MICHAEL J. NEWMAN, Magistrate Judge.
This is a 42 U.S.C. § 1983 action filed by pro se Plaintiff on November 19, 2015.
This case was before of the Western Division of this Court when Defendants filed a motion for Judgment on the Pleadings on January 1, 2016. Doc. 12 at PageID 143-57. The Magistrate Judge then assigned to this case granted Defendants' motion in a Report and Recommendation, which was adopted by the District Court Judge over Plaintiff's objections. Doc. 23, Doc. 31. Plaintiff appealed, and the Sixth Circuit reversed the District Court's decision in part, finding Plaintiff sufficiently alleged a First Amendment free speech and a Fourteenth Amendment due process claim. Bethel v. Jenkins, No. 16-4185, 2017 U.S. App. Lexis 22061, at *10-11 (6th Cir. Sept. 22, 2017). This case was then transferred to the undersigned. Doc 74. These two claims are the only claims at issue in this suit.
Now before the Court are the parties' cross-motions for summary judgment and subsequent opposition and reply memoranda. Docs. 67-69, 71-73. The undersigned has carefully considered all of the foregoing, as well as the appropriate Rule 56 evidence submitted in support thereof, and the parties' cross-motions for summary judgment are ripe for decision. Given his pro se status, all of Plaintiff's allegations, and his summary judgment pleadings, have been liberally construed in his favor. Estelle v. Gamble, 429 U.S. 97, 106 (1976).
A motion for summary judgment should be granted if the evidence submitted to the Court demonstrates there is no genuine issue as to any material fact and that the movant is entitled to summary judgment as a matter of law. Fed. R. Civ. P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "Summary judgment is only appropriate `if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Keweenaw Bay Indian Comm. v. Rising, 477 F.3d 881, 886 (6th Cir. 2007) (quoting Fed. R. Civ. P. 56(c)). "Weighing of the evidence or making credibility determinations are prohibited at summary judgment — rather, all facts must be viewed in the light most favorable to the non-moving party." Id.
Once "a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading[.]" Viergutz v. Lucent Techs., Inc., 375 F. App'x 482, 485 (6th Cir. 2010) (citation omitted). Instead, the party opposing summary judgment has a shifting burden and "must — by affidavits or as otherwise provided in this rule — set out specific facts showing a genuine issue for trial." Id. (citation omitted). Failure "to properly address another party's assertion of fact as required by Rule 56(c)" could result in the Court "consider[ing] the fact undisputed for purposes of the motion." Fed. R. Civ. P. 56(e)(2).
The standard does not change because both parties have filed cross summary judgment motions. "Rather, the court must evaluate each party's motion on its own merits, taking care in each instance to draw all reasonable inferences against the party whose motion is under consideration." Taft Broad. Co. v. United States, 929 F.2d 240, 248 (6th Cir. 1991) (quoting Mingus Constructors, Inc. v. United States, 812 F.2d 1387, 1391 (Fed. Cir. 1987)). Thus, "[e]ach party . . . bears the burden of establishing that no genuine issue of material fact exists and that she or [he] is entitled to a judgment as a matter of law." Klaus v. Hilb, Rogal & Hamilton Co. of Ohio, 437 F.Supp.2d 706, 732 (S.D. Ohio 2006).
Finally, "there is no duty imposed upon the trial court to `search the entire record to establish that it is bereft of a genuine issue of material fact.'" Buarino v. Brookfield Twp. Trs., 980 F.2d 399, 404 (6th Cir. 1992) (citations omitted). Instead, "[i]t is the attorneys, not the judges, who have interviewed the witnesses and handled the physical exhibits; it is the attorneys, not the judges, who have been present at the depositions; and it is the attorneys, not the judges, who have a professional and financial stake in case outcome." Id. at 406. In other words, "the free-ranging search for supporting facts is a task for which attorneys in the case are equipped and for which courts generally are not." Id.
