Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 1 of 48 PageID# 3042

FILED

~

UNITED STATES DI STRICT COURT
EASTERN DISTRICT OF VIRGINIA
Norfolk Division

CU:ht\, u::

::;,s :-n. CT COURT

i1CiP;:'°CLK, VA

PRI SON LEGAL NEWS, a projec t of the
HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,

Civil No. 2 :13cv4 24

v.

KEN STOLLE, Sheriff for Virginia
Beach, Virginia, et . a l ,
Def endants.

OPINION AND ORDER
Thi s
partial

mat ter

is

be f ore

t he

Court

77 ,

as

well

as

motion for partial
is

a

a

reserved

issue

summary judgment,

in

Virginia
of

( "the Sheriff"),

the Virgi ni a

with the Sheriff ,
this

Court

the majority of

issue d

the

a

News,

a

for

project

o r iginal

Also pending

35 .

cross motion for summary
Sheriff fo r

Virginia

and the eight named defendant

Beach Sheriff ' s

" Defendants") .

motion

Pla i ntiff ' s

ECF No .

fi l ed collectively by Ken Stolle,

employees

2014,

s econ d

( "Plaintiff," or "PLN"), ECF

previous ly re s erved portion of a

judgme n t
Beach,

a

summary judgment filed by Prison Legal

of the Human Right s Defense Center,
No .

on

ECF No .

Off ice
49 .

(c ollec t ively

On December 8 ,

detailed Opinion and Order resolving

parties '

i nitial cross mo t ions

for s u mmary

judgment, but reserved ruling on the parties' dispute related to

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 2 of 48 PageID# 3043

the

constitutionality

of

the

"sexually

explicit

materials"

policy adopted by the Sheriff and implemented by Defendants at
the

Virginia

Beach

Correctional

Center

( "VBCC")

The

Cour t

having now rec eived add it ional briefing on the reserved issue,
and having conducted an on-the-record conference call with the
parties on March 1 7,

2015,

the prior motions on the

explicit materials policy, as well as Plaintiffs '
filed motion seeking summary judgment on a

sexually

more recently

due process claim,

are ripe for review.
I . Factual and Procedural Background

This

Court

previously

outlined

the

relevant

factual

procedural background in detail in its December 8,
and

Order,

herein .

and

such

In short,

background

is

incorporated

and

2014 Opinion
by

reference

PLN is the publisher of a monthly magazine

titled " Prison Legal News," which is marketed mainly t o inmates .
Over the pas t
by

Sheriff

several years,
Stolle

( "VBSO"), have no t
Legal

News

and

the

Virginia

Beach

which is operated
Sheriff's

Office

been permitted to receive the month l y Prison

magaz ine .

constitutionality

inmates at VBCC,

of

This

Court's

Defendants'

prior

decision

Opinion

upheld

not

allow

to

the
past

issues of s uch magazine into the VBCC based on the VBSO ban on
all

incoming

prices .

publications

that

contain

"ordering

forms"

with

The Court reserved ruling on the alternative reason for

rejection of past i ss ues of Prison Lega l
2

News

based on v a rious

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 3 of 48 PageID# 3044

non-explicit,

but a rguab ly " sexually sugges ti ve, " advertisements

contained therein,
sexually

with such ads displaying varying degrees of

suggestive

photographs

across

different

issues

of

Prison Legal News .
Subsequent
parties

to

this

filed

constitutionality

Court's

December

supplemental

briefs

of

the

VBSO

2014

sexually

Opinion,

both

regarding
explicit

the

materials

policy, and the briefs address whether such legal issue is moot
in

light

of

either :

(1) this

Court 's

prio r

ruling

on

the

ordering form policy; and/or (2) the VBSO's recent adoption of a
new

sexually

requested,

explicit

and

was

materials

granted,

leave

seeking partial summary judgment,
PLN's

allegations

associated

with

that

the

censoring

policy .
file

a

second

PLN

motion

the second motion focusing on

VBSO's
incoming

"publication review policy")

to

Additionally ,

notice

and

publications

was unconstitutional

review

policy

(hereinafter
as

it fai l ed

to provide publ ishers with adequate notice and/or an adequate
opportunity

to

be

heard

when

the

publication from entering the VBCC.
action was pending,
review policy,

VBSO

prohibited

Notably,

a

certain

while the instant

the VBSO has twice amended its publication

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
3

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 4 of 48 PageID# 3045

modified,

and

unque s tionably

improved

from

a

cons titutiona l

standpoint, both the VBSO sexually explicit materials policy and
the

VBS O publication

March

17,

2015

reso l ve thei r

review

conf erence

dispute s as

policy,
call,

as

the

confirmed

parties

during

are

the

unable

to the now-abandoned policies .

to
This

Court the refore now p roc eeds to r eso l ving t he pendi n g mot ions.
II . Standard o f Review
The

Federal

Ru l es

of

Civil

Procedure

d istrict cour t shall g rant summary judgment

provide

that

a

i n favor of a movant

if such party "shows that there is no genuine dispute as to any
material f ac t and the movant is entitled t o judgment a s a matter
o f law. "

Fed . R . Civ . P . 56(a)

"[T)he mere exis tence of some

alleged factual dispute between the parties will not defeat an
o therwise

properly

s u p ported motion

for

summary

judgment;

the

requirement is that t here be no genuine issue of ma t erial fact . "
Anderson v . Liberty Lobby Inc . , 477 U. S.

242,

247 - 48

(1986) .

A

fact is "mater i al " if it "might a ffect the o u tcome of the suit ,"
a nd

a

dispute

is

"genuine"

if

"the

evidence

is

such

that

a

reasonable jury could return a verdict for the nonmoving party."
I d . at 248 .
If a movant has properly advanced evidence supporting entry
of summary judgment,

the non-moving party may not rest upon the

mere a llega t i ons of

the pleadings ,

specific

facts

in

the

form

of

but

instead mus t

exhibits,
4

set

forth

sworn statements,

or

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 5 of 48 PageID# 3046

other

materials

that

i l lustrate

Ce l otex Corp . v . Catrett,
Civ .

P.

himself

56(c)

At

to weigh

genuine

477 U.S . 3 17,

that point,

"the

judge's

there

Anders on, 477 U. S . at 249 .

i s sue

322 - 24

the evi dence and determine

ma tt er but to d e termi ne whether
trial ."

a

is

a

for

(1986);

Fed . R .

function
the

trial.

is

not

truth of

the

ge nuine

issue

for

In do ing s o, the j ud ge must

construe the facts and all "justifiable inferences" in the light
most favorable

to the non-moving party,

and the

judge may not

Id. at 255; T-Mobile Northeast

make credibility determinations.

LLC v . City Counc il of City of Newport News,

Va . , 674 F.3d 380,

38 5 (4t h Cir . 20 12 ).
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 l aw ."
Cir.
to

200 3)
each

Rossignol v. Voorhaar,

316 F . 3d 51 6, 523

(i ntern al quot a tion marks and citation o mitted) .

sep arate

mo tion ,

the

Cou rt

must

sepa rat e ly

(4th
As

r esolve

factual disputes and competing rational inferences i n favor of
the non-movant .

Id.
III . Di sc ussion

A. Legal Standard Governing Restrictions on
Incomi ng Publi cat i o n s at a Pri son/ Jail

This Court's prior Opinion in this case provided a detailed
sur vey o f

t he applicable law governing the cons t itu t ionality of

5

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 6 of 48 PageID# 3047

censoring incoming publications at a prison or jail, ECF No . 65,
at 7-10,
In

and such analysis is incorporated by reference herein .

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 .
Beck ,

80

courts

F . 3d 105 ,

are

officials

109

required

(4 th Cir .

to

give

in all matters of

Montcalm Publ' g Corp .

1996) .

That

substantial

said ,

deference

distric t
to

institutional management,

v.

prison

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 chal l enged reg ulation or action, which may
suggest that it is " not reasonable , but is [instead]
an exaggerated respon se to prison concerns ."
Lovelace
Turner v.

v.

Safley,

original)

"bears

regulations

472

F . 3d

it is
the

174,

482 U . S . 78,

(hereinafter

Turner test,
that

Lee,

"the

200

89-92

Turner

(4th

Cir.

(1987))
test").

2006)

(quoting

(first omission in
In

applying

the

the party challenging the prison regulation
burden
are

of
not

showing
reasonably
6

that

[challenged]

the

related

to

legitimate

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 7 of 48 PageID# 3048

penological
response'

or

objectives,

that

they

are

an

'exaggerated

Prison Legal News v.

to such concerns . "

Livingston,

683 F . 3d 201,

215

(5th Cir . 2012)

(citing Overton v.

539 U. S .

132

(2003);

482 U.S.

126,

Turner,

at 87)) .

such burden falls squarely on PLN in this case,
required to at

least articulate a

disputed po lices such that

rationale

v.

521,

Raemisch,

burden

of

535

(2006)

658

F.3d

persuasion

validity

of

a

articulate

[prison]

their

regulation . ")

on

786

(7th

the

[plaintiff]

regulation,

legitimate

Cir.

the

meaningful

Beard v . Banks,

(plurality opinion);

is

Defendants are

the Court can perform a

778,

Although

in support of

review of the challenged policy under Turner.
548 U.S.

Bazzetta,

see Van den Bosch
2011)
to

defendants

governmental

("While

the

disprove

the

must

interest

still
in

the

(citations omitted) .
B. Outstanding Summary Judgment Claims

PLN's first motion for partial summary judgment challenges
the

former

VBSO policy

publications,
"offensive"
persons."

which
and
ECF

banning

extended

materials
No .

48 - 4 .

summary judgment challenges
policy,
adequate

arguing
"notice"

from

to

photos

dealing
PLN's

VBCC

"sexually explicit"
and

with
second

writings

"scantily
motion

for

deemed
clothed
partial

the former VBSO publication review

that

it

failed

to

and

an

"opportunity

provide
to

be

incoming publication was rejected by the VBSO.
7

constitutionally
heard"

after

an

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 8 of 48 PageID# 3049

Defendants '

cross

opposes

PLN's

sexually

explicit

are

entitled

former

motion

for

constitut iona l

to

policy

materials
summary

was

partial

challenge
policy,

judgment

summary

to

t he

asserting
on

such

former

t hat

issue

prope r

constitutionally

judgment
VBSO

Defendants
because

under

the

Turner.

