Odneal v. Schnell

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

SHAWN K. ODNEAL,

Civil No. 22-3107 (JRT/JFD)

Plaintiff,

v.

PAUL SCHNELL, GUY BOSCH, MARRISA MEMORANDUM OPINION AND ORDER

WILLIAMS, STEPHANIE HUPPERT, JENNY ADOPTING REPORT AND

CARUFEL, ERIC HENNEN, LEIGH MCCOY, RECOMMENDATION

and CELEST AILERU,

Defendants.

Shawn K. Odneal, OID #235165, Minnesota Correctional Facility Stillwater,

970 Pickett Street North, Bayport, MN 55003, pro se Plaintiff.

Corinne Wright, MINNESOTA ATTORNEY GENERAL’S OFFICE, 445

Minnesota Street, Suite 1400, St. Paul, MN, 55101, for Defendants.

Plaintiff Shawn K. Odneal brings this action against various prison officials, alleging

that the Minnesota Department of Corrections’ (“DOC”) contraband policy violates his

First Amendment and procedural due process rights. Magistrate Judge John F. Docherty

issued a Report and Recommendation (“R&R”) recommending the Court enter summary

judgment for the Defendants. Odneal timely objected to the R&R.

Because the DOC’s contraband policy is reasonably related to legitimate

penological interests and was properly applied to Odneal, Odneal’s facial and as applied

challenges to the policy fail. And because Odneal was not deprived of a protected liberty

interest, his procedural due process claim also fails. Even if the Court had found a

constitutional violation, however, Defendants would be entitled to Eleventh Amendment

and qualified immunity from monetary damages, and the injunctive relief Odneal

requests is outside the bounds of what the Prison Litigation Reform Act permits. Further,

because there is no evidence that Defendants acted with evil motive or reckless

indifference to Odneal’s constitutional rights, Odneal would also not be entitled to

punitive damages. Because there are no genuine disputes of material facts, the Court will

adopt the R&R, overrule Odneal’s objections, deny Odneal’s motion for summary

judgment, grant Defendants’ motion for summary judgment, and dismiss Odneal’s

complaint with prejudice.

BACKGROUND

I. FACTS

The R&R provides a comprehensive factual background, unobjected to by either

party, which the Court will adopt in full. (Order & R. & R. (“R. & R.”) at 1–7, May 3, 2024,

Docket No. 82.) As such, the Court will only briefly summarize the relevant facts here.

Odneal is serving a life sentence at the Minnesota Correctional Facility in Stillwater

(“MCF-STW”) after pleading guilty to two counts of first degree aggravated sexual assault

of a child. (Decl. Sarah Knoph ¶¶ 2–3, Exs. 1–2, Aug. 25, 2023, Docket No. 49; Compl.

¶ 12, Dec. 19, 2022, Docket No. 1.) MCF-STW is a level-four prison that houses inmates

who have generally either been convicted of serious or violent crimes or otherwise

present a higher risk to staff and other inmates. (Decl. Mary McComb (“McComb Decl.”)

¶ 5, Aug. 25, 2023, Docket No. 50.) Odneal brings this action to challenge the DOC’s

Contraband Policy, which restricts his access to sexually suggestive photos while

incarcerated. (See generally Compl.)

Inmates can receive photos through paper mail and as attachments to email.

(McComb Decl. ¶¶ 11–12.) However, DOC policy prohibits photos that reasonably

constitute a risk to public safety, the rehabilitation of offenders, or the order and security

of the facility. (Id. ¶ 3, Ex. 1 at 1.) More specifically, the DOC Contraband Policy, or

Minnesota DOC Policy 301.030, does not permit inmates to receive materials depicting

certain sexually explicit content. (McComb Decl. ¶ 3, Ex. 2 at 14–15.) The Contraband

Policy prohibits:

Published or unpublished sexually explicit materials that

contain depictions or written descriptions of prohibited

content including such as examples as:

(1) Nudity,

(2) Direct physical stimulation of unclothed genitals,

(3) Masturbation,

(4) Sexual intercourse (including vaginal, oral, anal, or

bestiality),

(5) Bodily fluids,

(6) Flagellation or torture in a sexual context, and

(7) 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.) “Nudity” is defined under the Contraband Policy as:

[T]he depiction of human male or female genitals, anus, or

pubic area or of the female breast or a substantial portion of

the breast below the top of the nipple, with or without see-

through covering, such as “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 14.) Under this definition of nudity, inmates may still access photos featuring some

skin, like cleavage, bare buttocks with thongs, and breasts with bikini tops. (McComb

Decl. ¶ 10.)

The DOC offers three reasons for limiting inmates’ access to these materials. First,

prisoners’ access to nude and sexually explicit materials can create a security risk. (Id. ¶

7.) Sexually explicit materials are sold, traded, and bartered in prison facilities, which

creates tension among inmates and can lead to assaults, which in turn endanger

incarcerated bystanders and DOC staff who break up the fights. (Id.) Additionally,

sexually explicit materials reinforce the objectification of women, which prompts inmates

to undermine the authority of female corrections officers. (Id.) Second, sexually explicit

materials can interfere with sex offenders’ rehabilitation. (Id. ¶ 8.) Once such materials

enter a prison facility, it is impossible to prevent non-sex offenders from passing them to

sex offenders. (Id.) And third, sexually explicit materials can create a hostile work

environment for prison staff. (Id. ¶ 9.) The DOC limits inmates’ access to sexually explicit

materials to reduce the exposure that DOC staff have to offensive images and to prevent

the objectification and harassment of female staff. (Id.)

