Opinion
Civil Action No. 9:13-CV-0599 (NAM/DEP)
07-19-2016
JOHN RAPP, Plaintiff, v. MARLO BARBOZA and THOMAS HASKELL, Defendants.
APPEARANCES: FOR PLAINTIFF: JOHN RAPP, Pro se 13-A-2819 Washington Correctional Facility Box 180 Comstock, NY 12821 FOR DEFENDANTS: FITZGERALD MORRIS BAKER FIRTH, P.C. P.O. Box 2017 16 Pearl Street Glens Falls, NY 12801 OF COUNSEL: JOSHUA D. LINDY, ESQ.
APPEARANCES: FOR PLAINTIFF: JOHN RAPP, Pro se
13-A-2819
Washington Correctional Facility
Box 180
Comstock, NY 12821 FOR DEFENDANTS: FITZGERALD MORRIS BAKER
FIRTH, P.C.
P.O. Box 2017
16 Pearl Street
Glens Falls, NY 12801 OF COUNSEL: JOSHUA D. LINDY, ESQ. DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE
REPORT AND RECOMMENDATION
Pro se plaintiff John Rapp, a prison inmate formerly held as a pretrial detainee at the Washington County Correctional Facility ("WCCF"), has commenced this action against two corrections workers employed at the facility, pursuant to 42 U.S.C. § 1983, alleging that they deprived him of his civil rights. In his complaint, as twice amended, inter alia, plaintiff alleges that Corrections Inspector Marlo Barboza and Mail Room Officer Thomas Haskell violated his rights under the First Amendment to the United States Constitution by denying him access to certain types of books and magazines.
Currently pending before the court is a motion by defendants Barboza and Haskell for summary judgment dismissing plaintiff's remaining claims in the action. In their motion, defendants argue that (1) plaintiff failed to exhaust his administrative remedies with respect to a portion of his claim, (2) no reasonable factfinder could conclude plaintiff's First Amendment rights were violated based upon the record now before the court, and (3) in any event they are entitled to qualified immunity from suit. For the reasons set forth below, I recommend that defendants' motion be granted. I. BACKGROUND
In light of the procedural posture of the case, the following recitation is derived from the record now before the court, with all inferences drawn and ambiguities resolved in plaintiff's favor. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
At the times relevant to his claims in this action, plaintiff was a pretrial detainee at the WCCF as a result of his arrest for third degree sale of a controlled substance. Dkt. No. 49-9 at 2-3. In his complaint, as amended, plaintiff alleges that on or about February 12, 2013, defendant Haskell, a mail room officer, denied him access to certain magazines, including American Curves, Maxim, XXL, Playboy, and the Sports Illustrated Swimsuit Edition, as well as the book One Flew Over The Cuckoo's Nest. Plaintiff was also advised that he could not possess the requested magazines while at the facility because of their sexually explicit nature and that defendant Barboza maintained a list of prohibited materials. Id. at 7. According to the plaintiff, defendant Haskell also responded that the book One Flew Over The Cuckoo's Nest could not be obtained because it "involved a break out from a mental hospital." Dkt. No. 30 at 7-8. Plaintiff also alleges that he asked defendant Haskell whether he could have books provided to him by others, and was advised that such materials must be obtained from a vendor. Id. at 8.
There is evidence in the record showing that defendant Barboza did not maintain any such list. Dkt. No. 49-7 at 2, 4-5; Dkt. No. 49-9 at 14. Moreover, defendant Haskell denies ever having any conversations with plaintiff regarding his access to printed materials and publications. Dkt. No. 49-8 at 2-3, 5; Dkt. No. 49-9 at 15.
It is undisputed that all inmates housed at the WCCF are provided with a jail handbook that explains facility policies, including those concerning books, magazines and periodicals, and that the handbook expressly prohibits inmates from receiving printed material and/or publications that present a "clear and present danger" to the safety of the facility, staff, inmates or the general public. Dkt. No. 49-9 at 3-4. Included in the handbook's list of prohibited material that might present such a "clear and present danger" are "sexually explicit material, nude photographs or any other offensive content" and "publications that advocate or condone illegal or socially unacceptable conduct." Id. The handbook also requires that "[a]ll books, magazines and periodicals . . . be of a paperback version received directly from a recognized vendor through the mail." Id. Supplementing the handbook setting forth these policies is an Operations Manual, which also provides similar guidelines regarding printed materials and publications. Id. at 4-5.
