PLN v. Stolle, et al., VA, Summary Judgment, censorship, 2015
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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 ..... ~~<;:;_:-::-;.~:-:::~. ...... •••-.:t ~" p """'l'& h •30 h>r 1 huto - ••d I nf o • l o n g ..-U L L V--•tl' rn-• crn••.,.•hlp "'°' .-.. ....,.,,,.., '-••• f•.....,.• •••o..SO • -ddf"-• ••• or o w r _.._..,.,.,. o" •:SO kAMtS I • f ' ... .,.. ro ul • • -~•d $17/~o- Unlimited Calls ri ) . -_ l I cJlcJc:ril> .. $ 1 5 ON E f1M L.llc llv <1 tlcm Fuu m1m•H=~ F~~~l'~~~~~n~~v~~F~~'in:Ytr NOW INMATES CAN ORDER THEIR OWN NUMBERS! ORDER THE NEW PEN PAL LI ST OF 5 0 REAL ADDRESS ES TO FEMALES WAITING TO CORRESPOND TO PRISONERS RECENT PHOTOS INCLUDED! SEND $ 49.95 ~ ~~~" M AKE EVERY CALL HOME A LOCAL CALL NO MOR E RUNN 1NG OUT O F MINU TES! SEND $3 FOR PHONE PLAN APPLICATION FORM L~,_-',,~ ltvr<11eS posl 'fJ..I ~<ii~ Pen Pel "ebsile www.Prl sonOfflcl a l.com 2 year membership ·Send $30 2so m !mil ~ s As Efix rell.rn ot yos pll()U) Send Faci lity Checks/Money Orders To: PRISON OFFICIAL P. O. BOX 1427 WARRENVILLE IL 605 55 MUST AOOS2 SIH TOALLORDERS 25 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