Defendants' cross motion for summary judgment on t he former VBSO
publication review policy is no longer pending as it was denied
i n this Court ' s Decembe r 8 , 2014 Opinion and Order .
C. Analysis
1. Mootness

Thi s
whether

Court
or

pre viously

not

the

invited

dispute

over

the
the

parties
former

to

VBSO

address
sexually

explicit materials policy was "moot" due to the Court's ruling
in favor of Defendants
l ight of

t he

issue

Prison

of

fact

that

Legal

contained ordering

on the VBSO
it
News

forms.

is

"order ing

undisputed

that

was

f orm"

that

every

excluded

Addit ionally,

as

policy in

from

no ted

relevant
the

above,

VBCC
the

VBSO adopted a new sexually explicit materials pol i cy after this
Court issued its prior Opinion,
t hat

the

adoption

of

s uch

and Defendants t herefore argue

new

policy

constitutes

separate

grounds for finding this issue to be moot.
Having
filings,
rnootness ,

carefully

considered

the

the Court fi nds that Defendan ts ,
have

failed

parties'

the part ies asserting

to demonstrate either
8

supplemental

tha t

thi s

Court's

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 9 of 48 PageID# 3050

prior ruling,
materials

and

or

the

VBSO' s

publication

adoption of
review

have
of

the

primary focus

failed to demonstrate

this

litigation,

policies.

they

of

the

that,
will

policies,

sexually explicit
have

mooted

the

As to the change in policies,

disputes remaining in this case.
which is

new

parties'

subsequent

not

briefs,
to

the

re-implement

Defendants
termination

the

challenged

Notably, as recently explained by the Fourth Circuit :

It is well established that a defendant's "voluntary
cessation o f a cha l lenged practice" moots an action
only if "subsequent events made it absolutely clear
that
the
allegedly
wrongful
behavior
cou l d
not
reasonably be expected to recur."
Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S.
167, 189; see Knox v . Service Employees Int ' 1 Union,
Local 1000 ,
132 s . Ct .
2277,
2287
(2012)
("The
voluntary cessation of challenged conduct does not
ordinarily render a case moot because a dismissal for
mootness would permit a resumption of the challenged
conduct as soon as the case is dismissed . ") .
Were it
otherwise, "courts would be compelled to leave ' [t] he
defendant
free to return to his old ways.'"
City of Mesquite v . Aladdin's Castle, 455 U . S. 283 ,
289 n . 10 (1982) (quoting United States v . W. T . Grant
Co., 345 U.S. 629, 632 (1953))
" The ' heavy burden of
persua[ding]' the court that the challenged conduct
cannot reasonably be expected to start up again l ies
with the party asserting mootness."
Laidlaw, 528 U.S.
at
189 ,
(quo t ing
United
States
v.
Concentrated
Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)).
Wall v.

Wade,

741 F.3d 492,

497

(4th Cir . 2014)

(alterations in

original) .
Here,

Defendants

have

never

VBSO policies are unconstitutional,
other

Defendant,

submitted

an

acknowledged

the

nor has the Sheriff,

affidavit

9

that

stating,

even

prior
or any

without

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 10 of 48 PageID# 3051

admitt i ng

t he

unconstitutionality of

the prior policies are
therefore,

will

at

never

the

prior policies,

least constitut ionall y
be

reimplemen t ed

According l y , Defenda n ts do not poin t

suspect,

by

to any l e ga l

that

the

and

VBSO .

or prac t ical

barrier preve nting them from readopting the disputed policies,
and they have fai l ed to even offer a bald conclusory pledge not
to

re turn

to

such

See

pol i cies .

id .

(" [W] hen

a

defendant

retains the a uthority and capacity to repeat an alleged harm,
p laint i ff ' s c laims should not be dismisse d as moot . " ) .
result,

Defendants

have

clearly

failed

to

meet

a

As a

their

"heavy

burden," and this Court will proceed to consider the merits of
PLN' s

claims

as

to

both

the

former

VBSO

s exually

explicit

materials policy and former VBSO publication review pol i cy . 1
2. Former VBSO Sexually Explicit Ma t erials Policy

PLN's

i n i tial

motion

for

par t ial

supporting memoranda challenge Defendants'

summary

j udgment

and

policy banning from

VBCC "sexu al l y expl icit " photos or publications, which under the
former VBSO p olicy,

extended not only to what i s

1

trad itionally

This Court's earlier concern regarding mootnes s based on its prior
ruling centered on whether PLN 's "as applied" challenge to the
sexually expl i cit ma t erial s policy was moot in light of the fact that
this Court already concluded that the e xc lusion of the same issues of
Prison Legal News,
that
form
the basis for
this claim,
was
constitutional on other grounds.
Defendants' briefs , however , fail to
demonstrate that this Court's prior ru ling renders such issue moot.
Moreover, even if the "as applied" challenge were deemed moot, as
describe d above , in light of the Sheriff's failure to acknowledge
under o a th that he is prohibited from returning to the prior sexually
explicit materials policy on constitutional grounds,
the facial
challenge to such policy would plainly remain a live controversy .
10

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 11 of 48 PageID# 3052

considered

"pornography ,"

pictures

which

may

"material

dealing

with

persons."

ECF No.

48-4 .

to

such

policy

dispute

and

Defendants'

975

(9th Cir .

"as

963

to

deemed

an

"as

assertion

that

challenge,

the

to

(4 th

involving

the

prison

fa cial
of

chal l enge

Cir .

mail

20 1 3)

context,

person

focusing
or

on

11

how

en tity)

was

not

applies

to

3 56 F. 3d

that

the

in

a

731 F.3d

lies in the

firs t

policy

is

light

of

the

official s are afforded in this arena.

11

a

s cope

focusing on the

applied

oppose

not

between

to its impact on the plaintiff,
such

470

also

case

"difference

with the

11

see

Inc. v . Insl e y,

(descr ib ing ,

Defendants

in

does

Lamper t ,

to

PLN' s

a

and the
speci fic

motion

favor on t his

fo r mer VBSO sexually exp lici t

constitutional

test

restriction) ;

separately seek summary judgment in their
argu ing that the

a nd

(applying Turner to an inmate's

a

the constitutional inquiry ,

second

Turner

and an as-applied challenge

policy "without regard

to

c l othed

challenges ." ); Warde ll v . Duncan,

challenge

n.5

as

("The Turner analysis applies equally

20 06)

298

well

"fac ial" challenge

See Bahrampour v.

2004)

as

scantily

applied"

[or]

wr it ings

off e nsive"

Educational Media Co . at Virginia Tech,
291,

" any

displaying

(10th Ci r .

applied"

also

PLN advances both a

to fac ial and ' as applied'
F.3d 954 ,

be

or

bot h types of challenges.
969,

but

and

issue,

mat e rials policy

wide-latitude

t hat

prison

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 12 of 48 PageID# 3053

A survey of case law on the issue of prison regulations on
themed

sexually

materials

notwithstanding

a

possess

can

what

pornography,"

private
be

prison

constitutionally

plainly

citizen's

First

generally
and

restrict

Amendment

categorized

jail

right

as

and

See,

similar

e.g . ,

to

"adult

administrators

pornography

explicit" writings and photographs.

that,

demonstrates

can

"sexually

Bahrampour,

356

F . 3d at 976 (upholding as constitutional an Oregon Department of
Corrections
publications

regu lation
that

that

prohibited

contained

images

inmates

from

portraying

receiving
actual

or

simulated sexual acts or sexual contact, but that permitted nude
images); Jones v . Salt Lake County,
Cir.

2007)

(upholding as constitutional a

"sexually explicit material"
of

"sexually explicit prose or pictures of clothed women/men") .

As

prison

and

that included a ban on photographs
to

federal

"breasts

county jai l 's ban on

extend

to

exposed

503 F . 3d 1147, 1155 - 56 (10th

genitals"

facilities,

the

but

Federal

did

not

Bureau

of

Prisons

( "BOP") applies a statue passed by Congress in 1996 known as the
"Ensign

Amendment,

11

which

precludes

federal

prisons

from

distribut ing or making available to prisoners "any commercially
published i n formation or material that is sexually explicit or
features nudity."
Ensign Amendment,

28 U.S.C.

§

530C(b) (6).

"In response to the

the BOP promulgated an implementing regulation

that narrows the scope of the statute by defining key statutory
12

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 13 of 48 PageID# 3054

terms," and interprets t he Ensign Amendment as applying only to
pictorial representations. 2
17

(10th

Cir.

regulation

20 11)

defines

Jordan v . Sosa, 654 F . 3d 101 2 , 1016-

(citing

"nudity

28

as

11

C . F.R.

"a

pictorial

genitalia or female breasts are exposed,
explicit"
sexual

as

"a

acts

mas t urbation .

pictorial

including
28

11

depiction

sexual

C. F . R.

regulation defines "features,

11

Such

depiction

where

and defines "sexually

of

actual

intercourse ,
540 . 72(b).

§

540.72).

§

or

simulated
sex,

or

Additionally,

the

oral

as used in the Ensign Amendment,

11

to mean that the "publication contains depictions of nudity or
sexual l y

explicit

promotes

itself

individual

based

one-time

"[p)ublications
educational,
Reno,

156

conduct

issues,

a

F.3d

192,

202

and

11

(D .C.

The

"Incoming

requirements,

content.

noting

scoring
force

Publications
that

a

2

in
an

11

Id . ;

11

1998)

warden

on

"Program

must

case

of
for

see Arna tel v.
"that

[Turner v . )

further

or

medical,

of

(finding

adequately
BOP

the

basis

exception

illustrative

Cir .

in

regular

includes

and regulation satisfy

currently

or

depictions

nudity

reasonableness,

factors") .

routine

such

or anthropological

for

governing

upon

containing

[Ensign Amendment)
demand

on

the

Safley' s
all

four

Statement

11

discusses

BOP

consider

each

Although the implementing regulation limits the Ensign Amendment to
pictures that are sexually explicit or contain nudity, a separate BOP
regulation can be invoked to exclude a sexually explicit writing that
"by its nature or content poses a threat to the security, good order,
or discipline of the institution, or facilitates criminal activity . "
28 C . F .R. § 540 . 7l(b) (7); see Jordan, 654 F.3d at 1017 .
13

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 14 of 48 PageID# 3055

publication on an issue-by-issue basis
and

provides

examples

allowed,

such as :

nudity;

a nd

( 2)

(1)

publ i cations

5266 . 11,

is

are

9,

general l y

issues"

they contain nudity.

