Prison Legal News v. Stolle et al

Filing 65

OPINION AND ORDER re 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims filed by Prison Legal News, 49 MOTION for Summary Judgment Defendants' Motion for Summary Judgment filed by V Ogden, Matth ew Wilson, M Brittingham, E Rodriguez, A Torno, Darlene Moore, Ken Stolle, G Havens, V Harris. The Court TAKES UNDER ADVISEMENT the parties' cross motions for summary judgment as to the constitutionality of Defendants' "sexual ly explicit materials" policy in order to permit additional briefing on such subject. As to the cross motions for summary judgment onDefendants' "ordering form policy," Defendants' motion is GRANTED and Plaintiff's motio n is DENIED. The Court GRANTS Defendants' motion for summary judgment to the extent Defendants invoke the doctrine of qualified immunity as to both the ordering form ban and sexually explicit materials ban. All other arguments in support of summ ary judgment contained in the cross motions are DENIED. Counsel for both parties are INSTRUCTED to meet and confer in person within 21 days of the issuance of this Opinion and Order to discuss whether the resumption of the settlement conference previ ously conducted in this case would prove fruitful. The parties shall file with the Court, jointly or separately, a "status update" no later than Wednesday, January 7, 2015, indicating their position on whether a briefing schedule should be set by the Court for supplemental summary judgment briefs or whether the parties would prefer to resume settlement discussions with a Magistrate Judge prior to being ordered to submit further briefing on the issue of summary judgment. Copies distributed as directed on 12/9/2014. Signed by District Judge Mark S. Davis on 12/8/2014 and filed on 12/8/2014. (bgra)

UNITED

STATES

DISTRICT

EASTERN DISTRICT

OF

FILED

COURT

VIRGINIA

Norfolk Division

PRISON LEGAL NEWS,

CLERK, US DISTRICT COURT

a project of the

HUMAN RIGHTS DEFENSE

.NORFOLK. VA

CENTER,

Plaintiff,
Civil No.

v.

2:13cv424

KEN STOLLE, Sheriff for Virginia
Beach, Virginia, et. al,

Defendants.

OPINION

This

matter

is

before

AND

the

ORDER

Court

on

summary judgment filed by Prison Legal
Human

Rights

cross-motion
Stolle,
or

Virginia

and

judgment

Beach

the

UNDER

judgment

eight

Sheriff's
For

"sexually

explicit

additional

briefing

to

the

such

or

collectively
("Sheriff

set

policy

subject.

in
As

to

cross
of

order
the

and
by

a

Ken

Stolle,"
of

with

the

below,

the

motions

forth

constitutionality

of the

employees

(collectively

parties'

partial

"PLN"),

defendant

reasons

the

for

a project

Virginia
named

the

materials"
on

News,

filed

Office

ADVISEMENT
as

motion

("Plaintiff,"

for Virginia Beach,

"Defendants").

TAKES

summary

Center,

summary

Sheriff"),

Sheriff,

Court

for

Sheriff

"the

the

Defense

a

for

Defendants'

to

permit

cross

motions

for

summary judgment

Defendants'

on

Defendants'

motion is GRANTED

"ordering form policy,"

and Plaintiff's motion is

DENIED.

Additionally, the Court GRANTS Defendants' motion to the extent
Defendants invoke the doctrine of qualified immunity.

All other

arguments in support of summary judgment contained in the cross
motions are DENIED.

I. Factual and Procedural Background

PLN is the publisher of a monthly magazine titled "Prison

Legal

legal

News,"

which

issues,

censorship,

includes

access

prisoner

to

articles

courts,

litigation,

and

news

prison

in

the

visitation

advertisements

photographs,
"Nude"

and

from

which

various

are

"Non-Nude:

advertisements

are

Prison

monthly

text

Legal

vendors

frequently
Bureau

of

only,

various

conditions,
rights,

freedom, and prison rape, among other things.

Contained

about

religious

ECF No. 36, at 1.

News

selling

magazine
adult

two

in

Prisons

Friendly."

include

are

oriented

offered

some

mail

versions:

various

Some

sized

pictures of women in tight clothing and/or miniskirts, and some
include thumbnail images of women or men wearing skimpy bathing
suits or lingerie or otherwise in a state of

undress.

the images in Prison Legal News display nudity,

None of

but some images

do include women or men posed in overtly sexual positions with a

star

shaped

censor

(hereinafter,

"censor

placed to avoid any technical nudity.

star")

strategically

Although the censor star

images avoid any technical "nudity,"

the use of the star is

plainly designed to be suggestive by giving the impression that
the woman or man in the photograph is revealing their genital
area, or alternatively, that the woman is revealing her breasts.
In addition to

PLN

the monthly Prison Legal News publication,

also

and

publishes

distributes

books

and

periodicals

on

issues related to the criminal justice and corrections systems.

Id.

From 2012 through the present,

these

additional publications

Legal

News.

various

time

packet"

period

News,

packets,

("VBCC")

produces

to

familiarize

is undisputed

to

the

a

of

Prison

stand-alone

prisoners

that,

instant

and all monthly

that were sent to

Center

It

relevant

monthly issue

PLN

designed

PLN publications.

informational

in each

Additionally,

"informational

PLN advertised for many of

during

litigation,

issues

with

the

all

Prison Legal

of

inmates at Virginia Beach Correctional

included

"ordering

forms"

with

prices

advertising PLN's various written publications.
Since April of 2012, neither the monthly Prison Legal News
magazine
inside

nor

PLN's

informational

packet

VBCC,

which

is

by

Virginia

Beach

Defendants,

"pursuant
sexually

Sheriff's

they

to

VBSO

explicit

operated

have

Office

censored

policies
pictures,

as

Sheriff

("VBSO").

issues

PLN's

which

have

of

be

permitted

Stolle

and

According

Prison

magazines

may

been

Legal

have

intended

the

to
News

contained
to

arouse

sexual desire, may be deemed offensive,
clothed persons."

ECF No. 48, at 2-3.

and/or include scantily
Defendants assert that a

policy preventing sexually explicit materials from entering VBCC
is necessary to advance jail security and protect the safety of
both jail personnel and VBCC inmates.

Separately, Defendants assert that Prison Legal News is not

permitted at VBCC because it contains
are

not

permitted

at

VBCC.

PLN's

"ordering forms,"

informational

likewise been excluded from VBCC because
forms.

the

packets

have

they contain ordering

Defendants assert in their summary judgment filings that

prohibition

businesses

credit

from

cards,

on

On July
Court

ordering

fraud"

or

30,

Id.

"protects

"VBCC inmates

available

to

the

do

order

public

not

or

have

purchase

and
cash,

from

at 7.

2013,

PLN filed the instant

challenging

publication,

books

asserting

violation

a

forms

because

funds

outside vendors."

this

which

the

and

other
of

due

"censorship

civil action in
of

its

correspondence,"
process

based

on

monthly

and

further

Defendants'

alleged failure to both timely notify PLN of such censorship and

to

provide

censorship.

PLN

meaningful

ECF No.

amended complaint,
and due

a

1,

1 1.

opportunity

On March 26,

to

challenge

2014,

such

PLN filed an

which continues to assert unlawful censorship

process violations.

ECF No.

17.

Defendants,

who are

all represented by the same counsel, oppose the relief sought in

the

amended

complaint,

and

constitutional violations.

In

May

of

this

deny

ECF Nos.

year

the

that
23,

they

28,

parties

conference conducted by a United States

motion

for

partial

Plaintiff's motion,

summary

judgment

summary

any

32.

attended

a

settlement

Magistrate Judge,

attempts at settlement were unsuccessful.
its

committed

but

PLN thereafter filed

judgment.

Defendants

oppose

and separately filed a cross motion seeking

as

to

all

of

Plaintiff's

claims.

Alternatively, Defendants seek a ruling that they are shielded
by qualified immunity as to claims seeking monetary relief.

The

cross-motions

and

for

summary

judgment

are

now

fully

briefed

ripe for review.1
II.

The

Federal

Standard of Review

Rules

of

Civil

Procedure

provide

that

a

district court shall grant summary judgment in favor of a movant

if such party "shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter
of law."

Fed.

R.

Civ.

P.

56(a).

" [T]he mere existence of some

alleged factual dispute between the parties will not defeat an
otherwise properly

supported motion

for

summary

judgment;

the

requirement is that there be no genuine issue of material fact."
Anderson v.

Liberty Lobby Inc.,

1 The trial
parties.

of

this

case

has

477 U.S.

been

242,

continued at

247-48

the

(1986).

request

of

A

the

fact is "material" if it "might affect the outcome of the suit,"
and

a

dispute

is

"genuine"

if

"the

evidence

is

such

that

a

reasonable jury could return a verdict for the nonmoving party."
Id.

at

248.

If a movant has properly advanced evidence supporting entry
of summary judgment,

the non-moving party may not rest upon the

mere allegations of

the

specific
other

facts

materials

Celotex Corp.

