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UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF
WEST VIRGINIA
ROGER E. CLINE,
Plaintiff,
v.
WILLIAM M. FOX, Warden,
and JAMES RUBENSTEIN,
Commissioner,
Defendants.
CIVIL ACTION NO. 1:00CV175
March 19, 2003, Decided
March 19, 2003, Entered
ORDER
This matter
comes before the Court on the parties' cross motions for summary judgment. The
motions have been fully briefed, oral argument was heard by the Court, and the
matters raised are ripe for review. For the reasons that follow, the Court
GRANTS the defendants' motion for summary judgment, and DISMISSES IN PART and
DENIES IN PART the plaintiff's motion for summary judgment.
BACKGROUND
Plaintiff
Roger Cline (Cline) is an inmate with the West Virginia Division of Corrections
(DOC). Originally incarcerated in 1993, Cline has served time at DOC facilities
located throughout West Virginia, including Moundsville, Huttonsville, Mount
Olive, and Northern Regional Jail. From December 1998 until the present, Cline
has been incarcerated at the St. Mary's Correctional Center (St. Mary's).
During his incarceration,
Cline became an avid reader of the "Paper Wings" line of books, an
adult-fiction serial published by Komar Publishing. Every two to three months,
Cline received subscription installments of six Paper Wings books through the
mail office at the institution where he was incarcerated. During his time at
St. Mary's alone, Mr. Cline received five subscription packages.
Despite
this regular infusion of new reading material, Cline was not able to build a
private library because DOC property restrictions limit the number of personal
items an inmate may possess at one time. Thus, each time a new Paper Wings package arrived,
Cline had to ship the old package home to his mother.
This all ended on March 17,
2000, when prison officials intercepted Cline's latest Paper Wings package and
held it in the mail room. Cline was told that he could not receive the package
because the sender's name did not appear on St. Mary's "Approved Vendors
List."
The Approved Vendors List is
an official list of catalogs, publishing companies, magazines, and other
sources of written material that an inmate may receive through the mail. Each
DOC facility generates its own Approved Vendors List. In the judgment of prison
officials, these vendors will only provide items permitted to inmates by prison
rules and regulations ("Policy Directives"). n1 Once approved
internally by the warden, the Approved Vendor's List is sent to the DOC
Commissioner for final approval. Each DOC facility keeps a copy of its Approved
Vendors List in its mail room, and all incoming mail is checked against it. If
the sender's name does not appear on the Approved Vendors List, the item is
held in the mail office and the addressee inmate is notified of the delivery.
The inmate may then make arrangements to return the item, destroy it, or have
it forwarded to a third party.
If an
inmate wishes to receive mail from an unlisted vendor, he may petition the
Warden to amend to Approved Vendors List to include the new vendor. The inmate
must first fill out a form and submit it to his Unit Manager, along with an
example of the items sought to be added to the list. The Unit Manager then
forwards the request to the Warden, who often consults with deputy wardens to
determine [*492] whether the inclusion of the new vendor will violate any DOC
Policy Directives. The Warden's decision on amendments to the Approved Vendors
List is final.
When he was denied his books,
Cline petitioned Warden Fox to amend the St. Mary's Approved Vendors List to
include Komar Publishing. Warden Fox referred the petition to Deputy Warden
Tony LeMasters for a recommendation. LeMasters reviewed the examples provided
with the petition and found a conflict with DOC Policy Directive 503.00, which
states in pertinent part:
Publications which pose a direct, clear and immediate danger to
security, or which are obscene by depicting explicit sexual activity may be
prohibited. (Policy Directive 503.00 (V)(N)).
Obscene Material: Periodicals, magazines, books, pamphlets,
photographs, paintings, photocopies, sculpture or other graphic representation
which are obscene because they depict explicit sexual activity. Explicit sexual
activity is defined as sexual
intercourse, anal intercourse, fellatio, cunnilingus, bestiality,
bondage/Sadism and Masochism or material of an explicit sexual nature involving
minors. (Policy Directive 503.00(III)).
Because DOC Policy Directive
503.00 prohibits inmates from receiving or possessing "obscene
material," Deputy Warden LeMasters recommended that Cline's petition be
denied. Warden Fox accepted Deputy LeMasters' recommendation and denied Cline's
request to amend the Approved Vendors List to include Komar Publishing.