MCF-STW staff enforce the DOC Contraband Policy. (Id. ¶ 2.) Every week, each

DOC facility receives hundreds, and sometimes thousands, of nude photos sent to

inmates through the mail. (Id. ¶ 11.) All mail at MCF facilities—whether paper or

electronic—is subject to search or screening to determine whether it contains prohibited

contraband. (Id. ¶¶ 11, 13.) DOC staff members reviewing for contraband use their

professional judgment to determine which photos are prohibited. (Id. ¶¶ 4, 10.)

For paper mail, when DOC staff determine that a photo is prohibited under the

Contraband Policy, the DOC sends the inmate a notice of non-delivery that explains why

the mailed photo was rejected. (Id. ¶ 3, Ex. 1 at 7–8.) An inmate can appeal that rejection

through a two-step appeals process. (McComb Decl. ¶ 4.)

In addition to paper mail, inmates can receive electronic photos through email on

prison kiosks. (Id. ¶ 12.) The DOC provides independent regulations and procedures for

processing email. (Id. ¶ 12, Ex. 3.) Each month, the DOC processes tens of thousands of

photos sent to inmates through email. (2nd Decl. Mary McComb (“2nd McComb Decl.”) ¶

2, Dec. 8, 2023, Docket No. 65.) If DOC staff determine that a photo attached to an email

is prohibited under the Contraband Policy, the DOC will enter the reason for the non-

delivery of the image into the kiosk service provider software, and the sender of the email

will be notified of the rejection and its basis. (Id. ¶ 4.) The inmate does not receive an

electronic notice of non-delivery for rejected email attachments, and there is no process

by which an inmate can appeal the rejection of such attachments. (Id.) The DOC has no

appeal process for rejected electronic attachments because the DOC does not download,

print, or retain rejected email attachments, and as such never takes possession of any

electronic items sent through the kiosk service provider. (Id. ¶¶ 2, 4.) Thus, there would

be no way to inspect the image during any appeal process. (Id. ¶ 2.) The DOC explains

that the tens of thousands of nude photos emailed to inmates per month makes it

impractical to institute such a process for electronic attachments. (Id. ¶¶ 2–3.)

During his incarceration, Odneal claims to have purchased several hundreds, if not

thousands, of “non-nude” photos from approved vendors. (Compl. ¶ 13.) The DOC

declined to deliver certain photos that Odneal purchased, some of which were sent to

him via postal mail or email. (Decl. Shawn K. Odneal at 1–2, July 31, 2023, Docket No. 42;

Compl. ¶¶ 30–31.) At least one of the vendors provided Odneal with warnings that there

was no guarantee he would receive his ordered photos given applicable contraband

policies. (Sealed Ex. at 34, Nov. 13, 2023, Docket No. 61.)

On one occasion specifically, Odneal alleges that he purchased 50 “non-nude”

electronic photos through the kiosk service, only 13 of which were approved. (Compl. ¶

31.) Odneal was informed that the rejected emailed photos could not be appealed, but

that if he wanted to appeal the decision, he could use the paper mail process. (Compl.

¶¶ 31–32.) Meaning, Odneal could reorder the images through the postal mail and, if the

photos were rejected again, he could appeal that rejection.

On another occasion, according to Odneal, he purchased 20 “non-nude” images,

all of which were denied. (Pl.’s Mot. Summ. J. at 4, Nov. 13, 2023, Docket No. 60.) Later,

when he ordered the same 20 images again, 11 of the 20 photos were delivered. (Id.) In

addition, Odneal claims that when he tried to purchase a photo that was inside of a

catalog already in his possession, the photo was rejected. (Id. at 6–7.)

II. PROCEDURAL HISTORY

Odneal filed this 42 U.S.C. § 1983 action, alleging that the DOC’s Contraband Policy

violates his First Amendment right to freedom of expression and procedural due process.

(Compl. ¶¶ 46–47.) Odneal levies both facial and as applied First Amendment challenges.

(Pl.’s Mot. Summ. J. at 4–7.) He seeks declaratory and injunctive relief, compensatory

damages, punitive damages against each defendant, and attorney’s fees. (Compl. ¶¶ 49–

54.)

Odneal and Defendants cross-moved for summary judgment. (Pl.’s Mot. Summ. J.;

Defs.’ Mot. Summ. J., Dec. 8, 2023, Docket No. 63.) Magistrate Judge Docherty issued an

R&R recommending the Court deny Odneal’s motion, grant Defendants’ motion, and

dismiss Odneal’s complaint with prejudice. (R. & R. at 25.) Odneal filed timely objections

to the R&R. (Pl.’s Obj. to R. & R. at 2–16, May 21, 2024, Docket No. 84.)

