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Smith v. Blackmon

United States District Court, N.D. Florida, Panama City Division

May 21, 2019

GARY LEE SMITH, Petitioner,



         Petitioner Gary Lee Smith, a prisoner at FCI Marianna, filed an amended petition for writ of habeas corpus under 28 U.S.C. § 2241, challenging a prison disciplinary action which resulted in the loss of fourteen (14) days gain time credits. ECF Doc. 5 at 2 and 7. The Warden of FCI Marianna responded in opposition (ECF Doc. 12), and Petitioner filed a reply. ECF Doc. 17. The case was referred to the undersigned for the issuance of all preliminary orders and any recommendations to the district court regarding dispositive matters. See N.D. Fla. Loc. R. 72.2(B); see also 28 U.S.C. § 636(b) and Fed.R.Civ.P. 72(b). After careful consideration of all issues raised by the parties, the undersigned recommends the petition be DENIED.

         I. BACKGROUND

         Smith, who was a commercial photographer, was charged in 2001 with taking sexually explicit photographs of a nude twelve-year-old girl and later distributing the photographs over the Internet and by mail. United States v. Smith, 367 F.3d 748, 749 (8th Cir. 2004). Smith was convicted of production of child pornography, interstate transportation of child pornography, and reproduction of child pornography for interstate distribution in violation of 18 U.S.C. §§ 2251(a), 2252(a)(1), and 2252(a)(2). Id. Smith is currently serving a 235-month sentence and has a projected release date in December 2019. ECF Doc. 12-1 at 1, 4.

         Because he was classified as a sexual offender, Smith was required to participate in a “Sex Offender Management Program” (“SOMP”). ECF Doc. 12-5 at 5. The purpose of the SOMP is to “assist in the effective management of the BOP's population of sexual offenders and to provide services that minimize this population's risk for sexual re-offense.” Id. Part of the SOMP involves placing inmates, as necessary, on a Correctional Management Plan (“CMP”), which includes “restrictions on mail and telephone communication, visiting privileges, and personal property of sexual offenders, as those areas affect the secure and orderly operations of the institution and the safety of staff, inmates, and the general public.” Id. at 29. A CMP is generally initiated by the Warden after an inmate has engaged in risk-relevant behavior. See Id. at 30. “Risk-relevant behavior” is defined as “Institution behavior related to a sexual offender's history that indicates risk of future sexual offending upon release (e.g., an inmate convicted of child pornography who collects pictures of children; a sex offender who attempts to contact potential child victims).” Id. at 2. Modifications and restrictions are specified in an individualized CMP. Id. at 30.

         In 2008, while at FCI Petersburg, Smith was placed on a CMP after officials discovered he was in possession of “risk-relevant materials”[2], including “approximately 500 pages of handwritten or typewritten sexually focused material, telling the story of an adult male photographer who takes photographs of female models, some of which are underage”; “39 photographs of scantily clothed females appearing to be approximately 15-17 years of age”; and “six … nude photographs of one female appearing to be approximate 15-17 years of age.” ECF Doc. 12-4 at 2. From 2008 to July 5, 2011, Smith was identified with possessing, on multiple occasions, handwritten graphic accounts of sexual activity, including stories about an adult commercial photographer having sexual encounters with minor female models (ECF Doc. 12-4 at 2-6) and photographs of nude and scantily clad females aged 13-17 (Id.); and, also, frequently attempting to order sexually oriented materials such as nude adult magazines, catalogs of young females in underwear or beachwear, and other published work depicting sexual activity. Id. He also possessed materials for starting a company based on photographing underage girls and distributing them using a website -- the exact conduct that was involved in his crimes of conviction. Id. In August 2012, Smith's CMP was terminated “after demonstration of appropriate conduct.” Id. at 5. And, even though Smith was identified with risk-related materials on two (2) occasions in 2013, he was not placed in another CMP until the incidents described below. See id.


         On January 22, 2016, during a routine search of Smith's property, Smith was found to be in possession of a business plan for starting websites and businesses dealing in child and adult pornography; pages of graphic sexual content downloaded from LexisNexis (including the description of the gang rapes of three of underage girls); and a screenplay he wrote titled “Murder, Inc.”, that featured both violence and explicit sexual acts. ECF 12-4 at 5-6. The discovery of these materials led to the events giving rise to Smith's § 2241 motion.

         First, Smith received an incident report for Code 305, Possession of Anything Unauthorized, based on the LexisNexis pages. ECF 12-6. According to BOP Policy, inmates are not permitted to possess sexually explicit writings that pose a threat to the security or good order of the correctional institution. ECF 12-7 at 4. The Warden may determine that sexually explicit material involving children will be excluded for those reasons. ECF 12-7 at 4. For possessing the LexisNexis pages, Smith received sanctions of 30-days' loss of phone and visitation privileges. ECF 12-6 at 2. Second, Smith was placed onto a CMP. ECF 12-4 at 6-7. The CMP detailed various restrictions on Smith's personal property, including a restriction on possessing any type of materials that contain written or pictorial depictions of sex or sexually violent content. ECF 12-4 at 7. The CMP warned Smith that a failure to comply with the restrictions would result in his receipt of an incident report and appropriate sanctions. ECF 12-4 at 7. The CMP was prepared by and reviewed with Smith by SOMP psychologist Jennifer Caperton, and Smith refused to sign it. ECF 12-4 at 8.