Cline grieved Warden Fox's
decision within the DOC, and the decision was eventually upheld. On October 16,
2000, Cline filed a complaint pursuant to 42 U.S.C. § 1983, alleging that the
refusal to permit his receipt of the Paper
Wings books violated his constitutional rights under the First and Fourteenth
Amendments.
During
discovery, Cline gave an answer to an interrogatory indicating that books
similar to Paper Wings were shelved in St. Mary's Reading Library. Warden Fox
responded to this disclosure by closing the Reading Library and instructing
Deputy Warden Sandy Tanczyn to review the library's contents and remove any
material that violated the obscenity ban in DOC Policy Directive 503.00.
Tanczyn formed an ad hoc staff of unit managers, counselors, case managers, and
office assistants to individually read every book in the library. She
distributed copies of Policy Directive 503.00 to the staff members, and
instructed them to purge anything containing language that "could be
derived as a sexual turn-on, according to the policy directive." When a
staff member asked a question about what to do, Tanczyn simply pointed to the
Policy Directive and told them to do the job "like the policy says."
Tanczyn admits that her specific direction to eliminate any book that contained
language that might arouse the reader was her own interpretation of the Policy Directive, and
not that of Warden Fox.
The entire
Reading Library review was completed in approximately two months. At its
conclusion, the staff had purged 259 of the 1226 volumes, or nearly 21% of the
library's total inventory. Among the books removed were William Styron's
Sophie's Choice,
Gore Vidal's Myra Breckinridge, and a number of works by John Updike.
Cline immediately amended his
complaint on October 31, 2001 to allege that the library purge was a violation
of his rights under the First and Fourteenth Amendments of the United States
Constitution.
[*493] ANALYSIS
The parties do not dispute any facts on this cross-motion for
summary judgment. Therefore, the Court need only determine which party is
entitled to judgment as a matter of law on each of Cline's claims for relief.
See Fed. R. Civ. P. 56(c) (summary judgment is appropriate when "there is
no genuine issue as to any material fact, and ... the moving party is entitled
to a judgment as a matter of law.").
The amended complaint challenges DOC Policy Directive 503.00
both on its face and as applied. Two of these claims are not decided here, however.
First, Cline abandoned his facial challenge at oral argument, and therefore the
Court does not consider it. n2
Moreover, the Court notes that many jurisdictions have upheld similar
regulations. See Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999); Frost v.
Symington, 197 F.3d 348, 357 (9th Cir. 1999); Mauro v. Arpaio, 188 F.3d 1054
(9th Cir. 1999); Amatel v. Reno, 332 U.S. App. D.C. 191, 156 F.3d 192 (D.C.
Cir. 1998).
Second, one
of the as applied challenges is premature. Cline claims that "the removal
and suppression by the defendants and their agents of all materials from the
[St. Mary's] reading library that includes passages that might sexually arouse
the reader are irrational and unreasonable." While the record suggests
that the library purge was a reflexive reaction to Cline's discovery response,
n3 the record clearly indicates that Cline amended his complaint to include
this claim before he grieved the offense within the West Virginia Division of Corrections. 42 U.S.C. § 1997e(a) unconditionally requires an inmate challenging
his conditions of confinement to exhaust all administrative remedies before
filing an action in district court. See Porter v. Nussle, 534 U.S. 516, 524,
152 L. Ed. 2d 12, 122 S. Ct. 983 (2002) ("Once within the discretion of
the district court, exhaustion in cases covered by § 1997e(a) is now
mandatory."). Cline has not exhausted his administrative remedies for this
claim and it must be dismissed.
This leaves only two as
applied challenges to Policy Directive 503.00 before the Court: (1) that the
DOC's use of and refusal to amend the approved vendors list to include the
Paper Wings Books is unreasonable and irrational; and (2) that the defendants'
refusal to permit Cline to receive and possess his Paper Wings books is
unreasonable and irrational. These technically separate claims turn on the
resolution of whether Policy Directive 503.00 was validly applied to prohibit
Cline's possession of the Paper Wings books.
