Stauffer v. Gearhart et al

Filing 40

MEMORANDUM OPINION AND ORDER granting 37 Amended MOTION for Summary Judgment with Brief in Support. (Signed by Judge Keith P Ellison) Parties notified.(aalonzo)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
SHAWN JOSEPH STAUFFER,
Plaint@
v.
MARNA GEARHART, et al.,
Defendants.

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CIVIL ACTION NO. H-08-1587

MEMORANDUM OPINION AND ORDER

Plaintiff Shawn Joseph Stauffer, a state inmate proceeding pro se and in forma
pauperis, filed this section 1983 lawsuit against Texas Department of Criminal Justice
("TDCJ") officials and employees alleging violations of his civil rights. The Court granted
in part and denied in part defendants' original motion for summary judgment. Pending
before the Court is defendants' amended motion for summary judgment, seeking dismissal

of plaintiffs remaining claims. (Docket Entry No. 37.) Plaintiff filed a response. (Docket
Entry No. 38.)
Based on consideration of the amended motion, the response, the record, and the
applicable law, the Court GRANTS the amended motion for summary judgment and
DISMISSES this lawsuit for the reasons that follow.
I. FACTUAL BACKGROUND AND CLAIMS

Plaintiff was assigned to the Goree Unit Sex Offender Treatment Program ("SOTP")
based on his conviction for attempted aggravated sexual assault of a child. He complains

that, for three months during his participation in the program, prison mail room officials
confiscatedhis prepaid CARCRAFT
magazines he had received through the mail. Defendants
informed plaintiff that the publication had been rejected (confiscated)pursuant to Regulation
SOTP 02.06 (the "Regulation"), which provided that, "[]in order to facilitate treatment,
additional standards for offender correspondence have been imposed. They are as follows:
A.

No publications other than newspapers and religious material shall be
accepted.

B.

Correspondence containing content approving or promoting alcohol
[or] drug use shall be rejected for offender receipt.

C.

Correspondencethat is sexually suggestive, explicit, and/or provocative
in nature shall be rejected for offender receipt. Sexually explicit andlor
provocative correspondence includes, but is not limited to, nudity or
partial nudity that is stimulating/exciting or sexually suggestive in
nature.

D.

Offenders may not appeal denials to the Director's Review Committee
based on these additional restrictions.

(Docket Entry No. 37, Exhibit 1, October 2004 version.) The Regulation was applicable to
all SOTP offenders such as plaintiff at the time plaintiffs claims arose. Plaintiffs prison
grievances, complaining that the confiscated publications constituted educational and
vocational materials, were unsuccessful.
Plaintiff further asserts that, during the same three months, prison mail room officials
utilized the Regulation to confiscate his other prepaid subscription publications - HOTROD,
PERFORMANCE
PRODUCTS, HIGH
JEG'S
PERFORMANCE and PERFORMANCE
PARTS,
PRODUCTS.

Plaintiff claims that defendants confiscated the publications without first reviewing their
content for appropriateness under the Regulation.
Plaintiff seeks a declaratory judgment that SOTP 02.06 violated his right to free
speech, and that the Regulation's targeted application to SOTP sex offenders constituted
discrimination and disparate treatment in violation of his equal protection rights. Plaintiff
requests nominal, punitive, and compensatory damages in an amount of $1 million against
each defendant. Defendants argue that plaintiffs claims are groundless and should be
dismissed.
11. SUMMARY JUDGMENT STANDARD OF REVIEW
Summaryjudgment is proper if the pleadings, depositions, answers to interrogatories,
and admissions on file, together with any affidavits filed in support of the motion, show that
there is no genuine issue as to any material fact and that the moving party is entitled to
judgment as a matter of law. FED.R. CIV.P. 56(c). A factual dispute will preclude a grant
of summaryjudgment if the evidence is such that a reasonablejury could return a verdict for
the nonmoving party. See Anderson v. Liberty Lobby, Inc., 477 U. S. 242,248 (1 986). The
trial court may not weigh the evidence or make credibility determinations. Id. Conclusional
allegations, speculation, improbable inferences, or a mere scintilla of evidence, however, are
insufficient to defeat a summary judgment motion. See Michaels v. Avitech, Inc., 202 F.3d
746, 754-55 (5th Cir. 2000).