Plaintiff filed a grievance regarding the denial of his right to possess the specific magazines at issue on February 10, 2013. Dkt. No. 49-6 at 10; see also Dkt. No. 30 at 7; Dkt. No. 49-6 at 46-47. That grievance was investigated and adjudicated by Sergeant Michael S. Harp on February 14, 2013. Dkt. No. 49-6 at 10; see also Dkt. No. 49-6 at 49. During the course of his investigation, Sergeant Harp met with plaintiff to discuss how publications with sexually explicit and provocative pictures and advertisements can be used as barter and may cause less fortunate individuals to resort to violence to obtain such publications even though they are not allowed to possess other inmate's items. Dkt. No. 49-6 at 10-11. Sergeant Harp advised plaintiff that inmates are not allowed to possess magazines that are "found to be offensive due to their explicit nature or deemed to be a risk to the safety, security and good order of the facility." Id. at 10. Based on his finding that the content of the magazines were "deemed as a risk to the safety, security and good order of the facility because of sexually explicit photos and articles about promoting contraband, making weapons, escaping and . . . illegal activities," Sergeant Harp concluded that plaintiff's grievance was "unfounded." Id. at 11. That determination was upheld on appeal to Michael Gates, the Chief Administrator of the WCCF, on February 26, 2013, and to the Citizen's Policy and Complaint Review Council, on April 16, 2013. Id. at 12; see also Dkt. No. 49-6 at 51, 55.
On February 28, 2013, plaintiff filed a grievance requesting that he be allowed access to books and publications from all sources. Dkt. No. 49-6 at 13; see also Dkt. No. 49-6 at 57. He also grieved the fact that Bibles are not provided in every cell, and complained about the lack of a facility library. Id. Plaintiff's February 28, 2013 grievance was investigated and adjudicated on March 4, 2013 by Sergeant DiDio, who found nothing improper about the policy at WCCF requiring that all publications must be secured from an authorized vendor such as Barnes and Noble or Amazon.com, and concluded that plaintiff's grievance was "unfounded." Dkt. No. 49-6 at 13-14; see also Dkt. No. 49-6 at 60. That determination similarly was upheld on appeal to the Chief Administrator Gates on March 11, 2013, and the Citizen's Policy and Complaint Review Council, on April 16, 2013. Dkt. No. 49-6 at 14-15; see also Dkt. No. 49-6 at 61, 64.
Plaintiff has not raised those issues in his second amended complaint.
While plaintiff fully exhausted his administrative remedies with respect to the grievances filed on or about February 12, 2013 and February 28, 2013, no grievance was ever filed by him with respect to the alleged decision by defendant Haskell to deny him permission to receive a copy of the book One Flew Over the Cuckoo's Nest. Dkt. No. 49-6 at 15.
II. PROCEDURAL HISTORY
Plaintiff commenced this action on May 24, 2013, asserting only claims for injunctive relief based on his having been denied the ability to receive books and magazines from various outside sources during his confinement at the WCCF, and requesting leave to proceed in forma pauperis ("IFP"). Dkt. Nos. 1, 2. Upon review of plaintiff's complaint, and in light of his transfer out of the WCCF and into the custody of the New York Department of Corrections and Community Supervision ("DOCCS"), Senior United States District Judge Norman A. Mordue concluded that plaintiff's claims for injunctive relief were moot and conditionally dismissed his complaint, though affording plaintiff the opportunity to file an amended complaint. Dkt. No. 8.
Plaintiff subsequently filed an amended complaint, which set forth numerous claims arising out of his confinement at the WCCF and sought an award of money damages. Dkt. No. 10. In a decision and order filed March 24, 2014, the court concluded that the amended complaint could not survive sua sponte review under 28 U.S.C. §§ 1915(e) and 1915A. See Dkt. No. 23. In light of plaintiff's pro se status and his good faith effort to comply with the court's prior decision, Rapp was afforded a final opportunity to submit an amended complaint. Id.
Plaintiff submitted a second amended complaint ("SAC") on July 18, 2014. Dkt. No. 30. In that SAC, which is the operative pleading, plaintiff named as defendants Warren County Sheriff Nathan York, Warren County Sheriff's Office Captain Mike Gates, Warren County Correctional Facility Sergeant Diddio, Warren County Correctional Facility Sergeant Spring, Warren County Correctional Facility Sergeant Farmer, Warren County Correctional Facility Sergeant Tanner, Warren County Correctional Facility Sergeant Keays, Warren County Correctional Facility Officer Feldsen, Warren County Correctional Facility Officer Perelli, Warren County Correctional Facility Officer Harp, Warren County Correctional Facility Sergeant Rainville, Warren County Correctional Facility Mail Room Officer Thomas Haskell, Warren County Correctional Facility Inspector Marlo Barboza, and Lisa "Doe." Id. In his SAC, plaintiff chronicles various incidents at the WCCF, spanning almost one year in time, that give rise to his claims. The causes of action set forth in that pleading include the claim against defendants Barboza and Haskell for violation of his First Amendment rights, which is the subject of the motion now before the court.
On March 25, 2015, the court issued an order accepting plaintiff's SAC for filing and sua sponte dismissing certain causes of action in his complaint pursuant to 28 U.S.C. §§ 1915(e) and 1915A. Dkt. No. 36. As a result of that decision, plaintiff's only remaining claim is for violation of his rights under the First Amendment, asserted against defendants Haskell and Barboza. Id.
