Opinion
Case No. CIV-18-110-C
09-04-2018
BOBBY JOE SMITH, II, Plaintiff, v. LAWTON CORRECTIONAL FACILITY, Grievance Reviewing Authority, et al., Defendants.
REPORT AND RECOMMENDATION
Plaintiff, Bobby Joe Smith, II, a state prisoner appearing pro se and in forma pauperis, filed a civil rights complaint [Doc. No. 1] under 42 U.S.C. § 1983. United States District Judge Robin J. Cauthron referred the matter for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B) and (C). On screening, the Court dismissed: (1) Ground Two (alleging prison officials denied Plaintiff due process in the administrative exhaustion process), with prejudice; (2) Defendants Lawton Correctional Facility (LCF) Grievance Review Authority and Department of Corrections (DOC) Administrative Review Authority, with prejudice; (3) Defendants Mary Fallin, Joe Allbaugh, and Mark Knutson in their official and individual capacities, without prejudice; (4) LCF Defendants Caldwell and Hulderman in their official capacities, with prejudice; and, (5) Defendant GEO, Corp., without prejudice. [Doc. Nos. 6, 8]. This ruling left only Ground One and Ground Three remaining against LCF Defendants Caldwell and Hulderman in their individual capacities. See id.
LCF Defendants Caldwell and Hulderman have now filed a motion to dismiss/motion for summary judgment (Motion), [Doc. No. 26], and Plaintiff has objected and himself moved for summary judgment (Objection), [Doc. No. 30]. For the reasons set forth below, it is recommended that the Court GRANT Defendants' dispositive motion and then DENY Plaintiff's motion as moot.
According to the Court's local rules, a "response to a motion may not also include a motion or a cross-motion made by the responding party." LCvR 7.1(c). Further, Plaintiff's document is a motion for summary judgment in title only; his arguments are instead exclusively directed to objecting to Defendants' dispositive motion. See Obj., passim. Nevertheless, in an abundance of caution, the Court recognizes his filing as a motion for summary judgment and rules on it accordingly. --------
I. Plaintiff's Remaining Claims
Reviewing the Complaint and incorporated attachments for context, Plaintiff alleges that LCF Defendant Hulderman confiscated three photographs from his mail on her belief that they violated prison policies prohibiting pornography. See Compl., Attach. 2, at 3. Plaintiff filed a grievance challenging the confiscation and seeking an evidentiary hearing on the matter. See id. LCF Defendant Caldwell granted "[p]artial relief," returning two of the photographs but denying access to the third photograph. Id., Attach. 2, at 2. Plaintiff appealed, but the grievance was returned as "not appealable" because partial relief had been granted. Id., Attach. 2, at 1.
Liberally construed, Plaintiff's Complaint seeks relief on two remaining grounds. First (hereinafter, Ground One), Plaintiff alleges Defendants Caldwell and Hulderman violated his procedural due process rights when they confiscated the unreturned photograph without an evidentiary hearing or other opportunity to be heard. See Compl. at 6-7. As Plaintiff clarified in his Objection, he also challenges the DOC policy preventing sexually explicit materials, alleging that it violates his First Amendment rights. See Obj. at 15. Second, (in what the Court will continue to consider Ground Three), Plaintiff alleges "unlawful tampering with [his] incoming [and] outgoing mail" by LCF "mailroom staff." Compl. at 8 & Attach. 1 (Statement of Facts) at 4.
II. Standard for Dismissal and/or Summary Judgment
A. Defendants' Motion to Dismiss
In part, Defendants seek dismissal under Fed. R. Civ. P. 12(b)(6). Defs.' Motion at 5. "To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim for relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556); see also Gee v. Pacheco, 627 F.3d 1178, 1184 (10th Cir. 2010). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal, 556 U.S. at 678.
A pro se plaintiff's complaint must be broadly construed under the Rule 12(b)(6) standard. See Erickson v. Pardus, 551 U.S. 89, 94 (2007); Haines v. Kerner, 404 U.S. 519, 520 (1972). However, the generous construction "does not relieve the plaintiff of the burden of alleging sufficient facts on which a recognized legal claim could be based." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The Court "will not supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf." Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
B. Defendants' Motion for Summary Judgment
Defendants also seek summary judgment under Fed. R. Civ. P. 56. See Defs.' Motion at 5. Under Rule 56 of the Federal Rules of Civil Procedure, a court shall grant summary judgment "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322-323 (1986). Once a moving party shows it is entitled to judgment as a matter of law, the burden shifts to the nonmoving party to point out the specific facts that create disputed factual issues. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The nonmoving party must present some evidence, other than its initial pleadings, to show that there is more than just a "metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Celotex, 477 U.S. at 324 (noting Rule 56 "requires the nonmoving party to go beyond the pleadings and by her own affidavits, or by [other evidence] designate 'specific facts showing that there is a genuine issue for trial'" (citation omitted)). Of course, in evaluating the motion for summary judgment, the Court must consider the evidence in the light most favorable to the nonmovant and will draw all reasonable inferences from those facts in favor of him. See Thomson v. Salt Lake Cnty., 584 F.3d 1304, 1312 (10th Cir. 2009).
