Self v. Horel et al, No. 3:2007cv05347 - Document 29 (N.D. Cal. 2008)

Court Description: ORDER GRANTING 11 DEFENDANTS' MOTION FOR SUMMARY JUDGMENT. Signed by Judge Maxine M. Chesney on November 24, 2008. (mmcsec, COURT STAFF) (Filed on 11/24/2008)
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Self v. Horel et al Doc. 29 1 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE NORTHERN DISTRICT OF CALIFORNIA 9 ) ) ) Plaintiff, ) ) v. ) ) ROBERT HOREL, Warden, R.L. JOHNSTON, Captain, R. TUCKER, ) ) Correctional Officer, ) ) Defendants. _______________________________ ) ERIK RAY SELF, 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 No. C 07-5347 MMC (PR) ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT (Docket No. 11) On October 19, 2007, plaintiff, a California prisoner incarcerated at Pelican Bay State 18 Prison (“PBSP”) and proceeding pro se, filed the above-titled civil rights action under 42 19 U.S.C. § 1983. The Court, upon finding plaintiff’s allegations stated a cognizable claim for 20 the violation of his First Amendment rights, ordered the complaint served and directed 21 defendants to file a dispositive motion or, alternatively, indicate they were of the opinion that 22 plaintiff’s claims could not be resolved by such a motion. 23 Now before the Court is the motion for summary judgment filed by defendants. 24 Plaintiff has filed opposition, and defendants have filed a reply. 25 // 26 // 27 // 28 // Dockets.Justia.com BACKGROUND1 1 For the Northern District of California United States District Court 2 At all times relevant to the allegations in the complaint, plaintiff was confined in the 3 Security Housing Unit (“SHU”) at PBSP, and defendant R. Tucker (“Tucker”) was a 4 Property Officer at the SHU. As a Property Officer, Tucker’s responsibilities include 5 reviewing publications purchased by inmates in order to determine whether the items are 6 allowed in prison. (Decl. R. Tucker Supp. Mot. Summ. J. (“Tucker Decl.”) ¶ 1.) In 7 particular, Tucker reviews publications for compliance with prison regulations that govern 8 contraband, which include a regulation that prohibits inmates from possessing “[s]exually 9 explicit images that depict frontal nudity in the form of personal photographs, drawings, 10 magazines, or other pictorial format.” Cal. Code Regs, tit. 15, § 3006(c)(17).2 (Tucker Decl. 11 ¶ 2.) Sexually explicit material is defined as “material that shows the frontal nudity of either 12 gender, including the exposed female breast(s) and/or the genitals of either gender.” CCR 13 § 3006(c)(17)(A). (Id.) 14 On April 19, 2007, Tucker reviewed several books that plaintiff had ordered from an 15 outside vendor, including “The Practical Guide to Drawing.” During her review, Tucker 16 discovered that at least seven pages of “The Practical Guide to Drawing” depicted explicit 17 images of frontal nudity, including exposed female breasts and male and female genitalia. 18 (Tucker Decl. ¶ 3.) Tucker then informed plaintiff by institutional mail that, under CCR 19 § 3006(c)(17), “The Practical Guide to Drawing” would not be allowed into the prison. (Id. ¶ 20 4; Compl. ¶ 8.) 21 Thereafter, plaintiff submitted an inmate appeal, claiming CCR § 3006(c)(17) had 22 been misapplied because “The Practical Guide to Drawing” was an “educational/art book.” 23 (Compl. Ex. 4.) Plaintiff’s appeal was denied by Tucker at the informal level of review. 24 25 1 The following facts are undisputed and are derived from plaintiff’s verified complaint and the parties’ exhibits. See Schroeder v. McDonald, 55 F.3d 454, 460 & nn.10-11 (9th Cir. 26 1995) (holding verified complaint may be used as opposing affidavit under Rule 56 if based on personal knowledge and sets forth specific facts admissible in evidence). 27 2 28 Unless otherwise noted, all further references to code sections are to title 15 of the California Code of Regulations, hereinafter “CCR.” 2 1 (Compl. ¶ 11 & Ex. 4.) Tucker denied the appeal on the grounds that plaintiff was not 2 enrolled in an educational art class, PBSP SHU does not run an Art/Handicraft program, and 3 the book contained frontal nudity in violation of CCR § 3006. (Id.) 4 5 level of review. (Compl. ¶ 12 & Ex. 4.) Defendant Captain R.L. Johnson (“Johnson”) 6 denied the appeal on the grounds that “The Practical Guide to Drawing” violated CCR 7 § 3006(c)(17) because it depicted frontal nudity in the form of photographs, not artistic 8 renderings, and did not meet the criteria of PBSP Operational Procedure (“OP”) No. 806, 9 which provides that inmates may receive Correspondence Course materials that have been 10 11 For the Northern District of California United States District Court Plaintiff challenged the informal decision by submitting his appeal to the first formal approved by prison officials. (Compl. ¶ 12 & Ex. 1 First Level Review.) Plaintiff next sought review at the second formal level. (Compl. ¶ 13 & Ex. 4.) 