Petition for Writ of Certiorari — Matthew Prow, Petitioner v. Tom Roy, et al.

Supreme Court briefJun 28, 2018

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for the QigljtIj ((mutt

No. 17-2883

Matthew Prow

Plaintiff- Appellant

Tom Roy; John King; Sandra O'Hara; Steve Hammer; Mary McComb; Carol

Krippner; Regina Stepney; Lieutenant Linde!!; Sergeant Hillyard

Defendants Appellees

Appeal from United States District Court

for the District of Minnesota Minneapolis

Submitted: March 29, 2018

Filed: April 3, 2018

[Unpublished]

Before WOLLMAN, COLLOTON, and SHEPHERD, Circuit Judges.

PER CURIAM.

In this 42 U.S.C. § 1983 action, Minnesota prisoner Matthew Prow appeals the

district court's' adverse grant of summary judgment on, inter alia, his claims

challenging several policies pertaining to prison property, and his due process claims.2

Having carefully reviewed the record and the parties' arguments on appeal, we

conclude that the district court properly granted summary judgment. See Mack v.

Dillon, 594 F.3d 620, 622 (8th Cir. 2010) (per curiam) (standard of review); see also

Turner v. Safely, 482 U.S. 78, 89-91 (1987); Libertarian Pam' of Ark. v. Martin, 876

F.3d 948, 952 (8th Cir. 2017) (discussing standard to be "prevailing party" in civil

rights action); Phillips v. Norris, 320 F.3d 844, 847 (8th Cir. 2003) (no federal

constitutional liberty interest in having prison officials follow prison regulations);

Buckley v. Barlow, 997 F.2d 494,495 (8th Cir. 1993) (per curiam) (prison's grievance

procedures confer no substantive rights; they are procedural rights only, which do not

give rise to protected liberty interest requiring Fourteenth Amendment protections).

Accordingly, the judgment is affirmed, see 8th Cir. R. 4713, and Prow's pending

motions are denied as moot.

'The Honorable Paul A. Magnuson, United States District Judge for the District

of Minnesota, adopting the report and recommendations of the Honorable Steven E.

Rau, United States Magistrate Judge for the District of Minnesota.

Prow waived his retaliation claim by failing to raise it on appeal. See Hess v.

Ables, 714 F.3d 1048, 1051 n.2 (8th Cir. 2013).

-2-

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No: 17-2883

Matthew Prow

Appellant

Tom Roy, etal.

Appellees

Appeal from U.S. District Court for the District of Minnesota Minneapolis

(0: 15-cv-03857-PAM)

[I) fl I) D

The petition for rehearing en bane is denied. The petition for rehearing by the panel is

also denied.

May 07,2018

Order Entered at the Direction of the Court:

Clerk, U.S. Court of Appeals, Eighth Circuit.

Is! Michael E. Gans

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 1 of 32

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Case No. 15-cv-3857 (PAMJSER)

Matthew Prow,

Plaintiff,

REPORT

AND RECOMMENDATION

Tom Roy, John King, Sandra O'Hara,

Steve Hammer, Mary McComb, Carol

Krippner, Regina Stepney, Lieutenant Lindell,

and Sergeant Hillyard,

Defendants.

STEVEN B. RAU, United States Magistrate Judge

This matter comes before the undersigned on the parties' cross motions for summary

judgment [Doe. Nos. 91, 107] and Plaintiff Matthew Prow's ("Prow") Motion for Temporary

Restraining Order [Doe. No. 115].1 This matter was referred to the undersigned pursuant to 28

U.S.C. § 636 and District of Minnesota Local Rule 72.1. For the reasons stated below, the Court

recommends that: Defendants Roy, King, O'Hara, Hammer, McComb, Krippner, Stepney,

Lindell, and Hillyard's (collectively, "Defendants") Motion for Summary Judgment be granted

in part and denied in part; Prow's Motion for Summary Judgment be denied; Prow's Motion for

Temporary Restraining Order be denied as moot; and this case be dismissed.

BACKGROUND2

This is Prow's third motion requesting a temporary restraining order. See also (Mot. for

TRO & Prelim. Inj.) [Doe. No. 31]; (Mot. for TRO & Prelim. lnj.) [Doe. No. 43].

This Court only addresses the factual and procedural background relevant to the Court's

analysis on the issues before it. For example, this Court does not address Prow's other motions

requesting a temporary restraining order and his Motions to Compel Discovery [Doe. Nos. 38

and 125].

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 2 of 32

On February 22, 2016, Prow filed his Amended Complaint alleging violations of 42

U.S.C. § 1983. (First Am. Compl., "Am. Compl.") [Doc. No. 17]. Prow claims violations of his

First and Fourteenth Amendments rights when Defendants: denied him books, images, and

hobby craft supplies; impeded his attempts to exhaust his administrative remedies; mishandled

his grievances; acted in violation of established policies; and retaliated against him for exercising

his rights. (Id IT 2, 10-18). Prow's allegations arise under application of the Minnesota

Department of Correction's ("DOC"): Contraband Policy 301.030, prohibiting possession of

sexually explicit materials; Hobby Craft Policy 204.047, limiting access to certain hobby craft

items; and Mail Policy 302.020 prohibiting the inclusion of self-addressed-stamped-envelopes

("SASE") in outgoing mail. See (Id). Prow seeks an injunction prohibiting: the confiscation of

purchased hobby craft supplies; confiscation of images that Prow deems to be "artistically

contextual nudity"; and the application of the DOC's policy against the "use of Self-Addressed

Stamped Envelopes." (Id ¶J 10.b, 32-35).

Prow also seeks compensation for alleged retaliatory actions, including being placed in

segregation and exposure to "stress responses" that caused "long term heart damage," (Id. ¶ 22);

see also (id at 13-14), and punitive damages for Defendants' "repeated and demonstrably

callous indifference.

. .

as matter of general practice." (Id ¶ 24); see also (Id. at 14).

On November 1, 2016, Defendants filed their Motion for Summary Judgment.

Defendants raise numerous arguments why their Motion for Summary Judgement should be

granted. In particular, Defendants argue that the DOC's policies regarding access to an supplies,

and prohibitions against nudity and SASEs do not violate the First Amendment because the

policies are both facially valid and valid as applied to Prow. See (Defs.' Mem. in Supp. of Their

Mot. for Summ. J., "Defs.' Mem. in Supp. of Mot. for Summ. J.") [Doc. No. 92 at 10-311.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 3 of 32

Defendants also argue that they have not violated Prow's Due Process rights and have not

subjected Prow to cruel and unusual punishment as prohibited under the Eighth Amendment.

See

(Ed at 31-35). Lastly and alternatively, Defendants assert: that they are not liable for damages or

"retroactive injunctive relief" in their official capacities on the following bases: (1) the immunity

afforded states under the Eleventh Amendment; (2) they are not liable for damages for mental or

emotional damages under the Prison Litigation Reform Act ("PLRA"); (3) that claims against

Defendant Roy should be dismissed because he had no personal involvement with the matters

alleged in the Amended Complaint; and finally, qualified immunity shields them against any

alleged constitutional violations. See (Ed. at 7-9, 35-36).

On December 14, 2016, Prow filed his Motion for Summary Judgment.3 Prow asserts

numerous arguments related to various policies That his Amendment Complaint implicates. With

respect to Contraband Policy 301.030, Prow asserts the policy: is overbroad; is not rationality

related to penological security; is arbitrary; is an impermissible content-based restriction; does

not provide review according to the standard espoused in Thornburgh v. Abbott, 490 U.S. 401

(1989); and is unconstitutional as applied to Prow. See (Mem. of Law in Supp. of Pl.'s Second

Motion for Summ. J., "Prow's Mem. in Supp. of Mot. for Summ. J.") [Doc. No. 108 at 10-251.

With respect to Hobby Craft Policy 204.047, Prow asserts the policy: is vague; its restrictions are

an exaggerated response to prison security; is not rationally related to proffered penological

Prow's First Motion for Summary Judgment was dismissed without prejudice. See (Mem.

& Order Dated Sept. 6, 2016) [Doc. No. 88]. In consideration of Prow's status as an inmate,

Defendants agreed "that [Prow] may refer to [his] first declaration without having to refile as

long as [he] made specific references [to the first declaration and attached exhibits]." (Decl. of

Matthew Prow in Supp. of Second Mot. for Summ. J., "Prow's Second Decl.") [Doc. No. 110 at

31. In support of Prow's Motion for Summary Judgment currently before the Court, Prow

resubmitted his first declaration, which references his previously submitted exhibits. See

generally (Decl. of Matthew Prow in Supp, of Second Mot. for Summ. J., "Prow's First Decl.")

