News v. Ryan
| Decision Date | 08 March 2019 |
| Docket Number | No. CV-15-02245-PHX-ROS,CV-15-02245-PHX-ROS |
| Parties | Prison Legal News, Plaintiff, v. Charles L Ryan, et al., Defendants. |
| Court | U.S. District Court — District of Arizona |
Prison Legal News ("PLN") publishes books and magazines about the criminal justice system and issues involving prisoners, including a monthly journal eponymously titled Prison Legal News. Prisoners in the custody of the Arizona Department of Corrections ("ADC") subscribe to publications by PLN. Since 2014, some of these publications have been excluded and/or redacted pursuant to ADC's policy prohibiting sexually explicit material. PLN brought claims against Defendants—officers and employees of ADC—under 42 U.S.C. § 1983, alleging violations of the First and Fourteenth Amendments.
The parties cross-moved for summary judgment. (Docs. 233, 235.) For the following reasons, Defendants' Motion for Summary Judgment (Doc. 233) is granted in part and denied in part. PLN's Motion for Summary Judgment (Doc. 235) is granted in part and denied in part.1
Plaintiff Prison Legal News ("PLN") is a project of the Human Rights Defense Center.2 (Doc. 236 at 3.) For over 27 years, PLN has published and distributed books and magazines about the criminal justice system and issues impacting prisoners, including Prison Legal News—a monthly journal of corrections news and analysis—and the book The Celling of America: An Inside Look at the U.S. Prison Industry ("Celling"). (Doc. 236 at 3.) PLN's publications contain information on "prison operations and conditions, legal updates on prison litigation, prisoner health and safety, and prisoners' rights." (Doc. 236 at 3.) PLN's stated purpose is to "disseminate legal information on issues affecting prisoners and their loved ones on the outside and to educate prisoners and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society." (Doc. 236 at 3-4.) Prison Legal News has been distributed to prisoners in over 3,000 correctional facilities in the nation, including prisons within the correctional systems of the Arizona Department of Corrections ("ADC"). (Doc. 236 at 3.) There are approximately 133 subscribers to Prison Legal News at ADC facilities.3 (Doc. 236 at 4.)
Defendants are officers and employees of ADC, sued in their official and individual capacities.4 Defendant Charles L. Ryan ("Ryan") was ADC's Director during the relevant time period. Ryan signed and executed each version of the department order challenged by PLN. (Doc. 236 at 20.) Defendant Jeff Hood ("Hood") was ADC's Deputy Director during the relevant time period. (Doc. 236 at 21.) Defendant Gail Rittenhouse ("Rittenhouse") was ADC's Division Director for Support Services from May 2012 until March 17, 2017. (Doc. 234-1 at 40.) She was the immediate supervisor of Defendant James Riggs ("Riggs"), Quality Assurance Coordinator of the Office of Publication Review ("OPR") from July 2012 until May 2016. (Docs. 218-1 at 23; 234-1 at 15; 241 at31.) Defendant Olson was an OPR employee from 2013 until his retirement in May 2016. During his time with OPR, Olson had "primary responsibility" over OPR duties—which included conducting reviews of incoming publications—while Riggs supervised and helped him. (Doc. 218-1 at 27.) Defendant Jamie Guzman ("Guzman") assumed Olson's position after his retirement. (Doc. 218-1 at 28.)
Before 2010, ADC allowed inmates to "receive virtually any type of sexually-related photographs, magazines and writings, including those depicting nudity, as long as it did not involved depictions of people in uniform or disrespect people in uniform." (Doc. 234-1 at 6.) After complaints from staff about sexual harassment, ADC decided in 2010 to regulate sexually explicit material entering the prison through Department Order ("DO") 914 ("2010 Policy"). (Docs. 234-1 at 6-7; 234-2 at 2.) DO 914.07-1.1 provided: (Doc. 234-2 at 14.) DO 914.07 provided a non-exhaustive list of prohibited publications, including publications that depict sexual intercourse, sadomasochistic abuse, and masturbation. (Doc. 234-2 at 14.) Since the regulations were adopted in 2010, "staff has reported that they generally feel more comfortable, especially female staff, because they are not exposed to unwanted images and text of graphic, explicit sexual content." (Doc. 234-2 at 7.)