111. ANALYSIS

A.

Free Speech Claim

Plaintiff asserts that the Regulation denied him free speech by acting as a "blanket
ban" on his right to receive magazines and other publications during his participation in the
program. He claims that the confiscated materials would have furthered his educational and
vocational interests. Defendants contend that the Regulation did not violate plaintiffs free
speech rights because it was reasonably related to a legitimate penological interest in
rehabilitating convicted sexual offenders such as plaintiff.
Plaintiff, as a state inmate, enjoys no unfettered constitutional right to receive
magazines and other publications while imprisoned. Although prisoners retain some rights
under the First Amendment, prison officials are authorized to monitor and limit activities that
might restrict their exercise of free speech if such restrictions promote a legitimate
penological interest. See Shaw v. Murphy, 532 U.S. 223 (2001). The Supreme Court has
made clear that prisoners retain only those First Amendment rights of speech which are not
inconsistent with their status as prisoners or with the legitimate penological objectives of the
corrections system. Hudson v. Palmer, 468 U.S. 5 17, 523 (1984). Thus, when a prison
regulation impinges on an inmate's constitutional rights, the regulation is valid if it is
reasonably related to a legitimate penological interest. Turner v. Safey, 482 U.S. 78, 89
(1987).

Satisfying the Turner test requires a court to determine: (1) whether there is a "valid,
rational connection between the prison regulation and the legitimate governmental interest
put forward to justify it"; (2) whether "there are alternative means of exercising the right that
remain open to prison inmates"; (3) what "impact accommodation of the asserted
constitutional right will have on guards and other inmates"; and (4) whether there is an
"absence of ready alternatives." Id. at 89-90 (citations and internal quotation marks
omitted).
In an affidavit submitted in support of defendants' amended motion for summary
judgment, defendant Enobong Inyang testified as follows:
I am an LPC [a licensed professional counselor], licensed to practice
counseling in the state of Texas. I am presently employed as a Program
Supervisor I11 in the Sex Offender Treatment Program ('SOTP' or 'the
Program') of the Texas Department of Criminal Justice - Rehabilitation
Programs Services. I am not receiving any pay, save my usual salary, for
review of records or preparation of this report.

I am making this affidavit in connection with the Civil Action No. 4:08-CV1587; Shawn Joseph Stauffer v. Marna Gearhart, et al.; In the United States
District Court for the Southern District of Texas, Houston Division. To
prepare this affidavit, I have reviewed the relevant Individualized Treatment
Plan ('ITP') of Shawn Joseph Stauffer, TDCJ # 1321818, and Plaintiffs
Original Complaint. I am familiar with TDCJ policies and procedures with
respect to the SOTP.
The SOTP is an 18-month,highly structured and intensive mandatory program
for qualifying offenders. Currently, the program is offered at only the
Hightower and Goree Units for male offenders. It employs what is called a
'therapeutic community' concept oftreatment, meaning that while participants
are enrolled in the program, participants co-exist exclusively in a community
of other participants and treatment professionals. Participants engage in the

