Whitehead v. Marcantel et al

Filing 160

MAGISTRATE JUDGE'S PROPOSED FINDINGS AND RECOMMENDED DISPOSITION by Magistrate Judge Kirtan Khalsa, recommending that Plaintiff's Motion for Partial Summary Judgment against MTC Defendants (Doc. 124) be denied and that OCPF Defendants' Motion for Summary Judgment (Doc. 143) be granted in part and denied in part. Objections to PFRD due by 10/6/2020. Add 3 days to the deadline if service is by mailing it to the person's last known address (or means described in Fed. R. Civ. P. 5(b)(2)(D) and (F)); if service is by electronic means, no additional days are added. (Fed. R. Civ. P. 6(d); Fed. R. Crim. P. 45(c).) (kmt)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
MONTE WHITEHEAD,
Plaintiff,
v.

Civ. No. 17-275 MV/KK

MANAGEMENT AND TRAINING
CORPORATION et al.,
Defendants.
MAGISTRATE JUDGE’S PROPOSED FINDINGS
AND RECOMMENDED DISPOSITION
THIS MATTER is before the Court on: (a) Plaintiff’s Motion for Partial Summary
Judgment against MTC Defendants (Doc. 124) (“Plaintiff’s Motion”), filed November 21, 2019;
and, (b) OCPF Defendants’ Motion for Summary Judgment (Doc. 143) (“Defendants’ Motion”),
filed April 3, 2020. By an Order of Reference (Doc. 148), filed May 11, 2020, this matter was
referred to the undersigned to conduct hearings if warranted, and to perform any legal analysis
required to recommend an ultimate disposition of the case. The Court, having reviewed the parties’
submissions, the record, and the relevant law, and being otherwise fully advised, proposes to find
that Plaintiff’s Motion is not well taken and recommends that it be DENIED. The Court further
proposes to find that Defendants’ Motion is well taken in part and recommends that it be
GRANTED IN PART and DENIED IN PART as set forth herein.
I. Introduction
This case arises out of Plaintiff’s incarceration at the Otero County Prison Facility
(“OCPF”) from March 2013 to April 2017. (Doc. 119 at 3; Doc. 142-1 at 2.) While many of
Plaintiff’s claims have been dismissed or stricken, the following claims remain: (1) Plaintiff’s
First Amendment claims against Defendants Management and Training Corporation (“MTC”),

James Frawner, Richard Martinez, and FNU Azuna challenging these Defendants’ restrictions on
Plaintiff’s possession and receipt of hardbound books, (Doc. 119 at 29-33); (2) Plaintiff’s First
Amendment claims against Defendants MTC, Frawner, Martinez, Azuna, FNU Moreno, and FNU
Barba (collectively, “Defendants”) challenging Defendants’ requirement that Plaintiff purchase
publications from approved vendors, (id. at 36-38); (3) Plaintiff’s First Amendment claims
challenging Defendants’ restrictions on Plaintiff’s receipt of internet printouts and newspaper
articles, (id. at 14-19); and, (4) Plaintiff’s First Amendment retaliatory transfer claim against
Defendant Martinez. (Id. at 43-50; see also Doc. 135.) In the cross-motions presently before the
Court, Plaintiff seeks summary judgment on the first three claims and Defendants seek summary
judgment on all of them.1 (Docs. 124, 143.)
II. Procedural History
Plaintiff, a pro se prisoner, commenced this action by filing a Complaint for Damages for
Violations of Civil and Constitutional Rights and for Declaratory and Injunctive Relief in state
court on November 14, 2016. (Doc. 1-1.) At the time, Plaintiff was housed at the OCPF.2 (Id. at
3.) On March 1, 2017, a former defendant removed the case to this Court. (Doc. 1.) In a
Memorandum Opinion and Order dated September 27, 2017, United States District Judge Robert
Junell dismissed Plaintiff’s federal claims under Federal Rule of Civil Procedure 12(b)(6), denied
Plaintiff’s motions to amend his complaint and supplement the pleadings, declined to exercise
supplemental jurisdiction over his state law claims, and remanded the state law claims to state

1

Plaintiff also sought summary judgment on his claims based on the First Amendment’s religion clauses and the
Religious Land Use and Institutionalized Persons Act, 42 U.S.C. §§ 2000cc et seq. (Doc. 124; see Doc. 119 at 6475.) However, these claims have been stricken because Plaintiff included them in his amended complaint without the
Court’s leave or the opposing parties’ written consent. (Doc. 135 at 5-7.) The portion of Plaintiff’s Motion seeking
summary judgment on these claims should therefore be denied as moot.
2

Plaintiff was transferred to the Guadalupe County Correctional Facility (“GCCF”) on April 17, 2017, (Doc. 22 at 1;
Doc. 119 at 44-45), and to the Penitentiary of New Mexico on January 7, 2020. (Doc. 131 at 1.)

2

court. (Doc. 91.) On February 12, 2018, Plaintiff appealed the Court’s decision as to his federal
claims but did not challenge the remand of his state law claims. (Doc. 99; Doc. 110-1 at 2.)
In an Order and Judgment entered on April 2, 2019, the Tenth Circuit affirmed this Court’s
decision in part and reversed it in part, remanding the case “for further proceedings consistent with
[its] order and judgment.” (Doc. 110-1 at 23.) In many respects, the Tenth Circuit affirmed this
Court’s dismissal of Plaintiff’s federal claims. (See generally id.) However, the Tenth Circuit
vacated the dismissal of Plaintiff’s claims that “certain defendants violated his First Amendment
rights by preventing him from receiving hardback books, books from non-approved vendors,
information from the internet, and newspaper articles sent by mail,” and remanded these claims
“to the district court for consideration in the first instance.” (Id. at 5, 8.) The appellate court noted
that this Court’s consideration on remand could “include allowing the prison-official defendants
to proffer a legitimate penological reason for the restrictions.” (Id. at 8.)
The Tenth Circuit also held that this Court improperly denied Plaintiff’s Motion for Leave
to Amend the Complaint (Doc. 23) and Motion to Supplement the Pleadings (Doc. 60). (Doc. 1101 at 22-23.) Specifically, the Tenth Circuit found that Plaintiff’s retaliatory transfer claim “may
be a proper claim for relief,” noting that “prison officials may violate a prisoner’s First Amendment
rights when they transfer the prisoner because the prisoner exercised those rights.”3 (Id. at 22 &
n.15.) Accordingly, the Tenth Circuit reversed and remanded the “denial of [Plaintiff’s] motion
to amend the complaint and his motion to supplement the pleadings to the district court for
evaluation consistent with this order and judgment.” (Id. at 22-23.)

3

However, the Tenth Circuit found “that the district court did not err in denying [Plaintiff] leave to expand on his
equal-protection claim or to add unspecified exhibits.” (Id. at 22 n.16.)

3

On remand, the Court granted Plaintiff’s motions to amend and supplement, permitting
Plaintiff to “file an amended complaint reasserting his First Amendment claims and asserting a
First Amendment retaliatory transfer claim.” (Doc. 112 at 6.) Plaintiff timely filed an Amended
and Supplemental Complaint for Damages of Civil and Constitutional Rights and for Declaratory
and Injunctive Relief on October 10, 2019. (Doc. 119.) Plaintiff’s amended complaint exceeded
the scope of the amendments the Court gave him leave to file in several respects. (Doc. 135 at 34.) As such, on March 6, 2020, the Court entered an order striking the unauthorized portions of
the amended complaint. (Id. at 6-7.)
On November 21, 2019, Plaintiff moved for partial summary judgment. (Doc. 124.)
Defendants responded in opposition to Plaintiff’s Motion on December 3, 2019, and Plaintiff filed
a reply in support of it on December 19, 2019. (Docs. 127, 128.)
On March 4, 2020, the Court ordered Defendants to file a Martinez Report addressing, with
limited exceptions, “all of Plaintiff’s allegations against the OCPF Defendants, as well as any
defenses raised in the OCPF Defendants’ answers that they wish to pursue.” (Doc. 134 at 4.) In
its Order, the Court notified the parties that
the Court may use the Martinez Report in deciding whether to grant summary
judgment for or against any party, whether by motion or sua sponte. As such, the
parties (including Plaintiff in his response or objections to the Martinez Report) are
urged to submit whatever proof or other materials they consider relevant to
Plaintiff's claims against the OCPF Defendants and the OCPF Defendants’ defenses
in the pleadings they file pursuant to this Order.
(Id. at 6-7.)
Defendants filed their Martinez Report on April 2, 2020. (Doc. 142.) Plaintiff filed a
response in opposition to the report on May 26, 2020, and Defendants filed a reply in support of it
on June 15, 2020. (Docs. 149, 151.) At the Court’s direction, Defendants also filed a Supplemental

4

Martinez Report on August 14, 2020, to which Plaintiff responded on September 2, 2020. (Docs.
156, 159.)
Defendants moved for summary judgment in conjunction with their original Martinez
Report on April 2, 2020. (Doc. 143.) Plaintiff responded in opposition to Defendants’ Motion on
June 1, 2020, and Defendants replied in support of it on June 15, 2020. (Docs. 150, 152.) The
parties’ cross-motions for summary judgment are thus fully briefed and ready for resolution.
III. Analysis
A.

Legal Standards Governing Summary Judgment
Under Federal Rule of Civil Procedure 56, this Court must “grant summary judgment if

the movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The movant bears the initial burden of
showing that “there is an absence of evidence to support the nonmoving party’s case.” Bacchus
Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991) (quoting Celotex Corp. v.
Catrett, 477 U.S. 317, 325 (1986)). Once the movant meets this burden, Rule 56(c) requires the
non-moving party to designate specific facts showing that there is a genuine issue for trial. See
Celotex Corp., 477 U.S. at 324; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986); Vitkus
v. Beatrice Co., 11 F.3d 1535, 1539 (10th Cir. 1993).
“An issue is ‘genuine’ if there is sufficient evidence on each side so that a rational trier of
fact could resolve the issue either way. An issue of fact is ‘material’ if under the substantive law
it is essential to the proper disposition of the claim.” Thom v. Bristol-Myers Squibb Co., 353 F.3d
848, 851 (10th Cir. 2003) (citation omitted). “A party asserting that a fact cannot be or is genuinely
disputed must support the assertion by . . . citing to particular parts of materials in the record” or
by “showing that the materials cited do not establish the absence or presence of a genuine dispute,

5

or that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.
56(c)(1). For purposes of summary judgment, a prisoner’s complaint is treated as evidence if it
alleges specific facts based on the prisoner’s personal knowledge and has been subscribed under
penalty of perjury. 28 U.S.C. § 1746; Hall v. Bellmon, 935 F.2d 1106, 1111 (10th Cir. 1991). “A
pro se litigant’s pleadings are to be construed liberally and held to a less stringent standard than
formal pleadings drafted by lawyers.” Id. However, “it is not the proper function of the district
court to assume the role of advocate for the pro se litigant.” Id. at 1110.
When reviewing a motion for summary judgment, the Court must keep in mind three
principles. First, the Court’s role is not to weigh the evidence, but to assess the threshold issue of
whether a genuine issue of material fact exists, requiring a trial. Anderson, 477 U.S. at 249.
Second, the Court must draw all reasonable inferences in favor of, and construe all evidence in the
light most favorable to, the non-moving party. Hunt v. Cromartie, 526 U.S. 541, 552-53 (1999).
Finally, the Court cannot decide issues of credibility. Anderson, 477 U.S. at 255. “[T]o survive
the . . . motion, [the nonmovant] need only present evidence from which a jury might return a
verdict in his favor.” Id. at 257.
B.

Plaintiff’s First Amendment Claims Regarding Access to Information
1.