DISCUSSION

I. STANDARD OF REVIEW

A. Report and Recommendation

After a magistrate judge files an R&R, a party may “serve and file specific written

objections to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2);

accord D. Minn. LR 72.2(b)(1). “The objections should specify the portions of the

magistrate judge’s report and recommendation to which objections are made and

provide a basis for those objections.” Mayer v. Walvatne, No. 07-1958, 2008 WL 4527774,

at *2 (D. Minn. Sept. 28, 2008). For dispositive motions, the Court reviews de novo a

“properly objected to” portion of an R&R. Fed. R. Civ. P. 72(b)(3); accord D. Minn. LR

72.2(b)(3). “Objections which are not specific but merely repeat arguments presented to

and considered by a magistrate judge are not entitled to de novo review, but rather are

reviewed for clear error.” Montgomery v. Compass Airlines, LLC, 98 F. Supp. 3d 1012,

1017 (D. Minn. 2015). The Eighth Circuit has been willing to liberally construe otherwise

general pro se objections to R&Rs and to require de novo review of all alleged errors. Belk

v. Purkett, 15 F.3d 803, 815 (8th Cir. 1994). Given the breadth of Odneal’s objections to

the R&R, the Court reviews the entire R&R de novo.

B. Summary Judgment

Summary judgment is appropriate when there are no genuine issues of material

fact, and the moving party can demonstrate that it is entitled to judgment as a matter of

law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the case, and

a dispute is genuine if the evidence is such that it could lead a reasonable jury to return a

verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A court considering a motion for summary judgment must view the facts in the light most

favorable to the nonmoving party and give that party the benefit of all reasonable

inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,

475 U.S. 574, 587 (1986). The nonmoving party may not rest on mere allegations or

denials but must show, through the presentation of admissible evidence, that specific

facts exist creating a genuine issue for trial. Anderson, 477 U.S. at 256 (discussing Fed. R.

Civ. P. 56(e)). “The mere existence of a scintilla of evidence in support of the plaintiff’s

position will be insufficient; there must be evidence on which the jury could reasonably

find for the plaintiff.” Id. at 252.

II. ANALYSIS

Odneal claims that the Magistrate Judge erred in finding that his First Amendment

and procedural due process claims fail. He also argues that Defendants are not entitled

to qualified immunity and that he is entitled to punitive damages for their conduct.

A. First Amendment

Odneal argues that the DOC’S Contraband Policy limiting inmates from receiving

sexually explicit photos violates his rights under the First Amendment. In particular,

Odneal claims that the policy’s definition of “nudity” is unconstitutionally vague, and that

the policy is arbitrarily and inconsistently enforced. Because it is unclear whether Odneal

objects to the Magistrate Judge’s recommendations regarding his facial or as-applied

challenges to the Contraband Policy, the Court will liberally construe his objections and

analyze both types of challenges. Erickson v. Pardus, 551 U.S. 89, 94 (2007).

The Supreme Court instructs district courts to balance two competing principles

when evaluating prisoners’ rights cases. Sisney v. Kaemingk, 886 F.3d 692, 697 (8th Cir.

2018). One the one hand, “[p]rison walls do not form a barrier separating prison inmates

from the protections of the Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). On

the other, “courts are ill equipped to deal with the increasingly urgent problems of prison

administration and reform.” Id. (internal quotation marks omitted). In other words,

because prison administration involves exceedingly complex difficulties, courts must give

deference to the decisions of appropriate prison officials, especially those who run state

penal systems. Id. at 85.

In balancing these competing principles to determine whether a regulation violates

inmates’ constitutional rights, courts must determine whether the regulation is

“reasonably related to legitimate penological interests.” Turner, 490 U.S. at 89. There

are four non-exhaustive factors to consider in answering this inquiry:

(1) whether a rational connection exists between the

regulation and a neutral, legitimate government interest; (2)

whether alternative means exist for inmates to exercise the

constitutional right at issue; (3) what impact the

accommodation of the right would have on inmates, prison

personnel, and allocation of prison resources; and (4) whether

obvious, easy alternatives exist.

Dawson v. Scurr, 986 F.2d 257, 260 (8th Cir. 1993) (citing Turner, 490 U.S. at 89–91;

Thornburgh v. Abbott, 490 U.S. 401, 414–19 (1989)). These so-called Turner factors apply

equally to Odneal’s facial and as-applied challenges to the DOC Contraband Policy.

Bahrampour v. Lampert, 356 F.3d 969, 975 (9th Cir. 2004).

Odneal objects to the Magistrate Judge’s application of the Turner factors to his

First Amendment challenges. The Court will thus analyze each factor with respect to

Odneal’s facial and as-applied challenges in turn.

1. Facial Challenge

Odneal argues that the DOC’s Contraband Policy prohibiting inmates from

receiving photos depicting nudity or other sexually explicit content via postal service or

email, is unconstitutional on its face. The Court disagrees.

a. Rational Connection Between Prison Policy and Legitimate

Governmental Interest

The first Turner factor asks the Court to consider “whether the governmental

objective underlying the regulations at issue is legitimate and neutral” and whether “the

regulations are rationally related to that objective.” Thornburgh v. Abbott, 490 U.S. 401,

414 (1989). The Court finds that this factor weighs in favor of Defendants.

