Hodgson v. Fabian et al

Filing 98

ORDER MODIFYING REPORT AND RECOMMENDATION :IT IS ORDERED THAT:1.Defendants Motion to Dismiss or for Summary Judgment [Docket No. 41] is GRANTED.2.Hodgsons Motion to Dismiss Defendants Motion for Summary Judgment [Docket No. 57] is DENIED AS MOOT.3.C ounts I, II, III, IV, and VI of the Complaint are DISMISSED WITH PREJUDICE.4.The Fourteenth Amendment claim of Count V is DISMISSED WITH PREJUDICE. The Establishment Clause claim of Count V is DISMISSED WITHOUT PREJUDICE.5.Hodgsons Motion for Temporary Restraining Order [Docket No. 80] is DENIED.LET JUDGMENT BE ENTERED ACCORDINGLY.(Written Opinion). Signed by Judge Joan N. Ericksen on July 27, 2012. (slf)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Stephen A. Hodgson,
Plaintiff,
v.

Civil No. 11-243 (JNE/FLN)
ORDER

Tom Roy, Joan Fabian, John King, Michelle
Smith, Joseph Hobson, Bruce Julson, David
Reishus, Sheryl Vezner, Greg Lindell, John
Doe, Jane Doe, sued in their individual and
official capacities,
Defendants.
In a Report and Recommendation dated May 2, 2012, the magistrate judge recommended
that Defendants’ Motion to Dismiss or for Summary Judgment be granted in part and denied in
part. The magistrate judge recommended that Counts II, III, IV, and VI of the Complaint be
dismissed with prejudice; that Count V be dismissed with prejudice insofar as it asserts a claim
for violation of the Fourteenth Amendment; that Count V be dismissed without prejudice insofar
as it asserts a claim for violation of the Establishment Clause; that summary judgment be granted
in favor of Hodgson on Count I insofar as it alleges David Reishus and Sheryl Vezner violated
Hodgson’s right of free speech under the First Amendment by confiscating images in May
2010;1 and that the remaining portion of Count I be dismissed with prejudice. The magistrate
judge also recommended that Hodgson be awarded nominal damages in the amount of $1.00 and
punitive damages in an amount to be determined at trial. Defendants and Hodgson objected.
The Court has conducted a de novo review of the record. See D. Minn. LR 72.2(b).
Based on that review, the Court accepts the recommended dismissals of Counts II through VI, as
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Before issuing the Report and Recommendation, the magistrate judge ordered Reishus
and Vezner to file a memorandum of law that explained why Hodgson was not entitled to
summary judgment on Count I. See Fed. R. Civ. P. 56(f).
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well as the recommended dismissal of part of Count I. The Court declines to adopt the
recommendation that summary judgment be granted in favor of Hodgson on part of Count I.
Summary judgment in favor of Reishus and Vezner is appropriate.
Before bringing this action, Hodgson brought an action, Civil No. 08-5120, against state
prison officials under 42 U.S.C. § 1983 (2006) for alleged violations of his right of free speech
under the First Amendment based on interference with his mail. In that action, a magistrate
judge issued a Report and Recommendation that recommended Defendants’ Motion for
Summary Judgment be granted. In dictum, the magistrate judge expressed a belief that
“Defendants’ actions in censoring [Hodgson’s] mail” violated the First Amendment. But the
magistrate judge concluded that the claim was moot because Hodgson received the mail after
successfully appealing to the mailroom supervisor or to the correspondence review authority.
After reviewing objections to the Report and Recommendation, the Court did not adopt the
dictum. And the Court did not rule that Hodgson’s right of free speech had been violated.
Instead, the Court adopted the Report and Recommendation insofar as it recommended the claim
be dismissed as moot. Hodgson appealed, and the Eighth Circuit concluded that summary
judgment was “proper on Hodgson’s claim that defendants violated his First Amendment freespeech rights by delaying receipt of his mail.” Hodgson v. Fabian, 378 F. App’x 592, 594 (8th
Cir. 2010) (per curiam). The Eighth Circuit reasoned:
To the extent Hodgson raised a facial challenge to the regulation banning sexually
explicit material, we have previously recognized a government interest in similar
regulations. As to his claim that the regulations were unconstitutional as applied,
we note that Hodgson received all of the mail at issue after using the prison’s
appeal procedure; and although defendants acknowledge that one item was
initially improperly withheld, summary judgment is not defeated by “a random
misapplication of a reasonable regulation.”
Id. (citations omitted); cf. Ahlers v. Rabinowitz, No. 10-1193, 2012 WL 1142279, at *7 (2d Cir.
Apr. 6, 2012) (“Several brief delays do not amount to a First Amendment violation.”).
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The confiscation of Hodgson’s mail at issue in the objections of Reishus and Vezner in
this case took place in May 2010, approximately two years after the interference with Hodgson’s
mail at issue in Civil No. 08-5120. That month, prison mailroom staff issued a notice of
nondelivery because Hodgson’s mail contained twelve pages of sexually explicit photographs.
Hodgson appealed. Vezner and Reishus affirmed the mailroom staff’s decision. The confiscated
pages included images of statues of Apollo, Dionysus, and Aphrodite. During the pendency of
this action, an associate warden reviewed documents provided by Hodgson’s wife, who indicated
the documents contained copies of the mail confiscated in May 2010. The associate warden
reviewed the documents, “independently assessed whether they were contraband,” determined
that they contained “several images of full-frontal nudity,” and concluded that the images were
nevertheless allowable. The associate warden provided the documents to Hodgson.
In light of the associate warden’s decision, the Court assumes that the images should not
have been confiscated in May 2010. Nevertheless, “summary judgment is not defeated by ‘a
random misapplication of a reasonable regulation.’” Hodgson, 378 F. App’x at 594 (quoting
Holloway v. Pigman, 884 F.2d 365, 367 (8th Cir. 1989)); see Alexander v. Gennarini, 144 F.
App’x 924, 926 (3d Cir. 2005) (per curiam) (“[A] single instance of damaged or withheld mail
does not constitute a First Amendment violation.”); Johnson v. Wilkinson, 229 F.3d 1152 (6th
Cir. 2000) (unpublished table decision) (“This random and isolated interference with Johnson’s
mail did not violate his constitutional rights.”); Ping v. Raleigh, 205 F.3d 1347 (8th Cir. 2000)
(unpublished table decision) (“As to The Paper Mayhem issue, Ping has not rebutted defendants’
evidence that the publication was rejected, mistakenly, only once; thus, even crediting his
unsupported argument on appeal that he still has not received the publication and that the matter
is therefore not moot, the summary judgment record establishes that defendants do not have a