program 24 hours a day, seven days a week, leaving essentially no time for any
other activities.
The program consists of 15 months of psychosocial modules involving
individual activities, overlapping with 15 modules of group paperwork
involving group activities. Activities include reading, writing essays,
presentations, group activities, and the completion of all group worksheets.
Participants enter the program in the last 18 months of their incarceration, and
are released from TDCJ custody no later than one or two months after
completion of the program, preferably less. Once they begin the program,
participants are not returned to the TDCJ units in which they were housed
before they entered the program. This is done to maximize the effectiveness
of the program. The goal of the program is to help participants understand and
control the sexual urges that resulted in [their] committing sexual crimes.
There is a real danger that allowing participants to return to general population
after completing the program will erode whatever progress they made while
in the program due to the corrupting influence of other, non-participant
offenders. Releasing participants at a time when their personal progress is at
its greatest is of the highest priority, not only for their own benefit in
assimilating back into the free world, but also for the safety of whatever
communities to which they return.
One of the requirements of the program is that participants cannot engage in
any vocational activities or programs while enrolled in the SOTP, except for
GED programs made available through the Wyndham School District. Any
enrollment in vocational programs must be completed before the start of the
participant's enrollment in the SOTP. One reason for this is that, as stated
above, participants in the program will be spending all of their time and energy
fulfilling the requirements of the program and trying to maximize its
effectiveness. Another reason for this is that allowing participants to engage
in vocational programs while enrolled in the program would defeat the
therapeutic community, since vocational programs contain offenders who are
not in the SOTP, and such offenders would erode whatever progress the
participant has made.
The same thing is said for outside reading materials. While the program
cannot exclude all outside materials, the program at the time in question in this
lawsuit, February to April, 2008, limited the materials participants can receive

to the bare essentials: newspapers and religious materials. Vocational
materials, even if they do not contain sexual material, are excluded because
vocational programs must be completed by the time a participant enters the
SOTP. Because vocational programs must be completed by the time
participants enter the program, there will be no vocational materials for the
participant to receive. As stated above, the reason [that] vocational programs
must be completed first is that participants are already engaged in an extremely
intensive rehabilitation program. Additional study outside of the program will
only serve to distract participants from maximizing the program's
effectiveness.
Publications such as 'Car-Craft,' 'Hot-Rod,' and 'Low Rider' magazines are
excluded for several reasons. First, all vocational programs must be completed
prior to entering the SOTP. Second, such publications often contain sexually
explicit material which strongly undermines the goals of the program.
Finally, I would like to add that, in my opinion, and in the opinion of many
participants who have completed the program, 18 months is far too brief a
period in which to cover all of the material of the program, and for participants
to gain a sophisticated understanding and command over the sexual urges and
habits that caused them to be convicted for sexual crimes. It is of the highest
priority that participants enrolled in the Sex Offender Treatment Program use
those 18 months to their utmost and not be allowed to engage in unnecessary
distractions.
(Docket Entry No. 37, Exhibit 2.)'
Defendants' probative summary judgment evidence establishes that the Regulation
satisfies the Turner factors. There is a valid, reasonable connection between the Regulation
and the State's legitimate penological interest in rehabilitating convicted sex offenders
through the SOTP. As shown by the affidavit testimony of Inyang and Jorno, the program

'A second affidavit, submitted by Joseph Bon Jorno, SOTP Program Manager 11, contains
substantially the same testimony and opinions and provides no additional information for purposes
of the pending motion. Id., Exhibit 3.

is time and energy intensive, with successful rehabilitation requiring participants to devote
all of their time, energy, and focus on completing the program's curriculum within a certain
times. As stated in the affidavits, allowing SOTP participants open access to mail-order
publications for vocational or other purposes while they are in the program would negatively
impact the program's rehabilitative goals and therapeutic community. Nor does plaintiff
present probative summaryjudgment evidence of a ready alternative that would promote the
prison's valid penological interests in treating and rehabilitating sexual offenders at a de
minimis cost.

Moreover, the Regulation did not deny plaintiff alternative means of exercising his
right to free speech; his right to pursue vocational interests and receive publications related
to his vocational interests and studies remained open until such time as he began the SOTP,
and recommenced upon his completion of the program. Moreover, plaintiff was allowed to
receive newspapers and religious material while participating in the program. Although a
publication would remain subject to rejection if it contained sexually suggestive material,
plaintiff does not challenge the constitutionality of that particular provision of the
Regulation.
Plaintiffs reliance on the alleged vocational or educationalnature of the rejected mailorder publications is undercut by both the fact that participants in the SOTP were not allowed
to pursue vocational classes or self-study while completing the SOTP, and that many of
plaintiffs mail-order publications were known to contain sexually suggestive material. Nor

does plaintiff prevail in arguing that the Regulation was an unconstitutional "blanket ban"
on his mail-order publications, as the Regulation allowed plaintiff and other SOTP
participants to receive newspapers and religious materials during the program. Additionally,
plaintiff presents only conclusory allegations that prison officials rejected his mail-order
publications without a content review, and his allegations are insufficient to raise a genuine
issue of material fact precluding summary judgment.
Accordingly, plaintiff fails to show that the Regulation violated his First Amendment
right to free speech, and defendants are entitled to summary judgment dismissing this claim.
B.