Nov .

rejected,

even if it contains

swimsuit

Illustrated

unless

it

t ha t

National Geographic,

"Sports

"Lingerie catalog s ,"
Statement

of

before

2011,

and

BOP Program

availab l e

at

http://www.bop.gov/policy/progstat/52 66_011.pdf . 3
Although

not

Department of
more

lenien t

applicable

Corrections
standard

expressly prohibit

to

the

VBCC,

( "Virg inia DOC")

than

the

"nudity,"

federa l

but

the

appears

BOP,

as

Virginia

to apply a
it

does

not

instead excludes publications

that "emphasize[] explicit or graphic depictions or descriptions
of

sexual

acts . "

Incoming Publi cations
at

Virginia
§

DOC

Operating

IV . G, effective Jan . 1,

Procedure
2015,

803 . 2:

available

https : //vadoc . v irginia . gov/about/procedures/documents/800/

8 03 -2 . pdf . 4

The Virginia DOC rule is followed by a "Note" that

3

The federal BOP program statement was not expressly r elied on by the
parties to this case.
However, it was cited within prior federal
op inions on this is sue , and wa s conside red by this Court in the
context of fully understanding the reasoning of such prior opin i ons .
4

The Court not es that , on March 17 , 2O15 , the Governor of Virginia
s igne d HB 19 58 which relates to the powers and duties o f the "Board of
Directors" o f the Virginia DOC as well as the "Director" of the DOC .
Such newly enacted law provides that the DOC Board of Directors and
the DOC Direc tor have the power a nd duty to adopt , promulgate, and
enforce "regulations prohibiting the possession of obs cene materials,
as defined and described in Article 5 (§ 18 . 2-372 et . seq . ) of Chapter
8 of Ti tle 18 . 2 , by prisoners incarcerated in state correctional
facil i ties."
Va. Acts of Assembly-2015 Session, Chapter 293 , H 1958
(approved March 17, 2015) , available at https : // lis.virginia.gov/cgi14

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 15 of 48 PageID# 3056

clarifies :

"This

criterion

shall

not

be

used

to

exclude

publications that describe sexual acts in the context of a story
or mora l

teaching unless

primary purpose of
recognized

as

the description of

the publication .

having

a rt istic

or

737

F.

Supp .

2d

unconstitutional

561 ,

und e r

(W.D .

Turner

a

the

value

should

be

Id.; cf . Couch v . Jabe,

II

567

is

No publicat i on generally
literary

excluded under this criterion .

such acts

Va.

(rejecting

20 10)

prior

versi on

of

as

Virginia

Operating Procedure 803 . 2 as it excluded all publications that
included any "descriptions of sexual acts," e xp laining that "it
is unlikely that a cogent argumen t could be advanced which would
explain how a

regul a tion which forbids

but permits Hugh Hefner ' s Playboy,

J ames Joyce' s

Ulysses,

has a rational re l at i onship"

to maintaining the "securi t y , discipline,

and good order in the

facility") .
The Court has considere d the parties'
of

federa l

c a ses

a pp l ying

approaches taken by federal,

the

Turner

s ta te ,

briefs and an array

test

to

the

various

and local pri son and jail

bin/legp604 . exe? 15 1 +ful+CHAP0293+pdf.
As the con templated regulations
have not yet been adopted , it is impossible to pre dic t the future
Virginia DOC st a ndard f or regulati n g
i ncoming publications that
contain material that is sexual in nature .
That said, the newly
enacted law ' s cross-reference to § 1 8 . 2-372 , which defines o bs cenity,
arguably suggests that any such regu l ation will not ban images that
display n on - sex ac t nudity, as the Virgi ni a Sup reme Court has longrecognized t hat t.he Virginia statute defining obscenity " limits the
class of works which might be found obscene to portraya ls of sexual
activi ty or excretion , not including mere nudity , which go b eyond the
customary l i mits of candor in representing such matters . /1
Price v.
Commonwea l th, 214 Va. 4 90 , 493 (1 97 4) (emphasis added) .
15

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 16 of 48 PageID# 3057

facilities
images

to regulate

(to

include

sexually explicit materials and/or nude

broad

definitions

of

"nudity").

carefully considering the case- specific facts
presented to this Court,

After

in the record as

the Court finds that,

even taking the

evidence in a light most favorable to Defendants, as is required
when

analyzing

PLN' s

summary

judgment

motion,

the

challenged

former policy lacks a rational connection to a valid penological
goal because it was so broad as written, and as applied to PLN,
that it allowed for the exclusion of publications based on an
amorphous

standard

Although Defendants
for

banning

that

the

"valid,

to

VBSO

policy

images,
was

connection"

rational
cannot

valid

prison

concerns.

surely assert valid penological objectives

sexually explicit

former

regulation

untethered

be

so

to

sustained

the

record demonstrates

broad

such

where

that

it

objectives,

the

logical

lacked

a

and

"a

connection

between the regulation and the asserted goal is so remote as to
render the policy arbitrary or irrational."

Turner,

482 U. S .

Although a discussion of all four Turner factors follows

89-90.
below,

the Court provides

the most in depth discussion of the

first factor, as relevant case law and common sense both suggest
that

"the first

inquiry

may

in

factor
some

remaining factors."

looms especially large,"
circumstances

"tend[]

to

and that such
encompass

the

Amatel, 156 F.3d at 196; see Van den Bosch

v. Raemisch, 658 F.3d 778,

785 n.6 (7th Cir. 2011)
16

(noting that,

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 17 of 48 PageID# 3058

"though

each

of

the

reasonab l eness of a
a threshold")

factors

is

relevant

in

assessing

the

the first factor serves as

regulation

(internal quotation marks and citations omitted) .
a . Rational Conne c ti o n

This Court begins its analysis under Turner by reiterating
that

it affords substantial deference

exceedingly

difficult

arena

of

to administrators

managing

a

jail

Lovelace, 472 F . 3d at 199 ; see United States v.
83,

86

(4th Cir .

1991)

(explaining

that

a

or

Stotts,

in the
prison.

925 F.2d

heightened scrutiny

standard would result in unworkable intertwinernent of the courts
in difficult institutional judgments,
approach for a

and therefore,

the proper

reviewing court is "one of caution").

Moreover,

the Court reiterates that the burden is "not on

[Defendants]

prove the validity of prison regulations but on the
to

disprove

Court

is

it."

Overton,

mindful of

the

539

not

toothless."

at

1 32.

Supreme Court's

Turner reasonableness standard,
"is

U . S.

to

[Plaintiff]

That

"confidence"

said,

the

that

the

while not particularly onerous,

Thornburgh

v.

Abbott,

490

U. S .

401,

414

(1989).
The first step of the Turner analysis requires the Court to
consider
"valid,
explicit

whether,
rational

based

on

the

connection"

materials

policy

record

between

and

a

before

the

valid

it,

former

there

VBSO

penological

is

a

sexually
goal,

or

whether the goal is "so remote as to render the policy arbitrary
17

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 18 of 48 PageID# 3059

or irrational .''
pictures

or

censorship

Turner,

text,
based

the
on

482 U. S.
broad

the

at 89-90 .

VBSO

content

former

being

Whe n a pplied to

policy

deemed

a l l owed

"offensive"

because it mere ly dealt with "scantily c lothed persons."
standard

was

not

tied

photograph or writing,

in

any

way

to

the

context

the

former

viewpo int - based

or
Such

of

the

nor was ic wr it ten in a manner that tied

censorship to institutional security concerns .
of

for

standard

appears

censorship

of

on

its

photos

The first part

face
or

to

allow

writings

as

for
a

publication coul d be rejected merely because a jail official was
personally

displeased

wi t h

t he

content

picture" and thus deemed it "offe nsive . "

of

5

"a ny

writi ng

or

Cf . Abbo tt, 490 U. S.

at 404 - 05, 419 (upho l ding the facial validity of t he fe de ral BOP
res t riction prohibiting pub l ications deemed

t he

inst itu tion, "

expressly noting that such res trictions prohi b it

the rejection

securi t y ,

good

order ,

or

discipline

of

" detrimental to the

of a pu b l ication " solely because its content
or repugnant" )
standard,

(emphasis added) .

broadly

banning

any

5

i s unpopular

The second pa rt of the VBSO
"material

deali ng

with

or

There is no evidence in this case that such standard was ac tually
applied in a manner intended to suppress any specific viewpoint, and
the Court does not intimate in any way that Defendant s targeted any
person, entity, or group .
Moreover, the record indicates that such
standard was not authored by the current Sheriff , but was inst ead
adopted from the rule in place from the prior admini s tration .
That
said,
the face of the policy does not withst a nd constitutional
scrutiny.
18

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 19 of 48 PageID# 3060

displaying

scantily

differen ti ate between a
nude model

clothed

graphic

persons,"

photograph of

in an overtly sexual

a

position and a

family in bathing suits at the beach,

or a

subject

in a

forme r VBSO policy:

non-sexual

nude

a

but "scantily

Accordingly,

context .

the

(1) can be (and has been) applied at VBCC to
in non-graphic detail,

or scantily clothed person; 6 and

(2) can be

a naked

(and apparently has

applied to ban any image of a person in a bathing suit

regardless of the context. 7
(indicati ng
prohibition
inc lude
law ,"

or near

picture of

ban written text "dealing with,"

been)

not

reproduction of a

centuries old oil painting depicting a non-nude,
clothed,"

did

that
on

" [a]ny
is

the

all

Cf . Couch , 737 F. Supp. 2d at 567 - 71

"expansive

expl i cit

sexual

over broad

acts
even

descriptions
in

violation

under

reasonableness standard because
material,

reach"

the

of

a

of

sexual

of

Virginia

state

acts,

DOC
to

or

federal

undemanding

Turner

it reaches a wealth of written

including literary works of art , that could not "have

any ef feet on the security,

discipline,

and good order of the

6

After the instant l awsuit was filed, c ertain advertisements in later
issues of Prison Legal News that discussed photographs of nude models
or near - nude models were identified as prohibited under the former
VBSO sexually explicit ma terial s po l icy even though they contained no
pictures . See ECF Nos. 43-2 , at 2, 42 - 1, at 27.
7

The record indicates that magazines including any images of "scantily
clad women" were not permitted to enter the VBCC under the former
policy .
See ECF No . 36-6 at 5 ( indicating that issues of ESPN
Magazine and Sports Illustrated Maga zine were banned for having
"scantily clad women," which included images "even in a bathing
suit") .
19

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 20 of 48 PageID# 3061

prison");
(W.D.

