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Jackson v. Gutzmer

United States District Court, D. Minnesota

February 27, 2019

RONNIE JEROME JACKSON, III, Plaintiff,
v.
JEFF GUTZMER, NATALIE LESEMAN, MICHELLE SMITH, and TAMMY WHERLEY, in their individual capacities; and TOM ROY, in his official capacity, Defendants.

          Ronnie Jerome Jackson, pro se plaintiff.

          Lindsay LaVoie, Assistant Attorney General, for defendants.

          MEMORANDUM OPINION AND ORDER ADOPTING REPORT AND RECOMMENDATION

          JOHN R. TUNHEIM UNITED STATES DISTRICT JUDGE

         Plaintiff Ronnie Jerome Jackson, III, brings this action under 42 U.S.C. § 1983. He alleges that Defendants, all of whom work at the Minnesota Correctional Facility - Oak Park Heights (“MCF-OPH”), violated his constitutional rights by denying him mail by removing several pictures from his mail under the false pretense that they depicted nudity. Presently before the Court are Jackson's Objections to U.S. Magistrate Judge Becky R. Thorson's Report and Recommendation (“R&R”) recommending that the Court grant Defendants' Motion for Summary Judgment. Upon de novo review of Jackson's specific objections, the Court will find that no genuine dispute of material facts remains. The Court will thus overrule Jackson's objections, adopt the R&R in part as described herein, and grant Defendants' Motion for Summary Judgment.

         BACKGROUND

         In August 2016, while detained at MCF-OPH, Plaintiff Ronnie Jackson received sixty-one photographs in the mail. (Compl. ¶ 9, Nov. 4, 2016, Docket No. 1-1.[1]) Minnesota Department of Corrections (“DOC”) officials confiscated twenty-three of these photographs pursuant to a DOC policy prohibiting inmates from receiving nude or sexually explicit materials. (Id.) After following the DOC's procedures for appealing the decision to remove these twenty-three photographs as contraband, Jackson filed suit against Defendants Jeff Gutzmer, Natalie Leseman, Michelle Smith, and Tammy Wherley in their individual capacities, alleging that they wrongfully confiscated five of the twenty-three photographs. (Id. ¶¶ 10, 13-16.)

         In November 2016, DOC staff confiscated an art catalog mailed to Jackson because it contained nudity. (Compl. at 6-7, Dec. 29, 2016, Civil No. 16-4393, Docket No. 1.) Jackson brought a second lawsuit against the same defendants in their individual capacities, as well as Tom Roy, Commissioner of the DOC, in his official capacity, alleging that DOC staff had violated his First Amendment rights in confiscating the catalog. (Id. at 7-8.)

         In March 2017, DOC staff confiscated a book called “Lighting the Nude, ” which Jackson alleges is an educational book on photography. (Compl. ¶¶ 1, 10, Apr. 10, 2017, Civil No. 17-1109, Docket No. 1.) Jackson filed a third lawsuit, against Defendants Smith and Wherley in their individual capacities and Roy in his official capacity. (Id. ¶¶ 7-9.)

         The Court consolidated the three cases. (Mem. Op. and Order Adopting R. & R.s, Sept. 20, 2017, Docket No. 49.) Defendants brought the Motion for Summary Judgment now before this Court. (Defs.' Mot. for Summ. J., Apr. 12, 2018, Docket No. 74.) In his opposition, Jackson voluntarily dismissed Tom Roy, all claims related to retaliation, and all claims related to confiscation of the art catalog. (Pl.'s Mem. Opp. at 2, May 9, 2018, Docket No. 86.) The Court will therefore dismiss these claims.

         Magistrate Judge Thorson issued an R&R on September 28, 2018, recommending that Defendants' Motion for Summary Judgment be granted. (R. & R. at 21, Sept. 28, 2018, Docket No. 94.) Jackson objected to the R&R on October 11, 2018. (Objs. to R. & R., Oct. 11, 2018, Docket No. 95.)

         After Jackson's voluntary dismissals, two claims remain before the Court. First, Jackson alleges Defendants confiscated the five photographs and the book Lighting the Nude in violation of his First Amendment rights. Second, Jackson alleges Defendants denied him due process in his appeal for the confiscation of the five photographs in violation of the Fourteenth Amendment. Jackson requests compensatory and punitive damages, as well as an injunction requiring Defendants to return or replace the confiscated materials.

         Defendants confiscated Jackson's photographs and book under MN-DOC Mail Policy 302.020 (the “Mail Policy”) and Contraband Policy 301.030 (the “Contraband Policy”). (Aff. of Natalie Leseman (“Leseman Aff.”) ¶¶ 6, 11Apr. 12, 2018, Docket No. 76.) Under the Mail Policy, “[i]ncoming/outgoing mail . . . is not authorized if it . . . [c]ontains contraband or pertains to sending contraband into or out of the facility.” (Id. ¶ 6, Ex. 1 at 6.)