Here, the DOC offers three reasons for limiting inmates’ access to nude and

sexually explicit materials: (1) prisoners’ access to such materials creates a security risk;

(2) such materials interfere with sex offenders’ rehabilitation; and (3) such materials

create a hostile work environment for prison staff. These objectives are undoubtedly

legitimate. See, e.g., Dawson, 986 F.2d at 260–61 (finding rehabilitative and security goals

to be valid and legitimate penological goals).

For the neutrality requirement, courts must consider “whether prison regulations

restricting inmates’ First Amendment rights operate[] in a neutral fashion, without regard

to the content of the expression.” Turner, 482 U.S. at 90. A governmental objective is

neutral if the prison regulation “furthers ‘an important or substantial governmental

interest unrelated to the suppression of expression.’” Dawson, 986 F.2d at 261 (quoting

Thornburgh, 490 U.S. at 415). While the Contraband Policy would be a content-based

restriction under normal First Amendment standards, it is neutral because DOC staff only

draw distinctions between the materials that are accepted or rejected based on their

potential impact on prison security and offenders’ rehabilitation. See Thornburgh, 490

U.S. at 415–16 (“Where, as here, prison administrators draw distinctions between

publications solely on the basis of their potential implications for prison security, the

regulations are ‘neutral’ in the technical sense in which we meant and used that term in

Turner.”).

Finally, the Contraband Policy is rationally related to prison security interests. The

DOC has provided evidence that sexually explicit materials pose a threat to the security

of the facility, interfere with offenders’ rehabilitation, and create a hostile work

environment for prison staff. Limiting the circulation of sexually explicit materials clearly

furthers the DOC’s legitimate goals. See Dawson, 986 F.2d at 261.

In his objections, Odneal does not dispute the legitimacy of the DOC’s objectives

underlying the Contraband Policy. Rather, he claims that the Contraband Policy is

“inconsistent and ineffective” because it “does not hold up the substantial government

interest related to security as described in Dawson or Thornburgh.” (Pl.’s Obj. to R. & R.

at 2.) Odneal’s objections therefore challenge whether the Contraband Policy is effective.

He contends that the policy fails to support its objectives because it is inconsistently

applied within and across MCF facilities due to its vague definition of “nudity.” However,

just because the DOC staff exercise their own independent judgment in determining what

photos are allowed versus prohibited, which may sometimes result in inconsistencies,

does not mean that the Contraband Policy is unconstitutional on its face. As the Supreme

Court noted in Thornburgh,

The exercise of discretion called for by these regulations may

produce seeming “inconsistencies,” but what may appear to

be inconsistent results are not necessarily signs of

arbitrariness or irrationality. Given the likely variability within

and between institutions over time, greater consistency might

be attainable only at the cost of a more broadly restrictive rule

against admission of incoming publications. Any attempt to

achieve greater consistency by broader exclusions might itself

run afoul of the second Turner factor, i.e., the presence or

absence of “alternative means of exercising the right” in

question. The regulations at issue here, in our view, strike an

acceptable balance.

Thornburgh, 490 U.S. at 417 n.15 (internal citations omitted).

The Court thus concludes that the objectives underlying the DOC Contraband

Policy are not only legitimate and neutral, but also rationally related to the policy’s

limitation of sexually explicit materials in DOC facilities. Odneal has provided no evidence

suggesting that sexually explicit materials prohibited under the policy pose little to no risk

to the security of the facility, rehabilitation of offenders, or creation of a hostile work

environment. Nor does he argue that the objectives lack a rational connection to the

policy. Instead, he merely argues that the policy is inconsistently applied in such a way

within and across MCF facilities that burdens his constitutional rights, which does not

change the Court’s analysis or conclusion. Accordingly, this factor weighs in favor of

Defendants.

b. Alternative Means to Exercise the Right

The second Turner factor asks the Court to consider “whether there are alternative

means of exercising the right that remain open to prison inmates.” Turner, 482 U.S. at

90. Under this factor, “the right in question must be viewed sensibly and expansively.”

Thornburgh, 490 U.S. at 417 (internal quotation marks omitted). “Where other avenues

remain available for the exercise of the asserted right, courts should be particularly

conscious of the measure of judicial deference owed to corrections officials in gauging

the validity of the regulation.” Turner, 482 U.S. at 90 (internal quotation marks,

alterations, and citations omitted).

In this case, the Contraband Policy allows for alternative means for inmates to

exercise their right to freedom of expression. Just as in Thornburgh, where the Supreme

Court found there were alternative means where inmates could send, receive, and read

a broad range of publications, here too the DOC policy still permits a wide range of

content to be received by inmates, so long as the content does not contain contraband.

See Thornburgh, 490 U.S. at 417–18. The Contraband Policy does not even ban all sexual

content and permits inmates to receive photos featuring some bare skin, including

cleavage, bare buttocks with thongs, and breasts with bikini tops. Alternative means

therefore remain open to inmates.