On December 7, 2015, following the close of discovery, defendants moved for the entry of summary judgment. Dkt. No. 49. Thereafter, plaintiff filed three requests to extend his deadline to respond to defendants' motion, all of which were granted for good cause. Plaintiff's third request was granted on January 28, 2016 in a text order, which advised that his new response deadline of March 3, 2016 was "FINAL." Dkt. No. 58. Despite having been granted the third extension, plaintiff failed to respond to defendants' motion. Rather, on March 2, 2016, the day before the expiration of his response deadline, plaintiff filed a letter motion requesting permission to withdraw his action without prejudice based on his inability to timely respond to defendants' motion. Dkt. No. 59.
Plaintiff filed his first request on or about December 28, 2015; the second request was made on January 11, 2016; and the third request was received on January 27, 2016. See Dkt. Nos. 51, 54, and 57.
On March 3, 2016, a text order was issued directing defendants' counsel to prepare a stipulation of dismissal and serve it on plaintiff on or before March 10, 2016, and further directing plaintiff to either sign the stipulation and file it with the court, on or before March 17, 2016, or file a letter indicating why he is unwilling to sign this document by that same date. Dkt. No. 61. On March 17, 2016, defendants served plaintiff with a stipulation of discontinuance with prejudice. Dkt. No. 62. Instead of signing the stipulation, plaintiff filed a letter on April 28, 2016, requesting an extension until July 28, 2016 to respond to defendants' motion for summary judgment. Dkt. No. 64. That request was denied by text order issued on May 2, 2016. Dkt. No. 66.
Defendants' motion, which is now ripe for determination, has been referred to me for the issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b)(1)(B) and Northern District of New York Local Rule 72.3(c). See Fed. R. Civ. P. 72(b).
III. DISCUSSION
A. Summary Judgment Standard
Summary judgment motions are governed by Rule 56 of the Federal Rules of Civil Procedure. Under that provision, the entry of summary judgment is warranted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir. 2004). A fact is "material" for purposes of this inquiry if it "might affect the outcome of the suit under the governing law." Anderson, 477 U.S. at 248; see also Jeffreys v. City of N.Y., 426 F.3d 549, 553 (2d Cir. 2005). A material fact is genuinely in dispute "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson, 477 U.S. at 248.
A party moving for summary judgment bears an initial burden of demonstrating that there is no genuine dispute of material fact to be decided with respect to any essential element of the claim in issue; the failure to meet this burden warrants denial of the motion. Anderson, 477 U.S. at 250 n.4; Sec. Ins. Co., 391 F.3d at 83. In the event this initial burden is met, the opposing party must show, through affidavits or otherwise, that there is a material dispute of fact for trial. Fed. R. Civ. P. 56(e); Celotex, 477 U.S. at 324; Anderson, 477 U.S. at 250.
When deciding a summary judgment motion, a court must resolve any ambiguities, and draw all inferences, in a light most favorable to the non-moving party. Anderson, 477 U.S. at 255; Jeffreys, 426 F.3d at 553; Wright v. Coughlin, 132 F.3d 133, 137-38 (2d Cir. 1998). The entry of summary judgment is justified only in the event of a finding that no reasonable trier of fact could rule in favor of the non-moving party. Bldg. Trades Employers' Educ. Ass'n v. McGowan, 311 F.3d 501, 507-08 (2d Cir. 2002); see also Anderson, 477 U.S. at 250 (finding summary judgment appropriate only when "there can be but one reasonable conclusion as to the verdict").
B. Plaintiff's Failure to Oppose Defendants' Motion
Before turning to the merits of defendants' arguments, a threshold issue to be addressed is the legal significance, if any, of his failure to oppose defendants' summary judgment motion, and specifically whether that failure automatically entitles defendants to summary judgment dismissing plaintiff's complaint.