Legal Standards

Prisoners have a First Amendment right “to receive information.” Jacklovich v. Simmons,
392 F.3d 420, 426 (10th Cir. 2004). However, prison officials may curtail this right to further
legitimate penological interests. Thornburgh v. Abbott, 490 U.S. 401, 413–14 (1989). Indeed,
“prisoners’ rights may be restricted in ways that would raise grave First Amendment concerns
outside the prison context.” Gee v. Pacheco, 627 F.3d 1178, 1187 (10th Cir. 2010) (quoting
Thornburgh, 490 U.S. at 407) (quotation marks omitted). “Running a prison is an inordinately

6

difficult undertaking that requires expertise, planning, and the commitment of resources, all of
which are peculiarly within the province of the legislative and executive branches of government.”
Turner v. Safley, 482 U.S. 78, 84–85 (1987). Consequently, in considering the constitutional
validity of prison regulations, courts should “accord deference to the appropriate prison
authorities.” Id. at 85.
To effectuate the principle that “prison administrators, and not the courts, are to make the
difficult judgments concerning institutional operations,” the Supreme Court has held that, “when
a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Id. at 89 (alterations omitted). The Turner
Court delineated four factors courts must consider in determining whether a prison regulation
satisfies this requirement.4 Id. at 89-91.
First, “there must be a valid, rational connection between the prison regulation and the
legitimate governmental interest put forward to justify it.” Id. at 89 (quotation marks omitted);
Jones v. Salt Lake Cty., 503 F.3d 1147, 1153 (10th Cir. 2007). This factor “is the most important;
. . . it is not simply a consideration to be weighed but rather an essential requirement.” Al-Owhali
v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012) (quotation marks omitted); see also Parkhurst v.
Lampert, 339 F. App’x 855, 860 (10th Cir. 2009) (“The first consideration is mandatory.”). This
factor is also “multifold,” requiring both that the regulation be rationally related to a governmental
objective, and that the governmental objective be “legitimate and neutral.” Thornburgh, 490 U.S.
at 414. The rational relationship test is met “where the logical connection between the regulation
and the asserted goal” is not “so remote as to render the policy arbitrary or irrational.” Turner,

4

The Tenth Circuit applies the four-factor Turner analysis to both written and unwritten restrictions, and in the context
of both jails and prisons. Jones v. Salt Lake Cty., 503 F.3d 1147, 1155 n.7, 1158 n.13 (10th Cir. 2007).

7

482 U.S. at 89-90. The neutrality requirement, in turn, is met “[w]here a regulation furthers an
important or substantial government interest unrelated to the suppression of expression.” Jones,
503 F.3d at 1153.
The second Turner factor “is whether there are alternative means of exercising the right
that remain open to prison inmates.” Turner, 482 U.S. at 90. “Where other avenues remain
available for the exercise of the asserted right, courts should be particularly conscious of the
measure of judicial deference owed to corrections officials in gauging the validity of the
regulation.” Jones, 503 F.3d at 1153 (quoting Turner, 482 U.S. at 90). The alternative means
“need not be ideal; they need only be available.” Id. (alterations omitted). “[E]ven if not the best
method from the inmate's point of view, if another means of exercising the right exists, the second
Turner factor does not undercut the challenged restriction.” Wardell v. Duncan, 470 F.3d 954,
961–62 (10th Cir. 2006) (quotation marks omitted). Moreover, “‘the right’ in question must be
viewed sensibly and expansively.” Thornburgh, 490 U.S. at 417. Also, though “[t]he absence of
any alternative . . . provides some evidence that the regulations are unreasonable,” it “is not
conclusive.” Beard v. Banks, 548 U.S. 521, 532 (2006) (quotation marks and alterations omitted).
The third Turner factor requires courts to consider “the impact accommodation of the
asserted constitutional right will have on guards and other inmates, and on the allocation of prison
resources generally.” Turner, 482 U.S. at 90; Jones, 503 F.3d at 1153. “When accommodation of
an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts
should be particularly deferential to the informed discretion of corrections officials.” Turner, 482
U.S. at 90; see also Jones, 503 F.3d at 1153-54 (“[W]here the right in question can only be
exercised at the cost of significantly less liberty and safety for everyone else, guards and other

8

prisoners alike, the courts should defer to the informed discretion of corrections officials[.]”)
(quoting Thornburgh, 490 U.S. at 418) (quotation marks omitted).
Finally, “the absence of ready alternatives is evidence of the reasonableness of a prison
regulation,” whereas “the existence of obvious, easy alternatives may be evidence that the
regulation is not reasonable, but is an exaggerated response to prison concerns.” Turner, 482 U.S.
at 90 (quotation marks omitted); Jones, 503 F.3d at 1154. The Supreme Court has emphasized
that
[t]his is not a least restrictive alternative test: prison officials do not have to set up
and then shoot down every conceivable alternative method of accommodating the
claimant’s constitutional complaint. But 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.
Turner, 482 U.S. at 90–91 (citation and quotation marks omitted); Jones, 503 F.3d at 1154.
The Turner analysis “requires courts, on a case-by-case basis, to look closely at the facts
of a particular case and the specific regulations and interests of the prison system in determining
whether prisoner’s constitutional rights may be curtailed.” Wardell, 470 F.3d at 961; see also
Boles v. Neet, 486 F.3d 1177, 1181 (10th Cir. 2007) (Turner analysis “requires close examination
of the facts of each case”); Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002) (Turner
analysis must be considered “on a case-by-case basis”). While prison officials must “show more
than a formalistic logical connection between a regulation and a penological objective,” Beard,
548 U.S. at 535, ultimately “[t]he burden . . . is not on the State to prove the validity of prison
regulations but on the prisoner to disprove it.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003);
Jones, 503 F.3d at 1159. The Court will consider the parties’ cross-motions for summary judgment

9

on Plaintiff’s First Amendment claims challenging Defendants’ restrictions on his access to
information in light of the foregoing standards.5
2.

Analysis6
a.

Hardbound Books

The Court will first consider Plaintiff’s claims that Defendants violated his First
Amendment rights by restricting his possession and receipt of hardbound books during his
incarceration at the OCPF. (Doc. 119 at 29-33.) When Plaintiff arrived at the OCPF in March
2013, he was ordered to remove the hard covers from six hardbound books he brought with him
from Northeastern New Mexico Correctional Facility (“NENMCF”) or send the books home.
(Doc. 119 at 31; Doc. 123 at 15.) Plaintiff “ruined” four books trying to tear off the covers and
sent the remaining two home. (Doc. 119 at 31.)
There is no record evidence that Plaintiff filed an informal complaint, formal grievance, or
grievance appeal about these six books.7 (See generally Docs. 1-1, 119, 142-11.) However, in
November and December 2014, Plaintiff did file an informal complaint, formal grievance, and
grievance appeal contending that the New Mexico Corrections Department (“NMCD”) policy
banning inmates’ receipt of hardbound books through the mail was “not right” and
unconstitutional. (Doc. 119 at 135, 137, 139.) In response, OCPF personnel informed Plaintiff

5

In their Motion, Defendants do not argue that any individual Defendant is entitled to summary judgment because he
or she had no personal involvement in restricting Plaintiff’s access to information in the manner alleged. (See
generally Doc. 143.) Thus, the Court will consider Plaintiff’s First Amendment access-to-information claims against
Defendants collectively.

6

The facts recited in this section are undisputed except as otherwise noted. Further, the Court resolves all genuine,
material factual disputes, construes all cognizable evidence, and draws all reasonable inferences in Plaintiff’s favor.
7
Plaintiff did file an informal complaint and formal grievance alleging that one of these books went missing during
his transfer to OCPF; upon investigation, the book was found in his mother’s possession. (Doc. 142-11 at 53, 55.) In
their Motion, Defendants do not argue that Plaintiff failed to exhaust his administrative remedies with respect to his
First Amendment access-to-information claims based on the six hardbound books he brought with him from the
NENMCF. (See generally Doc. 143.)

10

that hard book covers were a prohibited item, and hardbound books were not allowed in accordance
with NMCD Policy 151201. (Id. at 136, 138.)
On December 8, 2015, Plaintiff received two hardbound books from either Barnes & Noble
or Amazon and was again told to remove the hard covers if he wanted to keep them. (Doc. 1-1 at
179; Doc. 119 at 31; Doc. 150 at 2, 8.) He elected to send the books home. (Doc. 119 at 31.)
Plaintiff filed a “Form I-60” and an informal complaint regarding these books in December 2015.
(Id. at 153-54.) In response, OCPF personnel again cited to NMCD Policy 151201 to explain why
Plaintiff was told to remove the books’ hard covers. (Id. at 155.) The record does not reflect that
Plaintiff filed a formal grievance or grievance appeal about these books.8
Under NMCD Policy 151201(E)(6)(e) in effect at the relevant times, hardbound books
were cause for rejection of incoming mail. (Doc. 142-1 at 4; Doc. 142-3 at 6-7.) From March
2013 to October 2016, the OCPF Inmate Handbook provided that “hard-back books can be
received only if the covers are removed,” (Doc. 142-10 at 11, 31, 51, 69); and, from October 2016
to April 2017, it provided that “[n]o hardbound books are permitted.”9 (Id. at 84.) A memorandum
from “D. Simmons thru Warden Frawner” stated that, “[e]ffective October 3, 2013 inmates will
no longer be able to accept ‘HARD COVER BOOKS’ from outside vendors or family members.
Any Hard Cover Books delivered will need to be sent home at inmates [sic] expense.” (Doc. 119
at 140.) In short, “inmates [were] not permitted to possess hardback books or receive hardback

8

Again, in their Motion, Defendants do not contend that Plaintiff failed to exhaust his administrative remedies with
respect to his First Amendment access-to-information claims based on the two hardbound books he ordered from
Barnes & Noble or Amazon. (See generally Doc. 143.)

9

The OCPF Inmate Handbook in effect from October 2016 to April 2017 also provided that “[i]nter-library loans are
. . . available only in paperback books.” (Doc. 142-10 at 87.) It is unclear whether inmates were permitted to receive
hardbound books through the interlibrary loan process before October 2016. Plaintiff declared that, when the books
he requested through inter-library loan were hardbound, Defendant Azuna rejected them; however, in an affidavit
attached to Plaintiff’s response to Defendants’ Supplemental Martinez Report, inmate James Martin attested that, on
unspecified dates, the OCPF allowed him to receive two hardbound books via interlibrary loan. (Doc. 119 at 32; Doc.
159 at 29.)

11

books in mail” during Plaintiff’s incarceration at the OCPF, unless the hard covers were removed.
(Doc. 142-1 at 6.)
There was, however, an exception to the OCPF’s hardbound book ban. Specifically,
[d]uring the period of Plaintiff’s incarceration at OCPF, books provided for certain
college courses, including an automotive class, were only available in hardback.
Therefore, OCPF allowed limited access to hardback books for these classes. Still,
none of these books were delivered to State inmate[s] through the mail. OCPF
provided them to those inmates enrolled in these classes.
(Id.) As an inmate college facilitator/tutor at the OCPF, Plaintiff handed out hardbound college
textbooks to inmates, including himself, taking courses at Mesalands Community College. (Doc.
119 at 32.) Also, the OCPF ordered hardbound books for an automotive class from Amazon. (Id.
at 33; Doc. 159 at 29.) Inmates kept these hardbound college textbooks with their property and
had broad access to them. (Doc. 150 at 5.)
For the reasons explained below, the Court proposes to find that there is no genuine issue
of material fact and Defendants are entitled to judgment as a matter of law with respect to
Plaintiff’s First Amendment claims challenging the foregoing restrictions on his access to
hardbound books during his incarceration at the OCPF. Addressing the first Turner factor, i.e.,
whether the restrictions are rationally related to a legitimate, neutral penological purpose, Turner,
482 U.S. at 89, Defendants proffered that
[h]ardback books received through the mail present a security risk for the
smuggling of contraband such as drugs and weapons, and otherwise require a more
involved security review for content given the length of information at issue.
Hardback books are difficult to search effectively, yet they are particularly good
for smuggling contraband such as, money, drugs, and weapons that can easily be
secreted in the bindings. The contents of mailed books must also be reviewed for
sexually explicit content and material that may support/induce violence, as well as
information that could assist an inmate with escape, provide information about
banned substance manufacturing and trafficking, and/or provide information about
other activities which may threaten security and safety at OCPF.
(Doc. 142-1 at 3-4.)
12

“[P]rotecting prison security [is] a purpose . . . central to all other corrections goals.”
Thornburgh, 490 U.S. at 415 (quotation marks omitted). Thus, there is no question that the
proffered purpose of Defendants’ prohibition of hardbound books received through the mail—i.e.,
to prevent the introduction of contraband and disruptive content into the OCPF—is legitimate and
neutral.
Whether there is a rational relationship between this purpose and the restriction at issue is
a more nuanced question. In Bell v. Wolfish, 441 U.S. 520 (1979), the Supreme Court held that “a
prohibition against receipt of hardback books unless mailed directly from publishers, book clubs,
or bookstores” was “a rational response by prison officials to an obvious security problem.” Id. at
550. In so holding, the Bell Court observed that “hardback books are especially serviceable for
smuggling contraband into an institution[. M]oney, drugs, and weapons easily may be secreted in
the bindings,” yet they are “difficult to search effectively.” Id. at 551. However, the Bell Court
also appeared to accept the defendant warden’s testimony that “there is relatively little risk that
material received directly from a publisher or book club would contain contraband, and therefore,
the security problems are significantly reduced without a drastic drain on staff resources.” Id. at
549.
In Jones, in turn, the institution at issue “prohibit[ed] inmates from possessing hardback
books,” and “allow[ed] inmates to obtain paperback books from the jail library and, with
permission, the publisher,” as well as, for a time, from a local Barnes & Noble store via public
donation. 503 F.3d at 1156-58. The plaintiff in that case did not contest the institution’s hardbound
book ban but did “challenge the paperback book policy.” Id. at 1156. The Tenth Circuit found
that the facility’s paperback book policy was rationally related to the legitimate, neutral
penological purpose of promoting prison security. Id. at 1158. In so holding, the court observed

