Hughbanks v. Dooley et al
Filing
116
ORDER granting 58 Motion for Summary Judgment. Signed by Chief Judge Karen E. Schreier on 2/2/2012. (KC)
UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN L. HUGHBANKS,
Plaintiff,
vs.
ROBERT DOOLEY, Warden, Mike
Durfee State Prison, a/k/a Bob
Dooley;
TIM REISCH, Cabinet Secretary, SD
DOC;
SUSAN JACOBS, Associate Warden,
Mike Durfee State Prison;
TAMI DEJONG, Unit Coordinator,
MDSP;
RANDY STEVENS, Sco. Property
Officer, MDSP; and
NICHOLE ST. PIERRE, Sco. Property
Officer, MDSP;
Defendants.
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Civ. 10-4064-KES
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT
Plaintiff, Kevin L. Hughbanks, filed a pro se civil rights lawsuit under
42 U.S.C. § 1983 against defendants. Defendants move for summary
judgment. Hughbanks opposes their motion. Defendants’ motion is granted.
I.
FACTUAL BACKGROUND
In the light most favorable to Hughbanks, the nonmoving party, the
facts are as follows: Hughbanks is incarcerated at the Mike Durfee State
Prison in Springfield, South Dakota. Docket 60 at ¶ 1. Although Hughbanks
denies this, his mailing address indicates he is incarcerated there. Docket
110 at ¶ 1. Hughbanks is a convicted sex offender, serving a sentence for
third-degree rape and possession of child pornography. Docket 60 at ¶ 1.
While Hughbanks also denies this, he has not cited to any evidence in the
record to support his contention. See Docket 34-1, Hughbanks’ Classification
Custody Form (showing Hughbanks is serving a ten-year sentence for thirddegree rape and possession of child pornography).
Hughbanks asserts his claims against defendants in both their
individual and official capacities. Docket 60 at ¶ 8. Hughbanks challenges the
South Dakota Department of Corrections’ (DOC) correspondence policy,
claiming that it violates the First and Fourteenth Amendments because the
policy provides that unsolicited third-class/bulk-rate mail and free catalogs
will not be delivered to inmates and inmates will not receive a rejection notice
when these items are not delivered. Second, Hughbanks claims defendants
violated his First Amendment rights when they rejected the books Dirty
Spanish and The Quotable Bitch.1 Hughbanks’ third claim is that security
officer Randy Stevens subjected him to cruel and unusual punishment in
1
In his brief, Hughbanks appears to be attempting to assert due process
claims relating to the rejection notices he was provided and the administrative
remedy process relating to the denial of the books. These allegations were not
included in Hughbanks’ first complaint. Nor were they among the claims the
court permitted him to add in his amended complaint. See Docket 51, Order
Granting in Part and Denying in Part Hughbanks’ Motion to Amend His
Complaint; Docket 69, Amended Complaint. Thus, the court will not consider
these claims.
2
violation of the Eighth Amendment by making comments, which Hughbanks
characterizes as threats, in front of other inmates. Hughbanks asks that
“prison officials deliver all mail that is sent to him that does not directly
violate policy, including catalogs, magazines and pictures” and that “prison
officials be ordered to stop using the rate/cost of postage or the cost of the
item (catalogs) as a means to determine whether the item will be allowed or
not.” Docket 110 at ¶ 7. Hughbanks also seeks an order that prison officials
provide him with Dirty Spanish and The Quotable Bitch. Finally, Hughbanks
requests compensatory and punitive damages.
A.
The Bulk-Rate Mail Ban and Rejection Notices
Inmate mail at the Mike Durfee State Prison is divided into two
categories-packages and other correspondence. Docket 60 at ¶ 9. Packages
are sent to the property office and generally contain books or personal
property. Id. Magazines, catalogs, letters, and other correspondence are
generally sent to the mailroom, although some catalogs are contained within
packages sent to the property office. Id. Different staff work in each area. Id.
at ¶ 10. Currently, Randy Stevens works in the property office and Nicole St.
Pierre works in the mailroom. Id. The volume of mail varies that they are
responsible for receiving, viewing, and processing. Id. at ¶ 11. Stevens
estimates that he handles “roughly 30-35 incoming inmate packages per
week, depending on the time of year.” Id. St. Pierre estimates that she receives
3
and reviews approximately “350 letters, 50 magazines, 225 inmate outgoing
letters, and 85 newspapers and packages each day, based on a recent count
in January 2011.” Id. Both Stevens and St. Pierre have additional
responsibilities as well. Id. Hughbanks disputes this, asserting that “[m]ost of
the actual work that is performed in the property office is performed by
twenty-five cents per hour inmate workers that [Stevens] employees [sic].”
Docket 110 at ¶ 11. When the mailroom and property staff receive and review
inmate mail, they follow both DOC and Mike Durfee State Prison (MDSP)
policies, including the DOC Offender Correspondence, DOC Pornography,
DOC Inmate Personal Property, and MDSP Memorandum– Inmate Personal
Property policies. Docket 60 at ¶ 12. Hughbanks disputes this. Docket 110 at
¶ 12.
The DOC correspondence policy implemented at MDSP and all state
correctional institutions provides that, “[f]ree advertising materials, fliers,
non-subscriptive third class/bulk rate mail, non-subscriptive or free
catalogues or pamphlets will not normally be delivered to offenders.” Docket
60 at ¶ 13. Because the policy provides that these materials will not be
delivered if they are received, staff are not required to notify the inmate that
the materials have been destroyed. Id. at ¶ 14. There is also no requirement
that prison staff notify the publisher or other correspondent if an item is
rejected or destroyed. Id. Hughbanks interprets this policy differently, arguing
4
“[s]tating that an item will not be delivered to an inmate in policy does not
mean a rejection notice [to the inmate] is not required.” Docket 110 at ¶ 14.
The prison receives a substantial amount of free advertising materials,
fliers, non-subcriptive third-class/bulk-rate mail, and non-subscriptive or
free catalogs or pamphlets. Docket 60 at ¶ 15. During January 2011, St.
Pierre received and destroyed approximately 140 materials of this nature per
week. Id. January is one of the slower mail months. Id. Stevens estimates he
destroys approximately 10 materials of this nature per week. Id. Some bulk
mail, like Bargain Books catalogs, are shipped to the prison in loads of 75100 pieces at one time. Id. Hughbanks points out that the prison also receives
“requested [solicited] third-class/bulk rate mail and catalogs addressed to
inmates.” Docket 110 at ¶ 15.
Hughbanks appealed the correspondence policy’s ban on bulk-rate mail
using the administrative remedy process. On May 1, 2010, Hughbanks filed
an informal resolution request, arguing that the mailroom was not complying
with the policy. Docket 60, ¶ 32. Hughbanks thought the policy required
mailroom staff to notify him whenever any correspondence, including bulkrate mail, was rejected and the reason for the rejection. Id. He requested that
he receive notice of any piece of mail not delivered to him. Id. Defendant Tami
DeJong responded by identifying the policy language, which provided that free
advertising materials, including non-subscriptive or free catalogs, will
5
normally not be delivered to offenders. Id. Hughbanks subsequently filed a
request for an administrative remedy, arguing that the mailroom staff was not
delivering his catalogs and he had not received any mailroom rejection
notices. Id. Defendant Susan Jacobs investigated Hughbanks’ claim and
prepared a response for Warden Dooley. Id. at ¶ 35. Warden Dooley stated in
his response that free advertising materials, fliers, non-subscriptive thirdclass/bulk-rate mail, non-subscriptive or free catalogs, or pamphlets are not
required to be delivered to inmates and do not require a rejection notice. Id.
Hughbanks subsequently filed grievances and administrative remedy
requests alleging that the policy violated his First and Fourteenth Amendment
rights and the First and Fourteenth Amendment rights of publishers. Id. at
¶¶ 26, 40. Defendants responded with the language of the correspondence
policy and by noting that the policy would be reviewed on an annual basis. Id.
at ¶¶ 26-43.
B.
The Rejected Books
The DOC correspondence policy provides that correspondence or
publications may be rejected if it encourages sexual behavior or may be
detrimental to an offender’s rehabilitation. Id. at ¶ 44. The policy specifically
states that “included in this category are writings or illustrations depicting or
describing child pornography, bestiality, homosexuality, or acts of sexual
violence.” Docket 62-3, Offender Correspondence Policy.