Plaintiff, in his motions and replies, presents a statement of facts supported by, inter alia, his own affidavit and those of other CCI inmates, depositions of prison officials, and evidence of the communications between himself and various CCI mailroom employees. Defendants' statement of facts is supported by, inter alia, the affidavits of Warden Jenkins, Warden Shoop and the CCI librarian, as well as sworn interrogatory responses from Lt. Eiring. The Court has carefully considered all of the evidence submitted by the parties on summary judgment, see Fed. R. Civ. P. 56(c)(1)(A), and, unless otherwise stated herein, the following are the undisputed facts of the case.
The policy at issue is Ohio Department of Rehabilitation and Corrections "ODRC" 61-PRP-01 ("the policy"), which prohibited prisoners on death row from receiving personal property packages if they were not ordered from "approved vendors" and "initiated by the inmate." Doc. 67 at PageID 1081. The practical effect of this policy was a ban on "gift publications," i.e., publications ordered by friends or family members through a vendor or publisher and sent to CCI prisoners on death row. Id. at PageID 1083. The policy was implemented on February 5, 2015 by Warden Jenkins and Lt. Eiring. Id. at PageID 1081.
Per the policy, Defendants withheld four gift publications from Plaintiff between March and June 2015. Id. at PageID 1087-90. With respect to each of the four withheld books, the mailroom employees at CCI sent Plaintiff a notice explaining that it was withheld because the "book [was] not ordered by [Plaintiff]." Id. The notice provided Plaintiff the option to either mail the books out at his own expense or have the books destroyed. Id.
Plaintiff, discontent with either these options, sought to appeal the withholding decision to the "publication review committee." Doc. 67 at PageID 1091. Lt. Eiring informed Plaintiff that such appeals were available only when books were withheld due to the subject matter of the publication, not when books were withheld under the policy as gifts. Id. Similar written conversations ensued for all four books withheld by Defendants. See, e.g., id. at PageID 1024-25. In response to one of Plaintiff's requests for an appeal, he was instructed by a mailroom employee to "contact the [c]haplain." Id. at PageID 1099. Plaintiff eventually learned that, for a time, CCI excepted religious material from the policy and allowed the CCI chaplain to inspect gift publications that were religious in nature before forwarding them to the inmate. Id. at PageID 1257.
Plaintiff then filed a grievance and various follow-up Informal Complaint Resolution documents with Lt. Eiring. Id. at PageID 1100-01. Ultimately dissatisfied with repeated responses that his books were withheld under the policy because they were not ordered from his account, Plaintiff submitted subsequent grievances seeking to change the policy itself. Id. at PageID 1027. When these efforts proved futile, Plaintiff filed this § 1983 action. Id. His efforts to access publications at the prison, however, continued. He submitted requests for books, magazines, and publications to the CCI librarian totaling nearly 220 titles,
The policy was rescinded on March 1, 2017 by Warden Jenkins and replaced with a policy allowing gift orders, but still requiring all publications to be sent from vendors or publishers only (i.e., a "publisher only" policy). Doc. 67-1 at PageID 1083. In the month after the policy was rescinded, CCI officials found two cell phones smuggled inside publications ordered by a third party but purportedly sent directly from a publisher, i.e, a gift publication. Doc 68-4 at PageID 1394. CCI ultimately determined that it was necessary to purchase a $20,957.00 x-ray machine to reduce the resources expended on the physical inspection of incoming packages. Id.
Section 1983 confers a private federal right of action against any person who, acting under color of state law, deprives an individual of a right, privilege, or immunity secured by the Constitution or federal laws. Burnett v. Grattan, 468 U.S. 42, 44 n.3 (1984). Thus, to state a § 1983 claim, a plaintiff must allege "(1) a deprivation of rights secured by the Constitution and laws of the United States and (2) that the deprivation was caused by a person acting under color of state law." Tahfs v. Proctor, 316 F.3d 584, 590 (6th Cir. 2003).
