Smith v. Fabian et al
Filing
60
MEMORANDUM OPINION AND ORDER (1) adopting Magistrate Judge's 57 Report and Recommendation. (2) granting defendants Anita Alexander, Joan Fabian, Mary Jiperez, John King, June Lind, Mary McComb, Lei gh McCoy, and Dave Reishus' 38 Motion to Dismiss and for for Summary Judgment. (3) dismissing without prejudice plaintiff's claims against defendants Eric Skon, Lynn Dingle, Joseph Cosgrove, James Benson, and Helene Haworth. (4) plaintiff's complaint is dismissed (Written Opinion). Signed by Judge John R. Tunheim on March 26, 2012. (DML) CC: Smith. (kt)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
CARLOS SMITH,
Civil No. 10-2193 (JRT/TNL)
Plaintiff,
v.
JOAN FABIAN, ERIC SKON,
LYNN DINGLE, MARY MCCOMB,
ANITA ALEXANDER,
JOSEPH COSGROVE,
JAMES BENSON, MARY JIPEREZ,
HELENE HAWORTH, JUNE LIND,
LEIGH MCCOY, JOHN KING, and
DAVE REISHUS,
Defendants.
MEMORANDUM OPINION AND
ORDER ADOPTING THE REPORT
& RECOMMENDATION OF THE
MAGISTRATE JUDGE
Carlos Smith, #177289, Minnesota Correctional Facility-Stillwater, 970
Pickett Street North, Bayport, MN 55003, plaintiff pro se.
Margaret E. Jacot, Assistant Attorney General, MINNESOTA
ATTORNEY GENERAL’S OFFICE, 445 Minnesota Street, Suite 900,
St. Paul, MN 55101, for defendants Joan Fabian, Mary McComb, Anita
Alexander, Mary Jjperez, June Lind, Leigh McCoy, John King, and Dave
Reishus.
A prisoner incarcerated at the Minnesota Correctional Facility at Stillwater
(“MCF-STW”), plaintiff Carlos Smith, brings this action under 42 U.S.C. § 1983,
alleging First and Fourteenth Amendment constitutional violations. He challenges the
Minnesota Department of Corrections (“MN-DOC”) Contraband Policy 301.030 and
Mail Policy 302.020, which prohibit the delivery of certain sexually explicit material to
prisoners. On August 30, 2011, Defendants Anita Alexander, Joan Fabian, Mary Jiperez,
23&SR
John King, June Lind, Mary McComb, Leigh McCoy, Dave Reishus (collectively,
“Defendants”) filed motions to dismiss and for summary judgment. On January 25,
2012, United States Magistrate Judge Tony N. Leung issued a Report and
Recommendation (“R&R”) recommending that the Court grant Defendants’ motions.
(R&R, Docket No. 57.) The Court has conducted a de novo review of those portions of
the R&R to which Smith objects1 and carefully reviewed the submitted materials. The
Court will overrule Smith’s objections and adopt the R&R in its entirety because there
are no genuine issues of material fact regarding Smith’s claims.
BACKGROUND2
Smith challenges MN-DOC Contraband Policy 301.030 and Mail Policy 302.020.
Policy 302.020 states that “[i]ncoming and outgoing mail, in whole or in part, is not
authorized if it . . . contains contraband or pertains to sending contraband into or out of
the facility[.]” (Pl.’s Resp. to Defs.’ Mot. to Dismiss, Exs. B19 and B20, at 42-43,
Nov. 15, 2010, Docket No. 13.) MN-DOC Contraband Policy 301.030 includes the
definitions and procedures relating to “contraband.” (Id. at 48-51.)
In 2004, MN-DOC amended the section of its contraband policy banning the
distribution of certain sexually explicit material. (Aff. of Mary McComb ¶¶ 5-6, Aug. 30,
2011, Docket No. 44.) MN-DOC made this amendment in order to consolidate and
1
The Court will discuss only the specific objections raised by Smith. See 28 U.S.C.
§ 636(b)(1)(C); Fed. R. Civ. P. 72(b); D. Minn. L.R. 72.2(b).
2
A more thorough factual background is available in the R&R.