6
Under the DOC pornography policy, pornography and sexually explicit
material are considered contraband. Docket 60 at ¶ 46. Pornographic material
is defined as “books, pamphlets, magazines, periodicals, or any other
publication or materials that feature nudity or sexually explicit conduct” or
“features or includes photographs, drawings, or other graphic depictions of
nudity or sexually explicit material.” Id. at ¶ 46. Under the policy, sexually
explicit is defined as “written or pictorial depictions of actual or simulated
sexual acts including but not limited to sexual intercourse, oral sex, or
masturbation.” Id. at ¶ 47. Moreover, under the sex offender restrictions
policy, the warden may prohibit any sex offender from possessing specific
items of personal property. Id. at ¶ 48.
Hughbanks is a convicted sex offender. His psychosexual evaluation
provides that he should not be allowed any use of or exposure to
pornography, erotica, or access to the Internet. Id. at ¶ 49. Hughbanks
received one disciplinary report for having a pornographic picture of an adult
woman and one disciplinary report for engaging in consensual sexual contact
with another inmate. Docket 110 at ¶ 50.
Mailroom and property office staff review every item of mail for
contraband and prohibited content. If they find pictures or words that they
think contain prohibited material, they may ask their supervisor or the
associate warden to review the material. Docket 60 at ¶ 51. If the
7
correspondence is a book, magazine, or other mailing that has been
previously rejected for its content, they may automatically reject the book
without forwarding it to a supervisor or assistant warden. Id. When Associate
Warden Jacobs reviews a mailing, she sometimes asks Warden Dooley to help
her review the item to determine whether it should be rejected. Id. at ¶ 52. If
she determines the mailing should be rejected, the inmate recipient receives a
mailroom correspondence rejection notice. Id. If correspondence is rejected, it
may be returned to sender or discarded by request of the inmate or by his
failure to respond to the rejection notice. Id. at ¶ 54. In the alternative, the
portion of the mailing not in violation of the policy may be given to the
offender. Id. Hughbanks claims that inmates are also permitted to have the
rejected item mailed out to others. Docket 110 at ¶ 54. The inmate must
provide written notice to mailroom staff advising whether the correspondence
is to be returned to sender or destroyed; if the inmate fails to provide such
notice within 60 days, the item is destroyed. Docket 60 at ¶ 55. Inmates may
use the administrative remedy process to appeal a rejection notice. Id. at
¶ 56.
On March 16, 2010, defendant Randy Stevens was responsible for
reviewing inmate mail. Id. at ¶ 57. Hughbanks received eight books that day;
seven did not contain any prohibited material. Id. The eighth, Dirty Spanish,
8
was rejected because it contained offensive terms and some sexually explicit
drawings. Id. Hughbanks disputes that the book contained offensive terms
and sexually explicit drawings, noting that he has not been permitted to view
the book. Docket 110 at ¶ 57.
Stevens sent Hughbanks a rejection notice, informing him that the
book was rejected because it violated a prohibited act or any other rule,
regulation, or directive governing the DOC and the prison and because it
advocates violence or may cause violence or disruption. Docket 60 at ¶ 58.
Hughbanks concedes that these were the reasons given, but he objects to
defendants’ characterization of the book. After receiving the rejection notice,
Hughbanks had the book mailed to his mother, Martha Hughbanks. Docket
60 at ¶ 61.
The complete title to Dirty Spanish is Dirty Spanish Everyday Slang
from ‘What’s Up’ to ‘F*ck Off.’ Id. at ¶ 59. The author explains that the book is
“designed to take your Spanish to the next level. So if you’re looking for a
grammar lesson, you’re in the wrong spot. But if you want to tell your friend
that he has a tiny dick or to get rid of the douchebag hitting on you in the
bar, this is the book for you.” Id. One chapter is devoted to “horny Spanish”
and another is devoted to “angry Spanish.” Id. at ¶ 60. Hughbanks objects to
these assertions as “unjustified speculation” and notes that “if his goal was to
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learn insults or phrases to incite people or solicit sex, [he] could ask his
mother, aunt, and numerous Spanish-speaking inmates.” Docket 110 at ¶ 60.
Hughbanks appealed the rejection of Dirty Spanish through the
administrative remedy process. Docket 60 at ¶ 62. On March 17, 2010,
Hughbanks submitted an information resolution request and argued that the
book did not advocate violence or pose a threat of serious disruption of the
institution or violate a prohibited act. Id. Hughbanks also argued that the
rejection violated his First Amendment rights. Id. DeJong responded by
informing him that the book was confiscated because it was sexually explicit;
Hughbanks asserts he was told it was because it advocates violence. Id. at
¶ 63, Docket 110 at ¶ 63.
On March 19, 2010, Hughbanks filed a request for an administrative
remedy and argued that no rule, regulation, directive, or prohibited act
supported rejecting Dirty Spanish and that the rejection violated his First
Amendment rights. Docket 60 at ¶ 64. Associate Warden Jacobs reviewed the
book with Warden Dooley and determined it contained sexually explicit
content that was both detrimental to Hughbanks’ rehabilitation as a sex
offender and otherwise prohibited. Id. at ¶ 65. The administrative remedy
response notified Hughbanks that the book had been rejected because it
“contains sexually explicit material” and his request to keep the book was
denied. Id.
10
Hughbanks also sent a letter to Secretary of Corrections Tim Reisch
regarding the rejection of Dirty Spanish. Docket 60 at ¶ 66. Secretary Reisch
had his staff investigate the prison's rejection of the book, and they contacted
Warden Dooley for more information. Id. Associate Warden Jacobs responded
on Dooley's behalf. Id. at ¶ 67. She explained that Hughbanks was a
registered sex offender currently awaiting sex offender treatment. Id.
Hughbanks asserts that he has been awaiting treatment for five years and
that he does not believe treatment is a realistic option. Docket 110 at ¶ 67.
She also told him that the book was rejected under the Sex Offender
Restrictions policy, due to the sexually explicit terms contained in the book.
Docket 60 at ¶ 67. Because of these terms, the book was not conducive to
Hughbanks' rehabilitation. Id. On April 29, 2010, Secretary Reisch responded
to Hughbanks by letter. Id. at ¶ 68. The letter assured Hughbanks that
Warden Dooley and his staff had reviewed the matter and responded
appropriately. Id.
On July 12, 2010, prison officials confiscated portions of Dirty Spanish
from Hughbanks. Id. at ¶ 69. During a phone call with his mother,
Hughbanks had asked her to photocopy Dirty Spanish four pages at a time
and send them to him. Id. Hughbanks asserts that he asked his mother to
send the pages in order to “both receive the parts that are not prohibited and
to determine which pages were in question since the defendants also ignored
11
requests to provide page numbers in question so that the Plaintiff could have
the specific pages in question reviewed for content.” Docket 110 at ¶ 69.
Hughbanks admitted to possessing the photocopied pages. Docket 110 at
¶ 69.
On July 12, 2010, mailroom staff officer Stevens was responsible for
receiving and reviewing inmate mail. Docket 60 at ¶ 70. He opened and
examined a book entitled The Quotable Bitch addressed to Hughbanks. Id.
Because Stevens was unsure of whether the book was permitted under the
DOC and prison policies, he contacted Associate Warden Jacobs. Id. at
¶¶ 70, 71. Associate Warden Jacobs reviewed the content of the book, keeping
in mind that Hughbanks was a sex offender. Id. at ¶ 71. She saw several
offensive and sexually explicit terms in the book and insolent quotes, which
in her opinion could be used against staff or other inmates. Id. Associate
Warden Jacobs thought the book would undermine Hughbanks' rehabilitation
and accordingly, determined that the book should be rejected. Id. Hughbanks
disputes Associate Warden Jacobs' recollection. Docket 110 at ¶ 71.
Associate Warden Jacobs also asked Warden Dooley to help her
determine whether the book should be rejected. Docket 60 at ¶ 72. Warden
Dooley agreed that the book contained material detrimental to Hughbanks'
rehabilitation as a sex offender. Id. Thus, Associate Warden Jacobs told
Stevens to reject the book. Id. Hughbanks partially disputes this. He argues
12
that exhibits provided by Associate Warden Jacobs show that she did not
receive his psychosexual evaluation until almost two months after the
rejection of the book. Docket 110 at ¶ 72. Officer Stevens sent a mailroom
property rejection notice to Hughbanks on July 12, 2010, informing him that
The Quotable Bitch was rejected. Docket 60 at ¶ 77. The rejection notice
stated the book was being rejected because it violated a prohibited act or any
other code, rule, regulation, or directive governing the DOC and the prison.
Id. at ¶ 78. The notice also provided that the book depicted nudity or
encouraged sexual behavior that is criminal in nature or may be detrimental
to rehabilitation. Id. Hughbanks concedes that Stevens marked those lines,
but he asserts that the response he received when he appealed the rejection
was that the book was sexually explicit. Docket 110 at ¶ 78.