Civ.

in the

P.

himself
matter

that

v.

to weigh

trial."

to

form of

illustrate

a

Catrett,

477 U.S.

point,

that

the

evidence

determine

Anderson,

instead must

"the

judge's

determine
is

a

set

forth

statements,

issue

322-24

there

at 249.

sworn

genuine
317,

and

whether

477 U.S.

but

exhibits,

At

56(c).

but

pleadings,

for

(1986);

the

trial.
Fed.

function

R.

is not

truth of

genuine

or

issue

the
for

In doing so, the judge must

construe the facts and all "justifiable inferences" in the light
most favorable

to

the

non-moving party,

make credibility determinations.

and the

Id. at 255; T-Mobile Northeast

LLC v. City Council of City of Newport News,
385

(4th Cir.

When

judge may not

Va.,

674 F.3d 380,

2012).

confronted

with

cross-motions

for

summary

judgment,

"the court must review each motion separately on its own merits
to determine whether either of the parties deserves judgment as
a matter of law."

Cir.

2003)

Rossignol v. Voorhaar,

316 F.3d 516,

523

(internal quotation marks and citation omitted).

(4th

As

to

each

separate

motion,

the

Court

must

separately

resolve

factual disputes and competing rational inferences in favor of
the non-movant.

Id.

III.

Discussion

A. Legal Standard Governing Restrictions on
Incoming Mail/Publications at a Prison/Jail
It

is

well-established that

"the

First Amendment plays

an

important, albeit somewhat limited, role in the prison context."
Montcalm Publ'g Corp.

v. Beck,

80 F.3d 105,

107

(4th Cir.

1996).

As described in detail in the Fourth Circuit's Montcalm opinion,

the contours of the legal standard governing a jail's censorship

of incoming and outgoing mail has changed over time.
Publ'g,

80

F.3d

at

107-08.

The

standard

now

Montcalm

applicable

to

regulations that censor incoming publications was established by
the United States Supreme Court in Turner v. Safley, 482 U.S. 78

(1987), and later expressly extended to incoming publications in
Thornburgh v. Abbott, 490 U.S. 401, 413

As

explained by

the

(1989).

Supreme Court

in Turner,

"[p]rison

walls do not form a barrier separating prison inmates from the

protections of the Constitution";
incarceration
inordinately

planning,

are

such

difficult

that

however,

the complexities of

" [r] unning

undertaking

that

a

prison

requires

and the commitment of resources,

is

an

expertise,

all of which are

peculiarly within the province of the legislative and executive

branches of government."

Turner, 482 U.S. 84-85.

Accordingly,

the Turner opinion "specifically rejected the application of [a]

strict scrutiny" standard applicable to prison regulations that
impinge on constitutional rights,

adopting instead a four-part

test "to guide the review process"

that gives "deference to the

judgments

of

prison

administrators

faced

problems."

Montcalm Publ'g, 80 F.3d at 108.

with

difficult

Such test requires

the Court to consider:

(1)

whether

there

is

a

"valid,

rational

connection"

between the prison regulation or action and the
interest asserted by the government, or whether this
interest

is

"so

remote

as

to

render

the

policy

arbitrary or irrational";
(2) whether "alternative
means of exercising the right . . . remain open to
prison inmates" . . . ; (3) what impact the desired
accommodation would

have

on

security

staff,

inmates,

and the allocation of prison resources;
and
(4)
whether there exist any "obvious, easy alternatives"
to the challenged regulation or action, which may

suggest that it is "not reasonable,

but is [instead]

an exaggerated response to prison concerns."
Lovelace
Turner,

v.

Lee,

472

F.3d

482 U.S. 89-92)

Further

the

200

(4th

Cir.

2006)

(quoting

(first omission in original).

articulating

administrators,

174,

the

Fourth

deference

Circuit

has

owed

to

prison

repeated

the

Supreme

Court's warning that "'courts are ill equipped to deal with the

increasingly urgent problems of prison administration.'"

199

(quoting Procunier v.

overruled

by

Thornburgh,

Martinez,
490

U.S.

416 U.S.
at

396,

413-14).

405

Id. at

(1974),

Accordingly,

"courts must accord deference to the officials who run a prison,

overseeing

security,

and

coordinating

discipline,

many

aspects,

and general administration."

re

Long Term Administrative

as

Five

Percenters,

its

174

Segregration of

F.3d 464,

469

(4th Cir.

"the evaluation of penological objectives

the

considered

actually

charged

with

of

and

prison

trained

Id.; see In

Inmates Designated

that

judgment

including

1999)

is committed to

administrators,

in

(noting

the

who

running

are

of

the

particular institution under examination," and

that

state

deference

correctional

federal

court

is

institution

even

more

marks and citations omitted).
into the Turner test

as

is

involved,

appropriate")

the

"[w]hen a

(internal

"is

a

quotation

Such deference is, in part,

such test

of

less restrictive

built

than the

test ordinarily applied to alleged infringements of fundamental

constitutional rights."
States v. Stotts,

925

Lovelace,
F.2d 83,

472 F.3d at 200;

86

(4th Cir.

1991)

see United
(describing

the role of courts in this context as "one of caution").

In applying the Turner test,

it is the party challenging

the prison regulation that "bears the burden of showing that the
[challenged]
legitimate

regulations
penological

.

. . are

not

objectives,

or

'exaggerated response' to such concerns."

reasonably related
that

they

are

to
an

Prison Legal News v.

Livingston, 683 F.3d 201, 215 (5th Cir. 2012)

(citing Overton v.

Bazzetta,

482

539

U.S.

126,

132

(2003);

Turner,

U.S.

at

87).

Although such burden falls squarely on PLN in the instant case,

Defendants are

nevertheless

in

the

support

of

required to

disputed

polices

articulate

such

that

a rationale

the

Court

perform a meaningful review of the policy under Turner.
v. Banks,

548 U.S.

521,

den Bosch v. Raemisch,

535

(2006)

786

the burden of persuasion is on the
validity

of

articulate

a

[prison]

their

regulation.")

{7th Cir.

[plaintiff]

regulation,

legitimate

Beard

(plurality opinion);

658 F.3d 778,

(citations omitted);

see Van

2011)

("While

to disprove the

defendants

governmental

can

must

interest

Livingston,

683

still

in

the

F.3d at

215

(noting that in order for prison administrators to be "entitled
to

summary judgment,

demonstrate
Beard,

that

the

.

.

. the

Policy

record must

is

a

be

'sufficient

reasonable

one'"

to

(quoting

548 U.S. at 533)).

B. Parties' Summary Judgment Claims
PLN's

motion

for

partial

summary

memoranda

challenge

Defendants'

"sexually

explicit"

photos

extends

not

"pornography,"

only

but

to

also

or

is

"any

which may be deemed offensive"

polices

and

as well as

[or]
to

Separately,

mail

PLN's

containing

amended

VBCC

at

VBCC

considered

pictures

.

"material dealing

with or displaying . . . scantily clothed persons."
4.

from

which

traditionally

writings

supporting

banning

publications,

what

to

judgment

ECF No. 48-

PLN challenges the VBSO policy banning incoming
"ordering

complaint

forms

also

with

alleges
10

prices."

due

Id.

process

Although

violations

based on Defendants' handling of censored PLN publications, PLN
does not pursue such issue on summary judgment.
11

ECF No. 36, at

n.8.

Defendants'

summary

judgment

motion

and

supporting

memoranda oppose Plaintiff's constitutional challenge to the two

jail policies at issue,

and assert that Defendants are entitled

to summary judgment on such issues because the sexually explicit
material and order form restrictions are constitutionally proper

under Turner.

Defendants also assert that they are entitled to

summary judgment on Plaintiff's due process claim,
PLN

was

afforded

sufficient

notice,

and

an

extent

contrasted

PLN's
with

amended

complaint

declaratory

seek summary judgment

on

qualified

The

judgment

immunity.

should

be

or

Sheriff

in

also

his

to

to

money

injunctive

such monetary

entered

claims against him are

seeks

opportunity

Additionally,

challenge, the rejection of its publications.
the

damages,

relief,

claims

that

because

as

Defendants

based on

asserts

favor

arguing that

their

summary

Plaintiff's

improperly based on Respondeat Superior

liability.
C. Analysis
1. Challenge to Ordering Form Ban
Considering

containing

first

"ordering

"Newspaper clippings,

the

VBSO

forms,"

lyrics,

ban

on

incoming

Defendants'

poems,
11

calendars,

publications

policy

states:

ordering forms

with prices,

catalogs,

the internet,

checks or cash will not be accepted."

4,

1

6

(emphasis

brochures,

added);

any information printed from

ECF

No.

containing" the above listed items).
summary judgment filings
access to money,

the

that

48-13

ECF No.

(banning

48-

"Mail

Defendants assert in their

because

inmates

at VBCC have no

order form ban is designed to protect the

public from fraud, further stating that there have in the past
been investigations into VBCC inmates fraudulently using credit
cards

to

purchase

goods

from

outside

vendors,

as

well

as

problems with inmates using stamps as currency to purchase items
from outside vendors.

ECF No. 48-3, M

12, 16-17.

PLN responds

by arguing that the Sherriff failed to articulate "fraud" as a

justification

for

such

policy

during

his

deposition,

and

separately arguing that the disputed policy is not a rational
means of achieving such goal.