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streamline its policies and because of an increase in the number of “offensive”
photographs being sent to prisoners. (Id. ¶ 6.) The amended MN-DOC Contraband
Policy 301.030 defines sexually explicit materials as:
(1) all materials that contain pictorial depictions of sexual activity;
(2) published materials featuring nudity or written depictions of sexual
activity, unless such depictions illustrate medical, educational, or
anthropological content;
(3) non-published materials that contain pictorial depictions of nudity
(including but not limited to pictures, photographs, internet printings,
and drawings); and
(4) non-published materials containing written depictions of sexual activity
that, based on an individualized review, are determined to constitute a
risk to the safety and security of the facility, facilitate criminal activity,
or undermine offender rehabilitation; but
(5) excluding materials issued by facility treatment staff to an offender
currently participating in a sex offender treatment program.
(Id. ¶ 5, Ex. A at 1-2.) Nudity is defined as:
the showing (including a see-through covering) of human male or female
genitals, anus or pubic area or the showing (including a see-through
covering) of the female breast or a substantial portion of the breast below
the top of the nipple. Examples of see-through coverings that are not
permitted include ‘pasties,’ lace, mesh, and body paint through which the
covered area is showing.
(Id.) Any single photograph containing nudity is contraband. (Id. ¶ 9.) Publications are
generally only contraband if they “feature” nudity, such as containing a large number of
nude images or highlighting nude images on the front cover. (Id.)
Published written descriptions of sexual activity are contraband when the
publication’s main subject matter is sexual in nature and most, if not all, of the content
-3-
contains repeated and lengthy descriptions of sexual activity.
(Id. ¶ 11.)
Written
descriptions of sexual activity in personal correspondence are only considered contraband
if they constitute a risk to the safety and security of the facility, undermine offender
rehabilitation, or facilitate criminal activity.
(Id.)
Examples of letters considered
contraband include those involving violence, including rape, or sexual letters to minors.
(Id.)
Security Threat Group (“STG”) paraphernalia, which includes materials associated
with gangs, is also contraband. (Id. ¶ 21, Ex. A at 1-2.) STG paraphernalia can include
magazines, pictures, posters, clothing, and symbols associated with gangs. (Id. ¶ 21,
Ex. E.)
Smith claims that Defendants denied him the delivery of magazines such as King,
Smooth, and Smooth Girl, for which he had subscriptions. (See Pl’s Resp., Ex. B16, at
20; Aff. of Margaret Jacot, Ex. B, at 12, Aug. 30, 2011, Docket No. 41.)3 Smith is
African American and states that the aforementioned publications “cater to the African
American male audience.” (See Pl. Resp. ¶ 1(c).) MN-DOC only maintains records of
the denial of mail for one year, and it does not have any record of denying Smith these
magazines during the last year. (Aff. of Mary Perez ¶¶ 4, 6, Aug. 30, 2011, Docket
No. 45.) Smith further claims that MN-DOC delivers similar magazines which allegedly
cater to white men, such as Maxim, GQ, and Rolling Stone. (See Pl. Resp. ¶ 2(a).) The
record includes affidavits from other African American prisoners complaining that MN-
3
Smith also complained that Defendants denied him photographs and a copy of the book
Addicted. (Jacot Aff., Ex. B, at 11-12.)
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DOC withholds sexually explicit material in a discriminatory fashion, as well as samples
of MN-DOC records sent to prisoners informing them of withheld mail. (Id., Exs. A-1B-18.) Smith does not describe, however, specific issues of allegedly African American
publications that MN-DOC has withheld that are comparable to specific issues of
allegedly white publications that MN-DOC has distributed. Defendants submitted to the
Court copies of magazines it has withheld featuring African American women, such as
the July/August 2008 issue of King, and featuring white women, such as the June 2011
issue of American Curves. (McComb Aff., Exs. F-H.)
ANALYSIS
I.