Hughbanks did not file any grievances related to the rejection of The
Quotable Bitch. Docket 60 at ¶ 79. When Hughbanks received the rejection
notice, he was suspended from using the administrative remedy process
based on his previous abuse of the process. Id. Hughbanks asserts that he
did not abuse the administrative remedy process because defendants have
not rejected any of his grievances since the process was reinstated. Docket
110 at ¶ 79.
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C.
Cruel and Unusual Punishment Claim
On May 20, 2010, Hughbanks filed an informal resolution request and
argued that special security officer Randy Stevens had violated the Eighth
Amendment prohibition against cruel and unusual punishment. Docket 60 at
¶ 80. Hughbanks asserted that on May 11, 2010, he complained to Stevens
about not receiving catalogs. Id. at ¶ 81. Hughbanks alleges that Stevens told
him in a loud enough manner in front of other staff and inmates that he
would just throw away all of the catalogs and tell everyone there were no
catalogs because of Hughbanks. Id. Hughbanks sought Stevens’ immediate
suspension and termination for his willful endangerment of Hughbanks'
safety. Id.
DeJong responded to Hughbanks' grievance on May 21, 2010. Id. at
¶ 82. She told him that his complaint had been forwarded to Stevens'
supervisor for investigation. Id. She also told him that the South Dakota
Bureau of Personnel Rules prohibit the dissemination of any action that
might be taken against Stevens. Id. Hughbanks disputes this, noting that the
Bureau of Personnel Rules are not available to inmates and asserting that the
prison administration was unwilling to show him the policy. Docket 110 at
¶ 82.
On May 26, 2010, Hughbanks filed a request for administrative remedy,
again addressing the issue of Stevens and the comment made in front of other
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inmates. Docket 60 at ¶ 83. Hughbanks claims this comment violated his
Eighth Amendment rights and that Stevens showed indifference to his duty to
protect Hughbanks from assaults when he announced that he was going to
throw away the catalogs and tell everyone it was because of Hughbanks. Id.
Hughbanks requested that Stevens be suspended immediately. Id. Associate
Warden Jacobs investigated and prepared a response for Warden Dooley. Id.
at ¶ 84. Warden Dooley responded that Hughbanks' complaint was
“forwarded to the appropriate supervisor for investigation and any required
action” and that the South Dakota Bureau of Personnel Rules “prohibit the
dissemination of any action that might be taken against the state employee.”
Id. Hughbanks disputes this, asserting that there is no evidence that an
investigation was performed and that no one spoke to him as a part of the
alleged investigation. Docket 110 at ¶ 84.
Stevens denies that he made any comments loudly or in the presence of
other inmates that he would throw away the catalogs and tell everyone that it
was because of Hughbanks. Docket 60 at ¶ 85. Hughbanks argues that this is
a lie and that the "[t]hreat is evidenced by Stevens fulfilling his threat and
that the catalogs for Edward R. Hamilton are no longer available to inmates.
Docket 110 at ¶ 85.
15
II.
STANDARD OF REVIEW
Rule 56(c) of the Federal Rules of Civil Procedure provides that
summary judgment “should be rendered if the pleadings, the discovery and
disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
matter of law.” Only disputes over facts that might affect the outcome of the
case under the governing substantive law will properly preclude summary
judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Summary judgment is not appropriate if a dispute about a material fact is
genuine, that is, if the evidence is such that a reasonable jury could return a
verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient
evidence to establish that there are no genuine issues of material fact and
that the movant is entitled to judgment as a matter of law. Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the
benefit of all reasonable inferences to be drawn from the underlying facts in
the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir.
1980). The nonmoving party may not, however, merely rest upon allegations
or denials in its pleadings, but must set forth specific facts by affidavits or
otherwise show that a genuine issue exists. Forrest v. Kraft Foods, Inc., 285
F.3d 688, 691 (8th Cir. 2002).
16
Rule 56 of the Federal Rules of Civil Procedure applies to prisoner
litigants, despite the liberal construction afforded to their pro se pleadings.
Quam v. Minnehaha Cnty. Jail, 821 F.2d 522 (8th Cir. 1987). The district court
is not required to “plumb the record in order to find a genuine issue of
material fact.” Barge v. Anheuser-Busch, Inc., 87 F.3d 256, 260 (8th Cir.
1996). Courts must remain sensitive, however, to the special problems faced
by prisoners attempting to proceed pro se in vindicating their constitutional
rights, and the Eighth Circuit has explicitly disapproved of summary
dismissal of prisoner pro se claims without regard for these special problems.
Nickens v. White, 622 F.2d 967, 971 (8th Cir.), cert. denied, 449 U.S. 1018
(1980). “When dealing with summary judgment procedures the technical rigor
is inappropriate where . . . uninformed prisoners are involved.” Ross v.
Franzen, 777 F.2d 1216, 1219 (7th Cir.1985).
III.
DISCUSSION
Hughbanks filed suit under 42 U.S.C. § 1983, alleging that defendants
violated his rights under the First, Fourteenth, and Eighth Amendments.
Hughbanks seeks damages and prospective relief. Section 1983 provides a
civil cause of action against any person who, under color of state law, causes
a deprivation of rights, privileges, or immunities secured by the Constitution
and laws of the United States. 42 U.S.C. § 1983; McRaven v. Sanders, 577
F.3d 974, 979 (8th Cir. 2009).
17
A.
Defendants are Entitled to Summary Judgment on the Merits
of Hughbanks’ Challenge to the Correspondence Policy.
1.
The Bulk Mail Ban
Defendants assert that Hughbanks has no First Amendment right to
receive bulk-rate mail. They rely on Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119, 130-33 (1977). In that case, the Supreme Court
upheld a prison regulation that prohibited prisoners from receiving bulk-rate
mail from a prison union. Id. North Carolina prohibited inmate solicitation of
other inmates, meetings between members of the union, and bulk-rate
mailings concerning the union from outside sources. Id. at 122. Prison
officials had determined that the existence of the union could lead to work
stoppages, mutinies, riots, and chaos. Id. at 127. The union sought to send
boxes of pamphlets to inmates, using bulk-rate mail, and to have the inmates
distribute the pamphlets among the prison population. Id. at 130-33. Here,
Hughbanks seeks to receive bulk-rate mail for his individual consumption;
there is no indication that he intends to distribute the material he receives to
other inmates. Thus, Jones is factually distinguishable and defendants’
assertion that there is no First Amendment right to receive bulk-rate mail
expands the Jones holding.
Defendants also cite Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.
1990) for the position that Hughbanks has no First Amendment right to
receive bulk-rate mail. The Smith court held that a “complaint about
18
undelivered catalogs fail[ed] to raise an issue of constitutional magnitude.” Id.
But the Tenth Circuit Court of Appeals later distinguished the decision,
noting the decision did not involve a challenge to a prison regulation or apply
the Turner test. See Jones v. Salt Lake Cnty., 503 F.3d 1147, 1159-60 (10th
Cir. 2007). Rather, the decision was “limited to a prison official’s one-time
failure to deliver catalogs to an inmate.” Id. Because the instant situation is
factually distinguishable from Jones and Smith, this court assumes, without
deciding, that Hughbanks has a First Amendment right to receive bulk-rate
mail.
Assuming that Hughbanks has a First Amendment right to receive
bulk-rate mail, he does not lose that right merely because he is incarcerated.
Procunier v. Martinez, 416 U.S. 396, 408-10 (1974). Rather, he “retains those
First Amendment rights that are not inconsistent with his status as a prisoner
or with the legitimate penological objectives of the corrections system.”
Leonard v. Nix, 55 F.3d 370, 374 (8th Cir. 1995). These limitations “arise both
from the fact of incarceration and from valid penological objectives–including
deterrence of crime, rehabilitation of prisoners, and institutional security.”
O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). Therefore, an inmate’s
constitutional rights may be diminished by prison regulations that are
reasonably related to legitimate penological interests. Turner v. Safley, 482
U.S. 78, 89 (1987).
19
A number of courts have upheld prison bans on bulk-rate mail and
catalogs, finding they were reasonably related to legitimate penological
interests such as the security of the prison, allocation of resources, and
preventing fire hazards. See Jones, 503 F.3d at 1159-60 (noting that plaintiff
likely had not met his burden of demonstrating that a county jail’s catalog
ban was unconstitutional, but remanding to district court for Turner
analysis); Sheets v. Moore, 97 F.3d 164, 168 (6th Cir. 1996) (upholding a ban
on bulk-rate mail); Allen v. Deland, 42 F.3d 1406 (10th Cir. 1994) (upholding
prison policy banning catalogs); Hrdlicka v. Cogbill, No. 04-3020, 2006 WL
2560790 at *11 (N.D. Cal. Sept. 1, 2006) (upholding prison policy banning
bulk-rate mail and prison officials’ decision not to deliver magazine pursuant
to that policy); Dixon v. Kirby, 210 F. Supp. 2d 792, 801 (S.D. W. Va. 2002)
(upholding ban on bulk-rate mail and catalogs); Allen v. Wood, 970 F. Supp.