Aie l lo

Wis.

motion,

v.

2000)

Litscher,
(denying

recognizing

connection

between

that
a

104

the

F.

2d

defendants'

although

prison

Supp.

ban

there
on

is

1079-82

summary

judgment

surely a

rational

explicit

advancing legitimate penological goals,

1068 ,

pornography

and

the defendants had not

demonstrated a valid rational connection between such goals and
the broadly sweeping

regulation at

issue,

specifically noting

that the record "reveals no debate among scholars or experts on
the

effect

literature,

on

rehabilitation

of

discussed

Defendants'
issue ,

the

works

of

art

and

[such as nude images from the Sistine Chapel]

and common sense suggests none")
As

great

in

qualified
Cou rt

faith efforts

h as

this

(emphasis added).

Court ' s

immunity
no

as

reason

prior
to

Opinion

money

addressing

damages

on

to question Defendants'

this
good-

to seek to bar sexually explicit materials from

VBCC .

Howev er,

t he

former

VBSO

policy,

banned:

(1) issues of Prison Legal News based on images of women

in mini-skir t s or tight clothing ; and (2)

as

appl ied

to

PLN,

issues of Prison Legal

News based on text-only ads that included no photos of any kind .

See ECF Nos . 41-2,

42-1 , 43-2,

48-18,

48-19

(demonstrati ng that

certain issues of Prison Legal News were rejected by Defendants
on the basis of the inclusion of "sexually suggesti ve ads" based

20

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 21 of 48 PageID# 3062

on images of women i n short skirts or tight fitting clothing) ; 8
ECF

Nos .

issues
part,

43 -2,

of

at

Prison

2,

42 -1,

Legal

27

(demonstrat ing

were

News

rejected

by

that

certain

Defendants,

in

for containing "sexuall y suggestive ads " when t he ads were

text-only and described
and

at

"beauties posing

catalogs/pictures

just fo r

you,"

of

available

"gorgeous
for

lad ies"

purchase

in

eit her "nude" or "BOP friendly" non-nude formats wi thout further
describ ing the actual images in any degree of detail .
This Court,
relevant
federal

fede ra l
court

in agreeme nt wit h PLN 's characterization of the
law

on

upholding

this
the

issue ,

unaware

constitutionality of

restriction on "scantily clothed"
i n a bath ing s u it ,

is

regardless o f

individuals,
context.

9

of

any

such

a

other
broad

to include those

Moreove r,

even with

It appears tha t one or two of the thumbnail i mage s in certain
advertisements in issues of Pri son Legal News in l ate 2013 and early
2014 arguably could be described as not just short ski rts, but as
"lingerie . " See , e . g ., ECF No . 42-1 , at 9 , 25 .
However , such images
meas u re only approximately ~ inch tall by ~ inch wide .
The si ze and
difficultly in making out what such images even depi ct f urther
suggests t hat barring Prison Legal News on the basis of such thumbnail
images was an "exaggerated response ."
Cf . Smith v . Roy , No . 10 - 2193,
2012 WL 1004 985 , at * 10 (D . Minn . Jan . 2 5, 2012) (noting that only
publications that
"feature " nudity were banned by t he relevant
regulation, and that such determination "is based in part on the ratio
of nude images to the total number of pages of t he publication [and]
the manner in which the nude images are displayed ( includ ing size) " ) .
9

One of the broadest restrictions on publications of which this Court
is aware that h as been upheld as constitutional is a Kansas DOC
a dministrative regulation that precludes inmates from possessing
material if : (1) "the purpose of the mat erial is sexual arousal or
gratification"; and (2)
t he material contains either display or
simulation of sex acts or "[c ]ontains nudity" which is defined as " the
depiction or disp lay of any state of undress in which the human
genitals, pubic region , buttock, or female breast at a point below the
21

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 22 of 48 PageID# 3063

the s ubs tan tial defere n c e

owed

dist r i c t

suppor t

cour t

Defenda n t s '
it

opinion s

to prison authori t ies,
t hi s

Cou rt ' s

multiple

fi nding

that

former policy fails to pass cons t itutional mus t er as

permitted censorship based on

images or writings

involving

top of the aerola [sic] is less than completely and opaquely covered."
Kan. Admin . Regs . 44-12-313 .
In Strope v . Collins, 492 F . Supp . 2d
1289 (D . Kan . 2007) the district court denied cross mot i ons for
summary judgment filed on an undeveloped record, noting that " in the
absence of any meaningful argument from the parties under the four
Turner factors, a genuine issue of material fact exists p r ecluding
summary judgment in favor o f either party about whether the regulation
is rea s onably related to l e gitimate penological interests . "
Id . at
12 96 .
The Court further explained that denial of the cross motions
was particularly appropriate because "there appears to be no precedent
upholding the constitutionality of a regulation that contains as broad
of a prohibition as the KDOC regulation in the manner in which it is
being a pplied in this case, " which involved "the censorship of entire
publica t ions because they contain what app ears to be a few photographs
of wome n's partially b a re but tocks ."
Id .
Later in that same case,
the Court granted summary judgment in favor of the defendants after
the record was further developed and the Court received an affidavit
from
the
"Secretary"
of
the
Kansas
Department
of
Corrections
specifically outlining the penological
concerns associated with
"materials containing depictions of bare buttocks."
Strope v.
Collins, No . 06-3150-JWL, 2008 WL 24 3 5560, at *2-3 (D . Kan . June 12,
2008) .
In reaching this conclusion, the dist.rict. court acknowledged
that the material at issue in that case "included images of women
wearing various types of underwear (thong-style, high cut, etc.) in
such a wa y as to reveal their partial l y bare buttocks" which "would
more accurately be characterized as sexy, revealing images rather than
pure pornography, in the more t.raditional sense of that word" but
nevertheless concluded that, in line with the regulation, "the only
plausible purpose for the censored images is sexual pleasure . "
Id . at
*6; s ee also Elfand v . County of Sonoma, No . C-11-0863, 2013 WL
1007292 , a t *2 (N . D. Cal . Mar . 13, 2013) (banning images that have
"the purpose of arousing sexual stimulation in its intended audience"
if prison authorities have a "reasonable belief" that the banned
images would jeopardize " safety, security , rehabilitation or other
legit i mat e Facility interests " ) ; Smith, 2012 WL 1004 985 , at *7 , * 10
(uphol d i ng the constitutionality of a correctional facility policy
banning publications that feature "nudity," to include woman in
swimsuits or lingerie that are "see - through" or otherwise di s play "a
substantial portion of the [female] breast below the nipple," but
noting as part of the Turner analysis that prisoners "can receive a
publica t ion that contains a nude photograph because publications are
only p r o hibited if they ' f eature' nudity," and that "photographs that
show only cleavage or buttocks are not prohibited") .
22

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 23 of 48 PageID# 3064

"scantily clothed" persons regardless of any sexual connotac.ion
and making no exception for materials widely accepted as having
educational

and/or artistic

based censorship

stemming

image or

was

writing

County of Ventura,
10

No. 14 -0773,

concede

court

analysis

and

warranted

to

deliver

2014)

that

"sexually suggestive"
district

from

it

permitted viewpoint

censor's
See

decision

that

an

Prison Legal

News

v.

2014 WL 2736103 , at *9 n.6,

preclude

past

such
that

the

practice

prior
a

of

county

jail

of

sexually

from

barring

from

to

its

own

injunction

was

"refus[ing]

Plaintiff

'suggestive'

all

but that the

practices

preliminary

publications

publishers on account

*9-

(indicating that not only did the

images was unconstitutional,

conc luded

of

the

their

subjected

copies

and

"offensive ."

(C . D. Cal. June 16,

defendants

value,

to

or

other

content

unless

the publication contains actual nudity or graphic depictions of
sexual acts"); Boyd v. Stalder,
at

*6

(W . D.

La.

Dec.
as

to

27,
a

No.

2006)

summary

judgment

banning

"all publications that

03-1249-P,
(denying

prison's

2006 WL 3813711,

cross

motions

then - abandoned

featured women in

policy

for
of

'sexy poses'

even if they were full y clothed," noting t hat Defendants "devote
scant a tt ention to this aspect of Pl aintiff's claims,
cite no authority that would authorize such a broad

and they
. ban in

the general population of a prison") ; 10 Abbott, 490 U.S. at 40410

In Boyd,

after a

jury trial

re s ul ted in a hung jury ,
23

the district

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 24 of 48 PageID# 3065

05 ,

419

(upholding

the

facial

validity

of

the

federal

BOP's

image restriction expressly tied to "security" and "good order"
of the prison,

expressly noting that such res tric tions prohibit

the rejection of a publication "solely because its content
is unpopu lar or repugnant"); Aiel l o,
(denying

the

defendants'

summary

104 F . Supp . 2d at 1079-82
judgment

motion

in

a

involving a prison's broadly sweeping censorship policy ,
that while there is

"no doubt

case
noting

that defendants could craft and

implement a regulation" c e nsoring sexual ly explicit photographs,
the regulation in question "in effect sweeps

so broadly as

to

capture muc h pictorial and writ t en material for which there is
no

rational

rehabilitation) .

connection"

to

prison

security

or

Notably, here, Defendants have not arti cul ated

any basis for treating a picture of a woman or man in a bathing
suit, or a p icture of a woman in a mini - skirt , or grea t works of
art

portraying

a

subject

paragraph describing a

with minimal

clothing,

"scantily clothed"

or a

individual ,

written
the same

court denied a renewed motion for summary judgment seeking qualified
immunity, explaining that the warden's testimony failed to establish a
"valid rational connection" between the ban on "all genera l population
inmates receiving .
publications with non-obscene matters such as
pictures of women in bikinis or miniskirts . "
Boyd v . Stalder , No. 031249 - P , 200 8 WL 2977363 , at *3 (W . D. La . Aug . 1 , 2008) .
While thi s
Court specifically does not adopt the qualified immunity analysis set
forth therein, such opinion evidences the lack of authority upholding
as constitutional broad bans on publications because they contain
pictures of women in " short skir ts " or " tight pants . " Id . at *5 .
24

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 25 of 48 PageID# 3066

as a publication f ea tur ing traditional
contrary,

essentially

Defendants

just ification for

"pornography . " 11

rest

t he i r

To the

penol o gica l

the former VBSO policy on t h e assertion that

11

There is an inherent difficul ty in a ttempting to portray the
contours and t enor of the images at issue in this case through words
alone .
See F . C . C . v. CBS Corp., 132 S . Ct . 2677, 267 8 (20 12 )
(Robe rt s, C . J . , concurri ng in the denial of certiorar i) ( "As every
schoolchild knows, a picture is worth a thousand words
. ") .
That said, borrowing f rom what is likely f amil iar te r minology to any
reader , the court characterizes the images included in the late 2013
and early 2014 issues of Prison Legal News as "thumbnail" images best
descri bed as con si s tent with a "PG" rating, whereas the chal l enged
policy (and limited explanation f o r such pol icy) appears to have
treated such ima ge s no differently than a full page "R" rat ed image .
Two s uch advert isements are reproduced below in a format that
approximates the size/format in which they appeared in multiple issues
of Prison Legal News. See , e . g ., ECF No . 42-1, at 9 , 25 .

m

PE-N'IA.L~.r~

/

~~
l.

