Cline v. Fox, CIV.A. 1:00CV175.

• Citation: 266 F.Supp.2d 489
• Decision Date: 19 March 2003
• Docket Number: No. CIV.A. 1:00CV175.,CIV.A. 1:00CV175.
• Parties: Roger E. CLINE, Plaintiff, v. William M. FOX, Warden, and James Rubenstein, Commissioner, Defendants.
• Court: U.S. District Court — Northern District of West Virginia

266 F.Supp.2d 489

Roger E. CLINE, Plaintiff, v. William M. FOX, Warden, and James Rubenstein, Commissioner, Defendants.

No. CIV.A. 1:00CV175.

United States District Court, N.D. West Virginia.

March 19, 2003.

Robert M. Bastress, Esquire, Morgantown, WV, for Plaintiff Roger E. Cline.

Barry L. Koerber, Esquire, Assistant Attorney General, Charles Houdyschell, Esquire, Assistant Attorney General, Jendonnae L. Houdyschell, Attorney General Office, Esquire, Senior Assistant Attorney General, WV Division of Corrections, Charleston, WV, for Defendant William M. Fox, Warden.

Barry L. Koerber, Esquire, Assistant Attorney General, Charleston, WV, for Defendant James Rubenstein, Commissioner.

ORDER

KEELEY, District Judge.

This matter comes before the Court on the parties' cross motions for summary judgment. The motions have been fully briefed, oral argument was heard by the Court, and the matters raised are ripe for review. For the reasons that follow, the Court GRANTS the defendants' motion for summary judgment, and DISMISSES IN PART and DENIES IN PART the plaintiffs motion for summary judgment.

BACKGROUND

Plaintiff Roger Cline (Cline) is an inmate with the West Virginia Division of Corrections (DOC). Originally incarcerated in 1993, Cline has served time at DOC facilities located throughout West Virginia, including Moundsville, Huttonsville, Mount Olive, and Northern Regional Jail. From December 1998 until the present, Cline has been incarcerated at the St. Mary's Correctional Center (St.Mary's).

During his incarceration, Cline became an avid reader of the "Paper Wings" line of books, an adult-fiction serial published by Komar Publishing. Every two to three months, Cline received subscription installments of six Paper Wings books through the mail office at the institution where he was incarcerated. During his time at St. Mary's alone, Mr. Cline received five subscription packages.

Despite this regular infusion of new reading material, Cline was not able to build a private library because DOC property restrictions limit the number of personal items an inmate may possess at one time. Thus, each time a new Paper Wings package arrived, Cline had to ship the old package home to his mother.

This all ended on March 17, 2000, when prison officials intercepted Cline's latest Paper Wings package and held it in the mail room. Cline was told that he could not receive the package because the sender's name did not appear on St. Mary's "Approved Vendors List."

The Approved Vendors List is an official list of catalogs, publishing companies, magazines, and other sources of written material that an inmate may receive through the mail. Each DOC facility generates its own Approved Vendors List. In the judgment of prison officials, these vendors will only provide items permitted to inmates by prison rules and regulations ("Policy Directives").¹ Once approved internally by the warden, the Approved Vendor's List is sent to the DOC Commissioner for final approval. Each DOC facility keeps a copy of its Approved Vendors List in its mail room, and all incoming mail is checked against it. If the sender's name does not appear on the Approved Vendors List, the item is held in the mail office and the addressee inmate is notified of the delivery. The inmate may then make arrangements to return the item, destroy it, or have it forwarded to a third party.

If an inmate wishes to receive mail from an unlisted vendor, he may petition the Warden to amend to Approved Vendors List to include the new vendor. The inmate must first fill out a form and submit it to his Unit Manager, along with an example of the items sought to be added to the list. The Unit Manager then forwards the request to the Warden, who often consults with deputy wardens to determine whether the inclusion of the new vendor will violate any DOC Policy Directives. The Warden's decision on amendments to the Approved Vendors List is final.

When he was denied his books, Cline petitioned Warden Fox to amend the St. Mary's Approved Vendors List to include Komar Publishing. Warden Fox referred the petition to Deputy Warden Tony Le-Masters for a recommendation. LeMasters reviewed the examples provided with the petition and found a conflict with DOC Policy Directive 503.00, which states in pertinent part:

Publications which pose a direct, clear and immediate danger to security, or which are obscene by depicting explicit sexual activity may be prohibited. (Policy Directive 503.00(V)(N)). Obscene Material: Periodicals, magazines, books, pamphlets, photographs, paintings, photocopies, sculpture or other graphic representation which are obscene because they depict explicit sexual activity. Explicit sexual activity is defined as sexual intercourse, anal intercourse, fellatio, cunnilingus, bestiality, bondage/Sadism and Masochism or material of an explicit sexual nature involving minors. (Policy Directive 503.00(111)).