12 Defendant Warden Robert Horel (“Horel”) denied the appeal, finding “The Practical Guide 13 to Drawing” had not been approved as required educational material for a correspondence 14 course, and “it is deemed to not contain artistic reference material depicting historical, 15 modern, and/or post modern era art” under CCR § 3006(c)(17)(B)(2).3 (Compl. ¶ 14 & Ex. 1 16 Second Level Review.) 17 Plaintiff thereafter submitted his appeal to the Director’s level of review. (Compl. ¶ 18 15 & Ex. 4.) The appeal was denied on the ground that plaintiff had properly been denied 19 access to the “The Practical Guide to Drawing” under departmental regulations. (Compl. Ex. 20 1 Director’s Level Review.) 21 22 Inmates at PBSP are allowed to have access to certain materials depicting frontal nudity. Specifically, PBSP offers televised college courses and a televised art program that 23 3 24 25 26 27 28 CCR § 3006(c)(17)(B)(2) provides that inmates shall be allowed access to the following sexually explicit material: Educational, medical/scientific, or artistic materials, including, but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic, or artistic reference material depicting historical, modern, and/or post modern era art, purchased or possessed by inmates and approved by the institution head or their designee on a case-bycase basis. 3 1 depict frontal nudity. (Compl. ¶¶ 17-18.) Subsequent to his entry into the California 2 Department of Corrections and Rehabilitation (“CDCR”) in 1996, plaintiff has had access to 3 material depicting frontal nudity, and has at no time acted in a manner that would suggest 4 such items would pose a security threat if in plaintiff’s possession. (Compl. ¶ 16.) Plaintiff claims defendants’ refusal to allow him to possess “The Practical Guide to 5 6 Drawing” violates his First Amendment rights. He seeks injunctive relief and monetary 7 damages. 8 9 For the Northern District of California United States District Court 10 DISCUSSION A. Legal Standard Summary judgment is proper where the pleadings, discovery, and affidavits show 11 there is “no genuine issue as to any material fact and that the moving party is entitled to 12 judgment as a matter of law.” See Fed. R. Civ. P. 56(c). Material facts are those that may 13 affect the outcome of the case. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 14 (1986). A dispute as to a material fact is genuine if the evidence is such that a reasonable 15 jury could return a verdict for the nonmoving party. See id. 16 The court will grant summary judgment “against a party who fails to make a showing 17 sufficient to establish the existence of an element essential to that party’s case, and on which 18 that party will bear the burden of proof at trial[,] . . . since a complete failure of proof 19 concerning an essential element of the nonmoving party’s case necessarily renders all other 20 facts immaterial.” See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986); see also 21 Anderson v. Liberty Lobby, 477 U.S. at 248 (holding fact is material if it might affect 22 outcome of suit under governing law; further holding dispute about material fact is genuine 23 “if the evidence is such that a reasonable jury could return a verdict for the nonmoving 24 party”). The moving party bears the initial burden of identifying those portions of the record 25 that demonstrate the absence of a genuine issue of material fact. The burden then shifts to 26 the nonmoving party to “go beyond the pleadings, and by his own affidavits, or by the 27 ‘depositions, answers to interrogatories, or admissions on file,’ designate ‘specific facts 28 showing that there is a genuine issue for trial.’” See Celotex, 477 U.S. at 324 (citing Fed. R. 4 1 Civ. P. 56(e)). For purposes of summary judgment, the court must view the evidence in the light most 2 3 favorable to the nonmoving party; if the evidence produced by the moving party conflicts 4 with evidence produced by the nonmoving party, the court must assume the truth of the 5 evidence submitted by the nonmoving party. See Leslie v. Grupo ICA, 198 F.3d 1152, 1158 6 (9th Cir. 1999). The court’s function on a summary judgment motion is not to make 7 credibility determinations or weigh conflicting evidence with respect to a disputed material 8 fact. See T.W. Elec. Serv. v. Pacific Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 9 1987). 