Hodges v. COM. OF VIRGINIA

• Decision Date: 19 December 1994
• Docket Number: Civ. No. 92-0696-R,92-0907-R.
• Citation: 871 F. Supp. 873
• Parties: Donald A. HODGES, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants. Michael G. FLORA, Plaintiffs, v. COMMONWEALTH OF VIRGINIA, et al., Defendants. MONTCALM PUBLISHING CORP., Plaintiff-Intervenor, v. Edward W. MURRAY, et al., Defendants.
• Court: U.S. District Court — Western District of Virginia

871 F. Supp. 873

Donald A. HODGES, Plaintiff, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

Michael G. FLORA, Plaintiffs, v. COMMONWEALTH OF VIRGINIA, et al., Defendants.

MONTCALM PUBLISHING CORP., Plaintiff-Intervenor, v. Edward W. MURRAY, et al., Defendants.

Civ. Nos. 92-0696-R, 92-0907-R.

United States District Court, W.D. Virginia, Roanoke Division.

December 19, 1994.

Michael Glynn Flora, pro se.

Daniel Robert Bieger, Copeland, Molinary & Bieger, P.C., Abingdon, VA, Keith S. Orenstein, New York City, for Montcalm Pub. Corp.

Karen Lebo, Office of Atty. Gen., Richmond, VA, for Com. of Virginia, Mr. Beck, J. Phippin.

Mark Ralph Davis, Office of Atty. Gen., Richmond, VA, for Edward W. Murray, in his official capacity as Director of Dept. of Corrections of Com. of Virginia (VDOC), John Does 1-7, in their official capacities, such fictitious names being designed to identify those VDOC employees whose true identities are now unknown to plaintiff-intervenor, but who serve as (1) members of the VDOC Publication Review Committee, (2) Warden or Superintendent of Keen Mountain Correctional Center (KMCC), and (3) functional KMCC mailroom censor, R.J. Beck, J. Horton, R.A. Young, E.C. Morris, Ms. Summers.

Donald Arlis Hodges, pro se.

MEMORANDUM OPINION

WILSON, District Judge.

This is a disposition of two actions filed separately under 42 U.S.C. § 1983 by plaintiffs, Donald A. Hodges and Michael G. Flora, who assert that Keene Mountain Correctional Center's ("KMCC") publication policy, which restricts inmate access to sexually explicit publications, infringes upon their First Amendment rights. Hodges and Flora named the Commonwealth of Virginia and individual employees at the KMCC as defendants.¹ Montcalm Publishing Corporation ("Montcalm"), owner and publisher of Gallery magazine, the publication that was denied to Hodges and Flora under the challenged policy, intervened in both actions as an additional plaintiff. Montcalm further named Edward W. Murray, director of the Virginia Department of Corrections ("VDOC"), and John Does 1-7, unknown VDOC employees, as defendants.

Pursuant to 28 U.S.C. § 636, the United States Magistrate Judge conducted a joint evidentiary hearing of the complaints lodged by Hodges and Flora. In a thoughtful report, the magistrate judge found that KMCC's publication policy was substantively constitutional, on its face and as applied. However, the magistrate judge found that the publication policy, which requires notification to an inmate when a publication addressed to him is denied entry into the prison but does not require notification to the publisher sending the material, failed to provide the necessary procedural safeguards to publishers such as Montcalm. The magistrate judge concluded that the publication policy was substantively reasonable, but procedurally defective, and she recommended that judgment be entered accordingly. The magistrate judge further recommended that injunctive relief be granted requiring the VDOC to provide procedural safeguards as outlined in her report.

The matter is now before this court on objections to the magistrate judge's report by plaintiffs and defendants. The court finds that KMCC's publication policy does not infringe upon the constitutional rights and protections of plaintiffs. As such, the court will adopt the magistrate judge's recommended findings of fact and conclusions of law in regards to the substantive constitutionality of KMCC's publication policy. Contrary to the magistrate judge's recommendation, however, the court finds that the policy satisfies the requirements of procedural due process.

I.

Donald Arlis Hodges and Michael Glynn Flora are inmates at KMCC located in Keene Mountain, Virginia. Hodges and Flora both subscribe to Gallery magazine, a publication which contains sexually explicit writings and nude photos of women posing alone in various settings. Inmates held in Virginia prisons are allowed access to publications of their choice subject to limited prison regulations.