A. Legal Standard.
Where a plaintiff challenges the validity of a regulation as
applied to his particular circumstance, the Court conducts its analysis under
the framework established in Turner v. Safley, 482 U.S. 78, 89, 96 L. Ed. 2d
64, 107 S. Ct. 2254 (1987), and [*494] Thornburgh v. Abbott, 490 U.S. 401, 104
L. Ed. 2d 459, 109 S. Ct. 1874 (1989). Murphy v. Shaw, 532 U.S. 223, 232, 149
L. Ed. 2d 420, 121 S. Ct. 1475 (2001).
In Turner, a class of Missouri prisoners challenged two Missouri
Division of Corrections regulations: one restricting inter-inmate
correspondence, and the other restricting inmate marriage. 482 U.S. at 81-82.
The inmates asserted that the regulations should be subject to strict scrutiny
under Procunier v. Martinez, 416 U.S. 396, 40 L. Ed. 2d 224, 94 S. Ct. 1800
(1974). The Supreme Court held that prison regulations should not be held to
such a high standard, and enunciated what has become known as the Turner rule: "When a prison
regulation impinges on inmates' constitutional rights, the regulation is valid
if it is reasonably related to legitimate penological interests." 482 U.S.
at 89. The Supreme Court provided four factors to guide a district court's
application of this general principle:
First, there must be a valid, rational connection between the
prison regulation and the legitimate governmental interest put forward to
justify it ...
A second factor ... is whether there are alternative means of
exercising the right that remain open to prison inmates ...
A third consideration is the impact accommodation of the asserted
constitutional right will have on guards and other inmates and on the
allocation of prison resources generally ...
Finally, the absence of ready alternatives is evidence of the
reasonableness of a prison regulation. By the same token, the existence of
obvious, easy alternatives may be evidence that the regulation is not
reasonable, but is an exaggerated response to prison concerns.
Id., 482 U.S. at 90-99;
accord Veney v. Wyche, 293 F.3d 726, 732 (4th Cir. 2002) .
Under this framework, the Supreme Court upheld the
correspondence regulation, but invalidated the marriage restriction. In
upholding the correspondence
regulation, the Supreme Court noted that the asserted security interest
was "undoubtedly" legitimate, that the plaintiffs' right to
expression was not completely foreclosed by the inmate correspondence
prohibition, and that permitting the plaintiffs to correspond freely would
necessitate a "ripple effect" of additional security restrictions
that would curtail other inmates' already limited freedom and put an
unwarranted strain on prison resources. 482 U.S. at 91-93.
In invalidating the marriage restriction, the Supreme Court
first noted that the regulation--which prohibited not only inter-prisoner
marriages, but also marriages between prisoners and free citizens--was overly
broad because it limited the rights of free citizens. Id. at 97. The Supreme
Court stated that, while there may be some legitimate reasons to permit inmate
marriage in limited circumstances, the Missouri regulation was an exaggerated
response to those concerns. Id. at 97-98. The prison officials' stated security
concerns were not supported by common sense or the record. Id. at 98. Because
marriage to an outside citizen is an entirely private affair, the Court could
not find that there would be any "ripple-effect" that would implicate
the rights or liberties of other prisoners. Id. Thus, the Supreme Court found
that the marriage regulation was not reasonably related to any legitimate
penological concern. Id.
[*495] The applicability of the Turner analysis to prison
regulations was solidified in Thornburgh v. Abbott, 490 U.S. 401, 104 L. Ed. 2d
459, 109 S. Ct. 1874 (1989). There, a class of federal prisoners and publishers
challenged a Federal Bureau of Prisons regulation that permitted prison
officials to deny inmates possession of incoming publications if they were
deemed "detrimental to institutional security." 490 U.S. at 403
(citing 28 C.F.R. § 540.71(b) ). The Supreme Court upheld the regulation,
observing that the legitimacy of the security concern was "beyond
question," id. at 415, that the regulation was reasonably related to that
concern because "where the regulations at issue concern the entry of
materials into the prison ... a regulation which gives prison authorities broad
discretion is appropriate," id. at 416-17, that the plaintiffs' rights
were not impermissibly restricted because the regulation still permitted the
inmates to receive "a broad range of publications," id. at 419, and that
there was a great likelihood that the materials would be recirculated within
the prison, which would cause prison officials to expend limited resources to
further restrict the freedom of other inmates, id.
The Fourth Circuit has observed that, in formulating the Turner
analysis, "the Supreme Court chose the most deferential possible standard
of review for cases presenting prison administration issues." In re Long
Term Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464,
469 (4th Cir. 1999). Prison officials "'should be accorded wide-ranging
deference in the adoption and execution of policies and practices that in their
judgment are needed to preserve internal order and discipline and to maintain
institutional security.'" Id. (quoting Bell v. Wolfish, 441 U.S. 520, 547,
60 L. Ed. 2d 447, 99 S. Ct. 1861 (1979)). Finally, "when a state
correctional institution is involved, the deference of a federal court is even
more appropriate." In re Long Term, 174 F.3d at 469.