11 For the Northern District of California United States District Court 10 B. Analysis Plaintiff claims defendants’ disallowing his possession of “The Practical Guide to 12 Drawing” pursuant to CCR § 3006(c)(17) violates his First Amendment rights on two 13 grounds: (1) the regulation is unconstitutional on its face because it disallows educational and 14 artistic materials that depict frontal nudity, and (2) the regulation was unconstitutionally 15 applied to plaintiff, because defendants wrongly determined “The Practical Guide to 16 Drawing” was not educational or artistic material. 17 Prisoners retain those First Amendment rights not inconsistent with their status as 18 prison inmates or with legitimate penological objectives of the corrections system. Pell v. 19 Procunier, 417 U.S. 817, 822 (1974). Consequently, regulations limiting prisoners’ access to 20 publications or other information are valid only if they are “reasonably related to legitimate 21 penological interests.” Thornburgh v. Abbott, 490 U.S. 401, 413 (1989). In Turner v. 22 Safley, 482 U.S. 78 (1987), the Supreme Court identified four factors for courts to consider 23 when determining whether a regulation is reasonably related to legitimate penological 24 interests: (1) whether there is a “valid, rational connection between the prison regulation and 25 the legitimate governmental interest put forward to justify it”; (2) “whether there are 26 alternative means of exercising the right that remain open to prison inmates”; (3) “the impact 27 accommodation of the asserted constitutional right will have on guards and other inmates and 28 on the allocation of prison resources generally”; and (4) the “absence of ready alternatives,” 5 1 in other words, whether the rule at issue is an “exaggerated response to prison concerns.” Id. 2 at 89-90. 3 1. 4 As noted, CCR § 3006(c)(17) bans: “Sexually explicit images that depict frontal 5 nudity in the form of personal photographs, drawings, magazines or other pictorial format.” 6 The regulation defines sexually explicit material as “material that shows the frontal nudity of 7 either gender, including the exposed female breast(s) and/or the genitalia of either gender.” 8 Id. § 3006(c)(17)(A). The regulation also provides, however, that inmates shall be allowed 9 access to the following sexually explicit material: 10 Educational, medical/scientific, or artistic materials, including, but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic, or artistic reference material depicting historical, modern, and/or post modern era art, purchased or possessed by inmates and approved by the institution head or their designee on a case-bycase basis. 11 For the Northern District of California United States District Court The Regulation 12 13 14 Id. § 3006(c)(17)(B)(2). 15 Defendants argue the regulation is constitutional because, under Turner, it is 16 reasonably related to legitimate penological interests. In support of their argument, 17 defendants rely on Mauro v. Arpaio, 188 F.3d 1059-63 (9th Cir. 1999) (en banc), in which 18 the en banc court of the Ninth Circuit found a jail policy banning materials depicting frontal 19 nudity passed constitutional muster because it met all four prongs of the Turner test. 20 Additionally, defendants rely on Nelson v. Woodford, No. C 04-03684 CRB (PR), 2006 WL 21 571359, at *3-5 (N.D. Cal. Mar. 2, 2006), in which the district court applied Mauro to find 22 CCR § 3306(c)(17) is constitutional because it is reasonably related to legitimate penological 23 interests. On appeal, the Ninth Circuit affirmed the district court’s ruling in Nelson, holding: 24 “The district court properly concluded that the regulations prohibiting Nelson’s possession of 25 obscene or sexually explicit material, 15 Cal. Code Reg. §§ 3006(c)(15) & (17), respectively, 26 are constitutional because the regulations’ underlying policies are reasonably related to 27 legitimate penological interests.” Nelson v. Woodford, 249 Fed. Appx. 529, 530 (9th Cir. 28 2007). 