By alleging "that [an] official policy is responsible for a deprivation of [his] rights," Plaintiff essentially asserts a Monell claim under § 1983. Monell v. Dep't of Soc. Servs., 436 U.S. 658, 690 (1978). To prevail on a Monell claim, Plaintiff must show (1) that he suffered a constitutional violation and (2) that an institutional policy or custom directly caused the violation. Id. at 690-92. In this instance, Plaintiff claims that the publication seizure in question — undertaken pursuant to the policy, as to the four seized books in question and the 220 or so requested books, magazines, and newspapers at issue — violated his rights under the First Amendment (as an impermissible restriction upon his free speech rights) and the Fourteenth Amendment (as a due process violation).
Plaintiff first asserts that CCI's policy prohibiting gift publications violated his First Amendment right to receive "information and ideas." Doc. 67 at PageID 1054-68; Martin v. City of Struthers, 319 U.S. 141, 143 (1943) ("Freedom to distribute information to every citizen wherever he desires to receive it is so clearly vital to the preservation of a free society"); Stanley v. Georgia, 394 U.S. 557, 564 (1969) ("It is now well established that the Constitution protects the right to receive information and ideas"). While prisoners retain First Amendment rights while incarcerated, they possess only "those First Amendment rights . . . `not inconsistent with [their] status as . . . prisoner[s] or with the legitimate penological objectives of the corrections system.'" Hudson v. Palmer, 468 U.S. 517, 523 (1984) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)).
"When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). In Turner, the Supreme Court identified four factors relevant to determining the reasonableness of a challenged prison regulation:
Id. at 89-92. The Turner factors balance the two competing interests at stake in these cases. On one hand, "federal courts must take cognizance of the valid constitutional claims of prison inmates." Id. at 84. Yet, courts must also recognize that they are "ill equipped to deal with the increasingly urgent problems of prison administration and reform." Id. (internal citations omitted). The four Turner factors need not be weighed evenly but are, instead, guidelines for the court to assess whether the prison officials' actions are reasonably related to a valid penological interest. See Whitney v. Brown, 882 F.2d 1068, 1076 (6th Cir. 1989).
Turner first instructs courts to apply a reasonableness standard in determining whether there is a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Turner, 482 U.S. at 89. The objective advanced by the government must be both neutral and legitimate, and the policy must not be so attenuated from the objective so as to render it "arbitrary or irrational." Id. The prisoner bears the burden of disproving the validity of the prison regulation. See Overton v. Bazzetta, 539 U.S. 126, 132 (2003). If the prisoner prevails on this first factor, the policy is unconstitutional and the court need not consider the remaining three Turner factors. Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999).
Prison policies regulating prisoner access to printed materials frequently come under scrutiny. "Publisher only" policies — i.e., policies requiring all publications received by a prisoner to be sent from an approved publisher or vendor — are routinely upheld as constitutional. See e.g., Bell v. Wolfish, 441 U.S. 520 (1969) (holding a "publishers only rule" rule for receiving hard cover books consistent with the First Amendment); Ward v. Washtenaw County Sheriff's Dep't., 881 F.2d 325, 330 (6th Cir. 1989) (extending the "publishers only rule" to soft cover books under Turner); Thompson v. Campbell, 81 F. App'x 563 (6th Cir. 2003) (upholding a policy that "prohibits inmates from receiving books, magazines, and newspapers from sources other than their publisher," consistent with Ward and Bell). Publisher only policies are upheld as "necessary to control the security problems caused when contraband such as drugs and weapons are smuggled in various books, magazines, and newspapers to inmates from unidentified sources or visitors." Ward, 881 F.2d at 329.
Courts, however, have invalidated prison policies that are more restrictive than the publisher only policy. See e.g., Ashker v. Cal. Dep't of Corr., 350 F.3d 917, 922-24 (9th Cir. 2003) (finding unconstitutional a policy imposing labeling requirements on books in addition to a publisher only rule). Such is true especially where the justification for the policy is unsupported by specific facts in the record. See Crofton v. Roe, 170 F.3d 957, 960-61 (9th Cir. 1999) (finding a policy prohibiting giftpublications unconstitutional because the state "offered no justification for a blanket ban on the receipt of all gift publications, nor has it described any particular risk created by prisoners receiving such publications"); Lindell v. O'Donnell, 211 F. App'x 472, 476 (7th Cir. 2006) (recognizing that an allout ban on receiving printed internet materials, including from friends and family members, would be unconstitutional, but finding defendants entitled to qualified immunity).