B. Application of the Turner
Analysis.
(1) Legitimate Penological
Interest and Reasonable Relationship.
(i) Legitimacy of the Underlying Policy.
The policy
undergirding the regulation must be legitimate, and, where First Amendment
concerns are implicated, content-neutral. Thornburgh, 490 U.S. at 414. The
defendants assert that DOC Policy Objective 503.00 was promulgated to further
the DOC's interest in preserving security and furthering inmate rehabilitation.
n4 The legitimacy of these interests is plain. See id., 490 U.S. at 415
(recognizing that prison regulations designed to provide security are not only
legitimate, but are "central to all other correctional goals");
O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 96 L. Ed. 2d 282, 107 S. Ct.
2400 (1987) (describing rehabilitation as a "valid penological
objective"); Procunier v. Martinez, 416 U.S. 396, 413, 40 L. Ed. 2d 224,
94 S. Ct. 1800 (1974) [*496] (identifying "substantial government
interests of security, order, and rehabilitation"); Veney v. Wyche, 293
F.3d 726, 732 (4th Cir. 2002) ("Prison safety and security are legitimate
penological interests.").
These
interests are also content-neutral. The Supreme Court explained in Thornburgh
that
the Court's reference to "neutrality" in Turner was intended
to go no further than its requirement in Martinez that "the regulation or
practice in question must further an important or substantial governmental
interest unrelated to the suppression of expression." 416 U.S., at 413, 94
S. Ct., at 1811. Where, as here, prison administrators draw distinctions between
publications solely on the basis of their potential implications for prison
security, the regulations are "neutral" in the technical sense in
which we meant and used that term in Turner.
490 U.S. at 416 (footnotes omitted); see also In re Long Term, 174 F.3d
at 470-471 ("Turner's only requirement of neutrality is that the interest
being furthered be unrelated to the suppression of expression.") (internal
quotation marks omitted). Here, the
prohibition of the Paper Wings books advances Policy Directive 503.00's
underlying interest in fostering security and rehabilitation. See Amatel v.
Reno, 332 U.S. App. D.C. 191, 156 F.3d 192, 197-98 (D.C. Cir. 1998) (explaining
the neutrality requirement in the context of a prison regulation banning inmate
receipt of sexually explicit material).
(ii) Reasonable Relationship.
This is
"a rational relation test: once the Department demonstrates it is pursuing
a legitimate governmental objective, and demonstrates some minimally rational
relationship between that objective and the means chosen to achieve that
objective, we must approve of those means." Hines v. South Carolina Dep't
of Corrections, 148 F.3d 353, 358 (4th Cir. 1998). "The question is not
whether [the warden's] conclusion was indisputably correct, but whether his
conclusion was rational and therefore entitled to deference." In re Long
Term, 174 F.3d at 470.
The threshold question is
whether the defendants reasonably classified the Paper Wings books as
"obscene material" as defined in Policy Directive 503.00. The Policy
Directive defines "obscene material" as:
Periodicals, magazines, books, pamphlets, photographs, paintings,
photocopies, sculpture or other graphic representation which are obscene
because they depict explicit sexual activity. Explicit sexual activity is
defined as sexual intercourse, anal intercourse, fellatio, cunnilingus,
bestiality, bondage/Sadism and Masochism or material of an explicit sexual
nature involving minors.
While the materials from
Paper Wings are books, and contain graphic descriptions of most of the sexual
acts listed above, Cline steadfastly characterizes them as "sexually
explicit novels," "erotic novels," or "erotic
literature," and implies that they are something short of obscene.
Cline has submitted a copy of
an entire Paper Wings book as an exhibit to his motion for summary judgment. n5
His characterization of this Paper Wings book as a "novel," however,
misapprehends the nature of the literary form. A novel is a longer, complex
work of prose addressing themes of human experience through a chronologically
connected sequence of events. The Paper Wings book submitted by Cline resembles
a novel only to the [*497] extent that it is nearly 200 printed pages of text
and bound along the left edge. Otherwise, it is a collection of graphically
described sexual escapades taking place between and amongst a recurring cast of
characters, separated only by terse and extremely secondary plot points.