824, 829-30 (E.D. Wash. 1997) (upholding prison policy banning catalogs);
Alcala v. Calderon, No. 95-3329, 1997 WL 446234 at *6 (N.D. Cal. July 24,
1997) (upholding prison ban on bulk-rate mail); Kalasho v. Kapture, 868 F.
Supp. 882, 888 (E.D. Mich. 1994) (upholding prison policy banning the
delivery of bulk-rate mail to inmates).
Hughbanks relies on contrary authority, which comes primarily from
the Ninth Circuit Court of Appeals. See Prison Legal News v. Lehman, 397
F.3d 692,701 (9th Cir. 2005) (holding that prison ban on bulk-rate mail and
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catalogs violated the First Amendment); Prison Legal News v. Cook, 238 F.3d
1145, 1149-50 (9th Cir. 2001) (holding that prison regulation banning the
receipt of subscription nonprofit mail based on the postal service rate was not
rationally related to a legitimate penological objective); Morrison v. Hall, 261
F.3d 896, 905 (9th Cir. 2001) (holding prison regulation banning bulk-rate
mail was unconstitutional as applied to for-profit subscription publications);
Allen v. Higgins, 902 F.2d 682, 684 (8th Cir. 1990) (holding prison official was
not entitled to qualified immunity because he denied an inmate’s request to
mail a money order for a government catalog without examining the catalog);
Brooks v. Seiter, 779 F.2d 1177, 1181 (6th Cir. 1985) (holding that an
inmate’s complaint that pamphlets, magazines, and catalogs were not
delivered was not frivolous). Because there is a split in authority and no
controlling precedent from the Eighth Circuit, this court will independently
analyze the constitutionality of the DOC correspondence policy ban on bulkrate mail.
Four factors are relevant in determining whether a challenged
regulation is reasonably related to legitimate penological interests. Turner,
482 U.S. at 89-90. The first factor examines whether the regulation is
legitimate and neutral and rationally related to the underlying government
objective. Id. Second, the court must examine whether the prisoners have an
alternative means of exercising the right. Id. at 90. Third, the court must
21
examine the impact accommodation will have on guards and other inmates
and other allocation of prison resources generally. Id. The fourth factor is the
absence of ready alternatives. Id.
The court must also give “considerable deference” to the
“determinations of prison administrators who, in the interests of security,
regulate the relations between prisoners and the outside world.” Thornburgh
v. Abbott, 490 U.S. 401, 408 (1989); Falls v. Nesbitt, 966 F.2d 375, 379 (8th
Cir. 1992). This deference is accorded to prison administrators because the
realities of running a penal institution are complex, and the courts are illequipped to deal with problems of prison administration and reform. Jones,
433 U.S. at 126. The Turner court observed that “[r]unning a prison is an
inordinately difficult undertaking that requires expertise, planning, and the
commitment of resources, all of which are the province of the legislative and
executive branches of government.” 482 U.S. at 84-85.
Defendants assert that the South Dakota Department of Corrections
correspondence policy is neutral and rationally related to a legitimate
objective. The policy provides that “free advertising materials, fliers, nonsubscriptive third class/bulk-rate mail, non-subscriptive or free catalogs or
pamphlets will normally not be delivered to offenders.” Docket 61-1 at 2. The
policy bans all non-subscriptive third-class/bulk-rate mail and all nonsubscriptive or free catalogs. As the Alcala court noted, this shows that the
22
policy is not aimed at suppressing expression. 1997 WL 446234 at *4.
Hughbanks disputes that the policy is content neutral, pointing out that in
addition to banning bulk-rate mail, the policy provides that “[m]aterials from
a recognized religious organization sent in care of the institutional Cultural
Activities Coordinator may be delivered to adult offenders.” Docket 109, Brief,
at 18. Hughbanks asserts that the “policy is not constitutional based upon
the policy not applying equally to all mail. All mail deserves equal protection,
and it is shown by the Defendants that there is no equal protection since the
ban does not include religious material when everything else is banned.” Id.
This argument is unavailing. The religious mail in question is delivered only if
it is sent in care of the institutional Cultural Activities Coordinator.
Presumably, if such mail otherwise qualifies as bulk-rate mail and is
addressed directly to an inmate, it will not be delivered. Thus, this exception
does not indicate an intent to suppress expression. Accordingly, the
correspondence policy’s ban on bulk-rate mail is content neutral.
Defendants assert that the policy exists to manage prison resources
and preserve the safety of the institution. Preventing contraband from
entering the prison, fire safety, and allocating mailroom staff are the
objectives behind this policy. District courts have upheld similar policies on
these grounds. See Kalashno, 868 F. Supp. at 887 (reasoning that permitting
the delivery of bulk mail posed legitimate security challenges in that it would
23
create a tremendous influx of mail that prison officials would have to examine
for contraband, the accumulation of bulk mail would pose a fire hazard due
to the accumulation of excess property in a finite space, and prisoners could
hide contraband in bulk mail and make cell searches more difficult); Alcala,
1997 WL 446234 at *4 (same). “Maintaining institutional security and
preserving internal order and discipline are essential goals that may require
limitation or retraction of the retained constitutional rights” of prisoners. Bell
v. Wolfish, 441 U.S. 520, 546 (1979). “Such considerations are peculiarly
within the province and professional experience of corrections officials, and,
in the absence of substantial evidence in the record that the officials have
exaggerated their response to these considerations, courts should ordinarily
defer to their expert judgment in such matters.” Pell v. Procunier, 417 U.S.
817, 827 (1974).
Hughbanks contends that the fire hazard concern is exaggerated.
Docket 109, Brief, at 28. According to Hughbanks, “it is irrational to prohibit
prisoners from receiving bulk-rate mail and catalogs on the theory that it
reduces fire hazards because the DOC already regulates the quantity of
possessions that prisoners may have in their cell.” Id. (citing Lehman, 397
F.3d at 700). But defendants point out that it is not just the quantity of paper
in cells that poses a fire hazard, but the accumulation of paper in the entire
facility. Docket 114, Reply at 114. Hughbanks also argues that limited prison
24
resources should not be considered and that existing staff could process the
free catalogs and bulk-rate mail if they worked additional days and omitted
other duties. Docket 109, Brief at 27-28. But these are matters peculiarly
within correctional officers’ professional expertise. See Bell v. Wolfish, 441
U.S. 520, 546 (1979). Thus, the court must defer to the judgment of prison
officials on how the correspondence policy helps maintain the daily security of
the prison and how a change would compromise this. Hughbanks also asserts
that there is no additional risk of contraband entering the facility if the ban is
lifted. Even if, as Hughbanks contends, most catalogs do not contain
pornographic or other prohibited content, the mailroom and property officers
would still be required to review every item for contraband regardless of
whether the previous month’s catalog contained contraband. Thus, despite
the split in authority, Hughbanks has not demonstrated that the DOC’s
correspondence policy is not rationally related to at least one legitimate
penological purpose.
The next factor is whether there is an alternative means available to
exercise the asserted right. Turner, 482 U.S. at 90. Defendants assert that
inmates at Mike Durfee State Prison have alternative means of exercising
their First Amendment rights. Inmates may review catalogs in the prison
property office, and the prison has a library that inmates may access.
Hughbanks disputes that these constitute alternative means of exercising his
25
First Amendment rights. He argues that because there are an insufficient
number of catalogs, inmates must wait to check them out. But delays are
incidental when one considers that inmates may choose to prepay the postage
on any catalog and have it mailed first or second class. See Kalashno, 868 F.
Supp. at 887. Because the application of the policy allows a broad range of
materials to be sent, received, and read, this prong of the Turner test is
satisfied. Thornburgh v. Abbott, 490 U.S. 401, 418 (1989). Therefore, the court
finds that alternative means of exercising the right exist.
The next factor is the impact of requiring the delivery of bulk mail to
inmates. Thus, this court must consider the impact on “guards and other
inmates and prison resources generally” if Hughbanks’ proposal is adopted.
Turner, 482 U.S. at 90. Defendants assert that permitting bulk-rate mail to be
delivered would present safety and security concerns and limit prison
resources. In addition to processing the increased volume of mail, prison
employees would have to individually review it for contraband before delivery.
Docket 60 at ¶ 18. The current staff at the prison could not process the bulkrate mail it currently receives, let alone the influx of additional bulk-rate mail
the prison would receive if the policy were changed. Docket 60 at ¶ 17.