Having considered each motion for

summary

judgment,

factual

rational

inferences

F.3d

523,

at

the

resolving
in

favor of

Court

the

GRANTS

disputes

non-movant,

summary

and

competing

Rossignol,

judgment

in

favor

316

of

Defendants on this issue.

a. Fraud as the asserted Penological Goal

As

noted

above,

Defendants'

position

is

that

the

ban

on

incoming mail containing "ordering forms" is in place at VBCC to

prevent inmates from committing
concedes

that

the

prevention

fraud on
of

12

fraud

the public,
is

in

fact

and PLN
a

valid

penological

goal.

ECF

No.

52,

at

8.

Notwithstanding

its

concession, PLN highlights in its summary judgment filings that:
(1)

the Sheriff did not articulate the prevention of fraud as a

basis

for

the ban on catalogs

and ordering

during his January 2014 deposition; and (2)

forms

with prices

the Sheriff further

stated during such deposition that he was "not sure"

that there

would be a benefit to denying inmates access to certain types of

catalogs if such catalogs were intended to be used by the inmate
to identify

to

loved ones

would like as a gift.

which

ECF No.

Sheriff did not mention "fraud"

permissible
36-3,

at

items

16-18.

the inmate

Although the

in the deposition excerpts that

were provided to the Court, he did say that the reason the VBSO
censors
that

"ordering forms

inmates

"have no

with

prices,

way to pay"

catalogs,

brochures"

for such items

is

and are not

permitted to "purchase anything outside of the [VBCC] canteen."
Id.

Moreover,

penological

"fraud"

motivation

discovery responses

was

for

identified

the

ban

on

provided to Plaintiff

the Sheriff's deposition.

ECF No.

the

provided

Sheriff

as

subsequently

the

ordering

forms

two months

48-6, at 8.
an

Defendants'

affidavit

prior

in
to

Additionally,
more

fully

explaining his view on the risk of VBCC inmates committing fraud
on the public if they have access to ordering forms.

48-3.

ECF No.

Accordingly, based on the current record, the Court finds

both that "fraud" is a valid penological goal and that it is the
13

penological goal articulated by Defendants that must be analyzed

by this Court in its analysis of the Turner factors.2
b. Ordering Form Ban satisfies Turner test

This Court begins its analysis under Turner by reiterating
the clear and controlling rule of law mandating that this Court

afford deference to prison administrators in the difficult arena
of managing a prison. Lovelace, 472 F.3d at 199; see Stotts, 925

F.2d at 86 (explaining that heightened scrutiny would result in
unworkable

intertwinement

institutional judgments,

of

the

courts

and therefore,

"not on

is

that

it

is

an

Separately,

[Defendants]

2 Although prison authorities must articulate
policy is aimed at achieving in order for a
articulated
in
Turner,
the
subjective
administrator is not controlling because the
Turner

difficult

the proper approach for

a reviewing court is "one of caution").
reiterates that the burden is

in

objective

the Court

to prove the

the goal or goals that a
Court to apply the test
viewpoint
of
any
one
better interpretation of

test

that

turns

on

the

reasonableness of the policy itself, not the personal viewpoint of any
one actor.

See Hammer v. Ashcroft,

570 F.3d 798,

(indicating that the Turner test involves
Lovelace,

472

F.3d

at

200

(rejecting

an

803

(7th Cir.

2009)

"an objective inquiry");
approach

that

focused

"entirely on the defendants' state of mind" because such inquiry did
not resolve the question of whether the prison's policy, "by its own
terms" violates the Constitution).
Arguably, any other approach would
be unworkable because even if a policy was struck down by a Court due

to evidence of improper subjective motivation, it could be readopted
by the jail the very next day on the proffered objectively valid
ground that would have otherwise
satisfied the Turner test.
Alternatively, consistent with the conclusion
year by the United States Court of Appeals
Columbia Circuit,

reached earlier this
for the District of

even if this Court assumes that "motive" plays some

part in the Turner inquiry and that "some quantum of evidence of an
unlawful motive can invalidate a policy that would otherwise survive
the Turner test," this Court finds that the record developed by PLN in
this case
54,

61

"is too insubstantial to do so."

(D.C.

Cir.

2014).
14

Hatim v. Obama,

760

F.3d

validity

of

prison

disprove it."

regulations

Overton,

but

on

the

[Plaintiff]

to

539 U.S. at 132.

i.

Rational Connection

The first step of the Turner analysis requires the Court to
consider

"valid,

the

whether,

rational

prevention

based

on

the

connection"

of

fraud

record

between

on

the

before

the

it,

there

is

a

ordering form ban and

public,

or

whether

such

penological goal is "so remote as to render the policy arbitrary
or irrational."

Lovelace,

record

two

suggests

ordering from ban,

472 F.3d at 200.

different

Because the current

interpretations

of

the

disputed

the Court first articulates the difference in

interpretations and then analyzes each alternative.
Although the disputed policy states,

on

its face,

that

it

bans "ordering forms with prices," there is conflicting evidence
in the record as to whether such policy, was/is applied at VBCC
to exclude:

(1) any incoming publication that includes an actual

"order form"

(2)

that can be filled out and returned to a vendor;

any incoming publication

order

form,"

but

does

that

include

a

does

not

product

include a

advertisement

"per
with

or

se
a

price, as well as sufficient additional information to permit an
individual
Compare

employee

to

ECF

order

No.

36-5,

Captain

publications

such product

are

at

Lori

6-8

from

the

(deposition

Harris

permitted

at
15

advertising vendor.
testimony

indicating
VBCC

if

from

VBSO

that

written

they

include

advertisements
"order

No.

form"

48-3,

1

with

that

10

prices

can be

as

long

mailed

(affidavit

as

back

from

there
to

the

the

is

not

a

per

vendor) , with

Sheriff

stating

that

se
ECF

the

policy "encompasses all solicitations, ordering forms, catalogs,
brochures,

whether

print

or

from

the

internet,

which

offer

inmates the opportunity to make purchases from outside vendors,"
and

that

contain

" [o] ffers

without

information

required

included in this policy").

disputed

policy

ordering

are

to

forms

make

per

such

se,

but

which

purchases,

are

Although the precise contours of the

unclear

from

the

evidenced by the analysis that follows,

current

record,

as

such lack of clarity

does not constitute a "genuine dispute as to a material fact"
because

be

the penological objective

adequately

served by

advanced by Defendants

either version of

would

the policy,

one

version of the policy would simply appear to be more effective

than the other at achieving such goal.3
* Per Se Ordering Forms *

First, assuming the policy to ban only "per se" order forms
that

can be

filled out

and

returned

to

a

vendor,

PLN does

not

dispute the fact that the banned issues of Prison Legal News and

3 Although not squarely addressed in the briefs before the Court, to
the extent the VBSO banned only "per se" ordering forms, logic would

suggest that jail authorities could reasonably determine that VBSO
resources would be unduly taxed by scouring the fine print in all
incoming publications to determine if "ordering information" was
included, as contrasted with conducting a more limited search for
easily identifiable "order forms."
16

the banned PLN informational packets all

order forms.
Court

is

ECF No.

therefore

38,

1M 6,

limited

to

8,

included such "per se"

25.

The question for the

whether

the

ban

on

"per

se"

ordering forms has a valid and rational connection to reducing
fraud.

A

review

of

relevant

case

law

reveals

few

instructive

cases on prison policies aimed at combating fraud on the public,
see,

e.g.,

Woods

Corrections,

dearth

of

652

case

v.
F.3d

law

Commissioner
745

involving

prisoners from accessing
combat fraud.4

(7th

However,

Cir.

of

2011),

regulations

vendor

the

Ind.
and

designed

Dept.
an

to

of

apparent

prevent

information in an effort to

regardless of whether there exist any

factually similar policies at other jails or prisons aimed at
similar penological concerns,

the law is clear that PLN "bears

the burden of showing that the [challenged]
are

not

reasonably

objectives."

related

to

regulations

legitimate

. . .

penological

Livingston, 683 F.3d at 215.

PLN argues that excluding publications containing ordering
forms from VBCC is not an effective means to achieve the goal of

4 This Court is unaware of any federal case addressing a ban on
"ordering forms" contained within other publications adopted for the

purpose of combatting fraud, with the exception being a case barring
magazine inserts that permit a prisoner to renew a magazine
subscription on the promise of future payment.
See Klein v. Skolnik,
No. 3:08cvl77, 2010 WL 745418, *3-4 (discussing the prison's policy of
removing magazine renewal inserts prior to delivering magazines to
inmates).

Other courts have acknowledged the appropriateness of bans

on catalogs and other unsolicited "junk mail" designed to alleviate
the heavy burden on prison mail rooms.
See, e.g., Morrison v. Hall,
261 F.3d 896,

905

(9th Cir.

2001).
17

reducing

fraud

on

the

public.

Specifically,

PLN

argues

that

VBCC inmates cannot commit mail order fraud because they do not

have

money

(or stamps

as

a

substitute

to

money) , VBCC

rules

prohibit them from purchasing mail order items, and all incoming
mail at VBCC is screened for
that most

mail

ordered).

be

that

749.

