Jackson v. Gutzmer et al

Filing 106

MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION: Plaintiffs' Objections to the Magistrate Judge's Report and Recommendation 95 are OVERRULED. The Magistrate Judge's Report and Recommendation 94 is ADOPTED.Defendants' Motion for Summary Judgment 74 is GRANTED. LET JUDGMENT BE ENTERED ACCORDINGLY. (Written Opinion). Signed by Chief Judge John R. Tunheim on 2/27/2019. (JMK)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
RONNIE JEROME JACKSON, III,

Civil No. 16-3831 (JRT/BRT)

Plaintiff,
v.
JEFF GUTZMER, NATALIE LESEMAN,
MICHELLE SMITH, and TAMMY
WHERLEY, in their individual capacities;
and TOM ROY, in his official capacity,

MEMORANDUM OPINION AND
ORDER ADOPTING REPORT AND
RECOMMENDATION

Defendants.
Ronnie Jerome Jackson, III, OID #239471, MCF-Stillwater, 970 Pickett
Street North, Bayport, MN 55003, pro se plaintiff.
Lindsay LaVoie, Assistant Attorney General, OFFICE OF THE
MINNESOTA ATTORNEY GENERAL, 445 Minnesota Street, Suite
1800, Saint Paul, MN 55101, for defendants.

Plaintiff Ronnie Jerome Jackson, III, brings this action under 42 U.S.C. § 1983. He
alleges that Defendants, all of whom work at the Minnesota Correctional Facility – Oak
Park Heights (“MCF-OPH”), violated his constitutional rights by denying him mail by
removing several pictures from his mail under the false pretense that they depicted nudity.
Presently before the Court are Jackson’s Objections to U.S. Magistrate Judge Becky R.
Thorson’s Report and Recommendation (“R&R”) recommending that the Court grant
Defendants’ Motion for Summary Judgment. Upon de novo review of Jackson’s specific
objections, the Court will find that no genuine dispute of material facts remains. The Court

will thus overrule Jackson’s objections, adopt the R&R in part as described herein, and
grant Defendants’ Motion for Summary Judgment.
BACKGROUND
In August 2016, while detained at MCF-OPH, Plaintiff Ronnie Jackson received
sixty-one photographs in the mail.

(Compl. ¶ 9, Nov. 4, 2016, Docket No. 1-1. 1)

Minnesota Department of Corrections (“DOC”) officials confiscated twenty-three of these
photographs pursuant to a DOC policy prohibiting inmates from receiving nude or sexually
explicit materials. (Id.) After following the DOC’s procedures for appealing the decision
to remove these twenty-three photographs as contraband, Jackson filed suit against
Defendants Jeff Gutzmer, Natalie Leseman, Michelle Smith, and Tammy Wherley in their
individual capacities, alleging that they wrongfully confiscated five of the twenty-three
photographs. (Id. ¶¶ 10, 13-16.)
In November 2016, DOC staff confiscated an art catalog mailed to Jackson because
it contained nudity. (Compl. at 6-7, Dec. 29, 2016, Civil No. 16-4393, Docket No. 1.)
Jackson brought a second lawsuit against the same defendants in their individual capacities,
as well as Tom Roy, Commissioner of the DOC, in his official capacity, alleging that DOC
staff had violated his First Amendment rights in confiscating the catalog. (Id. at 7-8.)
In March 2017, DOC staff confiscated a book called “Lighting the Nude,” which
Jackson alleges is an educational book on photography. (Compl. ¶¶ 1, 10, Apr. 10, 2017,

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Unless otherwise specified, citations are to the docket for Civil Case No. 16-3831.