Odneal opposes these alternatives in favor of expanding the Contraband Policy to

permit more sexually explicit photos. He proposes a new definition of nudity that would,

in his view, “reflect[] social standards of the [world].” (Pl.’s Obj. to R. & R. at 6.)

Specifically, Odneal proposes to “[l]et Nudity mean Nudity,” as opposed to the current

definition which includes depictions of “coverings emphasizing the depiction of human

genitals; or tight-fitting clothing through which the contours of the genitals are clearly

visible.” (Id.; McComb Decl. ¶ 3, Ex. 2 at 14.) Nevertheless, the Court has no authority to

alter a policy that “permit[s] a broad range of publications to be sent, received, and read.”

Thornburgh, 490 U.S. at 418. Accordingly, this factor favors Defendants.

c. Impact on Others if Right is Accommodated

The third Turner factor asks the Court to consider the impact that accommodating

the asserted right may have on guards and other inmates, as well as on the allocation of

prison resources generally. Turner, 482 U.S. at 90. “When accommodation of an asserted

right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts

should be particularly deferential to the informed discretion of corrections officials.” Id.

Expanding the definition of nudity would undoubtedly cause a negative “ripple

effect” for other prisoners and DOC staff. Thornburgh, 490 U.S. at 418. Odneal is

incorrect to suggest that there can be no ripple effects where contraband already

circulates within DOC facilities. The existing nude content already presents risks;

expanding the amount of nude content would expand those risks. See, e.g., Jackson v.

Gutzmer, No. 16-3831, 2018 WL 7572492, at *7 (D. Minn. Sept. 28, 2018); Wickner v.

McComb, No. 09-1219, 2010 WL 3396918, at *5 (D. Minn. July 23, 2010); Smith v. Roy,

No. 10-2193, 2012 WL 1004985, at *11 (D. Minn. Jan. 25, 2012).

Because accommodating Odneal’s right to freedom of expression could only be

exercised at the expense of others’ liberty and safety, the Court defers to the “informed

discretion of corrections officials” and finds this factor favors Defendants. Thornburgh,

490 U.S. at 418.

d. Absence of Ready Alternatives

The fourth Turner factor asks the Court to consider whether there are “ready

alternatives” to the contested policy. Turner, 482 U.S. at 90. The existence of an obvious,

easy alternative cuts against the reasonableness of a regulation. Id. However, the

regulation need not be the “least restrictive alternative.” Id. “[I]f an inmate claimant can

point to an alternative that fully accommodates the prisoner’s rights at de minimis cost

to valid penological interests, a court may consider that as evidence that the regulation

does not satisfy the reasonable relationship standard.” Id. at 91.

Odneal first proposes that the DOC reinstate its previous definition of nudity used

in the 2003 version of the Contraband Policy, which according to Odneal defined nudity

as “sexually explicit materials, magazines and personal photographs depicting nudity.”

(Pl.’s Obj. to R. & R. at 9.) Odneal primarily takes issue with the fact that over the years,

the DOC has expanded its Contraband Policy. Alternatively, Odneal requests modifying

the definition of “nudity” to “showing the actual exposed genitals.” (Id. at 10.) Under

Odneal’s proposed definition, then, DOC policy would allow photos depicting individuals

with any coverings, so long as genitalia are not actually exposed.

However, Odneal’s proposed alternatives to expand the policy’s definition of

nudity would not pose a de minimus cost. In fact, as the Court determined earlier when

considering the third Turner factor, such an expansion would result in a multitude of

negative consequences for inmates and prison staff. Indeed, as even Odneal admits, the

DOC’s policy definitions were amended over the years to adapt to the present needs of

prison security interests and as a result of complaints by DOC staff. Reverting back to

previous definitions or adopting Odneal’s proposed definition would certainly impose

costs on prison staff and other inmates, none of which would be de minimus.

Additionally, Odneal proposes that the DOC stamp mail with a “DOC APPROVED”

mark to avoid inconsistent application of the Contraband Policy if an inmate brings

approved photos from one DOC facility when transferred to another. However, adopting

this alternative would prevent DOC facilities from potentially correcting erroneous

judgments at previous DOC facilities. Plus, this suggested alternative fails to account for

the fact that each DOC facility may have slightly different applications of the Contraband

Policy due to the varying security risks that sexually explicit materials may present in

different prison settings. A facility with a significant number of sex offenders, for

example, may have a slightly stricter enforcement of the Contraband Policy than a facility

with fewer sex offenders, where the risk of rehabilitation interference may be lower. This

suggested alternative therefore would not impose a de minimis cost.

After reviewing Odneal’s proposals, the Court concludes that the record of this

case does not reveal any ready alternatives to the Contraband Policy that would impose

a de minimis cost.

After considering all four Turner factors, the Court concludes that the DOC

Contraband Policy limiting inmates from receiving sexually explicit photos is rationally

related to a legitimate penological interest. Therefore, the Contraband Policy is not

facially invalid.

2. As-Applied Challenge

Odneal argues that even if the DOC Contraband Policy is facially valid, it is

nevertheless unconstitutional as applied to him. The Court disagrees.

