MICHAEL J. SENG, Magistrate Judge.
Plaintiff is a state prisoner proceeding pro se and in forma pauperis in this civil rights action brought pursuant to 42 U.S.C. § 1983. (ECF No. 1 & 9.) The matter proceeds against Defendants Nash and Brambaugh on Plaintiff's First Amendment right to receive mail claim. (ECF No. 15.)
On September 25, 2014, Defendants filed a motion for summary judgment. (ECF No. 26.) Plaintiff filed an opposition. (ECF No. 32.) Defendants filed no reply.
The matter is deemed submitted pursuant to Local Rule 230(l).
Any party may move for summary judgment, and the Court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a);
Plaintiff bears the burden of proof at trial, and to prevail on summary judgment, he must affirmatively demonstrate that no reasonable trier of fact could find other than for him.
In judging the evidence at the summary judgment stage, the Court may not make credibility determinations or weigh conflicting evidence,
Based on the submissions of the parties, the Court finds the following facts to be undisputed.
Plaintiff was incarcerated at Pleasant Valley State Prison ("PVSP") at all times relevant to his complaint. Defendant Nash was employed as a Correctional Captain at PVSP. Defendant Brumbaugh was employed as a Correctional Officer at PVSP.
In August 2008, mail room staff removed alleged contraband from Plaintiff's mail. The removed items consisted of three photographs with "blackened/altered" images. There appears to be no dispute that the photographs initially contained frontal nudity but had been altered or editing by placing black marker ink over the genitalia area. Plaintiff received the envelope and letter that accompanied the photographs.
On August 20, 2008, Correctional Officer Good completed a PVSP Mailroom Contraband Form regarding the photographs. The form required that Plaintiff sign the form and indicate whether he wanted the items donated, disposed of, destroyed, or returned to sender at Plaintiff's expense. Rather than completing and signing the form, Plaintiff wrote, "I have the right to appeal!" Plaintiff appealed and his appeal was denied at the first and second levels of review.
On March 12, 2009, mail room staff completed a CDCR Form 1819, "Notification of Disapproval — Mail/Packages/Publications," stating that Plaintiff's incoming April 2009 issue of XXL magazine was being held pending investigation because various pages contained "photographs of gang related hand gestures." Defendant Nash eventually disapproved the magazine on this ground. The notification was forwarded to Plaintiff on March 25, 2009. Plaintiff appealed. Plaintiff's appeal was denied at the informal, first, and second levels of review.
On May 20, 2009, Plaintiff was sent six compact discs in his quarterly package. Five of the six CDs were confiscated because the invoice indicated they contained explicit lyrics. It appears the CDs were confiscated by Defendant Brumbaugh. Plaintiff appealed. Defendant Brumbaugh denied his appeal at the informal level. Plaintiff's appeals to the first and second levels also were denied.
Prisoners have "a First Amendment right to send and receive mail."
A prison may adopt regulations or practices for incoming mail which impinge on a prisoner's First Amendment rights as long as the regulations are "reasonably related to legitimate penological interests."
Defendants argue that the mail items denied to Plaintiff constituted contraband. They included photographs that had been altered, a magazine depicting gang gestures, and compact discs containing explicit lyrics. Plaintiff was given the required notification each time items were rejected. In each instance, Plaintiff filed a grievance regarding the rejection of his mail, and the appeal reviewers concluded the items properly were rejected. Defendants are entitled to summary judgment because the mail policy did not violate Plaintiff's First Amendment rights and, even if it did, Defendants would be entitled to qualified immunity.
Plaintiff primarily argues that the confiscated items did not constitute contraband under the applicable regulations, and that any other rules or policies allowing for the confiscation of such items are unauthorized or ultra vires. He contends he did not receive proper notice regarding the confiscation of his photographs and CDs because the correct form was not used.
Defendants present the following exhibits in support of their motion for summary judgment
"A trial court can only consider admissible evidence in ruling on a motion for summary judgment."
Other than as regards the excerpts from Plaintiff's central file, Defendants have not properly authenticated their exhibits. There is no declaration of counsel or other affidavit from a person with knowledge addressing the exhibits' authenticity. Accordingly, the Court may not consider these exhibits in reviewing Defendants' motion for summary judgment. Even if these exhibits had been considered, the motion would still lack appropriate evidentiary support (as discussed in some detail below).