STANDARD OF REVIEW
Defendants move for dismissal and summary judgment. Reviewing a complaint
under a Rule 12(b)(6) motion to dismiss, the Court considers all facts alleged in the
complaint as true, and construes the pleadings in a light most favorable to the nonmoving party. See, e.g., Turner v. Holbrook, 278 F.3d 754, 757 (8th Cir. 2002). To
survive a motion to dismiss, however, a complaint must provide more than “‘labels and
conclusions’ or ‘a formulaic recitation of the elements of a cause of action . . . .’”
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). That is, to avoid dismissal, a complaint must include “sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id.
(internal quotation marks omitted). “A claim has facial plausibility when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the
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defendant is liable for the misconduct alleged.” Id. “Where a complaint pleads facts that
are merely consistent with a defendant’s liability, it stops short of the line between
possibility and plausibility,” and therefore must be dismissed. Id. (internal quotation
marks omitted). At the motion to dismiss stage, the record for review before the Court is
generally limited to the pleadings, some matters that are part of the public record, and any
documents attached as exhibits that are necessarily embraced by the complaint. Porous
Media Corp. v. Pall Corp., 186 F.3d 1077, 1079 (8th Cir. 1999).
Summary judgment is appropriate where there are no genuine issues of material
fact and the moving party demonstrates that it is entitled to judgment as a matter of law.
Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit, and a
dispute is genuine if the evidence is such that it could lead a reasonable jury to return a
verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
court considering a motion for summary judgment must view the facts in the light most
favorable to the non-moving party and give that party the benefit of all reasonable
inferences that can be drawn from those facts. See Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986).
II.
OFFICIAL CAPACITY CLAIMS AND ELEVENTH AMENDMENT
Smith first objects to the Magistrate Judge’s recommendation that this Court
dismiss Smith’s damages claims against Defendants, pursuant to the Eleventh
Amendment.
Specifically, Smith objects that Mary McComb is a proper defendant
because she was personally involved in the matters involved in his complaint. (Obj. at 3.)
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He also contends that Tom Roy is legally liable for all MN-DOC staff, and so should be
held liable.4 (Id.) The Court must determine whether Smith’s damages claims against
Defendants are barred by sovereign immunity.
A.
Standard of Review
The doctrine of sovereign immunity, embodied in the Eleventh Amendment,
protects states and state officials from liability in actions seeking monetary damages
where the state treasury would pay such damages. U.S. Const. amend. XI; Hans v.
Louisiana, 134 U.S. 1, 15 (1890) (holding that states are immune from suits by their own
citizens). “Under the doctrine of Ex parte Young, 209 U.S. 123 (1908), a federal court
retains jurisdiction, notwithstanding the Eleventh Amendment, to direct State officials to
conform their practices to the requirements of Federal law . . . [but not to order] monetary
damages from individual State Officers, in their official capacities . . . .” King v. Dingle,
702 F. Supp. 2d 1049, 1069 (D. Minn. 2010). A state or state official may be held liable
for money damages only if the state has waived its immunity through a clear and express
waiver or if Congress has abrogated that immunity. Alden v. Maine, 527 U.S. 706, 756
(1999); Edelman v. Jordan, 415 U.S. 651, 673 (1974). This Court has previously noted
that “the State of Minnesota has [not] waived its Eleventh Amendment immunity with
respect to §§ 1981 or 1983 claims. Additionally, in enacting §§ 1981 and 1983, Congress
4
The Court adopts the Magistrate Judge’s recommendations that Tom Roy be substituted
for Defendant Joan Fabian, as Roy is the new Commissioner of the Minnesota Department of
Corrections, and that Defendants Eric Skon, Lynn Dingle, Joseph Cosgrove, James Benson,
Helene Haworth be dismissed because they were not served. (See R&R at 1 n.1, 9.) Smith has
not asserted specific objections to these recommendations.
-7-
did not make a clear statement of intent to abrogate states’ Eleventh Amendment
immunity.” Stahl Const. Co. v. State of Minn., No. 03-3104, 2004 WL 742058, at *3
(D. Minn. March 4, 2004).
B.