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Civil No. 17-1109, Docket No. 1.) Jackson filed a third lawsuit, against Defendants Smith
and Wherley in their individual capacities and Roy in his official capacity. (Id. ¶¶ 7-9.)
The Court consolidated the three cases. (Mem. Op. and Order Adopting R. & R.s,
Sept. 20, 2017, Docket No. 49.) Defendants brought the Motion for Summary Judgment
now before this Court. (Defs.’ Mot. for Summ. J., Apr. 12, 2018, Docket No. 74.) In his
opposition, Jackson voluntarily dismissed Tom Roy , all claims related to retaliation, and
all claims related to confiscation of the art catalog. (Pl.’s Mem. Opp. at 2, May 9, 2018,
Docket No. 86.) The Court will therefore dismiss these claims.
Magistrate Judge Thorson issued an R&R on September 28, 2018, recommending
that Defendants’ Motion for Summary Judgment be granted. (R. & R. at 21, Sept. 28,
2018, Docket No. 94.) Jackson objected to the R&R on October 11, 2018. (Objs. to R. &
R., Oct. 11, 2018, Docket No. 95.)
After Jackson’s voluntary dismissals, two claims remain before the Court. First,
Jackson alleges Defendants confiscated the five photographs and the book Lighting the
Nude in violation of his First Amendment rights. Second, Jackson alleges Defendants
denied him due process in his appeal for the confiscation of the five photographs in
violation of the Fourteenth Amendment. Jackson requests compensatory and punitive
damages, as well as an injunction requiring Defendants to return or replace the confiscated
materials.
Defendants confiscated Jackson’s photographs and book under MN-DOC Mail
Policy 302.020 (the “Mail Policy”) and Contraband Policy 301.030 (the “Contraband
Policy”). (Aff. of Natalie Leseman (“Leseman Aff.”) ¶¶ 6, 11Apr. 12, 2018, Docket No.
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76.) Under the Mail Policy, “[i]ncoming/outgoing mail . . . is not authorized if it . . .
[c]ontains contraband or pertains to sending contraband into or out of the facility.” (Id. ¶
6, Ex. 1 at 6.)
Under the Contraband Policy, “[c]ontraband/prohibited objects include . . .
[p]ublished and non-published materials (books, magazines, photos, drawings, etc.) . . .
[f]eaturing . . . nudity, or sexually explicit written content where the central theme of the
items promotes contraband or prohibited content.” (Leseman Aff. ¶ 11, Ex. 2 (“Contraband
Policy”) at 14.) The Contraband Policy defines nudity as:
the showing (including see-through covering) of human male
or female genitals, anus or pubic area or the showing (including
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; coverings emphasizing the depiction of human
genitals; or tight-fitting clothing through which the contours of
the genitals are clearly visible. This definition does not include
published material containing nudity illustrating medical,
educational or anthropological content.
(Id. at 13.) The Contraband Policy also prohibits “[s]exually explicit materials where the
central theme of the item promotes contraband or prohibited content (published or nonpublished) containing any pictorial display or written descriptions of” various sexual acts,
and “sex-related materials determined to constitute a risk to the safety and security of the
facility, facilitate criminal activity, or undermine offender/resident rehabilitation.” (Id. at
14-15.)

