The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
Plaintiff, Kevin L. Hughbanks, filed a pro se civil rights lawsuit under 42 U.S.C. § 1983 against defendants. Defendants move for summary judgment. Hughbanks opposes their motion. Defendants' motion is granted.
In the light most favorable to Hughbanks, the nonmoving party, the facts are as follows: Hughbanks is incarcerated at the Mike Durfee State Prison in Springfield, South Dakota. Docket 60 at ¶ 1. Although Hughbanks denies this, his mailing address indicates he is incarcerated there. Docket 110 at ¶ 1. Hughbanks is a convicted sex offender, serving a sentence for third-degree rape and possession of child pornography. Docket 60 at ¶ 1. While Hughbanks also denies this, he has not cited to any evidence in the record to support his contention. See Docket 34-1, Hughbanks' Classification Custody Form (showing Hughbanks is serving a ten-year sentence for third-degree rape and possession of child pornography).
Hughbanks asserts his claims against defendants in both their individual and official capacities. Docket 60 at ¶ 8. Hughbanks challenges the South Dakota Department of Corrections' (DOC) correspondence policy, claiming that it violates the First and Fourteenth Amendments because the policy provides that unsolicited third-class/bulk-rate mail and free catalogs will not be delivered to inmates and inmates will not receive a rejection notice when these items are not delivered. Second, Hughbanks claims defendants violated his First Amendment rights when they rejected the books Dirty Spanish and The Quotable Bitch.*fn1 Hughbanks' third claim is that security officer Randy Stevens subjected him to cruel and unusual punishment in violation of the Eighth Amendment by making comments, which Hughbanks characterizes as threats, in front of other inmates. Hughbanks asks that "prison officials deliver all mail that is sent to him that does not directly violate policy, including catalogs, magazines and pictures" and that "prison officials be ordered to stop using the rate/cost of postage or the cost of the item (catalogs) as a means to determine whether the item will be allowed or not." Docket 110 at ¶ 7. Hughbanks also seeks an order that prison officials provide him with Dirty Spanish and The Quotable Bitch. Finally, Hughbanks requests compensatory and punitive damages.
A. The Bulk-Rate Mail Ban and Rejection Notices Inmate mail at the Mike Durfee State Prison is divided into two categories-packages and other correspondence. Docket 60 at ¶ 9. Packages are sent to the property office and generally contain books or personal property. Id. Magazines, catalogs, letters, and other correspondence are generally sent to the mailroom, although some catalogs are contained within packages sent to the property office. Id. Different staff work in each area. Id. at ¶ 10. Currently, Randy Stevens works in the property office and Nicole St. Pierre works in the mailroom. Id. The volume of mail varies that they are responsible for receiving, viewing, and processing. Id. at ¶ 11. Stevens estimates that he handles "roughly 30-35 incoming inmate packages per week, depending on the time of year." Id. St. Pierre estimates that she receives and reviews approximately "350 letters, 50 magazines, 225 inmate outgoing letters, and 85 newspapers and packages each day, based on a recent count in January 2011." Id. Both Stevens and St. Pierre have additional responsibilities as well. Id. Hughbanks disputes this, asserting that "[m]ost of the actual work that is performed in the property office is performed by twenty-five cents per hour inmate workers that [Stevens] employees [sic]." Docket 110 at ¶ 11. When the mailroom and property staff receive and review inmate mail, they follow both DOC and Mike Durfee State Prison (MDSP) policies, including the DOC Offender Correspondence, DOC Pornography, DOC Inmate Personal Property, and MDSP Memorandum-- Inmate Personal Property policies.Docket 60 at ¶ 12. Hughbanks disputes this. Docket 110 at ¶ 12.
The DOC correspondence policy implemented at MDSP and all state correctional institutions provides that, "[f]ree advertising materials, fliers, non-subscriptive third class/bulk rate mail, non-subscriptive or free catalogues or pamphlets will not normally be delivered to offenders." Docket 60 at ¶ 13. Because the policy provides that these materials will not be delivered if they are received, staff are not required to notify the inmate that the materials have been destroyed. Id. at ¶ 14. There is also no requirement that prison staff notify the publisher or other correspondent if an item is rejected or destroyed. Id. Hughbanks interprets this policy differently, arguing "[s]tating that an item will not be delivered to an inmate in policy does not mean a rejection notice [to the inmate] is not required." Docket 110 at ¶ 14.