Analysis
The Court finds that Defendants are not liable for money damages because of the
Eleventh Amendment. Because Smith did not identify the capacity upon which he sued
Defendants, the Court must assume that Smith sued them in their official capacities. See
Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999). Smith’s claims
for damages against Defendants in their official capacities are barred because Congress
did not disturb Eleventh Amendment immunity in enacting Section 1983 and because the
state has not waived its immunity. See Stahl Const. Co., 2004 WL 742058, at *3. The
dismissal of Smith’s damages claims is appropriate under both the motion to dismiss and
summary judgment standards because Smith has failed to state viable claims.
Smith also seeks declaratory and injunctive relief barring Defendants’ policies,
however; because these claims are not barred by the Eleventh Amendment, the Court will
address them below. See Nix v. Norman, 879 F.2d 429, 432-33 (8th Cir. 1989) (“A state
agent, however, may be sued in his official capacity if the plaintiff merely seeks
injunctive or prospective relief for a legally cognizable claim.”).
III.
FIRST AMENDMENT
Smith objects to the Magistrate Judge’s conclusion that MN-DOC’s policies did
not violate his First Amendment rights.
Smith’s objections primarily aim at the
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Magistrate Judge’s finding that a valid, rational connection exists between the challenged
MN-DOC policies on sexually explicit material and legitimate governmental interests.
MN-DOC put forward three justifications for its policies: that access to the sexually
explicit material (1) creates a security risk; (2) interferes with sex offender rehabilitation;
and (3) generates a hostile work environment for MN-DOC staff. The Magistrate Judge
found each of these asserted governmental interests to be legitimate and held that a
“valid, rational connection” existed between these interests and the challenged policies.
(R&R at 17-20.) The Court must determine, then, whether Defendant’s policies are
reasonably related to legitimate penological interests.
A.
Standard of Review
Under the First Amendment, “as a general matter, government has no power to
restrict expression because of its message, its ideas, its subject matter, or its content.”
Brown v. Entm’t Merch. Ass’n, 131 S. Ct. 2729, 2733 (2011) (internal quotation marks
omitted). Prisoners are not stripped of these constitutional protections. See Turner v.
Safley, 482 U.S. 78, 84 (1987). However, courts apply a deferential standard of review to
constitutional challenges to prison regulations. Id. at 84-85. “[P]rison administrators are
accorded wide-ranging deference in the adoption and execution of policies and practices
that in their judgment are needed to preserve internal order and discipline and to maintain
institutional security.” Spence v. Farrier, 807 F.2d 753, 755 (8th Cir. 1986).
Courts will uphold a constitutional challenge to a prison regulation if the
regulation is “reasonably related to legitimate penological interests.” Turner, 482 U.S. at
-9-
89. Courts use a four-part test to determine if a regulation is reasonably related to
legitimate penological interests: (1) whether a “valid, rational connection” exists between
the prison regulation and the legitimate governmental interest5 put forward to justify it;
(2) “whether there are alternative means of exercising the [constitutional] 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.”6 Id. at 89-90. The
Court will address Smith’s First Amendment claims using the summary judgment
standard: it is necessary to consider the parties’ evidence to determine if the disputed
policies are “reasonably related to legitimate penological interests.”
B.
Analysis
Considering the evidence submitted by the parties, the Court finds that
Defendants’ policies are reasonably related to legitimate penological interests.
See
Hodgson v. Fabian, 378 Fed. Appx. 592, 594 (8th Cir. 2010) (rejecting facial challenge to
MN-DOC Contraband Policy 301.030 because the Eighth Circuit had “previously
recognized a government interest in similar regulations” related to sexually explicit
5
The objective of the regulation must be neutral, without regard to the content of the
expression. Id. at 90. An objective is neutral if it furthers important governmental interests
unrelated to the suppression of expression. Thornburgh v. Abbott, 490 U.S. 401, 415-16 (1989)
(holding that where regulations “draw distinctions between publications solely on the basis of
their potential implications for prison security, the regulations are ‘neutral’ . . . .”).
6
The fourth factor is not a “least restrictive alternative test;” rather, “if an inmate
claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis
cost to valid penological interests, a court may consider that as evidence that the regulation does
not satisfy the reasonable relationship standard.” Id. at 91.