~~--·- ~--

_...

...

J..-"

I

a ..... ~~<;:;_:-::-;.~:-:::~. ......

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Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 26 of 48 PageID# 3067

it should be
clothed

"obvious"

person

must

why any visual depiction of a

be

banned.

However,

in

light

scantily
of

the

widespread existence of far more lenient policies in all federal
and Virginia DOC facilities
Virginia,
photos ,

which
the

either allow nude

penologica l

prohibiting photos of

(3d Cir.

2002)

or

"near-nude"

justification

i ndividuals

anyth ing but obviou s . 12
09

located within the Commonwealth of

"even

non-sex a ct

for

the

VBSO

policy

in a

bathing suit"

is

See Wolf v. Ashcroft, 297 F . 3d 305, 308-

("Whether the

requisite

connection

[between

the policy and the penological goal] may be f o und solely on the
basis of 'common sense'
the

nature

of

the

will depend on the nature of the right,

interest

asserted,

12

the

nature

of

the

When the Sherriff was a s ked in his deposition why sexually explicit
materials were not allowed in the VBCC under the former policy, his
response revealed that, in his opinion, it was obvious that allowing
what he considered to be sexually explicit materia l s would be a bad
idea, and that it would increase rapes and fights, and "ev e rything
sexually related."
ECF No . 36 - 3, at 15.
Ho we ve r , the Sheri ff ' s
testimony , whi c h appears to re l y p ri marily on common sense , offers no
targeted explana tion as to the claimed justification for banning a
wr itten
publication
based
on
the
inclusion
of
one
or
more
advertisements with images, reg ardless of their size or context, of
individuals in a bathing suit, tight shirt , or mini-skirt .
In other
words, the connection between the vaso' s valid concern about s exually
explicit materials entering the facility, and ban on publi cations with
images (particularly thumbnail images) of persons in bathing suits,
tight clothing or mini-skirts, was not articulated by Defendants .
Moreover, no explanation was offered for the policy's broad ban on
photos or writings deemed "offensive."
Although the burden to
demonstrate t hat the challenged policy is unconstitutional falls
squarely
on
PLN,
Defendants
must
at
least
articulate
their
justification for the broad policy in order for the Court to
effectively apply the Turner test and determine whe ther PLN has
carried its burden .
Absent some articulation, the Court wi ll not
merel y assume t hat a s uffi cient connection exists to warrant such a
b road policy
because
"common
sense"
does
not
s uggest
such
a
connection.
26

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 27 of 48 PageID# 3068

prohi biti on ,

and

t he

proffered intere st .

obviousness

of

its

connection

to

t he

The showing required will vary depending on

how close t he c ourt percei ves the connectio n t o be . " ) ; Aiello,
104 F . Su pp . 2d at 108 0 (indicating that neither record eviden ce
nor c ommon s ense s u ggests that legitimate p rison objec tives are
advanced by banning

"great works of

art a nd

l iterature " ) ;

see

also Cox v . Denning, No. 12-2571-DJW, 2014 WL 4843951, at *17-18
(D . Kan . 2014)

(grant i ng,

in part,

t he plaintiff ' s cross motion

for summary judgment chal lenging a
mail

policies,

finding

that

the

detention cent er ' s
defendants

had

incoming

" f a il[ed]

to

present a credible explanation" linking the policy to the stated
goal of avoiding the introduction of contraband into the jail,
further explaining that "[m)erely accepting Defendants' argument
of

a

rational

relationship without

any evidence or a

l ogical

explanation of why the [challenged] policy advances a particular
legitimate

penological

toothless,

which

the

interest
Supreme

(citing Abbott , 490 U.S . at 414)

the

would

Court

has

render

the

cautioned

standard
against . "

(emphasis added)) .

For all t he reasons discussed above,

the Court finds that

firs t

PLN

Turner

factor

strongly

favors

as

to

both

its

"facial " challenge and "as applied" challenge to the former VBSO
sexually
failed

to

explicit

mater i als

articu l ate

a

policy,

rational

as:

(1)

connection

Defendants

b etween

former policy a nd a valid penological goal ; and (2)
27

the

have
broad

there is no

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 28 of 48 PageID# 3069

obvious rational connec t ion between the broad fo rmer policy and
valid

penological

goals

such

as

institutional

safety

and

security.
b. Al ternative Means

The

second

Turner

f a ctor

requires

the

Court

to

consider

whe t he r there are alternative methods for PLN, and VBCC inmates,
to exercise their First Amendment r ights.
200.

The

constitut ional right at

issue

Lov e l ace,
in this

472 F .3d at

case ,

defined

expansively, 13 appears to include PLN' s ability a s a publi sher to
communicate with inmates at VBCC ,
right

to

receive

wr it ten

materials

publishers .

As discussed below,

favor

PLN or De f endants,

either

and t he inmates'

this

from

PLN

intertwined
and

other

factor can be argued to

but appears

to slightly favor

Defendants.
In

PLN ' s

favor,

t he

fo rmer

VBCC

policy

was

so

broad

as

written that it would appear to prohibit every magazine with a
single advertisement for Hanes underwear,
that included a woman,

man,

(such as a beach scene),

or o ther advertisement

or child in less than full clothing

which in an era where s ome form of "sex

symbol" i s us ed to adve rt ise an ever growing number of p roducts,
13

The Supreme Court has cautioned against a narrow interpretation of
"the right" in question , finding that it must be "viewed sensibly and
expans ively ."
Abbott, 490 U. S. at 417.
Accordingly, prison mail
restrictions that limit certain publications from entering the prison,
yet sti ll "pe rmit a broad range of publications to be sent, rec eived,
and read" favor the cons ti tut ionali ty of the challenged restriction .
Id . at 418 .
28

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 29 of 48 PageID# 3070

such

rul e ,

cover a

if

f a ithfull y

substantial
States,

United

dissenting)
symbols

sell"

liquor,

place ,

an

appear

t h igh s , ankles,

clothing,

buyer's
autos,

in De f endants'

the

record

490

to

See Ginzburg v.
(Douglas,

(1966)

"advertising

technique

U.S.

and

even

favor,

suggests

at

calves ,

at tent ion

J.

as

I

"sex

old

as

that

This

418.

to

(and)

bos o ms

lotions,

insurance

.

tires,

to
food,

policies")

In

even while such policies were in

range of publications to be sent ,
Abbott ,

482

463,

would

"[t) he advertisements of our best magazines

potential

contrast ,

U . S.

is

and that

the

written,

percentage of magazines.

383

are chock-full o f
draw

as

(recognizing nearly fifty years ago that u sin g

to

history,"

applied

the

VBSO

permitted

received,

and read"

element

therefore

"a

broad

at VBCC .

appears

to

slightly favor Defendants .
c. Impact of the Desired Accommodation

The third Turner factor requires the Court to consider the
likely impact on VBSO

staff,

inmates,

and prison resou rces

the challenged regulation is struck down .
200 .

Here,

in

light

update and improve

of

the

Sheriff 's

Lovelace,
voluntary

if

472 F . 3d at
decision

to

the VBSO sexually explicit materials policy

in advan ce of a Court ruling on this issue clearly demonstrates
that th i s

factor favors

restriction

of

PLN .

pornography

The new policy stil l
and

other

materials

permits the
that

truly

qualify as "sexually explicit," but it is far more targeted and
29

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 30 of 48 PageID# 3071

i n cludes

e x c eptions

anthropological
No .

76-2 ,

at

or

for

"pat ently

educational

21.

Plainly ,

medical,

commercial
Defendants

a r tistic,

publications."
do

not

policy , which was adopted without compulsion ,

view

ECF

the

new

to co nstitut e too

great of a d rain on jail resources or too great of a risk to
institutional security .

Moreover,

11

the desired accommodation"

s o ught by PLN i s not to f orce a new policy on Defendants, but to
preclude them from returning to the prior overb road policy .
there is no e vidence suggesting that

As

precluding Defendants from

returning t o an abandon ed policy would have any nega t ive i mpact
on jail resources,

the third element of the Turner test strongly

f avors PLN .
d . Obvious Alternatives
The
whether

fou r th Turner
there

are

any

factor

requ ires

"'obvious,

cha llenged r e g u lation or action ,
' not

reasonable,

but

prison concerns. ' "
482 U. S at
the

Court

90)

First

all,

Amendme nt

whether

penological interests . "

at

a

an

consider

tha t

exaggerated

the

it

is

response

to

(quoting Turner,

r e gulation,

accommodate
minim[i)s

to

St at ed d i f f e r ently,

an alternative

de

to

alternatives'

472 F.3d at 200

"would fully

rights

Court

which may s ug gest

[instead]

Lovelace,

easy

(alterat ion in o r i g i na l ) .

considers

regulation at

is

the

the

cost

or

no

[Plaintiff's]
to

legitimate

Woods v. Commissioner of the Ind . Dept.

of Corrections , 652 F . 3d 745, 750 (7th Cir. 2011).
30

For the same

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 31 of 48 PageID# 3072

reasons

discussed

factor,

immediately

Defendants'

above

voluntary

in

adoption

ana l yz i ng
of

the
new

a

third
policy

demonstrates that this factor strongly favors PLN . 14
For all the reasons analyzed herein, most notably, three of
the four Turner factors
PLN,
the

the Court
VBSO ' s

GRANTS

former

(including the first)

strongly favoring

PLN's motion for summary judgment as to

policy

on

sexually

expl i cit

materials

DENIES Defendants '

cross motion for summa ry j ud g men t.