[Doc. No. 109]. Thus, the Court considers the exhibits attached to Prow's First Declaration [Doc.

Nos. 64-1 to 64-32] when analyzing the pending Motions for Summary Judgment.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 4 of 32

interests; and generally fails constitutional muster under Turner v. Safley, 482 U.S. 78 (1987).

(Id. at 25-36). Prow asserts that the prohibition against SASEs in Mail Policy 302.020 violates

his First Amendment rights because the ban of SASEs "hinders access to legal services,

communication with others, and protected expression." See (id. at 38-39).

On December 16, 2016, Prow filed the instant Motion for Temporary Restraining Order.

(Mot. for TRO). In particular, Prow asserts that he "purchased from the Clerk's office copies of

ECF No. 99 and its attached exhibit c." (Mem. in Supp. of Mot. for TRO) [116 at I]. Prow

further states that "[p]ursuant to mail procedure" the copies of the exhibits were reviewed by

prison stag classified as contraband on the basis of their sexually explicit nature, and

confiscated. See (id). Prow requests a temporary restraining to prevent the Defendants from

disciplining him for requesting the contraband and an order to show cause as to "why Defendants

should not be required to provide unredacted versions of all filings they have made with the

Court." (Id. at 1-2).

Prow filed his Response to Defendants' Motion for Summary Judgment on February 15,

2017. See (Pl.'s Resp. to Defs.' Mot. for Summ. J. "Resp. to Defs.' Mot. for Summ. J.") [Doe.

No. 147]? In response, Prow raises numerous arguments relating to the prohibition of sexually

explicit material under Contraband Policy 301.30, including: the policy acts as a blanket ban;

Defendants' proffered intent is inconsistent with the "true intent"; the policy produces

unreasonable results; no exceptions to the policy exist; Defendants' "featuring" standard is

Prow also "voluntarily dismisses" his Eighth Amendment claims. (Id. at 8). But as will be

discussed below, this was likely in response to Defendants' arguments directed thereto, as the

Court cannot identify allegations in Prow's Amended Complaint that reasonably implicate the

Eighth Amendment.

Prow submitted his Response to Defendants' Motion for Summary Judgment on February

15, 2017, but it was not docketed until February 21, 2017. See (Resp. to Defs. Mot. for Summ.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 5 of 32

arbitrary, vague, and does not match the proffered intent; the banned images do not create a

hostile work environment; reducing mail volume is a "disingenuous argument"; and alternatives

exist to the established policies that comport with Defendants' proffered interests. See (id. at 213). Likewise, Prow raises numerous arguments regarding the restriction of certain hobby craft

items under Hobby Craft Policy 204.047, including: Defendants mischaracterize Prow's

challenge to the policy; Defendants have failed in their burden justifying their restriction; the

policy fails under Turner; and Defendants' allowance of some water-mixable oil paints does not

cure the underlying constitutional violation. See (Id. 13-25). With respect to Mail Policy

302.020, Prow argues that Defendants have not been truthful regarding the rationale behind the

policy and the SASE is not a content-neutral restriction. See (Ed. at 25-28).

On February 17, 2017, Defendants filed their response to Prow's Motion for Summary

Judgment. (Defs.' Mem. of Law in Opp'n to Pl.'s Mot. for Summ. J., "Defs.' Resp. to Mot. for

Summ. J.") [Doc. No. 145]. In response, Defendants re-emphasize the same general points made

in their Motion for Summary Judgment. See generally (id). Thus, the motions are fully briefed

and ripe for consideration.

II.

DISCUSSION

Motions for Summary Judgment

Legal Standard

Summary judgment is appropriate "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). In other words, "the mere existence of some alleged factual dispute between the parties

will not defeat an otherwise properly supported motion for summary judgment; the requirement

is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 6 of 32

247-48 (1986) (emphasis omitted). "[A] dispute about a material fact is genuine if a reasonable

jury could return a verdict in favor of either party." White v. Earner, 849 F.2d 322, 325 (8th dr.

1988). The court views the evidence and makes all reasonable inferences in favor of the

nonmoving party. Sallis v. Univ. of Minn., 408 F.3d 470, 474 (8th Cit. 2005).

To support its argument, the moving party must cite to record materials or show "that the

materials cited do not establish the absence or presence of a genuine dispute, or that an adverse

party cannot produce admissible evidence to support the fact." Fed. R. Civ. P. 56(c)(1)(B).

"Once the moving party has made and supported their motion, the nonmoving party must proffer

admissible evidence demonstrating a genuine dispute as to a material fact." Holden v. Hirer,

663 F.3d 336, 340 (8th dir. 2011).

Analysis

The Court first addresses Defendant' Motion for Summary Judgment in light of Prow's

Amended Complaint and the record evidence before the Court, including the materials Prow

filed in support of his Motion for Summary Judgment. Based on its analysis, this Court

recommends that Defendants' Motion for Summary Judgement be granted in part and denied in

part, and that this case be dismissed. As a result, Prow is not entitled to judgement as a matter of

law, and this Court recommends that his Motion for Summary Judgment be denied.

First, the Court will address Defendants' arguments directed to the merits of the case.

Namely, Defendants asserts that they have not violated Prow's constitutional rights under the

First, Eighth, and Fourteenth Amendments and that they are protected from any potential liability

from qualified immunity. See (Defs.' Mem. in Supp. of Mot. for Summ. J. at 10-31, 35-36).

Because this Court decides Defendants' Motion for Summary Judgment on the merits, it does not

provide alternative analysis on Defendants' assertions that are arguably collateral to the merits of

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 7 of 32

the case: Defendants in their official capacities are immune from damages and retroactive

injunctive relief; and the PLRA bars claims for damages on the basis of alleged mental or

emotional distress. See (Defs.' Mem. in Supp. of Mot. for Summ. J. at

7_9)6

First Amendment Claims

Prow's challenges to Contraband Policy 301.030, Hobby Craft Policy 204.047, and Mail

Policy 302.020 implicate the First Amendment and are analyzed under Turner. 482 U.S. at 89. A

"regulation is valid if it is reasonably related to legitimate penological interests." Id To

determine whether a regulation is reasonably related to legitimate penological interests, courts

employ a four-part test: (1) whether a "valid, rational connection" exists "between the prison

regulation and the legitimate governmental interest put forward to justify it"; (2) "whether there

are alternative means of exercising the [constitutional] right that remain open to prison inmates";

(3) "the impact accommodation of the asserted constitutional right will have on guards and other

inmates, and on the allocation of prison resources generally"; and (4) "the absence of ready

alternatives

.,,7

Id. at 89-90.

As an initial matter, many of Prow's arguments do not dispute facts (e.g., whether

something was or was not confiscated), but instead are directed to the professional judgment of

the Defendants in administering their policies and establishing the criteria for violation of the

policies. See, e.g., (Pls.' Rsp. to Mot. for Summ. J. at 5) (alleging that the sculpture "Vampira"

is not arousing, and asserting that Defendant McComb would allow the "Venus de Milo" statute

on the basis of her assessment that it is not arousing but prohibit that "Vampira" statute on that

Because this Court concludes that Prow has not established constitutional violations, it

does not address Defendants arguments regarding whether certain Defendants were personally

involved in the decisions that gave rise to this litigation.

For brevity, this Court recites the Turner factors here only, but references them

throughout its analysis.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 8 of 32

basis of her assessment that it is arousing); see also (Prow's Mem. in Supp. of Mot. for Summ. J.

at 13) ("Defendant McComb has previously stated that an image of the statute of 'Venus de

Milo' would not be a security risk, and allowed Plaintiff to possess it, when under the policy it

was defined as contraband."); (Prow's Mem. in Supp. of Mot. for Summ. J. at 17) ("In practice,

the 'featuring' version of the policy often wasn't properly applied ..... ). In this regard, the

Court "must distinguish between evidence of disputed facts and disputed matters of professional

judgment." Beard v. Banks, 548 U.S. 521, 530 (2006) (plurality opinion): As to the later,

deference is accorded to prison authorities. Id. (citing Overton v. Bazzetta, 539 U.S. 126, 132

(2003)).

