Sperry v. Werholtz, 021411 FED10, 10-3145

Docket Nº:10-3145
Opinion Judge:David M. Ebel Circuit Judge
Party Name:JEFFREY J. SPERRY, Plaintiff-Appellant, v. ROGER WERHOLTZ, Defendant-Appellee.
Judge Panel:Before LUCERO, EBEL, and O'BRIEN, Circuit Judges.
Case Date:February 14, 2011
Court:United States Courts of Appeals, Court of Appeals for the Tenth Circuit

JEFFREY J. SPERRY, Plaintiff-Appellant,


ROGER WERHOLTZ, Defendant-Appellee.

No. 10-3145

United States Court of Appeals, Tenth Circuit

February 14, 2011

         D.C. No. 5:04-CV-03125-CM, D. Kan.

          Before LUCERO, EBEL, and O'BRIEN, Circuit Judges.


          David M. Ebel Circuit Judge

         Plaintiff Jeffrey J. Sperry, an inmate in the custody of the Kansas Department of Corrections (KDOC), brought this pro se action under 42 U.S.C. § 1983 against defendant Roger Werholtz, Secretary of KDOC. Mr. Sperry alleges that, in 2004, defendant Werholtz violated his First Amendment rights by: (1) amending Kansas Administrative Regulation § 44-12-313 to prohibit the possession of sexually explicit materials by inmates in state correctional facilities; and (2) subsequently forcing Mr. Sperry to dispose of 10-12 adult magazines and an engraved cup in order to comply with the amended regulation.1 The district court granted summary judgment in favor of defendant Werholtz on Mr. Sperry's First Amendment claim, concluding that defendant Werholtz's affidavit testimony complied with the requirements of Fed.R.Civ.P. 56(e)(1)2 and established that the amended regulation was reasonably related to legitimate penological interests. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the entry of summary judgment in favor of defendant Werholtz on Mr. Sperry's facial constitutional challenge to Kansas Administrative Regulation § 44-12-313.

         I. Background

         Defendant Werholtz has served as Secretary of the KDOC since January 2003. See R., Doc. 126, Ex. 1 at 1, ¶ 1. In his capacity as Secretary, defendant Werholtz is the chief executive officer of the KDOC. See Kan. Stat. Ann. § 75-5203(a). His official duties include, among other things, enacting and enforcing administrative regulations applicable to inmates committed to his custody. See R., Doc. 126, Ex. 1 at 1, ¶ 2. Prior to his appointment as Secretary, defendant Werholtz "served in a variety of positions in the KDOC, including senior administrative posts such as Deputy Secretary for the Divisions of Community and Field Services, Programs and Staff Development, and Facilities Management, with a total service record of more than 27 years." Id. at 1, ¶ 1.

         During his tenure as Secretary, defendant Werholtz "promulgated a temporary amendment of K.A.R. 44-12-313 – 'Sexually explicit materials' (formerly entitled 'Obscenity'), effective March 19, 2004, followed by a permanent amendment, effective July 2, 2004." Id. at 1, ¶ 3. The amended regulation provided as follows:

(a) No inmate shall have in possession or under control any sexually explicit materials, including drawings, paintings, writing, pictures, items, and devices.

(b) The material shall be considered sexually explicit if the purpose of the material is sexual arousal or gratification and the material meets either of the following conditions:

(1) Contains nudity, which shall be defined as the depiction or display of any state of undress in which the human genitals, pubic region, buttock, or female breast at a point below the top of the aerola is less than completely and opaquely covered; or

(2)contains any display, actual or simulated, or description of any of the following:

(A) Sexual intercourse or sodomy, including genital-genital, oral-genital, anal-genital, and anal-oral contact, whether between persons of the same or differing gender;

(B) masturbation;

(C) bestiality; or

(D) sadomasochistic abuse.

Kan. Admin. Regs. § 44-12-313(a) and (b) (2004).