ECF No.

the

opinion,

order items

(presumably suggesting

would never be delivered to VBCC

52, at 8.

regulation

contraband

in

Such argument,

question

is

however,

unnecessary"

rather than remote or arbitrary.
Although

constitute

Defendants'

only

one

of

ban

several

on

Woods,

"ordering

policies

aimed

if

"seems to

in

PLN's

652 F.3d at
forms"
at

additional crimes and/or reducing fraud on the public,

might

deterring
there is

no constitutional or prudential requirement that a jail policy
alone root out all evil for it be "reasonable" in its pursuit of

a valid penological objective.
clearly

provides

demonstrate

that

that
its

a

To the contrary, controlling law

jail

"does

regulations"

not

need

succeed

in

actually
achieving

to
the

penological goals at which they are aimed; the regulations must
instead merely have a rational relationship to the stated goals.
Stotts,

156

925 F.2d at

F.3d

question

192,

of

87

202-03

whether

(citations omitted);

(D.C.

a

Cir.

federal

1998)

statute

see Amatel v. Reno,

(indicating

regulating

that

the

incoming

publications at a prison is constitutional under Turner does not

require the court to ask if such rule "will advance the prisons'
18

rehabilitative

project,

have

that

believed

but

it

whether

would

do

Congress
so").

could

reasonably

Accordingly,

PLN's

suggestion that the disputed policy is not rational or necessary

because

it arguably

overlaps

other VBSO

rules

carries

little

weight.

Although

Plaintiff

seeks

to

cast

the

VBSO

policy

as

ineffective and suggests that the risk of fraud is very low,
offers no evidence to such points,

arguments

that

Defendants.
not

seemingly

and instead advances several

attempt

to

shift

the

burden

to

For example, Plaintiff argues that Defendants have

demonstrated an evidentiary link between past instances of

inmate

fraud

arguments,

and

such

however,

inmates'

access

to

order

that

misuse of order forms.

their policy is

responsive

Turner

"ensure[]
security

"reasonableness"

standard

the ability of corrections
problems

Such

to past

It is well-documented in the law that a

jail must adopt regulations in anticipation
the

forms.

miss the mark because Defendants have no

obligation to prove

and

it

and

to

adopt

is

of future events,
designed

to:

(1)

officials to anticipate

innovative

solutions

to

the

intractable problems of prison administration"; and (2)

"avoid[]

unnecessary

problems

intrusion

of

the

judiciary

particularly ill suited to resolution by
Estate

of

Shabazz,

482

U.S.

342,

19

decree."

349-50

quotation marks and citations omitted).

into

O'Lone

(1987)

Moreover,

v.

(internal

although it

is arguably unclear what degree of evidentiary proof a defendant
must advance in defense of

a jail regulation,

have advanced evidence demonstrating that

not

artificial,

here,

Defendants

fraud is a real,

concern at VBCC through the

and

introduction of an

affidavit stating that there have been "multiple investigations
of

[VBCC]

inmates involving the fraudulent use of credit cards

to purchase goods

from outside vendors

from the use of credit/debit cards,

check writing schemes,"

with one

or

to generate profits

and possible bank fraud and

such investigation leading to

criminal convictions for credit card fraud.

ECF No. 48-3,

H 16.

Defendants have also presented evidence demonstrating that VBCC

inmates have previously purchased items from vendors outside the

% 17.

approved channels by using stamps as currency.5

Id.

Considering

advanced

these

facts

together,

reasonable relationship between the

Defendants

have

"ordering form"

a

ban and the

goal of combatting fraud.

Associated with the

above arguments,

PLN asserts

that

the

"ordering form" ban is arbitrary because inmates have access to
television and newspapers.

First,

as

to

television,

the

fact

that prisoners may have fleeting access to a certain television
advertisement for a product does not undercut the rationality of
the

VBSO

ban

on

print

materials

containing

ordering

forms.

5 Many of the "ordering forms" contained in issues of Prison Legal News
expressly invite readers to pay for advertised products through
postage stamps.
20

Unlike television, print materials can more readily be previewed

by authorities in order to exclude materials that pose a risk.
Moreover,

more

unlike television,

long-term opportunity

print ads are static and present a

to

facilitate

fraud.

As

to

PLN's

suggestion that other print materials, such as newspapers, that
contain "per se" order forms were admitted into VBCC during the
relevant

time

period,

such

contention

is

speculative

and not

supported by the record as Plaintiff has not introduced a single

newspaper edition or magazine issue that was admitted into VBCC

during the relevant period that contained ordering forms.6
Accordingly,

the

Court

articulated a valid rational

finds

that

Defendants

have

connection between the ban on per

se ordering forms and the penological goal of combating fraud
and PLN has failed to undercut such connection.

Notably,

" [a]

6 There appears to be some legal support for the proposition that
inconsistent application of a prison policy may serve to undercut the
claimed link between the policy and the asserted penological goal.
See Couch v. Jabe, 737 F. Supp. 2d 561, 569 (W.D. Va. 2010) (noting
that when a publication that plainly violates a prison regulation is
nevertheless permitted, "the argument by [the defendants] that there
is a logical connection between the broad scope of the regulation and
their legitimate goals is fundamentally weakened"). However, PLN did
not

introduce

as

an

exhibit

any

newspapers

or

other

publications

allegedly permitted into VBCC during the relevant period in an effort
to demonstrate that Defendants were not applying the policy in a
neutral fashion.
Plaintiff did ask questions of one deposition
witness about the "Virginia[n] Pilot" newspaper generally, and also

asked questions

about a

specific issue of

a

sports magazine that

appears to have belonged to a lawyer involved in this case, but PLN
did not ultimately introduce those materials in support of, or

opposition to, one of the pending summary judgment motions.
36-5,

52-1.

PLN has

ECF Nos.

therefore failed to demonstrate that the manner

in which the policy was applied could serve to undercut the logical
connection

between

such

policy

and

fraud.
21

the

stated

goal

of

combatting

prohibition on

[ordering forms]

relates

goal of preventing fraud since it cuts
to potential victims."

Woods,

fairly directly to the
off

the inmates'

access

652 F.3d at 749.

* Ordering Information *

Assuming,

arguendo,

that the policy at issue bans not only

advertisements with "per se" ordering forms,
which

contain

sufficient

advertised product,

policy lacks a

information

required

PLN likewise fails

"valid rational

but also those ads
to

purchase

the

to demonstrate that such

connection"

to reducing

fraud.

To the contrary, such a policy would likely be more effective at

combatting

fraud

because

it

would

restrict

more

incoming

publications from VBCC, and thus would reduce the likelihood of
fraud being committed by a more resourceful inmate who,
absence of an "ordering form,"

use

other

Accordingly,

means

to

in the

is willing to draft a letter or

perpetrate

a

fraudulent

transaction.7

the conflict in the record as to precisely how the

VBSO's policy is applied is not material to the determination of
whether the policy at issue is rationally connected to reducing

7 To the extent that the record suggests that newspapers are allowed at
VBCC, and common familiarity with newspapers reveals that they often
contain ads selling products,
if the VBSO's ban extends to all
"ordering information,"
PLN might be in a better position to
demonstrate,

as

PLN

at

least

suggests

through

its

current

filings,

that PLN's publications were subject to unequal treatment at VBCC.
However, as stated in the preceding footnote, PLN has not introduced

any newspapers or other magazines as exhibits in an effort to support
its "suggestion" of differential treatment, and it is therefore
impossible to determine without resorting to speculation whether PLN's
publications were treated differently.
22

fraud—it

is

so

connected

under

either

interpretation

of

the

ordering form policy.
The

Court

therefore

reincorporates

the

above

alternatively finds that, on the current record,
articulated

"ordering

a

valid

information"

rational

and

connection

the

analysis

Defendants have

between

penological

and

goal

a

of

ban

on

combating

fraud.8
ii.

The

second

Turner

Alternative Means

factor

requires

the

whether there are alternative methods for PLN,

Court

to

and VBCC inmates,

to exercise their constitutional rights.

Lovelace,

200.

in this case,

The constitutional right at issue

consider

472 F.3d at

defined

expansively,9 appears to include PLN's ability as a publisher to
communicate with inmates

at VBCC,

and the

inmates'

intertwined

8 Although the lack of clarity in the record is immaterial to ruling on
this issue, it appears that Defendants have an obligation to provide
inmates, the public, and VBSO staff with sufficient information such
that the controlling policy is understood by all.
The Court would
hope that, to the extent Defendants intend on applying their policy to
ban all "ordering information," regardless of whether there is an
"ordering form with prices," they make the effort to modify their
written policy.
Additionally, whatever version of the policy is
applied going forward, Defendants should anticipate the fact that they
may find themselves back in this very Court if such policy is not
applied consistently across different publications.
9 The Supreme Court has cautioned against a narrow interpretation of
"the right" in question,

expansively."

finding that it must be "viewed sensibly and

Thornburgh, 490 U.S. at 417.

Accordingly, prison mail

restrictions that limit certain publications from entering the prison,

yet still "permit a broad range of publications to be sent, received,
and read" favor the constitutionality of the challenged restriction.
Id.

at 418.

23

right

to

receive

publishers.
this

written

The current

factor cuts

materials

from

record presents

in Defendants'

PLN

and

other

little question that

favor because VBCC inmates may

permissibly receive written materials mailed directly from PLN,
and

other

publishers,

publications

that

do

to

include

not

include

otherwise violate VBCC policy.

that at
and

is

not

precluded

communicating with inmates.