For
example, the first page of Hot Homemaker introduces the principal character,
the aptly-named Randi, sitting in her bathroom, electric vibrator in hand,
lamenting her marital sexual frustration. The next three pages describe Randi's
nymphish physical attributes as she examines herself in the mirror. The
following sixteen (16) pages find Randi recalling, in precise detail, the first
act of sexual congress between her and her husband. Randi's reverie abruptly
ends as her husband, for two pages, urges her from behind the bathroom door to
dress herself so they may both attend a business dinner. Thus ends Chapter One.
The remaining nine chapters
adhere to a similar structure of multiple pages of vividly described sexual
activity bookended by minimal plot points. The only exception to this rule is
Chapter Five, which is a twenty-one (21) page description of masturbation,
fellatio, cunnilingus, vaginal intercourse, and anal intercourse--uninterrupted
by any distracting plot points.
The Court
acknowledges that Cline could have (though he did not) argued that the Paper
Wings book makes passing attempts to address substantial themes. However, any
hint of such a theme is quickly revealed as a thin plot device designed simply
to create more situations for the characters to engage in varying, explicitly
described, sexual acts. For example, at an early point in the exposition,
Randi's husband reveals that he must make better use of his country club
clubhouse during the slow winter months or he will face bankruptcy. The reader
immediately learns, however, that the husband's solution is to operate the
clubhouse as a winter "swing club," which provides a situs for most
of the book's graphically described sexual encounters. At another point, Randi
solicits a young, trim and fit restaurant waiter for an educational tour of the
restaurant's wine-cellar. The highly detailed descriptions of sexual activity
that immediately follow, though, teach the reader nothing of enology or
viticulture. n6
The Court
finds that the Paper Wings book, on the whole, satisfies the definition of
"obscene material" in Policy Directive 503.00, n7 and the defendants
acted rationally in drawing a similar conclusion.
Cline
argues that the Policy Directive's use of the word "depict" excepts
the Paper Wings books, which contain only pure verbal descriptions and no
pictures. It is true that the word "depict" often refers to pictorial
representations. However, the standard dictionary definition also includes
verbal descriptions, see Merriam-Webster Online Dictionary, www.m-w.com
(defined [*498] term "depict"). The defendants could rationally base
their conclusion on this more expansive definition.
The secondary question is whether the defendants could have
rationally concluded that banning the Paper Wings books would advance any one
of the legitimate penological purposes undergirding the Policy Directive. Common sense is the touchstone of
rationality, and the Court need only find a common sense nexus between a
legitimate penological interest and the asserted means of forwarding that
interest. See Amatel, 156 F.3d at 199 (arguing that Turner does not require
more than a commonsense connection because, "in that case, the Court
scoured the record for evidence of a rational link between the asserted
security interests an the marriage ban [only] because common sense does not
suggest any.").
Such a common sense link exists in this case. Many courts have upheld broad prohibitions
against inmate possession of pornographic, sexually explicit, or obscene
materials, but few have summarized the rational link to furthering penological
objectives as clearly as the D.C. Circuit in Amatel:
We think that the government could rationally have seen a connection
between pornography and rehabilitative values. Congress might well perceive
pornography as tending generally to thwart the character growth of its
consumers. One current exposition of this view sees pornography as treating women
purely as objects of male sexual gratification. But this viewpoint shares at
least a core with ideas that have a lineage of a few centuries, perhaps
millennia, stressing the desirability of deferring gratification, of
sublimation of sexual impulses, of channeling sexual expression into long-term
relationships of caring and affection, of joining eros to agape. The
supposition that exclusion of
pornography from prisons will have much of an impact in this direction
may be optimistic, but it is not irrational.
156 F.3d at 199 (internal
citations omitted).
Cline is dissatisfied with this commonly held position, however,
and attacks it on two grounds. First, he states that "the solid weight of
scientific authorities" rebuts the presumption that exposure to obscene
materials can cause criminal activity. In support of this statement, Cline
cites three sources: (1) the Report of the Attorney General's Commission on
Pornography (1986); (2) Edward Donnerstien, Daniel Linz & Stephen Penrod,
The Question of Pornography 177 (1987); and (3) Berl Kutchinskiy, Obscenity and
Pornography: Behavioral Aspects, in Encyclopedia of Crime and Justice 1077,
1083 (Sanford Kadish, ed. 1983).