         In the affidavit that he submitted to the district court in support of his motion for summary judgment, defendant Werholtz set forth the reasons for why he promulgated the amended regulation. See R., Doc. 126, Ex. 1 at 2-3, ¶¶ 5-12. As summarized by the district court, those reasons were as follows:

Defendant decided to prohibit sexually explicit publications and items from correctional facilities to help with institutional security, facilitate rehabilitation of sex offenders, and prevent sexual harassment. Through his affidavit, defendant testified that he made the decision for the following reasons: Sexually explicit materials are a general impediment to the preservation of security at KDOC facilities. They can reasonably be expected to lead to the open performance of lewd acts, which disrupts overall security and order. The possession of sexually explicit materials can openly identify an inmate as homosexual and create an immediate security concern, as such inmates are often targeted for exploitation or violent attack. Sexually explicit materials disrupt and interfere with the treatment and management of sex offenders. The blanket ban prevents sex offenders from having access to such materials directly or by illicit dealing and trading of sexually explicit materials with non-sex offenders. The materials may also be used to sexually harass staff members. There was a potential for staff to file sexual harassment complaints due to exposure to the materials in the workplace environment. Prior to the amendments to Kan. Admin. Regs. § 44-12-313, KDOC had received complaints from prison staff about being required to view these materials while performing their duties. Inmates had also made comments referencing comparisons between prison staff and individuals in the publications or other materials.

Defendant also testified that prior to the amendments to Kan. Admin. Regs. § 44-12-313, KDOC staff spent excessive amounts of time: (1) reviewing publications to determine what was allowable and what was not; (2) processing and deciding appeals from the initial decision; and (3) processing notifications and other information related to ordering, receiving, or failing to receive such materials. Defendant further testified that (1) there was not an easier alternative in dealing with sexually explicit materials; (2) redacting the prohibited material was not a workable alternative because KDOC receives mail for thousands of inmates; and (3) it would be costly and cumbersome for staff members to redact the sexually explicit material from each publication.

R., Doc. 134 at 9-10.

         On March 22, 2004, KDOC inmates were provided notice of the amendment to Kansas Administrative. Regulation § 44-12-313, and they were informed that they had until May 1, 2004, to dispose of all property containing sexually explicit material. See R., Doc. 126, Ex. 1 at 4, ¶ 13. The inmates were permitted to either mail such property to a person of their choosing or they could destroy the property. Id. On April 29, 2005, in order to comply with the amended regulation, Mr. Sperry mailed "a box of adult magazines and an engraved cup" to the district court "to be entered into evidence." Id., Doc. 6.

         II. Analysis

         A. Motion to Strike Defendant Werholtz's Affidavit.

         After defendant Werholtz filed his motion for summary judgment and his supporting affidavit, Mr. Sperry filed a motion to strike the affidavit on the ground that it did not comply with the requirements of Fed.R.Civ.P. 56(e)(1). After thoroughly reviewing all of the material statements in defendant Werholtz's affidavit, the district court found that the affidavit complied with Rule 56(e)(1), and the court therefore denied the motion to strike. See R., Doc. 134 at 1-7. On appeal, Mr. Sperry argues that the district court erred in failing to strike defendant Werholtz's affidavit because: "(1) [it] contained nothing but conclusory allegations that were not supported by any facts or evidence; (2) [it] contained conclusory allegations on expert matters for which defendant was not qualified to make; [and] (3) [it] contained falsehoods that were conclusory and self serving in order to make a sham fact issue." Aplt. Opening Br. at 3.

         In the context of a motion for summary judgment, we review a district court's rulings on the admissibility of statements in an affidavit for an abuse of discretion. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005). "Under this standard, a trial court's decision will not be reversed unless the appellate court has a definite and firm conviction that the lower court made a clear error of judgment or exceeded the bounds of permissible choice in the circumstances." Id. (quotation omitted).

         "Fed. R. Civ. P. 56(e) . . . governs the admissibility of affidavits at the summary judgment stage[.]" Id. The rule provides that an affidavit submitted in support of or in opposition to a motion for summary judgment "must be made on personal knowledge, set out...

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