Gray v. Cannon

• Decision Date: 16 July 2013
• Docket Number: Nos. 11 C 4870,11 C 8505.,11 C 8503,s. 11 C 4870
• Citation: 974 F.Supp.2d 1150
• Parties: Doiakah GRAY, Plaintiff, v. Chris CANNON, John Doe(s), Kevin Frain, Nancy Pounovich, and Marcus Hardy, Defendants. Jose Rodriguez, Plaintiff, v. Chris Cannon, Defendant. Johnnie Woods, Plaintiff, v. Chris Cannon, Defendant.
• Court: U.S. District Court — Northern District of Illinois

974 F.Supp.2d 1150

Doiakah GRAY, Plaintiff,

v.Chris CANNON, John Doe(s), Kevin Frain, Nancy Pounovich, and Marcus Hardy, Defendants.

Jose Rodriguez, Plaintiff,

v.Chris Cannon, Defendant.

Johnnie Woods, Plaintiff,

v.Chris Cannon, Defendant.

Nos. 11 C 4870, 11 C 8503, 11 C 8505.

United States District Court,

N.D. Illinois,

Eastern Division.

July 16, 2013.

Doiakah Gray, Joliet, IL, pro se.

Jose Rodriguez, Joliet, IL, pro se.

Johnnie Woods, Joliet, IL, pro se.

Christopher E. Walter, Patrick F. Russell, Office of the Illinois Attorney General, Chicago, IL, for Defendants.

Memorandum Opinion and Order

GARY FEINERMAN, District Judge.

Doiakah Gray, Jose Rodriguez, and Johnnie Woods, three inmates at Illinois's Stateville Correctional Center, brought these pro se lawsuits after Stateville officials refused to let them receive mail that included photographs depicting nudity and sexual activity. Doc. 35 (11 C 4870) (Gray's first amended complaint); Doc. 1 (11 C 8503) (Rodriguez's complaint); Doc. 1 (11 C 8505) (Woods's complaint). The suits are materially identical and will be discussed together. Plaintiffs advance two claims under 42 U.S.C. § 1983: (1) that Defendants' refusal to give them the materials violates the Free Speech Clause of the First Amendment; and (2) that the grievance procedures through which they were allowed to challenge the refusals violate the Due Process Clause of the Fourteenth Amendment. Doc. 35 (11 C 4870) at ¶¶ 31–34; Doc. 1 (11 C 8503) at ¶¶ 20–25; Doc. 1 (11 C 8505) at ¶¶ 20–25.

Defendants have moved for summary judgment in all three cases. Doc. 83 (11 C 4870); Doc. 20 (11 C 8503); Doc. 19 (11 C 8505). Gray also moved for summary judgment. Doc. 77 (11 C 4870). Defendants' motions are granted and Gray's motion is denied.

Background

In considering Defendants' summary judgment motions, the court must take the facts as favorably to Plaintiffs as the record and Local Rule 56.1 allow. See Hanners v. Trent, 674 F.3d 683, 691 (7th Cir.2012). Because Defendants will be granted summary judgment, it is unnecessary to separately consider Gray's motion—its denial follows necessarily from the grant of Defendants' motions. See Continental Datalabel, Inc. v. Avery Dennison Corp., 2012 WL 5467667, at *14 (N.D.Ill. Nov. 9, 2012) (granting the defendant's summary judgment motion and concluding that “[i]t necessarily follows that [the plaintiff's] cross-motion for summary judgment on liability ... is denied”).

Defendants are current or former Stateville employees. Chris Cannon is the former Publications Review Chairman at Stateville. Doc. 94 (11 C 4870) at ¶ 6. In that capacity, Cannon reviewed publications mailed to Stateville inmates and determined whether they should be given to their addressees or rejected as contraband. Ibid. Kevin Frain is Stateville's current Publications Review Chairman. Id. at ¶ 3. Nancy Pounovich (whose name is spelled “Pounvovich” in some filings) is a superintendent at Stateville whose duties include oversight of Stateville's mailroom. Id. at ¶ 4. Marcus Hardy is Stateville's warden. Id. at ¶ 5.

The Illinois regulation governing prisoners' access to publications is 20 Ill. Admin. Code 525.230 (“Procedure for Review of Publications”). Section 525.230 establishes the position of Publication Review Officer and provides that such officers “shall review publications to determine whether to recommend prohibiting acceptance of any publications that he or she finds to contain material determined to be: 1) Obscene; [or] 2) Detrimental to security, good order, rehabilitation, or discipline or if it might facilitate criminal activity, or be detrimental to mental health needs of an offender as determined by a mental health professional.” Id. § 525.230(a). “A publication may not be rejected solely because its content is ... sexual or because its contents are unpopular or repugnant,” but a publication may be rejected if any portion “is obscene” or if “[i]t includes sexually explicit material that by its nature or content poses a threat to security, good order, or discipline or if it facilitates criminal activity.” Id. § 525.230(b)(1), (b)(6). The regulation provides that an inmate whose publication is under review shall have an opportunity to object to its being disapproved and to submit a statement in support of the publication. Id. § 525.230(c). If the Publication Review Officer decides that the publication should be disapproved, he recommends disapproval to a Chief Administrative Officer (the “highest ranking official” at the prison, see id. § 504.12), and the publication is disapproved only if the Chief Administrative Officer concurs with the Publication Review Officer's recommendation. Id. § 525.230(d). The regulation also provides that “[i]f after six consecutive issues of a publication have been denied and it is determined unlikely that future issues of the publication will be approved, the publication may be banned,” but that “[i]f the characteristic content of a banned publication significantly changes to no longer warrant denial,” an inmate may request a new review of the publication. Id. § 525.230(f), (g).

