Prison Legal News v. Stolle

• Decision Date: 31 March 2015
• Docket Number: Civil No. 2:13cv424.
• Citation: 319 F.Supp.3d 830
• Court: U.S. District Court — Eastern District of Virginia
• Parties: PRISON LEGAL NEWS, a project of the Human Rights Defense Center, Plaintiff, v. Ken STOLLE, Sheriff for Virginia Beach, Virginia, et al., Defendants.

319 F.Supp.3d 830

PRISON LEGAL NEWS, a project of the Human Rights Defense Center, Plaintiff,

v.Ken STOLLE, Sheriff for Virginia Beach, Virginia, et al., Defendants.

Civil No. 2:13cv424.

United States District Court, E.D. Virginia, Norfolk Division.

Signed March 31, 2015.

Jeffrey E. Fogel, Steven David Rosenfield, Charlottesville, VA, Lance Theodore Weber, Lake Worth, FL, for Plaintiff.

Jeff Wayne Rosen, Pender & Coward PC, Virginia Beach, VA, for Defendants.

OPINION AND ORDER

MARK S. DAVIS, District Judge.

This matter is before the Court on a second motion for partial summary judgment filed by Prison Legal News, a project of the Human Rights Defense Center, ("Plaintiff," or "PLN"), ECF No. 77, as well as a reserved issue in Plaintiff's original motion for partial summary judgment, ECF No. 35. Also pending is a previously reserved portion of a cross motion for summary judgment filed collectively by Ken Stolle, Sheriff for Virginia Beach, Virginia ("the Sheriff"), and the eight named defendant employees of the Virginia Beach Sheriff's Office (collectively with the Sheriff, "Defendants"). ECF No. 49. On December 8, 2014, this Court issued a detailed Opinion and Order resolving the majority of the parties' initial cross motions for summary judgment, but reserved ruling on the parties' dispute related to the constitutionality of the "sexually explicit materials" policy adopted by the Sheriff and implemented by Defendants at the Virginia Beach Correctional Center ("VBCC"). The Court having now received additional briefing on the reserved issue, and having conducted an on-the-record conference call with the parties on March 17, 2015, the prior motions on the sexually explicit materials policy, as well as Plaintiffs' more recently filed motion seeking summary judgment on a due process claim, are ripe for review.

I. Factual and Procedural Background

This Court previously outlined the relevant factual and procedural background in detail in its December 8, 2014 Opinion and Order, and such background is incorporated by reference herein. In short, PLN is the publisher of a monthly magazine titled "Prison Legal News, " which is marketed mainly to inmates. Over the past several years, inmates at VBCC, which is operated by Sheriff Stolle and the Virginia Beach Sheriff's Office ("VBSO"), have not been permitted to receive the monthly Prison Legal News magazine. This Court's prior Opinion upheld the constitutionality of Defendants' decision not to allow past issues of such magazine into the VBCC based on the VBSO ban on all incoming publications that contain "ordering forms" with prices. The Court reserved ruling on the alternative reason for rejection of past issues of Prison Legal News based on various non-explicit, but arguably "sexually suggestive," advertisements contained therein, with such ads displaying varying degrees of sexually suggestive photographs across different issues of Prison Legal News.

Subsequent to this Court's December 2014 Opinion, both parties filed supplemental briefs regarding the constitutionality of the VBSO sexually explicit materials policy, and the briefs address whether such legal issue is moot in light of either: (1) this Court's prior ruling on the ordering form policy; and/or (2) the VBSO's recent adoption of a new sexually explicit materials policy. Additionally, PLN requested, and was granted, leave no file a second motion seeking partial summary judgment, the second motion focusing on PLN's allegations that the VBSO's notice and review policy associated with censoring incoming publications (hereinafter "publication review policy") was unconstitutional as it failed to provide publishers with adequate notice and/or an adequate opportunity to be heard when the VBSO prohibited a certain publication from entering the VBCC. Notably, while the instant action was pending, the VBSO has twice amended its publication review policy, with both voluntary changes occurring prior to this Court's issuance of its December 8, 2014 Opinion.