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The DOC offers three reasons for prohibiting access to these materials. First,
offenders’ access to sexually explicit materials and materials containing nudity creates a
security risk. (Aff. of Tammy Wherley (“Wherley Aff.”) ¶ 11, Apr. 12, 2018, Docket No.
79.) Second, such materials interfere with sex offender rehabilitation. (Id. ¶ 12.) And
third, they create a hostile work environment for prison staff. (Id. ¶ 13.)
MCF-OPH staff enforce the Mail Policy and Contraband Policy. (Leseman Aff. ¶¶
5–6.) Staff separate facility mail, legal mail, and non-legal offender mail. (Id. ¶ 9.) Each
piece of incoming non-legal offender mail is opened and inspected by staff. (Id.) Under
Directive 302.250, the MCF-OPH Property Department staff open incoming packages and
inspect their contents for weapons or other contraband. (Aff. of Donald Stiff (“Stiff Aff.”)
¶¶ 6, 9, Apr. 12, 2018, Docket No. 77.)
If a staff member believes a piece of mail or photo is prohibited, the item is stored
and a Notice of Non-delivery is sent to the offender. (Leseman Aff. ¶ 12.) The offender
may appeal the non-delivery decision to the mailroom supervisor within ten days. (Id.
¶ 13.) The mailroom supervisor then reviews the item and returns a written response to the
offender. (Id.) An offender may then request a review of the supervisor’s decision by the
facility’s Correspondence Review Authority (“CRA”), an individual or group of
individuals appointed by the facility’s Warden to review decisions regarding offender mail.
(Id. ¶ 14.) The CRA reviews the confiscated item, determines whether it should be returned
to the offender, and issues a final, written decision. (Id.) If offenders do not appeal the
denial of a mail item within thirty days, or do not tell mailroom staff how to dispose of the
item, the item is destroyed. (Id. ¶ 17.)
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In this case, Jackson’s five photographs were confiscated on August 30, 2016,
(Wherley Aff. ¶ 26.) DOC staff had determined the photographs contained nude images
and were a security risk pursuant to the Contraband Policy. (Id.; Compl. ¶ 9.) Jackson was
provided with a Notice of Non-Delivery of Mail/Package related to the confiscated
photographs. (Leseman Aff. ¶¶ 23, 30.)
Jackson submitted four appeals for the confiscation of four sets of photographs,
including for the five photographs at issue. (See 2d Aff. of Tammy Wherley ¶ 2, Ex. A at
1-3, May 21, 2018, Docket No. 90-1.) On August 23, he appealed the denial of eight
pictures. (Id. at 1.) On August 30, he sent two separate appeals, one appealing nondelivery of his photos “for the form attached” and one appealing non-delivery of 9 other
photos. (Id. at 2-3.) And on September 8, Jackson sent a kite, a prisoner communication
form, to Wherley and the CRA asking about “23 of [his] pictures” that had been confiscated
and appealing the latest confiscation of one photograph. (Id. at 6.)
On September 1, Jackson sent Wherley a kite asking her what was going on with
his three appeals. (Id. at 4.) She responded the next day that Jackson should “be patient”
and that denial of pictures needed to go through the CRA. (Id.) On September 8, Jackson
sent another kite to Wherley and the CRA asking what was going on with the review of his
23 pictures. (Id. at 6.) On September 9, Lieutenant Gutzmer responded directly on the
appeals forms for three of Jackson’s appeals. (Id. at 1, 3, 5.) On September 11, Jackson
sent a kite to the CRA stating that he was submitting three appeals to the CRA. (Id. at 79.) He noted that Gutzmer had not responded to one of his appeals. (Id. at 7.)

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On September 19, Jackson sent another kite to Wherley asking what was going on
with the review of his “23 pictures.” (Id. at 10.) Wherley responded two days later that
“[t]hey [were] in the process of being reviewed by the CRA for signatures.” (Id.)
On September 22, Jackson received a letter from the CRA stating that it had
“reviewed [Jackson’s] three appeals dated September 11, 2016, and [Jackson’s] kite to
AWA Wherley/[CRA] dated September 8, 2016.” (Decl. of Ronnie Jackson (“Jackson
Decl.”) ¶ 3, Ex. 5 at 11, May 9, 2018, Docket No. 87-1.)
On September 27, Jackson sent a kite to Warden Michelle Smith referring to his
“appeal form for denial of 5 of [his] pictures” for which he had not received a response.
(Id. at 12.) A representative of the Warden wrote back the following day indicating that
the mail room and CRA had confirmed that Jackson had received a response. (Id. at 13.)
Because of the multiple appeals—some on the same day and for nearly identical
issues—and the multiple kites sent regarding the appeals, there appears to have been some
confusion on the part of both Jackson and the prison staff concerning Jackson’s
photographs and appeals. (See Wherley Aff. ¶ 26; LaVoie Aff. ¶ 2, Ex. 1 at 3.) Jackson
alleges that he never received a response specifically directed to the five photographs at
issue in this case. (Jackson Decl. ¶ 3.) The five photographs were destroyed on November
17, 2016. (Leseman Aff. ¶ 30.) Jackson alleges these pictures were destroyed “under the
false pretense they depicted nudity.” (Compl. ¶ 17.)
DOC staff also determined Jackson’s book, Lighting the Nude, violated the
Contraband Policy because a majority of its pages contained nude photographs. (Wherley
Aff. ¶ 25.) Jackson alleges that Lighting the Nude is an educational book that he sought
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due to his interest in photographic art and that it falls under the exception in the Contraband
Policy’s definition of nudity. (Compl. ¶¶ 10-11, Civil No. 17-1109.)
DISCUSSION
I.