Moreover, because the challenged policy is a state DOC policy, any changes
ordered to the policy would have to be made in every correctional institution
in South Dakota, not just Mike Durfee State Prison. As noted by numerous
26
courts that have upheld similar policies, these negative impacts on prison
operations validate the policy. See Dixon, 210 F. Supp. 2d at 800-01. Thus,
this court will defer to prison officials’ discretion.
The final factor to be considered is whether there are alternatives to the
existing policy that “fully accommodate the prisoner’s rights at de minimis
cost to valid penological interest.” Turner, 482 U.S. at 91. “The absence of
ready alternatives is evidence of the reasonableness of a prison regulation. By
the same token, the existence of obvious, easy alternatives may be evidence
that the regulation is not reasonable. . . .” Id. The purpose of this factor is to
ensure that a regulation is not an “exaggerated response” to legitimate
concerns. Sheets, 97 F.3d at 169. But “prison officials do not have to set up
and then shoot down every conceivable alternative method of accommodating
the claimant’s constitutional complaint.” Turner, 482 U.S. at 90-91; Kalashno,
868 F. Supp. at 888.
Hughbanks proposes that the DOC permit inmates to receive all
catalogs, advertisements, third-class and bulk-rate mail subject to several
conditions. First, the mail must fit into an assigned space. Second, the
majority of the items advertised could not be detrimental to rehabilitation,
criminal in nature, or promote disruption of the institution. The number of
catalogs would be limited to ten. The final condition is that the mail must be
addressed to the intended recipient rather than “current resident.”
27
Defendants assert that, even with these limitations, they could not comply
with the proposed policy without incurring substantial expense and without
compromising the safety, security, and order of the prison. Moreover, the
policy that Hughbanks asserts is unconstitutional is a state-wide policy.
Thus, invalidating the policy in the present case, which deals only with Mike
Durfee State Prison, would require the DOC to change the policy at all
institutions. Hughbanks suggests that different policy changes could be
made, particular to each institution. But this alternative would be even more
burdensome. “When the accommodation of an asserted right will have a
significant ripple effect on fellow inmates or prison staff, courts should be
particularly deferential to the informed discretion of corrections officials.”
Turner, 482 U.S. at 90. Because the policy Hughbanks challenges is
statewide, his suggested accommodation would have a significant effect on
South Dakota inmates and prison staff.
Hughbanks asserts that an alternative would be to have security
officers inspect the incoming bulk-rate mail for contraband, but then have
inmates process the catalogs for distribution. This alternative would not
accommodate the prisoner’s rights at a “de minimis cost” to valid penological
interests. As defendants have pointed out, distributing the catalogs is not
where the problem lies. Rather, processing the increased volume of mail for
contraband and prohibited content would be unduly burdensome and
28
potentially require defendants to hire additional staff. It also has the potential
to allow more contraband to slip through, as staff would be overwhelmed by
the surge in mail to process. Hughbanks also suggests that the prison return
to having a mailroom officer work six days a week, rather than the current
five-day schedule. This proposed change could not be implemented with only
de minimis costs. It is Hughbanks’ burden to not only provide an alternative to
the policy, but to show it could be implemented with only de minimis costs.
See Jones., 503 F.3d at 1160. Thus, this factor, along with all the others,
weighs in favor of the defendants.
2.
The Lack of a Rejection Notice
Hughbanks also asserts that his Fourteenth Amendment due process
rights are violated because the policy does not require defendants to provide
him with rejection notices when a piece of bulk-rate mail is rejected. Due
process guarantees apply only when a constitutionally protected liberty or
property interest is at stake. Bd. of Regents of State Colleges v. Roth, 408 U.S.
564, 569 (1972). In order for Hughbanks to successfully argue that his due
process rights are violated by the current policy, he must first establish that
he has a protected First Amendment interest in receiving the rejected
catalogs. See, e.g., Kalasho, 868 F. Supp. at 889.
This court has assumed, without deciding, that Hughbanks has a First
Amendment right to receive bulk-rate mail. See supra Part I.A. While the
29
United States Supreme Court has upheld a policy ordering prisons to provide
rejection notices to both inmates and senders of personal correspondence,
Procunier, 416 U.S. at 418, subsequent Supreme Court case law holds that
regulations governing mail to prisoners must be analyzed under the more
deferential standard set forth in Turner v. Safley. See Thornburgh, 490 U.S. at
413 (holding that correspondence entering a prison must be analyzed under
the Turner reasonableness standard, rather than the stricter test set forth in
Procunier).2 Therefore, the current notice policy will be upheld if it is
“reasonably related to legitimate penological interests.” Turner, 482 U.S. at
87.
The court must first examine whether the current policy is neutral and
rationally related to the underlying government objective. Turner, 482 U.S. at
89-90. The current policy is neutral, in that it bans the delivery of bulk-rate
mail outright and does not provide for a notice of its rejection to the inmate or
the sender. Thus, the regulation classifies mail on the basis of its postal
category rather than its content. Even considering the facts in the light most
2
The publisher/sender of the publication was a party in Procunier. Here,
Hughbanks attempts to assert the rights of publishers who are not parties to
this litigation. He does not have standing to do so. The “irreducible
constitutional minimum of standing requires a showing of injury in fact to the
plaintiff that is fairly traceable to the challenged action of the defendant, and
likely to be redressed by a favorable decision.” Braden v. Wal-Mart Stores, Inc.,
588 F.3d 585, 591 (8th Cir. 2009). Hughbanks does, however, have standing to
assert a claim that he is entitled to notice when bulk-rate mail is rejected.
30
favorable to Hughbanks, he cannot demonstrate that the current policy is not
rationally related to the underlying objective of the policy, which is to
conserve prison resources and preserve security and order within the prison.
The second factor is whether an alternative means of exercising the
right exists. Turner, 482 U.S. at 90. The current correspondence policy
provides for an alternative means of exercising Hughbanks’ asserted right to
notification for refused bulk-rate mail. If Hughbanks prepaid the postage and
had the materials he seeks mailed first class, he would receive a rejection
notice if it were deemed undeliverable. See Docket 61-1, Offender
Correspondence Policy. See also Alcala, 1997 WL 446234 at *6 (noting that
plaintiff had an alternative means of exercising his asserted right to
notification because the challenged policy permitted him to prepay the
postage on items that would normally be sent third class and prison policy
provided for rejection notices for items mailed first class).
The impact of accommodating the asserted right is the third factor.
Turner, 482 U.S. at 90. Thus, the court must examine the impact on guards,
other inmates, and prison resources generally. Id. As noted earlier, the
challenged policy is a state-wide DOC policy. It therefore applies to all
corrections institutions in the state of South Dakota, not just Mike Durfee
State Prison where Hughbanks is housed. Defendants argue that substantial
resources would be required to provide rejection notices to the recipients and
31
senders of bulk-rate mail. Hughbanks denies this, but he has not pleaded any
facts or supplied any evidence to support his denial. This is insufficient to
demonstrate the existence of a genuine issue of material fact. In order to
withstand summary judgment, a party must set forth specific facts by
affidavits or otherwise show that a genuine issue exists. Forrest v. Kraft
Foods, Inc., 285 F.3d 688, 691 (8th Cir. 2002).
The final factor in the reasonableness analysis is the absence of ready
alternatives. Turner, 482 U.S. at 90. Hughbanks has not identified any
alternative that fully accommodates his asserted right to notification at de
minimis cost to prison security. It is Hughbanks’ burden to not only provide
an alternative to the policy, but to show it could be implemented with only de
minimis costs. See Jones, 503 F.3d at 1160. Because Hughbanks has failed to
provide an alternative to the current notification policy, this factor weighs in
favor of defendants.
After considering the facts in the light most favorable to Hughbanks,
the court concludes that he has failed to demonstrate that the DOC
correspondence policy banning bulk mail without a rejection notice is
unconstitutional. Defendants are not liable in either their official or their
individual capacities. Accordingly, defendants are entitled to summary
judgment, in both their official and individual capacities on the merits of
Hughbanks’ mail and rejection notice claims.
32
B.
Defendants are Entitled to Summary Judgment on Hughbanks’
Claims Relating to Dirty Spanish and The Quotable Bitch.
1.
