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Mathews v. Jones

United States District Court, N.D. Florida, Tallahassee Division

July 3, 2019

CECIL MATHEWS, Plaintiff,
v.
JULIE JONES and SHANNON MILLIKEN, Defendants.

          SECOND REPORT AND RECOMMENDATION

          CHARLES A. STAMPELOS, UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Cecil Mathews is a prisoner incarcerated by the Florida Department of Corrections. He brought this § 1983 civil rights case, pro se, challenging departmental rules on First Amendment and due process grounds. Plaintiff's second amended complaint [hereinafter “complaint”], ECF No. 15, alleged that his First and Fourteenth Amendment rights were violated by the Defendants' rejection of certain commercial publications. He claims that a Literature Review Committee (LRC) both rejects publications and then reviews appeals of that decision such that “no impartial decision maker is available.” Id. at 7. Plaintiff also complains that prisoners are not permitted to review the rejected material[1] which then denies them an opportunity to file a proper appeal and violates due process. Id. at 8. He claims that the denials “are either in direct violation of D.O.C. policies or a clear exaggerated response to security.” Id. As relief, Plaintiff seeks a permanent injunction requiring “an impartial decision maker” to review “magazine rejection appeals” and to require prison officials “to provide the rejected material for review.” ECF No. 15 at 15. He also seeks nominal damages and a declaratory judgment. Id.

         Previously, Defendants' motion to dismiss, ECF No. 33, was granted in part and denied in part. ECF No. 45. This case proceeds against the Shannon Milliken, the Secretary's Representative, and Julie L. Jones, the Secretary of the Department of Corrections, in her official capacity only. ECF No. 15 at 2; ECF No. 45. At the time the case was filed, Julie Jones was Secretary of the Department. Judicial notice is taken that Julie L. Jones is no longer Secretary. In early January 2019, Mark S. Inch was appointed Secretary of the Department. Secretary Inch should be automatically substituted as Defendant pursuant to Fed.R.Civ.P. 25(d), and the Clerk of Court is directed to correct the docket to reflect this change.

         The motion to dismiss narrowed some of the issues in this case. For example, Plaintiff initially challenged the rejection of 14 publications and brought a 2-count, second amended complaint, ECF No. 15. The motion to dismiss was granted as to Count II of the complaint which included Plaintiff's challenges to Rule 33-501.401(16)(B), which limited the amount of admissible reading material which could be stored in an inmate's personal living area, and Rule 33-501.401(16)(A), which allowed the rejection of “gift subscriptions.” See ECF No. 42 at 17-18 and ECF No. 45. As for Count I, the motion to dismiss was granted as to one of the challenged publications, High Voltage Tattoo (item 13 and exhibit O). See ECF No. 42 at 17 and ECF No. 45.

         After ruling on the motion to dismiss, ECF No. 45, Defendants filed an answer, ECF No. 46, and a Scheduling Order, ECF No. 48, was entered. At the conclusion of an extended discovery period, see ECF No. 51, Plaintiff filed a motion for partial summary judgment, ECF No. 61, and Defendants filed a motion for summary judgment. ECF No. 64. The parties were provided opportunities to respond to the opposing party's summary judgment motion, ECF No. 65, and responses were timely filed. Plaintiff's response, ECF No. 66, and Defendants' response, ECF No. 67, have been considered.

         I. Legal standards governing a motion for summary judgment

         “The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Thus, summary judgment is proper “after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). The “party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of ‘the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp., 477 U.S. at 323, 106 S.Ct. at 2553. The non-moving party must then show[2] the court “that there is an absence of evidence to support the nonmoving party's case.” Id. at 325, 106 S.Ct. at 2554.

         An issue of fact is “material” if it could affect the outcome of the case. Hickson Corp. v. Northern Crossarm Co., Inc., 357 F.3d 1256, 1259 (11th Cir. 2004) (citations omitted). A party must show more than the existence of a “metaphysical doubt” regarding the material facts, Matsushita Elec. Indus. Co., LTD. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986), and a “scintilla” of evidence is insufficient. The court must decide “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Hickson Corp., 357 F.3d at 1260 (quoting Anderson v. Liberty Lobby, 477 U.S. 242, 252, 106 S.Ct. 2505, 2505, 91 L.Ed.2d 202 (1986)). All reasonable inferences must be resolved in the light most favorable to the nonmoving party, Watkins v. Ford Motor Co., 190 F.3d 1213, 1216 (11th Cir. 1999), “only if there is a ‘genuine' dispute as to those facts.” Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007) (quoted in Ricci v. DeStefano, 557 U.S. 557, 586, 129 S.Ct. 2658, 2677, 174 L.Ed.2d 490 (2009)). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Matsushita Elec. Indus. Co., 475 U.S. at 587 (internal quotation marks omitted) (quoted in Ricci, 557 U.S. at 586, 129 S.Ct. at 2677).

         “Cross motions for summary judgment do not change the standard.” Latin Am. Music Co. v. Archdiocese of San Juan of the Roman Catholic & Apostolic Church, 499 F.3d 32, 38 (1st Cir. 2007) (quoted in Ernie Haire Ford, Inc. v. Universal Underwriters Ins. Co., 541 F.Supp.2d 1295, 1297 (M.D. Fla. 2008). “‘Cross motions for summary judgment are to be treated separately; the denial of one does not require the grant of another.'” Christian Heritage Acad. v. Okla. Secondary Sch. Activities Ass'n, 483 F.3d 1025, 1030 (10th Cir. 2007) (quoting Buell Cabinet Co. v. Sudduth, 608 F.2d 431, 433 (10th Cir. 1979)) (quoted in Ernie Haire Ford, Inc., 541 F.Supp.2d at 1297-98)). Because Plaintiff (as the party with the burden of proof) has a heavier burden on summary judgment, the Court will consider the Defendants' motion first. If Defendants' motion is denied, the Court will consider whether Plaintiff is entitled to judgment as a matter of law.

