the foregoing, the plaintiff's motion for summary judgment [dkt. 128 ] is denied and the defendants' motion for summary judgment [dkt. 89 ] is granted in part and denied in part. No partial final judgment shall issue at this time as to the claims resolved in this Entry. ***SEE ORDER***. Signed by Judge Jane Magnus -Stinson on 3/3/2014. (Attachments: # 1 Exhibit A - Zero Tolerence STG Policy, # 2 Exhibit B - Offender Visitation Policy, # 3 Exhibit C - Segregation Correspondence Policy, # 4 Exhibit D - Item Censorship, # 5 Exhibit E - Religious Handbook, # 6 Exhibit F - Aryan Nations Standard)(JKS)

POLICY AND ADMINISTRATIVE PROCEDURES
Indiana Department of Correction

Manual of Policies and Procedures
Number

Effective Date

02-01-103

09/01/09

Page

Total Pages

20

24

Title

OFFENDER CORRESPONDENCE
XIX. PRINTED MATTER:
An offender may acquire or possess printed matter on any subject. However,
printed matter shall be inspected and may be excluded if the matter is contraband
or prohibited property. An offender must receive printed matter mailed directly
from the publisher, the distributor or an accredited institution of higher learning,
unless the offender or the sender receives prior approval from the Facility Head to
receive the printed matter from another source.
Printed matter which threatens the security of the facility or program, contains
multiple copies or has an invoice indicating an amount due shall be considered
prohibited property. Examples of the types of publications or materials that are
considered prohibited property and shall be excluded include, but are not limited
to, those:
A.

Depicting or describing procedures for the construction or use of weapons,
ammunition, bombs or incendiary devices;

B.

Depicting, describing or encouraging methods of escape from correctional
facilities, or contains blueprints, drawings or similar descriptions of
correctional facilities;

C.

Depicting or describing procedures for the brewing of alcoholic beverages
or the manufacture of drugs;

D.

Written in code;

E.

Depicting, describing or encouraging activities which may lead to the use
of physical violence or group disruption;

F.

Encouraging or instructing in the commission of criminal activity; or,

G.

Any publication that features nudity or any other material depicting
nudity.
The term “nudity” means a pictorial depiction where genitalia or female
breasts are exposed.
The term “features” means the publication contains depictions of nudity or
sexually explicit conduct on a routine or regular basis or
promotes itself based upon such depictions in the case of individual onetime issues. The following are examples of commercial publications
which, based on current practices of the publisher, may be distributed to

POLICY AND ADMINISTRATIVE PROCEDURES
Indiana Department of Correction

Manual of Policies and Procedures
Number

Effective Date

02-01-103

09/01/09

Page

Total Pages

21

24

Title

OFFENDER CORRESPONDENCE
inmates even though they may contain nudity because the publication does
not feature nudity as defined above:
x
x
x
x

National Geographic
Our Body, Our Selves
Sports magazine swimsuit issues
Lingerie catalogues

Any publication may change a single issue or its general policies and
practices at any time which would make it acceptable or unacceptable for
distribution. The above examples are guidelines only and are subject to
change.
For purposes of this section, written text in the publication does not
qualify a publication as containing nudity.
This prohibition includes personal photographs of nude persons, as well as
photographs of nude persons taken from books, magazines, electronic
media, or other sources, that are sent to offenders in or with letters or other
mailings. Printed materials that contain nudity for educational, medical or
anthropological purposes are not included in this prohibition; however,
they shall be reviewed on a case by case basis to ensure that they are in
compliance with these administrative procedures.
H.

Containing sexually explicit material which by its nature or content poses
a threat to the security, good order or discipline of the facility or facilitates
criminal activity.
The term “sexually explicit” means a pictorial depiction of actual or
simulated sex acts including sexual intercourse, oral sex, or
masturbation.
For purposes of this section, written text in the publication does
not qualify a publication as sexually explicit.
However,
publications with a sexual content will be reviewed on a case by
case basis and are subject to exclusion if they pose a threat to the
security or good order of the facility or facilitate criminal activity.
Such publications may include those that contain printed or
written depictions of:
x
x

Deviate sexual conduct (as defined in IC 35-42-4-2);
Exhibition of the uncovered genitals in the context of
masturbation of other sexual activity;

POLICY AND ADMINISTRATIVE PROCEDURES
Indiana Department of Correction

Manual of Policies and Procedures
Number

Effective Date

02-01-103

09/01/09

Page

Total Pages

22

24

Title

OFFENDER CORRESPONDENCE
x
x
x
x

Exhibition of the uncovered genitals of a person who appears
to be under sixteen (16) years of age;
Sado-masochistic abuse (as defined in IC 35-49-1-8); or,
Sexual intercourse or deviate sexual conduct with an animal;
Sexual conduct or sexual acts that are in violation of state or
federal statutes (e.g. rape, child molesting or exploitation,
vicarious sexual gratification, sexual battery, incest).