STANDARD OF REVIEW
A.

Report and Recommendation

Upon the filing of an R&R by a Magistrate Judge, “a party may serve and file
specific written objections to the proposed findings and recommendations.” Fed. R. Civ.
P. 72(b)(2); accord D. Minn. LR 72.2(b)(1). “The objections should specify the portions
of the magistrate judge’s report and recommendation to which the objections are made and
provide a basis for those objections.” Montgomery v. Compass Airlines, LLC, 98 F. Supp.
3d 1012, 1017 (D. Minn. 2015) (quoting Mayer v. Walvatne, No. 07-1958, 2008 WL
4527774, at *2 (D. Minn. Sept. 28, 2008)). “The district judge must determine de novo
any part of the magistrate judge’s disposition that has been properly objected to.” Fed. R.
Civ. P. 72(b)(3); accord D. Minn. LR 72.2(b)(3). Non-specific or repetitive objections are
reviewed for clear error. Montgomery, 98 F. Supp. 3d at 1017.
Jackson makes five objections. First, Jackson objects to the R&R in its entirety.
Second, Jackson objects to alleged credibility determinations made by the Magistrate
Judge. Third, Jackson objects to the Magistrate Judge’s recommendation to grant the
summary judgment motion regarding his Fourteenth Amendment claim. Fourth, Jackson
objects to the Magistrate Judge declining to rule on other issues, such as qualified immunity
for Defendants and Jackson’s requests for punitive damages and injunctive relief. Finally,

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Jackson argues that the Magistrate Judge did not provide an impartial review of the factual
issues.
Jackson’s objection to the R&R in its entirety is not specific or proper. Thus, the
Court will review the R&R for clear error. Jackson’s other objections are specific and
proper, so the Court will review the objected-to portions of the R&R de novo.
B.

Summary Judgment

Summary judgment is appropriate when there are no genuine issues of material fact
and the moving party can demonstrate 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 case, 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 to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986). The nonmoving party may not rest on mere allegations or
denials but must show through the presentation of admissible evidence that specific facts
exist creating a genuine issue for trial. Anderson, 477 U.S. at 256.
II.

CREDIBILITY DETERMINATIONS
Jackson argues that the Magistrate Judge made impermissible credibility

determinations regarding three factual findings: (1) that the five confiscated photographs

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depict nudity; (2) that the Contraband Policy was properly applied to his book Lighting the
Nude; and (3) that Lighting the Nude contains sexually explicit images.
A.

The Photographs

The Magistrate Judge did not improperly resolve a factual dispute related to the five
confiscated photographs.