         Under the Contraband Policy, “[c]ontraband/prohibited objects include . . . [p]ublished and non-published materials (books, magazines, photos, drawings, etc.) . . .[f]eaturing . . . nudity, or sexually explicit written content where the central theme of the items promotes contraband or prohibited content.” (Leseman Aff. ¶ 11, Ex. 2 (“Contraband Policy”) at 14.) The Contraband Policy defines nudity as:

the showing (including see-through covering) of human male or female genitals, anus or pubic area or the showing (including see-through covering) of the female breast or a substantial portion of the breast below the top of the nipple. Examples of see-through coverings that are not permitted include “pasties, ” lace, mesh, and body paint through which the covered area is showing; coverings emphasizing the depiction of human genitals; or tight-fitting clothing through which the contours of the genitals are clearly visible. This definition does not include published material containing nudity illustrating medical, educational or anthropological content.

(Id. at 13.) The Contraband Policy also prohibits “[s]exually explicit materials where the central theme of the item promotes contraband or prohibited content (published or non-published) containing any pictorial display or written descriptions of” various sexual acts, and “sex-related materials determined to constitute a risk to the safety and security of the facility, facilitate criminal activity, or undermine offender/resident rehabilitation.” (Id. at 14-15.)

         The DOC offers three reasons for prohibiting access to these materials. First, offenders' access to sexually explicit materials and materials containing nudity creates a security risk. (Aff. of Tammy Wherley (“Wherley Aff.”) ¶ 11, Apr. 12, 2018, Docket No. 79.) Second, such materials interfere with sex offender rehabilitation. (Id. ¶ 12.) And third, they create a hostile work environment for prison staff. (Id. ¶ 13.)

         MCF-OPH staff enforce the Mail Policy and Contraband Policy. (Leseman Aff. ¶¶ 5-6.) Staff separate facility mail, legal mail, and non-legal offender mail. (Id. ¶ 9.) Each piece of incoming non-legal offender mail is opened and inspected by staff. (Id.) Under Directive 302.250, the MCF-OPH Property Department staff open incoming packages and inspect their contents for weapons or other contraband. (Aff. of Donald Stiff (“Stiff Aff.”) ¶¶ 6, 9, Apr. 12, 2018, Docket No. 77.)

         If a staff member believes a piece of mail or photo is prohibited, the item is stored and a Notice of Non-delivery is sent to the offender. (Leseman Aff. ¶ 12.) The offender may appeal the non-delivery decision to the mailroom supervisor within ten days. (Id. ¶ 13.) The mailroom supervisor then reviews the item and returns a written response to the offender. (Id.) An offender may then request a review of the supervisor's decision by the facility's Correspondence Review Authority (“CRA”), an individual or group of individuals appointed by the facility's Warden to review decisions regarding offender mail. (Id. ¶ 14.) The CRA reviews the confiscated item, determines whether it should be returned to the offender, and issues a final, written decision. (Id.) If offenders do not appeal the denial of a mail item within thirty days, or do not tell mailroom staff how to dispose of the item, the item is destroyed. (Id. ¶ 17.)

         In this case, Jackson's five photographs were confiscated on August 30, 2016, (Wherley Aff. ¶ 26.) DOC staff had determined the photographs contained nude images and were a security risk pursuant to the Contraband Policy. (Id.; Compl. ¶ 9.) Jackson was provided with a Notice of Non-Delivery of Mail/Package related to the confiscated photographs. (Leseman Aff. ¶¶ 23, 30.)

         Jackson submitted four appeals for the confiscation of four sets of photographs, including for the five photographs at issue. (See 2d Aff. of Tammy Wherley ¶ 2, Ex. A at 1-3, May 21, 2018, Docket No. 90-1.) On August 23, he appealed the denial of eight pictures. (Id. at 1.) On August 30, he sent two separate appeals, one appealing nondelivery of his photos “for the form attached” and one appealing non-delivery of 9 other photos. (Id. at 2-3.) And on September 8, Jackson sent a kite, a prisoner communication form, to Wherley and the CRA asking about “23 of [his] pictures” that had been confiscated and appealing the latest confiscation of one photograph. (Id. at 6.)

         On September 1, Jackson sent Wherley a kite asking her what was going on with his three appeals. (Id. at 4.) She responded the next day that Jackson should “be patient” and that denial of pictures needed to go through the CRA. (Id.) On September 8, Jackson sent another kite to Wherley and the CRA asking what was going on with the review of his 23 pictures. (Id. at 6.) On September 9, Lieutenant Gutzmer responded directly on the appeals forms for three of Jackson's appeals. (Id. at 1, 3, 5.) On September 11, Jackson sent a kite to the CRA stating that he was submitting three appeals to the CRA. (Id. at 7-9.) He noted that Gutzmer had not responded to one of his appeals. (Id. at 7.)

         On September 19, Jackson sent another kite to Wherley asking what was going on with the review of his “23 pictures.” (Id. at 10.) Wherley responded two days later that “[t]hey [were] in the ...


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