The Turner factors apply equally to Odneal’s as-applied challenge as it does to his

facial challenge. Bahrampour, 356 F.3d at 975. The Court has already concluded that the

Contraband Policy is rationally related to a legitimate penological objective. Thus, the

Court turns its attention to whether there remains a genuine dispute of material fact

regarding whether the prison officials had legitimate reasons to apply the Contraband

Policy to the inmate bringing the as-applied challenge. Wickner, 2010 WL 3396918, at *4

(citing Hargis v. Beauchamp, 312 F.3d 404, 410–11 (9th Cir. 2002)). Accordingly, the Court

must determine whether no reasonable jury could find that the prison officials at MCF-

STW did not have a legitimate reason to reject the photos ordered by Odneal that they

determined to have violated DOC policy.

Here, there is no genuine dispute that the MCF-STW prison officials acted

reasonably in denying Odneal access to the photos because they believed that doing so

would further the legitimate penological goals of maintaining prison security, preventing

interference with sex offenders’ rehabilitation, and avoiding a hostile work environment

for prison staff. Odneal is imprisoned for a serious sexual offense against a minor. It is

therefore reasonable that DOC staff limited his access to sexually explicit materials. See

Yaritz v. Schnell, No. 22-2042, 2023 WL 3721630, at *3 (D. Minn. May 30, 2023), aff’d, No.

23-2457 (8th Cir. June 28, 2024). Accordingly, Odneal’s as-applied challenge to the

Contraband Policy fails.

C. Procedural Due Process

Odneal argues that the Contraband Policy violates his right to procedural due

process under the Fourteenth Amendment.1 In particular, he challenges the DOC’s

practice of rejecting photos attached to emails that violate the Contraband Policy without

providing notice to the inmate to whom they were sent and without giving the inmate an

opportunity to appeal the rejection.

“To state a procedural due process violation, [Odneal] must first demonstrate the

deprivation of a protected liberty or property interest.” Bonner v. Outlaw, 552 F.3d 673,

676 (8th Cir. 2009). If there has been such deprivation, "the amount of process due

[Odneal] is determined by balancing the specific interest affected, the likelihood the

challenged action would result in an erroneous deprivation of that right, and the burden

of providing additional procedures, including administrative costs and burdens.” Id.

The Supreme Court and the Eighth Circuit have held that prisoners have a

protected liberty interest in “uncensored communication” under the due process clause

of the Fourteenth Amendment. Procunier v. Martinez, 416 U.S. 396, 417 (1974), overruled

on other grounds by Thornburgh, 490 U.S. at 413–14; Bonner, 552 F.3d at 676. This

interest is protected regardless of the form that the correspondence takes. Bonner, 552

F.3d at 676–77. Just as physical letters are protected, Martinez, 416 U.S. at 417, so too

1 Odneal initially brought a Fifth Amendment due process claim, but Magistrate Judge

Docherty correctly interpreted it as a Fourteenth Amendment due process claim against the

state. (See Compl. ¶ 47; R. & R. at 19 n.7.)

are emails. See Benning v. Comm’r, Georgia Dep’t of Corrections, 71 F.4th 1324, 1330–31

(11th Cir. 2023). Thus, the censorship or withholding of inmates’ email correspondence

“must be accompanied by minimum procedural safeguards.” Martinez, 416 U.S. at 418–

19; see also Benning, 71 F.4th at 1329–31 (concluding that inmate had a liberty interest

in censored emails that triggered procedural due process protections).

Having concluded that Odneal had a liberty interest in censored emails that

triggered due process protections, the next inquiry is whether the DOC denied Odneal his

due process rights when rejecting photos he had ordered through email. Bonner, 552

F.3d at 676–79. Minimum procedural safeguards include notice to the inmate that the

correspondence was rejected, the opportunity to object to the decision, and the

opportunity to appeal to a decisionmaker who was not involved in the initial censorship

decision. Martinez, 416 U.S. at 418–19.

As for notice, it is clear on this record that Odneal received notice regarding the

rejection of emailed photos when he realized that only a portion of his ordered electronic

photos were delivered to his email. He was on notice from the sender’s website before

even ordering the photos that delivery was not guaranteed given the DOC’s contraband

policy, and he received actual notice when the photos were never delivered to his email

address from the vendor. Odneal does not dispute this. Rather, he argues that this form

of notice was insufficient to comport with due process. However, Odneal cannot show

that he was denied notice of the censorship he challenges. Heard v. Chavez, 699 Fed.

App’x 788, 790–91 (10th Cir. 2017) (“[Plaintiff] cites no authority, nor are we aware of any,

for the proposition that the notice component of a due process claim can be violated even

when actual notice is accomplished.”).

Although Odneal argues that he did not have the opportunity to object and appeal

the rejected photos, minimum procedural safeguards are in place. Odneal can either re-

order rejected electronic photos as physical ones through the postal service and appeal

their rejection if they are denied through the postal mail process, or else order all photos

physically through the postal service and appeal their rejection right away if they are

denied. These procedures do not violate due process merely because they de-incentivize

inmates from purchasing electronic photos that might be censored as opposed to physical

ones. An independent appeal process for the censorship of electronic photos would

impose substantial burdens and costs on the DOC, especially given the volume of photos

the DOC processes per month and the resources needed to hire and retain additional staff

to process appeals. Since this change would be implemented across all DOC facilities,

these burdens would be amplified. The Court therefore concludes that the DOC policy

satisfies the procedural requirements of due process.