13

that “[a]llowing inmates to purchase paperback books only from the publisher prevents contraband
from being smuggled into the jail and lessens the administrative burden on jail personnel who must
inspect each book.” Id.
In an unpublished opinion, the Tenth Circuit recently stated that “[t]he implication of [Bell]
and Jones is that a complete ban on hardcover books . . . would likely violate the First
Amendment.” Khan v. Barela, 808 F. App’x 602, 608 (10th Cir. 2020). The Khan court explained
that, according to Bell and Jones, “one of the usual justifications . . . for a ban on hardcover books
. . . —limiting contraband—is not reasonably related to a restriction on hardcover books . . . sent
by publishers.” Id. (citation and quotation marks omitted). Implicitly recognizing the case-bycase, fact-intensive nature of the Turner analysis, however, the Khan court observed that the
“defendants may be able to support this or other justifications for prohibiting [the plaintiff] from
receiving” hardbound books. Id. The Khan defendants had not yet had the opportunity to justify
their hardbound book restrictions, because the decision on appeal was the district court’s sua
sponte dismissal of the plaintiff’s claims on a preliminary review of the pleadings. Id. at 604.
In this case, Defendants have presented Defendant Martinez’s undisputed testimony that
restrictions on hardbound books received directly from publishers, vendors, and book clubs is
necessary to further the penological purpose of limiting contraband and disruptive content because
an alleged publisher, vendor, or book club could be “a phony being used as a front to send
contraband and/or illicit content.”10 (Doc. 142-1 at 7-8.) Since 1979, when the Supreme Court

10

By “illicit content,” Defendant Martinez referred to “sexually explicit content and material that may support/induce
violence, as well as information that could assist an inmate with escape, provide information about banned substance
manufacturing and trafficking, and/or provide information about other activities which may threaten security and
safety at OCPF.” (Doc. 142-1 at 4.) Regulations designed to prevent the introduction of such material into a prison
are considered “neutral” under Turner because they “further[] an important or substantial government interest
unrelated to the suppression of expression.” Jones, 503 F.3d at 1153; Thornburgh, 490 U.S. at 415. “In other words,
where prison officials draw distinctions between publications solely on the basis of their potential implications for
prison security, the regulations are neutral.” Jones, 503 F.3d at 1153 (quotation marks omitted). At any rate, none of
the policies at issue here restricted publications based on their content; on the contrary, all of the challenged restrictions

14

issued its decision in Bell, the advent of the internet and other technological advances have made
it vastly easier and cheaper for an average individual to publish or sell a book or successfully pose
as a book publisher, vendor, or club. In this millennium, “publishers only” rules may indeed
provide considerably less protection from contraband smuggling than they used to. Thus, and in
light of Bell, Jones, and Khan, Defendant Martinez’s undisputed testimony persuades the Court
that Defendants’ restrictions on hardbound books—including books received directly from
publishers, vendors, and book clubs—are rationally related to their legitimate, neutral penological
purpose of limiting contraband and disruptive content.
Although Plaintiff asserts that Defendants “have not pointed to a single incidence” where
contraband was smuggled into the OCPF through a counterfeit publisher, vendor, or book club,
(Doc. 150 at 7), they are not required to do so to show a rational relationship between their
restrictions and the penological purpose they have proffered.
To show a rational relationship between a regulation and a legitimate penological
interest, prison officials need not prove that the banned materials actually caused
problems in the past, or that the materials are likely to cause problems in the future.
In other words, empirical evidence is not necessarily required. Moreover, it does
not matter whether we agree with the defendants or whether the policy in fact
advances the jail’s legitimate interests. The only question that we must answer is
whether the defendants’ judgment was rational, that is, whether the defendants
might reasonably have thought that the policy would advance its interests.
Sperry v. Werholtz, 413 F. App’x 31, 40 (10th Cir. 2011) (citations and quotation marks omitted).
Here, Defendants reasonably believed that prohibiting inmates’ receipt of hardbound books—even
those purportedly sent from a publisher, vendor, or book club—would significantly reduce the
introduction of contraband and disruptive content into the OCPF.

were factually as well as technically content neutral. Thus, the Thornburgh Court’s suggestion that prison officials
should make “individualized” determinations about whether to restrict particular content simply does not apply here,
where Defendants restricted particular formats and sources. See Thornburgh, 490 U.S. at 416.

15

Plaintiff also argues that the OCPF’s hardbound book restrictions are not rationally related
to the proffered purpose of smuggling prevention because inmates were more likely to smuggle
prohibited material into the prison in other ways. (Doc. 149 at 12, 18; Doc. 150 at 4, 6-7, 24; Doc.
159 at 4.) However, even assuming that these assertions are true and Plaintiff has personal
knowledge of them,11 there is no First Amendment rule that prison regulations must only address
the most pressing security risks facing an institution. Such a rule would contravene the Supreme
Court’s instruction that “prison administrators, and not the courts, are to make the difficult
judgments concerning institutional operations.” Turner, 482 U.S. at 89 (alterations omitted).
Rather, the test is simply whether “defendants might reasonably have thought that the policy would
advance [the prison’s] interests.” Sperry, 413 F. App’x at 40.
Plaintiff next contends that Defendants’ selective restriction of hardbound books “shows
the security concern is irrational or fabricated.” (Doc. 150 at 25-26; Doc. 159 at 6-8.) However,
Defendants proffered a rational explanation for treating hardbound college textbooks differently
from other hardbound books.
[T]extbooks come directly from the college to OCPF. They are not mailed to
inmates or provided directly to inmates.12 These college textbooks . . . are not
OCPF property and must be returned to the college at the completion of the
semester or when an inmate is transferred . . . . Therefore, neither OCPF nor the
inmate can[] alter the book. Since OCPF’s security concern largely stems from
concerns about the smuggling of contraband from the outside, . . . the controlled
manner in which college textbooks are admitted into OCPF and distributed to the
inmates satisfies OCPF’s security concerns.
(Doc. 156 at 12-13.)

11

Plaintiff has not, for obvious reasons, tried to demonstrate personal knowledge of the relative difficulty of various
methods of smuggling prohibited items into the OCPF.

12

Likewise, the automotive textbooks that the OCPF ordered from Amazon were not mailed or provided directly to
inmates, but rather were received and distributed by the institution. (See Doc. 119 at 33; Doc. 159 at 29.)

16

Interestingly, Plaintiff suggests that he could have smuggled contraband into the OCPF
using textbooks from Mesalands Community College because he knows people who work or are
students there. (Doc. 159 at 6-7.) But Plaintiff does not explain how he or any other inmate could
have ensured that the OCPF would distribute a particular textbook containing contraband to him.
In this regard, Plaintiff’s argument actually highlights why “the controlled manner in which
college textbooks are admitted into OCPF and distributed to the inmates satisfies OCPF’s security
concerns” in a way that hardbound books inmates received directly through the mail would not.
(Doc. 156 at 12-13.)
Defendants’ restriction on hardbound books in an inmate’s possession upon arrival at the
OCPF is also rationally related to the legitimate, neutral penological purpose of smuggling
prevention. In their Supplemental Martinez Report, Defendants proffered a rational explanation
for treating these books in the same manner as books inmates received through the mail. “The
intake process at OCPF is the same for all inmates[,] whether transferred from another facility or
not. Upon arrival at OCPF, inmates and their belongings must be thoroughly searched.” (Doc.
156 at 10-11.) Defendants “[could not] rely on prior searches” to keep inmates, staff, and the
public safe, because contraband sometimes came from other institutions as well as the outside
world. (Id. at 11.) Indeed, Plaintiff admits as much. (See Doc. 159 at 3, 13.) One pertinent
example is that “some inmates,” including Plaintiff, “would arrive to OCPF from other facilities
with prohibited hardback books,” which, per NMCD policy, they “should [not] have had . . . in
their possession in the first place.”13 (Doc. 156 at 11.)
In sum,

13

Plaintiff argues that other institutions were justified in permitting inmates to receive hardbound books in violation
of NMCD Policy 151201 because that policy is unconstitutional. (Doc. 159 at 3.) However, for the reasons explained
herein, the Court disagrees.

17

[a]n inmate bringing a hardbound book into OCPF from either an intake or a
transfer poses the same security risks as receiving hardbound books from the mail.
Hardbound books, mailed or in inmate’s possession, present a security risk for the
smuggling of contraband such as drugs and weapons, and otherwise require a more
involved security review for content given the length of information at issue.
(Id.) For the foregoing reasons, the logical connection between Defendants’ hardbound book
restrictions and their legitimate, neutral penological purpose is not “so remote as to render the
policy arbitrary or irrational,” Turner, 482 U.S. at 89-90, and the restrictions therefore satisfy the
first Turner factor.
The parties vigorously dispute a number of factual questions related to the second Turner
factor, i.e., whether Plaintiff had alternative means of exercising the constitutional right at issue.
Turner, 482 U.S. at 90. Thus, for example, Defendant Martinez attested that the OCPF library
contained about 19,000 books, while Plaintiff presented his own and other inmates’ declarations
estimating that the library contained from 3,000 to 10,000 books.14 (Compare Doc. 142-1 at 5
with Doc. 149 at 15, 40, 47, 49, 53, 54; Doc. 150 at 4-5.) Likewise, Defendant Martinez attested
that, “[u]sing the interlibrary loan system, inmates can request a book if OCPF does not have it
available and the book will arrive at OCPF from another library.” (Doc. 142-1 at 6.) However,
Plaintiff declared that it took him about ten requests to obtain one book through the interlibrary
loan process, and other inmates attested to similar response rates. (Doc. 149 at 7, 16, 50, 54; Doc.
150 at 17.) Finally, Defendant Martinez attested that, during Plaintiff’s incarceration at the OCPF,
there were five approved vendors from whom Plaintiff could order paperback books, including
Barnes & Noble, which offered more than a million titles. (Doc. 142-1 at 7.) Plaintiff, in contrast,

14

Pursuant to Federal Rule of Civil Procedure 56(d), Plaintiff declared that he needs additional discovery in the form
of OCPF “[l]ibrary book inventories from 2013-2017 . . . to show [the] actual number of books [the] library contained.”
(Doc. 150 at 32.) However, for the reasons discussed in this section and in Section III.B.2.b., infra, even if these
inventories were to show that the OCPF library contained only 3,000 books—the lowest of the estimates offered and
below Plaintiff’s own estimates of 5,000 to 10,000 books, (Doc. 149 at 15, 40; Doc. 150 at 4-5)—this would not create
a genuine issue of material fact preventing the entry of summary judgment in Defendants’ favor on Plaintiff’s First
Amendment access-to-information claims. The Court therefore denies Plaintiff’s request for this information.

18

declared that, “[f]or the majority of the time . . . there were only two book distributors,” i.e.,
Edward R. Hamilton Booksellers (“Hamilton Booksellers”) and Christian Book Distributors
(“Christian Book”), and that Barnes & Noble was added “shortly” before he was transferred from
the OCPF to another facility. (Doc. 149 at 39; Doc. 150 at 17.)
All of these factual disputes, however, are rendered immaterial by a fact that the parties do
not dispute, i.e., that Plaintiff could have kept his hardbound books—both those with which he
arrived and those he later received in the mail—had he removed the books’ hard covers. (See, e.g.,
Doc. 1-1 at 179; Doc. 119 at 31; Doc. 142-1 at 6; Doc. 150 at 2, 8); cf. Jackson v. Elrod, 881 F.2d
441, 446 (7th Cir. 1989) (“The legitimate state interests here could have been satisfied . . . by
simply removing the covers of the hard-bound books.”). Although Plaintiff declared that removing
the covers from four of his hardbound books “ruined” them, (Doc. 119 at 31), he did not declare—
and it would have been highly implausible for him to do so—that removing the covers made them
illegible. The Court can certainly understand why this option was not appealing to Plaintiff;
however, to satisfy Turner, alternative means to exercise a constitutional right need not be “ideal,”
Jones, 503 F.3d at 1153, or “the best method from the inmate’s point of view,” Wardell, 470 F.3d
at 961–62 (quotation marks omitted); rather, they simply need to be available. Here, there is no
dispute that Defendants offered Plaintiff alternative means to access the information he claims was
only available in hardbound books. (See Doc. 150 at 6; Doc. 159 at 6.)
Plaintiff argues that these alternative means were nevertheless unavailable to him because
OCPF Policy 3-305 defines “nuisance contraband” to include “[a]ny authorized property that has
been altered or damaged,” and NMCD Policy CD150201(E)(6)(b) provides that “[i]nmates found
in possession of property that has been altered . . . will receive a disciplinary report and said
property will be confiscated.” (Doc. 142-4 at 8; Doc. 142-7 at 1; see Doc. 149 at 4, 13, 17, 41 and

19

Doc. 150 at 2, 5-6.) According to Plaintiff, he could not have removed the covers from his
hardbound books without violating these policies. (Id.) However, both the OCPF Inmate
Handbooks and the grievance responses Plaintiff attached to his amended complaint show that the
OCPF did not consider hardbound books with the covers removed to be nuisance contraband or
altered property. In short, Plaintiff’s argument fails to create a genuine issue of material fact
regarding whether he could have removed the covers from hardbound books he wished to keep or
receive during his incarceration at the OCPF. Thus, Defendants’ restrictions on Plaintiff’s access
to hardbound books also satisfy the second Turner factor.
Addressing the third Turner factor, i.e., the impact on the OCPF of accommodating
Plaintiff’s First Amendment rights as he requested, Turner, 482 U.S. at 90, Defendants presented
evidence that,
[i]f inmates were permitted to receive hardback books in the mail, there would be
an increased administrative burden involved in checking each hardback book for
contraband, such as needles and illicit substances. This increased administrative
burden could result in the need to hire additional staff or purchase screening
equipment such as metal/drug detectors to accomplish these additional security
checks.
(Doc. 142-1 at 4.) Defendants further note that the increased administrative burden could have
delayed other inmates’ receipt of mail, which per NMCD policy must be delivered in a timely
manner. (Doc. 151 at 6.)
Attempting to refute Defendants’ evidence of a significant ripple effect if the OCPF had
accommodated his First Amendment rights as requested, Plaintiff first argues that permitting
inmates to receive hardbound books directly from publishers, vendors, and book clubs would not
have increased the administrative burden on the OCPF to inspect incoming mail for contraband
and disruptive content, because Defendants already had a policy of inspecting “all vendor acquired

20

books and publications.”15

(Doc. 149 at 18.)