III. Analysis
A. Plaintiff's Ground One
In Ground One, Plaintiff alleges that officials confiscated his photograph without affording procedural due process, namely an evidentiary hearing, and challenges the DOC policy prohibiting sexually explicit materials. See Compl. at 6 & Attach. 1, at 1-4; Obj. at 15. The Court should grant Defendants' motion for summary judgment on Ground One.
1. The Alleged Deprivation of Procedural Due Process
Defendants and Plaintiff agree on the material facts surrounding the confiscation of, and decision not to return, one photograph. For example, there is no dispute that: (1) Defendant Hulderman confiscated three photographs; (2) Plaintiff was notified and appealed to the LCF Warden; and (3) Defendant Caldwell reviewed the photographs, returning two and denying Plaintiff access to the other. Compare Compl. at 6 & Attach. 1, at 1-4; with Defs.' Motion at 6-7 & Ex. 2 & 4. The parties only disagree as to whether Plaintiff was legally entitled to further procedural due process.
Inmates have a liberty interest in uncensored communications protected by the First Amendment, and, when publications are rejected, the inmate must receive notice, an opportunity to be heard, and an opportunity for appeal to a prison official who was not involved in the original censorship decision. See Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004). Even construing all the evidence in a light most favorable to Plaintiff, the Court finds that he received all the due process required. That is, Plaintiff received (1) notification, (2) the opportunity to be heard through a written grievance, and (3) Defendant Caldwell - not involved in Defendant Hulderman's original censorship decision - reviewed the evidence. See supra at 5. Plaintiff was not legally entitled to more. See Jacklovich, 392 F.3d at 433; Lewis v. Clark, 663 F. App'x 697, 701-702 (10th Cir. 2016) (finding plaintiff received "an adequate postdeprivation remedy" before censorship of mail where prison notified him of the decision and granted him the opportunity to "file a grievance, which process he indeed used"). Accordingly, Plaintiff's claim that he was denied his full procedural due process rights lacks any legal merit.
2. Plaintiff's Challenge to the Underlying Prison Policy
With liberal construction, Plaintiff's Complaint also raises a challenge to the underlying DOC policy prohibiting sexually explicit materials, alleging it violates his First Amendment rights. See Compl., passim; Obj. at 14-15. Again, the Court should find that Defendants are entitled to judgment as a matter of law on this issue.
Inmates have a First Amendment right to receive information while in prison to the extent the right is not inconsistent with prisoner status or the legitimate penological objectives of the prison. See Pell v. Procunier, 417 U.S. 817, 822 (1974). To determine whether Plaintiff's First Amendment rights have been violated, the Court applies the standard set forth in Turner v. Safley, 482 U.S. 78 (1987). See Thornburgh v. Abbott, 490 U.S. 401, 413 (1989) (holding Turner analysis applies to prison regulations affecting the sending of a publication to an inmate, i.e., incoming publications). Under Turner, "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, 482 U.S. at 89; see also Al-Owhali v. Holder, 687 F.3d 1236, 1240 (10th Cir. 2012). The four factors to be considered are:
(1) whether a rational connection exists between the prison policy regulation and a legitimate governmental interest advanced as its justification; (2) whether alternative means of exercising the right are available notwithstanding the policy or regulation; (3) what effect accommodating the exercise of the right would have on guards, other prisoners, and prison resources generally; and (4) whether ready, easy-to-implement alternatives exist that would accommodate the prisoner's rights.Al-Owhali, 687 F.3d at 1240 (citation omitted).