In June of 1992, KMCC personnel inspected the June issue of Gallery and, suspecting that the publication violated Department Operating Procedure ("DOP") 852,² forwarded it to the Publication Review Committee ("PRC") of the Virginia Department of Corrections in Richmond, Virginia.³ Upon review of Gallery's June issue, the PRC determined that the written material violated DOP 852 and disapproved its delivery to Hodges and Flora.⁴ KMCC delivered the July 1992 issue of Gallery to Hodges and Flora without objection. However, it forwarded the August 1992 issue to the PRC for review, which then approved the issue for dissemination.⁵ Beginning with the September 1992 issue of Gallery, the PRC has consistently disapproved the magazine for delivery to inmates.

Hodges filed a complaint pursuant to 42 U.S.C. § 1983 alleging that KMCC's application of DOP 852 violated his constitutional rights. Several months later, Flora filed a similar action under § 1983 challenging the constitutionality of DOP 852. Montcalm intervened in both suits as an interested plaintiff. The magistrate judge conducted a joint evidentiary hearing of the cases and issued a report and recommendation. The matter is now before this court on objections to the magistrate's report and recommendation by the plaintiffs and the defendants.

II.

In her report and recommendation, the magistrate judge first analyzed whether DOP 852 infringes upon the plaintiffs' First Amendment rights, either on its face or as applied. Reiterating the standard articulated by the Supreme Court in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989), the magistrate judge stated that prison regulations which restrict publications delivered to inmates must be "reasonably related to legitimate penological interests." (Mag.Rep. & Rec. at 28, May 5, 1994.) In determining whether the standard had been met, the following factors, set forth in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987), guided the magistrate judge's analysis:

1. Whether the regulation is neutral and reasonably related to a legitimate governmental interest;

2. Whether alternative means are available to the inmate to exercise the asserted right in question;

3. Whether accommodating that right will have a significant ripple effect on fellow inmates, prison staff and prison personnel; and

4. Whether the alternatives available suggest that the status quo is actually an exaggerated response to prison concerns.

The magistrate judge concluded that DOP 852 is reasonably related to a legitimate governmental interest. The articulated penological interests at stake, including security, discipline, order, public safety, and rehabilitation, were found to be legitimate. Giving deference to the testimony of Edward C. Morris, Deputy Director of the VDOC, who stated that publications which violate DOP 852 "significantly hinder inmate rehabilitation," the magistrate judge found that the regulation was reasonably related to a valid governmental interest.⁶ (Mag.Rep. & Rec. at 14-15.) It was further concluded that DOP 852 is neutral because it is objective and unambiguous, and its distinctions are based on the potential impact the publications may have on legitimate penological interests. (Mag.Rep. & Rec. at 29.)

Turning to the second factor, the magistrate judge found that alternative means of exercising the First Amendment right were available to Virginia inmates because DOP 852 does not deprive inmates of all sexually explicit publications. (Mag.Rep. & Rec. at 30.) However, in a footnote, the magistrate judge expressly reserved the question of whether the VDOC could ban all sexually explicit material. (Mag.Rep. & Rec. at 18, n. 17.) Under the third factor, it was found that accommodation of the plaintiffs' First Amendment rights would adversely affect the rehabilitation process — specifically, a significant negative ripple effect would occur within the prison in the form of increased bartering. (Mag.Rep. & Rec. at 19.) Last, the magistrate judge concluded that no less intrusive alternatives were readily available to the VDOC in preservation of its penological interests. (Mag. Rep. & Rec. at 19-20.)

The magistrate judge then considered the constitutionality of DOP 852 as applied. Rejecting the argument that DOP 852 is applied in an arbitrary and capricious manner, the court attributed the few inconsistencies in the approval of Gallery for dissemination as forgivable imperfections in the VDOC's system of review. In sum, the magistrate judge found that DOP 852 does not violate the plaintiffs' First Amendment rights, either substantively or as applied.

Plaintiffs Hodges and Flora object to the portion of the magistrate judge's report and recommendation detailed above. They have lodged specific objections to numerous findings — both factual and legal. After review of the report and recommendation, however, this court finds that the magistrate judge conducted a proper analysis of the plaintiffs' First Amendment rights. As such, it will adopt the magistrate judge's report with several modifications.

As stated previously, a prison regulation that restricts the delivery of publications to inmates must be reasonably related to a legitimate penological interest. The interests articulated by the VDOC, security, discipline, order, public safety, and rehabilitation, need no defense. The more compelling question here is whether sexually explicit publications have a negative impact on those interests. In her report and recommendation, the magistrate judge acknowledged such a causal connection based upon the assertions of the VDOC's Deputy Director, which merit deference, and she held that empirical evidence need not necessarily establish that connection. This court agrees. However, the magistrate judge's failure to rely upon empirical evidence regarding this issue should not be read to mean that none exists.⁷ Neither is this...