In other words, many of Prow's arguments are an attempt to urge this Court to "decide

how well the prison officials applied their own policy." Widener v. McComb, No. 09-cv-1219

(DWF/JJK), 2010 WL 3396918, at 6 (D. Minn, July 23, 2010) (Keyes, Mag. J.), adopted by

2010 WL 3396921 (Aug 23, 2010) (Frank, J.). "This, however, is not the standard for deciding

whether Plaintiff's constitutional rights have been violated. Rather, the proper question is

whether in the particular circumstances of Plaintiffs case, prison officials had legitimate reasons

to apply the governing regulation, independent of whether the regulation was ultimately deemed

violated." Id. (internal quotation marks omitted). Thus, "[un ... a motion for summary

judgment, the question is whether a jury could reasonably conclude that prison officials acted

unreasonably in applying the DOC policy . . . in light of the asserted penological interests." Id.

(internal quotation marks omitted). To that end, "[t]he burden

. . is not on the [Defendants] to

prove the validity of prison regulations but on the prisoner to disprove it." Overton, 539 U.S.

at 132. (emphasis added).

Contraband Policy 301.030

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 9 of 32

Defendants assert three primary interests that are promoted by Contraband Policy

301.030: "[possession of] materials would undermine sex-offender rehabilitation, would create a

hostile work environment for prison staff, and would threaten the safety and security of DOC

facilities." (Defs.' Mem. in Supp. of Mot. for Summ. J. at 13); see also (Affidavit of Mary

McComb, "McComb Aff.") [Doc. No. 99 ¶11 13-151. Previously, courts in this Circuit have

established the constitutionality of prior versions of the Contraband Policy 301.030 prohibiting

nudity and sexually explicit materials as a form of contraband on the basis of numerous

challenges to the policy. See, e.g., Hodgson v. Fabian, 378 F. App'x 592 (8th Cir. 2010)

[hereinafter Hodgson I]; Hodgson v. Roy, No. 11-cv-243 (JNE/FLN), 2012 WL 3065386 (D.

Minn. July 27, 2012) (Ericksen, J.) [hereinafter Hodgson II]; Smith v. Fabian, No. 10-cv-2193

(JRT/TNIL), 2012 WL 1004982 (D. Minn. Mar. 26, 2012) (Tunheim, J.), adopting sub nom.

Smith v. Roy, 2012 WL 1004985 (Jan. 25, 2012) (Leung, Mag. J.); Wickner, 2010 WL 3396921;

Baasi v. Fabian, No. 09-cv-781 (PAM/RLE), 2010 WL 924384 (D. Minn. Mar. 11, 2010)

(Magnuson, J., adopting report and recommendation of Erickson, C. Mag. J.). In each instance,

the constitutionality of the policy was upheld under the Turner analysis. See generally id.

That being said, Contraband Policy 301.030 has changed over time. For example, the

court in Smith characterized Contraband Policy 301.03 as follows:

Policy 301.030 defines sexually explicit materials as:

all materials that contain pictorial depictions of sexual activity;

published materials featuring nudity or written depictions of sexual

activity, unless such depictions illustrate medical, educational, or anthropological

content;

non-published materials that contain pictorial depictions of nudity

(including but not limited to pictures, photographs, internet printings, and

drawings); and

non-published materials containing written depictions of sexual

activity that, based on an individualized review, are determined to constitute a risk

to the safety and security of the facility, facilitate criminal activity, or undermine

offender rehabilitation; but

CASE 0:15-cv-03857-PAM-SER Document 160 Filed.06/21/17 Page 10 of 32

(5) excluding materials issued by facility treatment staff to an offender

currently participating in a sex offender treatment program.

Nudity is defined as:

the showing (including a see-through covering) of human male or female

genitals, anus or pubic area or the showing (including a 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.

Any single photograph containing nudity is contraband. Publications are generally

only contraband if they 'feature' nudity, such as containing a large number of

nude images or highlighting nude images on the front cover.

Published written descriptions of sexual activity are contraband when the

publication's main subject matter is sexual in nature and most, if not all, of the

content contains repeated and lengthy descriptions of sexual activity.

Smith, 2012 WL 1004982 at *1_2 (citations omitted). The current version of Contraband Policy

301.030 defines contraband as:

Published and non-published materials (books, magazines, photos, drawings, etc.)

Pertaining to martial arts, gang related material, weapon and bomb

making, and escape related material; or

Featuring tattooing, nudity, or sexually explicit written content

where the central theme of the item promotes contraband or prohibited

content.

(Ex. A, Attached to McComb Aft) [Doe. No. 99-1]. The policy's current definition of sexually

explicit materials is:

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:

• direct physical stimulation of unclothed genitals,

• masturbation,

• sexual intercourse (including vaginal, oral, anal, or bestiality),

• bodily fluids,

• flagellation or torture in a sexual context, 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.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 11 of 32

(Id.). And nudity is defined 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.).

This Court notes that Contraband Policy 301.03 has changed very little. Importantly, the

definitions of what constitutes contraband generally and what constitutes nudity specifically are

essentially the same. With respect to nudity, the current Contraband Policy 301.030 includes

exceptions for "published material containing nudity illustrating medical, educational or

anthropological content," but is otherwise identical to the nudity, definition at issue in Smith. See

2012 WL 1004982 at *1_2. Furthermore, the current Contraband Policy 301.030's definition of

what is "sexually explicit" is more well-defined but otherwise comports with the definition in

Smith, which addressed "sexually explicit" as pertaining generally to depictions of sexual

activity. Compare Id., with (Ex. A, Attached to McComb Aff.). Prow's arguments in support of

his challenge to the constitutionality of Contraband Policy 301.030 are unpersuasive in light of

the weight of authority upholding the validity of Contraband Policy 301.030 and the de minimis

changes that have occurred after those decisions. See Hodgson I, 378 F. App'x 592; Hodgson II,

2012 WL 3065386; Smith, 2012 WL 1004982; Wickner, 2010 WL 3396921; Baasi, 2010

924384.

First, as mentioned above, many of Prow's arguments set out to "prove" the

unconstitutional nature of Contraband Policy 301.030 on the basis of his disagreement with the

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Defendants' professional judgment. See (Prow's Mem. in Supp. of Mot. for Summ. J. at 10-23);

(Pls.' Resp. to Mot. for Summ. J. at 2-13). But as stated elsewhere, this does not comport with

this Court's duty to determine whether "prison officials had legitimate reasons to apply the

governing regulation, independent of whether the regulation was ultimately deemed violated."

Wickner, 2010 WL 3396918 at *6; see also Beard, 548 U.S. at 528 ("In respect to [matters of

professional judgment], our inferences must accord deference to the views of prison

authorities."). As a result, these arguments provide no basis for finding a violation of Prow's

First Amendment rights as a matter of law. Cf Wickner, 2010 WL 3396918; see also Overton v.

Bazetta, 539 U.S. at 132 (stating that it is Prow's burden to disprove the validity of the

challenged regulation).

Second, many of the arguments that Prow currently raises in support of his challenge to

Contraband Policy 301.030 were addressed to varying degrees by other courts in this district

when upholding the constitutionality of Contraband Policy 301.030. For example, Prow asserts

that the policy is unconstitutionally vague. See (Prow's Mem. in Supp. of Mot. for Summ. J. at

19). In Smith, Judge Leung found:

A statute is unconstitutionally vague if persons of common intelligence must

necessarily guess at its meaning and differ as to its application. Smith has not

explained how the policy would require one to guess at its meaning, other than to

suggest wearing a swimsuit or lingerie is not consistent with the concept of

nudity. The MNDOC definition of nudity, however, expressly includes seethrough coverings that expose genitals, the pubic area, the anus, the female breast

or a substantial portion of the breast below the nipple. The regulation is not vague

because a person of common intelligence would understand that see-through

swimsuits or lingerie would fall within this definition.

2012 WL 1004985, at *7 (internal quotation marks omitted). Here, the challenged policy is not

vague because a person of common intelligence would understand what falls within the

definition of nudity and sexual explicit material. By that same measure, a person of common

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 13 of 32

intelligence would also understand whether the "central theme of the item promotes contraband

or prohibited content." See (Ex. A, Attached to McComb Aft).