The Court is somewhat skeptical of Cline's assertion in light of
the fact that the Donnerstein article actually concluded that exposing
"already angered men" to sexually explicit materials may risk briefly
increasing their aggressive tendencies. Donnerstein at 40-48. Furthermore, as
the Amatel court noted, there are many other academic sources suggesting a
positive correlation between exposure to sexually explicit materials and
criminal behavior. See Amatel, 156 F.3d at 199.
Where scientific studies are in equipose and the plaintiff
cannot conclusively disprove the otherwise valid rational connection, the
prison official's judgment must stand:
But even undertaking to
weigh the competing scholarship would misconceive the judicial role. Dealing with legislative judgments about
rehabilitation, the Supreme Court has said that "when Congress undertakes
to act in areas fraught with medical and scientific uncertainties, legislative
options must be [*499]especially broad and courts should be cautious not to
rewrite legislation, even assuming, arguendo, that judges with more direct
exposure to the problem might make wiser choices." Marshall v. United
States, 414 U.S. 417, 427, 94 S. Ct. 700, 38 L. Ed. 2d 618 (1974) (emphasis in
original); see also Kansas v. Hendricks, 521 U.S. 346, 117 S. Ct. 2072, 2081 n.
3, 138 L. Ed. 2d 501 (1997). And in upholding a statute barring provision of
sexually explicit material to minors, the Court noted that "while these
studies all agree that a causal link [between exposure to explicit material and
impaired ethical and moral development] has not been demonstrated, they are
equally agreed that a causal link has not been disproved either." Ginsberg
v. New York, 390 U.S. 629, 642, 88 S. Ct. 1274, 20 L. Ed. 2d 195 (1968)
(internal quotation omitted); see also American Booksellers Ass'n v. Hudnut,
771 F.2d 323, 329 n. 3 (7th Cir.1985). The same uncertainty prevails here, and
suffices to place the legislative judgment within the realm of reason under the
standards applicable to the political branches' management of prisons.
Amatel, 156 F.3d at 199.
Cline also argues that the defendants fail to demonstrate a
rational connection because the prison discipline records indicate that, not
only is he a model inmate, but none of the feared violence or rehabilitative
setbacks has ever occurred at St. Mary's. The defendants, however, need not
make such a showing. "It is
rational for [a prison administrator] to exclude materials that, although not
necessarily 'likely' to lead to violence, are determined by the warden to
create an intolerable risk of disorder under the conditions of a particular
prison at a particular time." Thornburgh, 490 U.S. at 417. The Court will
not tie the defendants' hands by forcing them to wait until violations occur
before permitting them to enforce the regulation. The prison officials reasonably
see a need for preventive measures, and the Court must defer to that rational
decision.
(2) Alternative Means of
Exercising the Right.
Cline asserts that the enforcement of Policy Directive 503.00
against the Paper Wings books leaves him without a means of exercising his
protected right to read "erotic literature."
Before deciding that an inmate plaintiff is without a means to
exercise a right, the Court must define the right in question. Moreover,
"the right in question must be viewed sensibly and expansively."
Thornburgh, 490 U.S. at 417.
The First Amendment encompasses a general right to receive
information. See Reno v. ACLU, 521 U.S. 844, 874, 138 L. Ed. 2d 874, 117 S. Ct.
2329 (1997) (invalidating a statute because it "effectively suppresses a
large amount of speech that adults have a constitutional right to receive and
to address to one another"); Stanley v. Georgia, 394 U.S. 557, 564, 22 L.
Ed. 2d 542, 89 S. Ct. 1243 (1969) ("The right to receive information and
ideas, regardless of their social worth ... is fundamental to our free
society."); see also Bd. of Educ. v. Pico, 457 U.S. 853, 867-68, 73 L. Ed.
2d 435, 102 S. Ct. 2799 (1982) (plurality opinion) ("The right to receive
ideas follows ineluctably from the sender's First Amendment right to send
them."). Inmates do not cede this right upon entering prison. See Crofton
v. Roe, 170 F.3d 957, 959 (9th Cir. 1999) ("It is well settled that the
First Amendment protects the flow of information to prisoners."); Mann v.