Hughbanks’ Official Capacity Claims Fail
Defendants assert that Hughbanks’ official capacity claims relating to
the rejection of Dirty Spanish and The Quotable Bitch cannot survive
summary judgment because Hughbanks cannot prove that an
unconstitutional policy or custom caused the rejection. “A § 1983 action
against a government official in his official capacity . . . is tantamount to an
action directly against the public entity of which the official is an agent.” Clay
v. Conlee, 815 F.2d 1164, 1170 (8th Cir. 1987). Thus, “[b]ecause the real
party in interest in an official capacity suit is the governmental entity and not
the named official, the entity’s policy or custom must have played a part in
the violation of federal law.” Hafer v. Melo, 502 U.S. 21, 25 (1991). “In an
official capacity suit, the plaintiff must prove more than that his
constitutional rights were violated by a named individual defendant, for a
governmental entity is liable under § 1983 only when the entity itself is a
‘moving force’ behind the violation.” Clay, 815 F.2d at 1170. In other words,
“the entity’s official policy or custom must have caused the constitutional
violation; there must be an affirmative link or a causal connection between
the policy and the particular constitutional violation alleged.” Id.
Hughbanks contends that “[t]he way the defendants used policies ‘Sex
Offender Restrictions’ and ‘Offender Correspondence’ caused the rejection of
33
Dirty Spanish and The Quotable Bitch.” Docket 109, Brief at 50. Hughbanks
does not assert that the policies are unconstitutional on their face, but argues
that they are unconstitutional as applied.3
“[W]here the policy relied upon is not itself unconstitutional,
considerably more proof than the single incident will be necessary in every
case to establish both the requisite fault on the part of the [government
official] and the causal connection between the policy and the constitutional
deprivation.” Oklahoma City v. Tuttle, 471 U.S. 808, 823-24 (1985). Liability
for an unconstitutional custom or policy cannot generally arise from a single
act. Marksmeier v. Davie, 622 F.3d 896, 902 (8th Cir. 2010). Thus, the two
incidents Hughbanks has alleged here are insufficient to show a policy or
custom of unconstitutional action.
But in rare cases “a public official’s single incident of unconstitutional
activity can establish the requisite policy if the decision is ‘taken by the
highest officials responsible for setting policy in that area of the government’s
business.’ ”Rynders v. Williams, 650 F.3d 1188, 1195 (8th Cir. 2011) (quoting
City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988)). In such case, liability
“attaches only where the decision maker possesses final authority to establish
3
This court has already held that the pornography policy is
constitutional. See Salinas v. Janklow, Civ. 99-4204 (D.S.D. 2003); King v.
Dooley, Civ. 00-4052 (D.S.D. 2003). Policies prohibiting books that advocate
violence or that may cause violence have been upheld as rationally related to
prison penological interests. See Thornburgh, 490 U.S. at 404-06.
34
[policy] with respect to the action ordered.” Davison v. City of Minneapolis,
Minn., 490 F.3d 648, 659 (8th Cir. 2007). Warden Dooley is the only
defendant who could potentially qualify as a decision maker. Warden Dooley
appears to possess final authority to interpret and apply the policies within
Mike Durfee State Prison pertinent to rejecting Dirty Spanish and The
Quotable Bitch. But the policies Warden Dooley applied in reaching his
decision to reject the books are state-wide DOC policies, rather than policies
specific to Mike Durfee State Prison. Thus, he is not a final policy maker. See
Docket 61, Affidavit of Bob Dooley, at ¶ 4. Conversely, Secretary Reisch would
qualify as the policy maker for the DOC policies, but there is no contention
that he made the decision to reject Dirty Spanish and The Quotable Bitch.
See Docket 62, Affidavit of Tim Reisch, at ¶ 10. Accordingly, Hughbanks has
failed to show a policy or custom of unconstitutional action or that
defendants’ actions fall within the “final or authorized decision maker” line of
cases. Defendants are entitled to summary judgment on Hughbanks’ official
capacity claims relating to the rejection of Dirty Spanish and The Quotable
Bitch.
2.
Individual Capacity Claims
In an individual capacity suit under § 1983, a plaintiff seeks to impose
personal liability on a state actor for actions taken under color of state law.
Monell v. Dep’t of Social Servs., 436 U.S. 658, 690 n.55 (1978). Only state
35
actors whose personal conduct caused the deprivation of a federal right are
liable under § 1983. Pulaski Cnty. Republican Comm. v. Pulaski Cnty. Bd. of
Election Comm’rs., 956 F.2d 172, 174 (8th Cir. 1992) (citing Kentucky v.
Graham, 473 U.S. 159, 166 (1985)). Section “1983 liability requires personal
involvement in or direct responsibility for actions resulting in [the] violation.”
Carter v. Hassell, 316 Fed. App’x 525, 525 (8th Cir. 2008) (citing Martin v.
Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985)); see also Marchant v. City of
Little Rock, Ark., 741 F.2d 201, 204 (8th Cir. 1984) (dismissing a claim
because the individual “had no knowledge or connection to” the alleged
violation); Mark v. Nix, 983 F.2d 138, 139-40 (8th Cir. 1993) (dismissing a
§ 1983 case where a prisoner claimed that prison officials inappropriately
took away his rosary because “none of the prison officials sued by him [were]
responsible for this confiscation”).
a.
Tami DeJong, Nicole St. Pierre, and Secretary Reisch
Lack Personal Involvement.
Defendants assert that Hughbanks’ individual capacity claims against
DeJong and St. Pierre are not based on personal involvement. Hughbanks
has not asserted that DeJong or St. Pierre were personally involved in
rejecting the books. See Docket 109 at 15, 17-18. Thus, DeJong and
St. Pierre are entitled to the entry of summary judgment in their favor.
Defendants also argue that Hughbanks’ claim against Secretary Reisch
is not based on personal involvement, but rather his supervisory role.
36
Hughbanks asserts that Secretary Reisch was personally involved as the
“final policy maker” for the DOC policies that are in question and
implementation of the policies. But Hughbanks is not challenging the
constitutionality of the policies used to reject the books. Thus, this is
insufficient involvement. Accordingly, Secretary Reisch is entitled to summary
judgment in his individual capacity because he was not personally involved in
rejecting the books.
b.
Warden Dooley Directly Participated in Denying the
Books.
Defendants, citing Ouzts v. Cummins, 825 F.2d 1276 (8th Cir. 1987)
(per curiam), also assert that Warden Dooley lacks sufficient personal
involvement to be liable under § 1983. Defendants claim that “a warden’s
general responsibility for supervising the operations of a prison is insufficient
to establish personal involvement.” Id. at 1277. But Warden Dooley directly
participated in denying Hughbanks his First Amendment rights, which is
sufficient personal conduct for a supervisor to be held liable under § 1983:
A supervisor cannot be held liable for an employee’s
unconstitutional actions based on a theory of respondeat
superior. Rather, a supervisor incurs liability for a violation of a
federally protected right when the supervisor is personally
involved in the violation or when the supervisor’s corrective
inaction constitutes deliberate indifference toward the violation.
The supervisor must know about the conduct and facilitate it,
approve it, condone it, or turn a blind eye for fear of what [he or
she] might see.
37
Ottman v. City of Independence, Mo., 341 F.3d 751, 761 (8th Cir. 2003)
(alteration in original) (citation and internal quotations omitted). “[A]
supervisor can act with ‘deliberate, reckless indifference’ even when he does
not act ‘knowingly.’ ” Kahle v. Leonard, 477 F.3d 544, 551-52 (8th Cir. 2007).
“A supervisor can be found liable under § 1983 for deliberate indifference if he
is aware of ‘a substantial risk of serious harm,’ even if he is not aware that
the harm has, in fact, occurred.” Id. (quoting Farmer v. Brennan, 511 U.S.
825, 842 (1994)). But a supervisor “ ‘is only liable for his . . . own misconduct’
and is not ‘accountable for the misdeeds of [his] agents’ under a theory such
as respondeat superior or supervisor liability.” Whitson v. Stone Cnty. Jail, 602
F.3d 920, 928 (8th Cir. 2010) (quoting Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949
(2009)).
A warden may, however, be liable for his own personal involvement.
White v. Farrier, 849 F.2d 322, 327 (8th Cir. 1988) (although warden’s receipt
of memos and grievances demanding medical treatment did not in and of
itself establish warden’s knowledge that prisoner had serious medical need,
the level of warden’s personal involvement in the medical staff’s decision that
no medical need existed was a question of fact to be determined at trial). The
warden may also be liable for his policy decisions regarding the allegedly
unconstitutional prison conditions. Martin v. Sargeant, 780 F.2d 1334, 1338
(8th Cir. 1985).
38
Here, Warden Dooley admits that he assisted Associate Warden Jacobs
in reviewing Dirty Spanish and The Quotable Bitch and in determining that
they contained content detrimental to Hughbanks’ rehabilitation as a sex
offender. See Docket 61, Affidavit of Bob Dooley, at ¶ 15. This constitutes
involvement that is both personal and direct. See Schnitzler v. Reisch, 518 F.