Nonetheless, the factual representations presented in Defendants' argument suggest Defendants might be able to address, and correct, these defects with minimal effort, and they most certainly would be expected to try to do so at trial. It would not benefit Plaintiff, Defendants or the Court to have the case proceed to trial only to have these same evidentiary matters addressed there rather than on summary judgment. The Court and the parties would expend, unnecessarily, a considerable amount of time, trouble and expense getting to an issue that could more easily be determined here and now: Does the evidence actually reflect what Defendants say it does? If so, judgment for Defendant's may be appropriate, and it would be pointless to drag such a case out to and through trial. If it does not, the parties should know that so each can make an intelligent decision as to how to proceed. Accordingly, the Court will recommend that Defendants' motion be denied
Plaintiff was disallowed three photographs on the ground they had been altered with marker that could be removed to expose the genitals of the person depicted.
The California Code of Regulations prohibits inmates from possessing contraband. Cal. Code. Regs. tit. 15, § 3006. Contraband includes "obscene material" and "sexually explicit images that depict frontal nudity in the form of personal photographs, drawings, magazines, or other pictoral format." Cal. Code. Regs. tit. 15, § 3006(c)(15), (17). Sexually explicit material includes "material that shows the frontal nudity of either gender, including . . . the genitalia of either gender." Cal. Code. Regs. tit. 15, § 3006(c)(17)(A). Nonetheless, sexually explicit material that has educational, medical/scientific, or artistic value may be approved on a case-by-case basis. Cal. Code. Regs. tit. 15, § 3006(c)(17)(B). Additionally, the regulations prohibit inmates from possessing materials that have been "altered from their original manufactured state or purpose with their potential to be made, or in the process of being made, into a weapon; explosive or explosive-making materials; poison, caustic substance; or any destructive device." Cal. Code Regs. tit. 15, § 3315(a)(2)(V). Assuming the PVSP Operations Procedures submitted by Defendants are authentic, those Procedures prohibit inmates from possessing any "altered" items. (ECF No. 26-2 at 63.)
Plaintiff argues that the photographs were not contraband under the applicable regulations because they were "edited," rather than "altered." According to Plaintiff, the PVSP mail procedures allow inmates to possess "edited" magazines and pictures. In support, Plaintiff submits pages from a magazine wherein images of frontal nudity were apparently censored by the publisher by placing an icon over the nude area in question. In contrast, Defendants argue that inmates are prohibited from possessing "altered" magazines and that Plaintiff's photographs were "altered."
Presumably, the magazines presented by Plaintiff are allowable because they do not, in fact, display frontal nudity. By editing the magazine to cover up images of such nudity, the publisher has essentially removed the possibility of sexually explicit material entering the institution. In this sense, a magazine that has been "edited" by the publisher to cover frontal nudity prior to publication differs from photographs containing marker that can be removed.
Here, it is undisputed that the photographs at issue contained images of frontal nudity. Such images are prohibited by the regulations. Cal. Code. Regs. tit. 15, § 3006(c)(17)(A). Although the nudity was covered by marker, Defendants claim that the marker easily could be removed, resulting in sexually explicit images within the institution. If Defendants' claims are true, the photographs would fall under the regulation prohibiting sexually explicit materials and the Operations Procedure prohibiting altered items. Such prohibitions likely satisfy the four-part
However, Defendants have provided no evidence, much less competent persuasive evidence, to support their claim that the marker could be removed.
Plaintiff was disallowed his April 2009 issue of XXL magazine on the ground it allegedly contained "photographs of gang related hand gestures." Plaintiff argues that XXL magazine is a "hip hop cultural magazine that does not promote gangs or violence of any kind." He further argues that no determination was made that the magazine was contraband.
The California Code of Regulations prohibits inmates from receiving "[a]ny mail of a character tending to incite murder, arson, a riot, or any form of violence or physical harm to any person, or any ethnic, gender, racial, religious, or other group." Cal. Code Regs. tit. 15, § 3135(c)(1). Inmates also are prohibited from receiving "[m]aterial that is reasonably deemed to be a threat to legitimate penological interests." Cal. Code Regs. tit. 15, § 3006(c)(16). Assuming the PVSP Operations Procedures submitted by Defendants are authentic, those Procedures prohibit inmates from receiving "[p]hotos depicting gangs (or gang related hand gestures)." (ECF No. 26-2 at 63.)