having

determined

previously

t hat

qua li f i ed immunity on such issue ,

Def e nd ant s

a re

the only r el i e f

and

However,

e nt itled

to

ava ilable to

PLN comes in t he form of a declarat i on that the f o r me r pol icy ' s
overbreadth

r u ns

afoul

injunction precl uding
policy . 15

The

Court

of

the

Const itution,

Defendants
finds

from

that

an

as

well

as

reinstating

such

former

injunction

an

precluding

14

As stated on the March 17, 2015 conference call in this case, the
Court commends the Sheriff for voluntarily changing the VBSO sexua lly
explicit materials policy and adopting a new policy that appears t o
fall in the heartland of jail/ prison policies that have been upheld by
federa l courts in the face of constitutional challenges .
Such acti o n
speaks volumes to the Sheriff's desire to manage important penologica l
concerns but at the same time respect the guarantees of the United
States Cons ti tut ion .
Al though the Sheriff's decision to adopt such
modified policy impacts the Turner analysis, it should be noted that
even if such action had not been taken, the apparently widespread
existence of policies at jails and prisons across the Commonwealth and
the country that are far less broad than the VBSO' s former policy
supports a finding that "obvious alternatives" existed to the former
policy .
15

Although not briefed by the parties , the we l l-established standard
for in j unctive relief requires that a plaintiff demonstrate :
(1) that it has suffered an irreparable injury ; (2) that
remedies available at law , such as monetary d a mages, are
inadequate
to
compensate
for
that
injury ;
( 3)
that,
31

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 32 of 48 PageID# 3073

Defendants from returning to a specific prior policy that is no
longer

in

f orc e

and

has

been

found

to

be

unconstitutional

comports with the requirement set forth in 18 U. S . C.
that

prospective

"narrowly drawn,

relief

associated

extends

no

with

further

the violation of the Federal right,

prison

§

3626 (a)

conditions

be

than necessary to correct
and is the least intrusive

means necessary to correct the violation of the Federal right.n
3. Forme r VBSO Public at ion Review Policies

Currently pending before the Court is PLN ' s recently-filed
motion

for

summary

review policy .

judgment

on

the

former

VBSO

publication

This Court previously denied Defendants'

summary

judgment mo t ion on this same issue , explaining as follows :
In Montca l m Publ' g , the Fourth Circuit expressly held
that a
magazine
publisher
"has
a
constitutional
interest in communicating with its inmate-subscribers"
and is t h erefore entitled to some degree of process
when a publication is censored.
Montcalm Publ' g, 80
F.3d at 109; see also Jack l ovich v. Simmons, 392 F . 3d
420 , 433 (10th Cir. 2004) (agreeing with the holding
in Montcalm Publ'g) .
Although the Fourth Circuit did
not express l y define the precise con tours of the
process necessary to satisfy the Constitution,
it
considering the balance of hardships between the plaintiff
and defendant, a remedy in equity is warranted ; and ( 4)
that the public interest would not be disserved by a
permanent injunction .
Legend Night Club v . Miller,
637 F.3d 291,
297 (4th Cir . 2011)
(quoting eBay Inc. v. MercExchange , L .L.C., 547 U . S . 388 , 391 (2006)) .
The Court has cons idered all of such factors and finds that PLN has
carried
its
burden
to
demonstrate
that
injunctive
relief
is
a pp ropriate in this case, as is demonstrated in part by the fact that
the 11 1 loss of Fi rst Amendment freedoms, for even min i mal periods of
time , unquestionably constitutes irreparable injury.'n Id . at 302
(quoting
Elrod v.
Burns,
427
U.S.
347,
373
(1976)
(plu rality
opinion)) .
32

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 33 of 48 PageID# 3074

"h[e]ld t hat publishers are entitled to notice and an
opportunity to be heard when their publications are
disapproved for receipt by inmate subscribers," and
appeared to discuss with favor a procedure that would
provide publishers a written rejection notice and an
opportunity to respond in writing.
Id . at 106, 109.
Here, it appears undisputed that Defendants first
notified PLN of a rejection of an issue of Prison
Legal News in April of 2012, and did not thereafter
notify PLN of subsequent rejections of any PLN
publications
until
late 2013,
after
the
instant
lawsuit was filed.
Moreover, the record demonstrates
that during a period of time in late 2013 when PLN was
receiving
notice
from
Defendants
of
censorship
decisions and seeking a rev iew of such decisions, the
"review procedure" merel y invol ved a VBSO employee
reviewing whether the rejection form was properly
filled out; it did not involve a review of the
rejected publication to determine whether it actually
violated VBSO rules.
ECF No . 52-2, at 2 - 5; see Jordan
v . Sosa, 577 F . Supp . 2d 1162, 1172-73 (D. Colo . 2008)
(concluding
that
a
BOP
program
statement
was
unconstitutional
"to
the
extent
it
permits
the
institution to return the [rejected] publication
to
the
publisher
prior
to
completion
of
the
administrative review") (emphasis added)
During the time period relevant to this case, the VBSO
has twice amended its policy associated with providing
notice and an opportunity to be heard, the first
amendment
appearing
to
ensure
that
"notice"
is
properly provided, and the second appearing to ensure
that a publisher be given the opportunity to be heard
as part of a meaningful review procedure.
Accordi ngly , because the current record, when viewed
in PLN' s favor, could plainly support a finding that
Defendants failed to provide PLN with constitutionally
adequate
notice ,
a
constitutionally
adequate
opportunity to be heard, or both, Defen dants ' s ummary
judgment motion is DENIED as to this issue.
ECF No. 65, at 29-32 (footnote omitted).

33

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 34 of 48 PageID# 3075

Subsequent
motion

for

to

this

summary

Court's

judgment on

decision
this

denying

issue,

the

Defendants'

Court

granted

PLN's motion for leave to file a second motion seeking partial
summary
time,

judgment,

and

allowing

PLN

to

assert,

that PLN is entitled to judgment as a
See ECF No. 74

this issue.
considered

the

summary judgment,

parties '

for

matter of

(granting ECF No . 72) .

briefs

on

PLN's

the

first
law on

Having fully

second

motion

for

the Court finds that PLN has demonstrated that

the prior VBSO policies infringed on PLN's due process rights as
to both "notice" and an "opportunity to be heard."
As to "notice," it is undisputed that Defendants first sent
PLN

a

"Mail

Restriction

Form"

rejecting

a

single

single issue of Prison Legal News in April of 2012.
1.

Defendants

do

not

dispute

the

fact

that

copy

of

a

ECF No . 81they

did

not

thereafter send another notice of rejection to PLN until October
of 2013,

although all

the monthly issues of Prison Lega l

were being censored during this time . 16

16

News

The April 19, 2012 form,

The Sheriff admits, without providing dates,
that one of his
rnailroorn employees, at least for a time, was failing to foll ow VBSO
policy as he was de livering copies of Prison Legal News to inmates .
Stolle Aff . ~ 8, ECF No . 48-3 .
l\s suggested in this Court's prior
Opinion, i f such deliveries were occurring between April 201 2 and
October of 2013, such fact undercuts Defendants' assertion that PLN
was "on notice" that its magazine was being consistently censored .
However, even assuming that no " outside of policy" deliveries were
made between April 20 12 and October of 2013, it is undisputed that
Def endant s'
individualized censorship decisions during this
time
period were not communicated by Defendants to PLN , as the Sheriff
acknowledges that, rather than returning a "sei zed" mail i tern to the
sender with a notice of rej ec tion, on some occasions prior to the
34

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 35 of 48 PageID# 3076

which

contains

some

rejected by the VBSO

prices"

and

that

is

difficult

to

read,

a single copy of an issue of Prison Legal News 17

indicates tha t
was

handwriting

"sexually

for

containing

explicit

"ordering forms

materials,"

and

with

that

the

publication was "Returned to Sender . "

Id .

Such form indicates

on

the

rejected

the

bottom

that

the

sender

of

mail

can

"challenge the seizure of the mailed contraband" and provides a
phone number of the "Property Division" which can be called by
the sender to challenge the seizure.

Id.

The "Reason/Comments"

section of such form was left entirely blank, and the form does
not otherwise

identify

the objectionable material,

providing a description or page number .

such as

by

Id.

Although Defendants assert that summary judgment in PLN' s
favor is not appropriate because there are disputed facts as to
whether constitutionally adequate
between May of 2012
notice)

and

rejection

was provided to PLN

(immediately after the April 2012 rejection

October

notices

"notice"

to

of
PLN

(when

2013
each

Defendants

month),

began

Defendants

sending

present

no

filing of this lawsuit, "the pink copy of the Mail Restri ction Form,
designated to the sender, was placed with the seized item in the
inmate s property box awaiting return to the inmate upon release,
rather than being sent to the sender."
Id. ~ 21.
The failure to
notify PLN upon non - delivery is further documented in an email
r eceived by PLN from Defendants in August of 20 12 , which is discussed
in greater detail below .
ECF No. 81 -2 .
1

17

Although unclear from the face of the difficult to read form, it is
undisputed that the Apri l 2012 "Mail Restriction Form" rejected an
issue of Prison Legal News.
ECF Nos . 81 , 81-1 .
35

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 36 of 48 PageID# 3077

evidence indicating that they notified PLN in May, June, or July
of 2012 that the VBSO was continuing to censor issues of Prison
Legal

To

News.

the

contrary,

indicates that on August 17,
in

this

case

informed

the

evidence

be f ore

the

Court

2012 , one of the Defendants named

PLN via email

that

the

practice

being

followed by the VBSO was to seize issues of Prison Legal News
and

keep

them

in

the

inmates'

"property

box"

for

an

indeterminate amount of time until that inmate was released from
ECF No . 81- 2 .

VBCC.

In light of the fact that it is undisputed

that Defendants were not sending "Mail Restriction Forms" to PLN
during this

time period,

the email corroborates the fact

that

Defendants were taking no steps between May and August of 2012
to notify PLN either of Defendants' decision to deny delivery to
inmate subscribers, but retain in VBCC,
and

July

2012

Defendants'

issues

of

Prison

individualized

the May 2012, June 2012,

Legal

decisions

News

to

or

censor

the

basis

such

for

issues.