         Despite the warning contained in the CMP, on or about September 22, 2016, Smith was found with another copy of “Murder, Inc.” ECF 12-8 at 3. There is no dispute that “Murder, Inc., ” contained sexually violent content - as the “story describes several people being murdered by a gang of people, ” “while experiencing orgasms.” See ECF Doc. 12-4, at 6, see also ECF Doc. 12-8 at 8-10 (three pages which clearly contain violent, sadomasochistic and sexually oriented content). Smith received an incident report for Code 306, Refusing a Program Assignment, in accordance with his CMP. ECF 12-8 at 4-18 (setting out the Discipline Hearing Officer (DHO) report for incident number 2898858). The incident report notes that the manuscript had been in his possession previously and that he was found with another copy of it. ECF 12-8 at 3. The incident report was referred to a DHO for a hearing.

         At the hearing, Smith had a staff representative and was permitted to present evidence and witnesses. ECF 12-8 at 3. Smith did not present evidence and offered his own statement in which he acknowledged possessing the manuscript and being aware that he was on a CMP. ECF 12-8 at 3. The DHO noted that Smith was caught previously with the manuscript and now was caught with another copy. ECF 12-8 at 3. Based on Smith's admission, the incident report, and the CMP, the DHO upheld the incident report and imposed sanctions of fourteen (14) days loss of good conduct time, thirty (30) days disciplinary segregation, and sixty (60) days loss of email privileges. ECF 12-8 at 3.


         A. First Amendment

         In Ground One of his Petition, Smith argues that taking away his good time credit for possession of Murder, Inc., violates his rights under the First Amendment, 28 C.F.R. 551.80, et seq., and FBOP Program Statement 5350.27. ECF Doc. 5 at 3, 7. Smith's First Amendment claim is without merit.

         Smith was sanctioned because he was in possession of risk-relevant materials, including a sexually explicit and violent manuscript he authored. BOP regulation 28 CFR § 553.10 et seq., states that an inmate may possess property “that does not threaten the safety, security, or good order of the facility or protection of the public.” 28 CFR § 553.10. That section further states that “each Warden shall identify in writing that personal property which may be retained by an inmate ….” See Id. Here, those limitations were identified in the SOMP and Smith's individualized CMP. Thus, Smith's First Amendment claim is necessarily premised on the constitutionality of 28 CFR § 553.10 and Respondent's application of the regulation to his disciplinary action.

         To determine whether the prison regulation at issue passes constitutional muster, this Court applies a reasonableness standard. See Turner v. Safley, 482 U.S. 78 (1987) (applying a reasonableness standard to prison regulation regarding incoming mail); Thornburgh v. Abbott, 490 U.S. 401, 414 (1989) (applying reasonableness standard to BOP regulation regarding incoming publications and the Warden's rejection of certain publication containing sexual content). A reasonableness standard asks whether a prison regulation that impinges on inmates' constitutional rights is “reasonably related” to legitimate penological interests. Turner, 482 U.S. at 78. The reasonableness standard considers the following four factors, (1) whether there is a “valid, rational connection” between the regulation and a legitimate and neutral governmental interest; (2) whether there are alternative means of exercising the asserted constitutional right that remain open to inmates; (3) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, on inmates' liberty, and on the allocation of limited prison resources; and (4) whether the regulation represents an “exaggerated response” to prison concerns. See Turner, 482 U.S. at 78-79. Applying those factors, here, the Respondent did not violate Smith's First Amendment rights by disciplining him for possessing “Murder, Inc.”

         First, risk relevant materials, such as Smith's manuscript, are prohibited for a legitimate and neutral governmental interest, namely, to ensure “the secure and orderly operations of the institution and the safety of staff, inmates, and the general public” and minimize the risk of re-offense. ECF 12-5 at 29. See Thornburgh, 490 U.S. at 416 (recognizing a prison's security interest as a legitimate interest and a regulation granting broad discretion to a warden to reject incoming publications he considers a security risk as “‘neutral in the technical sense in which [the Court] meant and used the term in Turner”). These institutional concerns are particularly acute in Smith's case, given his repeated non-compliance with the CMP and SOMP. Moreover, the determination that “Murder, Inc.” should be confiscated was based on Smith's individualized CMP and the specific contents of the manuscript, further highlighting the legitimacy and neutrality of the regulation and the Warden's application of the regulation. See Id. at 417 ...

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