However, in so arguing, Plaintiff fails to

acknowledge or dispute Defendants’ evidence that hardbound books are more difficult to inspect
than other types of publications, due to the ease with which items may be concealed in their
bindings and, often, their greater length. (Doc. 142-1 at 3-4.)
Plaintiff also maintains that Defendants could have searched hardbound books received in
the mail quickly and easily using drug dogs and metal detector wands, and that “the validity of a
book can be checked in a matter of minutes by checking the ISBN on a web site that sells books
or with the Library of Congress.”16 (Doc. 149 at 10-12, 17-18, 22, 37; Doc. 150 at 3-4, 6-7, 19,
24; Doc. 159 at 5.) However, though courts must draw all reasonable factual inferences in favor
of prisoners opposing summary judgment, they must also
distinguish between evidence of disputed facts and disputed matters of
professional judgment. In respect to the latter, [the Court’s] inferences must accord
deference to the views of prison authorities. Unless a prisoner can point to
sufficient evidence regarding such issues of judgment to allow him to prevail on
the merits, he cannot prevail at the summary judgment stage.
Beard, 548 U.S. at 529–30 (citation omitted).
In addition, Plaintiff’s assertions run afoul of the rule that testimonial evidence must be
based on personal knowledge. Fed. R. Civ. P. 56(c)(4); Fed. R. Evid. 602. Because the Court
must defer to Defendants’ professional judgment regarding the ease and speed with which they
could have adequately searched and checked the validity of incoming hardbound books using drug

15

Plaintiff also hypothesizes that permitting inmates to receive hardbound books directly from publishers, vendors,
and book clubs would not have increased the OCPF’s administrative burden because inmates would have brought in
and ordered only a “small” number of hardbound books. (Doc. 159 at 5.) However, he offers no evidence to support
this hypothesis, which is speculative and regarding which he has shown no personal knowledge. See Ellis v. J.R.'s
Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015) (“Information presented in [an] affidavit [on summary
judgment] must be based on personal knowledge.”) (quotation marks omitted).

16

The Court notes that such a “check” would not allow prison officials to verify the identity of the person or entity
who purportedly sent the book.

21

dogs, metal detectors, and the internet, and because Plaintiff has demonstrated no personal
knowledge on these points, his declarations fail to create a genuine issue of material fact.17 In
short, the third Turner factor also supports the constitutional validity of Defendants’ restrictions
on Plaintiff’s access to hardbound books.
Finally, with respect to the fourth Turner factor, i.e., whether there was a ready alternative
that would have fully accommodated Plaintiff’s rights at de minimis cost to the OCPF, Turner, 482
U.S. at 90-91, Plaintiff again suggests either using drug dogs and metal detectors to inspect
hardbound books, or allowing inmates to receive hardbound books directly from publishers,
vendors, and book clubs. (Doc. 150 at 3-4, 6, 24.) However, for the reasons already discussed,
Defendants have shown that these alternatives would have imposed significant costs on the OCPF,
and Plaintiff has failed to demonstrate a genuine factual dispute on this point. Therefore, the fourth
Turner factor also weighs in Defendants’ favor with respect to their restrictions on Plaintiff’s
access to hardbound books.
In sum, viewing the record evidence in the light most favorable to Plaintiff and drawing all
reasonable inferences in his favor, each Turner factor supports the constitutional validity of the
challenged restrictions on Plaintiff’s possession and receipt of hardbound books. Because there is
no genuine issue of material fact, Defendants are entitled to summary judgment on Plaintiff’s
claims that Defendants violated his First Amendment rights by restricting his access to hardbound
books during his incarceration at the OCPF. For the same reasons, Plaintiff is not entitled to
summary judgment on these claims.
b.

Approved Vendor List

17

Plaintiff’s declaration that he has seen prison guards use drug dogs to quickly and easily search the OCPF library,
(Doc. 150 at 24), does not show personal knowledge of how long it would take and how difficult it would be to
adequately search hardbound books received through the mail, if only for the obvious reason that books arriving from
the outside would require a more thorough review and search than books already in the prison library.

22

Plaintiff next claims that Defendants violated his First Amendment rights by requiring him
to purchase publications from approved vendors. (Doc. 119 at 36-38.) From before March 2013
to October 2016, the OCPF used an approved vendor list and only permitted inmates to purchase
newspapers, books, and magazines from approved vendors. (Doc. 156 at 13; Doc. 159 at 8-9.)
From October 2016 to after April 2017, the OCPF “maintained its approved vendor list” but also
allowed inmates to purchase publications from publishers.18, 19 (Id.)
On November 14, 2014, Plaintiff filed an informal complaint asserting that the OCPF’s use
of an approved vendor list was “not right.” (Doc. 1-1 at 174.) On November 18, 2014, G. Valle
responded that the warden had approved the list but it was “subject to change.” (Id. at 175.) On
November 19, 2014, Plaintiff filed a formal grievance regarding this issue, (id. at 176), and on
November 28, 2014, L. Eason responded by citing to an NMCD policy requiring inmate personal
property to be purchased through the prison canteen or an approved vendor. (Id. at 177.) L. Eason
added that a committee to determine approved vendors was “held each year,” “inmates are allowed
to request new vendors,” and the next such committee “should be held around January or
February.” (Id.) L. Eason suggested that if Plaintiff “would like to submit requests to have a

18

In his April 2, 2020 affidavit, Defendant Martinez used the terms “vendor” and “publisher” interchangeably and did
not indicate whether the OCPF’s policies with respect to vendors and publishers were different and, if so, for what
time periods. (Doc. 142-1 at 7-9.) However, in his August 13, 2020 affidavit, Defendant Martinez clarified his
testimony on these points. (Doc. 156 at 13.) The Court notes that, according to the latter affidavit, the OCPF stopped
using an approved vendor list in July 2017, and now simply requires inmates to receive publications directly from a
vendor or the publisher. (Id.)

19

In his response to Defendants’ Supplemental Martinez Report, Plaintiff alleges that Defendants did not respond to
his “numerous requests” for leave to purchase publications directly from publishers—presumably after the October
2016 policy change, though he does not specify the dates of his requests—and that the policy change was illusory.
(Doc. 159 at 8-9, 21.) However, Plaintiff did not make these factual allegations under penalty of perjury and thus, the
Court cannot consider them as evidence in ruling on the parties’ summary judgment motions. 28 U.S.C. § 1746; Hall,
935 F.2d at 1111. Moreover, even if the Court were to accept these allegations as true, they would not change the
Court’s recommended disposition, because Defendants’ approved vendor restrictions both before and after October
2016 satisfy the Turner standard, as further discussed herein.

23

vendor authorized,” he should do so at that time. (Id.) On December 2, 2014, Plaintiff filed a
grievance appeal regarding this issue. (Id. at 178.)
In May 2016, Plaintiff ordered three paperback books from Prison Legal News (“PLN”),
which Defendants rejected because PLN was not an approved vendor.20 (Doc. 1-1 at 45; Doc. 76
at 2, 18-20; Doc. 119 at 150-52; see Doc. 150 at 2-3, 8, 21.) There is no record evidence that
Plaintiff filed an informal complaint, formal grievance, or grievance appeal regarding these
books.21 The OCPF’s approved vendor restrictions also prevented Plaintiff from purchasing
certain magazines he wished to read. (Doc. 150 at 21.)
The parties dispute whether Plaintiff could have effectively requested that a new vendor be
added to the approved vendor list or sought the warden’s exceptional approval of particular
purchases from non-approved vendors. Defendant Martinez attested that
[a]ny inmate can request that a certain publisher be added to the approved
publisher’s list. Moreover, specific books, publications, and/or orders are
considered and approved even if the publisher does not appear on the approved
publishers list.
(Doc. 142-1 at 8.) However, Plaintiff declared that Defendants did not respond to his requests to
add approved vendors or for exceptional approval of specific purchases. (Doc. 149 at 22; Doc.
150 at 8.) Plaintiff also declared that, in his last year at the OCPF, a memorandum informed

20

Although Plaintiff declared that Defendants rejected the books he ordered from PLN “only because PLN was not
an approved vendor,” (Doc. 150 at 3 (emphasis added)), he later declared that Defendants rejected these books because
they contained “legal information specifically aimed to help prisoners.” (Id. at 8.) Plaintiff has presented no evidence
demonstrating personal knowledge that Defendants rejected the books he ordered from PLN because of their contents,
nor has he presented any evidence that the OCPF had a policy or practice of rejecting legal information designed to
help prisoners. As such, his conclusory declaration fails to create a genuine factual dispute on this point. See Ellis v.
J.R.'s Country Stores, Inc., 779 F.3d 1184, 1201 (10th Cir. 2015) (courts “do not consider conclusory and self-serving
affidavits” on summary judgment).
21

Again, in their Motion, Defendants do not contend that Plaintiff failed to exhaust his administrative remedies with
respect to his First Amendment claims based on Defendants’ rejection of the three books he ordered from PLN. (See
generally Doc. 143.)

24

inmates that the approved vendor process would be competitive, i.e., the addition of a new vendor
would require the removal of an old one. (Doc. 149 at 21.)
The parties also dispute—and incidentally display some confusion regarding—who was on
the approved vendor list from March 2013 to April 2017. Defendant Martinez attested that, from
2013 to 2016, the following book vendors were approved: (a) Troll and Toad; (b) Christian Book;
(c) Barnes & Noble; (d) Al Anwar; and, (e) Islamic Bookstore.22 (Doc. 142-1 at 7.) According to
Defendant Martinez, Christian Book had a 500,000-book catalog and Barnes & Noble offered over
a million titles. (Id.) The OCPF Inmate Handbooks from January 2013 through September 2016
also listed Troll and Toad, Christian Book, Barnes & Noble, Al Anwar, and Islamic Bookstore as
approved vendors. (Doc. 142-10 at 11, 31, 51, 69.) However, the October 2016 handbook listed
the OCPF’s approved book vendors as Hamilton Booksellers, Wisdom Publications, Wyrd’s Way
Publications, Islamic Bookstore, Asatru, Christian Book, and Triarco. (Id. at 84.)
Plaintiff, in turn, declared that, during most of his incarceration at the OCPF, there were
only two approved book vendors, i.e., Hamilton Booksellers and Christian Book, and that Barnes
& Noble was added “shortly” before his departure.23 (Doc. 149 at 39.) However, Plaintiff also

22

Plaintiff declared that, under Rule 56(d), he should be allowed to discover the catalogs of other approved vendors
listed in Defendant Martinez’s affidavit to show that these other vendors do not sell publications. (Doc. 149 at 19;
Doc. 150 at 32.) However, Defendant Martinez’s affidavit is unambiguous on this point; e.g., he expressly indicated
that “Noc Bay” sells “Native American arts & crafts” and “Union Supply” sells “care packages for inmates.” (Doc.
142-1 at 7.) There is thus no need for Plaintiff to obtain these vendors’ catalogs, and the Court denies Plaintiff’s
request.
23