This court's rules provide that
[w]here a properly filed motion is unopposed and the Court determines that the moving party has met its burden to demonstrate entitlement to the relief requested therein, the non-moving party's failure to file or serve any papers as this Rule requires shall be deemed as consent to the granting or denial of the motion, as the case may be, unless good cause is shown.N.D.N.Y.L.R. 7.1(b)(3). Undeniably, pro se plaintiffs are entitled to some measure of forbearance when defending against summary judgment motions. See Jemzura v. Public Serv. Comm'n, 961 F. Supp. 406, 415 (N.D.N.Y. 1997) (McAvoy, C.J.). The deference owed to pro se litigants, however, does not extend to relieving them of the ramifications associated with Local Rule 7.1(b)(3). Robinson v. Delgado, No. 96-CV-169, 1998 WL 278264, at *2 (N.D.N.Y. May 22, 1998) (Pooler, J. & Hurd, M.J.); Cotto v. Senkowski, No. 95-CV-1733, 1997 WL 665551, at *1 (N.D.N.Y. Oct. 23, 1997) (Pooler, J. & Hurd, M.J.); Wilmer v. Torian, 980 F. Supp.106, 106-07 (N.D.N.Y. 1997) (Pooler, J. & Hurd, M.J.). When a non-moving party fails to respond to a motion for summary judgment, the movants' burden on their motion "is lightened such that, in order to succeed, they need only show the facial merit of their request, which has appropriately been characterized as a 'modest' burden." Henry v. Dinelle, et al., 10-CV-0456, 2011 WL 5975027, *10 (N.D.N.Y. Nov. 29, 2011) (quoting Xu-Shen Zhou v. S.U.N.Y. Inst. of Tech., 08-CV-0444, 2011 WL 4344025, at *11 (N.D.N.Y. Sep. 14, 2011), vacated in part on other grounds by 499 F. App'x 105 (2d Cir. Oct. 10, 2012)). Accordingly, absent a showing of good cause defendants' unopposed summary judgment motion should be granted, if determined to be facially meritorious. See Allen v. Comprehensive Analytical Group, Inc., 140 F. Supp.2d 229, 231-32 (N.D.N.Y. 2000) (Scullin, C.J.); Leach v. Dufrain, 103 F. Supp. 2d 542, 545-46 (N.D.N.Y. 2000) (Kahn, J.); Henry v. Dinelle, et al., 10-CV-0456, 2011 WL 5975027, *10 (N.D.N.Y. Nov. 29, 2011) (quoting Xu-Shen Zhou v. S.U.N.Y. Inst. of Tech., 08-CV-0444, 2011 WL 4344025, at *11 (N.D.N.Y. Sep. 14, 2011), vacated in part on other grounds by 499 F. App'x 105 (2d Cir. Oct. 10, 2012)).
It should also be noted that the plaintiff's failure to properly oppose defendants' summary judgment motion is not without further consequences. By failing to submit papers in opposition to their motion, plaintiff has left the facts set forth in defendants' Local Rule 7.1(a)(3) Statement unchallenged, thus permitting the court to deem these facts to have been admitted. See Elgamil v. Syracuse Univ., No. 99-CV-611, 2000 WL 1264122, at *1 (N.D.N.Y. Aug. 22, 2000) (McCurn, S.J.) (listing cases); see also Monahan v. New York City Dep't of Corrs., 214 F.3d 275, 292 (2d Cir. 2000) (discussing district courts' discretion to adopt local rules like 7.1(a)(3)).
Local Rule 7.1(a)(3) provides that "[t]he Court shall deem admitted any facts set forth in the Statement of Material Facts that the opposing party does not specifically controvert." See N.D.N.Y.L.R. 7.1(a)(3)(emphasis in original).
Based upon plaintiff's failure to oppose defendants' motion, I recommend that the court review the motion for facial sufficiency, accepting defendants' assertions of facts as set forth in their Local Rule 7.1(a)(3) Statement as uncontroverted to the extent they are supported by accurate record citations, and that the motion be granted if determined to be facially meritorious.
C. Failure to Exhaust Available Administrative Remedies
The Prison Litigation Reform Act of 1996 ("PLRA"), Pub. L. No. 104-134, 110 Stat. 1321 (1996), which imposes several restrictions on the ability of prisoners to maintain federal civil rights actions, expressly requires that "[n]o action shall be brought with respect to prison conditions under section 1983 of this title, or any other Federal law, by a prisoner confined in any jail, prison, or other correctional facility until such administrative remedies as are available are exhausted." 42 U.S.C. § 1997e(a); see also Woodford v. Ngo, 548 U.S. 81, 84 (2006) ("Exhaustion is . . . mandatory. Prisoners must now exhaust all 'available' remedies[.]"); Hargrove v. Riley, No. 04-CV-4587, 2007 WL 389003, at *5-6 (E.D.N.Y. Jan. 31, 2007) ("The exhaustion requirement is a mandatory condition precedent to any suit challenging prison conditions, including suits brought under Section 1983.").
"[T]he PLRA's exhaustion requirement applies to all inmate suits about prison life, whether they involve general circumstances or particular episodes, and whether they allege excessive force or some other wrong." Porter v. Nussle, 534 U.S. 516, 532 (2002). In the event the defendant establishes that the inmate plaintiff failed "to fully complete[] the administrative review process" prior to commencing the action, the plaintiff's complaint is subject to dismissal. Pettus v. McCoy, No. 04-CV-0471, 2006 WL 2639369, at *1 (N.D.N.Y. Sept. 13, 2006) (McAvoy, J.); see also Woodford, 548 U.S. at 93 ("[W]e are persuaded that the PLRA exhaustion requirement requires proper exhaustion."). "Proper exhaustion" requires a plaintiff to procedurally exhaust his claims by "compl[ying] with the system's critical procedural rules." Woodford, 548 U.S. at 95; accord, Macias v. Zenk, 495 F.3d 37, 43 (2d Cir. 2007).