Because Odneal received actual notice the censorship of his email correspondence

and was not denied minimum procedural safeguards to protect his liberty interest in

uncensored communications, Odneal’s procedural due process claim fails.

D. Defendants’ Liability

The Court concluded there was no constitutional violation. Even if it did, however,

Defendants would be immune from damages liability.

Odneal brings this action against Defendants under 42 U.S.C. § 1983. (Compl. ¶ 1.)

Section 1983 permits litigants to seek relief against public employees and others acting

“under color of state law” for violations of federal constitutional rights. Under the

statute, public employees can be sued in either their official capacity, individual capacity,

or both. Johnson v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999) (citing

Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997)).

Odneal’s complaint does not specify in what capacity Defendants are being sued.2

And the Eighth Circuit has made clear that to sue a public employee in their individual

capacity, “a plaintiff must expressly and unambiguously state so in the pleadings,

otherwise it will be assumed that the defendant is sued only in his or her official capacity.”

Id. (citing Artis v. Francis Howell N. Band Booster Ass’n Inc., 161 F.3d 1178, 1182 (8th Cir.

1998)). In the absence of an express statement saying otherwise in his complaint, the

Court construes Odneal’s claims against Defendants only in their official capacity.

2 Odneal expressly states that he is suing Defendants in their individual and official

capacities for the first time in his objections to the R&R, but he did not include such an express

statement in his complaint, as required. (See Pl.’s Obj. to R. & R. at 16.)

1. Official Capacity

Because Odneal brings claims against DOC employees in their official capacity, he

is essentially suing the State of Minnesota. See Baker v. Chisom, 501 F.3d 920, 925 (8th

Cir. 2007). “The Eleventh Amendment grants a state immunity from suits brought in

federal court by its own citizens as well as citizens of another state.” Alsbrook v. City of

Maumelle, 184 F.3d 999, 1005 (8th Cir. 1999). A state can waive its immunity, but it is

undisputed that Minnesota has not consented to this suit. See id. Therefore, Defendants

are entitled to immunity under the Eleventh Amendment. As a result, Odneal would not

be entitled to compensatory damages even if the Court had found a constitutional

violation.

In addition to compensatory damages, Odneal requests injunctive relief. (Compl.

¶ 50.) The Supreme Court recognized an exception to Eleventh Amendment immunity in

Ex Parte Young, 209 U.S. 123 (1908), which allows individuals to seek prospective

equitable relief against public officials to prevent ongoing violations of federal law.

McDaniel v. Precythe, 897 F.3d 946, 951–52 (8th Cir. 2018). To meet this exception,

Odneal must allege an “ongoing violation of federal law” and seek relief that is “properly

characterized as prospective.” Verizon Md. Inc. v. Pub. Serv. Comm'n of Md., 535 U.S. 635,

645 (2002) (internal quotation marks and citation omitted). The Court has already

concluded that the DOC’s procedures for rejecting electronic attachments to emails that

violate the Contraband Policy does not violate the First Amendment or due process, so

Odneal has failed to allege an ongoing violation of federal law.

Even if the Court had found otherwise, however, the injunctive relief that Odneal

seeks is outside the bounds of what the Prison Litigation Reform Act (“PLRA”) permits.

The PLRA requires that injunctions with respect to prison conditions be narrowly tailored.

18 U.S.C. § 3626(a)(1). Specifically, the statute states that:

Prospective relief in any civil action with respect to prison

conditions shall extend no further than necessary to correct

the violation of the Federal right of a particular plaintiff or

plaintiffs. The court shall not grant or approve any prospective

relief unless the court finds that such relief is narrowly drawn,

extends no further than necessary to correct the violation of

the Federal right, and is the least intrusive means necessary

to correct the violation of the federal right. The court shall

give substantial weight to any adverse impact on public safety

or the operation of a criminal justice system caused by the

relief.

Id. Here, Odneal’s requested remedy is to require the DOC to modify the definition of

nudity in the Contraband Policy and to provide notice and an opportunity to appeal when

rejecting photos emailed through the kiosk service. Such relief would be extensive and

intrusive, however, as it would apply across all DOC facilities and its implementation

would create significant administrative burdens. Native Am. Council of Tribes v. Weber,

750 F.3d 742, 753–54 (8th Cir. 2014) (“[T]he scope of the remedy must be proportional to

the scope of the violation, and the order must extend no further than necessary to

remedy the violation.” (quoting Brown v. Plata, 563 U.S. 493, 531 (2011))). Modifying the

definition of nudity would expand the kind of sexually explicit materials permitted in DOC

facilities, which would cause significant security and rehabilitative concerns. And DOC

facilities process hundreds and sometimes thousands of sexually explicit photos sent to

inmates through the kiosk services, such that requiring the DOC to alter its kiosk service

appeal process would be unduly burdensome. Thus, even if the Court had found a

constitutional violation, it could not grant Odneal the injunctive relief that he requests.