It is unclear whether Plaintiff made this declaration based on personal knowledge, or rather based on Heard v.
Marcantel, in which the parties did not dispute for summary judgment purposes that Hamilton Booksellers and
Christian Book were the only approved book vendors at the OCPF at some point between July 2013 and March 2017.
See Heard v. Marcantel, Civ. No. 15-516 MCA/SMV, 2017 WL 3412094, at *1, *4 (D.N.M. Mar. 16, 2017). In so
finding, the Heard court relied on a June 2016 memorandum the plaintiff submitted, in which A. Waters stated that
the OCPF was then using only Hamilton Booksellers and Christian Book “for ordering books for inmate population”
but was “in the process of adding more vendors.” Heard v. Marcantel, Civ. No. 15-516 MCA/SMV, Doc. 63 at 17
(D.N.M. filed Jul. 13, 2016). In Heard, the defendants elected not to present any evidence to clarify or contradict this
memorandum, likely because the plaintiff in that case was not challenging the OCPF’s use of an approved vendor list.
Id., Doc. 67 at 4-5 (D.N.M. filed Jul. 27, 2016). Here, however, Defendants have made a different choice, and have
thereby created a very different record with respect to the approved vendors and publishers from whom inmates could
order publications between March 2013 and April 2017. The Court therefore declines to rely on the Heard decision

25

declared that the two hardbound books he received in the mail in December 2015 were either from
Amazon or Barnes & Noble and that they came from an approved vendor. (Doc. 1-1 at 179; Doc.
119 at 31; Doc. 150 at 2, 8, 18.) Thus, Plaintiff has necessarily admitted that one of these mass
market booksellers was an approved vendor by December 2015. Plaintiff also attached to his
amended complaint an undated memorandum listing Barnes & Noble, Christian Book, Scroll
Publishing, Hamilton Booksellers, Hastings, Al Anwar, and Islamic Bookstore as approved book
vendors. (Doc. 119 at 149.) In addition, he declared that the OCPF maintained a list of forty
approved magazines.24 (Doc. 150 at 2, 17.)
On the foregoing record, there is no genuine issue of material fact and Defendants are
entitled to judgment as a matter of law on Plaintiff’s First Amendment claims challenging
Defendants’ approved vendor restrictions.

Addressing the first Turner factor, Defendants

proffered that these restrictions
help[ed] OCPF to focus its resources needed to review books that are mailed to
inmates. Anyone who prints a book could potentially be a “publisher.” As such,
these policies help[ed] to protect against the situation whereby any number of
“publishers” can send any number of books to inmates at OCPF, overtaxing
OCPF’s resources and jeopardizing the effectiveness of OCPF’s security reviews.
(Doc. 142-1 at 7-8.) He further clarified that,
[a]lthough books from approved publishers [were] also reviewed for contraband
and content, having approved publishers help[ed] to alleviate the security concern
that the alleged “publisher” is a phony being used as a front to send contraband
and/or illicit content.
(Id. at 7.)

in determining whether there are genuine issues of material fact regarding Plaintiff’s constitutional challenge to
Defendants’ approved vendor restrictions. See generally Wardell, 470 F.3d at 961 (Turner analysis must be done on
“case-by-case basis”). However, as is required on summary judgment, the Court will resolve its doubts regarding
whether Plaintiff’s declaration is based on personal knowledge in Plaintiff’s favor in deciding Defendants’ Motion.
24

Plaintiff attached to his amended complaint a purported copy of a November 2016 memorandum listing the OCPF’s
approved magazines. (Doc. 119 at 148.) However, this document is inauthentic on its face and the Court will not
rely on it.

26

Again, “protecting prison security [is] a purpose . . . central to all other corrections goals.”
Thornburgh, 490 U.S. at 415 (quotation marks omitted). Thus, there is no question that the
proffered purpose of Defendants’ approved vendor restrictions—i.e., to limit the introduction of
contraband and disruptive content into the OCPF—is legitimate and neutral.
Plaintiff again argues that the challenged restrictions are not rationally related to
Defendants’ proffered objective because inmates were more likely to use other methods to smuggle
contraband or disruptive content into the OCPF. (See, e.g., Doc. 149 at 19; Doc. 150 at 7.) Again,
however, even assuming that Plaintiff’s assertions are true and based on personal knowledge, there
is no First Amendment rule that a prison policy is only proper if it addresses the most acute security
risks. Rather, again, the test is simply whether “defendants might reasonably have thought that
the policy would advance [the prison’s] interests.” Sperry, 413 F. App’x at 40. Here, Defendants
reasonably believed that their approved vendor restrictions would limit the introduction of
contraband and disruptive content into the OCPF via books, magazines, and newspapers.
Therefore, the challenged restrictions are rationally related to the legitimate, neutral penological
objective of smuggling prevention and satisfy the first Turner factor. See also Payne v. Friel, No.
2:04-CV-844-DAK, 2007 WL 1100420, at *8 (D. Utah Apr. 10, 2007), aff'd in relevant part, 266
F. App’x 724 (10th Cir. 2008) (“[T]here is an obvious connection between the prison's approved
vendor policy and the governmental interest in preventing contraband from entering the prison.”).
Regarding the second Turner factor, i.e., whether Plaintiff had alternative means of
exercising the right at issue, Turner, 482 U.S. at 90, and construing genuinely disputed facts in
Plaintiff’s favor, Plaintiff had access to newspapers, “numerous recreational magazine
subscriptions,” and 3,000 books through the OCPF library, as well as roughly one-tenth of the
books he requested through the interlibrary loan process. (Doc. 142-1 at 4-6; Doc. 149 at 2, 16,

27

47, 49-50, 53-54; Doc. 150 at 5.) He could also purchase books, magazines, and newspapers from
Hamilton Booksellers and Christian Book from March 2013 to November 2015, and from
Hamilton Booksellers, Christian Book, and Barnes & Noble or Amazon from December 2015 to
April 2017. (Doc. 1-1 at 179; Doc. 149 at 39; Doc. 150 at 2, 8, 18.) Christian Book had a 500,000book catalog and Barnes & Noble offered over a million titles. (Doc. 142-1 at 7.)
Plaintiff disputes that all of Christian Book’s and Barnes & Noble’s titles were available
to him, because some were hardbound, some contained prohibited content, and some did not
interest him. (Doc. 149 at 19-20; Doc. 150 at 7, 17.) However, as discussed above, there is no
dispute that Plaintiff could have kept the hardbound books he ordered had he been willing to
remove the covers. And, even assuming that some books sold by Christian Book and Barnes &
Noble included prohibited content, there is no evidence tending to show that the subtraction of
these books would reduce the 1.5 million titles otherwise available from these vendors to any
material degree. And, of course, the fact that some or indeed many of the publications sold by
Christian Book and Barnes & Noble did not interest Plaintiff is both irrelevant and inevitable given
the vast number of titles they offered.
Plaintiff also argues that he did not have alternative means of exercising the right at issue
because he could not access specific publications he wanted to read, e.g., publications from PLN,
legal reference books, and religious and veterinary publications. (See, e.g., Doc. 150 at 21.) In so
arguing, however, Plaintiff forgets that “the right” in question must be construed sensibly and
expansively. Thornburgh, 490 U.S. at 417. In other words, “the right” at issue here is not
Plaintiff’s right to read a specific book. Rather, it is to have access to “a broad range of
publications,” which Plaintiff indisputably did. Id. at 418. For these reasons, Defendants’
approved vendor restrictions from March 2013 to April 2017 also satisfy the second Turner factor.

28

Addressing the third Turner factor, i.e., “the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of prison resources
generally,” Turner, 482 U.S. at 90, Defendants presented evidence that
[t]o require OCPF staff to process and thoroughly inspect mail from non-approved
vendors would burden the administration, make it difficult if not impossible to
comply with . . . time constraints [for delivering mail to inmates], and potentially
disadvantage other inmates whose mail would be delayed.
(Doc. 142-1 at 8.)
Attempting to refute this evidence, Plaintiff argues that inspecting publications from nonapproved sources would not have added to the OCPF’s administrative burden or impeded its timely
delivery of mail to other inmates, because the OCPF already inspected all incoming mail for
contraband and disruptive content. (Doc. 149 at 23.) In so arguing, however, Plaintiff overlooks
Defendants’ undisputed evidence that the approved vendor policies allowed the OCPF to “focus”
its resources, in the patently logical sense that publications from unknown sources would have
required more thorough and time-consuming inspections than publications from known, vetted,
and trusted sources because they would have been more likely to contain contraband or disruptive
content. (Doc. 142-1 at 7-8.) Thus, the third Turner factor also supports the constitutional validity
of the approved vendor restrictions in effect at the OCPF during Plaintiff’s incarceration there.
Finally, with respect to the fourth Turner factor, i.e., whether there was an easy, obvious
way for the OCPF to fully accommodate Plaintiff’s rights at de minimis cost, Turner, 482 U.S. at
90–91, Defendants presented evidence that “[t]here is not an obvious or easy alternative that would
allow inmates to obtain books from unapproved vendors without significantly and adversely
affecting the interests previously identified.” (Doc. 142-1 at 8.)
Attempting to refute this evidence, Plaintiff purports to identify three such alternatives, i.e.:
(1) using drug dogs and metal detectors to search publications from non-approved sources; (2)
29

having property officers check the validity of the publisher of each such publication on the internet;
and, (3) allowing pre-approval of purchases from non-approved vendors on a case-by-case basis.
(See, e.g., Doc. 149 at 22-23; Doc. 150 at 9.) However, none of these alternatives involve de
minimis costs to the OCPF. As previously discussed, Defendants have established that allowing
inmates to receive publications from non-approved sources would have increased the
administrative burden of inspecting inmate mail and delayed its delivery. And, though Plaintiff
argues that it would take mere “minutes” for prison officials to check a publisher’s validity or preapprove a purchase from a non-approved vendor, (see, e.g., Doc. 149 at 18-19, 22, 37), even
minutes would have consumed considerable prison resources when multiplied by all of the
publications inmates could have ordered from non-approved sources. Therefore, the fourth Turner
factor also weighs in Defendants’ favor with respect to their approved vendor restrictions.
More generally, Plaintiff argues that the Court should reject Defendants’ use of an
approved vendor list because other courts have done so. (Doc. 149 at 20, 32; Doc. 150 at 9, 20;
Doc. 159 at 12.) However, none of the cases Plaintiff cites expressly address prison officials’ use
of approved vendor lists. For example, Krug v. Lutz, 329 F.3d 692 (9th Cir. 2003), does not include
the passage Plaintiff purports to quote from it, and concerns a due process claim. Murphy v.
Missouri Department of Corrections, 372 F.3d 979, 986 (8th Cir. 2004), Williams v. Brimeyer,
116 F.3d 351, 354 (8th Cir. 1997), and Abdul Wali v. Coughlin, 754 F.2d 1015, 1031 (2d Cir.
1985), overruled by O’Lone v. Estate of Shabazz, 482 U.S. 342, 349 n.2 (1987), in turn, address
content-based restrictions not at issue here.
The Second Circuit’s decision in Shakur v. Selsky, 391 F.3d 106 (2d Cir. 2004), comes
closest to supporting Plaintiff’s argument. In Shakur, the court held that the plaintiff stated a
legally sufficient First Amendment claim based on the defendants’ confiscation of political

30

literature from an “unauthorized organization.” Id. at 115. However, even that case is plainly
distinguishable because, in Shakur, the appellate court was reviewing the district court’s sua sponte
dismissal of the plaintiff’s claim on the pleadings, rather than a grant of summary judgment. Id.
And, as the Second Circuit noted, “[a]t the point of summary judgment”—as here—the plaintiff
will have “assemble[d] evidence to attempt to meet his burden of proof,” the defendants will have
“articulate[d] rationales for [their] policy,” and the court “could thus find the government's
explanation valid and rational, and hold that the plaintiff could not meet his burden of proof.” Id.
(citation, ellipses, and quotation marks omitted).
For all of the foregoing reasons, there is no genuine issue of material fact and Defendants
are entitled to summary judgment on Plaintiff’s First Amendment claims challenging Defendants’
approved vendor restrictions during his incarceration at the OCPF. For the same reasons, Plaintiff
is not entitled to summary judgment on these claims.
c.

Newspaper Articles and Internet Printouts

Finally, Plaintiff claims that Defendants violated his First Amendment rights by restricting
his access to newspaper articles and internet printouts during his incarceration at the OCPF. (Doc.
119 at 14-19.) Defendants rejected Plaintiff’s mail as a result of these restrictions on two
occasions.25 First, on July 2, 2014, Defendants rejected mail from Plaintiff’s mother because it
contained printouts of internet articles. (Doc. 1-1 at 150-59.) The Mail Rejection Form, which
Defendant Moreno signed, gave as the reason for the rejection that “Internet articles [are] not
allowed.” (Id. at 150.)