At the time defendants filed their motion, the law within this circuit required an analysis pursuant to a three-part test for determining whether dismissal of an inmate plaintiff's complaint was warranted based upon his failure to satisfy the PLRA's exhaustion requirement. See Macias, 495 F.3d at 41-42; Hemphill v. New York, 380 F.3d 680, 688-89 (2d Cir. 2004). That test had been articulated by the Second Circuit as follows:
Depending on the inmate's explanation for the alleged failure to exhaust, the court must ask whether administrative remedies were in fact available to the prisoner. The court should also inquire as to whether the defendants may have forfeited the affirmative defense of non-exhaustion by failing to raise or preserve it, or whether the defendants' own actions inhibiting the inmate's exhaustion of remedies may estop one or more of the defendants from raising the plaintiff's failure to exhaust as a defense. If the court finds that administrative remedies were available to the plaintiff, and that the defendants are not estopped and have not forfeited their non-exhaustion defense, but that the plaintiff nevertheless did not exhaust available remedies, the court should consider whether special circumstances have been plausibly alleged that justify the prisoner's failure to comply with administrative procedural requirements.Hemphill, 380 F.3d at 686. Since Hemphill and its companion cases were decided, the "special circumstances" exception to the exhaustion requirement has been rejected by the Supreme Court. See Ross v. Blake, 136 S. Ct. 1850, 1858 (2016). Whether non-exhaustion is excusable now exclusively "hinges on the 'availab[ility]' of administrative remedies." Id.
Hemphill was decided in 2004 as one of the several cases addressing exhaustion. The other companion cases were Giano v. Goord, 380 F.3d 670 (2d Cir. 2004); Abney v. McGinnis, 380 F.3d 663 (2d Cir. 2004); Johnson v. Testman, 380 F.3d 691 (2d Cir. 2004); and Ortiz v. McBride, 380 F.3d 649 (2d Cir. 2004).
The Supreme Court has identified three circumstances in which administrative remedies may be "unavailable." Id. at 1859-1860. First, administrative procedures are unavailable when they "operate[] as a simple dead end - with officers unable or consistently unwilling to provide any relief[.]" Id. at 1859. Second, they are unavailable when "an administrative scheme [is] so opaque that it becomes, practically speaking, incapable of use." Id. Third, they are unavailable "when prison administrators thwart inmates from taking advantage of a grievance process through machination, misrepresentation or intimidation." Id. at 1860.
With one exception, plaintiff's claims are based upon circumstances that were the subject of grievances filed by the plaintiff, and pursued to completion. Plaintiff's SAC asserts a cause of action for violation of his rights under the First Amendment based on defendant Haskell's refusal to obtain a copy of the book One Flew Over The Cuckoo's Nest. In support of their motion seeking dismissal of that claim, defendants have adduced record evidence, in the form of an affidavit from WCCF Jail Administrator Michael Gates, showing that plaintiff failed to file a grievance related to defendant Haskell denying him access to that book. Dkt. No. 49-6 at 15. The record evidence further establishes that a grievance procedure was available to plaintiff, and that, in fact, plaintiff utilized the grievance procedure on the same day that he was allegedly denied that book to grieve about defendant Haskell denying him access to magazines. Dkt. No. 49-6 at 46-47. The record additionally shows that plaintiff utilized the grievance procedure on fifteen other occasions in 2013. See Dkt. No. 49-6 at 84-163.
Plaintiff has failed to offer any excuse for his failure to grieve defendant Haskell's alleged denial of his request to obtain a copy of the book One Flew Over The Cuckoo's Nest. Nor is there anything in the record to support a finding that the grievance procedure in place at the WCCF was not available to the plaintiff. Accordingly, I recommend that plaintiff's claim based on defendant Haskell's alleged denial of plaintiff's request to obtain a copy of the book One Flew Over The Cuckoo's Nest be dismissed for failure to exhaust administrative remedies.
D. Analysis of Plaintiff's First Amendment Claims
In his SAC, plaintiff alleges that defendant Barboza maintained a predetermined list of prohibited materials on which defendant Haskell relied in depriving Rapp of certain requested magazines. Dkt. No. 30 at 7. Plaintiff also complains about a policy at the WCCF that limits the manner in which inmates may access books and other publications. Id. at 8. Plaintiff's SAC is nonetheless ambiguous, in that it does not clearly state whether he is challenging the existence of a WCCF policy restricting inmate access to "sexually explicit material, nude photographs or any other offensive content" or instead the application of that policy. In addressing defendants' motion, I will analyze both issues as they arise under the First Amendment.