Another example, not specifically raised by Prow but implicated in his submissions to the

Court, is that Defendants violated Prow's First Amendment rights by requiring that he be

enrolled in an art course to be granted an educational exclusion under Contraband Policy

301.030. See (Exs. 103-04, Attached to Prow's First Decl.) [Doc. No. 64-321 (grievances—also

known as kites—sent by Prow to Defendants demonstrating Prow's displeasure with certain

"educational" books being confiscated under the policy because Prow was not enrolled in a

class). Baasi specifically addressed the same question and found the requirement to be

reasonable. 2010 WL 924384, at *14 (Erickson, C. Mag. J.) ("Given the purposes behind DOC

[Contraband Policy] 301.030, we find nothing unreasonable about a requirement that a prisoner

be a serious student of anthropology, or medicine, or some other educational pursuit, in order to

have access to sexually explicit materials in the confines of a prison. Most any prisoner can

claim to be a serious student of the arts, or of the sciences, if the reward is to possess sexually

explicit materials that would otherwise be denied to him or her, for the very reasons that

prompted the promulgation of the contraband policy in the first instance."). In the same case,

Judge Magnuson stated:

Further, even if the enrollment requirement. was not an 'official' prison

policy, Baasis argument still fails. A violation of prison policy is not sufficient to

state a § 1983 claim. See Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997);

Moore v. Schuetzle, 486 F.Supp.2d 969, 989 (D.N.D. 2007). Section 1983 liability

only arises if there is a violation ofBaasi's constitutional rights. Thus, Baasi must

show that Defendants' application of the prison regulation is unreasonably

restrictive of his First Amendment rights. The R & R sets forth a well-reasoned

and thorough explanation of why the challenged policy does not violat[e] Baasi's

constitutional rights, and the Court agrees with the R & R's analysis.

Baasi, 2010 WL 924384, at *2

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 14 of 32

Prow's other arguments challenging the constitutionality of Contraband Policy 301.030

are also unavailing. For example, Prow asserts there is no rational connection between

Contraband Policy 301.030 and legitimate penological interests by making perfunctory

arguments regarding whether the banned materials can create a hostile work environment. See

(Pis.' Resp. to Mot. for Summ. J. at 10). These arguments are meritless. As Judge Tunheim noted

in Smith, "sexually explicit material facilitates a hostile work environment for staff" 2012 WL

1004982, at *6 (citing Mauro v. Arpaio, 188 F.3d 1054, 1059 (9th Cir. 1999) (en banc) ("[T]here

is no doubt that protecting the safety of guards in general is a legitimate interest, and that

reducing sexual harassment in particular likewise is legitimate.")). Judge Tunheim further stated:

These allegations are unsupported by the record. McComb's affidavit establishes

that inmates have made comments about how female staff compare to sexually

explicit images, that inmates have used images to engage in sexual misconduct in

front of female staff and to sexually harass female staff, and that staff have

complained about the sexually explicit materials to which they are exposed in the

workplace. Smith's unsupported objections to this information do not raise a

genuine question of material fact.

Id. (citations omitted). Here, Prow asserts similar unsupported conclusions with respect

to the

hostile work environment created vis-ã-vis the potential dissemination of sexually explicit

materials. See (Pis.' Resp. to Mot. for Summ. J. at 10). Like in Smith, Defendant McComb

affidavit establishes the manner in which these sexually explicit materials can contribute to a

hostile work environment. See (McComb Alt ¶ 15) ("Prison staff regularly search cells and mail

and encounter explicit images in the process. Staff, both men and women, have complained

about the regular exposure that they have to offensive images. In addition, offenders view

sexually explicit materials and then make comments about how female staff compare to the

images. Offenders also use the images to engage in sexual misconduct in front of female staff

and to sexually harass female staff. All of this creates a hostile work environment for the prison

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 15 of 32

staff who must work with offenders every day."). The record does not support Prow's arguments

and does not establish a genuine issue of material fact. See Holden, 663 F.3d at 340 ("Once the

moving party has made and supported their motion, the nonmoving party must proffer admissible

evidence demonstrating a genuine dispute as to a material fact.").

Prow also alleges that Contraband Policy 301.030 fails under Turner because there are

alternatives that would address Defendants' concerns. See, e.g., (Prow's Mem. in Supp. of Mot.

for Summ. J. at 15-16); (Pls.' Resp. to Mot. for Summ. J. at 9, 10-11). Prow must "point to an

alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological

interests ..... Turner, 482 U.S. at 91. Here, Prow has not provided any evidence, and instead

relies on conclusory statements that "adopt[ing] a previous version of [the] policy" is "a very

simple alternative." (Prow's Mem. in Supp. of Mot. for Summ. J. at 16). Importantly, this

"simple alternative" does not take into consideration the state-wide changes that would need to

occur in each correctional facility maintained by the DOC. In other words, Prow's conclusory

statements cannot support that this alternative is "at de minimis cost" to Defendants' legitimate

penological interests. Judge Tunheim was confronted with similar arguments in Smith and

concluded "there is no evidence that a less restrictive definition of 'nudity' would achieve

Defendants' goals of decreasing the bartering of images and sexual harassment ......2012 WL

1004982, at *6.

Prow's arguments asserting that Contraband Policy 301.030 is not content neutral are

likewise unpersuasive. See (Prow's Mem. in Supp. of Mot. for Summ. J. at 16-19); (Pls.' Resp.

to Mot. for Summ. J. at 5). It is well-settled that when "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."

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21./17 Page 16 of 32

Thornburgh v. Abbott, 490 U.S. 401, 415-16 (1989). Thus, Prow's attempts to draw distinctions

between the works of "Venus de Milo" and "Vampira" on the basis of his subjective

determinations of what is a "non-arousing" statue is inconsequential to a determination of

whether these distinctions were drawn "on the basis of their potential implications for prison

security." Indeed, McComb establishes that safety and security concerns are the touchstone of

Contraband Policy 301.030's prohibition. See (McComb Aff. 1 3 1) (stating "even though these

images [of "David" and "Venus de Milo"] technically violate the policy, I would grant an

exception to the policy and allow their delivery" because they are famous works of art and

therefore do not pose a risk to prison security). As a result, Contraband Policy 301.030 is neutral

for the purposes of Prow's challenge. Cf Thornburgh, 490 U.S. at 415-16.

In light of Defendants' approach to allow certain works of art despite technically

violating the Contraband Policy 301.030, Prow also asserts the policy is arbitrary. See, e.g.,

(Prow's Mem. in Supp. of Mot. for Summ. J. at 13-14) (citing Couch v. Jabe, 737 F. Supp. 2d

561, 568 (W.D. Va. 2010)). Prow's reliance on Couch is misplaced. First, Defendants are

afforded some flexibility in the manner in which they manage prison life. See Sandin v. Connor,

515 U.S. 472, 482-83 (1995) (stating that "federal courts ought to afford appropriate deference

and flexibility to state officials trying to manage a volatile environment" and "[s]uch flexibility is

especially warranted in the fine-tuning of the ordinary incidents of prison life"). Second, the

court in Couch found the nexus between maintaining security and the challenged policy too

attenuated because "it is unlikely that a cogent argument could be advanced which would explain

how a regulation

forbids James Joyce's Ulysses, but permits Hugh Hether's Playboy.

Couch, 737 F. Supp. 2d at 567. This is not a situation where Contraband Policy 301.030 forbids

pictures of "David" or "Venus de Milo" but allows images found in Playboy. See, e.g.,

17 of 32

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page

(McComb Aff. ¶ 31). MI are deemed to violate Contraband Policy 301.03,

but images of

"David" and "Venus de Milo" do not trigger the same security concerns as other contraba

because "David" and "Venus de Milo" are "famous works of art." (Id.). Thus, an attack

on the

"arbitrary" nature of Contraband Policy 301.030 on the basis of the rationale espoused in

Couch

is unpersuasive; there is a cogent argument establishing a rational relationship between

maintaining security and the exceptions Defendants make with respect to certain material

deemed to have technically violated the policy.

As stated above, at bottom, the Court is charged with determining "whether a jury could

reasonably conclude that prison officials acted unreasonably in applying the DOC policy

light of the asserted penological interests." Wickner, 2010 WL 3396918 at 6. In view

. . .

of the

proffered arguments and the exhibits before the Court, this Court concludes that no reasonab

jury could find that Defendants acted unreasonably in their application of Contraband Policy

301.030 in light of their asserted penological interests. See, e.g., (Exs. J-1 to J-3, Attached

McComb Aft) [Doc. Nos. 99-7 to 99-9] (pages from Martin de Diego Sádaba, Biomech Art:

Surrealism, Cyborgs and Alien Universes (2001), most of which contain images of women with

exposed breasts or genitalia as prohibited by Contraband Policy 301.030); (Exs. 17, 37-38,

63,

77, Attached to Prow's First Decl.) [Doc. Nos. 64-17, 64-30, 64-31] (additional examples

images of women with exposed breasts or genitalia).