Smith, 796 F.2d 79, 82-83 (5th Cir. 1986) (same). The Third Circuit has implicitly acknowledged that prisoners have
a right to receive [*500] and read publications. See Waterman v. Farmer, 183
F.3d 208, 218-19 (3d Cir. 1999). Moreover, the Ninth Circuit recognizes a
"right to receive sexually explicit communications." Frost v.
Symington, 197 F.3d 348, 357 (9th Cir. 1999); Mauro v. Arpaio, 188 F.3d 1054,
1061 (9th Cir. 1999). The D.C. Circuit, however, has questioned whether
prisoners possess "some minimum entitlement to smut." Amatel, 156
F.3d at 201 (D.C. Cir. 1998).
In Thornburgh, the Supreme Court did not define the inmate's
right as narrowly as Cline would like. Instead, it explained that, although
sexually explicit material was banned, "the regulations at issue ... permit
a broad range of [other] publications to be ... received, and read, [and thus]
this factor is clearly satisfied." 490 U.S. at 418. Similarly, because Policy
Directive 503.00 only restricts obscene materials and permits Cline to receive
non-obscene materials, including "commercial pornography," there are
alternative means by which Cline might exercise his rights under the First
Amendment.
(3) Impact of Accommodating
the Asserted Right.
Cline
asserts that there would be no burden on the safe operation of the prisons if
he was allowed to read erotic fiction, and points to his "spotless record" during the seven years when he
received Paper Wings books. The defendants offer no argument on this point.
Cline's
argument addresses only the impact upon himself, but ignores the more important
cost to the penological objectives with regard to his fellow inmates. In
Thornburgh, the Supreme Court acknowledged that simply allowing this type of
material into the prison environment invites a panoply of problems:
We deal here with incoming publications, material requested by an
individual inmate but targeted to a general audience. Once in the prison,
material of this kind reasonably may be expected to circulate among prisoners,
with the concomitant potential for coordinated disruptive conduct. Furthermore,
prisoners may observe particular material in the possession of a fellow
prisoner, draw inferences about their fellow's beliefs, sexual orientation, or
gang affiliations from that material, and cause disorder by acting accordingly.
[citations omitted] "The problem is not ... in the individual reading the
materials in most cases. The problem is in the material getting into the prison."
490 U.S. at 412-13.
Furthermore, "publications can present a security threat,
and [a district court may properly find] that a more closely tailored standard
could result in admission of publications which, even if they did not lead directly to
violence, would exacerbate tensions and lead indirectly to disorder." Id.,
at 416 (internal quotation marks omitted). This extra security threat is
typically and understandably met by prison officials with additional
restrictions on inmates' other freedoms. See Turner, 482 U.S. at 92
(acknowledging that permitting prisoners to freely correspond with each other
would come "at the cost of significantly less liberty and safety for
everyone else, guards and prisoners alike").
"Where the exercise of a
right requires this kind of a tradeoff, we think that the choice made by
corrections officials--which is, after all, a judgment 'peculiarly within
[their] province and professional expertise,'--should not be lightly set aside
by the courts." Id., at 92-93 (quoting Pell v. Procunier, 417 U.S. 817,
827, 41 L. Ed. 2d 495, 94 S. Ct. 2800 (1974)) [*501] (emphasis in original).
(4) Exaggerated Response.
"If an inmate claimant can point to an alternative that
fully accommodates the prisoners rights at de minimis cost to valid penological interests, a court may
consider that as evidence that the regulation does not satisfy the reasonable
relationship standard." Turner, 482 U.S. at 90-91. Cline suggests two
ready alternatives available to the prison as evidence that the Directive is
not reasonable: (1) individual determinations, rather than a blanket rule, can
be made to ascertain which prisoners may receive sexually explicit material;
and (2) only pictorial representations of sexual explicit material should be
banned.
The Supreme Court has already
addressed an argument similar to Cline's first point. In Turner, in upholding
the correspondence restrictions the Supreme Court noted that prison officials
need not expend their limited resources
to provide the significantly extra security measures necessary to accommodate
the plaintiff's asserted right. 482 U.S. at 93. Moreover, "where prison
officials are able to demonstrate that they have rejected a less restrictive
alternative because of reasonably founded fears that it will lead to greater
harm, they succeed in demonstrating that the alternative they in fact selected
was not an exaggerated response under Turner. Furthermore, the administrative
inconvenience of [the] proposed alternative is also a factor to be
considered." Thornburgh, 490 U.S. at 419.