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policy of censoring The Paper Mayhem.”); cf. Gardner v. Howard, 109 F.3d 427, 431 (8th Cir.
1997) (“We have never held or suggested that an isolated, inadvertent instance of opening
incoming confidential legal mail will support a § 1983 damage action. Rather, we agree with
other circuits that an ‘isolated incident, without any evidence of improper motive or resulting
interference with [the inmate’s] right to counsel or to access to the courts, does not give rise to a
constitutional violation.’” (alteration in original)). Viewed in the light most favorable to
Hodgson, the record reveals that the May 2010 confiscation of his mail resulted from an isolated
misapplication of a reasonable regulation. Summary judgment in favor of Vezner and Reishus is
appropriate.
Even if the confiscation of Hodgson’s mail in May 2010 violated his right of free speech
under the First Amendment, Vezner and Reishus would be entitled to qualified immunity. “The
doctrine of qualified immunity protects government officials ‘from liability for civil damages
insofar as their conduct does not violate clearly established statutory or constitutional rights of
which a reasonable person would have known.’” Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)). “The immunity allows ‘officers to
make reasonable errors,’ and provides ‘ample room for mistaken judgments.’ The defense
protects public officials unless they are ‘plainly incompetent’ or ‘knowingly violate the law.’”
Borgman v. Kedley, 646 F.3d 518, 522 (8th Cir. 2011) (citations omitted). The confiscation of
Hodgson’s mail in May 2010 did not violate a clearly established First Amendment right. Cf.
Bardo v. Clendenin, No. 11-16031, 2012 WL 2992078, at *1 (9th Cir. July 23, 2012) (“The
district court properly held that defendant prison officials were entitled to qualified immunity
because Bardo did not have a clearly established First Amendment right to retain the ad
depicting side-view nudity.”); Lizotte v. LeBlanc, 456 F. App’x 511, 513 (5th Cir. 2012)

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(affirming district court’s rejection of claim that prison officials wrongly confiscated from
incoming mail a family photograph of a nude infant), cert. denied, 80 U.S.L.W. 3708 (U.S. June
25, 2012). Civil No. 08-5120’s Report and Recommendation itself acknowledged that it did “not
constitute an order or judgment of the District Court.” The Court did not adopt its dictum. That
case did not clearly establish Hodgson’s right to receive the images confiscated in May 2010.
Finally, Hodgson moved for a temporary restraining order after the parties had fully
briefed the objections to the Report and Recommendation. The relief sought by Hodgson does
not relate to the claims made in this case. The Court denies his motion for a temporary
restraining order. See Devose v. Herrington, 42 F.3d 470, 471 (8th Cir. 1994) (per curiam).
Based on the files, records, and proceedings herein, and for the reasons stated above, IT
IS ORDERED THAT:
1.

Defendants’ Motion to Dismiss or for Summary Judgment [Docket No. 41] is
GRANTED.

2.

Hodgson’s Motion to Dismiss Defendants’ Motion for Summary Judgment
[Docket No. 57] is DENIED AS MOOT.

3.

Counts I, II, III, IV, and VI of the Complaint are DISMISSED WITH
PREJUDICE.

4.

The Fourteenth Amendment claim of Count V is DISMISSED WITH
PREJUDICE. The Establishment Clause claim of Count V is DISMISSED
WITHOUT PREJUDICE.

5.

Hodgson’s Motion for Temporary Restraining Order [Docket No. 80] is DENIED.

LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: July 27, 2012
s/ Joan N. Ericksen
JOAN N. ERICKSEN
United States District Judge

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