This conclusion is further supported given the deference that must be given to prison

officials in the day-to-day operation of their facilities. See, e.g., 0 'Lone v. Estate of Shabazz,

U.S. 342, 353 (1987) (holding that "[w]e

. . .

482

reaffirm our refusal, even where claims are made

under the First Amendment, to substitute our judgment on

. . .

difficult and sensitive matters of

institutional administration" (internal quotation marks omitted)); Block v. Rutherford,

468 U.S.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 18 of 32

576, 588 (1984) (stating that "we are unwilling to substitute our judgment on these difficult and

sensitive matters of institutional administration and security for that of the persons who are

actually charged with and trained in the running of such facilities" (internal quotation marks

omitted)); Hosna v. Groose, 80 F.3d 298, 303 (8th Cu. 1996) (stating that "it is not the role of

federal courts to micro-manage state prisons"). As a result, Defendants' Motion for Summary

Judgment should be granted with respect to Prow's First Amendment challenge to Contraband

Policy 301.030.

ii.

Hobby Craft Policy 204.047

Prow has not asserted—and this Court cannot independently identify—any cases that

suggest that an inmate has a constitutionally protected right to express himself in any manner

that he so chooses. But see Overton, 539 U.S. at 135 ("Alternatives

...

need not be ideal,

however; they need only be available."); Kimberlin v. U.S. Dep't of Justice, .318 F.3d 228, 234

(D.C. Cir. 2003) (stating the right asserted is not expression on the basis of the "appellants'

preferred medium", but rather "must

be broadly limned to include, at a minimum, all forms

expression"). Without a complete prohibition against self-expression, the case law

suggests that hobby craft restrictions generally cannot rise to a constitutional violation. See Grant

v. Riley, No. 89 Civ. 0359, 1993 WL 485600, at *2 (S.D.N.Y. Nov. 24, 1993) ("[T]he First

Amendment does not provide recourse for damages every time a prisoner-artist is hindered from

expressing himself through his art."); accord Overton, 539 U.S. at 135; Kimberlin, 318 F.3d at

234; see also Evenstad v. Herberg, 994 F. Supp. 2d 995, iooi (D. Minn. 2014) (Kyle, J.)

("[T]here are some injuries so de minimis that they do not rise to the level of [a] constitutional

violation."). In the interest of thoroughness, however, this Court applies the Turner factors and

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 19 of 32

concludes that Defendants' Hobby Craft Policy 204.047 does not violate Prow's First

Amendment rights.

The first Turner factor weighs in favor of Defendants. There is nothing to suggest that

these regulations are content-based restrictions. For example, Prow provides no evidence that the

challenged hobby craft restrictions were enacted because Defendants are antagonistic to the

message that Prow's expression conveys. Cf Ward v. Rock Against Racism, 491 U.S. 781, 791

(1989) ("Government regulation of expressive activity is content neutral so long as it is justified

without reference to the content of the regulated speech." (emphasis in original) (internal

quotation marks omitted)). Perhaps more importantly, as stated elsewhere, "regulations are

'neutral' in the technical sense" when "prison administrators draw distinctions between

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

490 U.S. at 415-16. Defendants assert that the regulations are rationally related to prison security

because the regulations are designed to reduce the potential influx of contraband. (Defs. Mem. in

Supp. of Mot. for Summ. J. at 24); see also (Aff. of Sandra O'Hara, "O'Hara Aff.") [Doc. No. 58

fi 5-6].

Prow does not suggest that prison security is not a legitimate interest. Prow instead

argues—based at least in part on restrictions in past regulations—the current regulations are

arbitrary or otherwise irrational. (Prow's Mem. in Supp. of Mot. for Summ. J. at 26-27, 29-31).

For example, Prow asserts that because incidents that the current regulations mitigate did not

occur under past regulations, the current regulations are irrational or an exaggerated response to

Defendants' legitimate security interests. See, e.g., (Prow's Mem. in Supp. of Mot. for Summ. J.

at 30) ("No fire had ever occurred, and even if water-mixable oil paints were flammable, which

there are not, there could be no rational belief there is any likelihood of a fire event."). But, "[fl

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 20 of 32

show a rational relationship between a regulation and a legitimate penological interest, prison

officials need not prove the banned material actually caused problems in the past, or that the

materials are 'likely' to cause problems in the future." Mauro v. Arpaio, 188 F.3d 1054, 1060

(9th Cir. 1999) (citing Thornburgh, 490 U.S. at 417); see also Brown v. Johnson, 743 F.2d 408,

413 (6th Cir. 1984) (stating "prison officials, when making these types of decisions, need not

demonstrate an actual danger in order to support the reasonableness of their determinations").

Instead, "[it is enough to show that a potential danger exists without the restrictions of a

challenged prison regulation." Brown, 743 F.2d at 413.

Here, Defendants tailored their regulations with respect to the prohibition of watermixable oil paints according to potential safety risks.

In addition to the risks created by the additional screening that would be required

for these special order items, I have concerns about the safety risk posed by

several of the items on the list. For example, several of the items on Prow's list

could create a fire hazard. Water-mixable oils pose a risk because they contain

flammable ingredients and are a fire hazard.

(O'Hara Alt 1 6); see also Defs.' Mem. in Supp. of Mot. for Summ. J at 28) (stating watermixable oil paints were initially banned because "paints in this class contain linseed oil which

could be flammable" (citations omitted)); (Ex. A, Attached to Aff. of Wayne Niles) [Doc. No.

96-1] (office memorandum and associated exhibits memorializing the potential danger of watermixable oil paints). Once Defendants were able to reevaluate the safety risks associated with

these items, they loosened the restrictions to comport with this new information. (Aff. of Wayne

Niles, "Niles Aff") [Doc. No. 96 11 6-7]; see also (Ex. 83, Attached to Prow's First Decl.) [Doc.

No. 64-31] (e-mail from DOC employee Mike Lochner to O'Hara enumerating water-mixable

oil paints that do not include linseed oil and should be allowed under Hobby Craft Policy

204.47). In light of the evidence presented, Defendants' stated penological interests, and the

pill

21 of 32

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page

content

deference due these interests, this Court finds the hobby craft restrictions have valid and

neutral-connections to their proffered penological interests

ted that

The second Turner factor also weighs in favor of Defendants. It is undispu

alternatives are available. See (O'Hara Aff. ¶11 3-4); (Ex. B, Attached to O'Hara

Aff.) [Doc. No.

.8 In fact,

58-1 at 28-29] (detailing the hobby craft items available for purchase in the cantina)

Prow's central argument is not that he is prevented from expressing himself—but only

manner in which he is allowed to express himself with the alternatives is not ideal.

that the

See, e.g.,

(Pls.' Resp. to Mot. for Summ. J. at 14) ("[P]risoners have access to only twelve low-gra

colored pencils."); (id. at 22) (arguing that because the alleged violation is

one based on

expression the violation necessarily embraces a breadth of expressive options). A prison's

denial

ent. See,

of an inmate's access to preferred mediums is not cognizable under the First Amendm

e.g., Overton, 539 U.S. at 135; Kimberlin, 318 F.3d at 234.

assert

The third Turner factor is likewise in Defendants favor. For example, Defendants

that these regulations are designed to prevent contraband from entering prison facilities

and that

increasing the items that must be reviewed also increases the risk of contraband making

its way

Aft

into the prison system. (Defs.' Mem. in Supp. of Mot. for Summ. J. at 22-23); (O'Hara

ons are applicable

IT 5-6). Also, as noted above, potential changes to the hobby craft restricti

state-wide. As a result, Defendants have at least implied that a state-wide change to hobby

craft

ng the

restrictions would require a non-trivial increase in resource expenditures related to preventi

d on a

influx of contraband to compensate for an increase in the number of items to be reviewe

ship

state-wide basis. Therefore, the impact of accommodation suggests a reasonable relation

between the challenged regulation and Defendants' stated security interest. See

For exhibits attached to the O'Hara Affidavit, CMIECF pagination is used.