PLN

and

books

order

or

other

forms

Specifically,

and

written
do

not

the record reveals

least one book published by PLN is permitted at VBCC,

PLN

lending

any

library and may
other

by

VBSO

from

otherwise

Inmates likewise have access to a

receive

publishers

policy

newspapers

that

comply

and magazines

with

VBSO

from

policies.

Accordingly, the limits on PLN's ability to mail publications to
VBCC inmates that include "ordering information" advertising for

other mail

order products does

not

eliminate

PLN's

ability to

communicate with VBCC inmates.10

10 Although VBSO rules prohibit inmates from receiving ordering forms
with prices, as suggested by the Sheriff's deposition testimony, it
appears that PLN, as a publisher, may be permitted to mail a
publication to VBCC inmates that does not include pricing or other
"ordering information" but does include enough details about PLN's
educational publications such that the inmate could ask a friend or
family member to seek out PLN to discover the necessary ordering
information.
Moreover, to the extent PLN wants to provide inmates
access to the articles in the monthly issues of

Prison Legal News,

PLN

appears to retain the ability to either publish and provide a free
include the banned
version of Prison Legal News that does not
advertisements, or to publish a separate paid version of its monthly

publication (the subscription to be paid for by friends or family of a
VBCC inmate)

that

excludes

the banned advertisements.

alternatives may not be desirable to PLN or
24

Although such

its business model,

the

iii.

Impact of the desired accommodation

The third Turner factor requires the Court to consider the

likely impact on VBSO staff,

inmates,

and prison resources if

the challenged regulation is struck down.

Most relevant to such

inquiry in this case "is whether lifting the ban would re-open a
channel

of

communication"

that

would

potential for future frauds to occur.

create

the

reasonable

Woods, 652 F.3d at 750.

Consistent with the prior discussion herein, this Court believes
that striking down the ban on ordering forms would create such
risk.

As

in

Woods,

here,

there

is

record

evidence

that

the

Sheriff has utilized investigative resources to root out prior
frauds

at

least

similar

to

those

targeted

by

the

policy

in

dispute, and dedicating resources to investigate past crimes "is
not the type of activity prison officials should regularly have
to conduct"; rather, they should endeavor to implement policies
to

curtail

such

illegal

behavior

before

it

occurs.

Id.

Accordingly,

because Defendants in this case were "rational in

their belief

that,

fraud,"

restricting

if

left unchecked,

that

First Amendment rights."

activity

an activity will

"does

not

violate

lead to

inmates'

Id.

fact that such alternatives appear to exist, further support a finding
in favor of Defendants on the second Turner factor.

25

iv.

The

fourth

whether

there

Obvious Alternatives

Turner
are

factor

"any

requires

obvious,

challenged regulation or

action,

not

[instead]

reasonable,

prison

is

concerns."

differently,
regulation,
the

but

or

Court

no

[Plaintiff's]

not

present

an

alternatives

at

suggest

F.3d

considers

regulation

to

at

whether

all,

"would

that

polices

the

prevent

it

is
to

200.

an

Stated

alternative

fully accommodate

any

evidence

Woods,

that

an

652 F.3d at 750.

alternative

regulation

fraud

is

unnecessary

through

limiting

because

inmates

be said to eradicate it."

possibility that

regulation

to

but does

other

VBSO

abilities

to

Id.

inmates

they "can hardly

PLN does not appear to consider

could commit

fraud

false credit card information or forged checks.
appear

PLN

Even assuming that such other rules or

practices help reduce the potential for fraud,

does not

the

First Amendment rights at a de minimus cost to

purchase outside items.

the

to

that

would sufficiently achieve the same penological goals,

argue

consider

response

exaggerated

472

legitimate penological interests."

does

easy

Court

which may

Lovelace,

the

the

consider

the

possibility

through using
Similarly,

that

products

PLN
not

permitted at VBCC could be purchased through a mail order fraud
scheme

launched

from

within

the

jail

walls

with

the

products

arranged to be shipped to a friend or family member outside the
walls of VBCC.

Accordingly,

because
26

"no single regulation can

serve as

a

catchall

for

eliminating

the

potential

for

fraud,"

based on the current record, the appropriate course is to "defer

to the judgment of the prison administrators when it comes to
deciding whether a ban on

[ordering forms]

is also necessary."

Id.

Having

considered

finds

that

Defendants'

under

such

test,

all

of

the

ordering

noting

again

Turner

factors,

form policy
that

the

the

survives

burden

was

Court

scrutiny

on

PLN

demonstrate the unconstitutionality of the disputed policy,
on

the

current

record,

no

reasonable

that PLN carried such burden.

factfinder

to

and

could conclude

The fact that PLN is purportedly

widely permitted in jails and prisons across the country is not
itself

a

reason

to

unconstitutional.

declare

Court.

restrictive

VBSO policies

Evidence advanced by a plaintiff is necessary

to prove such fact,
this

the more

and such evidence

Defendants'

summary

is not currently before

judgment

motion

is

therefore

GRANTED on this issue.

2. Challenge to Sexually Explicit Materials Ban
Plaintiff's

equitable
VBSO's
explicit

relief,

rule

No.

and

17,

and

complaint

declaratory

prohibiting

material."

overbroad,

ECF

amended

at

that

9.

PLN
it

The

seeks

judgment,

publications

contends
was

monetary

that

27

have

associated

containing
such

rule

unconstitutionally

parties

damages,

"sexually

is

vague

applied

filed cross

with

to

motions

and
PLN.

for

summary judgment on this issue; however,

ruling on the ordering form ban,

in light of the above

the Court takes this matter

UNDER ADVISEMENT pending additional briefing.
It appears undisputed that every issue of Prison Legal News

and every PLN "informational packet" that was excluded from VBCC

during

the relevant

forms," and

thus,

time period contained

PLN cannot

establish that

per

se

the

"ordering

exclusion of

such publications from VBCC violated the Constitution.
all

excluded

PLN

materials

were

permissibly

Because

excluded

for

containing ordering forms, it appears that a question exists as
to

whether

one

or

more

"sexually explicit"

The

parties

of

PLN's

challenges

to

the

VBSO's

materials policy have been rendered moot.

should

therefore

provide

addressing the following two matters:

supplemental

briefing

(1) which of Plaintiff's

claims, if any, remain a live controversy; and (2) to the extent

any of PLN's claims survive or potentially survive the instant
ruling,

the parties should separately address the law governing

each type of claim (facial challenge vs. as applied challenge),
and should provide
how

the

Court

individualized supplemental arguments

should

rule

on

each

type

of

as to

surviving

or

potentially surviving claim.
3. Alleged Due Process Violations
In addition to the above issues on which cross-motions for

summary

judgment

were

filed,

Defendants
28

move

for

summary

judgment as to Plaintiff's claim that PLN was unconstitutionally

denied

due

process

Defendants'
for

such

when

it

was

not

timely

rejection of PLN publications,

rejections,

opportunity

to

and

was

challenge

reasons discussed below,

such

also

not

of

or the actual reasons
provided

censorship

Defendants'

notified

a

meaningful

decisions.

For

the

summary judgment motion is

denied on this issue.

In Montcalm Publ'g,

a

magazine

publisher

communicating
entitled

to

censored.

v.

with
some

the

"has

its

392

a

degree

of

process

not

F.3d 420,

necessary

expressly define

to

satisfy

when

80 F.3d at 109;

433

(10th Cir.

the holding in Montcalm Publ'g).
did

constitutional

inmate-subscribers"

Montcalm Publ'g,

Simmons,

Fourth Circuit expressly held that

the

the

interest

and
a

is

in

therefore

publication

is

see also Jacklovich

2004)

(agreeing with

Although the Fourth Circuit

precise

contours

Constitution,

it

of

the

process

"h[e]ld

that

publishers are entitled to notice and an opportunity to be heard
when their publications are disapproved
subscribers,"

and

appeared

to

discuss

for receipt by inmate
with

favor

a

procedure

that would provide publishers a written rejection notice and an
opportunity to respond in writing.

Id. at 106, 109.

Here, it appears undisputed that Defendants first notified

PLN of a rejection of an issue of Prison Legal News in April of
2012, and did not thereafter notify PLN of subsequent rejections
29

of

any

PLN publications until

lawsuit

was

filed.11

during a period of
notice

from

Moreover,

VBSO

Defendants

employee

2013,

the

after

record

time in late 2013 when
of

review of such decisions,

a

late

censorship

the

instant

demonstrates

that

PLN was receiving

decisions

and

seeking

a

the "review procedure" merely involved

reviewing

whether

the

rejection

form

was

properly filled out; it did not involve a review of the rejected
publication
rules.

to

determine

ECF No.

2d 1162,

52-2,

1172-73

statement

was

(D.

whether

at 2-5;

Colo.

institution to

return the

publisher prior

actually

see Jordan v.

2008)

unconstitutional

it

violated

Sosa,

577 F.

VBSO
Supp.