The prison receives a substantial amount of free advertising materials, fliers, non-subcriptive third-class/bulk-rate mail, and non-subscriptive or free catalogs or pamphlets. Docket 60 at ¶ 15. During January 2011, St. Pierre received and destroyed approximately 140 materials of this nature per week. Id. January is one of the slower mail months. Id. Stevens estimates he destroys approximately 10 materials of this nature per week. Id. Some bulk mail, like Bargain Books catalogs, are shipped to the prison in loads of 75-100 pieces at one time. Id. Hughbanks points out that the prison also receives "requested [solicited] third-class/bulk rate mail and catalogs addressed to inmates." Docket 110 at ¶ 15.
Hughbanks appealed the correspondence policy's ban on bulk-rate mail using the administrative remedy process. On May 1, 2010, Hughbanks filed an informal resolution request, arguing that the mailroom was not complying with the policy. Docket 60, ¶ 32. Hughbanks thought the policy required mailroom staff to notify him whenever any correspondence, including bulk-rate mail, was rejected and the reason for the rejection. Id. He requested that he receive notice of any piece of mail not delivered to him. Id. Defendant Tami DeJong responded by identifying the policy language, which provided that free advertising materials, including non-subscriptive or free catalogs, will normally not be delivered to offenders. Id. Hughbanks subsequently filed a request for an administrative remedy, arguing that the mailroom staff was not delivering his catalogs and he had not received any mailroom rejection notices. Id. Defendant Susan Jacobs investigated Hughbanks' claim and prepared a response for Warden Dooley. Id. at ¶ 35. Warden Dooley stated in his response that free advertising materials, fliers, non-subscriptive third-class/bulk-rate mail, non-subscriptive or free catalogs, or pamphlets are not required to be delivered to inmates and do not require a rejection notice. Id.
Hughbanks subsequently filed grievances and administrative remedy requests alleging that the policy violated his First and Fourteenth Amendment rights and the First and Fourteenth Amendment rights of publishers. Id. at ¶¶ 26, 40. Defendants responded with the language of the correspondence policy and by noting that the policy would be reviewed on an annual basis. Id. at ¶¶ 26-43.
The DOC correspondence policy provides that correspondence or publications may be rejected if it encourages sexual behavior or may be detrimental to an offender's rehabilitation. Id. at ¶ 44. The policy specifically states that "included in this category are writings or illustrations depicting or describing child pornography, bestiality, homosexuality, or acts of sexual violence." Docket 62-3, Offender Correspondence Policy.
Under the DOC pornography policy, pornography and sexually explicit material are considered contraband. Docket 60 at ¶ 46. Pornographic material is defined as "books, pamphlets, magazines, periodicals, or any other publication or materials that feature nudity or sexually explicit conduct" or "features or includes photographs, drawings, or other graphic depictions of nudity or sexually explicit material." Id. at ¶ 46. Under the policy, sexually explicit is defined as "written or pictorial depictions of actual or simulated sexual acts including but not limited to sexual intercourse, oral sex, or masturbation." Id. at ¶ 47. Moreover, under the sex offender restrictions policy, the warden may prohibit any sex offender from possessing specific items of personal property. Id. at ¶ 48.
Hughbanks is a convicted sex offender. His psychosexual evaluation provides that he should not be allowed any use of or exposure to pornography, erotica, or access to the Internet. Id. at ¶ 49. Hughbanks received one disciplinary report for having a pornographic picture of an adult woman and one disciplinary report for engaging in consensual sexual contact with another inmate. Docket 110 at ¶ 50.
Mailroom and property office staff review every item of mail for contraband and prohibited content. If they find pictures or words that they think contain prohibited material, they may ask their supervisor or the associate warden to review the material. Docket 60 at ¶ 51. If the correspondence is a book, magazine, or other mailing that has been previously rejected for its content, they may automatically reject the book without forwarding it to a supervisor or assistant warden. Id. When Associate Warden Jacobs reviews a mailing, she sometimes asks Warden Dooley to help her review the item to determine whether it should be rejected. Id. at ¶ 52. If she determines the mailing should be rejected, the inmate recipient receives a mailroom correspondence rejection notice. Id. If correspondence is rejected, it may be returned to sender or discarded by request of the inmate or by his failure to respond to the rejection notice. Id. at ¶ 54. In the alternative, the portion of the mailing not in violation of the policy may be given to the offender. Id. Hughbanks claims that inmates are also permitted to have the rejected item mailed out to others. Docket 110 at ¶ 54. The inmate must provide written notice to mailroom staff advising whether the correspondence is to be returned to sender or destroyed; if the inmate fails to provide such notice within 60 days, the item is destroyed. Docket 60 at ¶ 55. Inmates may use the administrative remedy process to appeal a rejection notice. Id. at ¶ 56.