Defendant Haskell has denied having had any conversation with plaintiff regarding his access to printed materials and publications at the WCCF. Dkt. No. 49-8 at 3. Since plaintiff's SAC is sworn to under penalty of perjury, Dkt. No. 30 at 13, however, and flatly contradicts the denial, an issue of fact exists, and I must assume for purposes of deciding this motion that such a conversation occurred.
1. Facial Validity
It is well-settled that the First Amendment serves to protect the flow of information to prisoners; thus, any limitations on prisoner access to information must be reasonably related to a legitimate penological interest. See Turner v. Safley, 482 U.S. 78, 89-90 (1987); see also Thornburgh v. Abbott, 490 U.S. 401, 407-08 (1989); Bell v. Wolfish, 441 U.S. 520, 545, 550-51 (1979). The Supreme Court has identified certain factors that inform the issue of whether a prison regulation reasonably relates to a legitimate penological interest, including whether (1) there exists a rational relationship between the regulation and the proffered legitimate governmental interest; (2) inmates have available alternative means of exercising their asserted rights; (3) accommodating the asserted constitutional right will have a significant "ripple effect" on fellow inmates or prison staff, and the allocation of prison resources; and (4) alternative means exist for the prison to easily serve its interests that would not infringe upon the rights of prisoners. See id. at 89-90; Giano v. Senkowski, 54 F.3d 1050, 1053-1054 (2d Cir. 1995). Courts have applied this four-factor test, developed principally to apply in cases involving convicted inmates, to regulations impacting pretrial detainees as well. See, e.g., Mauro v. Arpaio, 188 F.3d 1054, 1058-1060 (9th Cir. 1999) (applying Turner factors to First Amendment free exercise claim brought by pretrial detainee); see also Bell, 441 U.S. at 536-38 (noting that proper inquiry in determining constitutionality of conditions of pretrial detention is whether such conditions amounted to punishment of detainee, which depends on whether conditions were imposed for the purpose of punishment or were merely incidents of some other legitimate governmental purpose).
In the instant case, defendants have articulated a legitimate penological interest in prohibiting inmates housed at the WCCF from having access to sexually explicit material. The interest identified seeks to reduce the incidence of inmate violence. Dkt. No. 49-6 at 49, Dkt. No. 49-10 at 14. A rational relationship between prohibiting inmates from accessing sexually explicit material and the legitimate interest in reducing inmate violence exists because, as was explained to plaintiff by Sergeant Michael Harp, the introduction of sexually explicit material into a prison setting would likely be regarded as permitting possession of a commodity in high demand, which "may be used as barter and may cause less fortunate [inmates] to resort to violence to obtain such publications." Dkt. No. 49-6 at 49. The fact that a determination of whether material is "sexually explicit" is made on a "case by case basis," Dkt. No. 49-8 at 3, bolsters defendants' claim, evidencing an intent by the WCCF policymakers to ensure that restrictions are rationally related to the legitimate objective.
Plaintiff does not dispute that prison safety and security are legitimate penological interests. See also Campos v. Coughlin, 854 F.Supp. 194, 207 (S.D.N.Y. 1994) ("[P]rison security and penological institutional safety goals are indeed a most compelling governmental interest."); Muhammad v. Coughlin, 904 F.Supp. 161 (S.D.N.Y. 1995) (finding compelling interest in internal order in prisons); Breland v. Goord, No. 94 Civ. 3696, 1997 WL 139533, at *4 (S.D.N.Y. March 27, 1997) ("There is no question that prison safety and security are legitimate penological interests.").
Commission of Correction Minimum Standards Section 7026.2 subsection (e) provides that "[w]hen the introduction into a facility of any printed material or publication is thought to constitute a threat to the safety, security or good order of the facility, such printed material or publication shall be forwarded to the chief administrative officer. The chief administrative officer shall read and review such printed material and shall make a determination as to whether it shall be censored." 9 NYCRR § 7026.2.
The second Turner factor is not dispositive in this case. While there are no alternative means for inmates at WCCF to access sexually explicit materials, a blanket restriction on materials that create a safety risk at a prison facility does not alone render the limitation unconstitutional, particularly where, as here, inmates are allowed access to a broad range of other publications. See, e.g., Thornburgh, 490 U.S. at 403-05, 417 (upholding the facial validity of regulations barring "sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity" and concluding that the second Turner factor was satisfied because "the regulations at issue in the present case permit a broad range of publications to be sent, received, and read").
With respect to the third Turner factor, it is foreseeable that allowing inmates to access sexually explicit material could have a significant ripple effect on fellow inmates and prison staff through an increased incidence of violence and unwanted inmate bartering. See, e.g., Thornburgh, 490 U.S. at 418.
As it relates to the fourth Turner factor, plaintiff has not offered an argument for an alternative that fully accommodates prisoners' rights with respect to accessing sexually explicit materials at de minimis cost to valid penological interests. As such, there is no proof in the record that the WCCF's policy regarding sexually explicit material represents "an 'exaggerated response' to the problem at hand." Thornburgh, 490 U.S. at 418.