(concluding that a BOP program
"to

[rejected]

the

extent

it

publication

to completion of the

permits

...

administrative

to

the

the

review")

(emphasis added).
During the time period relevant to this case, the VBSO has

twice amended its policy associated with providing notice and an

opportunity to be heard, the first amendment appearing to ensure
that "notice" is properly provided, and the second appearing to
11

Defendants'

VBSO's

assertion

ongoing

that

censorship

PLN

of

received

each

sufficient

Prison

Legal

notice

News

of

the

monthly

publication during 2012 and early 2013 because VBCC inmates made
complaints to PLN does not appear to be supported by the law of this
Circuit.
See Montcalm Publ'g, 80 F.3d at 109 (noting that "while the
inmate is free to notify the publisher and ask for help in challenging
the prison authorities' decision, the publisher's First Amendment
right must not depend on that").
Moreover, Defendants acknowledge
that some issues of Prison Legal News were being delivered by a
certain VBSO employee
during
the
relevant
time
frame,
further

suggesting that PLN may not have known when issues were delivered, and
when they were censored.
30

ensure that a publisher be given the opportunity to be heard as

part of a meaningful review procedure.12

Although it appears

from the current record that the VBSO's procedures currently in

force provide constitutionally adequate notice and a sufficient

opportunity
censorship
undercut

prior

to

participate

decision,

PLN's

such

ability

practices

to

applied

in

a

recent

changes

obtain

during

meaningful
in

injunctive

the

review
policy

relief

period

of
do

not

to

the

as

relevant

a

to

this

litigation and challenged in PLN's amended complaint.13

See Wall

v.

that

Wade,

"heavy

741

F.3d

burden"

492,

of

497

(4th

demonstrating

Cir.

2014)

that

"the

(noting

challenged

the

conduct

cannot reasonably be expected to start up again lies with the

party asserting

mootness,"

and

that

the

Fourth Circuit

has

"previously held that when a defendant retains the authority and
capacity to repeat an alleged harm,
not be

dismissed as

moot")

a plaintiff's claims should

(internal citations omitted).

This

is particularly the case because Defendants do not in any way
acknowledge
and

that

instead

their

portray

"clarifications."

To

prior

practices

their
the

recent

extent

that

their prior procedures were lawful,

were

unconstitutional,

policy

revisions

as

Defendants

maintain

that

PLN's injunctive claim is

12 Among the recent revisions in procedure, Defendants now retain a
copy of the excluded publication until the review process is complete.
13 It appears from the record that PLN also seeks nominal damages and
punitive damages for the alleged past violations.
31

not

moot,

as

claimed

by

Defendants,

because

there

is

no

in

impediment to Defendants returning to their past practices.

Accordingly,
PLN's

favor,

because

could

the

plainly

current

support

a

record,

when

viewed

finding

that

Defendants

failed to provide PLN with constitutionally adequate notice,
constitutionally

adequate

opportunity

to

be

heard,

or

a

both,

Defendants' summary judgment motion is DENIED as to this issue.
IV.

Immunity

Defendants move for summary judgment on Plaintiff's claims

seeking money damages as to both the "ordering forms" policy and
the "sexually explicit
Eleventh

Amendment

materials"

immunity

reasons discussed below,

and

policy on the basis of both
qualified

Defendants'

immunity.

For

the

summary judgment motion is

GRANTED as to their assertion of qualified immunity.
A. Eleventh Amendment Immunity
The

States

Eleventh

immunizes

money damages.

Amendment

the
U.S.

to

the

individual
Const,

Constitution

states

amend.

XI;

of

against

the

suits

United

seeking

see Vollette v. Watson,

937 F. Supp. 2d 706, 713-16 (E.D. Va. 2013) (discussing the fact
that Virginia Sheriffs are state constitutional officers and are
therefore

immune

"official

capacity"

immune

However,

from

here,

from

suit

in

suit

claims
for

light

under

Eleventh

seeking money

claims

of

the

seeking

the parties'
32

Amendment

damages,

but

injunctive

positions

on

are

for

not

relief).

summary

judgment, there is no dispute

that Eleventh Amendment immunity

is not applicable to the claims pending in this case.
while Defendants effectively argue

liability

by

the

that

Eleventh Amendment

Notably,

they are shielded from

for

claims

seeking

money

damages against them in their "official capacity," ECF No. 48 at
29-30,

PLN

concedes

in

its

"official capacity"

claims

relief,

at

that

ECF No.

52,

responsive

are

18-19.

brief

limited

to

Accordingly,

that

seeking
as

injunctive

PLN makes clear

it does not advance any "official capacity"

claims in this case,

Plaintiff's

money damages

and the law clearly provides that Eleventh

Amendment immunity does not extend to claims seeking injunctive

relief,

issue.

no further ruling is required by

the Court on

this

Bland v. Roberts, 730 F.3d 368, 390-91 (4th Cir. 2013)."
B. Qualified Immunity

Defendants separately assert that the claims seeking money

damages

against

Defendants

in

based on the "ordering form"
materials"

immunity.

ban

are

barred

their

"individual

ban and

based

on

the

the

capacities"

"sexually explicit

doctrine

of

qualified

As recently explained by the Fourth Circuit:

A government official who is sued in his individual
capacity may invoke qualified immunity.
See Ridpath
[v.
Board of Governors Marshall Univ.],
447 F.3d
[292,] 306
[(4th Cir.
2006)].
"Qualified immunity

protects government officials from civil damages in a
14 Defendants' summary judgment motion would be granted on this issue
to the extent that PLN did assert claims seeking money damages against
Defendants in their "official capacities."
33

Bland, 730 F.3d at 390-91.

§

1983

action

insofar

violate
clearly
constitutional rights
would have known."

F.3d 231, 250
marks omitted).

entitled
(1)

as

their

conduct

established
of which a

Edwards v.

does

not

statutory
or
reasonable person

City of Goldsboro,

178

(4th Cir. 1999)
(internal quotation
In determining whether a defendant is

to qualified

whether

the

immunity,

a

defendant

court
has

must

decide

violated

a

constitutional right of the plaintiff and (2) whether
that right was clearly established at the time of the
alleged misconduct.
See Walker v. Prince George's
Cnty. ,

575

F.3d

426,

429

(4th

Cir.

2009) .

However,

"judges
appeals

of the district courts and the courts of
[are]
permitted to exercise their sound
discretion in deciding which of the two prongs of the

qualified immunity analysis should be addressed first
in light of the circumstances in the particular case
at

hand."

Pearson

v.

Callahan,

555

U.S.

223,

236

(2009).

In analyzing whether the defendant has violated a
constitutional right of
the plaintiff,
the court
of
should identify the
right
"at a high level
particularity."
Edwards, 178 F.3d at 251.
For a

plaintiff to defeat a claim of qualified immunity, the
contours

of

the

constitutional

right

"must

be

sufficiently clear that a reasonable official would
understand that what he is doing violates that right."
Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal
quotation marks omitted).
Bland,

730 F.3d at 391.

In determining whether a defendant is

entitled to summary judgment on the basis of qualified immunity,
the Court must consider the facts

"'in the light most favorable

to the party asserting the injury.'"
Ct.

1861,

1865

201

Tolan v. Cotton,

134 S.

(2001)).

Because

(2014)

qualified

(quoting Saucier v.

immunity

is

an

Katz,

533 U.S.

affirmative

194,

defense,

"'[t]he burden of proof and persuasion with respect to a defense

34

of

qualified

defense.'"

immunity

Durham v.

rests
Jones,

on
737

the

official

F.3d 291,

(quoting Meyers v. Baltimore Cnty., Md.,
Cir. 2013)).

judgment,

Accordingly,

Defendants

constitutional

clearly established.'"
341 n.7

(4th Cir.

fails

(4th Cir.

2013)

713 F.3d 723, 731 (4th

that

either
the

that

right

there

was

violated

was

no
not

Id. (quoting Gregg v. Ham, 678 F.3d 333,

2012)).

discussed

to

"'show

or

1.

As

299

that

here, in order to prevail on summary

must

violation

asserting

in

"Order Forms"

detail

demonstrate

that

above,

a

this

Court

constitutional

finds

that

violation

PLN

occurred

through the VBSO's maintenance of an ordering form ban and/or
its application of such ban to PLN's publications.
as

no

constitutional

violation

occurred,

Accordingly,

Defendants

have

demonstrated that they are shielded by the doctrine of qualified
immunity as to this issue.
Alternatively,

even

Durham, 737 F.3d at 299.
if

this

Court

had

denied

summary

judgment on the merits of the "ordering form" dispute,

it would

have granted the Defendants qualified immunity on the basis that
the right at issue is not "clearly established."
agrees with Defendants
not

put

them

on

that

notice

the current state of

that

it

was

Id.

The Court

the law would

unconstitutional

ordering forms in an effort to reduce fraud.

to

ban

Although a lack of

"on point" case law does not automatically support a finding of
35

qualified immunity,

such lack of

"on point"

law, considered in

conjunction with cases approving catalog bans or other policies

implemented in an effort to prevent fraud on the public clearly

support a

finding

this issue.

See,

banning

inmate

fraud);

Klein

(D.

Nev.

that Defendants
e.g.,

Woods,

pen-pal
v.

Jan.