2. Individual Capacity

Though Odneal did not expressly bring claims against Defendants in their individual

capacity, he argues in his objections to the R&R that Defendants are not entitled to

qualified immunity. The Magistrate Judge did not consider this issue, and need not have,

because Odneal did not expressly and unambiguously state that his claims were against

Defendants in their individual capacity. Nevertheless, even if he had done so, and even if

the Court had found a constitutional violation, Defendants would be entitled to qualified

immunity.

“Qualified immunity shields government officials from civil damages liability unless

the official violated a statutory or constitutional right that was clearly established at the

time of the challenged conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012.) A clearly

established right is one that is “sufficiently clear ‘that every reasonable official would

[have understood] that what he is doing violates that right.’” Id. (quoting Ashcroft v. al-

Kidd, 563 U.S. 731, 741 (2011)) (alterations in original). In other words, “existing

precedent must have placed the statutory or constitutional question beyond debate.” Id.

If the Court had found a constitutional violation, the appropriate inquiry here

would be whether it was sufficiently clear that Defendants were violating Odneal’s

constitutional rights when they rejected certain electronic sexually explicit photos. The

Court finds it was not. Courts have consistently found that the DOC policy does not violate

the First Amendment. See Jackson, 2018 WL 7572492, at *6–8; Baasi v. Fabian, No. 09-

781, 2010 WL 924384, at *10–14 (D. Minn. Mar. 11, 2010). And while it is clear that

inmates have a protected liberty interest in uncensored communications, few cases have

considered how that liberty interest should be protected in the form of email

correspondence. As far as the Court can tell, no Supreme Court, Eighth Circuit, or

Minnesota Supreme Court decisions are on point. See Benning, 71 F.4th at 1333–34

(discussing same for Eleventh Circuit and Georgia Supreme Court decisions). Given the

lack of precedent, therefore, there is not clearly established law to make it “beyond

debate” that not providing formal notice and an opportunity to appeal when rejecting

electronic sexually explicit photos violates due process. Reichle, 566 U.S. at 664.

Accordingly, even if Odneal had brought claims against Defendants in their individual

capacity, Defendants would be entitled to qualified immunity.

E. Punitive Damages

Odneal also seeks punitive damages, and he objects to the Magistrate Judge’s

determination that punitive damages should not be awarded in this case. (Compl. ¶ 52.)

Punitive damages are available under § 1983 only “when the defendant’s conduct is

shown to be motivated by evil motive or intent, or when it involves reckless or callous

indifference to the federally protected rights of others.” McAdoo v. Martin, 899 F.3d 521,

527 (8th Cir. 2018) (quoting Schaub v. Vonwald, 638 F.3d 905, 922 (8th Cir. 2011)). Such

damages are awarded “to punish the defendant for his or her willful or malicious conduct

and to deter others from similar behavior.” Thurairajah v. City of Fort Smith, Arkansas, 3

F.4th 1017, 1026 (8th Cir. 2021) (quoting Coleman v. Rahija, 114 F.3d 778, 787 (8th Cir.

1997)). To prove reckless indifference, there must be evidence that Defendants “acted in

the face of a perceived risk that his or her actions would violate federal law.” McAdoo,

899 F.3d at 527 (quoting Swipes v. Kofka, 419 F.3d 709, 718 (8th Cir. 2005)) (cleaned up).

Nothing in the record indicates that Defendants were motivated by evil motive or

intent or showed reckless indifference to Odneal’s constitutional rights. And Odneal does

not point to anything suggesting as such. Odneal’s disagreement with the DOC’s policy

and its enforcement does not evidence evil motive or intent or reckless indifference to

his federal constitutional rights. Therefore, even if the Court had found a constitutional

violation, Odneal would not be entitled to punitive damages.

CONCLUSION

Because the DOC Contraband Policy is rationally related to a legitimate penological

interest, Odneal’s facial and as-applied First Amendment challenges fail. Because Odneal

was not deprived of a protected liberty interest, his procedural due process claim also

fails. Even if the Court had found a constitutional violation, however, Defendants would

be entitled to Eleventh Amendment and qualified immunity from monetary damages, and

the injunctive relief Odneal requests is outside the bounds of what the PLRA permits.

Finally, because there is no evidence that Defendants acted with evil motive or intent or

showed reckless indifference to Odneal’s constitutional rights, Odneal would also not be

entitled to punitive damages.

ORDER

Based on the foregoing, and all the files, records, and proceedings herein, IT IS

HEREBY ORDERED that:

1. The Report and Recommendation [Docket No. 82] is ADOPTED;

2. Plaintiff’s Objections to the Report and Recommendation [Docket No. 84] are

OVERRULED;

3. Plaintiff’s Motion for Summary Judgment [Docket No. 60] is DENIED;

4. Defendant’s Motion for Summary Judgment [Docket No. 63] is GRANTED; and

5. Plaintiff’s Complaint is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

DATED: July 15, 2024 _____s/John R. Tunheim_____

at Minneapolis, Minnesota. JOHN R. TUNHEIM

United States District Judge