On March 16, 2010, defendant Randy Stevens was responsible for reviewing inmate mail. Id. at ¶ 57. Hughbanks received eight books that day; seven did not contain any prohibited material. Id. The eighth, Dirty Spanish, was rejected because it contained offensive terms and some sexually explicit drawings. Id. Hughbanks disputes that the book contained offensive terms and sexually explicit drawings, noting that he has not been permitted to view the book. Docket 110 at ¶ 57.
Stevens sent Hughbanks a rejection notice, informing him that the book was rejected because it violated a prohibited act or any other rule, regulation, or directive governing the DOC and the prison and because it advocates violence or may cause violence or disruption. Docket 60 at ¶ 58. Hughbanks concedes that these were the reasons given, but he objects to defendants' characterization of the book. After receiving the rejection notice, Hughbanks had the book mailed to his mother, Martha Hughbanks. Docket 60 at ¶ 61.
The complete title to Dirty Spanish is Dirty Spanish Everyday Slang from 'What's Up' to 'F*ck Off.' Id. at ¶ 59. The author explains that the book is "designed to take your Spanish to the next level. So if you're looking for a grammar lesson, you're in the wrong spot. But if you want to tell your friend that he has a tiny dick or to get rid of the douchebag hitting on you in the bar, this is the book for you." Id. One chapter is devoted to "horny Spanish" and another is devoted to "angry Spanish." Id. at ¶ 60. Hughbanks objects to these assertions as "unjustified speculation" and notes that "if his goal was to learn insults or phrases to incite people or solicit sex, [he] could ask his mother, aunt, and numerous Spanish-speaking inmates." Docket 110 at ¶ 60.
Hughbanks appealed the rejection of Dirty Spanish through the administrative remedy process. Docket 60 at ¶ 62. On March 17, 2010, Hughbanks submitted an information resolution request and argued that the book did not advocate violence or pose a threat of serious disruption of the institution or violate a prohibited act. Id. Hughbanks also argued that the rejection violated his First Amendment rights. Id. DeJong responded by informing him that the book was confiscated because it was sexually explicit; Hughbanks asserts he was told it was because it advocates violence. Id. at ¶ 63, Docket 110 at ¶ 63.
On March 19, 2010, Hughbanks filed a request for an administrative remedy and argued that no rule, regulation, directive, or prohibited act supported rejecting Dirty Spanish and that the rejection violated his First Amendment rights. Docket 60 at ¶ 64. Associate Warden Jacobs reviewed the book with Warden Dooley and determined it contained sexually explicit content that was both detrimental to Hughbanks' rehabilitation as a sex offender and otherwise prohibited. Id. at ¶ 65. The administrative remedy response notified Hughbanks that the book had been rejected because it "contains sexually explicit material" and his request to keep the book was denied. Id.
Hughbanks also sent a letter to Secretary of Corrections Tim Reisch regarding the rejection of Dirty Spanish. Docket 60 at ¶ 66. Secretary Reisch had his staff investigate the prison's rejection of the book, and they contacted Warden Dooley for more information. Id. Associate Warden Jacobs responded on Dooley's behalf. Id. at ¶ 67. She explained that Hughbanks was a registered sex offender currently awaiting sex offender treatment. Id. Hughbanks asserts that he has been awaiting treatment for five years and that he does not believe treatment is a realistic option. Docket 110 at ¶ 67. She also told him that the book was rejected under the Sex Offender Restrictions policy, due to the sexually explicit terms contained in the book. Docket 60 at ¶ 67. Because of these terms, the book was not conducive to Hughbanks' rehabilitation. Id. On April 29, 2010, Secretary Reisch responded to Hughbanks by letter. Id. at ¶ 68. The letter assured Hughbanks that Warden Dooley and his staff had reviewed the matter and responded appropriately. Id.
On July 12, 2010, prison officials confiscated portions of Dirty Spanish from Hughbanks. Id. at ¶ 69. During a phone call with his mother, Hughbanks had asked her to photocopy Dirty Spanish four pages at a time and send them to him. Id. Hughbanks asserts that he asked his mother to send the pages in order to "both receive the parts that are not prohibited and to determine which pages were in question since the defendants also ignored requests to provide page numbers in question so that the Plaintiff could have the specific pages in question reviewed for content." Docket 110 at ¶ 69. Hughbanks admitted to possessing the photocopied pages. Docket 110 at ¶ 69.