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material); Hodgson v. Fabian, 2009 WL 2972862, at *2 (D. Minn. 2009) (quoting MNDOC Contraband Policy 301.030). Specifically, the Court finds that the three rationales
put forward by Defendants sufficiently support the challenged MN-DOC policies.
First, access to the sexually explicit material at issue poses a security risk because
it contributes to inmate bartering and assaults. See Zenanko v. LaFleur, 228 F.3d 933,
933 (8th Cir. 2000) (recognizing legitimate penological interests of safety and security).
Smith argues that inmates will barter for anything of value, not just sexually explicit
material, and that Defendants have no empirical evidence that safety is compromised by
the presence of sexually explicit material. (Obj. at 3-4.) The Court overrules this
objection because Defendants do not base their claims of a security risk on mere
conjecture, but on the affidavit of Mary McComb.7
As the Associate Warden of
Administration at MCF-STW, McComb has knowledge of the effect of sexually explicit
material at MCF-STW. McComb states that inmates have used sexually explicit material
in the past to buy canteen items or to pay gambling debts. (McComb Aff. ¶ 2.) She
further states that indebtedness leads to assaults in prison and creates tension among
offenders. (Id.) Due to the connection between sexually explicit material, indebtedness,
and assaults, the Court finds that Defendants have established a security risk posed by the
sexually explicit material.
See Spence, 807 F.2d at 755 (discussing “wide-ranging
deference” due to prison officials).
7
Furthermore, “[p]rison officials need not endure assaults . . . or sexual improprieties
before implementing policies designed to prevent such activities in an uneasy atmosphere.”
Fowler v. Crawford, 534 F.3d 931, 939 (8th Cir. 2008).
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Second, the sexually explicit material interferes with sex offender rehabilitation.
See Sperry v. Werholtz, No. 04-3125-CM, 2010 WL 1980305, at *8 (D. Kan. May 18,
2010) (recognizing legitimate penological interest of rehabilitating sex offenders). Smith
objects that MCF-STW has no rehabilitation programs designed specifically for sex
offenders.
(Obj. at 2.)
However, state facilities, including MCF-STW, house sex
offenders and seek to rehabilitate sex offenders during their imprisonment.
(See
McComb Aff. ¶ 3.) McComb states that, once sexually explicit images enter a prison, the
materials can infiltrate the entire facility and find their way to sex offenders. (Id.) The
Court finds that keeping these sexually explicit images from sex offenders is a legitimate
penological interest.
See Dawson v. Scurr, 986 F.2d 257, 260-61 (8th Cir. 1993)
(allowing restriction on sexually explicit material where “[if] the specified depictions
were allowed in the cells of some inmates, they would likely be passed around and find
their way into the cells of psychologically unfit inmates, interfering with their
rehabilitation.”).8
Third, the sexually explicit material facilitates a hostile work environment for
staff. See Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (en banc) (“[T]here is no
doubt that protecting the safety of guards in general is a legitimate interest, and that
reducing sexual harassment in particular likewise is legitimate.”). Smith objects to this
8
See also Wickner v. McComb, No. 09-1219, 2010 WL 3396918, at *5 (D. Minn.
July 23, 2010) (observing that rehabilitating sex offenders is a legitimate penological interest);
Ramirez v. Pugh, 379 F.3d 122, 129 (3d Cir. 2004) (holding that some connections between
policies and penological interests are “sufficiently obvious such that the first prong of Turner
could be resolved on the basis of common sense.”).
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finding by making a variety of unsupported factual assertions, including: that female staff
were not subjected to inmates exposing themselves until prisoners lost access to the
sexually explicit material; that female staff dress in tight clothing, which, according to
Smith, makes them responsible for a hostile work environment; and that MN-DOC staff
are not strongly offended by nudity. (Obj. at 2-3.) These allegations are unsupported by
the record. McComb’s affidavit establishes that inmates have made comments about how
female staff compare to sexually explicit images, that inmates have used images to
engage in sexual misconduct in front of female staff and to sexually harass female staff,
and that staff have complained about the sexually explicit materials to which they are
exposed in the workplace. (McComb Aff. ¶ 5.) Smith’s unsupported objections to this
information do not raise a genuine question of material fact. See Goff v. Dailey, 991 F.2d
1437, 1439 (8th Cir. 1993) (“[T]he prison has a legitimate penological interest in
punishing inmates for mocking and challenging correctional officers by making crude
personal statements about them in a . . . room full of other inmates.”).