Defendants submitted several affidavits stating that the

photographs depict nudity as defined by DOC policy. (Wherley Aff. ¶ 26; Leseman Aff. ¶
30.) Jackson, however, has produced no evidence to show that the withheld photographs
do not depict nudity. 2 Jackson merely points to the allegations in his Complaint as evidence
that the five photographs do not depict nudity. Mere allegations in a complaint are not
enough to create a genuine dispute of material facts. Anderson, 477 U.S. at 256 (“[A] party
opposing a properly supported motion for summary judgment may not rest upon mere
allegation or denials of his pleading, but must set forth specific facts showing that there is
a genuine issue for trial.”). Jackson did not submit any evidence to dispute the facts attested
to in Defendants’ affidavits. In short, Jackson did not create a dispute of material fact.
In the absence of any factual dispute as to whether the five photographs depict
nudity, the Magistrate Judge did not make an impermissible credibility determination when

2

Jackson argues that where the photographs in question have been destroyed, he is entitled
to an adverse inference against Defendants, citing Payne v. Britten, 749 F.3d 697, 702 (8th Cir.
2014) (“In the absence of such evidence, the district court is bound to take the plaintiff’s allegations
as true and presume that the mail does not, in fact, contain material that runs afoul of any neutral
and valid restrictions.”). The “evidence” referenced in Payne, however, does not refer to the
confiscated mail itself, but any and all evidence that shows the mail was withheld on legitimate
grounds. See id. (quoting Kaden v. Slykhuis, 651 F.3d 966, 969 (8th Cir. 2011) (“On appeal, we
must independently review the evidence to determine whether the decision to apply the regulation
and withhold the particular mail items was an exaggerated response to prison concerns . . . .”).
Here, Defendants have produced sufficient evidence in the form of affidavits to show that the five
confiscated photographs violated the Contraband Policy.

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finding that the five photographs depict nudity. Accordingly, the Court will overrule
Jackson’s objection on this ground, adopt the Magistrate Judge’s recommendation, and
grant Defendants’ Motion for Summary Judgment.
B.

The Book

The second and third credibility determination objections can be resolved together.
The Magistrate Judge did not improperly make credibility determinations regarding
whether Lighting the Nude constituted contraband. An analysis of the validity of a prison
regulation that burdens fundamental rights involves determining whether the regulation is
reasonably related to legitimate penological interests or whether it represents an
exaggerated response to those concerns. Turner v. Safley, 482 U.S. 78, 87 (1987). Jackson
objects to the Magistrate Judge’s determination that the application of the Contraband
Policy to Lighting the Nude was not an exaggerated response because, he argues, this
resolved a factual dispute.
Lighting the Nude contained images depicting nudity. Defendants submitted several
pages of photographs from Lighting the Nude that show nudity as defined by the
Contraband Policy. (Wherley Aff. ¶ 25, Ex. B, Apr. 12, 2018, Docket No. 80.) Upon de
novo review of those pages, Lighting the Nude clearly violates the Contraband Policy
because the female breast is clearly visible on several pages of the book. There is no factual
dispute.
The Court need not reach Jackson’s objection to the characterization of Lighting the
Nude as depicting sexual material because it clearly violates the Contraband Policy on
nudity.
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The only issue that remains is whether Lighting the Nude qualifies under the
exception to the Contraband Policy on nudity.

The policy makes an exception for

“published material containing nudity illustrating medical, educational, or anthropological
content.” (Contraband Policy at 13.) Neither party disputes that Lighting the Nude does
not contain medical or anthropological content. Jackson instead alleges that it contains
educational content and thus falls within the exception to the Contraband Policy on nudity.
The Magistrate Judge analyzed Jackson’s claim as one for content-based
restrictions—restricting Lighting the Nude for its content, despite it being an educational
book—rather than an “as applied” challenge to the Contraband Policy. But even under an
as-applied analysis, Jackson’s claim must fail. 3 Tammy Wherley, Assistant Warden of
Administration, reviews materials to determine if they fall within the exceptions to the
nudity policy. (Wherley Aff. ¶ 20.) To do so, Wherley considers how the materials relate
to an offender’s studies. (Id.) For example, if the offender claims he is studying art,
Wherley considers whether the offender has ordered other art supplies or study materials,
and whether the offender has taken an art class while incarcerated. (Id.) Wherley attested
that, “[i]f [she] can establish that an offender is an active artist, it helps [her] decide if [she]