Here, Defendants assert that the policy was implemented to eliminate security threats posed by contraband clandestinely transferred into the prison through gift publications. Doc. 68 at PageID 1292-93. In support of this justification, Warden Shoop explains that:
Doc 68 at PageID 1287.
The undersigned initially finds that the policy is neutral and the justification is legitimate both facially and as applied to Plaintiff. The policy concerns the manner in which publications can be ordered, not to the content of the materials. See Turner, 482 U.S at 90 (finding it "important to inquire whether prison regulations restricting inmates First Amendment rights operate in a neutral fashion without regard to the content of the expression"). Moreover, the policy itself explicitly stated that its central goal was to eliminate the security threat posed by contraband entering the prison through gift publications. Doc. 69 at PageID 1408; Thornburgh, 490 U.S. at 413 (finding the protection of prison security is "central to all other corrections goals" and recognizing that "[i]ncoming mail poses a particularly high threat to prison safety and security").
Plaintiff, however, presents arguments challenging whether the policy is "reasonably related to legitimate penological interests, and [is] not an exaggerated response to such objectives." Beard v. Banks, 548 U.S. 521, 528 (2006) (plurality op. of Breyer, J.). Specifically, Plaintiff argues that the reasonable relationship standard cannot be satisfied here because, in practice, CCI does not actually check tracking numbers to verify that books are truly shipped from a publisher or a distributor. Doc. 71 at PageID 1458-60. In support of this argument, Plaintiff points to a written message sent from a mailroom employee at CCI to an inmate, stating "there is no way for us to track anything."
Defendants, on the other hand, point to evidence that two pieces of contraband were found in the month CCI began inspecting gift publications after rescinding the policy in March 2017. Doc. 68-4 at PageID 1394. This undisputed evidence is sufficient to demonstrate a reasonable relationship between the policy and the proffered security interest. Accord Thornburgh, 490 U.S. at 417 (clarifying that Defendants need not prove that the prohibited materials caused or are even "likely" to cause security breaches, but only that a rational prison official believes the policy could advance a legitimate penological interest). It also distinguishes this case from those where prison officials failed to develop a record supporting the connection between the policy and the security interest. C.f. Crofton v. Roe, 170 F.3d 957, 960 (9th Cir.), as amended (May 5, 1999) ("Here, although the state has had ample opportunity to develop a record, it has offered no justification for a blanket ban on the receipt of all gift publications, nor has it described any particular risk created by prisoners receiving such publications"). Accordingly, based on this undisputed evidence, the undersigned cannot conclude the policy banning gift publications was an exaggerated response to the actualized threat that third-parties may seek to smuggle contraband in publications sent to inmates from publishers. Thornburgh, 490 U.S. at 407-08. Thus, even accepting Plaintiff's factual assertions as true, the first Turner factor favors Defendants.
The second, third, and fourth Turner factors are balanced together. Flagner v. Wilkinson, 241 F.3d 475, 484 (6th Cir. 2001). The second Turner factor asks whether "alternative means of exercising the right . . . remain open to the prison inmate." 482 U.S. at 90. The "right" must be viewed both "sensibly and expansively." Thornburgh, 490 U.S. at 417. Although Plaintiff demands unfettered access to any book he desires, to satisfy this element, the policy need only provide the right to "receive and read a broad range of publications." Thornburgh, 490 U.S. at 418.
Here, sufficient alternate means exist. Plaintiff admits that, prior to the "commencement of this action[,] . . . [he] could have used his state pay to purchase publications" to the extent he now desires.