Finally, Smith makes a general objection that the policies are an “exaggerated
response” and do not further an important governmental interest. (Obj. at 3.) Construed
broadly, the Court interprets this objection to challenge whether there is a ready
alternative to the current ban on sexually explicit material. See Turner, 482 U.S. at 90
(“[T]he existence of obvious, easy alternatives may be evidence that the regulation is not
reasonable, but is an ‘exaggerated response’ to prison concerns.”). The Court adopts the
Magistrate Judge’s conclusion that there is no ready alternative that would meet MNDOC’s legitimate penological interests without imposing an undue burden on staff. It
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would be unduly time consuming to require MN-DOC staff to rip out pages of magazines
with offending images, particularly given the large quantities of magazines and other
sexually explicit material sent to inmates.9 Furthermore, there is no evidence that a less
restrictive definition of “nudity” would achieve Defendants’ goals of decreasing the
bartering of images and sexual harassment and avoiding interference with sex offender
treatment. See id. at 91 (stating that an alternative is acceptable if it creates a “de minimis
cost to valid penological interests.”).10 Accordingly, the Court finds that Defendants did
not violate Smith’s First Amendment rights.
IV.
EQUAL PROTECTION
Smith next objects to the Magistrate Judge’s recommendation that this Court
dismiss his equal protection claim. Smith contends that Defendants created policies that
targeted African American inmates and their desired publications. Smith mounts both
facial and as-applied challenges, and claims that Defendants’ policies ban “Black
publications” but allows “white publications,” even when both sets of magazines contain
similar sexual or gang-related content. (Obj. at 4.) He also argues that the policies are
9
See McComb Aff. ¶¶ 6 (stating that MN-DOC “attempted to craft a nudity definition
that contained clear language that could be applied consistently and quickly to minimize the
amount of time mailroom staff would have to spend looking at a photograph before deciding
whether to deny delivery.”), 14 (explaining the centralized review process created due to the
large number of magazines delivered to inmates).
10
It is possible that Smith may be entitled to access some of the sexually explicit material
in another fashion, such as in a library. Smith has not proposed such an alternative, however.
The Court declines to consider it because the parties have not submitted evidence on the
propriety of such an alternative and because Smith challenged the failure of Defendants to
deliver sexually explicit material to him pursuant to MN-DOC Contraband Policy 302.020.
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purposefully discriminatory. As proof of discriminatory purpose, Smith claims that
McComb’s affidavit displays racism. He further claims that MN-DOC implemented the
amendments to the contraband policy regarding sexually explicit material only when
African American men began viewing certain pornographic or other materials, and that
this “proximity in time” shows a discriminatory purpose. (Id.) The Court must decide
whether Smith has stated an equal protection claim.
A.
Standard of Review
When analyzing a claim under the Equal Protection Clause, the Court must first
address whether the plaintiff was treated differently than others who were similarly
situated. Klinger v. Dept. of Corrs., 31 F.3d 727, 731 (8th Cir. 1994). “Absent a
threshold showing that [he] is similarly situated to those who allegedly receive favorable
treatment, the plaintiff does not have a viable equal protection claim.” Id. Second, the
Court must address whether the discrimination was purposeful.
Id. at 733 (citing
Personnel Adm’r of Mass. v. Feeney, 442 U.S. 256, 274 (1979)); Foster v. Wyrick, 823
F.2d 218, 221 (8th Cir. 1987) (“[p]roof of discriminatory racial purpose is required to
establish an equal protection violation”).
The Court will analyze Smith’s equal
protection claim using the summary judgment standard because it is necessary to consider
the parties’ evidence to determine if Smith raised a genuine issue of material fact.
A.
Disparate Treatment
First, Smith has not raised a fact question regarding whether Defendants treated
him differently than similarly situated individuals. As a preliminary matter, the Court
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finds that Smith is similarly situated to other prisoners at MCF-STW. All are prisoners
and many order publications and photos that MCF-STW withholds.