DO 914 also set forth the procedures for receipt, screening, and delivery of publications sent to ADC inmates. ADC operates ten prison complexes, with each complex made up of anywhere between three and nine housing units. Each housing unit consists of anywhere between 200 and 2000 inmates. (Doc. 234-1 at 17.) ADC mail is delivered from the post office and processed at each of the complexes. (Doc. 234-1 at 17.) Eachcomplex receives "hundreds of magazines and publications a week." (Doc. 234-1 at 17.) At the complex level, mail is opened for contraband inspection and publication review. (Doc. 234-1 at 8.) Complex-level staff reviews the publication and checks a statewide database to see if the publication has already been excluded by another complex. (Doc. 234-1 at 8.) If complex-level staff is unclear or unsure about whether a publication should be excluded, they often consult OPR. (Doc. 234-1 at 8.)
Under the 2010 Policy, if staff decided to exclude a sexually explicit publication sent to an inmate, ADC was required to notify the inmate. (Doc. 234-2 at 15.) The inmate could then request an appeal—or "second-level review"—to be conducted by OPR. (Doc. 234-2 at 15.) OPR's decision on appeal was final. (Doc. 234-2 at 15.) Some types of material—such as those that contained nudity and sexual behaviors/acts for artistic, medical, educational, or anthropological purposes—were sent to OPR to be "approved on an individualized basis." (Doc. 234-2 at 14.) In other words, OPR made the first-level decision to allow or exclude these publications. If an inmate wished to request second-level review, he was required to appeal OPR's decision to the Division Director or Director's designee. (Doc. 234-2 at 15.)
Notably, the 2010 Policy did not provide a process to give publishers notice and an opportunity to appeal exclusion decisions. (Doc. 234-1 at 19.)
Under the 2010 Policy, four issues of Prison Legal News and the PLN-distributed book Celling were initially excluded. Prior to 2014, ADC routinely allowed the delivery of PLN publications, including over 90 different monthly issues of Prison Legal News. (Doc. 236 at 4.) In 2014, ADC excluded delivery of the following four issues of Prison Legal News: March 2014, April 2014, July 2014, and October 2014. These issues were excluded pursuant to ADC's prohibition of sexually explicit material.
The March 2014 issue was excluded because of an article titled "Ninth Circuit Holds Staff Sexual Abuse Presumed Coercive; State Bears Burden of Rebutting Presumption"; the April 2014 issue was excluded because of articles titled "Kitchen Supervisor GetsPrison Time for Sexually Abusing Two Prisoners" and "Sexual Abuse by Oregon Jail Guard Nets Probation; Defense Attorney Blames Victim"; the July 2014 issue was excluded because of an article titled "New York Jail Guard Sentenced for Sexually Abusing Seven Prisoners"; the October 2014 issue was excluded because of an article titled "Tenth Circuit Holds 'Consensual' Sex Defeats Prisoners' Eighth Amendment Claim." (Doc. 236 at 4- 6.) OPR employee Defendant Olson participated in the review and exclusion of these four issues. (Doc. 250 at 13.)
When ADC initially excluded the 2014 issues, it did not provide PLN with notice or an opportunity to appeal the exclusion decisions. (Doc. 236 at 6.) PLN eventually learned of ADC's exclusion decisions from its inmate-subscribers and contacted ADC through counsel. OPR subsequently reversed its exclusion decisions with regard to the March 2014, April 2014, and July 2014 issues. (Doc. 234 at 8.) These issues were delivered to ADC subscribers in February and March 2015. (Doc. 236 at 4-5.) In September 2015, OPR redacted two paragraphs from the October 2014 issue and delivered the redacted issues to subscribers. (Doc. 236 at 6.) The parties dispute whether all ADC subscribers ultimately received their issues, as some subscribers may have been released in the interim and ADC may not have retained all issues. (Doc. 242 at 20.)
From at least February 22, 2011, ADC has also excluded from delivery the PLN-distributed book Celling, pursuant to the DO 914.08-1.1.1 prohibition against "[d]epictions or descriptions that incite, aid, or abet riots, work stoppages, or means of resistance." (Doc. 234-2 at 15.) In May 2015, ADC excluded Celling again because it had previously been excluded. (Doc. 236 at 6.) ADC did not provide PLN with any notice of its 2011 or 2015 decisions to exclude Celling or the opportunity to appeal the exclusion decisions. (Doc. 236 at 7.) PLN was not aware of ADC's exclusion of Celling until discovery in the present litigation. (Doc. 236 at 19.)
After the present lawsuit began in 2015, PLN amended its publication review policy in March 2016 ("2016 Policy"). The 2016 Policy required that publishers be given notice and an opportunity to appeal if their publications are excluded. (Doc. 234 at 4.)
ADC continued to exclude issues of Prison Legal News under the 2016 Policy. The ...
To continue reading
Request your trial