6 1 2 addressed an inmate’s access to Playboy magazine, and Nelson, which concerned a claim 3 brought by an inmate incarcerated at PBSP, did not address as an issue the fact that PBSP 4 allows the airing of educational and artistic videos that include frontal nudity. For the Northern District of California 5 United States District Court In opposition, plaintiff contends Mauro and Nelson are inapposite because Mauro Contrary to plaintiff’s assertions, the Court finds Mauro and Nelson directly relevant 6 to the instant case. The regulation at issue in Mauro was not limited to magazines such as 7 Playboy but, rather, provided, as does CCR § 3006(c)(17), a ban on all materials depicting 8 frontal nudity. See Mauro, 188 F. 3d at 1058. Further, the district court in Nelson, in finding 9 CCR § 3006(d)(17) does not violate the First Amendment, acknowledged that PBSP inmates 10 are permitted to possess sexually explicit materials under certain limited circumstances, such 11 as for educational or medical purposes. See Nelson, 2006 WL 571359, at *4. 12 13 14 15 The Court next considers the four Turner factors with respect to the constitutionality of CCR § 3006(c)(17). a. Rational Connection In considering, under the first prong of the Turner test, whether there is a rational 16 connection between a challenged policy and a legitimate governmental interest, a court must 17 determine “whether the governmental objective underlying the policy is (1) legitimate, 18 (2) neutral, and (3) whether the policy is rationally related to that objective.” Mauro, 88 F.3d 19 at 1059 (internal quotation and citation omitted.). 20 Defendants argue the frontal nudity policy set forth in CCR § 3006(c)(17) is rationally 21 related to the legitimate governmental objectives of maintaining security, rehabilitating 22 inmates, reducing sexual harassment of female officers, and avoiding a hostile work 23 environment. See Compl. Ex. 1 (Director’s Level Appeal Decision, explaining objectives of 24 CCR § 3006(c)(17)); see also Nelson, 2006 WL 571359, at *3 (defining objectives of CCR 25 § 3006(c)(17)); Snow v. Woodford, 128 Cal. App. 4th 383, 391, review denied, (Jul. 27, 26 2005) (same). In opposition, plaintiff argues (1) there is no rational connection between 27 defendants’ asserted governmental objectives and applying the frontal nudity policy to 28 educational and artistic materials, and (2) the policy is not legitimate because it does not take 7 1 into account the individual characteristics of prisoners seeking access to the materials. The 2 Court disagrees. For the Northern District of California United States District Court 3 First, the Court finds the governmental objectives underlying CCR § 3006(c)(17), 4 specifically, maintaining the safety and security of the prisons, rehabilitating inmates, 5 reducing sexual harassment of correctional officers and preventing a hostile work 6 environment, are legitimate. See Nelson, 2006 WL 571359, at *3; accord Snow, 128 Cal. 7 App. 4th at 391; see also Mauro, 188 F.3d at 1059 (finding objectives of maintaining jail 8 security, rehabilitating inmates and reducing sexual harassment of female detention officers 9 to be legitimate). 10 The Court further finds the policy is neutral. A regulation restricting access to certain 11 types of publications is neutral if it furthers an important or substantial governmental interest 12 unrelated to the suppression of expression. See Thornburgh, 490 U.S. at 415-16. Here, CCR 13 § 3006(c)(17) is neutral, because it draws distinctions between materials solely on the basis 14 of the materials’ potential effect on the prison’s legitimate objectives, specifically, prison 15 security, rehabilitation of inmates, and preventing the harassment of female correctional 16 officers. See Nelson, 2006 WL 571359, at * 4; accord Snow, 128 Cal. App. 4th at 391 17 (finding reasons for adoption of CCR § 3006(c)(17) unrelated to suppression of expression 18 and related to enhancement of prison security). 