2010)

immune

from damages

652 F.3d at 749

solicitations

Skolnik,

22,

are

No.

in

3:08cvl77,

(upholding

an

on

(upholding policy

effort

2010

WL

to

reduce

745418,

*3-4

the constitutionality of a

prison's policy of removing magazine subscription renewal "order
form"

inserts to combat fraud);

Dixon v.

792, 795, 800-01 (S.D. W. Va. 2002)

Kirby,

210 F. Supp.

2d

(upholding as constitutional

a policy that banned all "mail order catalogs" but appeared to

permit magazines even if they included "advertisements").
2. "Sexually Explicit Materials"

A survey of case law clearly demonstrates the unremarkable

fact

that

prisons

"pornography"

and

jails

can

constitutionally

and "sexually explicit"

restrict

writings and photographs

in the name of promoting institutional order and security, which
are indisputably valid penological goals.
Sosa,

654 F.3d 1012,

federal

prison

1016-17

facilities

(10th Cir.

ban

See, e.g., Jordan v.
2011)

publications

(explaining that

that

include

"a

pictorial depiction of actual or simulated sexual acts including
sexual

intercourse,"

and those

that

"feature"

nudity,

which

is

defined by regulation as "a pictorial depiction where genitalia
36

or female breasts are exposed"); Bahrampour v. Lampert,

969,

976

(9th

Cir.

2004)

(upholding

regulation that prohibited inmates

as

356 F.3d

constitutional

a

from receiving publications

that contained images portraying actual or simulated sexual acts

or sexual contact,

but that permitted some nude images).

this

way

Court

in

explanation

no

of

the

questions

risks

the

Sheriff's

associated

with

explicit" materials into VBCC; however,
whether the VBSO's

conception of

Here,

"common

allowing

sense"

"sexually

questions remain as to

"sexually explicit"

materials

is constitutionally permissible.

Although this Court

takes the parties'

cross-motions

for

summary judgment on the VBSO's sexually explicit material policy
under advisement to permit additional briefing, even considering

all disputed facts and reasonable inferences in favor of PLN,
the Court finds that Defendants have demonstrated that they are

entitled to qualified immunity on this issue.

Notably, even if

this

a

Court

assumes

that

Defendants

committed

constitutional

violation through censoring monthly issues of Prison Legal News

based

on

the

materials"
. . .

application

policy,

[were

not]

the

of

"contours

the
of

'sufficiently clear

official would understand that what he

right.'"
U.S.

730,

Bland,
739

VBSO

"sexually

explicit

the constitutional
[such]
[was]

that

a

right

reasonable

doing violates that

730 F.3d at 391 (quoting Hope v. Pelzer,

(2002)) .
37

536

Although the VBSO

policy

appears

to restrict a

broader

range of materials than policies at issue in similar cases, such
fact does not

alone

unconstitutional,

support

a

finding

that

such policy

is

let alone support a finding that such policy

violates a "clearly established" constitutional right.

Notably,

issues of Prison Legal News that were barred from VBCC during
2012

and the

first

and

men

lingerie,

in

half

of

2013

skimpy

included photographs of

swimsuits,

or

other

women

revealing

clothing with the subjects posed in a manner overtly designed to
connote that, absent a strategically placed "censor star,"

the

subject was revealing his or her genitals and/or her breasts.
Even

if

this

penological

Court

assumes

justification

that

for

Defendants

lacked

censoring

such

a

valid

materials,

Defendants have carried their burden to prove the absence of law

that would have put Defendants on notice that their conduct was
unconstitutional.

Cir.

gives

2012)

(explaining

ample room

"protect[]

See Durham v. Horner,

that

the

for mistaken

690 F.3d 183,

"qualified

judgments"

immunity

and

public officials from bad guesses

190

(4th

standard

is designed

to

in gray areas")

(internal quotation marks and citations omitted).

Notably, not

only is there a lack of controlling precedent demonstrating that
censoring Prison Legal News based on
Constitution,

holding

that

but

there

arguably

is

at

least

similar
38

such images

violated the

some non-binding

acts

of

case

censorship

law

were

constitutional.

See

2013 WL 1007292,

at

constitutionality
Magazine and
men

in

Elfand v.

*4

of

a

(N.D. Cal.

jail's

GQ Magazine

"underwear,

County of

that

bikinis,

"see-through bra and

13,

No.

2013)

censorship

of

and

tight

and

C-ll-0863,

(upholding the

issues

displayed pictures

revealing breasts and buttocks"
in a

Mar.

Sonoma,

of

Maxim

of woman and

scant

clothing

to include an image of a woman

'thong'

underwear with her

buttocks

raised").

Because the state of

and

today,

does

not

the relevant

indicate

that

a

law,

jail

both in 2012,

is

2013,

prohibited

from

excluding all incoming publications containing revealing images
of

individuals

arouse
GRANTED

the
to

in

sexual

viewer,
the

poses

Defendants'

extent

that

overtly

intended

summary

Defendants

to

judgment

invoke

the

sexually

motion
doctrine

is
of

qualified immunity to shield them from money damages associated
with the exclusion of the April 2012 through June 2013 issues of

Prison Legal News.
No. H-ll-1131,

(concluding

See Woods v.

Director's Review Committee,

2012 WL 1098365, at *1,

that

the

immunity in a case

defendants

were

(S.D. Tex. Mar.

entitled

challenging a Texas prison's

to

30, 2012)

qualified

censorship of

nude photos that had been "blurred in such a way as to disguise
or cover up any exposed nudity," noting that there was "no clear
statement" in the law that would put an official on notice that
it was unlawful to ban such images).
39

Although

a

closer

question,

the

Court

also

finds

Defendants have satisfied their burden to demonstrate

that

that
they

are protected by qualified immunity as to PLN's challenge to the

issues

Prison

of

advertisements

April

with

2014).

Legal

News

"censor

that

star"

no

images

longer
(July

included

2013

After the removal of such images,

through

every monthly

issue of Prison Legal News issued between July 2013 and April of
2014

continued

clothing,

and

to

include

images

of

women

in

tight

including short skirts and short shorts,

clothing

Additionally,

that

at

least

appears

to

be

fitting

tight pants,

"lingerie."

some issues contained an image of a woman wearing

an erotic top that appears to expose her breasts;

however,

she

is holding up the book being promoted for sale in a manner that
obscures

the majority of her breasts.

Although most of these

images are quite small, it is apparent that at least some of the
images

are designed to either draw attention to the amount of

skin being displayed,
Additionally,
ads

promoting

or

to emphasize

the subject's

buttocks.

the fact that such images are often included
"(non-nude)

sexy

photos,"

to

include

in

"various

backshots & positions"

increases the sexual connotation of the

images.

therefore,

"sexually

These images,
suggestive,"

establishing

clear

and

lines

there

between

could reasonably be viewed as
is

an

absence

sexually

of

oriented

case

law

materials

that can be constitutionally restricted from a jail or prison
40

and those that cannot.

See Tolan,

134 S.

Ct.

at 1866

("'[T]he

salient question ... is whether the state of the law'
time of an incident provided
'that their alleged
Hope,

536 U.S.

at 739)

see also North v.

10

(E.D. Va.

[conduct]

'fair warning'

at the

to the defendants

was unconstitutional.'"

(quoting

(omission and alteration in original));

Clarke,

No.

Feb. 7, 2012)

3:llcv211,

2012 WL 405162,

at *9-

(concluding that the defendants were

entitled to qualified immunity in a case where the court granted
summary

judgment

in

favor

of

the

plaintiff

based

on

the

burden

to

unconstitutionality of the challenged prison regulation).
Defendants

have

therefore

carried

their

demonstrate that they lacked "fair warning" that their decision

to adopt and apply a broad policy aimed in part at sexually
"suggestive" materials was unconstitutional.
at 1866; see Hunter v. Bryant, 502 U.S. 224,
that

"[t]he qualified

mistaken

judgments'

immunity standard

229 (1991)

'gives ample

room

for

(quoting

131

S.

Ct.

2074,

335,
2083

341,

343

(2011)

but

(noting

incompetent or those who knowingly violate the law'"
475 U.S.

'all

Ct.

plainly

al-Kidd,

protecting

134 S.

the

Malley v. Briggs,

by

Tolan,

(1986))); Ashcroft v.
(explaining

that

"[a]

Government official's conduct violates clearly established law"

when existing precedent "placed the statutory or constitutional

question beyond debate").
is GRANTED

to the extent

Defendants'
that Defendants

41

summary judgment motion
invoke the doctrine of

qualified immunity to shield them from money damages associated
with the exclusion of the April 2012 through June 2013 issues of

Prison Legal News based on the pictures contained therein.
3.

As

previously

Due

noted,

Process

Plaintiff

judgment on its due process claim.

does

not

seek

summary

Defendants seek summary

judgment on such constitutional claim on the merits, but did not
advance an argument contending that Defendants are shielded from

damages based on qualified immunity,

apparently on the belief

that PLN was not pursuing money damages on such claim.
48,

at 24.

ECF No.

PLN thereafter indicated in its filings that while

it was not pursing compensatory damages on this claim,
pursuing nominal damages and/or punitive damages.
at 18.

it is

ECF No.

52,

Defendants' subsequent responsive brief does not address

such statement in the context of qualified immunity, but instead
continues

to challenge

the merits

of

Plaintiff's

due

process

claim.