3

Jackson cites to Defendants’ interrogatory responses for the propositions that to fall
within the exception to the nudity policy (1) materials need not have been given to inmates by
prison staff; (2) materials do not need to be taught within the prison; (3) materials need not be
approved by prison staff; (4) there are no specifications as to what type of medical, educational, or
anthropological content inmates are allowed to receive; and (5) there is no definition in relation to
the content of material allowed under the exception. These propositions mischaracterize
Defendants’ interrogatory responses, and do not address the issue of whether, as applied to
Lighting the Nude, withholding the book is an exaggerated response.

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should allow education materials that are on the borderline of featuring nudity.” (Id.) But,
even if she determined the offender to be an active artist, she would not allow any offender
to receive a book on how to draw or photograph nudes. (Id.)
Jackson has not created a genuine dispute of material fact regarding his as-applied
challenge. The Court does not need to make any credibility determinations to find that the
application of the Contraband Policy to Lighting the Nude was not exaggerated.
Although Lighting the Nude is a book designed to teach photographers how to use
lighting when taking nude photographs, confiscating it pursuant to the Contraband Policy
was not an exaggerated response. The exception for educational material does not have its
plain meaning. To read “educational” to include books, such as Lighting the Nude, that
not only contain nudity, but feature it, would read the exception to swallow the entire rule
and render the rule ineffective. An offender would have no need for other materials that
depict nudity that also violate the DOC Contraband Policy if they can simply order Lighting
the Nude to serve the same purpose—namely, to have images that depict nudity—and not
violate the Contraband Policy. The other excepted categories, medical and anthropological
materials, would not generally feature nudity, rather minor nudity might be incidental to a
discussion of certain topics. The exception for educational materials is to be read similarly.
It would logically apply to similar materials that do not feature nudity, but may incidentally
touch on it.
There remains no genuine dispute of fact as to Jackson’s challenge to the
Contraband Policy as applied to Lighting the Nude. Thus, the Court will overrule Jackson’s

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objection on this ground, adopt the Magistrate Judge’s recommendation, and grant
Defendants’ Motion for Summary Judgment.
III.

FOURTEENTH AMENDMENT CLAIM
Jackson objects to the Magistrate Judge’s recommendation to grant summary

judgment on his Fourteenth Amendment claim because: (1) in observing sua sponte that
prisoners do not have property interests in items designated as contraband, the Magistrate
Judge “pierced the veil of impartiality and denied the plaintiff an opportunity to fairly
litigate his case”; (2) the Magistrate Judge impermissibly resolved multiple factual
disputes; and (3) the R&R failed to reach the merits of the claim because it did not decide
whether defendants allowed him to appeal the withholding of the photos. (Objs. at 7.)
As to Jackson’s first objection, there is no indication that the Magistrate Judge has
been impartial. Defendants sought summary judgment on Jackson’s due process claim;
thus, the issue was properly before the Magistrate Judge, and she did not reach it sua sponte.
As to Jackson’s second objection, the Magistrate Judge did not make any factual
determinations on Jackson’s Fourteen Amendment claim, instead finding that Jackson did
not have a property interest in contraband.
As to Jackson’s third objection, the Court will construe Jackson’s objection as an
argument that the Magistrate Judge should have considered the factual support behind
Jackson’s due process claim. The Court will review this claim de novo.
First, “a violation of prison regulations in itself does not give rise to a constitutional
violation.” Bonner v. Fed. Bureau of Prisons, 196 Fed. Appx. 447, 448 (8th Cir. 2006).