Supp. 2d 1098, 1104, 1113-15 (finding there was a question of material fact
regarding the level of Warden Dooley’s personal involvement in determining
that an alternative version of sex offender treatment would not be provided to
a prisoner who refused to participate due to religious objections).
Accordingly, Warden Dooley is not entitled to summary judgment in his
individual capacity based on a lack of personal involvement.
C.
Warden Dooley, Associate Warden Jacobs, and Officer Stevens
Did Not Violate Hughbanks’ First Amendment rights when they
rejected Dirty Spanish and The Quotable Bitch.
The only individual capacity claims remaining are Hughbanks’ claims
against Warden Dooley, Associate Warden Jacobs, and Officer Stevens.
Hughbanks alleges that defendants denied him the books Dirty Spanish and
The Quotable Bitch on the basis of content in the absence of a valid
penological interest, thus violating the First Amendment under the standards
of Thornburgh v. Abbott, 490 U.S. 401 (1989) and Turner v. Safley, 482 U.S.
78 (1987).
39
Regulations affecting the sending of mailings and publications to
prisoners are analyzed under the Turner reasonableness standard. Under this
standard, a regulation or decision that impinges upon a prisoner’s
constitutional rights is valid if it is reasonably related to legitimate penological
interests. Turner, 482 U.S. 78. In considering the question, the court must
decide “after an independent review of the evidence” whether the
decision to reject the books is an “exaggerated response to prison concerns.”
Salaam v. Lockhart, 905 F.2d 1168, 1171 (8th Cir. 1990), cert. denied, 498
U.S. 1026 (1991).
In Thornburgh, the Supreme Court approved regulations excluding
publications that the warden determined were “detrimental to the security,
good order, or discipline of the institution . . . or might facilitate criminal
activity.” Id. at 416. The regulations in question provided criteria for rejection,
including whether the publication “depicts, describes, or encourages activities
which may lead to the use of physical violence or group disruption” or is
“sexually explicit material which by its nature or content poses a threat to the
security, good order, or discipline of the institution, or facilitates criminal
activity.” Id. Since Thornburgh, lower courts have afforded some latitude to
decisions by prison officials to exclude publications from prisoners on the
basis of content. See, e.g., Duamutef v. Hollins, 297 F.3d 108, 112 (2d Cir.
2002) (applying “heightened deference” to a prison official’s decision to reject
40
a controversially titled book concerning financial advice and finding no
constitutional violation); Amatel v. Reno, 156 F.3d 192, 193 n.1 (D.C. Cir.
1998) (upholding ban on distribution of all commercial material that “is
sexually explicit or features nudity” as reasonably related to goal of
rehabilitation). But where a prison official denies a publication on the basis of
content without a legitimate penological purpose, courts have found a
constitutional violation. See, e.g., Sutton v. Rasheed, 323 F.3d 236 (3d Cir.
2003) (concluding denial of Nation of Islam religious books was
unconstitutional but defendants were entitled to qualified immunity because
the right was not clearly established); Williams v. Brimeyer, 116 F.3d 351, 354
(8th Cir. 1997) (overturning a policy that was “in effect” a blanket ban on
materials from the Church of Jesus Christ Christian as unconstitutional and
noting that inmate should have been permitted to receive the particular
publications that were withheld from him because they did not counsel
violence and there was no evidence they had ever caused a disruption);
McCabe v. Arave, 827 F.2d 634, 638 (9th Cir. 1987) (overturning a “ban” on
Church of Jesus Christ books which advocated racial separatism but not
violence or illegal activity as a means of achieving that goal).
Four factors are relevant in determining whether a challenged
regulation or decision is reasonably related to legitimate penological interests.
Turner, 482 U.S. at 89-90. The first factor examines whether the regulation is
41
legitimate and neutral and rationally related to the underlying government
objective. Id. Second, the court must examine whether the prisoners have an
alternative means of exercising the right. Id. at 90. Third, the court must
examine the impact accommodation will have on guards and other inmates
and other allocation of prison resources generally. Id. The fourth factor is the
absence of ready alternatives. Id.
The court must first examine whether the denial of Dirty Spanish and
The Quotable Bitch is reasonably related to the underlying government
objective. Turner, 482 U.S. at 89-90. Each book, and the reasons given for its
rejection, is considered in turn.4
Defendants argue that Dirty Spanish contains sexually explicit
material. The DOC pornography policy defines sexually explicit as:
“Sexually explicit” includes written and pictorial depiction of
actual or simulated sexual acts including but not limited to
sexual intercourse, oral sex or masturbation. Sexually explicit
material also includes individual pictures, photographs, or
drawings of nudity or sexually explicit conduct that are not part
of a book, pamphlet, magazine, periodical or other publication.
4
Defendants contend that a prison official may base a security decision
on and reject a book based solely on its title. See Daker v. Ferrero, 506 F. Supp.
2d 1295, 1308 (N.D. Ga. 2007) (citing Duametef, 297 F.3d at 110). But there is
Eighth Circuit precedent establishing that a prison official may not reject a
publication without first reviewing it. See Allen v. Higgens, 902 F.2d 682 (8th
Cir. 1990).
42
Docket 61-2.5 Defendants provided two exhibits, one of which shows a man
burying his face in a woman’s cleavage. Ex A7. The man and the woman are
fully clothed. Id. The caption to the cartoon is, “Could I motorboat your . . . ?
or “¿Puedo hacer trompetillas con tus . . . ? Id. This picture depicts a sexual act
and thus is sexually explicit under the DOC pornography policy.
Defendants’ next reason for rejecting Dirty Spanish is that it contains
material detrimental to Hughbanks’ rehabilitation as a sex offender. Associate
Warden Jacobs concluded that the book was detrimental to his rehabilitation
as a sex offender because it contained sexually explicit terminology such as
“c***sucker” and “mother’s pussy.” Docket 60 at ¶ 67. Hughbanks’
psychosexual assessment provides that he should not be allowed any use or
exposure to pornography, erotica, or access to the internet. Id. at ¶ 49.
Moreover, Hughbanks has a disciplinary history of having pornography in his
possession and inappropriate sexual contact with other inmates. Id. at ¶ 50.
Rehabilitating offenders is a “paramount objective of the corrections
system.” Pell v. Procunier, 417 U.S. 817, 823 (1974). Evaluating an offender’s
5
Hughbanks filed a “Request for Definitions to be Applied in the Motion
for Summary Judgment.” Docket 108. In this motion, Hughbanks sought to
have the DOC policy definitions of sexually explicit and pornographic material
applied, but created his own definition of detrimental to the rehabilitation of a
sex offender. Defendants do not object to the application of the policy
definitions, but do object to the proposed definition of detrimental to the
rehabilitation of a sex offender. Docket 114, Reply Brief, at 9 n.2. The court will
apply the DOC policy definitions, but not Hughbanks’ proposed definition of
detrimental to the rehabilitation of a sex offender.
43
rehabilitation, and what may be detrimental to it, is “committed to the
considered judgment of prison administrators[.]” Fegans v. Norris, 537 F.3d
897, 902 (8th Cir. 2008) (internal citations omitted). Consequently, federal
courts have consistently upheld prison officials’ determinations that certain
materials are detrimental to a sex offender’s rehabilitation. See Wickner v.
McComb, No. 09-1219, 2010 WL 3396918 at *6 (D. Minn. July 23, 2010)
(“[P]rison officials were reasonable in thinking that denying Plaintiff access to
the photographs in issue would advance the legitimate penological interests
in maintaining prison security, rehabilitating sex offenders, and reducing
sexual harassment of prison guards.”); Frazier v. Ortiz, No. 07-02131, 2010
WL 924254 at *12 (D. Colo. March 10, 2010) (finding a sex offender had no
First Amendment right to possess sexually suggestive materials that could be
detrimental to his rehabilitation); Hunsaker v. Jimerson, No. 08-01479, 2010
WL 3323415 at *5-6 (D. Colo. July 9, 2010) (holding sex offender had not
demonstrated likelihood of success on the merits on his claim that prison
improperly censored his mail preventing him from receiving publications with
nudity); Frink v. Arnold, 842 F. Supp. 1184, 1191 (S.D. Iowa 1994) (“[Prison
officials] have established a rational connection between the restriction at
issue in this case [ban on sexually graphic written materials] and the
governmental interest in rehabilitating sex offenders[.]”). As discussed above,
Dirty Spanish contains sexually explicit materials, which Warden Dooley and
44
Associate Warden Jacobs determined would be detrimental to Hughbanks’
rehabilitation as a sex offender after reviewing the contents of the book and
Hughbanks’ psychosexual evaluation. Thus, the denial of Dirty Spanish was
rationally related to the legitimate, penological purposes of preventing
sexually explicit material from entering the prison and furthering Hughbanks’
rehabilitation as a sex offender.