The Illinois Department of Corrections implemented § 525.230 with Administrative Directive 04.01.108. Doc. 85–1 (11 C 4870) at 56–62. Paragraph II.F.3 of the directive provides: “Publications that have been redacted, altered, or otherwise modified from the original published edition are prohibited and shall not be accepted for assessment or review.” Id. at 57. Statevillehas promulgated Warden's Bulletin # 2011–93, which states that “Nude Photos or prints,” along with other items, “will not be allowed through the mailroom.” Doc. 35 (11 C 4870) at p. 53.

After review by the Publication Review Officer, publications are placed on the Approved Publication List, the Conditionally Approved Publication List, or the Disapproved Publication List. Doc. 94 (11 C 4870) at ¶ 14. Disapproved publications are disposed of as contraband. Id. at ¶ 15. An inmate who disagrees with the disapproval of a publication may file a grievance pursuant to 20 Ill. Admin. Code 504 and Administrative Directives 04.01.114 and 04.01.115. Doc. 85–1 (11 C 4870) at 58. Section 504.810 provides that an inmate first should present his complaint to his counselor and, if that does not resolve the problem, should submit a written grievance to a Grievance Officer. Id. § 504.810(a), (b). The Grievance Officer then makes a recommendation to the Chief Administrative Officer, who makes a decision and advises the inmate of the decision in writing. Id. § 504.830(d). If the inmate remains unsatisfied, he may appeal the Chief Administrative Officer's decision to the Director of the Illinois Department of Corrections, who reviews the grievance and the responses of the Grievance Officer and Chief Administrative Officer and decides whether the grievance merits a hearing before the Administrative Review Board. Id. § 504.850. Whether or not the Board is convened to conduct a hearing and make a recommendation, the Director makes the final decision and sends the inmate a copy. Id. § 504.850(f).

Publications and photographs ordered by Plaintiffs have been withheld by Stateville officials. With respect to Gray, Stateville withheld loose photographs, issues of Celebrity Sleuth and Celebrity Skin magazines, issues of Adam Film World Guide and Adam Black Video Director, and a publication from Mailer Ad Group. Doc. 94 (11 C 4870) at ¶¶ 19, 22, 26, 28. Gray admits that “[t]hese magazines included nude photographs and photographs depicting sexual acts,” adds that “[m]any photos were of nude women,” and concedes that he receives the Wall Street Journal. Id. at ¶¶ 20, 31. Gray filed several grievances in response to the decisions to withhold those materials. Id. at ¶¶ 23, 25, 27, 29. Rodriguez subscribed to a magazine that was withheld; he admits that it contained nude photographs and “photographs depicting action scenes.” Doc. 26 (11 C 8503) at ¶¶ 16–17. Rodriguez then filed several grievances. Id. at ¶¶ 19, 21. Woods subscribed to Celebrity Sleuth, Black Tail, and Big Black Butt, all of which were withheld and all of which he admits included nude and “themed” photographs. Doc. 27 (8505) at ¶¶ 16–17. Woods then filed a grievance. Id. at ¶ 19.

When their grievances were not resolved to their satisfaction, Plaintiffs filed these lawsuits. Defendants do not contend in their summary judgment briefs that Plaintiffs' claims are barred for failure to exhaust the administrative remedies provided by state law. See42 U.S.C. § 1997e(a) (“No action shall be brought with respect to prison conditions under section 1983 ... until such administrative remedies as are available are exhausted.”); Jones v. Bock, 549 U.S. 199, 211–12, 127 S.Ct. 910, 166 L.Ed.2d 798 (2007) (holding that failure to exhaust under § 1997e(a) is an affirmative defense that must be established by the defendant).

Discussion

As noted above, Plaintiffs claim (1) that Defendants unconstitutionally abridged their First Amendment freedom of speech by withholding the publications and photographs, and (2) that the grievance procedure fell short of the process guaranteed by the Due Process Clause of the Fourteenth Amendment. These claims are addressed in turn.

I. First Amendment Claim

Plaintiffs concede that each of the photographs at issue depicts nudity, penetration, or redacted penetration. Doc. 94 (11 C 4870) at ¶ 20; Doc. 26 (11 C 8503) at ¶¶ 16–17; Doc. 27 (11 C 8505) at ¶¶ 16–17. Gray asserts that “the entire genitals at the point of contact is blacked out” in the redacted photographs, Doc. 35 (11 C 4870) at ¶ 16 n. 1, but those photographs nonetheless depict sexual activity. The question presented, then, is whether prison inmates have a First Amendment right to receive photographs that depict nudity or sexual activity. They do not.

The First Amendment “embraces the right to distribute literature and necessarily protects the right to receive it.” Martin v. City of Struthers, 319 U.S....