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Thus, Jackson’s claim for a due process violation related to the failure of prison officials
to follow prison policies must fail.
Jackson does, however, have a right to procedural due process when his photographs
were confiscated. Id. (citing Procunier v. Martinez, 416 U.S. 396, 417 (1974) (overruled
on other grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989))). “[T]he decision to
censor or withhold delivery of a particular letter must be accompanied by minimum
procedural safeguards.” Procunier, 416 U.S. at 417. The DOC is required provide Jackson
with, at minimum, notice of withholding, a reasonable opportunity to appeal the decision,
and that the appeal be referred to a prison official other than the one who made the original
withholding decision. Id. at 418-19. The DOC provided Jackson with a Notice of NonDelivery upon making the decision to withhold the five photographs. This satisfies the
notice requirement. See id.
The DOC provided Jackson with an adequate appeals process. First, the process
allowed Jackson to appeal to the Mail Room supervisor, Jeff Gutzmer, someone who did
not make the original determination that the five photographs were contraband. Second,
beyond appeal to a supervisor, Jackson was afforded the opportunity to have an
independent review board, the CRA, review his appeal. While some of the dates and
numbers of photographs are unclear, it is clear that the CRA reviewed the five photographs
at issue. Between August 23 and September 8, Jackson sent four appeals to Gutzmer. On
September 8, after Jackson had not yet received a response from Gutzmer on his initial
three appeals, Jackson sent a kite to Wherley and the CRA. In that kite, Jackson asked
after all 23 photographs that had been confiscated up to then. On September 9, Gutzmer
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responded to three of Jackson’s appeals. Jackson then sent these three appeals to the CRA
via a kite sent September 11. The CRA sent a response to Jackson referencing his three
appeals from September 11, as well as Jackson’s September 8 kite that referenced all 23
photos. It is clear, based on the CRA response, that the CRA reviewed and considered the
three appeals from September 11, and the 23 photographs referenced in the September 8
kite.
Further, when Jackson sent a kite to Warden Michelle Smith on September 27, 2016,
asking after the appeal of the five photos at issue, Smith confirmed that the mail room and
the CRA had reviewed the appeal, and that a response had been given to Jackson. Thus,
Jackson received more than adequate process, having been allowed to appeal the
withholding of his photographs not only to Gutzmer, but also to the CRA. Smith’s response
is additional process that Jackson received on top of the more than adequate process of
appealing to Gutzmer and the CRA.
Because there remains no genuine dispute of material fact as to whether Jackson
was afforded a reasonable appeals process, the Court will overrule Jackson’s objections
and grant summary judgment as to the due process claim.
IV.

OTHER ISSUES
Jackson’s fourth objection is a collection of objections to the Magistrate Judge

declining to rule on: (1) Defendants’ qualified immunity claim; (2) punitive damages; and
(3) injunctive relief. The Magistrate Judge’s recommendation fully disposes of the instant

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action, thus, she need not have reached these other issues specifically. Because the R&R
recommends granting summary judgment in full, the other issues are moot.
V.

IMPARTIALITY
Jackson makes a final objection to the R&R because he alleges that the Magistrate

Judge did not provide an impartial review of the facts. “When analyzing a judicial-bias
claim under the Due Process Clause, we start with ‘a presumption of honesty and integrity
in those serving as adjudicators.’” In re Morgan, 573 F.3d 615, 624 (8th Cir. 2009) (quoting
Withrow v. Larkin, 421 U.S. 35, 47 (1975)). The Court must determine whether the record
supports a claim of bias. See id. Jackson does not support this final allegation of bias with
any facts from the record. The Court has conducted an independent review of the record
and sees no indications of bias.
ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that:
1. Plaintiffs’ Objections to the Magistrate Judge’s Report and Recommendation
[Docket No. 95] are OVERRULED.
2. The Magistrate Judge’s Report and Recommendation [Docket No. 94] is
ADOPTED.
3. Defendants’ Motion for Summary Judgment [Docket No. 74] is GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
DATED: February 27, 2019
at Minneapolis, Minnesota.

____s/John R. Tunheim____
JOHN R. TUNHEIM
United States District Judge
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