Notwithstanding the fact that compensatory damages are no longer at issue in this case, and the fact that Defendants have modified, and unquestionably improved from a constitutional standpoint, both the VBSO sexually explicit materials policy and the VBSO publication review policy, as confirmed during the March 17, 2015 conference call, the parties are unable to resolve their disputes as to the now-abandoned policies. This Court therefore now proceeds to resolving the pending motions.

II. Standard of Review

The Federal Rules of Civil Procedure provide that a district court shall grant summary judgment in favor of a movant if such party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "[T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247–48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is "material" if it "might affect the outcome of the suit," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505.

If a movant has properly advanced evidence supporting entry of summary judgment, the non-moving party may not rest upon the mere allegations of the pleadings, but instead must set forth specific facts in the form of exhibits, sworn statements, or other materials that illustrate a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322–24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) ; Fed.R.Civ.P. 56(c). At that point, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In doing so, the judge must construe the facts and all "justifiable inferences" in the light most favorable to the non-moving party, and the judge may not make credibility determinations.

Id. at 255, 106 S.Ct. 2505 ; T–Mobile Northeast LLC v. City Council of City of Newport News, Va., 674 F.3d 380, 385 (4th Cir.2012).

When confronted with cross motions for summary judgment, "the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir.2003) (internal quotation marks and citation omitted). As to each separate motion, the Court must separately resolve factual disputes and competing rational inferences in favor of the non-movant. Id.

III. Discussion

A. Legal Standard Governing Restrictions on Incoming Publications at a Prison/Jail

This Court's prior Opinion in this case provided a detailed survey of the applicable law governing the constitutionality of censoring incoming publications at a prison or jail, ECF No. 65, at 7–10, and such analysis is incorporated by reference herein. In short, it is well-established in the Fourth Circuit that, notwithstanding "the First Amendment's somewhat limited reach in the prison context," publishers have a First Amendment right to communicate with inmate subscribers. Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 109 (4th Cir.1996). That said, district courts are required to give substantial deference to prison officials in all matters of institutional management, with the standard for reviewing a challenge to a prison policy requiring the Court to consider:

(1) whether there is a "valid, rational connection" between the prison regulation or action and the interest asserted by the government, or whether this interest is "so remote as to render the policy arbitrary or irrational"; (2) whether "alternative means of exercising the right ... remain open to prison inmates" ...; (3) what impact the desired accommodation would have on security staff, inmates, and the allocation of prison resources; and (4) whether there exist any "obvious, easy alternatives" to the challenged regulation or action, which may suggest that it is "not reasonable, but is [instead] an exaggerated response to prison concerns."

Lovelace v. Lee, 472 F.3d 174, 200 (4th Cir.2006) (quoting Turner v. Safley, 482 U.S. 78, 89–92, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987) ) (first omission in original) (hereinafter "the Turner test"). In applying the Turner test, it is the party challenging the prison regulation that "bears the burden of showing that the [challenged] regulations ... are not reasonably related to legitimate penological objectives, or that they are an 'exaggerated response' to such concerns." Prison Legal News v. Livingston, 683 F.3d 201, 215 (5th Cir.2012) (citing Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003) ; Turner , 482 U.S. at 87, 107 S.Ct. 2254 ). Although such burden falls squarely on PLN in this case, Defendants are required to at least articulate a rationale in support of the disputed polices such that the Court can perform a meaningful review of the challenged policy under Turner. Beard v. Banks, 548 U.S. 521, 535, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) (plurality opinion); see Van den Bosch v. Raemisch, 658 F.3d 778, 786 (7th Cir.2011) ("While the burden of persuasion is on the [plaintiff] to disprove the validity of a [prison] regulation, defendants must still articulate their legitimate governmental interest in the regulation.") (citations omitted).

B. Outstanding Summary Judgment Claims

PLN's first motion for partial summary judgment challenges the former VBSO policy banning from VBCC "sexually explicit" publications, which extended to photos and writings deemed "offensive" and materials dealing with "scantily clothed persons." ECF No. 48–4. PLN's second motion for partial summary judgment challenges the former VBSO publication review policy, arguing that it failed to provide constitutionally...