Printed matter that has been edited by the publisher, distributor or another
person in an attempt to circumvent the prohibition of sexually explicit
materials may not meet the requirements of these administrative
procedures. If the edited printed material still depicts sexual conduct that
is not approved by these administrative procedures, the printed matter
shall be withheld from the offender.
Printed matter may not be excluded from an adult facility solely on the
grounds that it is obscene or pornographic, unless it is obscene under
Indiana law.
Printed matter that does not meet the Department’s standards may be
excluded only on an issue by issue basis. Printed matter obtained at a cost
for an offender must be pre-paid.
If it is determined that a portion of a publication is to be excluded from a
facility in accordance with the previous procedure, the entire publication
shall be excluded. Staff shall not attempt to remove the offending portions
of the publication and give the remainder to the offender. The offender
shall be advised that the publication is to be excluded. The offender shall
be provided with a State Form 21682 and allowed to determine a
disposition for the excluded publication.
Printed matter that is received at a facility that contains unsolicited items
that are considered prohibited property (such as computer disks, stickers,
music compact disks, etc.) or unsolicited advertisements that are not
appropriate shall be confiscated and not delivered to the offender. Staff
shall notify the offender of the inappropriate items. If the item can be
removed from the printed matter without damaging or destroying the
printed matter, the offender shall be given the option to accept the printed
matter without the objectionable item or sending the entire printed matter
out of the facility. If the offender decides to accept the printed matter
without the objectionable item, the offender shall be required to authorize
the facility to dispose of the item in the most appropriate manner.

POLICY AND ADMINISTRATIVE PROCEDURES
Indiana Department of Correction

Manual of Policies and Procedures
Number

Effective Date

02-01-103

Page

09/01/09

Total Pages

23

24

Title

OFFENDER CORRESPONDENCE
An offender may file a grievance regarding the exclusion of printed
matter. If the offender files a grievance, the facility shall hold the
confiscated printed matter pending the resolution of the grievance. If the
offender grieves to the Regional Director/Operations level, the facility
shall ensure that an adequate description of the printed matter is sent to the
reviewing authority so that a decision may be rendered. If the reviewing
authority does not believe that the description is adequate to make a
decision, the reviewing authority may request that the confiscated printed
matter be sent to Central Office for review. If the decision of the Regional
Director/Operations is to uphold the decision of the facility, in addition to
notifying the offender and facility in accordance with the Offender
Grievance Process, the Deputy Commissioner/Operations, if not the
person making the decision, shall be notified. Upon notification, the
Deputy Commissioner or designee shall notify all facilities that the printed
matter has been excluded so that there will be consistency in regards to the
printed matter that is permitted in the facilities.
XX.

DISPOSITION OF EXCLUDED OR CONFISCATED CORRESPONDENCE:
The disposition of excluded or confiscated correspondence may be challenged by
an offender in accordance with policy 00-02-301, "The Offender Grievance
Process," unless otherwise directed by an order of a court.
Correspondence that is excluded or confiscated shall be retained pending
exhaustion of the grievance process. If the correspondence is found to be
legitimately confiscated or excluded, it shall be disposed of in accordance with:
A.

Safety and security of the facility or program;

B.

Any applicable statute or promulgated rule; and,

C.

Convenience of the department.

Prior to the disposition of the correspondence, or property that has been removed
from correspondence, the facility shall ensure the offender has the opportunity to
indicate the preferred disposition. State Form 21682, DISPOSITION OF
OFFENDER PERSONAL PROPERTY/CORRESPONDENCE, shall be
completed and signed by the offender, in the presence of staff, prior to the
disposition. In those cases where the offender refuses to complete State Form
21682, staff shall indicate this refusal on the form. The completed State Form
21682 shall be filed in the offender's facility packet. Should the confiscated or
excluded property be determined to be contraband, the facility shall not be
required to follow this procedure.