Broulette v. Starns, CV96-2652-PHX-SRB.

• Decision Date: 27 August 2001
• Docket Number: No. CV96-2652-PHX-SRB.,CV96-2652-PHX-SRB.
• Citation: 161 F.Supp.2d 1021
• Parties: James P. BROULETTE, Plaintiff, v. Sgt. STARNS, et al., Defendants.
• Court: U.S. District Court — District of Arizona

161 F.Supp.2d 1021

James P. BROULETTE, Plaintiff, v. Sgt. STARNS, et al., Defendants.

No. CV96-2652-PHX-SRB.

United States District Court, D. Arizona.

August 27, 2001.

James P Broulette, pro se, Florence, AZ Dean Edward Brekke, Office of Attorney General, Liability Management Section, Phoenix, AZ, for D Starns.

BOLTON, District Judge.

This matter was tried before this Court on July 31, 2001 and August 1, 2001. The Court, having considered the testimony of the witnesses, having reviewed the exhibits admitted into evidence, and having considered the arguments of Plaintiff and counsel for the Defendants, issues its findings of fact and conclusions of law.

FINDINGS OF FACT

1. At all times material to this case Plaintiff, James Broulette, was an inmate incarcerated in the Arizona Department of Corrections (ADOC).

2. In 1996, James Broulette subscribed to Hustler magazine and was sent 13 issues of that magazine commencing July 1996.

3. Plaintiff received only 3 of the 13 issues to which he subscribed. Ten of those issues were seized by Defendant Dallas Starns as obscenity.

4. The Hook Consent Decree dated October 19, 1973 guaranteed that inmates in the Arizona Department of Corrections would receive publications unless those publications contained "instructions on the manufacturing of homemade weapons, bombs, explosives, escape materials, brewing of alcoholic beverages, or if they otherwise contain material which constitutes a direct and immediate threat to security, safety, or order of the institution, or if they contained any material which is deemed obscene under applicable constitutional standards." (Exhibit 1). In this case, it is conceded by the Defendants that the only reason for the refusal to deliver the Hustler magazines to the Plaintiff was the determination that they contained material deemed obscene and that there was no other legitimate penologic interest for excluding these magazines.

5. The requirements of the Hook Decree were incorporated within ADOC Internal Management Policy (IMP)302.4. That policy regulating inmate mail defined as contraband any item of obscenity as defined by A.R.S. § 13-3501 et seq. The parties agree that the standard set out in A.R.S. § 13-3501 is the constitutional standard.

6. During the time that Plaintiff had his subscription to Hustler magazine Defendant Starns was employed in the mail room. Starns' responsibility included an initial review of incoming magazines before delivering them to the inmates. Defendant Starns reviewed the magazines only to determine if pictures in the magazines depicted specific types of sexual acts and if they did he forwarded the issue to the Deputy Warden, Defendant Donald Schiavo, for a determination of whether the issue was obscene. Defendant Starns did not make the obscenity determination but only made an initial review of the incoming magazines. Under the policy, it was Defendant Starns who signed the form advising the inmate that his magazine was confiscated as contraband due to obscenity.

7. It is undisputed that Deputy Warden Schiavo did not apply the constitutional standard required by the Hook Decree or the statutory standard required by policy in determining that 10 of Broulette's 13 Hustler magazines were obscene. Defendant Schiavo admitted that he reviewed the magazines only to determine if they depicted specific sexual acts and, if they did, contrabanded the magazines as obscene. Defendants concede that Defendant Schiavo made the determination of obscenity without considering whether the magazine taken as a whole lacked serious literary, artistic, political, or scientific value.

8. Defendant Schiavo was aware of the requirements of IMP 304.2¹ and admitted that he had reviewed the definition of obscenity in A.R.S. § 13-3501. He further admitted that he was aware of the requirements of Hook Decree. Pursuant to IMP 304.2, Broulette appealed the withholding of his magazines to Schiavo and pointed out to him in his inmate letters the specific reason why these magazines were not obscene citing A.R.S. § 13-3501. For example, in relation to the seizure of Hustler magazine in December 1996, Broulette wrote to Schiavo "However, Hustler is not obscene pursuant to A.R.S. § 13-3501(2) because they have literary and/or political value." (Exhibit 13). Schiavo's response does not respond to this specific reference to the obscenity definition and instead justifies the seizure because "The magazine displayed photos of homosexual acts, sexual penetration, and oral sex." (Exhibit 14). In January 1996 Broulette pointed out to Schiavo in an inmate letter "These magazines are not obscene pursuant to A.R.S. § 13-3501(2) regardless of the explicit sexual content because they contain literary and/or political value." (Exhibit 16). In another inmate letter, Broulette told Schiavo about the October 1996 special master's report that indicated that ADOC was not applying the obscenity definition properly. (Exhibit 17). Schiavo responded "The magazine displayed photos of homosexual activities, sexual penetration and oral sex...This magazine meets the definition of contraband as any (sic) item of obscenity as defined in A.R.S. § 13-3501 through § 13-3508." (Exhibit 18).