Here, Defendants present evidence that the relevant DOC policy, OP-030117, limits a prisoner from receiving sexually explicit materials based on the "legitimate penological requirement" of "create[ing] a correctional environment conducive to the physical safety of inmates and staff and to aid in the rehabilitative process by discouraging violence or unnatural or aggressive sexual behavior." Defs.' Motion, Ex. 5 (Affidavit); Ex. 8 at 4 (DOC policy). The policy allows inmates to receive not-otherwise-prohibited correspondence. See id., Ex. 8, passim. Further, Plaintiff specifies no easy-to-implement alternatives which would not counteract the legitimate penological interest at stake. Accordingly, the Court should find that the DOC policy is reasonably related to a legitimate penological interest and does not violate Plaintiff's First Amendment rights. See Taber v. Jones, No. CIV-12-1113-D, 2013 WL 2389488, at *1, *3-4 (W.D. Okla. May 30, 2013) (unpublished district court order) (finding DOC policy OP-03117's ban on sexually explicit materials in Oklahoma prisons was rationally related to a legitimate penological interest under Turner and did not violate plaintiff's First Amendment rights); Jones v. Salt Lake County, 503 F.3d 1147, 1155-56 (10th Cir. 2007) (applying Turner to jail's policy banning sexually explicit materials and finding no First Amendment violation where: (1) jail's policy served to protect "jail personnel and other inmates;" (2) prison security and safety is a legitimate governmental objective; (3) plaintiff could access other correspondence; and (4) plaintiff provided no alternative that would fully accommodate his rights while imposing "de minimis cost to valid penological interests"); Heard v. Chavez, 669 F. App'x 788, 791-92 (10th Cir. 2017) (reviewing New Mexico's prison policy banning sexually explicit materials and holding that, under Turner, the policy did not violate inmate's constitutional rights); Sperry v. Werholtz, 413 F. App'x 31, 40-42 (10th Cir. 2011) (making the same determination upon review of Kansas prison policy).
3. Summary
Based on the undisputed facts above, Defendants are entitled to judgment as a matter of law on Plaintiff's Ground One claims that he was denied procedural due process during the confiscation of his photograph and that the DOC policy prohibiting sexually explicit materials violates his First Amendment rights.
B. Plaintiff's Ground Three
In Ground Three, Plaintiff alleges that officials have targeted him and tampered with his incoming and outgoing mail. See Compl. at 8 & Attach. 1, at 4. On screening, the Court allowed the claim to survive, finding that it generally stated a valid claim for relief. See Doc. No. 6 at 4. However, Defendants challenge Plaintiff's claim on slightly different grounds, arguing that it is vague and fails to implicate either Defendant Hulderman or Caldwell. See Defs.' Motion at 13-14. On closer inspection, the Court agrees and recommends that Ground Three be dismissed without prejudice.
As noted, Plaintiff simply alleges that "mailroom staff" targeted him and he suspects mail tampering because his daughter has reported items he has sent her have arrived "broken." Compl. at 8 & Attach. 1, at 4. But this allegation fails to allege any specific facts, and Plaintiff failed to offer any clarifying facts in his Objection, instead referring only to the confiscation of his photographs. See Obj. at 23-24. Such conclusory allegations are insufficient. See Nasious v. Robinson, 396 F. App'x 526, 529 (10th Cir. 2010) (rejecting plaintiff's "vague and conclusory allegation that the mail room staff somehow lost or tampered with his mail" where such allegations are "completely unsupported by any factual evidence"); see also Bain v. Oklahoma County, No. CIV-15-71-W, 2016 WL 2930447, at *3 (W.D. Okla. Apr. 8, 2016) (unpublished report and recommendation) (finding plaintiff's allegation that unnamed persons engaged in "mail tampering," without further factual development, failed to state a plausible claim under § 1983), adopted, 2016 WL 2851572 (W.D. Okla. May 13, 2016) (unpublished district court order).
Further, even if Plaintiff had provided specific factual details, he does not accuse either Defendant Caldwell or Defendant Hulderman of personally participating in the mail tampering. "[Section] 1983 imposes liability for a defendant's own actions - personal participation in the specific constitutional violation complained of is essential." Henry v. Storey, 658 F.3d 1235, 1241 (10th Cir. 2011). Accordingly, Plaintiff has failed to state a valid claim for relief against either Defendant on Ground Three and Defendants' motion to dismiss this claim should be granted without prejudice.
RECOMMENDATION
Based on the foregoing, the Court should grant Defendants' motion to dismiss and/or motion for summary judgment, [Doc. No. 26], and should then deny Plaintiff's motion for summary judgment, [Doc. No. 30], as moot.
NOTICE OF RIGHT TO OBJECT
The parties are advised of their right to object to this Report and Recommendation. See 28 U.S.C. § 636. Any objection must be filed with the Clerk of the District Court by September 25, 2018. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). Failure to make timely objection to this Report and Recommendation waives the right to appellate review of the factual and legal issues addressed herein. See Moore v. United States, 950 F.2d 656 (10th Cir. 1991).
STATUS OF REFERRAL
This Report and Recommendation terminates the referral by the District Judge in this matter.
ENTERED this 4th day of September, 2018.
/s/_________
BERNARD M. JONES
UNITED STATES MAGISTRATE JUDGE