The third Turner factor requires analysis of the impact caused to others, including prison officials, employees, and other inmates, should they permit receipt of gift publications. 482 U.S. at 90; Thornburgh, 490 U.S. at 418. The undisputed evidence shows that allowing gift publications creates a "tremendous influx of incoming mail needing to be carefully examined for contraband." Doc. 68 at PageID 1394. Defendants diverted prison resources towards the effort of sorting gift orders, causing delays in the processing of regular mail and requiring prison officials to forego the purchase of other needed prison resources. Id. Further, the absence of the policy resulted in actual instances of secreted contraband. Id. Again, even resolving all contested facts most favorably to Plaintiff, the facts demonstrate that accommodating Plaintiff's claimed right, by allowing the receipt of gift publications, required the allocation of significant resources — certainly more than a de minimis cost. Doc. 67 at PageID 1066; Turner, 482 U.S. at 90 ("When accommodation of an asserted right will have a significant ripple effect on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials").
Finally, if an inmate can identify an alternative that fully accommodates his or her rights at a de minimis cost to valid penological interests, courts may consider that alternative as evidence that the policy does not satisfy the reasonable relationship standard. Turner, 482 U.S. at 90-91. As an alternative to the policy, Plaintiff suggests publishers send CCI confirmation emails that include tracking information after a gift publication is ordered.
Finding the balance of the Turner factors favorable to Defendants, summary judgment should be granted to Defendants as to Plaintiff's First Amendment claim.
Plaintiff also alleges that Defendants' policy prohibiting gift publications violated his Fourteenth Amendment procedural due process rights.
In identifying whether a protectable interest exists, the Supreme Court holds that property and liberty interests "are not created by the Constitution." Roth, 408 U.S. at 577. Rather, Plaintiff must identify an "independent source, such as state law," that secures certain benefits and that support claims of entitlement to those benefits. Id. (emphasis in original). Plaintiff maintains that Ohio Rev. Code § 1520.425 and Ohio Admin. Code § 1520-9-19 create a federally protected property interest in receiving any and all "non-threatening publications." Doc. 67 at PageID 1045.
To determine whether these provisions create a federally protected property or liberty interest, this Court follows the approach enunciated in Sandin v. Conner, 515 U.S. 472, 482 (1995). There, the Supreme Court instructed:
Id. at 483-84. (internal citations omitted).
Though prisoners do not shed all constitutional rights at the prison gate, Wolff, 418 U.S. at 555, "lawful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system." Price v. Johnston, 334 U.S. 266, 285 (1948). Limiting the ways in which a prisoner may receive publications falls within this purview. See e.g., Bell, 441 U.S. at 545-46. As set forth supra, Plaintiff had alternative means of acquiring publications, had access to similar books, and could purchase books through his own prisoner account. Far from imposing an "a major disruption" in Plaintiff's life, the deprivation here is more appropriately characterized as an inconvenience. Sandin, 515 U.S. at 486. In fact, this standard was adopted for the explicit purpose of discouraging these types of prisoner lawsuits alleging violations based on "fine-tuning of the ordinary incident of prison life," which had become common under the standard Plaintiff relies on. Doc. 67 at PageID 1045; Id. at 483. The undersigned therefore finds that neither Ohio provision creates a federally protectable interest in receiving any and all publications that do not pose a threat to prison security.