Plaintiff submitted an informal complaint regarding this rejection, in

25

In their Martinez Report, Defendants cite to a portion of Plaintiff’s amended complaint listing eight types of mail
that Plaintiff claims were rejected because they included internet printouts. (Doc. 142 at 9-10.) However, the cited
portion of the amended complaint concerns mail that the GCCF rejected and is therefore irrelevant to the Court’s
analysis here. (See Doc. 119 at 19.)

31

response to which F. Muniz stated, “[t]he articles sent to you by mail must come from the
publisher.” (Id. at 153.) Plaintiff then submitted a formal grievance, in response to which
Defendant Moreno stated that publications will be delivered to an inmate “if they are received
directly from the publisher or [vendor] upon approval.” (Id. at 156.) In a subsequent memo, K.
Boyd added that, “[a]fter further review . . . [n]either NMCD policy nor MTC policy specifically
state that you are or not allowed information downloaded from the internet. The issue would need
approval from the Warden concerning the information that you are requesting.” (Id. at 157.) There
is no record evidence indicating whether Plaintiff subsequently requested the warden’s approval
for the internet articles rejected on July 2, 2014.
Second, on September 8 or 18, 2014,26 Defendants rejected mail from Plaintiff’s mother
because it contained photocopies of newspaper articles. (Id. at 162-68.) The Mail Rejection Form
regarding this mail, which Defendant Moreno signed, gave as the reason for the rejection that
“[n]ewspaper articles [are] not allowed.” (Id. at 162.) Plaintiff submitted an informal complaint
regarding this rejection, to which G. Valle responded by stating that “no newspaper articles will
be allowed through the mail. You may purchase articles through an approved vendor.” (Id. at
163-64.) Plaintiff also submitted a formal grievance, to which L. Eason responded by citing to
NMCD policies stating that “[b]ooks and magazines will be accepted and delivered to inmates if
they are received directly from the publisher or vendor,” and “inmates may acquire books,
magazines, and newspapers from the publisher.” (Id. at 165-67.) L. Eason added that Plaintiff’s
grievance was being dismissed “on the basis of the newspaper not being received from the
publisher.” (Id. at 168.)

26

The pertinent Mail Rejection Form indicates that the mail in question was rejected on September 8, 2014; however,
Plaintiff’s informal complaint and portions of his formal grievance indicate that the mail was rejected on September
18, 2014. (Doc. 1-1 at 162-63, 165.)

32

As previously noted, from March 2013 to October 2016, the OCPF only allowed inmates
to receive publications, including newspapers, from approved vendors; and, from October 2016 to
April 2017, the OCPF only allowed inmates to receive publications, including newspapers, from
approved vendors or the publisher. (Doc. 156 at 13.)
Discerning the OCPF’s policy regarding internet printouts requires a closer examination of
the record evidence. On April 2, 2020, Defendant Martinez attested that the “OCPF allow[ed]
inmates to have some internet printouts after the printouts [were] cleared for security concerns.
OCPF, however, prohibit[ed] internet newspaper printouts due to copyright issues.”27 (Doc. 1421 at 8 (emphasis added).) Similarly, on August 13, 2020, he attested that the OCPF did not allow
“articles printed from the internet.” (Doc. 156 at 14 (emphasis added).)
The Mail Rejection Form regarding Plaintiff’s July 2, 2014 mail indicates that this mail
was rejected because “Internet articles [are] not allowed.” (Doc. 1-1 at 150 (emphasis added).)
Likewise, F. Muniz’s response to Plaintiff’s informal complaint stated, “[t]he articles sent to you
by mail must come from the publisher.” (Doc. 1-1 at 153 (emphasis added).) And, Defendant
Moreno’s response to Plaintiff’s formal grievance indicated that the mail in question contained an
“internet newspaper article” and stated that “[p]ublications . . . will be accepted and delivered to
inmates if they are received directly from the publisher or vendor upon approval.” (Id. at 156
(emphasis added).) Also, OCPF Policy 7-707 was amended on November 13, 2015 to prohibit
“[a]ny publications, copied or printed from the Internet.” (Doc. 142-9 at 19, 22 (emphasis added).)

27

In the same affidavit, however, Defendant Martinez attested that “[c]opies of articles downloaded from the internet
are permitted if they do not pose a serious threat to OCPF’s security or otherwise violate NMCD policies and
procedures.” (Doc. 142-1 at 9.) In considering Defendants’ Motion, the Court must construe this potential
inconsistency in Plaintiff’s favor. The Court will therefore base its proposed findings and recommended disposition
on the more restrictive internet printout policy, i.e., that the OCPF prohibited all articles printed from the internet.

33

Read carefully, this evidence consistently indicates that the OCPF prohibited inmates from
receiving printouts of internet publications, including articles, rather than all internet printouts
categorically.28 The Court is aware of Plaintiff’s declaration that Defendants “denied all of
Plaintiff’s Internet printouts if it was apparent it was printed from the Internet.” (Doc. 150 at 10.)
However, the Court will disregard this declaration because it is conclusory; the only specific
internet materials Plaintiff claims Defendants rejected were those he received in July 2014, which
were undisputedly printouts of articles. See Ellis v. J.R.’s Country Stores, Inc., 779 F.3d 1184,
1201 (10th Cir. 2015) (courts “do not consider conclusory and self-serving affidavits” on summary
judgment). Thus, on the present record, the internet policy Plaintiff challenges is a ban on printouts
of publications, including newspaper articles, from the internet.
Addressing the first Turner factor, i.e., whether the restrictions at issue are rationally
related to a legitimate penological purpose, Turner, 482 U.S. at 89, Defendants proffer two
penological purposes for the OCPF’s restrictions on newspaper articles and printouts of internet
publications. First, Defendants state that the OCPF imposed these restrictions “to comply with
copyright laws.” (Doc. 142 at 10; Doc. 142-1 at 8.) And second, they assert that the OCPF “cannot
allow newspaper or internet articles mailed from unapproved third parties because of security
concerns,” i.e., “to prevent the introduction of contraband” and “illicit content” into the OCPF.
(Doc. 142 at 10; Doc. 142-1 at 7; Doc. 151 at 7.)
Ensuring compliance with federal copyright law is unquestionably a legitimate, neutral
penological purpose. Moreover, prohibiting publications not received directly from an approved
vendor (or from an approved vendor or the publisher) is rationally related to that purpose. See
Waterman v. Commandant, U.S. Disciplinary Barracks, 337 F. Supp. 2d 1237, 1241 (D. Kan.

28

For example, this policy would not prohibit inmates from receiving printouts of personal e-mail messages.

34

2004) (“[T]he policy disallowing non-original source material is rationally related to legitimate
penal objectives,” inter alia, as “a way of deterring inmates from violating copyright laws.”). Like
other publications, newspaper articles and internet publications are likely to be protected by
copyright.
Copyright protection subsists . . . in original works of authorship fixed in any
tangible medium of expression, now known or later developed, from which they
can be perceived, reproduced, or otherwise communicated, either directly or with
the aid of a machine or device.
17 U.S.C. § 102(a). “[O]riginal works of authorship” include “literary works,” i.e.,
works, other than audiovisual works, expressed in words, numbers, or other verbal
or numerical symbols or indicia, regardless of the nature of the material objects,
such as books, periodicals, manuscripts, phonorecords, film, tapes, disks, or cards,
in which they are embodied.
17 U.S.C. § 101 (emphases added); see also generally 17 U.S.C. § 512 (setting forth “[l]imitations
on liability relating to material online” for service providers).
Notwithstanding Plaintiff’s protestations to the contrary, (Doc. 149 at 6-7, 24-25),
copyrighted works can generally only be reproduced or distributed with the copyright owner’s
authorization, regardless of attribution. 17 U.S.C. § 106. There are specific statutory limitations
on the owner’s exclusive rights; however, none of these are broadly applicable to inmates’ receipt
of photocopies or internet printouts of publications from sources other than an approved vendor or
the publisher. See 17 U.S.C. §§ 107-112 (listing limitations to copyright owner’s exclusive rights
in copyrighted works). Thus, requiring inmates to obtain material likely to be copyrighted—such
as a newspaper article—from a source that would almost certainly own the material’s copyright or
have purchased the right to distribute it—such as an approved vendor or a publisher—is rationally
related to the prevention of copyright law violations.29 Likewise, banning the receipt of internet

29

It gives the Court pause that, from March 2013 to October 2016, the OCPF did not permit inmates to obtain
newspaper articles from publishers, even though bona fide publishers would either own the copyright to a work or

35

publication printouts is rationally related to this purpose, because it is unlikely that an inmate
would ever receive such printouts from a source possessing the right to distribute them.
Plaintiff argues that the Second Circuit would not have found a prison ban on newspaper
clippings unconstitutional, and the Ninth Circuit would not have found a prison ban on internet
material unconstitutional, if such bans were rationally related to the prevention of copyright
violations. (Doc. 149 at 34-35; Doc. 150 at 27); see Clement v. Calif. Dep’t of Corr., 364 F.3d
1148, 1152 (9th Cir. 2004) (affirming district court’s decision that prison’s “internet-generated
mail policy” violated the plaintiff’s First Amendment rights); Allen v. Coughlin, 64 F.3d 77, 8081 (2d Cir. 1995) (reversing district court’s decision granting the defendants summary judgment
on the plaintiff’s First Amendment claims challenging the application of a publishers-only rule to
newspaper clippings). However, the prison officials in Clement and Allen did not assert the
prevention of copyright violations as a purpose for the challenged restrictions, and the Clement
and Allen courts thus did not consider or address this purpose. Clement, 364 F.3d at 1152; Allen,
64 F.3d at 80-81. “Questions which merely lurk in the record, neither brought to the attention of
the court nor ruled upon, are not to be considered as having been so decided as to constitute
precedents.” United Food & Commercial Workers Union, Local 1564 of N.M. v. Albertson's, Inc.,
207 F.3d 1193, 1199 (10th Cir. 2000).
Plaintiff also argues that Defendants’ restrictions on newspaper articles and printouts of
internet publications could not have been intended to prevent copyright violations because
Defendants themselves suggested or allowed copyright violations. Most prominently, Plaintiff

have purchased the right to distribute it. Nevertheless, in light of Defendant Martinez’s reasonable observation that
“[a]nyone” could pose as a publisher, and the fact that a counterfeit publisher would not have the right to distribute a
copyrighted work, the Court finds OCPF’s pre-October 2016 policy is rationally related to the prevention of copyright
violations. (Doc. 142-1 at 7.) Moreover, that Defendants decided to tolerate the risk of counterfeit publishers after
October 2016 does not render their prior decision to try to mitigate this risk irrational.

36

declared that Defendants Barba and Moreno told him that if his family removed the web addresses
from the internet articles they mailed him, so that it was “not obvious” they were from the internet,
they would “probably be allowed.”30 (Doc. 149 at 24.) However, there is no record evidence that
Defendants Barba and Moreno, as OCPF mailroom employees, played a role in enacting the
OCPF’s policies restricting newspaper articles and internet printouts. As such, their alleged
willingness to overlook non-obvious violations of these policies has no bearing on the policies’
purpose and fails to create a genuine issue of material fact.31
Turning to Defendants’ second proffered purpose for the challenged restrictions, again,
smuggling prevention is also a legitimate, neutral penological purpose. See Thornburgh, 490 U.S.
at 415 (“[P]rotecting prison security” is “central to all other corrections goals.”). In this regard,
Defendants presented evidence that the
OCPF cannot allow newspaper or internet articles mailed from unapproved third
parties because of security concerns including lacing the papers with drugs like
ketamine and suboxone, hiding contraband in the folded pages, as well as using
such newspapers and internet articles to send coded messages. For example, these
papers can be soaked in drugs, and once they enter OCPF, they are cut into pieces
and sold to inmates. Inmate[s] then dissolve the paper and use the drugs. . . . I also
understand that newspapers and internet printouts from non-publishers can be used
to send coded messages.
(Doc. 156 at 13.)

30

Plaintiff also declared that Defendant Martinez permitted guards to bring in pirated movies for inmates to watch.
(Doc. 149 at 25.) However, Plaintiff has not demonstrated personal knowledge both that the movies were in fact
“pirated” and that Defendant Martinez had reason to know it. Thus, the Court declines to consider this declaration in
recommending a disposition of the parties’ cross-motions for summary judgment. Ellis, 779 F.3d at 1201
(“Information presented in [an] affidavit [on summary judgment] must be based on personal knowledge.”) (quotation
marks omitted).

31

Plaintiff also argues that distributing photocopies and internet printouts of articles does not violate copyright law
because acts such as giving books as gifts and checking them out of the library do not violate copyright law. (Doc.
149 at 24-25.) Without delving too deeply into the intricacies of copyright provisions that have no application in this
case, the Court notes that a person who has purchased her own “particular copy” of a copyrighted work may generally
dispose of that copy as she pleases. 17 U.S.C. § 109. However, photocopies and printouts, by their very nature, will
almost certainly be duplicates of a person’s “particular copy,” which cannot be distributed without the copyright
owner’s authorization. 17 U.S.C. § 106.