Here, Defendants submit records indicating that Plaintiff's April issue of XXL magazine initially was held pending investigation, and eventually disallowed, pursuant to the Operating Procedures' prohibition against photos depicting gangs or gang related hand gestures. (ECF No. 26-2 at 19.) Mail room staff noted that "several pages" of the magazine contained photographs of gang related hand gestures. This determination was affirmed in Plaintiff's administrative appeal. (ECF No. 26-2 at 24.)
However, Defendants have not submitted any admissible evidence, or any declarations by experts or institutional staff, tending to prove that the magazine did, in fact, contain gang related hand gestures. Plaintiff disputes that the magazine contained gang related hand gestures. He apparently has been prohibited from obtaining any evidence (such as a copy of the magazine) that would refute Defendants' contentions. The magazine itself is not before the Court.
A prison's determination to disallow photographs of gang related hand gestures would be entitled to substantial deference.
Accordingly, Defendant Nash has failed to show the absence of a genuine issue of material fact regarding whether the magazine was contraband. He is not entitled to summary judgment on this claim.
Plaintiff was denied five compact discs because the invoice indicated they contained explicit lyrics. Defendants contend that the CDs themselves bore the Record Industry Association of America's parental advisory label ("PAL"). They submit no evidence to support this contention. Defendants do submit evidence indicating that a PAL notice is applied to materials containing strong language, or depictions of violence, sex, or substance abuse. However, as with Defendants' other evidence, the exhibits are not properly authenticated and cannot be considered.
Assuming the materials regarding the PAL criteria are authentic, several regulations arguably prohibit inmates from possessing such materials. Inmates are prohibited from receiving "[a]ny mail of a character tending to incite murder, arson, a riot, or any form of violence or physical harm to any person, or any ethnic, gender, racial, religious, or other group," Cal. Code Regs. tit. 15, § 3135(c)(1), "sexually explicit" and "obscene" material, Cal. Code Regs. tit. 15, § 3006(c)(15), (17), and "[m]aterial that is reasonably deemed to be a threat to legitimate penological interests," Cal. Code Regs. tit. 15, § 3006(c)(16). Additionally, Defendants submit an unauthenticated September 18, 2007 memorandum from the PVSP Warden, prohibiting CDs containing "explicit lyrics that promote or depict gang activity, unlawful activities, or any matter of a character tending to incite murder; arson; riot; or any form of violence or physical harm to any person, or any ethnic, gender, racial, religious, or other groups." It is noteworthy that there is no policy or regulation prohibiting materials containing "strong language."
Plaintiff essentially argues that his particular CDs do not fall under any of the applicable prohibitions because they contained only strong language, rather than language depicting sex, violence, drug use, gang activity, or other unlawful conduct. Defendants argue that the labeling of the CDs as "explicit" stands in for a more individualized determination that each CD contains language depicting sex, violence, drug use, gang activity, or other unlawful conduct.
There is no real dispute that prohibitions against CDs containing language depicting sex, violence, drug use, gang activity, or other unlawful conduct are supported by legitimate penological interests. However, Defendants do not present any legitimate penological interests to support a ban on CDs containing "strong language." Nor do they submit any admissible evidence to indicate that CDs labeled as "explicit" may contain depictions of violence, sex, or substance abuse. Finally, they submit no evidence indicating that Plaintiff's CDs bore the PAL label.
Based on this lack of evidentiary support, Defendants' motion as to this claim must be denied.
Plaintiff argues that he did not receive proper notice that his mail was being withheld.
The failure of prison officials to give notice that mail is being withheld may constitute a Fourteenth Amendment due process violation.
Even if such a claim were before the Court, the evidence presented establishes that Plaintiff received notice that his mail was withheld on all three occasions and, on the basis of that notice, Plaintiff appealed. Plaintiff's arguments raise, at most, a claim that notice was not provided in accordance with the applicable regulations and policies. Such an allegation does not, in itself, rise to the level of a constitutional violation. Whether notice was presented on a specific CDCR form is not dispositive of a due process claim.
Based on the foregoing, the Court HEREBY RECOMMENDS that Defendants' motion for summary judgment (ECF No. 26) be DENIED WITHOUT PREJUDICE to Defendants' submitting a properly supported motion for summary judgment within thirty days of the date of the order adopting these findings and recommendations.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within fourteen (14) days after being served with these findings and recommendations, any party may file written objections with the Court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any reply to the objections shall be served and filed within fourteen (14) days after service of the objections. The parties are advised that failure to file objections within the specified time may result in the waiver of rights on appeal.