However, even assuming, arguendo, that Plaintiff had a protectable property or liberty interest, his claim nevertheless fails because he received sufficient due process. "[I]f protected interests are implicated, we must then decide what procedures constitute due process of law." Ingraham v. Wright, 430 U.S. 651, 672 (1977). Specifically, the Court must inquire whether the "withholding delivery of [inmate mail]" was "accompanied by minimum procedural safeguards." Procunier v. Martinez, 416 U.S. 396, 417-18 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 413-14 (1989). Here, Plaintiff had adequate post-deprivation remedies in that he: (1) received written notice explaining why his publications were withheld; (2) was able to seek relief through the prison grievance procedure; and (3) had the option to either have the book destroyed or sent back to the third party who gifted it. See supra; see also Johnson v. Hunter, No. 92-1373, 1992 U.S. App. Lexis 34743, at *2-4 (6th Cir. Dec. 21, 1992) (dismissing due process claim alleging "certain infirmities in the grievance hearing process, in regard to the rejection of the books"); Frost v. Symington, 197 F.3d 348, 353 (9th Cir. 1999) (finding an inmate "has a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail is being withheld by prison authorities"); Rector v. Caruso, No. 1:10-cv-904, 2011 U.S. Dist. Lexis 11193, at *18-21 (W.D. Mich. Jan. 3, 2011) (finding due process satisfied where Plaintiff did not receive a post-deprivation hearing but was able to seek relief through the threestep grievance procedure and had the option to preserve the book by sending it out of the prison). Therefore, Defendants are also entitled to summary judgment on Plaintiff's Fourteenth Amendment due process claim.
Notwithstanding the analysis above, Defendants are also entitled to qualified immunity in their individual capacities. State officials who perform discretionary functions have qualified immunity from individual liability for damages arising from the exercise of those functions. Black v. Parke, 4 F.3d 442, 445-46 (6th Cir. 1993). "Qualified immunity shields individual government officials from liability `insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.'" Hensley v. Gassman, 693 F.3d 681, 687 (6th Cir. 2012) (citing Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)).
Where a defendant moves for summary judgment based on qualified immunity grounds, the initial burden is on the defendant to come forward with sufficient facts to suggest that they acted within the scope of their discretionary authority.
As found by the undersigned above, Plaintiff fails to demonstrate that his First or Fourteenth Amendment rights were violated. This ends the court's qualified immunity analysis. Instead, in this regard, Plaintiff suggests that, because Defendants violated various Ohio statutory or administrative code provisions, they are not entitled to claim qualified immunity. Doc. 67 at PageID 1069. However, state statutes and regulations do not create federal constitutional rights. Danese v. Asman, 875 F.2d 1239, 1245 at n.5 (6th Cir. 1989) (citing Davis v. Scherer, 468 U.S. 183, 194 (1984)) (reversing district court's holding that the underlying state law violation of a procedural due process claim caused defendants to lose their qualified immunity). Thus, even assuming that the policy violated Ohio law, such a violation would not cause the offending officials to lose qualified immunity under federal law. Id.
Nor did Plaintiff satisfy his burden of showing a clearly established right at the second step. Neither the Supreme Court nor the Sixth Circuit has ruled specifically on a gift publication ban, but both higher courts have consistently upheld publisher only policies. See e.g. Bell, 441 U.S. at 520; Ward, 881 F.2d at 325; Thompson v. Campbell, 81 F.App'x. 563, 569 (6th Cir. 2003). But a clearly established law validating publisher only policies under the First Amendment does not, as Plaintiff suggests, put reasonable officials in Defendants' position on notice that a policy banning gift orders may violate the First or Fourteenth Amendment. Jihaad v. O'Brien, 645 F.2d 556, 562 (6th Cir. 1981) (emphasizing the difference between general constitutional rights and the "particular right which plaintiff sought to exercise"). Therefore, Defendants are entitled to qualified immunity in their individual capacities.
In light of the foregoing, pro se Plaintiff's two motions — to file an amended complaint (doc. 70) and supplement the summary judgment record (doc. 75) are both
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the proposed findings and recommendations within
Any objections filed shall specify the portions of the Report and Recommendation objected to and shall be accompanied by a memorandum of law in support of the objections. If the Report and Recommendation is based, in whole or in part, upon matters occurring of record at an oral hearing, the objecting party shall promptly arrange for the transcription of the record, or such portions of it as all parties may agree upon or the Magistrate Judge deems sufficient, unless the assigned District Judge otherwise directs.
A party may respond to another party's objections within
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See Thomas v. Arn, 474 U.S. 140, 153-55 (1985); United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981).
Cosco v. Uphoff, 195 F.3d 1221, 1223 (10th Cir. 1999) (internal citations omitted).