Because DOC Policy Directive 503.00 prohibits inmates from receiving or possessing "obscene material," Deputy Warden LeMasters recommended that Cline's petition be denied. Warden Fox accepted Deputy LeMasters' recommendation and denied Cline's request to amend the Approved Vendors List to include Komar Publishing.

Cline grieved Warden Fox's decision within the DOC, and the decision was eventually upheld. On October 16, 2000, Cline filed a complaint pursuant to 28 U.S.C. § 1983, alleging that the refusal to permit his receipt of the Paper Wings books violated his constitutional rights under the First and Fourteenth Amendments.

During discovery, Cline gave an answer to an interrogatory indicating that books similar to Paper Wings were shelved in St. Mary's Reading Library. Warden Fox responded to this disclosure by closing the Reading Library and instructing Deputy Warden Sandy Tanczyn to review the library's contents and remove any material that violated the obscenity ban in DOC Policy Directive 503.00. Tanczyn formed an ad hoc staff of unit managers, counselors, case managers, and office assistants to individually read every book in the library. She distributed copies of Policy Directive 503.00 to the staff members, and instructed them to purge anything containing language that "could be derived as a sexual turn-on, according to the policy directive." When a staff member asked a question about what to do, Tanczyn simply pointed to the Policy Directive and told them to do the job "like the policy says." Tanczyn admits that her specific direction to eliminate any book that contained language that might arouse the reader was her own interpretation of the Policy Directive, and not that of Warden Fox.

The entire Reading Library review was completed in approximately two months. At its conclusion, the staff had purged 259 of the 1226 volumes, or nearly 21% of the library's total inventory. Among the books removed were William Styron's Sophie's Choice, Gore Vidal's Myra Breckinridge, and a number of works by John Updike.

Cline immediately amended his complaint on October 31, 2001 to allege that the library purge was a violation of his rights under the First and Fourteenth Amendments of the United States Constitution.

ANALYSIS

The parties do not dispute any facts on this cross-motion for summary judgment. Therefore, the Court need only determine which party is entitled to judgment as a matter of law on each of Cline's claims for relief. See Fed.R.Civ.P. 56(c) (summary judgment is appropriate when "there is no genuine issue as to any material fact, and ... the moving party is entitled to a judgment as a matter of law.").

The amended complaint challenges DOC Policy Directive 503.00 both on its face and as applied. Two of these claims are not decided here, however. First, Cline abandoned his facial challenge at oral argument, and therefore the Court does not consider it.² Moreover, the Court notes that many jurisdictions have upheld similar regulations. See Waterman v. Farmer, 183 F.3d 208 (3d Cir.1999); Frost v. Symington, 197 F.3d 348, 357 (9the Cir.1999); Mauro v. Arpaio, 188 F.3d 1054 (9the Cir. 1999); Amatel v. Reno, 156 F.3d 192 (D.C.Cir.1998).

Second, one of the as applied challenges is premature. Cline claims that "[t]he removal and suppression by the defendants and their agents of all materials from the [St. Mary's] reading library that includes passages that might sexually arouse the reader are irrational and unreasonable." While the record suggests that the library purge was a reflexive reaction to Cline's discovery response,³ the record clearly indicates that Cline amended his complaint to include this claim before he grieved the offense within the West Virginia Division of Corrections. 42 U.S.C. § 1997e(a) unconditionally requires an inmate challenging his conditions of confinement to exhaust all administrative remedies before filing an action in district court. See Porter v. Nussle, 534 U.S. 516, 524, 122 S.Ct. 983, 152 L.Ed.2d 12 (2002) ("Once within the discretion of the district court, exhaustion in cases covered by § 1997e(a) is now mandatory."). Cline has not exhausted his administrative remedies for this claim and it must be dismissed.

This leaves only two as applied challenges to Policy Directive 503.00 before the Court: (1) that the DOC's use of and refusal to amend the approved vendors list to include the Paper Wings Books is unreasonable and irrational; and (2) that the defendants' refusal to permit Cline to receive and possess his Paper Wings books is unreasonable and irrational. These technically separate claims turn on the resolution of whether Policy Directive 503.00 was validly applied to prohibit Cline's possession of the Paper Wings books.

A. Legal Standard.

Where a plaintiff challenges the validity of a regulation as applied to his particular circumstance, the Court conducts its analysis under the framework established in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct 2254, 96 L.Ed.2d 64 (1987), and Thornburgh v. Abbott, 490 U.S. 401, 109...