         II. Relevant Rule 56 Evidence

         Administrative Rule 33-501.401(3) governs “admissible reading material” and lists the reasons why a magazine may be “considered contraband” and rejected. ECF No. 64 at 3. Defendants point to Rule 33-501.401(8) which directs that “each institution's warden or designee” makes the “initial rejection” determination as to whether a publication should be impounded as inadmissible. ECF No. 64 at 3. The “LRC is the final appeal authority under the rule.” Id.; ECF No. 61 at 3 (citing to ECF No. 46 at 2, ¶ 8).

         Defendants submitted the declaration of Jason Samuel Hoskins, the assistant bureau chief of security operations for the Department of Corrections. ECF No. 64-1. He explains that magazines such as Popular Science have been “banned” as a security threat because they “routinely describe in detail how to build, test, or play with substances, items, and chemicals that in a correctional environment would be dangerous.” Id. at 2. For example, Mr. Hoskins states that one article explained how “to produce dangerous volatile, explosive gasses” from “easily obtainable household” items or “smuggled items.” Id. Another article described how to use a usb stick to “infiltrate sensitive data networks or to copy files from the host system hard drive without any record of having logged into the host computer.” Id. Mr. Hoskins declares that “instructional magazines and manuals that teach people to take easily obtainable items, substances, and chemicals then convert them into potentially dangerous things results in real injury to staff, visitors, volunteers, other inmates, and often themselves.” Id. at 3. “Inmates can and do, take principles of science, twist and scale them into serious safety issues.” Id. He noted how inmates have fashioned “cordless battery powered shavers into tattoo guns” which are very difficult to detect. Id. He explained how “stingers” are created from electrical cords which can “be used as a weapon against staff or inmates.” Id. at 2-3. “These types of books and magazines only exacerbate an already dangerous environment.” Id. at 3.

         Defendants submitted a second declaration from Allen Dean Peterson, the Library Services Administrator, who evaluated the thirteen rejected magazines and explained what content made them “contraband.” ECF No. 64-2.[3] Mr. Peterson explained that each of the magazines contained articles which included information such as how to create “improvised weapons” or improvised electronic devices, how to make an improvised flame thrower, or discussing “various gases that can be used to render someone unconscious.” Id. at 2-3. Some provided instructions on how to tie different knot which are “potential escape aids.” Id. at 3. One publication, Maxim, contained “depictions of sex” and Mr. Peterson advised that one publication, the October 2015 edition of Esquire, contained a “poster insert.” Id. “If a part of a publication is considered inadmissible, the entire publication is to be impounded or rejected, as outlined in FDC Procedure 501.401(6)(b).” Id. at 4.

         Attached to Peterson's declaration were copies of the “Action Forms and Notice of Rejection or Impoundment of Publications Forms” for Plaintiff's rejected publications. ECF No. 64-2 at 5-38. Each notice had a checkmark in the box explaining that the magazine listed at the top of the page had been “impounded pending review by the Department's Literature Review Committee, because the Warden or designee believe[d] that the publication may contain subject matter that is inadmissible per Section (3) of Rule 33-501.401, F.A.C.” Id. at 6, 8, 11, 13, 16, 18, 21, 24, 26, 29, 32, 35, and 38. The notices cited to Rule 33-501.401(3)'s criteria which advised why the publications were inadmissible. Id. Notably, each notice is dated and directed to a specific inmate whose institution is listed, and none of the notices submitted in this case were directed to Plaintiff.

         Included with the Notices of Rejection were copies of the Literature Review Committee Action Forms. See ECF No. 64-2 at 5, 7, 10, 12, 15, 17, 20, 23, 25, 28, 31, 34, and 37. These forms have a place under “Committee Review” for three different prison officials (security operations, grievance appeals, and library services) to either recommend affirming or overturning the impoundment action initiated from an institution. Below that section of the form is a place to designate the Committee decision, either to affirm or overturn the impoundment decision. The LRC chairman then signs and dates the form. Id.

         As additional evidence, the Court has taken note of Plaintiff's second amended complaint which included copies of eight publications ordered by Plaintiff which were rejected as inadmissible reading material. ECF No. 15 at 16-29. It appears that when the publications were rejected, Plaintiff was provided a Notice of Rejection or Impoundment of Publications which explained the reason a specific publication was deemed inadmissible. ECF No. 15 at 32-54. The notices Plaintiff received advised that the magazine or publication listed at the top of the page had been “rejected” and could not be received by inmates. The notices state that the “Department's Literature Review Committee [had] reviewed the publication and determined that it contain[ed] subject matter that [was] inadmissible per Section (3) of Rule 33-501.401, F.A.C., Admissible Reading Material.” See, e.g., ECF No. 15 at 32.

         The notices also advised inmates that the rejected publication would be held at the institution for 30 days so arrangements could be made “to have the publication picked up by an approved visitor or mailed to a relative, friend, or the sender at the inmate's expense . . . .” See, e.g., ECF No. 15 at 33. Further, the notices inform the “senders” of the publications that when a publication is rejected at one institution, “the impoundment or rejection shall be immediately applied in all major institutions, work camps, road prisons, and forestry camps of the Florida Department of Corrections.” Id. Senders are advised of their opportunity to appeal such a decision. Id.

         Plaintiff filed grievance appeals concerning the rejection of the publications. See, e.g., ECF No. 15 at 34, 38, 43, and 48. Those appeals were denied and signed by ...


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