37

OCPF’s restrictions requiring inmates to obtain newspaper articles from an approved
vendor (or from an approved vendor or the publisher), and prohibiting the receipt of internet
publication printouts, are also rationally related to limiting contraband and disruptive content.
Defendants’ evidence establishes that these materials can be used to smuggle contraband and
disruptive content into a prison. Attempting to challenge this evidence, Plaintiff asserts that, in his
fifteen years of incarceration, he has never seen or heard of inmates using ketamine in prison, and
has only seen or heard of suboxone being smuggled into prison through visits and transfers, and
never through newspaper articles or internet printouts. (Doc. 159 at 13.) However, these
assertions fail to create a genuine factual dispute for the simple reason that, notwithstanding his
lengthy incarceration, Plaintiff lacks personal knowledge of every substance other inmates have
used or might use while incarcerated and every way in which inmates have smuggled or could
smuggle these substances into a prison.
Plaintiff also argues that Defendants’ restrictions on newspaper articles and internet
printouts are not rationally related to smuggling prevention because “[r]egular written
correspondence and typed correspondence can be used in the very same ways Defendants suggest
printed Internet articles and newspaper articles may be used.” (Doc. 159 at 13-17 (citing Clement,
364 F.3d at 1152 and Allen, 64 F.3d at 79-82).) However, again, the Court declines to secondguess Defendants’ rational professional judgments regarding which security risks to tolerate and
which to mitigate, in light of the Supreme Court’s clear directive that these judgments are entitled
to deference. Beard, 548 U.S. at 529–30; Turner, 482 U.S. at 84–85. To the extent that the
Clement and Allen decisions relied on this kind of second-guessing, the Court recommends
declining to follow them.

38

In short, Defendants reasonably believed that the challenged restrictions would
significantly reduce the likelihood that inmates’ receipt of newspaper articles and internet
publication printouts would violate copyright laws or that these materials would be used to
introduce contraband and disruptive content into the OCPF, by ensuring that these materials came
only from secure and legitimate sources. Sperry, 413 F. App’x at 40. For these reasons,
Defendants’ restrictions on Plaintiff’s receipt of photocopies of newspaper articles and printouts
of internet publications satisfy the first Turner factor.
With respect to the second Turner factor, i.e., “whether there are alternative means of
exercising the right that remain open to prison inmates,” Turner, 482 U.S. at 90, again, “‘the right’
in question must be viewed sensibly and expansively.” Thornburgh, 490 U.S. at 417. Thus, the
Supreme Court has found that prison regulations “permit[ting] a broad range of publications to be
sent, received, and read” by inmates “clearly satisf[y]” this factor. Id. at 418. Here, as previously
discussed, it is undisputed that Plaintiff could access thousands of publications—including books,
magazines, and newspapers—from the OCPF library, the interlibrary loan program, approved
vendors, and, after October 2016, publishers.
Admittedly, as Plaintiff argues, many newspapers do not sell articles individually, and
“[s]ubscriptions are not entirely substitutable for clippings because subscribing requires inmates
to anticipate which papers might have articles that they like to read and to subscribe to all such
papers,” and also requires “the expenditure of personal wealth.” Allen, 64 F.3d at 80. Thus, the
Court understands that the alternatives available to Plaintiff were not “ideal,” Jones, 503 F.3d at
1153, or “the best method from the inmate’s point of view.” Wardell, 470 F.3d at 961–62.
Nevertheless, because Plaintiff could access a “broad range” of publications, Defendants’

39

restrictions on newspaper articles and internet printouts also satisfy the second Turner factor.
Thornburgh, 490 U.S. at 418.
As previously noted, the third Turner factor requires the Court to consider “the impact
accommodation of the asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally.” Turner, 482 U.S. at 90. In this regard, as the
Waterman court observed,
if inmates were allowed to receive photocopies or Internet-generated materials from
non-original sources, [prison] staff would undoubtedly have to expend much
greater personnel resources to screen the material for . . . copyright violations,
thereby increasing the workload on staff.
Waterman, 337 F. Supp. 2d at 1241–42. Given the complexity of copyright law, such screening
would have imposed a near-impossible administrative burden on the OCPF. In addition, as
Defendant Martinez attested, requiring the OCPF to process and thoroughly inspect newspaper
articles and printouts of internet publications “from non-approved vendors would burden the
administration, make it difficult if not impossible to comply with . . . time constraints, and
potentially disadvantage other inmates whose mail would be delayed.” (Doc. 142-1 at 8.) Plaintiff
has not asserted any argument to contradict these points that the Court has not already addressed
and rejected in this section and Section III.B.2.b., supra. For all of the reasons discussed, the third
Turner factor also supports the constitutional validity of Defendants’ restrictions on newspaper
articles and printouts of internet publications.
Finally, with respect to the fourth Turner factor, Plaintiff has pointed to no easy, obvious
alternative that would fully accommodate his right to access newspaper articles and internet
publications at de minimis cost to the OCPF. Turner, 482 U.S. at 90–91. Plaintiff suggests that
the OCPF could have allowed inmates to access publications via the internet by distributing tablets
and installing firewalls on them to prevent inmates from accessing disruptive content. (Doc. 159
40

at 14.) However, on its face, this suggested alternative involves considerably more than de minimis
costs to the prison. Thus, the fourth Turner factor also weighs in Defendants’ favor with respect
to the challenged restrictions on newspaper articles and internet printouts.
In sum, viewing the record evidence in the light most favorable to Plaintiff and drawing all
reasonable inferences in his favor, each Turner factor supports the constitutional validity of the
challenged restrictions on newspaper articles and internet publication printouts. There being no
genuine issue of material fact, Defendants are also entitled to judgment as a matter of law on
Plaintiff’s claims that Defendants violated his First Amendment rights by restricting his access to
these materials. For the same reasons, Plaintiff is not entitled to summary judgment on these
claims.
C.

Plaintiff’s First Amendment Retaliatory Transfer Claim
Finally, in their Motion, Defendants seek summary judgment on Plaintiff’s First

Amendment retaliatory transfer claim against Defendant Martinez. (Doc. 143 at 22-25.) In this
claim, Plaintiff alleges that Defendant Martinez requested his transfer from the OCPF to another
facility because he exercised his First Amendment rights by filing and serving the present lawsuit.
(Doc. 119 at 43-50.) “It is well-settled that prison officials may not retaliate against or harass an
inmate because of the inmate's exercise of his right of access to the courts.” Gee, 627 F.3d at 1189
(quotation mark and alterations omitted).
While a prisoner enjoys no constitutional right to remain in a particular institution
and generally is not entitled to due process protections prior to such a transfer,
prison officials do not have the discretion to punish an inmate for exercising his
first amendment rights by transferring him to a different institution.
Frazier v. Dubois, 922 F.2d 560, 561–62 (10th Cir. 1990).
However,
it is not the role of the federal judiciary to scrutinize and interfere with the daily
operations of a state prison, and our retaliation jurisprudence does not change this
41

role. Obviously, an inmate is not inoculated from the normal conditions of
confinement experienced by convicted felons serving time in prison merely because
he has engaged in protected activity. Accordingly, a plaintiff must prove that but
for the retaliatory motive, the incidents to which he refers . . . would not have taken
place. An inmate claiming retaliation must allege specific facts showing retaliation
because of the exercise of the prisoner’s constitutional rights.
Peterson v. Shanks, 149 F.3d 1140, 1144 (10th Cir. 1998) (emphasis in original) (citation and
quotation marks omitted); see Frazier, 922 F.2d at 562 n.1 (“Mere allegations of constitutional
retaliation will not suffice; plaintiffs must rather allege specific facts showing retaliation because
of the exercise of the prisoner’s constitutional rights.”).
For example, the Tenth Circuit found that a prisoner sufficiently alleged specific facts
showing unconstitutional retaliation where he alleged “that Defendants were aware of his protected
activity, that his protected activity complained of Defendants’ actions, and that the transfer was in
close temporal proximity to the protected activity.”32 Gee, 627 F.3d at 1189; see also Allen v.
Avance, 491 F. App’x 1, 6 (10th Cir. 2012) (“Our cases allow an inference of whether the
defendant[s’] response was substantially motivated by protected conduct where evidence showed
(1) the defendants were aware of the protected activity; (2) the plaintiff directed his complaint to
the defendants’ actions; and (3) the alleged retaliatory act was in close temporal proximity to the
protected activity.”) (quotation marks omitted); cf. Trant v. Oklahoma, 754 F.3d 1158, 1170 (10th
Cir. 2014) (“[T]emporal proximity between the protected speech and the alleged retaliatory
conduct, without more, does not allow for an inference of a retaliatory motive.”).

32

In the employment context, the Tenth Circuit explained the concept of “close temporal proximity” as follows:
[i]t appears clear that, if the adverse action occurs in a brief period up to one and a half months after
the protected activity, temporal proximity alone will be sufficient to establish the requisite causal
inference; but it is equally patent that if the adverse action occurs three months out and beyond from
the protected activity, then the action's timing alone will not be sufficient to establish the causation
element.

Conroy v. Vilsack, 707 F.3d 1163, 1181–82 (10th Cir. 2013).

42

A prisoner may also show retaliatory motive via “specific, objective facts from which it
could plausibly be inferred” that the reason given for the adverse act “was pretextual.” Banks v.
Katzenmeyer, 645 F. App’x 770, 773 (10th Cir. 2016).
Here, Plaintiff filed his original complaint in state court on November 14, 2016. (Doc. 11 at 1.) Defendant Martinez attested that he “became aware of the Plaintiff’s original Complaint .
. . on December 21, 2016 and . . . was served with this lawsuit on February 3, 2017.”33 (Doc. 1421 at 10.) He further attested that, while he does not recall the exact date on which he requested
Plaintiff’s transfer from the OCPF, he estimates that it was “sometime between” February 23, 2017
and March 21, 2017. (Doc. 156 at 14.)
According to Defendant Martinez, “[t]he decision to request Plaintiff’s transfer was
unrelated to his history of filing grievances in OCPF or the initiation of this lawsuit.” (Doc. 1421 at 10; Doc. 156 at 14.) Rather, Defendant Martinez attested that he requested Plaintiff’s transfer
because Plaintiff “violated OCPF and NMCD policy.” (Doc. 142-1 at 10.) Specifically, Defendant
Martinez attested that
Pastor Koehne was a church volunteer at OCPF. On February 23, 2017, Pastor
Koehne admitted to accepting letters from Plaintiff during Pastor Koehne’s
religious visits to OCPF, and then mailing these letters for inmate Whitehead after
leaving OCPF premises. Plaintiff’s actions violated both OCPF and NMCD mail
policies and procedures that limit the means and methods of how inmates
communicate outside of OCPF. . . . Because Plaintiff circumvented NMCD
policies through using a religious volunteer to pass mail, which threatened the
safety and security of OCPF as well as the public, I requested that NMCD transfer
Plaintiff from OCPF.34
33

Plaintiff insists that Defendant Martinez committed perjury by attesting that he was served with process on February
3, 2017, and that he was actually served on February 17, 2017. (Doc. 149 at 6, 30; Doc. 159 at 17.) However, Plaintiff
appears to have misread the year as the day on the return of service, which in fact reflects that Defendant Martinez
was served on February 3, 2017. (Doc. 1-1 at 260-61.) Plaintiff is admonished to exercise greater care to avoid falsely
accusing an opposing party of perjury in future pleadings.

34

The NMCD policy in question provides that “[a]ll inmates’ mail or packages, both incoming and outgoing, shall be
opened and inspected for contraband and to intercept cash, checks or money orders. Mail is read and accepted or
rejected based on legitimate institutional interests of order and security.” (Doc. 142-3 at 3.)

.

43

(Doc. 142-1 at 9.)
However, Plaintiff disputes Defendant Martinez’s proffered reason for requesting
Plaintiff’s transfer and submitted evidence that Mr. Koehne did not admit to accepting letters from
Plaintiff during religious visits and mailing the letters after leaving the prison.35 Specifically,
Plaintiff submitted the declarations of Mr. Koehne and his senior pastor, Timothy Brock.36 In his
declaration, Mr. Koehne stated that, when he and Mr. Brock met with Defendant Martinez and
other OCPF officials,37
they asked me if I received anything from the inmates and I replied, “Yes they give
me letters all the time. I’ve even requested some and I still have all of them!”
WELL, as soon as words came out of my mouth the atmosphere in the room
changed and I could tell something was wrong. Even after clarifying that these
were mailed letters, they made it clear that the meeting was over.
(Doc. 119 at 314 (capitalization in original) (italics added).) Mr. Brock, in turn, declared that Mr.
Koehne “said that he had taken letters from an inmate in the past, and that he still probably had

35

Plaintiff also submitted evidence that he in fact never gave Mr. Koehne anything to sneak out of the OCPF. (Doc.
119 at 314; Doc. 149 at 6; Doc 150 at 11.) However, this evidence is immaterial. As further discussed below, at issue
is not whether Plaintiff in fact used Mr. Koehne to pass mail out of the OCPF, but rather whether Defendant Martinez
believed he did and acted in good faith on that belief. See Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007)
(“The relevant inquiry is not whether [the defendants’] proffered reasons were wise, fair or correct, but rather . . .
whether they believed those reasons to be true and acted in good faith upon those beliefs.”) (quotation marks omitted).

