The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT
Plaintiff, Joseph Fields, III, filed this pro se suit under 42 U.S.C. § 1983 against defendants, Douglas L. Weber, Warden, and Daryl Slykhuis, Deputy Warden, of the South Dakota State Penitentiary (SDSP). Fields and defendants both move for summary judgment. Both oppose the other's motion for summary judgment. For the reasons stated below, defendants' motion for summary judgment is granted and Fields's motion is denied.
Both parties have submitted Statements of Undisputed Facts in support of their respective motions for summary judgment. See Docket 53, 63. Defendants also responded to Fields's statement of facts. Docket 65. The following facts are not disputed.
Fields is incarcerated at the SDSP in Sioux Falls, South Dakota. Docket 63, ¶ 1.*fn1 He is an enrolled member of the Omaha Tribe of Nebraska, which is a federally recognized Indian tribe. Id. at ¶ 2. Weber and Slykhuis are employed by the South Dakota Department of Corrections (DOC), as Warden and Deputy Warden of the SDSP. Id. at ¶¶ 5-6.
Inmate mail at the penitentiary is categorized as either packages or other correspondence. Id. at ¶ 10. The two types of mail are separately reviewed by security staff to ensure that contraband does not enter the penitentiary. Id. at ¶ 10-11. Under both DOC and SDSP policy, pornography is classified as contraband. Due to the volume of mail received at the penitentiary, staff do not look at every page of every book, magazine, or catalog. Docket 53, ¶ 13. If a member of the security staff is unsure of whether an item would be considered pornographic, Slykhuis is consulted. Id. at ¶ 15. If multiple publications are involved, Slykhuis may receive a list, which does have the inmate's name and number on it, but generally he only examines the publication, with no indication as to which inmate received it. Id. Under policy, the staff members reviewing inmate mail do not consider which inmate is the recipient. Id. at ¶ 17. It is possible that pornographic material may slip through the mail system and later be confiscated by penitentiary staff. Id. at ¶ 16.
The DOC pornography policy defines pornographic material as "books, pamphlets, magazines, periodicals, or any other publication or material that features nudity or sexually-explicit conduct. Pornographic materials may also include books, pamphlets, magazines, periodicals, or other publications or material that features or includes photographs, drawings, or other graphic depictions of nudity or sexually explicit material." Docket 55, Affidavit of Daryl Slykhuis, Exhibit 1. Under the same policy, nudity is defined as "a pictorial or other graphic depiction where male or female genitalia or female breasts are exposed." Id. The pornography policy contains an exception for "[p]ublished material containing nudity illustrative of medical, educational or anthropological content[.]" Id.
Fields challenges the application of this exception, asserting he was denied books that other inmates were permitted to receive through the SDSP system because he is Native American. Specifically, he alleges that inmate James Smith was permitted to receive Drawing for Beginnersby Franciso A. Server, inmate Drew King received Fantasy Art Workshop by John Howe, inmate Michael Smith received Bud's Art Books, Issue No. 802P, and inmate Daniel Bolls received Bud's Art Catalog, Issue No. 907F. Docket 53, ¶ 28. Defendants dispute this allegation. First, defendants note that Fields's mailroom rejection notices do not indicate that Fields has ever been denied Drawing for Beginners. Id. at ¶ 32. Defendants admit that King's file does contain mailroom rejection notices that indicate he has been denied books or other correspondence pursuant to the DOC pornography policy. Id. at ¶ 34.
The transaction ledger for King's trust account shows that he did not order or purchase Fantasy Art Workshop through the inmate banking system. Id. at ¶ 35.*fn2 Fields was denied Fantasy Art Workshop because it depicted nudity or encouraged sexual behavior. Id. at ¶ 36. There is no indication that the item from Bud's Art that Smith received is the same issue that Fields was denied. Id. at ¶ 42. Penitentiary records also indicate that Bolls did not purchase Bud's Art Catalog through the inmate system and that he was denied books or other correspondence according to the DOC pornography policy. Id. at ¶ 45.
Fields appealed the denial of his books using the internal administrative remedy process. The DOC has implemented a two-step process for inmate complaints concerning the application of any policy, directive, rule, or procedure. First, the inmate must file an informal resolution request within thirty days of the action forming the basis of the grievance. Id. at ¶ 24. If the issue is not resolved informally, the inmate must file a request for an administrative remedy within five days of the informal resolution request response. Id. Weber reviews the inmates' requests for administrative remedy and provides responses to them. Id. Weber responded to Fields's request for administrative remedies relating to the denial of his books pursuant to the pornography policy. Id. at ¶ 25.
Fields challenges the application of the pornography policy to him, arguing it deprived him of the equal protection of the laws, violating the Fourteenth Amendment. He also challenges both the DOC pornography and administrative remedy policies, asserting they were illegally promulgated, and as such, violate his due process rights. He seeks both damages and injunctive relief.
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment "should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Only disputes over facts that might affect the outcome of the case under the governing substantive law will properly preclude summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not appropriate if a dispute about a material fact is genuine, that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Id.
The moving party bears the burden of bringing forward sufficient evidence to establish that there are no genuine issues of material fact and that the movant is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The nonmoving party is entitled to the benefit of all reasonable inferences to be drawn from the underlying facts in the record. Vette Co. v. Aetna Cas. & Sur. Co., 612 F.2d 1076, 1077 (8th Cir. 1980). The nonmoving party may not, however, merely rest upon allegations or denials in its pleadings, but must set ...