Smith has not offered evidence to prove that Defendants treated him differently
than these other prisoners. MCF-STW’s policies does not mention race, nor do they
imply that enforcement personnel should consider race when implementing these
policies. Furthermore, Smith has provided only conclusory statements, and no evidence,
to show that publications desired by African American prisoners are treated differently
than similar publications desired by white prisoners. For example, Smith has provided no
example of two specific and similar magazine issues that Defendants treated differently.
In contrast, Defendants submitted to the Court magazines featuring similar levels
of undress that MN-STW labeled as “contraband,” including a magazine featuring white
women. (McComb Aff., Exs. F-H.) MCF-STW records show that MCF-STW refused to
distribute multiple issues of allegedly white magazines and approved multiple issues of
allegedly African American magazines. (Perez Aff. ¶¶ 8-9.) The evidence thus suggests
that MCF-STW treats all prisoners and publications equally and that bans on publications
depend on race-neutral content. (See Aff. of Leigh McCoy ¶ 2, Aug. 30, 2011, Docket
No. 43; Perez Aff. ¶ 11; McComb Aff. ¶ 8.) The Court thus finds no genuine issue of
material fact regarding Smith’s disparate treatment claim.
B.
Discriminatory Purpose
Even if Smith could show that MCF-STW treated him differently than other
similarly situated prisoners, nothing in the record indicates that MCF-STW purposely
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discriminated against Smith due to his race. Although Smith contends that the McComb
affidavit displays “invidious[] discriminat[ion],” Smith does not cite to any explicit or
implicit discriminatory purpose apparent within McComb’s affidavit.
In fact, the
affidavit states that “STG content in magazines crosses all racial lines [and MCF-STW]
does not categorize magazines by race.” (McComb Aff. ¶¶ 23, 28.) The Court thus finds
that the McComb affidavit does not demonstrate a discriminatory purpose.
The Court also finds nothing in the record, other than Smith’s conclusory
statements, to indicate that Defendants revised their policies because of an influx of
allegedly African American publications.11 Defendants contend that MN-DOC revised
its policies in 2004 to streamline and consolidate them and because of the increased
number of nude photographs. (Id. ¶ 5, Ex. B.) The Court finds no genuine issue of
material fact regarding Smith’s claim that there was a temporal connection between an
influx of African American publications and the disputed policies. Accordingly, the
Court will dismiss Smith’s equal protection claim.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, the
Court OVERRULES Plaintiff’s objections [Docket No. 58] and ADOPTS the Report
11
McKay admits that there was an influx of nude pictures in the mail room around the
time of the revised policies, but the record has no evidence regarding the race of the subjects of
the photographs. (McComb Aff. Ex. B.) Even if the pictures were primarily sent to African
American inmates, Smith has pointed to no evidence that Defendants enacted its policies due to a
discriminatory purpose. See Feeney, 442 U.S. at 279 (holding that, to establish a discriminatory
purpose, the decisionmaker must have chosen “a particular course of action at least in part
‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.”). McKay
claims that the influx was the result of an increase in the number of vendors selling nude photos
and that “[t]he 2004 policy revisions were not prompted by race.” (McComb Aff. ¶¶ 6-7.)
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and Recommendation of the Magistrate Judge dated January 25, 2012 [Docket No. 57].
Accordingly, IT IS HEREBY ORDERED that:
1.
Defendant Tom Roy is substituted for Joan Fabian;
2.
Plaintiff’s claims against defendants Eric Skon, Lynn Dingle, Joseph
Cosgrove, James Benson, and Helene Haworth are DISMISSED without prejudice.
3.
Defendants Anita Alexander, Joan Fabian, Mary Jiperez, John King, June
Lind, Mary McComb, Leigh McCoy, and Dave Reishus’ Motion to Dismiss and for
Summary Judgment [Docket No. 38] is GRANTED.
4.
Plaintiff’s complaint is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: March 26, 2012
at Minneapolis, Minnesota.
____s/
____
JOHN R. TUNHEIM
United States District Judge
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