Defendants assert that Hughbanks was denied The Quotable Bitch
because it contained sexually explicit terms and was not conducive to his
rehabilitation as a sex offender. Defendants assert the following quote as
evidence of sexually explicit content: "I won't allow you to treat me like some
slut you can just bang a couple of times and throw in the garbage.” Id. While
this quote does not qualify as sexually explicit under the policy definition,
defendants could reasonably conclude that the depiction of women espoused
in the quote was detrimental to Hughbanks’ rehabilitation as a sex offender.
Defendants also assert that The Quotable Bitch contains a quote which
makes reference to an undressed baby. Docket 60 at ¶ 76. The quote in
question is from Queen Victoria and is as follows: “An ugly baby is a very
nasty object, and the prettiest is frightful when undressed.” Exhibit B41.
Defendants admit that the quote is not a sexual reference, but they assert that
because Hughbanks is a sex offender who violated a young boy, the reference
is detrimental to his rehabilitation. Id. The determination of what may be
45
detrimental to an offender’s rehabilitation is “committed to the considered
judgment of prison administrators” and thus entitled to deference. Fegans, 537
F.3d at 902. As a result, this court will defer to defendants’ conclusions
regarding the effect of material contained in The Quotable Bitch on Hughbanks’
rehabilitation. Thus, the court finds that the rejection of The Quotable Bitch is
rationally related to the legitimate, penological purpose of furthering
Hughbanks’ rehabilitation as a sex offender. Thus, the first Turner factor
weighs in favor of defendants regarding both books.
The second Turner factor examines whether Hughbanks has an
alternative means of exercising his First Amendment rights. Id. at 90.
Defendants assert that Hughbanks could purchase a Spanish grammar book
that does not contain sexually explicit terms. Additionally, Hughbanks does
have a variety of books available to him in the prison library. Thus, the second
Turner factor weighs in favor of defendants.
The third factor is “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
assert that permitting sexually explicit materials to enter the prison would be
detrimental to the prison’s security and order. Hughbanks did not brief this
issue. Thus, the third Turner factor weighs in favor of defendants.
46
The fourth and final Turner factor focuses on the absence or existence of
“ready alternatives.” 482 U.S. at 90. If there is an alterative “that fully
accommodates the prisoner’s rights at de minimis cost to valid penological
interests, a court may consider that as evidence that the regulation does not
satisfy the reasonable relationship standard.” Id. at 91. Hughbanks has not
offered any ready alternatives. Accordingly, the fourth Turner factor also
weighs in favor of defendants.
Because the Turner factors weigh in defendants’ favor, the court
concludes that the facts alleged, construed in the light most favorable to
Hughbanks, the nonmoving party, establish that the content-based rejection
of Dirty Spanish and The Quotable Bitch was rationally related to legitimate
penological purposes. In other words, Hughbanks has failed to show that his
First Amendment rights were violated. Because Hughbanks has not shown
that his First Amendment rights were violated, the court does not need to
address the defendants’ qualified immunity defense. See Schmidt v. City of
Bella Villa, 557 F.3d 564, 574 (8th Cir. 2009) (“Since we find no constitutional
violation, we need not address the issue[ ] of qualified immunity[.]”).
D.
Defendants Are Entitled to Summary Judgment on the Merits
of Hughbanks’ Eighth Amendment Claim.
Hughbanks asserts that Officer Stevens violated the Eighth
Amendment’s prohibition of cruel and unusual punishment when he
responded to Hughbanks’ complaints by stating loudly and in the presence of
47
other inmates that he would throw all the catalogs away and tell everyone
there were no catalogs because of Hughbanks. Docket 60 at ¶ 80. Although
Stevens contends that he did not make the referenced comments loudly or in
the presence of other inmates, id. at ¶ 85, at this stage in the proceedings, the
court considers the facts in the light most favorable to Hughbanks, the
nonmoving party. Thus, the court assumes that Stevens did say he would
throw the catalogs away because of Hughbanks and that he said this in front
of other inmates.
To establish an Eighth Amendment claim, Hughbanks must satisfy a
two-pronged test. Norman v. Schuetzle, 585 F.3d 1097, 1103-04 (8th Cir.
2009). The first prong is an objective test, which asks whether the deprivation
suffered by the plaintiff is sufficiently serious to rise to the level of a
constitutional violation. Id. The second prong of the test is subjective; the
plaintiff must prove that prison officials had a “sufficiently culpable state of
mind” amounting to at least “deliberate indifference.” Id.
Stevens’ actions in threatening to throw away the catalogs and blaming
it on Hughbanks do not violate the Eighth Amendment. Mere verbal threats
made by a state actor generally are not sufficient to state a § 1983 claim.
Martin v. Sargent, 780 F.2d 1334, 1338 (8th Cir. 1985). “ ‘Mere threatening
language and gestures’ of a state actor ‘do not, even if true, amount to
constitutional violations.’ ” Hopson v. Fredericksen, 961 F.2d 1374, 1378 (8th
48
Cir. 1992) (quoting McFadden v. Lucas, 713 F.2d 143, 146 (5th Cir.), cert.
denied, 464 U.S. 998) (1983)). Verbal harassment, abuse, and threats,
including profanity, without any physical injury, do not amount to
constitutional violations no matter how reprehensible the conduct may be.
Kurtz v. City of Shrewsbury, 245 F.3d 753, 759 (8th Cir. 2001). The Eighth
Circuit has recognized a narrow exception for conduct that amounts to
“wanton act[s] of cruelty” that can be categorized as “brutal.” Burton v.
Livingston, 791 F.2d 97 (8th Cir. 1986). In Burton, the Eighth Circuit held that
a guard who pointed a pistol at a prisoner and stated, “nigger run so I can
blow your Goddamn brains out, I want you to run so I’ll be justified” could be
held accountable under § 1983. Id. at 99. But Hughbanks’ allegations do not
fit that narrow exception. He has not alleged that Stevens had a weapon or
threatened him with physical harm. All he has alleged is that Stevens
threatened to take the catalogs away and say it was Hughbanks’ fault. Thus,
Hughbanks has not alleged a sufficiently serious deprivation for his Eighth
Amendment claim to survive summary judgment.
Nor has Hughbanks demonstrated that Stevens’ conduct was
deliberately indifferent. Norman, 585 F.3d at 1109-11. The Supreme Court has
held that “subjective recklessness as used in the criminal law is a familiar and
workable standard that is consistent with the Cruel and Unusual
Punishments Clause” and is an appropriate “test for ‘deliberate indifference’
49
under the Eighth Amendment.” Farmer v. Brennan, 511 U.S. 825, 839-40
(1994). Hughbanks asserts that Stevens “would know that if inmates find out
they are going to lose something or lost something because of another inmates
[sic], it often leads to physical assault and verbal harassment by other inmates
towards the person that caused them to lose that item.” Docket 109, Brief at
56. But the Eighth Circuit has held that a prison official is not deliberately
indifferent to another inmate’s safety by showing an inmate another inmate’s
kites or grievances. Norman, 585 F.3d at 1109-11. Sharing an inmate’s
complaints with another inmate about a prison official or about prison policies
does not place the complaining inmate in danger of retaliation by other
inmates. Accordingly, Hughbanks’ claim does not satisfy either the objective
prong or the subjective prong of the test required for an Eighth Amendment
claim. Defendants are, therefore, entitled to summary judgment on the merits
of Hughbanks’ Eighth Amendment claim in both their individual and official
capacities.
IV.
CONCLUSION
Defendants are entitled to summary judgment on the merits of
Hughbanks’ claim that the DOC correspondence policy relating to bulk mail
and rejection notices for bulk mail is unconstitutional.
Because Hughbanks has failed to demonstrate that an official policy or
custom caused the constitutional violation, defendants are entitled to
50
summary judgment in their official capacities on Hughbanks’ claim relating to
the rejection of Dirty Spanish and The Quotable Bitch. Defendants DeJong,
St. Pierre, and Secretary Reisch are entitled to summary judgment on
Hughbanks’ individual capacity claims relating to the rejection of Dirty
Spanish and The Quotable Bitch because they lack personal involvement.
Warden Dooley, Associate Warden Jacobs, and Officer Stevens are summary
judgment on the merits of Hughbanks’ claims relating to the rejection of Dirty
Spanish and The Quotable Bitch.
Defendants are entitled to summary judgment on the merits of
Hughbanks’ Eighth Amendment claim. Accordingly, it is
ORDERED that defendants’ motion for summary judgment (Docket 58)
is granted.
Dated February 2, 2012.
BY THE COURT:
/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE
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