36

These declarations are undated. (Doc. 119 at 314-15.) Generally, to have the same force and effect as an affidavit,
a declaration must be “subscribed . . . as true under penalty of perjury, and dated.” 28 U.S.C. § 1746 (emphasis
added). However, “the absence of a date does not render a declaration invalid if extrinsic evidence demonstrates . . .
the period in which the declaration is signed.” Richardson v. Gallagher, 553 F. App’x 816, 827–28 (10th Cir. 2014).
Here, Plaintiff’s Motion for Hearing and/or Decision on Plaintiff[’]s Request for a Preliminary Injunction (Doc. 44),
which included letters from Mr. Koehne and Mr. Brock substantively identical to their declarations, was filed on May
30, 2017, (see id. at 6-7); and, Plaintiff’s Motion to Allow Plaintiff to Cure Deficiency in Affidavits by Perry Koehne
and Timothy Brock (Doc. 86), in which Plaintiff first submitted the declarations in their current form, was filed on
September 20, 2017. (See id. at 3-4.) These documents demonstrate that Mr. Koehne and Mr. Brock signed their
declarations between May 30, 2017 and September 20, 2017, and the Court will therefore excuse the lack of a date on
the declarations.
37

Mr. Koehne and Mr. Brock declared that this meeting occurred on March 22, 2017, whereas Defendant Martinez
attested that it occurred on February 23, 2017. (Compare Doc. 19-1 at 3 and Doc. 142-1 at 9 with Doc. 119 at 31415.) There is no indication in the record that Mr. Koehne and Mr. Brock met with Defendant Martinez more than
once to discuss whether Plaintiff used Mr. Koehne to pass mail out of the OCPF; thus, they appear to be referring to
the same meeting.

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them. Later [Mr. Koehne] clarified that he did not take them from the prison, but those letters
were mailed to him.” (Id. at 315 (emphasis added).)
Based on the record currently before the Court, Defendants have not met their summary
judgment burden with respect to Plaintiff’s First Amendment retaliatory transfer claim. Initially,
on the present record, there is evidence “that Defendant[ Martinez was] aware of [Plaintiff’s]
protected activity, that [Plaintiff’s] protected activity complained of Defendant[ Martinez’s]
actions, and that the transfer [request] was in close temporal proximity to the protected activity.”
Gee, 627 F.3d at 1189. Specifically, there is close temporal proximity between February 3, 2017,
the date on which Defendant Martinez was served with Plaintiff’s original complaint, and February
23, 2017, the earliest date on which Defendant Martinez may have requested Plaintiff’s transfer.38
In addition, there is evidence that, on the current record, could support an inference of
pretext. Specifically, on the current record, Mr. Koehne’s and Mr. Brock’s declarations permit the
inference that Mr. Koehne denied allowing Plaintiff to use him to pass mail and thus that Defendant
Martinez did not request Plaintiff’s transfer in good faith on the belief that Plaintiff used Mr.
Koehne in this fashion.39 See Piercy v. Maketa, 480 F.3d 1192, 1200 (10th Cir. 2007) (“The
relevant inquiry is . . . whether [the defendants] believed [their proffered] reasons to be true and
acted in good faith upon those beliefs.”) (quotation marks omitted). As such, the Court cannot say
that there are no genuine issues of material fact with respect to Plaintiff’s First Amendment
retaliatory transfer claim at this time.40

38

Although Defendant Martinez attested that he “became aware of” Plaintiff’s state court complaint on December 21,
2016, there is presently no record evidence that he knew anything about its contents—such as the fact that it included
claims against him and the allegations supporting those claims—before February 3, 2017. (See Doc. 142-1 at 10.)

39

The Court notes that, to date, none of Defendant Martinez’s affidavits have addressed whether Mr. Koehne denied
allowing Plaintiff to use him to pass mail and, if so, whether Defendant Martinez discredited that denial in good faith.

40

Plaintiff also declared that other OCPF inmates who engaged in misconduct were treated differently, and that GCCF
Warden Vincent Horton told Plaintiff that Defendant Martinez told Warden Horton to deny Plaintiff access to

45

Defendant Martinez argues that he is nevertheless entitled to summary judgment on
Plaintiff’s First Amendment retaliatory transfer claim because “Plaintiff was convicted of the
disciplinary charges” at issue. (Doc. 143 at 24.) In so arguing, however, Defendant Martinez
oversimplifies the rule on which he relies and ignores the dearth of evidence supporting this
defense. It is true that
an inmate cannot state a claim of retaliation for a disciplinary charge involving a
prison rule infraction when a hearing officer finds that the inmate committed the
actual behavior underlying that charge and affords the inmate adequate due process.
Chapman v. Lampert, 711 F. App’x 455, 458 (10th Cir. 2017) (quotation marks omitted); see also,
e.g., O’Bryant v. Finch, 637 F.3d 1207, 1215 (11th Cir. 2011) (“If a prisoner is found guilty of an
actual disciplinary infraction after being afforded due process and there was evidence to support
the disciplinary panel’s fact finding, the prisoner cannot later state a retaliation claim against the
prison employee who reported the infraction in a disciplinary report.”) (emphasis in original);
Allmon v. Wiley, No. 08-CV-01183-MSK-CBS, 2011 WL 4501941, at *8 (D. Colo. Aug. 25,
2011), report and recommendation adopted, No. 08-CV-01183-MSK-CBS, 2011 WL 4501937
(D. Colo. Sept. 27, 2011), aff'd, 483 F. App’x 430 (10th Cir. 2012) (same).
Here, however, there is very little record evidence regarding what process Plaintiff received
before he was transferred, and none to show that a hearing officer afforded him adequate due

information regarding his lawsuit. (See, e.g., Doc. 119 at 53; Doc. 149 at 28-29; Doc. 159 at 20, 26-33.) However,
the Court will disregard this evidence because the former is irrelevant absent some indication that the other inmates
were similarly situated to Plaintiff, and the latter is inadmissible hearsay. See Timmerman v. U.S. Bank, N.A., 483
F.3d 1106, 1120 (10th Cir. 2007) (plaintiff may show retaliatory motive via evidence that he was treated differently
from other “similarly-situated” persons who violated “rules of comparable seriousness”); Fed. R. Evid. 801(c), (d)
(non-party’s out-of-court statement offered to prove the truth of the matter asserted is hearsay); Fed. R. Evid. 802
(hearsay is generally inadmissible). Moreover, the Court denies Plaintiff’s request for “[a] list of men who received
disciplinary reports and had disciplinary action taken against them from 2013-2017” to determine whether his transfer
was “in line with actions taken against other inmates.” (Doc. 150 at 32.) Plaintiff has pointed to no other OCPF
inmate accused of an infraction similar to the one with which he was charged who received a lighter punishment, and
the requested information is thus neither relevant nor proportional to the needs of the case. Fed. R. Civ. P. 26(b)(1).

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process and found that he committed the actual behavior underlying the charge against him. The
record reflects that, in general, the OCPF’s inmate transfer process is as follows:
[i]nmates are served a 48-hour hearing notice, advising the inmate they are being
scheduled for committee. . . . They have a right to appear or waive the committee.
. . . Inmates then will go to committee on scheduled dated [sic]. During the
committee the inmates are advised they are being recommended for transfer. The
inmates will then sign the transfer committee chronology and are advised they have
15 days to appeal the committee. . . . Committee action is then entered into Criminal
Management Information System for NMCD to review and approve or deny.
(Doc. 142-1 at 10.) The record does not indicate what process, if any, inmates are afforded if they
elect to appear at a transfer committee, including whether they are notified of the reasons for the
proposed transfer or given an opportunity to respond to any allegations of misconduct underlying
the transfer request.
With respect to Plaintiff’s transfer in particular, it is undisputed that: (a) Plaintiff received
a 48-hour hearing notice and “appear[ed]” before a transfer committee41; (b) “the committee
determined that Plaintiff should be transferred to an alternate Level 3 facility because [he] ‘meets
criteria for transfer’”; and, (c) Plaintiff submitted a written appeal of this determination.42 (Doc.
119 at 296-99; Doc. 156 at 14, 20-21.) However, there is no evidence regarding what happened
at the transfer committee hearing, no evidence of why the committee determined that he “m[et]
criteria for transfer,” and no evidence that he received notice of the charge against him and an
opportunity to challenge it before the hearing occurred and his deadline to appeal expired. On the
contrary, with respect to the allegation that he used Mr. Koehne to pass mail, Plaintiff declared,

41

In his response to Defendants’ Supplemental Martinez Report, Plaintiff alleged that the “committee hearing”
consisted of him meeting with a single caseworker who, when asked about the reason for the transfer, told him only
that the warden had requested it. (Doc. 159 at 18.) However, again, Plaintiff did not make these allegations under
penalty of perjury and, as such, the Court cannot consider them as evidence in ruling on the parties’ summary judgment
motions. 28 U.S.C. § 1746; Hall, 935 F.2d at 1111.

42

Plaintiff’s transfer appeal does not refer to any proffered reason for his transfer. (Doc. 119 at 296-99.)

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and at this time Defendants have presented no evidence to dispute, that Plaintiff “never received a
disciplinary report nor did he go through any disciplinary hearing where he could see the charges
and call or confront witnesses and see the evidence against him.” (Doc. 150 at 11.)
On the foregoing record, there is at least a genuine issue of material fact regarding whether
a hearing officer afforded Plaintiff adequate due process and found him guilty of an actual
disciplinary infraction in connection with the transfer at issue. Thus, Defendant Martinez is not
presently entitled to summary judgment on Plaintiff’s First Amendment retaliatory transfer claim
based on the process Plaintiff received.43 For all of these reasons, the Court recommends that
Defendants’ motion for summary judgment on Plaintiff’s First Amendment retaliatory transfer
claim be denied at this time.
IV. Conclusion
The Court recommends that Plaintiff’s Motion for Partial Summary Judgment against
MTC Defendants (Doc. 124) be DENIED because, viewing the evidence in the light most
favorable to Defendants and drawing all reasonable inferences in their favor, Plaintiff has failed to
show the absence of a genuine issue of material fact and that he is entitled to judgment as a matter
of law on his First Amendment claims based on Defendants’ policies restricting his access to
information while he was incarcerated at the OCPF. The Court further recommends that OCPF
Defendants’ Motion for Summary Judgment (Doc. 143) be GRANTED as to Plaintiff’s First
Amendment access-to-information claims against Defendants because, viewing the record

43

Defendant Martinez also hints that he should be granted summary judgment on Plaintiff’s retaliatory transfer claim
by observing that, though he was the person who requested Plaintiff’s transfer, “[o]nly NMCD has the authority to
grant or deny . . . transfer requests.” (Doc. 143 at 24; Doc. 156 at 14.) However, Defendant Martinez does nothing
to develop this argument and cites no authority to support it, and the Court therefore declines to consider it at this
time. See Phillips v. Hillcrest Med. Ctr., 244 F.3d 790, 800 n.10 (10th Cir. 2001) (“A litigant who fails to press a
point by supporting it with pertinent authority, or by showing why it is sound despite a lack of supporting authority or
in the face of contrary authority, forfeits the point. The court will not do his research for him.”) (brackets omitted).

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evidence in the light most favorable to Plaintiff and drawing all reasonable inferences in his favor,
there is no genuine issue as to any material fact and Defendants are entitled to judgment as a matter
of law on these claims. However, the Court recommends that Defendants’ Motion be DENIED as
to Plaintiff’s First Amendment retaliatory transfer claim against Defendant Martinez because
Defendants have failed to meet their summary judgment burden with respect to this claim.

THE PARTIES ARE NOTIFIED THAT WITHIN 14 DAYS OF SERVICE of a copy of these
Proposed Findings and Recommended Disposition they may file written objections with the Clerk
of the District Court pursuant to 28 U.S.C. § 636(b)(1). A party must file any objections with
the Clerk of the District Court within the fourteen-day period if that party wants to have
appellate review of the proposed findings and recommended disposition. If no objections are
filed, no appellate review will be allowed.

________________________________________
KIRTAN KHALSA
UNITED STATES MAGISTRATE JUDGE

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