19 Finally, the Court finds there is a rational relationship between the ban on materials 20 depicting frontal nudity, as set forth in CCR § 3006(c)(17), and the legitimate governmental 21 objectives put forth to justify it. See Nelson, 2006 WL 57139, at *4; accord Snow, 128 Cal. 22 App. 4th at 391; see also Mauro, 188 F.3d at 1060 (holding relationship between policy 23 banning materials showing frontal nudity and jail’s objectives rational even if “fit” not 24 “exact,” because “[t]he relationship between the jail’s policy of prohibiting the possession of 25 sexually explicit materials and the goals of preventing sexual harassment of the female 26 officers, inmate rehabilitation and maintenance of jail security is not so remote as to render 27 the policy arbitrary or irrational”). 28 8 1 2 For the Northern District of California Alternative Means of Exercising Right The second factor to be considered under Turner is whether there exist alternative 3 means of exercising the right that remain open to prisoners. Mauro, 188 F.3d at 1061. 4 “Where ‘other avenues’ remain available for the exercise of the asserted right, courts should 5 be particularly conscious of the ‘measure of judicial deference owed to correctional officials . 6 . . in gauging the validity of the regulation.’ Id. (quoting Turner, 482 U.S. at 90.) 7 United States District Court b. Defendants argue CCR § 3006(c)(17) meets the second Turner factor because the 8 regulation does not ban all sexually explicit materials. In opposition, plaintiff maintains that 9 defendants should provide alternative means of access to banned materials by removing the 10 pages that depict frontal nudity and allowing prisoners to keep the remaining portions of the 11 materials at issue. 12 Prison officials are not required to adopt the least restrictive means of achieving their 13 legitimate objectives. See Mauro, 188 F.3d at 1060. The Court finds the regulation at issue 14 herein, which expressly allows inmates to possess certain sexually explicit educational, 15 medical/scientific, and artistic materials, see CCR § 3006(c)(17)(B), provides ample 16 alternative means for inmates to express their First Amendment right to access sexually 17 explicit materials that do not pose a threat to defendants’ legitimate governmental interests. 18 See Nelson, 2006 WL 571359, at *4 (finding CCR § 3006(c)(17) satisfies second prong of 19 Turner test because, as with policy at issue in Mauro, ban “does not include sexually explicit 20 letters, articles or photographs of clothed person(s),” and allows certain sexually explicit 21 materials under CCR § 3006(c)(17)(B)); accord Snow, 128 Cal. App. 4th at 393. 22 23 c. Impact of Accommodation The third Turner factor is a determination of the impact the accommodation of the 24 asserted constitutional right would have on prison personnel, other inmates, and the 25 allocation of prison resources. Mauro, 188 F.3d at 1061. As relevant to the instant 26 challenge, the Court must assess the impact of allowing inmates unrestricted access to 27 sexually explicit materials. Id. 28 Defendants argue that allowing inmates unrestricted access to sexually explicit 9 1 materials could jeopardize the safety of prison personnel by provoking harassment of female 2 guards and violence among inmates stemming from the possession or use of such materials. 3 In opposition, plaintiff contends his possession of the “The Practical Guide to Drawing” 4 would have no impact on others. For the Northern District of California United States District Court 5 Even if, as plaintiff argues, his possession of “The Practical Guide to Drawing” in this 6 one instance would not impact prison personnel or other inmates, such argument does not 7 take into account the negative impact on prison personnel and other inmates of allowing all 8 prisoners at PBSP unrestricted possession of sexually explicit materials. As found by both 9 the district court in Nelson and the California Court of Appeal in Snow, allowing inmates 10 unrestricted access to sexually explicit materials has a significant negative impact on female 11 correctional officers because of harassment, and on inmates and correctional officers because 12 of the potential for violence. See Nelson, 2006 WL 571359, at *4; Snow, 128 Cal. App. 4th 13 at 393; see also Mauro, 188 F.3d at 1061 (finding significant negative impact if inmates 14 afforded unrestricted access to sexually explicit materials, because such access “could lead to 15 the bartering of sexually explicit materials and anatomical comparisons which could in turn 16 lead to fights between inmates”). The Court finds the accommodation sought by plaintiff, the 17 unrestricted possession of sexually explicit materials, would have a significant negative 18 impact on PBSP personnel, other inmates, and the allocation of prison resources. 