Additionally, because the April 2012 "Mail Restriction Form" did
not

include

any

page

numbers

or

other

descriptions

that

specifically identified the allegedly offending material in the
banned issue, such form did not provide PLN adequate notice that
future

issues of

its monthly publication would also be barred

from the VBCC.
Viewing the facts in Defendants'
resolving

PLN' s

summary

judgment
36

favor for the purposes of
motion,

it

appears

that

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 37 of 48 PageID# 3078

communicat ions bet ween Defendants and PLN in mi d - August of 2012
retroact i v e ly pu t
Legal

that month ly i ssues of

had bee n barred from VBCC the las t

News

However ,

PLN on notice

even

commun ications

assuming,
were

withou t

sufficient

d e ciding ,

to

put

several
t ha t

months .

t he

PLN on no tice

VBSO wou l d continue to ban future iss ue s of Pri s on L ega l
they contained s imilar content,

Prison

August

tha t

the

News if

there is st ill no evidence that

PLN was a t

t ha t

t ime informed of its r ight to participate in a

review

t he

pas t

v i ewi ng

of
the

facts

t ha t

De f e ndants ,

t he

requirements

p ub lishe r,

censorship

in

Defendants'

at leas t
of

adequa t e

decis i o ns.

for a

Montcalm

fav o r ,

PLN has

short time ,
Pu b l'g

Therefore,

by

even

demonstrated

fa i l ed to sa t isfy
providing

PLN,

a

notice that i ts monthl y maga z ine was being

banned d ur ing the summer of 2012 and a deq ua t e notice of how PLN
could challe nge s uc h censorship .
order,

the

fac t

that

PLN

may

18

As noted i n t h i s Court's prior
have

sus pected, 18

or

may

have

PLN admits t hat " starting in approximately Ap ril 2012 " it began
receivi n g s ome items ma il ed to VBCC inmates " r eturned to it through
the Un i t e d States Pos t a l Servi ce ' s ' Return to Sender' p rocess ."
ECF
Even a ssuming that one or more of t he May , J une , or July
No . 38 ~ 15 .
2012 issues we re returned to PLN through such posta l process , it is
undisputed t ha t Defendants were holding other copies of PLN ' s magazine
in inmate ' s proper ty boxes during that time period without giving
notice to PLN that such magazines were not being delivered .
ECF No .
81-2; see ECF No . 48-14 .
Accordingly, buttressed by the fact that
VBCC is a city jail with a transitory popu l ation, an item marked
"Return to Sender" received subsequent: to a
single notice that
Defendants censore d a single copy of a single edition of Prison Legal
News is insufficient to put PLN on notice ei t h e r that Defendants made
a jail-wide deci s ion to stop delivering all is sues of Prison Legal
News or to inform PLN how it could challenge such decision .
On this
37

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 38 of 48 PageID# 3079

actually been aware ,

that such issues were being rejected based

on communications from inmates to PLN appears largely irrelevant
because "while

[an]

inmate is free to not ify the publisher

censorship]

and

ask

authorities'

decision,

for
the

must not depend on that ." 19

help

in

challenging

publisher's

First

the

[of

prison

Amendment

right

Montcalm Publ'g, 80 F .3d at 109.

point, the inst ant facts are readily distinguishable from the facts of
Van Den Bosch v . Raemisch, No . 09cv62-bbc, 2009 WL 4663134, at *3
(W . D. Wis . Dec . 1, 2009), cited by Defendants , as in that case, no due
process violat ion was found when the publisher received from the
defendants 35 notices of non - d elivery out of the approxima tely 250
c opies of a s ing l e edition of a newsletter that was sent to prisoners
in Wisconsin state prisons .
Not only did Van Den Bosch involve more
than thirty notice s of t:he rejection of the exact same publication,
but "[m) any of the notices stated explicitly that the decision was a
'DOC WIDE DENIAL .'"
Id . at *4.
In contras t, here, PLN sen t different
monthly issues to VBCC inmates between April and Augus t of 2012 and
received from t he VBSO only a singl e rejection notice with respect to
a sing le copy of a single issu e , such notice failing to indicate that
other identical copies of the same issue had been censored, and
failing to indicate that future issues would als o be censored .
19

It appears that, at various times in April of 2012 and thereafter,
some VBCC inmates not only wrote letters to PLN about rejected PLN
mail , but attached copies of the "Mail Restriction Form" the VBSO
provided to that inmate .
ECF No. 48-14 .
As noted a bove, cont rolling
pre cedent indicates that such secondary communications from inma tes
cannot satisfy Defendants' duty to notify a publisher of a censorship
decision . Moreover, the copies of the notices before the Court do not
clearly indicate what t:ype of publication was rejected , and even
assuming that those rejection forms that reference "sexually explicit
materia ls " refer to issues of Prison Legal News, such fo rms do not
indicate which monthly issue was rejected.
Id.
Although VBCC inmates
suppli ed PLN with copies of VBSO rejection forms c lear ly dated in
April and May of 2012 that refe rence "sexually explicit materials,"
the two forms legibly dated in June of 2012 do not reference a
rej ection based on sexually explicit materials, and thus, may refer to
PLN publications other than Prison Legal News .
Id .
Moreover, there
are no forms legibl y dated July or August of 2012 .
Accordingly, the
se condary presentati on of such forms by inmates does not alter the
conc lu sions reached by the Court herein .
38

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 39 of 48 PageID# 3080

To better illustrate the above finding,

the Court turns to

a case relied on by Defendants for the proposition that "notice
is

not

required each and

every

201,

224-25

(5th

a

censorship decision

Prison Legal News v . Livingston,

made by jail authorities.
F.3d

time

Cir .

2012) .

In

Livingston,

the

11

is
683

Fifth

Circuit concluded that when a prior decision to exclude a static
publication
case,

not

has
a

been

finalized

(a

monthly magazine),

a

book
prison

provide a

second "review

and thus,

the sender has neither a right

be

heard on future

was

entitled

decision of
subsequent

has

issue

no

obligation

as

to

that

to

exact same

to

"notice"

of

a

subsequent

process,

the

Fifth

Circuit

the

censorship
right

Due process perta ins to the right to participate in
government decision making.
The "notice" required by
due process is notice of when, where, and how one can
be
heard
before
a
decision
becomes
final .
See
Londoner v . Denver, 210 U . S . 373, 385 (1908) ("[D]ue
process of law requires that
[a party] shall
have an opportunity to be heard, of which he must have
notice .
.
The right to receive notice exists
only
to
effectuate
the
right
to
be
heard,
and
therefore is inapplicable where a party has no right
to participate in the decision-making process.
11

)

•

(emphasis added) .

39

to a

explained

follows :

Id . at 224

that

to not ice or a right to

the static publication even absent
review

in

In rejecting the plaintiff ' s argument that it

I d.

least

at

process of the identical publication,

censorship decisions

publication .
at

11

was

as

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 40 of 48 PageID# 3081

The facts of
from

the ins tant case are clearly distinguishable

Livi ngston

discrete

because

issue s

of

a

this

case

monthl y

involves

non -static

censorship

of

publ ication ,

and

Defendan ts have failed to cite any case suggesting that PLN was
not

enti tled

denial.

to

Moreover ,

suggesting

that

where,

"when ,

notice

a nd

there

how"

individualized decisions

right

to

be

heard

as

to

each

is no evidence in the instant rec ord

Defendant s
and

a

ever
they

provided
could

rej ec ting

PLN

be

PLN' s

with

heard

May

2012,

notice

as

to

June

of
the

2012,

and July 2012 monthly magazines before such censorship decisions
became final . 20

Accordingly,

Id .

the Court finds that disputed

fac ts need no t be resolved in order to determ ine that,
for a short time ,

at least

Defendants fa iled t o provide adequate noti ce

to PLN that its monthly magazine was being censo red .
As
before

to an "opportunity to be heard,"
the

Court

suggesting

opportunity to challenge
2012,

or July 2012,

issues of

2006)

PLN

was

ever

provided

the censorship of its May 2012,

Lega l News v . Cheshire , No.
(D . Utah June 30,

that

there is no e vidence

Prison Legal News .

1 :04cvl73,

an

June

Cf .

Prison

2 006 WL 1868307,

at *10

(finding that even though a let ter sent

20

It appears to be unclear from the record whether the "Mail
Restr iction Form" dated April 19 , 2012 was assoc iated wit h the April
2012 issue or May 20 12 issue of Prison Legal News.
However, even
assum ing that the referenced issue was t he May 2012 issue , there is no
evidence that Defendants informed PLN that the June and July issues
had been rejected prior to the August discussion, which may have
retroactively made such announcement,
but did not provide any
suggestion that such prior decisions were still subject to appeal .
40

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 41 of 48 PageID# 3082

from the defendants to PLN in January of 2005 was arguably "not
sent contemporaneously"

with the jail's prior rejection of the

October,

December

News,

November,

and

2004

such letter "provided [PLN]

issues

Prison

of

Legal

with an opportunity to appeal

the prior rej ection s" and thus, PLN "re ceived all the process it
was required to re ceive in this context")
those months,

PLN has demonstrated both

Accordingly,
inadequate

as to

notice and

the associated failure to provide an opportunity to be heard.
Moreover,

even

if

the

evidence demonstrated that

PLN did

rec eive adequate notice and an adequate opportunity to be heard
(which it never invoked)
timeframe,

the

Defendants

provided

as to the May 2012 through August 2012

record clearly demonstrates
a

deficient

review

that

in late

2013,

process

that

wholly

undercut any meaningfulness of the review of a prior censorship
decision,

effec t ively
in

Specifically,

denying

October

of

PLN

the

2013 ,

right

aft er

to

PLN

be

heard .

filed

suit,

Defendants began providing PLN with notice each month indicating
that the monthly issue of Prison Legal News had been barred from
the VBCC.
forth

on

censorship

PLN then began utilizing
the

notice

decision,

issue was upheld .
a

period of

censored

time,

Prison

form,
the

and each
decision

However,

time

PLN was

prohibit

set

heard on

the

a

challenged

it is undisputed that , at least for

the VBSO was

Legal

to

the review procedure

News

not

retaining a

publication .
41

copy of

Accordingly,

the
the

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 42 of 48 PageID# 3083

undisputed
was

not

facts

a

demonstrate

review

to

see

violated VBSO policies,

that
if

the

the

VBSO

censored

procedure

content

actually

but was instead merely a review to make

sure that the VBSO "Mail Restriction Form"
Stated differently,

out.

"review"

was properly filled

the entire review process consisted of

a second set of eyes reviewing a copy of the "Mail Restriction
Form"

to see if the person who had completed such form claimed

that there was a basis for censorship .