On July 12, 2010, mailroom staff officer Stevens was responsible for receiving and reviewing inmate mail. Docket 60 at ¶ 70. He opened and examined a book entitled The Quotable Bitch addressed to Hughbanks. Id. Because Stevens was unsure of whether the book was permitted under the DOC and prison policies, he contacted Associate Warden Jacobs. Id. at ¶¶ 70, 71. Associate Warden Jacobs reviewed the content of the book, keeping in mind that Hughbanks was a sex offender. Id. at ¶ 71. She saw several offensive and sexually explicit terms in the book and insolent quotes, which in her opinion could be used against staff or other inmates. Id. Associate Warden Jacobs thought the book would undermine Hughbanks' rehabilitation and accordingly, determined that the book should be rejected. Id. Hughbanks disputes Associate Warden Jacobs' recollection. Docket 110 at ¶ 71.
Associate Warden Jacobs also asked Warden Dooley to help her determine whether the book should be rejected. Docket 60 at ¶ 72. Warden Dooley agreed that the book contained material detrimental to Hughbanks' rehabilitation as a sex offender. Id. Thus, Associate Warden Jacobs told Stevens to reject the book. Id. Hughbanks partially disputes this. He argues that exhibits provided by Associate Warden Jacobs show that she did not receive his psychosexual evaluation until almost two months after the rejection of the book. Docket 110 at ¶ 72. Officer Stevens sent a mailroom property rejection notice to Hughbanks on July 12, 2010, informing him that The Quotable Bitch was rejected. Docket 60 at ¶ 77. The rejection notice stated the book was being rejected because it violated a prohibited act or any other code, rule, regulation, or directive governing the DOC and the prison. Id. at ¶ 78. The notice also provided that the book depicted nudity or encouraged sexual behavior that is criminal in nature or may be detrimental to rehabilitation. Id. Hughbanks concedes that Stevens marked those lines, but he asserts that the response he received when he appealed the rejection was that the book was sexually explicit. Docket 110 at ¶ 78.
Hughbanks did not file any grievances related to the rejection of The Quotable Bitch. Docket 60 at ¶ 79. When Hughbanks received the rejection notice, he was suspended from using the administrative remedy process based on his previous abuse of the process. Id. Hughbanks asserts that he did not abuse the administrative remedy process because defendants have not rejected any of his grievances since the process was reinstated. Docket 110 at ¶ 79.
C. Cruel and Unusual Punishment Claim
On May 20, 2010, Hughbanks filed an informal resolution request and argued that special security officer Randy Stevens had violated the Eighth Amendment prohibition against cruel and unusual punishment. Docket 60 at ¶ 80. Hughbanks asserted that on May 11, 2010, he complained to Stevens about not receiving catalogs. Id. at ¶ 81. Hughbanks alleges that Stevens told him in a loud enough manner in front of other staff and inmates that he would just throw away all of the catalogs and tell everyone there were no catalogs because of Hughbanks. Id. Hughbanks sought Stevens' immediate suspension and termination for his willful endangerment of Hughbanks' safety. Id.
DeJong responded to Hughbanks' grievance on May 21, 2010. Id. at ¶ 82. She told him that his complaint had been forwarded to Stevens' supervisor for investigation. Id. She also told him that the South Dakota Bureau of Personnel Rules prohibit the dissemination of any action that might be taken against Stevens. Id. Hughbanks disputes this, noting that the Bureau of Personnel Rules are not available to inmates and asserting that the prison administration was unwilling to show him the policy. Docket 110 at ¶ 82.
On May 26, 2010, Hughbanks filed a request for administrative remedy, again addressing the issue of Stevens and the comment made in front of other inmates. Docket 60 at ¶ 83. Hughbanks claims this comment violated his Eighth Amendment rights and that Stevens showed indifference to his duty to protect Hughbanks from assaults when he announced that he was going to throw away the catalogs and tell everyone it was because of Hughbanks. Id. Hughbanks requested that Stevens be suspended immediately. Id. Associate Warden Jacobs investigated and prepared a response for Warden Dooley. Id. at ¶ 84. Warden Dooley responded that Hughbanks' complaint was "forwarded to the appropriate supervisor for investigation and any required action" and that the South Dakota Bureau of Personnel Rules "prohibit the dissemination of any action that might be taken against the state employee." Id. Hughbanks disputes this, asserting that there is no evidence that an investigation was performed and that no one spoke to him as a part of the alleged investigation. Docket 110 at ¶ 84.
Stevens denies that he made any comments loudly or in the presence of other inmates that he would throw away the catalogs and tell everyone that it was because of Hughbanks. Docket 60 at ¶ 85. Hughbanks argues that this is a lie and that the "[t]hreat is evidenced by Stevens fulfilling his threat and that the catalogs for Edward R. Hamilton are no longer available to inmates. Docket 110 at ¶ 85.
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." 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 ...