Spence v.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 22 of 32

Farrier, 807 F.2d 753, 755 (8th Cir, 1986) ("[P]rison administrators are accorded 'wide-ranging

deference in the adoption and execution of policies and practices that in their judgment are

needed to preserve internal order and discipline and to maintain institutional security." (quoting

Belly. Wolfish, 441 U.S. 520, 547 (1979))).

The fourth factor. under Turner also supports the constitutionality of the challenged

regulation. Here, Prow provides alternatives, but no evidence of their de ininimis cost. For

example, Prow suggests that Defendants implement "policies of other states," generate a list of

restrictions instead of the implemented allowable-item list, or return to previous versions of the

hobby craft policy that Prow deemed more appropriate. See (Prow's Mem. in Supp. of Mot. for

Summ. J. at 34). Prow's recitation of superficial suggestions does not satisfy his burden; without

some evidence suggesting that these alternatives could be implemented at de mm/mis cost, Prow

arguments do not rise to a dispute over genuine issues of material fact. See Fed. R. Civ. P.

56(c)(1)(13); Holden, 663 F.3d at 340.

For example, Defendants provide evidence that these limitations are in place to reduce

the workload on facility mailroom and property staff in the screening required to prevent

contraband from falling into the possession of the inmates. See (O'Hara Aff. ¶11 5-6).

Furthermore, this change in standards would apply to all Minnesota facilities. This leads to the

inference, therefore, that Prow's suggestions—be it implementing policies from other states,

migrating to a list of restrictions instead of a list of allowable items, or rolling back the

regulations to a previous version—would not have a de minim/s cost to prison security. As a

result, this factor further supports a reasonable relationship between the challenged regulation

and Defendants' security interest.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 23 of 32

In sum, Hobby Craft Policy 204.047 satisfies all four factors under Turner, and this Court

concludes the policy "is reasonably related to legitimate penological interests" and is

constitutional. See Turner, 482 U.S. at 89. In further support of its determination, this Court

notes that other district courts in other circuits have found that restriction on hobby crafts or art

supplies do not violate the First Amendment. See, e.g., Tarselli v. Harkleroad, No. 10-1266,

2012 WL 603219, at *11 (W.D. Pa. Feb. 23, 2012) (holding that "the balancing test required

under Turner clearly supports a finding that the confiscation of Plaintiffs art related items, both

governed and not governed by the art permit, did not violate Plaintiffs First Amendment

rights"); Grant, 1993 WL 485600, at *2 (holding that "[b]ecause the First Amendment does not

guarantee an absolute right for people to express themselves at any place, at any time, and in any

way that they want, plaintiff was denied no right when he failed to receive the art supplies or

frames in question" (citations omitted) (internal quotation marks omitted)).

iii.

Mail Policy 302.020

Here, the first Turner factor weighs in favor of the regulation. Defendants assert that the

application of postage to SASEs became onerous and impacted Defendants ability to effectively

perform other more important mailroom duties. See, e.g., (McComb Aff. ¶IJ 6-7, 34, 42). "[T]he

effective management of the detention facility

is a valid objective ...... Bell, 441 U.S. at

540. There is a rational relationship to this proffered objective; limiting access to a timeconsuming activity in furtherance of improving efficiency in the mailroom is strongly correlated

to the concept of effective management of the detention facility. Furthermore, Defendants assert

that "[t]he policy applies regardless of the content or the purpose of the envelope." (Defs.' Mem.

in Supp. of Mot. for Summ. J. at 30-31) (citing McComb Aff. ¶ 42). Thus, Mail Policy 302.020

appears to be content-neutral and rationally related to a legitimate penological interest.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17

Page 24 of 32

The second Turner factor is also met because alternatives exist. For example, "[t]he

person sending the envelope back may apply their own postage to letters and other mailings that

they wish to send or inmates can arrange to have friends and family in the community send an

addressed stamped envelope to the sender." (Defs,' Mem. in Supp. of Mot. for Summ. J. at 31);

see also (Prow's Mem. in Supp. of Mot. for Summ. J. at 39) (stating that prisoners can

alternatively "reimburse the recipient" though a purchase voucher). Prow argues these

alternatives are not ideal, because "[t]he point is to prepay the postage for the recipient." (Prow's

Mem. in Supp. of Mot. for Summ. J. at 37). But inmates do not have a constitutional right to pay

for postage. What is protected is their freedom of expression; the question is whether there are

alternatives to restrictions in this context. In this regard, the touchstone is not whether an

alternative is ideal, but merely whether one exists. See Overton, 539 U.S. at 135

("Alternatives

...

need not be ideal; however, they need only be available."). Importantly, Prow

does not suggest that the regulation in light of available alternatives prevents inmates from

receiving all correspondences or even a vast majority of correspondences. In fact, Prow's own

statement that he is able to receive mail in question through a purchase voucher suggests that no

mail is affected by this prohibition. See (Prow's Mem. in Supp. of Mot. for Summ. J. at 39)

(stating "the only alternative which works for prisoners

is to reimburse the recipient for

postage").

Prow raises additional arguments challenging the constitutionality of Policy 302.020. See

(Prow's Mem. in Supp. of Mot. for Summ. J. at 37-39); (Pis.' Resp. to Mot. for Summ. J. at 2528). Of these arguments, this Court is most concerned with Prow's allegations that the

prohibition of SASEs impedes access to Minnesota courts because it prevents service of process

under Minnesota Rules of Civil Procedure 4.05. See (Prow's Mem. in Supp. of Mot. for Summ.

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21117 Page 25 of 32

J. at 38). This argument, however, is unhelpful to Prow's constitutional challenge for a number

of reasons. First, Defendants have demonstrated that there is an exception to the general

prohibition against SASEs for this purpose. See (Ex. AA, Attached to McComb Aft'.) [Doc. No.

100-9] (memorandum to inmates stating "[t]he sole exception to this is an offender who is

serving a lawsuit by mail in compliance with the Minnesota Rules of Civil Procedure"); see also

(McComb Aff. ¶ 41) ("Exceptions to the ban are made in special circumstances such as for

college applications or if an offender is serving a lawsuit by mail in compliance with the

Minnesota Rules of Civil Procedure."). Prow's assertion that this exception is not "official"

policy is unpersuasive. Importantly, Prow has not suggested to the Court that he was prevented

access to Minnesota courts on the basis of Defendants' failure to honor this exception.

Second, because it does not appear that Prow has attempted (or is even contemplating)

service of a lawsuit by mail pursuant to the Minnesota Rules of Civil Procedure, Prow cannot

claim that he is harmed by this provision in this respect. Instead, all Prow has are speculative

arguments that Mail Policy 302.020 "makes it impossible for prisoner litigants to use the most

common and effect method of service." (Prow's Mem. in Supp. of Mot. for Summ. J. at 38).

Without some showing of a real or immediate threat of being denied access to the courts, this

argument cannot support a finding that Mail Policy 302.020 is unconstitutional. Cf City of Los

Angeles v. Lyons, 461 U.S. 95, 111 (1983) (stating speculative claims cannot support

constitutional violations). As a result, there is no evidence showing that Defendants proffered

alternatives impermissibly limit Prow's exercise of his constitutional rights, and this factor

weighs in favor Mail Policy 302.020's constitutionality.

The third Turner factor also weighs in favor of Defendants. As discussed above,

Defendants aver that the application of SASEs reduces the time that staff can devote to other

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06121117 Page 26 of 32

mailroom duties, such as "screening incoming mail for contraband." (Defs.' Mem. in Supp. of

Mot. for Summ. J. at 31). Prisons have a vested interest in screening for contraband to protect the

safety and security of its inmates and staff, and this factor weighs in favor of Mail Policy

302.020's constitutionality.

The fourth Turner factor also suggests Mail Policy 302.020 is constitutional. For

example, Prow argues in various ways that Defendants' proffered arguments are either

disingenuous or fabrications. See, e.g., (Pls.' Resp. to Mot. for Summ. J. at 25-27). But this is

insufficient to support Prow's burden demonstrating alternatives "that fully accommodates the

prisoner's rights at de minimis cost to valid penological interests

. ."

Turner 482 U.S. at 91.

Therefore this Court finds this factor weighs in favor of Mail Policy 302.020's constitutionality.

In sum, this Court concludes that the challenged restrictions to Mail Policy 302.020 are

valid under Turner and—as a matter of law—no reasonable jury could find otherwise. As a

result, this Court recommends that Defendants' Motion for Summary Judgment be granted in this

regard.