It is readily apparent

that

PLN

such

review

procedure

deprived

(awarding declaratory and injunctive relie f
based

Statement"

on

the

finding

that

was unconstitutional

to

the

administrative review")

meaningful

the

"to the

in the plaintiff's

disputed
extent

institution to return the publication rejected
nudity]

a

See Jordan, 577 F . Supp. 2d at 1172-73

opportunity to be heard.

favor

of

publisher

prior

to

BOP

"Program

it permits

the

[for containing

completion

of

the

(emphasis added) .

Similar to the VBSO' s

sexually explicit materials policy,

the apparent infirmities with the VBSO publication review policy
that came to light during the pendency of this case were swiftly
rectified by the

Sheriff,

and he

should be

commended for

his

actions of twice amending the VBSO notice and review procedure.
The
that

first
VBSO

modification appears
employees

were

to have been aimed at ensuring

consistently

providing

notice

to

publishers of rejected publications, and the second modification
42

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 43 of 48 PageID# 3084

appears to have been aimed at ensuring that censored materials
are

retained

for

a

sufficient

meaningful review process. 21

period

That said,

of

violated

the

Constitution,

controlling standard articulated by the

to

permit

a

the question currently

before this Court is whether the Defendants '
practices

time

prior policies and

and

based

on

the

Fou rth Circuit holding

that publishers are entitled to both "notice and an opportunity
to be heard when their publications are disapproved for receipt
by inmate subscribers,

/1

illustrated

the

best

by

Montcalm Publ' g,
well-reasoned

80 F. 3d at 106, and as
and

squarely

opinion from the Colorado District Court in Jordan,

on-point

577 F . Supp.

2d at 1172-73 , this Court finds that PLN has demonstrated that a
due process violation occurred when PLN was denied a meaningful
opportunity to be heard for a period of several months beginning
in October of 2013.

21

According to the Sheriff's affidavit, the first amendment occurred
in September of 2013 and involved the revision of an internal
directive to ensure that the "pink copy of the [VBSO] Mail ~estriction
Form wou ld be sent to the sender " of the censored publication .
ECF
No. 48-3 ~ 22 .
Subsequently , in April of 2014 , a "VBSO Policy and
Procedure General Order" was modifi e d in orde r to clar ify that "seized
mail items are to be retained for 3 0 days to allow for their review in
the event of a challenge to the seizure .
Id . ~ 25; see id. ~ 24
(setting forth the language of the current policy which provides : (1)
notice to both the sender and the inmate;
( 2) the reason for the
seizure will be offered ; (3) a 30 day appeal period will follow during
which both
(t] he inmate and sender are allowed the opportunity to
challenge the seizure"; (4) the review of a seizure will be provided
by an individual that did not make the initial decision and who has
authority to overturn such decision; and (5) that after the review
period,
the seized item will be stored,
returned to sender, or
destroyed) .
/1

11

43

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 44 of 48 PageID# 3085

Although the Sheriff has l o ng-since implemented a corrected
policy

that

on

its

face

opportunity to be heard,
requested

by

PLN on

light of Defendants'
of

their

prior

the

conduct

this

issue

failure

remains

of

reasonably

a

notice

and

an

injunctive relief

live

controversy

in

to acknowledge that either version

See

suspect.

"heavy burden"
cannot

adequate

the declaratory and

policy/practices

constitutionally
that

provides

was

unconstitutional,

Wall,

741

F . 3d at

demonstrating

be

expected

with the party asserting mootness,"

that

to

and that

497

"the

star t

or

up

even

(noting

challenged
again

"when a

lies

defendant

retains the authority and capacity to repeat an alleged harm,
plaintiff's claims should not
citations omitted) .

be dismissed as

moot")

a

(internal

Because the Sheriff retains the ability to

change the VBSO policy on this issue at any time , and he has not
submitted an affidavit
to

either

of

the

recognizing

former

any

impediment

policies/practices,

the

GRANTS PLN's second motion for summary judgment.
the

Court

grants

PLN' s

request

for

a

to

judgment

returning

Court

hereby

In so ruling,
declaring

that

PLN 's due process r igh ts were violated during a period of months
in

the

period

middle of
of

2012,

months

likewise

grants

Sheriff

is

beginning

PLN's

hereby

policies/practices

and violated in a
in

request
ENJOINED

that

failed

October
for
from
to

44

of

different way for
2013 .

injunctive
returning
provide

The

relief,
to

publishers

Court

and

the

a

the

prior

adequate

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 45 of 48 PageID# 3086

notice or an opportunity to be heard "when the i r

publ ica tions

[were] disapproved for receip t by inmate subscribers . "
80

Publ' g,
§

3626(a),

F.3d

106 . 2 2

at

requiring

that

civil action associated
intrusive
Federal

me ans
right,"

including

language

Complaint

as

doing

Court

similar
so

compliance

prospective

with

relief

to

correct

dec l ines
to

that

appears

more

the
to

18

ordered

with prison conditions

necessary
this

In

Montcalm

be

an

requested

in

intrusive

in

"the

violation

issue

U. S . C.

of

any
least
the

inj un ction
the

than

Amended

necessary

because it would improperly interfer e with the Sh eriff ' s a bil ity
to maintain appropriate pol icies and procedures at VBCC . 23
IV. Mone t a ry Damage s
A. Initial Summary Judgment Mot ion

Monetary

damages

are

not

available

to

PLN

as

to

the

sexually explicit materials policy based on this Court's prior
rul ing t hat De fendants were qualifiedly immune f or money damages
22

As in the previ ous section of this Opinion analy zing the former VBSO
sexua lly explicit materials policy, the Court finds that PLN has
carried its burden to demonstrate that an injunc tion is proper under
the four-part test articul ated by the Supreme Court in eBay, 547 U.S.
at 391 .
23

The Amended Complaint requests an injunction requiring that
rejection notices specifically ident if y both the page numbers of
objectionable material as well as the penological just ification
claimed to be threatened by such material.
ECF No . 17.
PLN , however,
failed to demonstrat e that when it did receive notice of censorship
decisions from Defendants , such notice lacked sufficient particularity
to allow for a meaningful right to be heard as to that speci fic
rejection decision.
Absent such showing , a broader injunction is not
appropriate.
Moreover, it is notable that Defendants at some point
began specifically identifying the objectionable material, clearly a
better practice regardless of whether it is constitut iona lly required .
45

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 46 of 48 PageID# 3087

ECF No . 65, at 33-42.

on this issue .

Accordingly, there are no

outstanding issu es as to damages with resp ect to s uc h mo t i on.
B. PLN's Second Sununary Judgment Motion

As

to

entitled

PLN' s

to

due

"nominal

p rocess

claim ,

damagesu

and

PLN

asser t s

"punitive

that

damages"

it
in

is
the

event that summary judgment is granted in PLN's f a vor as to its
ECF No .

second motion for part i al summary judgment .
It appears from Defendants'

n.l .

at 3

83,

post conference call informal

status u pdate to t he Cou rt that Defendants ' pos ition is t ha t PLN
is entitled to no more than one dollar in nominal damages,
is

no t

entitled

to

punitive

damages

based

on

the

abs ence

and
of

evidentiary support .
As
agreement

the
on

pa rties
damages

have
in

requested
the

event

the
that

oppor tun ity
summary

this issue .

( 1 4)

a ddi tiona l

reach

judgment

granted in favor of PLN on its due process claim,
are hereby affor ded fourt een

to

was

the parties

days to confer on

If the parties have not reached an agreement by the

end of t h e fourteen

(14)

day period ,

they shal l ,

separat ely or

collectively, fi l e a "Status Updateu on the record.

v. Conclus ion
For the reasons set forth in detail above,
motion for summary judgment is

GRANT ED

as to the reserved issue

regarding the constitutionality of Defendants '
sexually explicit materials.

ECF No. 35 .
46

PLN' s original

former policy on

Such former policy is

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 47 of 48 PageID# 3088

declared

unconstitutional

Turner analysis
other

named

as

discussed

Defendants

is

in detail

are

reverting to such policy .

it

hereby

overbroad pursuant
herein .

to

the

The Sheriff and

permanently

ENJ OINED

from

Defendants' cross mot ion for summary

judgment on this issue is DENIED.

ECF No. 49 .

PLN's second motion for summary judgment is GRANTED, and it
is

hereby declared

policies

were

that

Defendants'

unconstitutional

as

former
they

publication review
failed

to

provide

adequate notice and an opportunity to be heard as to decisions
made by the VBSO to censor a uniqu e monthly publication sent to
inmate subscribers.

ECF No . 77.

Such ruling is based both on

the finding that PLN demonstrated that it was denied due process
during a period of mon t h s in the mi ddle of 2012 , and vio l a t ed in
a different way for a period of months beginning in October of
2013.

The

relief ,

Court

a nd

likewise grants

PLN' s

request

for

injunctive

the Sheriff and other named Defendants are hereby

permanently ENJOINED from r everting to the prior policies that
failed to provide publishers adequate notice and an opportunity
to

be

h eard

receipt by

"when

inmate

their

pu blicat ions

subscribers.

/1

[we ] r e

disapproved

Montcalm Publ 'g,

80

for

F . 3d at

106.
As

indic a t ed above ,

at

are hereby afforded f ourteen

the parties'
( 14)

request ,

add i ti onal days

the parties
to confer on

the issue of monetary damages, and the Court strongly encourages
47

Case 2:13-cv-00424-MSD-TEM Document 84 Filed 03/31/15 Page 48 of 48 PageID# 3089

t he

part i e s

to

mee t

in person

reaching an a greement .

if

they

are

having

Should the parties desi re t o schedule a

continuation of settlement discussions with a
of

this Court ,

Magistrate Judge

t h ey should not hesi tate to c on tact t he deputy

clerk

responsib l e

J udge

tha t

for

p reviously

scheduling
handled

matters

settlement

with

the

Magistrate

di s cussions

in

this

If the parties h ave not re a c h ed an agre e ment by t h e end

c ase .
of

di f f iculty

the

fourteen

collectively ,

file

(14)

a

day

p er iod ,

"Status

they

Update"

on

shal l,
the

separate l y

record

or

i n c l uding

comments on whether a continuance of the se tt l e ment conf erence
has been scheduled and,

if not, whether PLN wi s hes to proceed to

a jury trial o n the issu e of nomina l and/or punitive damage s .
The Clerk i s REQUESTED t o send a copy o f

thi s Opinio n and

Order to al l counsel of record.
IT IS SO ORDERED.

/s/~

Ma rk S . Davis
United Stat es Distric t Judge
Norfolk , Vi r g i nia
March ~ , 201 5

48