Having examined the relevant factors, and because plaintiff has failed to adduce record evidence showing that denying him access to the desired magazines was for the purpose of punishment, as opposed to in furtherance of a legitimate governmental purpose, I conclude that the WCCF's policy regarding sexually explicit materials is not constitutionally improper. Accordingly, I recommend dismissal of plaintiff's First Amendment claim to the extent it is based on alleged facial unconstitutionality of the WCCF's policy.
Since defendants Haskell and Barboza are not policymakers, plaintiff's claim against them should alternatively be dismissed for lack of personal involvement to the extent it is based on the existence of the policy, as distinct from its application. See, e.g., Gabriel v. County of Herkimer, 889 F.Supp.2d 374, 396 (N.D.N.Y. 2012) (concluding that a nurse who was "not a policymaker" could not "be liable for any unconstitutional policies of the County, should they be found"); Zikianda v. County of Albany, 12-cv-1194, 2015 WL 5510956, at *26 (N.D.N.Y. Sept. 15, 2015).
2. Validity as Applied
To the extent that the plaintiff is complaining regarding the application of the policy, his claim against defendant Barboza is based solely on a hearsay statement allegedly made to him by defendant Haskell, suggesting that defendant Barboza maintains a list of prohibited materials. Dkt. No. 30 at 7. The record evidence adduced by defendants shows that defendant Barboza did not maintain any such list and, further, that determinations regarding what constitutes sexually explicit material are made on a case by case basis. Dkt. No. 49-7 at 2-3. Since there exists no admissible evidence in the record showing that defendant Barboza played any role in the alleged determination that the magazines requested by the plaintiff constitute sexually explicit material, I recommend that plaintiff's claim against her arising from her alleged unconstitutional application of the WCCF's policy be dismissed for lack of personal involvement. See Wright v. Smith, 21 F.3d 496, 501 (2d Cir. 1994) ("Personal involvement of defendants in alleged constitutional deprivations is a prerequisite to an award of damages under [section] 1983."); Selah v. Fischer, 09-cv-1363, 2015 WL 1893340, at *9 (N.D.N.Y. Apr. 15, 2015) (Report-Recommendation of Peebles, M.J., adopted by Sharpe, C.J.) ("Because the record is lacking in any evidence of defendant Fischer's personal involvement in the decisions rendered that allegedly denied plaintiff the right to exercise his chosen religion, I recommend that all claims against him be dismissed.").
Plaintiff's claim against defendant Haskell fares no better. In his SAC, plaintiff claims that he asked defendant Haskell whether he could receive magazines such as the Sports Illustrated Swimsuit Edition, Playboy, Maxim, American Curves, and XXL and was told that they were prohibited based upon a list prepared by defendant Barboza. Dkt. No. 30 at 7. In his affidavit, defendant Haskell expressly contradicts that allegation, stating "[p]laintiff Rapp and I never had any conversations whatsoever regarding his access to printing materials and publications." Dkt. No. 49-8 at 3. Based upon these conflicting accounts, an issue of fact exists as to whether the two had a conversation regarding those materials.
Nonetheless, in his SAC plaintiff does not allege that defendant Haskell was the decision-maker who denied him access to the requested magazines. Indeed, plaintiff's SAC is non-specific on this point. In light of the vague allegations in the SAC and the unopposed record evidence subsequently adduced by defendants, I find that no reasonable factfinder could conclude that defendant Haskell denied plaintiff's request for access to those materials.
Even if a factfinder could conclude, based upon the current record, that defendant Haskell denied plaintiff access to the materials determined to be sexually explicit, I would recommend that plaintiff's claim against him be dismissed on the basis of qualified immunity, and specifically based upon the fact that what may constitute "sexually explicit materials" is not so clearly established that a reasonable official would understand that finding the content of a magazine sought by plaintiff to be sexually explicit violates his rights under the First Amendment. See Prison Legal News v. Stolle, 13-cv-0424, 2014 WL 6982470, at *15-*16 (E.D. Va. Dec. 8, 2014) (concluding that jail employees were shielded, under the doctrine of qualified immunity, from a claim for money damages based on their determination that "photographs of women and men in lingerie, skimpy swimsuits, or other revealing clothing" constituted "sexually explicit materials" because "the state of the relevant law . . . does not indicate that a jail is prohibited from excluding all incoming publications containing revealing images of individuals in sexual poses overtly intended to sexually arouse the viewer"); Elfand v. County of Sonoma, 11-cv-0863, 2013 WL 1007292, at *4 (N.D. Cal. Mar. 13, 2013) (upholding the constitutionality of a jail's censorship of issues of Maxim Magazine and GQ Magazine that displayed pictures of woman and men in "underwear, bikinis, and tight and scant clothing revealing breasts and buttocks" to include an image of a woman in a "see-through bra and 'thong' underwear with her buttocks raised"); Woods v. Director's Review Committee, 11-cv-1131, 2012 WL 1098365, at *1, *4 (S.D. Tex. Mar. 30, 2012) (concluding that the defendants were entitled to qualified immunity in a case challenging a Texas prison's censorship of nude photos that had been "blurred in such a way as to disguise or cover up any exposed nudity," noting that there was "no clear statement" in the law that would put an official on notice that it was unlawful to ban such images). Indeed, plaintiff has not argued to the contrary. Nor has plaintiff cited any cases in which prison officials were held to have violated a prisoner's First Amendment rights by withholding similar images.