Eighth Amendment Claims

Prow does not directly allege constitutional violations arising under the Eighth

Amendment. See generally (Am. Compl.). Prow explicitly disclaims any claims arising under the

Eighth Amendment in his memorandum in support of summary judgment, likely in response to

Defendants arguments in their own memorandum in support of summary judgment. Compare

(Defs.' Mem. in Supp. of Mot. for Summ. J. at 34-35) (stating that Prow has failed to allege an

Eighth Amendment violation "[tlo the extent that he may be attempting to assert a conditions-ofconfinement claim"), with (Prow's Mem. in Supp. of Mot. for Summ. J. at 8) (unequivocally

stating that Prow voluntarily dismisses claims arising under the Eighth Amendment). Because

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 27 of 32

the Court cannot identify an asserted Eighth Amendment claim in Prow's Amended Complaint,

Defendants' request for summary judgment directed thereto should be denied as moot.

Fourteenth Amendment Claims

Prow's claims under the Fourteenth Amendment can be categorized as general

allegations that Defendants did not follow proper policy or procedures. See (Prow's Mem. in

Supp. of Mot. for Summ. J. at 24) (allegeing that "[flying and misrepresentation is not authorized

by policy"); (Id. at 27) (asserting that "[p]olicy requires that the chair of the committee to

distribute and ensure that all policy revision requests are properly processed" and alleging that

she did not do so); (Id. at 36) (asserting that "the appeal was per policy supposed to be decided

by [1-lillyard's] superior" but that "Hillyard replied to the appeal himself'). Prow's only

identifiable claim under the Fourteenth Amendment, construing his claims liberally, is a

procedural due process claim.

"A procedural due process claim is reviewed in two steps. The first question is whether

[Prow] has been deprived of a protected liberty or property interest. Protected liberty interests

may arise from two sources—the Due Process Clause itself and the laws of the States." SentyHaugen v. Goodno, 462 F.3d 876, 886 (8th Cit. 2006) (citations omitted) (internal quotation

marks omitted). Only if the Court determines the existence of a protected interest does it

consider what process is due by balancing the specific interest that was affected,

procedures would result in an erroneous deprivation,

the likelihood that the

interest in providing the process that it did, including the

and the

administrative costs and burdens of providing additional process.

Id. (citing Mathews v. Eldridge, 424 U.S. 319, 332-35 (1976)). Arguably, there is no protected

liberty interest on the basis of Prow's allegations because "there is no § 1983 liability for

violating prison policy." Gardner, 109 F.3d at 430. Even if Prow's allegations raised more

Page 28 of 32

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06 /21/17

ral

compelling claims under the Fourteenth Amendment, the record shows that Prow's procedu

due process rights were not violated.

Importantly, the record does not demonstrate a lack of procedures to protect Prow's

e of the factual basis

interest. See Bd. of Regents v. Roth, 408 U.S. 564, 570-71 (1972). "[N]otic

leading to" a deprivation of rights and "a fair opportunity for rebuttal" are considered

"among

ions."

the most important procedural mechanisms for purposes of avoiding erroneous deprivat

Wilkinson v. Austin, 545 U.S. 209, 225-26 (2005). Here, Prow filed numerous

kites, related

appeals, and other requests asking for reconsideration of the confiscation of various

items and

suggesting changes to policy. See, e.g., (Exs. 29, 68, 72, 74, 97-99, 102-04, Attached

to Prow's

First Decl.) [Doc. 140s. 64-29, 64-31, 64-32]. Some of Prow's efforts seemed to have borne

fruit;

ed that

regulations regarding certain water-mixable oil paints were relaxed after it was determin

not all water-mixable oil paints are a safety and security risk. See (Niles Aff. ¶J

6-7); see also

e Mike

(Ex. 83, Attached to Prow's First Dccl.) [Doc. No. 64-31] (e-mail from DOC employe

oil and

Lochner to O'Hara enumerating water-mixable oil paints that do not include linseed

should be allowed under Hobby Craft Policy 204.47). The record shows that Prow was

informed

nity

of the factual basis leading to confiscation of materials and that he was given a fair opportu

ble

to appeal these confiscations. Thus, this Court concludes as a matter of law that no reasona

ants are

jury could find that Prow's procedural due process rights were violated and Defend

entitled to summary judgment regarding this claim.

Qualified Immunity

Even if Prow's allegations raised genuine issues of material fact—which they have not

her

the basis of the above analysis---Defendants would be entitled to qualified immunity. "[W]het

an official protected by qualified immunity may be held personally liable for an

allegedly

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 29

of 32

unlawful official action generally turns on the 'objective legal reasonableness' of the

action[,]

assessed in light of the legal rules that were 'clearly established' at the time it was

Anderson v. Creighton 483 U.S. 635, 639 (1987) (citations omitted). "This is not

taken."

to say that an

n has

official action is protected by qualified immunity unless the very action in questio

law the

previously been held unlawful, but it is to say that in the light of pre-existing

(citations omitted)

unlawfulness must be apparent." Hope v. Pelzer, 536 U.S. 730, 739 (2002)

(internal quotation marks omitted). Here, Prow's subjective belief that Defendants violated

constitutional rights and that he informed them of such is largely inconsequential to the

immunity analysis. See, e.g., (Prow's Mem. in Supp. of Mot. for Summ. J. at

his

qualified

5-6). What matters

is whether Defendants actions were reasonable in light of pre-existing law. Under this rubric,

this

Court concludes that Defendants actions were reasonable.

First, as described elsewhere, the constitutionality of Contraband Policy 301.030 has been

upheld numerous times. See Hodgson 1, 378 F. App'x 592; Hodgson II,

Smith, 2012 WL 1004982; Wickner, 2010 WL 3396921; Baasi, 2010

2012 WL 3065386;

WL 924384. Defendants

actions enforcing Contraband Policy 301.030 were objectively reasonable based

on their

understanding of the constitutionality of this policy.

Second, with respect to Hobby Craft Policy 204.047, as described elsewhere, it is wellive

settled that Prow does not have a constitutional protected right to his choice of express

ore, the restrictions

medium. See Overton, 539 U.S. at 135; Kimberlin, 318 F.3d at 234. Furtherm

s. See

placed on certain hobby craft items were premised on Defendants' security interest

(O'Hara Aft ¶ 6); see also (Defs.' Mem. in Supp. of Mot. for Summ. J at

28) (stating water-

mixable oil paints were initially banned because "paints in this class contain linseed

oil which

could be flammable" (citations omitted)). Consequently, Defendants' implementation

and

of 32

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 30

enforcement of Hobby Craft Policy 204.047 was objectively reasonably given the various forms

of artistic expression that Prow was afforded and the basis by which certain hobby craft items

were restricted.

Third, with respect to Mail Policy 302.020, as described above, Defendants actions were

objectively reasonable in light of their understanding of Turner. Importantly, Defendan

provided numerous exceptions to what Prow has alleged is a blanket prohibition against SASEs.

Compare (Prow's Mem. in Supp of Mot. for Summ. J. at 38-39) (stating that the exception is

inapplicable because it is "unofficial"), with (McComb Aft ¶ 41) ("Exceptions to the ban are

made in special circumstances such as for college applications or if an offender is serving a

lawsuit by mail in compliance with the Minnesota Rules of Civil Procedure."). As a result, this

Court concludes that Defendants acted in an objectively reasonable manner when implementing

and enforcing restrictions under Mail Policy 302.020 and exceptions directed thereto.

Fourth, with respect to Prow's due process claims, there is nothing to suggest that

Defendants' acted unreasonably in light of the clearly established law surrounding grievances

generally. For example, it is well-settled that "there is no § 1983 liability for violating prison

policy." Gardner, 109 F.3d at 430. Furthermore, as discussed above, Defendants acted

reasonably when they provided "notice of the factual basis leading to" and "a fair opportunity

for" Prow to rebut confiscations under the challenged polices. See Wilkinson, 545 U.S. at 22526.

As a result, nothing suggests that Defendants acted unreasonably and qualified immunity

shields them from potential liability.

In sum, this Court recommends that Defendants Motion for Summary Judgment with

respect to Prow's claims arising under the First and Fourteenth Amendment be granted. Based on

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17 Page 31 of 32

this recommendation, this Court finds that Prow is not entitled to relief as a matter of law. As a

matter of law, no reasonable jury could find Defendants violated Prow's constitutional rights•

regarding any of his alleged claims and no reasonable jury could find that Defendants acted

unreasonably in light of pre-existing law. Consequently, the Court recommends that Prow's

Motion for Summary Judgment be denied.