Based on the foregoing,

it does not appear that Defendants

move for summary judgment on the basis of qualified immunity as
to Plaintiff's due process

claim,

necessary

Alternatively,

Defendants'

at this
filings

time.
can

immunity on this issue,
carry their burden,

be

and no ruling is therefore

interpreted

to the
to

extent

seek

that

qualified

the Court finds that Defendants fail to

and summary judgment is therefore DENIED as
42

to

such

clearly

matter.

Notably,

established

on

the

this

governing

issue,

law

Montcalm

appears

Publ'g,

to

80

be

F.3d

105,1S and the questions of fact will dictate whether the policy
previously in place at VBCC,

either with respect to the alleged

failure to provide notice in 2012 and 2013, or alleged failure
to conduct a meaningful review of censorship decisions

in late

2013, violated such clearly established law.
V. Respondeat Superior

The Sheriff briefly argues in his summary judgment filings
that he

is shielded from

liability to the

extent

that

he

is

being sued for damages in his individual capacity only on the
See Harris v.

theory of respondeat superior.
Beach,

VA,

11

F.

App'x

212,

215

(4th

City of Virginia

Cir.

2001)

("[A]

plaintiff's § 1983 action against a particular defendant must be
dismissed if the plaintiff's reason for naming the defendant is
based

solely

upon

Vinnedge v. Gibbs,

the

theory

of

respondeat

superior"

550 F.2d 926, 928 (4th Cir. 1977)).

(citing
However,

15 Although the Fourth Circuit's opinion in Montcalm Publ'g declined to
expressly define the procedure necessary in order to ensure that a
sufficient degree of "process" is provided,
the Court made the
following clear statements:

(1) "We hold that publishers are entitled to notice and an
opportunity to be heard when their publications are
disapproved for receipt by inmate subscribers"; and
(2)

"An

inmate

who

cannot

even

see

the

publication

can

hardly mount an effective challenge to the decision to
withhold that publication, and while the inmate is free to
notify the publisher and ask for help in challenging the
prison
authorities'
decision,
the
publisher's
First
Amendment right must not depend on that."
Montcalm Publ'g,

80 F.3d at 106,

109.
43

for the reasons set forth in PLN's responsive brief,

ECF No.

52,

at 22, the Court finds that there is sufficient record evidence

indicating
events

due

that the Sheriff

such that

process

the

claim)

the

record

not

based

involved in relevant

claim against him

solely

on

the

(the

theory

of

Notably, when viewed in Plaintiff's favor,

reveals

participated

remaining damages

is

respondeat superior.

was directly

that

the

in the appeal

Sheriff,

process

at

and

least

for

acted as

a

time,

the

final

decision maker as to whether a publication would be barred from
VBCC.

ECF No.

36-3,

at 11-13.

Defendants'

motion for summary

judgment is therefore DENIED as to such claim.
VI.

The

Additional Settlement Discussions

Court's

award

of

partial

summary

judgment

on

the

"ordering form" ban and its finding in Defendants' favor as to

qualified

immunity

on

both

the

"sexually explicit materials"
this

case

in

favor

resolved in the

of

"ordering

ban resolve a

Defendants.

instant motion,

the current record suggests

its due process claim.16

form"

That

ban and

the

large portion of

said,

although

not

and not prejudged in any way,

that PLN has a strong position on

Jordan,

577 F. Supp.

2d at 1172-73.

16 PLN has not moved for summary judgment on its due process claim, but

because the parties'
time

request

to postpone trial has left sufficient

for additional motions practice,

if there is an alleged absence

of disputed material facts relevant to this issue, the Court would
entertain a request by PLN to file a second summary judgment motion on
its due process claim.

44

Moreover,

if not moot,

argument

on

its

Plaintiff has

facial

challenge

explicit materials"
bans "any writings

[or]

to

policy to the

offensive."17

ECF

No.

leaving
official
writing

does

it

open

is
or

not

to

tie

it

being

personally
picture."

such policy broadly

Arguably,

even

under

the

it is unconstitutional for a jail

on a

broad

undefined standard

to any penological

invoked

displeased
Cf^

"sexually

. . . which may be deemed

48-4.

to exclude publications based
text

Defendants'

extent

pictures

deferential Turner standard,

whose

a potentially meritorious

merely
with

Abbott,

because

the

490

concerns,

a

content

U.S.

at

thus

prison
of

404-05,

"any
419

(upholding the facial validity of the federal Bureau of Prisons'
restrictions

security,

against

good

publications

order,

or

deemed

discipline

"detrimental

of

the

to the

institution,"

expressly noting that such restrictions prohibit the rejection
of a publication "solely because its content ... is unpopular
or repugnant")

(emphasis added).

A similar argument can be made

to the extent that the VBSO policy broadly bans any "material
dealing

with

or

displaying

.

.

because on its face such policy:

been)

applied

. scantily

clothed persons,"

(1)

(and arguably has

to ban written text

17 From the current record,

can be

discussing or

in any way

it is unclear what the broad and undefined

term "offensive" means, although there is at least some record
evidence indicating that "offensive" means "sexually offensive."
ECF
No.

36-5,

at 3.
45

"dealing with,"

in less than graphic detail,

underwear or a bathing suit; and

been)

(2)

can be

a person wearing
(and arguably has

applied to ban any image of a person in a bathing suit

regardless

of

the

sexual

connotation

of

such

image

and

regardless of the image's likely impact on penological concerns.
Cf.

Couch v.

Jabe,

737 F.

Supp. 2d 561,

567-71

(W.D. Va. 2010)

(indicating that the "expansive reach" of a Virginia Department
of

Corrections

prohibition

on

all

explicit

descriptions

of

sexual acts, to include "[a]ny sexual acts in violation of state
or

federal

law"

reasonableness

is

overbroad even under the undemanding Turner

standard because

it

reaches

a

wealth of

material, including great literary works of art,

written

that could not

"have any effect on the security, discipline, and good order of

the prison"); Aiello v. Litscher, 104 F. Supp. 2d 1068, 1079-82
(W.D.

Wis.

motion,

2000)

(denying

recognizing

connection

between

the

defendants'

summary

judgment

that although there is surely a rational
a

prison

ban

on

explicit

advancing legitimate penological goals,

pornography

and

the defendants had not

demonstrated a valid rational connection between such goals and

the broadly sweeping regulation at issue,

specifically noting

that the record "reveals no debate among scholars or experts on
the

effect

literature,

on

rehabilitation

of

great

works

of

art

[such as nude images from the Sistine Chapel]

and common sense suggests none")

(emphasis added).
46

and

. . .

In light of

substantial
position
issues,

confer

the

portion

where

to

of

it

counsel

fact

this

could

for

that Defendants

prevail

both

discuss

case,

yet
on

parties

whether

a

have prevailed on a

Plaintiff
one

are

or

remains

more

INSTRUCTED

resumption

of

outstanding
to

the

this Court encourages

meet

and

previously

conducted settlement conference may prove fruitful.

civil disputes,

in a

As in all

the parties to seriously

consider the benefits of a negotiated settlement, noting that in

this case in particular the current record suggests a potential

benefit

to

resolution,

both
as

parties

the

in

record at

reaching

least

such

suggests

a

that

stipulated
both parties

may have an interest in the VBSO improving its sexually explicit
materials

policy

(as

it

twice revised

and

improved its due

process policy associated with rejected publications)
to more closely tie the
excluding

materials

text of the policy

that

might

affect

in order

to the goal of

internal

safety

and

associated penological concerns.
VII.

For the reasons

set

Conclusion

forth in detail above,

the Court TAKES

UNDER ADVISEMENT the parties' cross motions for summary judgment

as to the constitutionality of Defendants'

"sexually explicit

materials" policy in order to permit additional briefing on such

subject.
Defendants'

As

to

the

"ordering

cross motions
form

policy,"
47

for

summary

Defendants'

judgment on
motion

is

GRANTED

Court

and

Plaintiff's

GRANTS

Defendants'

extent Defendants

to both

ban.

the

All

motion

motion

invoke

ordering

other

is

the

form

DENIED.

for

doctrine

ban

arguments

Additionally,

summary
of

judgment

qualified

support

of

the

immunity as

and sexually explicit

in

to

the

materials

summary

judgment

contained in the cross motions are DENIED.

Counsel for both parties are INSTRUCTED to meet and confer
in person

within

Order

discuss

to

21 days

of

whether

the issuance of

the

resumption

fruitful.

The parties shall file with the Court,

separately,

a "status update"

schedule

indicating
should

be

their

set

by

this

the

previously

2015,

in

of

conference

7,

conducted

this Opinion and

case

settlement

would

jointly or

no later than Wednesday,
position

the

Court

on
for

whether

prove

a

January
briefing

supplemental

summary

judgment briefs or whether the parties would prefer to resume
settlement
ordered

to

discussions
submit

with

further

a

Magistrate

briefing

on

Judge
the

prior

issue

to

of

being

summary

judgment.

The Clerk is REQUESTED to send a copy of
Order to all counsel of

this Opinion and

record.

IT IS SO ORDERED.

/s/
Mark S. Davis

United States District Judge
United States District Judge
December

%
O

, 2014

48