The
defendants argue that Cline's proposed alternatives are unworkable. The prison
lacks sufficient mailroom staff to individually screen all incoming mail.
Forcing the existing staff to individually determine what material can go to
what prisoner risks dangerous materials inadvertently ending up in the hands of
a prohibited inmate. As noted above, the cost of allowing any of contraband
inside the prison is high. The only way to prevent this result is to hire more
staff to handle the added duties. This is not a de minimis alternative.
Cline's second proposed
solution, only allowing a ban of pictorial obscenity, asks the Court to
substitute its judgment for that of the prison officials and rewrite the Policy
Directive. For the reasons stated above, this is something the Court cannot do.
Conclusion.
West
Virginia Department of Corrections Policy Directive 503.00, as applied to
prohibit the plaintiff's possession of his Paper Wings books, is
constitutional. The defendants acted reasonably in classifying the Paper Wings
books as "obscene material" under the Policy Directive. For the
reasons stated above,
1. The Court DISMISSES
WITHOUT PREJUDICE the plaintiff's facial challenge to Policy Directive 503.00
because the plaintiff abandoned that challenge; and DISMISSES WITHOUT PREJUDICE
the plaintiff's as applied challenge to the library purge because the plaintiff
has not exhausted his administrative remedies with respect to that challenge.
2. The Court DENIES the
remainder of the plaintiff's Motion for Summary Judgment, GRANTS the
defendants' Motion for Summary Judgment on the two issues addressed in this
Order, and DISMISSES WITH PREJUDICE the remainder of the case.
It is so ORDERED.
[*502] The Clerk is directed to transmit copies of this Order to
counsel of record herein.
DATED: March 19, 2003.
IRENE M. KEELEY
UNITED STATES DISTRICT JUDGE
FOOTNOTES:
n1 DOC
Policy Directives are formulated by the DOC Commissioner and are applicable to
all DOC institutions.
n2
Cline's abandonment of the facial challenge is further evidenced by the fact
that he failed to raise the issue in his brief.
n3 The
efficiency of the warden's response may have come at the expense of
reasonableness. Is it rational that an effort to remove all "obscene"
materials from the library would result in the expunging of William Styron's
Sophie's Choice, Gore Vidal's Myra Breckinridge, and a number of works by John
Updike? See Aiello v. Litscher, 104 F. Supp. 2d 1068, 1080 (W.D. Wisc. 2000)
(striking a state prison regulation where prison administrators classified a
book containing photographs of Michelangelo's Sistine Chapel masterpiece as
"pornography"); see also Paris Adult Theatre I v. Slaton, 413 U.S.
49, 63, 37 L. Ed. 2d 446, 93 S. Ct. 2628 (1973) (noting the "well nigh
universal belief that good books, plays, and the arts lift the spirit, improve
the mind, enrich the human personality, and develop character").
n4 The
defendants specifically state that the Policy Directive was issued for three reasons:
(1) to increase security by minimizing potential violence arising from
bartering disputes in which obscene materials are used as barter items, (2) to
minimize inmates' titillation and arousal, and (3) because obscene materials
can negate prisoners' rehabilitation. The first and the third reasons are
clearly security and rehabilitation issues. The Court also finds the second
reason to be a security issue insofar as such prevention reduces the incidence
of sexual attacks between inmates. The Court also notes that this determination
is a distinction without practical difference--the Turner standard requires
prison officials to demonstrate a rational connection to a single legitimate
penological concern, not three.
n5 Hot
Homemaker, by Belle Spring.
n6 The
descriptions do, however, offer the dubiously useful warning that rickety wine
racks ought not be used to support oneself while performing sexual acrobatics.
n7
Though not material to the Court's decision, the Court also finds that the
Paper Wings book would be obscene under either the standard set forth in Miller
v. California, 413 U.S. 15, 24, 37 L. Ed. 2d 419, 93 S. Ct. 2607 (1973)
("(a) whether the average person, applying contemporary community
standards would find that the work, taken as a whole, appeals to the prurient
interest, (b) whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law, and (c)
whether the work, taken as whole, lacks serious literary, artistic, political,
or scientific value."), or Justice Stewart's famous rule, see Jacobellis
v. Ohio, 378 U.S. 184, 197, 12 L. Ed. 2d 793, 84 S. Ct. 1676 (1964) (Stewart,
J., concurring) ("I know it when I see it.").