Prow's Motion for Temporary Restraining Order

Because this Court recommends that Defendants' Motion for Summary Judgment be

granted and this case be dismissed, this Court also recommends that Prow's Motion for

Temporary Restraining Order be denied as moot. Accord Njaka v. Kennedy, No. 12-cv-27

(JRT/JJG), 2014 WL 4954679, at *18 (D. Minn. Sept. 30, 2014) (Graham, Mag. J. as adopted by

Tunheim, J.) (stating that "in light of the Courts determination as to dismissal, the motions [for

preliminary injunction and temporary restraining order] should be denied as moot");

Control LLCv. Rydberg, No. 09-cv-913 (JNEISRN), 2009 WL 3164433, at

Gamut

*2 (D. Minn. Sept

25, 2009) (Nelson, Mag. J. as adopted by Ericksen, J.) ("In light of this Court's recommendation

for dismissal of this lawsuit, the Court likewise recommends that Defendant's motions be denied

as moot.").

III. RECOMMENDATION

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

that:

1. Defendants Roy, King, O'Hara, Hammer, McComb, Krippner, Stepney, Lindell,

and Hillyard's Motion for Summary Judgment [Doc. No. 911 be GRANTED in

part and DENIED in part as described herein;

CASE 0:15-cv-03857-PAM-SER Document 160 Filed 06/21/17

Page 32 of 32

Plaintiff Matthew Prow's ("Prow") Motion for Summary Judgment [Doe. No.

1071 be DENIED;

Prow's Motion for Temporary Restraining Order [Doe. No. 115] be DENIED as

moot; and

This case be DISMISSED with prejudice.

Dated: June 21, 2017

s/ Steven E. Rau

STEVEN E. RAU

United States Magistrate Judge

Notice

Filing Objections: This Report and Recommendation is not an order or judgment of the District

Court and is therefore, not appealable directly to the Eighth Circuit Court of Appeals.

Under D. Minn. LR 72.2(b)(1) "a party may file and serve specific written objections to a

magistrate judge's proposed findings and recommendations .within 14 days after being served a

copy" of the Report and Recommendation. A party may respond to those objections within 14

days after being served a copy of the objections. LR 72.2(b)(2). All objections and responses

must comply with the word or line limits set forth in LR 72.2(e).

CASE 0:15-cv-03857-PAM-SER Document 164 Filed 07/31/17, Page 1 of 4

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

Case No. 15-cv-3857 (PAM/SER)

Matthew Prow,

Plaintiff,

MEMORANDUM AND ORDER

Tom Roy, John King,

Sandra O'Hara, Steve Hammer,

Mary McComb, Carol Kñpner,

Regina Stepney, Lieutenant Lindell,

and Sergeant Hillyard,

Defendants.

This matter is before the Court on the Report and Recommendation ("R&R") of

United States Magistrate Judge Steven E. Rau dated June 21, 2017. In the R&R,

Magistrate Judge Rau recommends denying Plaintiffs Motion for Summary Judgment,

granting Defendants' Motion for Summary Judgment, denying Plaintiffs Motion for

Temporary Restraining Order as moot, and dismissing this case with prejudice. Plaintiff

filed timely objections to the R&R.. According to statute, the Court must conduct a de

novo review of any portion of the R&R to which specific objections are made. 28 U.S.C.

§ 636(b)(1)(C); Fed. R. Civ, P. 72(b); D. Minn.

L.R. 72.2(b). Based on that de novo

review, the Court adopts the R&R.

BACKGROUND

The R&R extensively details the factual and procedural history of.Prow's claims

and this Court will not repeat that history in frill here. In brief, Prow is an inmate at the

Minnesota Correctional Facility at Stillwater, where he is serving a sentence for second-

CASE 0:15-cv-03857-PAM-SER Document 164 Filed 07/31/17 Page 2 of 4

degree murder. While incarcerated, Prow requested certain books, images, and art

supplies, and also sought to mail out self-addressed stamped envelopes. Defendants

denied Prow's requests because they violated the Minnesota Department of Corrections'

("DOC") Contraband Policy 301.030, which prohibits possession of sexually explicit

materials; Hobby Craft Policy 204.047, which limits access to certain art supplies; and

Mail Policy 302.020, which prohibits inmates from including self-addressed stamped

envelopes in outgoing mail. Prow then filed this lawsuit under 42 U.S.C. S 1983,

alleging that Defendants violated his First and Fourteenth Amendment rights by denying

his requests.

DISCUSSION

In considering the cross-Motions for Summary Judgment, Magistrate Judge Rau

thoroughly set forth the applicable legal standard. The regulation of a prisoner's

constitutional rights is valid if "it is reasonably related to legitimate penological

interests." (R&R (Docket No. 160) at 7 (citing Turner v. Safley, 482 U.S. 78. 89

(1987)).) The reasonableness of the regulation depends on four factors: (1) whether there

is a valid, rational connection between the regulation and the government interest put

forward to justify it; (2) the existence of alternative means available to the prisoner to

exercise their right; (3) the impact of an accommodation on guards, inmates, and prison

resources; and (4) the absence or availability of ready alternatives. (Id. (citing Turner,

482 U.S. at 89-90).)

The R&R identified the primary issues as the constitutionality of Defendants'

application of the Contraband Policy, the Hobby Craft Policy, and the Mail Policy.

CASE 0:15-cv-03857-PAM-SER Document 164 Filed 07131117 Page 3 of 4

Defendants explained that the policies were designed to further the legitimate penological

interests of safety, preventing sexual harassment, rehabilitating sex offenders, and

effectively managing important mailroom duties. The R&R cited numerous cases

concluding that each of the goals articulated by Defendants are neutral and legitimate. It

also found that the regulations were reasonable in their restrictions, setting appropriate

boundaries for the three policies. (14. at 8-26.) The R&R further concluded that Prow's

procedural due process claim is without merit and that Defendants are entitled to

qualified immunity in any event.

(j4. 27-31.)

Prow raises seventeen repetitive and often-incoherent objections to the R&R.

After conducting the required de novo review of all of Prow's objections, only three of

those objections deserve mention here.

First, Prow argues that the R&R misconstrued Prow's claim as a challenge to the

Contraband Policy's ban on sexually explicit materials. Prow maintains that he does not

challenge the Contraband Policy's ban on sexually explicit materials, rather he argues

that "not all images with nudity in them are [sexually explicit]." (Prow Decl. (Docket

No. 110) at 5.) While this may be true, nudity still falls within the category of contraband

and prison officials may bar prisoners from receiving materials that feature nudity.

Second, Prow objects to the R&R's reliance on multiple previous decisions in this

jurisdiction that have upheld the constitutionality of the Contraband Policy. CSee R&R at

9.) Although Prow maintains that his arguments are novel, this is not the first time that a

prisoner has challenged the constitutionality of the DOC's Contraband, Hobby Craft, or

Mail Policies. Indeed, Minnesota inmates have frequently challenged these policies in

CASE 0:15-cv-03857-PAM-SER Document 164 Filed 07/31/17 Page 4 of 4

this District and the R&R correctly used past precedent—while addressing recent de

minimis changes in the policies—to come to a proper conclusion.

Finally, Prow objects to the R&R's analysis on qualified immunity. Prow argues

that the analysis is cursory and prejudicial because the R&R initially stated that it would

not provide analysis on qualified immunity. But this is simply wrong. The R&R stated

that it would address the merits, including whether Defendants are entitled to qualified

immunity, without addressing other collateral issues. (R&R at 6-7.) Moreover, the R&R

correctly determined that Defendants are entitled to qualified immunity.

CONCLUSION

Defendants did not violate Prow's constitutional rights and are entitled to qualified

immunity in any event. Accordingly, IT IS HEREBY ORDERED that:

Plaintiffs Objections (Docket No. 16 1) are OVERRULED;

The R&R (Docket No. 160) is ADOPTED;

Plaintiff's Motion for Summary Judgment (Docket No. 107) is DENIED;

Defendants' Motion for Summary Judgment (Docket No. 91) is

GRANTED;

Plaintiffs Motion for Temporary Restraining Order (Docket No. 115) is

DENIED as moot; and

This case is DISMISSED with prejudice.

LET JUDGMENT BE ENTERED ACCORDINGLY.

s/cPau(ft. SWagnuson

Sated: July 31, 2017

Paul A. Magnuson

United States District Court Judge

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.