19 20 d. Exaggerated Response The fourth and final Turner factor to be considered is whether the policy is, in effect, 21 an “exaggerated response” to the prison’s concerns. See Mauro, 188 F.3d at 1062. In that 22 regard, the burden is on the prisoner challenging the regulation, not on prison officials, to 23 show there are obvious, easy alternatives to the regulation. Id. 24 Plaintiff claims CCR § 3006(c)(17) is an exaggerated response to defendants’ 25 concerns because the regulation does not take into account the individual characteristics of 26 the inmates seeking access to sexually explicit materials. Specifically, plaintiff argues, there 27 is no reason that inmates like plaintiff, who have not been accused of any sexual misconduct 28 and plan to use sexually explicit materials solely for educational purposes, should be denied 10 1 such materials. Additionally, plaintiff points out, inmates already are allowed to view frontal 2 nudity on television programming that is broadcast at PBSP. In response, defendants argue that allowing inmates who have not previously engaged For the Northern District of California United States District Court 3 4 in sexual misconduct to keep publications like “The Practical Guide to Drawing” would not 5 obviate the concerns that led to the adoption of CCR § 3306(c)(17). In particular, while 6 those inmates might not engage in sexual misconduct if allowed to possess sexually explicit 7 materials that currently are prohibited, such materials could be bartered to obtain goods or 8 services from other inmates, and could create a hostile work environment for female officers. 9 See Mauro, 188 F.3d at 1061. Further, defendants argue, the regulation is not an exaggerated 10 response simply because it allows an exception for inmates to view sexually explicit artistic 11 and educational materials that have been approved by prison officials on a case-by-case 12 basis. 13 As noted, prison officials are not required to adopt the least restrictive means of 14 achieving their legitimate objectives. See Mauro, 188 F.3d at 1063. The Court finds the ban 15 on frontal nudity set forth in CCR § 3306(c)(17) is not an exaggerated response to 16 defendants’ legitimate penological concerns, in that the regulation bans those materials 17 deemed most likely to negatively impact prison personnel and other inmates, but does allow 18 inmates to have access to certain sexually explicit materials, such as sexually explicit letters, 19 articles or photographs of clothed persons, and educational and artistic materials under 20 CCR § 3006(c)(17)(B). See Nelson, 2006 WL 571359, at *4 (holding CCR § 3006(c)(17) 21 not subject to challenge under fourth Turner factor; noting regulation contains ample 22 alternatives for prisoners to acquire sexually explicit materials). 23 Lastly, plaintiff has failed to provide a ready alternative to CCR § 3006(c)(17) that 24 would accommodate defendants’ legitimate penological objectives. Consequently, plaintiff 25 has not carried his burden as to the fourth Turner factor. See Snow, 128 Cal. App. 4th at 393 26 (finding prisoner who failed to show any alternatives to CCR § 3006(c)(17) did not meet 27 burden). 28 In sum, for the reasons stated above, the Court concludes CCR § 3006(c)(17) is 11 1 reasonably related to legitimate penological interests, see Thornburgh, 490 U.S. at 413, and, 2 accordingly, that said regulation does not violate the First Amendment. 3 2. 4 Having found CCR § 3006(c)(17) is not unconstitutional on its face, the Court next 5 considers whether defendants, in denying plaintiff access to “The Practical Guide to 6 Drawing,” applied the regulation in an unconstitutional manner. For the Northern District of California 7 United States District Court Application of the Regulation Section 3006(c)(17) prohibits inmates from possessing sexually explicit images that 8 depict frontal nudity, including male and female genitalia. CCR § 3006(c)(17)(A). Plaintiff 9 was denied a copy of “The Practical Guide to Drawing” because at least seven pages of the 10 book depicted frontal nudity. (Tucker Decl. ¶ 3; Ex. A (Filed Under Seal) at AGO-001 to 11 AGO-007.) There is no factual dispute as to the nudity depicted in the book. Rather, 12 plaintiff argues, defendants wrongly determined that “The Practical Guide to Drawing” was 13 not “educational” or “artistic” material under CCR § 3006(c)(17)(B)(2). As noted, that 14 subsection provides that the following sexually explicit material shall be allowed: 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Educational, medical/scientific, or artistic materials, including, but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic, or artistic reference material depicting historical, modern, and/or post modern era art, purchased or possessed by inmates and approved by the institution head or their designee on a case-bycase basis. CCR § 3006(c)(17)(B)(2). Here, defendants determined that “The Practical Guide to Drawing” did not meet the above-listed exceptions because (1) it had not been approved as required educational material for a correspondence course, (2) it depicted frontal nudity in the form of photographs, not artistic renderings, and, (3) it did not “contain artistic reference material depicting historical, modern, and/or post modern era art.” (Compl. Ex. 1 Second Level Review.) Plaintiff does not contest defendants’ determinations; rather, he argues defendants should have allowed him to possess “The Practical Guide to Drawing” because it has educational and artistic value. Prison officials are to be provided broad discretion to determine what publications may enter a prison. See Thornburgh, 490 U.S. at 416. Regulations that provide for 12 For the Northern District of California United States District Court 1 individualized determinations as opposed to predetermined categorical exclusions strike an 2 acceptable balance between the prison’s legitimate governmental objectives and prisoners’ 3 First Amendment rights. See id. at 416-17 & n. 15. Here, CCR § 3006(c)(17) provides for 4 individualized determinations as to what sexually explicit materials inmates may possess. 5 Even if, as plaintiff argues, “The Practical Guide to Drawing” has some educational and/or 6 artistic value, it was neither arbitrary nor irrational for defendants to deny plaintiff access to 7 the publication. See Mauro, 188 F.3d at 1060. While CCR § 3006(c)(17)(B)(2) allows 8 inmates to possess some sexually explicit materials, it does not require that inmates be 9 allowed to possess sexually explicit material solely because it is deemed to have educational 10 or artistic value. Further, defendants’ decision did not deprive plaintiff of the right to possess 11 either educational art materials that do not contain frontal nudity, or that meet the 12 requirements of CCR § 3006(c)(17)(B)(2). In sum, defendants’ individualized determination 13 to ban “The Practical Guide to Drawing” was a constitutional application of CCR § 14 3006(c)(17). See Nelson, 2006 WL 571359, at *5 (finding prison officials’ individualized 15 determination to preclude prisoner from receiving copies of Esquire magazine depicting 16 frontal nudity was constitutional application of CCR § 3006(c)(17)). 17 3. 18 As discussed above, the Court finds CCR § 3006(c)(17), which bans the possession by Summary 19 inmates of sexually explicit materials containing frontal nudity, does not violate the First 20 Amendment, because said regulation is reasonably related to legitimate penological interests. 21 The Court further finds defendants’ individualized determination to preclude plaintiff’s 22 possession of “The Practical Guide to Drawing” was a constitutional application of that 23 regulation. As there is no triable issue with respect to whether plaintiff was properly denied 24 access to “The Practical Guide to Drawing,” summary judgment will be granted in favor of 25 defendants.4 26 27 4 In light of the finding that no constitutional violation occurred, the Court does not reach defendants’ argument based on qualified immunity. See Saucier v. Katz, 533 U.S. 194, 28 202 (2001) (“If no constitutional right would have been violated were the allegations 13 1 CONCLUSION 2 For the foregoing reasons, defendants’ motion for summary judgment is hereby 3 GRANTED and judgment in favor of defendants shall be entered. 4 This order terminates Docket No. 11. 5 The Clerk shall close the file. 6 IT IS SO ORDERED. 7 DATED: November 24, 2008 8 9 _________________________ MAXINE M. CHESNEY United States District Judge 11 For the Northern District of California United States District Court 10 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 established, there is no necessity for further inquiries concerning qualified immunity.”) 14