Plaintiff's remaining claim relates to enforcement of the WCCF policy that requires "all books, magazines and periodicals to . . . be of a paperback version [and] received directly from a recognized vendor through the mail." Dkt. No. 49-6 at 2-3, 26. Plaintiff alleges that he "asked [defendant] Haskell if [he] could get books dropped off to [him]" and was told that books "had to come from a vendor," which prompted plaintiff to file a grievance. Dkt. No. 30 at 8. Plaintiff further alleges that he "asked [defendant] Barboza about the policy on May 15, 2012 and she stated that that is how it is and the only person she has to answer to is Sheriff York." Id. Plaintiff has not identified what books he wanted dropped off to him, or how defendants otherwise applied the policy in an unconstitutional manner. Rather, plaintiff has alleged only that the defendants told him what he could not do as a general matter due to the existence of the policy. The court therefore construes this aspect of plaintiff's First Amendment claim only as a challenge to the existence of the policy itself, and not as a challenge to the application of that policy.
It is undisputed that neither defendant Barboza nor defendant Haskell are policymakers. Dkt. Nos. 49-7 at 3 and 49-8 at 3. Moreover, there exists no evidence in the record from which a rational factfinder could conclude that either defendant was personally involved in the creation of the paperback vendor policy. Dkt. No. 49-6 at 2; Dkt. No. 49-7 at 3; Dkt. No. 49-8 at 3. Accordingly, plaintiff's claim against them arising from the alleged unconstitutional nature of the paperback vendor policy must be dismissed for lack of personal involvement. See Gabriel, 889 F.Supp.2d at 396; Zikianda, 2015 WL 5510956, at *26.
Defendants have also articulated a legitimate penological interest in maintaining the policy - that is, to promote internal security by reducing the risk of hidden contraband within the facility. Dkt. No. 49-6 at 5; Dkt. No. 49-9 at 5. In addition, this policy does not ban certain materials altogether, but rather creates an alternative means for an inmate to access these materials, and plaintiff has failed to point to an alternative that would more fully accommodate his rights at de minimis cost to the facility's valid penological interests. Under such circumstances, plaintiff's First Amendment claim related to the alleged unconstitutionality of the policy should alternatively be dismissed on the merits. See Jones v. Salt Lake County, 503 F.3d 1147, 1158-1159 (10th Cir. 2007) (concluding that "the County Jail's paperback book policy, which allows inmates to obtain paperback books from the jail library and, with permission, the publisher, is rationally related to the legitimate governmental objective of prison security [because] [a]llowing inmates to purchase paperback books only from the publisher prevents contraband from being smuggled into the jail and lessens the administrative burden on jail personnel who must inspect each book[,]" noting also the existence of "alternative means of obtaining reading material" where inmates could obtain books from the jail library and possess newspapers and certain magazines).
IV. SUMMARY AND RECOMMENDATION
Plaintiff claims that defendants Barboza and Haskell deprived him of access to certain written materials in violation of his First Amendment rights. Plaintiff failed to exhaust his administrative remedies with respect to his claim that he was denied access to a book, and has failed to establish any personal involvement of defendants Barboza and Haskell with respect to his other claims. Plaintiff has also not established that any WCCF policy is unconstitutional and, even assuming defendant Haskell denied Rapp access to magazines deemed to be "sexually explicit materials," this claim should be dismissed on the basis of qualified immunity. Accordingly, it is hereby respectfully
RECOMMENDED, that defendants' motion for summary judgment (Dkt. No. 49), be GRANTED, and that plaintiff's second amended complaint be DISMISSED.
NOTICE: Pursuant to 28 U.S.C. § 636(b)(1), the parties may lodge written objections to the foregoing report. Such objections must be filed with the clerk of the court within FOURTEEN days of service of this report. FAILURE TO SO OBJECT TO THIS REPORT WILL PRECLUDE APPELLATE REVIEW. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72; Roldan v. Racette, 984 F.2d 85 (2d Cir. 1993).
It is hereby ORDERED that the clerk of the court serve a copy of this report and recommendation upon the parties in accordance with this court's local rules. Dated: July 19, 2016
Syracuse, NY
/s/_________
David E. Peebles
U.S. Magistrate Judge