Equal Protection Claim

Plaintiff argues that he was denied equal protection because the Regulation's policy
prohibiting mail-order publications for SOTP participants was targeted solely at a specific
class of offenders to which plaintiff belonged. Defendants contend that the Regulation does
not contravene plaintiffs equal protection rights because convicted sex offenders are not a
protected or suspect class, and the Regulation was rationally related to the prison's legitimate
penological interests of treating and rehabilitating convicted sex offenders.
The Fourteenth Amendment's equal protection clause commands that "all persons
f
similarly situated should be treated alike." City o Cleburne v. Cleburne Living Ctr., 473

U.S. 432, 439 (1985). Generally, a government regulation that impinges on fundamental

rights protected by the Constitution is reviewed, for equal protection purposes, under a "strict
scrutiny" standard. Rublee v. Fleming, 160 F.3d 23 1, 2 17 (5th Cir. 1998). However,

convicted sex offenders are not a protected or suspect class, and thus a prison regulation that
impinges on a convicted sex offender's constitutional rights is only subject to a "rational
basis" review. See Wottlin v. Fleming, 136 F.3d 1032, 1036-37 (5th Cir. 1998); see also
Thornburgh v. Abbott, 490 U.S. 401 (1989) (holding that the exigencies of prison
administration require only that a subject regulation be reasonably related to a legitimate
penological interest).
The Fifth Circuit Court of Appeals held in an unpublished opinion that subjecting
inmates who are sex offenders to different prison programs or regulations is reasonably
related to legitimate penological interests. Bell v. Woods, 382 F. App'x 391, 392-393 (5th
Cir. 2010). In Bell, the Fifth Circuit rejected an inmate's claim that prison regulations
restricting sexual offenders from using computers violated the equal protection clause. The
Court observed that there were rational reasons why the State might restrict sexual offenders
from using computers, such as to prevent sexual offenders from attempting to obtain and
distribute sexually-explicit material over the internet or contacting potential victims over the
internet.
This same legal analysis - and result - applies to the Regulation here. As established
by the uncontroverted affidavit testimony of Inyang and Jorno, the Regulation prevented
SOTP inmates from receiving magazines or other published materials that are known to
contain sexually suggestive material, which would "strongly undermine[] the goals of the
program." The Regulation further promoted a sexual offender's focus on, and successful

completion of, the "highly structured and intensive" program by limiting potential
distractions during the program. Consequently, defendants have established that the

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Regulation is rationally related to legitimate penological interests in the rehabilitation and
treatment of sexual offenders such as plaintiff.
Plaintiff fails to show that the Regulation constitutes a violation of his equal

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protection rights, and defendants are entitled to summary judgment dismissing his claim.'
IV. CONCLUSION
Defendants' amended motion for summary judgment (Docket Entry No. 37) is
GRANTED, and this lawsuit is DISMISSED WITH PREJUDICE. Any and all pending
motions are DENIED AS MOOT.
The Clerk will provide a copy of this order to the parties.
Signed at Houston, Texas, on this the

2-d a '/Cof June, 20 11.
y

KEITEP. ELLISON
UNITED STATES DISTRICT JUDGE

2Plaintiffcomplains in his response that, after filing this lawsuit, he completed the program
but was not released to the free world. He states that he was instead selected for civil commitment
proceedings under the state sexual predator statute and that his name was given to immigration
officials for possible deportation. He argues "it is not hard to conclude" that these actions were in
retaliation for his filing this lawsuit. (Docket Entry No. 38, p. 5.) This assertion of retaliation was
not raised in the complaint, is not before the Court, and must be pursued by plaintiff through a
separate lawsuit.

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