9. Pursuant to policy, Schiavo also met with the Plaintiff to discuss the contrabanded magazines. Plaintiff again told Schiavo that he was not applying the statutory or constitutional definition of obscenity. Schiavo persisted in his insistence that the depiction of specific sexual acts was sufficient for the magazines to be contrabanded as obscenity.

10. On December 15, 1995 Defendant Terry Stewart became the director of the Arizona Department of Corrections.

11. On January 12, 1996 the court administering the Hook Decree appointed Special Master Janet Bliss to monitor the Decree as it related to inmate publications and report her findings, conclusions, and recommendations. In October 1996 Special Master Bliss reported that ADOC was contrabanding adult magazines based on an improper standard and cited a specific Internal Management Policy in Tucson that stated that material was obscene if it was "offensive to accepted local standards of decency or appealing to prurient interest pursuant to A.R.S. § 13-3501." She pointed out in her report that A.R.S. § 13-3501 is based on the constitutional standard set forth in Miller v. California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973) requiring a three prong test, the third prong of which requires that the publication as a whole lacked serious literary, artistic, political or scientific value. She reported that ADOC was not applying all three prongs and was contrabanding magazines based on the first two prongs and completely ignoring the third prong of the test. While this IMP in Tucson was not applicable to the Eyman Complex where Plaintiff was housed during the relevant time period, the undisputed testimony shows that this same policy was being applied to Plaintiff's publications. Director Stewart became aware of the special master's report shortly after it was issued.

12. In September 1998 another judge of this court issued an order in the Hook case based on a motion to enforce the Consent Decree regarding publications. After reviewing the parties' submissions and the special master's report, the Court concluded that ADOC was not applying the applicable constitutional standard for obscenity and was confiscating adult magazines based solely on certain sexual acts being depicted. The Court ordered that when withholding adult magazines from inmates based on obscenity, ADOC must apply the constitutional standard for obscenity set forth in Miller v. California, and indicate the reason for withholding such magazines in relation to that standard. ADOC was further ordered to retract any internal procedures regarding the confiscation of adult magazines inconsistent with the constitutional standard for obscenity.

13. It was only after the 1998 Court order that Director Stewart took action to attempt to have the proper constitutional standard applied to publications.

14. While Director Stewart was not required to take action in response to Special Master Bliss' report, this report placed him on notice that ADOC was not complying with the Hook Decree and with ADOC policy.

15. In preparation for this lawsuit, Plaintiff ordered the 10 contrabanded issues of Hustler magazine so that they would be available for exhibits at trial. Those ten issues were reviewed pursuant to the new policy adopted as DO 909 effective October 11, 1999. That policy at part 909.02 1.7-1.7.4.3 requires publications to be seized as contraband if deemed obscene under applicable constitutional standards. The policy requires that a publication be deemed obscene when all three prongs of the constitutional test apply and accurately recites at 1.7.4.1,2 and 3 the constitutional and statutory standard. Part 909.02 at 1.9.2 requires that when a publication is excluded as obscene that the specific criteria shall be listed on the notice detailing the specific reasons under each part of the three prong test why the criteria applies to the publication. This notice of result is required to be delivered to the inmate whose publication is being excluded.

16. When Plaintiff's ten Hustler magazines were reviewed under this new policy in January 2000 six of the ten previously contrabanded magazines were delivered to Plaintiff. Four were refused as obscene. The evidence reflects that ADOC did not comply with DO 909 nor apply the proper standard for obscenity as it relates to these four magazines. The November 1996 Hustler magazine contrabanded as obscene in January 2000 listed as the sole reason for exclusion "Bondage" under all three prongs of the obscenity test. (Exhibit 48). The February 1997 was excluded as obscene solely because of "Mutalation (sic)". (Exhibit 50). This explanation was contained in the part that indicated that it appealed to the prurient interest. No...