Ybanez v. Raemisch

          REPORT AND RECOMMENDATION

          Mark L. Carman United States Magistrate Judge

         Magistrate Judge Mark L. Carman This matter comes before the court on the "Defendants' Motion for Summary Judgment" (Doc. 148), filed on September 18, 2017, by Defendants Rick Raemisch, Lou Archuleta, Bernadette Scott, Deon Jimenez, Michelle Nycz-Halligan, Robert Ryles, Iris Christians, Edward Smith, Claudia Ochoa, Robert Hradecky, and John Chapdelaine.

         This court has carefully considered the Motion, the related briefing, the entire case file, and applicable case law. For the following reasons, the court recommends that the Defendants' Motion be granted in part and denied in part.

         BACKGROUND

         Plaintiffs Nathan Ybanez, Simon Sue, Sam Lincoln, Atorrus Rainer, Greg Rivas, and Patrick Suchaiya, filed this lawsuit pursuant to 42 U.S.C. § 1983 against various employees of the Colorado Department of Corrections ("CDOC"). In their Third Amended Prisoner Complaint ("Complaint") (Doc. 55), Plaintiffs allege numerous violations under the First and Fourteenth Amendments arising from Defendants alleged censorship and seizure of magazines and personal mail deemed to be "sexually explicit." According to the Complaint, the CDOC was previously subject to a settlement agreement that prohibited it from censoring sexually explicit materials unless it fit within the following categories:

Materials that clearly depict or describe bestiality, pedophilia, sadism, masochism, necrophilia, discharge of bodily fluid, oral, anal or vaginal penetration by animate or inanimate objects, or oral sex.

(the "original policy"). Doc. 148-1 at 2^[1]. The original policy, codified as AR 300-26, also specifically provided that materials could not be rejected solely because "its content is religious, philosophical, political, social, or sexual, or because of its religious, philosophical, political, or social views, its sexual content, or because it is unpopular, repugnant, or critical of the [CDOC] or other government authority." Id. at 3 (emphasis added).

         However, following the expiration of the settlement agreement, the CDOC amended AR 300-26 ("June 2012 policy")- Among the many changes to the policy, the definition of "sexually explicit" material was amended to include nudity. Doc. 148-2 at 2. In addition, "sexual content" was specifically removed from the list of content-based categories. Id. at 4. The policy was amended again in November 2012 ("November 2012 policy"). This version retained the new definition of "sexually explicit, " but it also provided for certain categories of exceptions that could be permitted: "A publication may be allowed which would otherwise fall within the definition of sexually explicit if [] the publication has literary, educational, scientific, artistic or historic value."^[2] Doc. 148-3 at 5.

         In their Complaint, Plaintiffs contend that the June and November 2012 policies are facially unconstitutional because they violate their First Amendment and Due Process rights. Doc. 55. In addition, they allege that Defendants withheld numerous publications and items of personal mail that did not meet the definition of "sexually explicit." Plaintiffs also claim that many of these items were withheld or seized from them without any notice or any opportunity to appeal the decisions. Id.

         Following the court's ruling (Doc. 101) on the Defendants' Motion to Dismiss (Doc. 80), Plaintiffs and Defendants engaged in a period of discovery. Thereafter, Defendants filed their Motion for Summary Judgment. Doc. 148. They contend that based on the undisputed material facts, judgment should be entered in their favor. Id. They also argue that they are entitled to qualified immunity. Id. In support of their Motion, Defendants have submitted a number of declarations together with supporting evidence and exhibits. Plaintiffs filed their Response (Doc. 157) on November 20, 2017, which was followed by Defendants' Reply (Doc. 167) on December 18. 2016. Plaintiffs were then permitted to file a Surreply (Doc. 173) on February 12, 2018, to respond to an argument raised for the first time in Defendants' Response brief.

         STANDARD OF REVIEW

         Summary judgment is appropriate only if the pleadings, the discovery and disclosure materials on file, and any affidavits show that "there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56; see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Henderson v. Inter-Chem Coal Co., Inc.. 41 F.3d 567, 569 (10th Cir. 1994). To meet the burden of persuasion required to support summary judgment, the movant must "point to those portions of the record that demonstrate an absence of a genuine issue of material fact, given the relevant substantive law." Thomas v. Wichita Coca-Cola Bottling Co., 968 F.2d 1022, 1024 (10th Cir. 1992) (citing Celotex Corp., 477 U.S. at 322-23 (1986)). A fact is "material" if under the substantive law it could have an effect on the outcome of the lawsuit. Equal Emp't Opportunity Comm 'n v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190 (10th Cir. 2000) (citing Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986)). A factual dispute is "genuine" if the evidence is so contradictory that if the matter went to trial, a reasonable jury could return a verdict for either party. Anderson, 477 U.S. at 248.

         While the moving party bears the initial burden of showing that there is an absence of any issues of material fact. Hicks v. City of Watonga, 942 F.2d 737, 743 (10th Cir. 1991), the movant need not negate the non-movant's claim. See John Hancock Mut. Life Ins. Co. v. Weisman, 27 F.3d 500, 503 (10th Cir. 1994); Universal Money Ctrs., Inc. v. Am. Tel. & Tel. Co., 22 F.3d 1527, 1529 (10th Cir. 1994). Once the moving party points to an absence of evidence to support the non-moving party's claim, the non-moving party may not rest upon his or her pleadings, but must present specific facts showing that there is a genuine issue for trial as to the elements essential to the non-moving party's case. See Fed. R. Civ. P. 56(e). See also Kannady v. City of Kiowa, 590 F.3d 1161, 1169 (10th Cir. 2010). If the non-moving party will bear the burden of proof at trial, it must come "forward with sufficient competent evidence to establish a prima facie claim." Green Earth Wellness Ctr., LLC v. A tain Specialty Ins. Co., 163 F.Supp.3d 821, 825 (D. Colo. 2016).

         The court must construe the factual record and reasonable inferences therefrom in the light most favorable to the non-moving party. Kidd v. Taos Ski Valley, Inc., 88 F.3d 848. 851 (10th Cir. 1996). "[A] 'judge's function' at summary judgment is not 'to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.'" Tolan v. Cotton, 134 S.Ct. 1861, 1866 (2014) (quoting Anderson, 477 U.S. at 249). Ultimately, the court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson, 477 U.S. at 251-52.

         Conclusory allegations will not create a genuine issue of material fact necessitating trial. Dobson v. City & Cty. of Denver, 81 F.Supp.2d 1080, 1083 (D. Colo. 1999). Cf Nichols v. Hurley, 921 F.2d 1101, 1113 (10th Cir. 1990) (acknowledging "conclusory allegations without specific supporting facts have no probative value"). Evidence that is not significantly probative and immaterial factual disputes will not defeat a motion for summary judgment. Ayon v. Gourley, 47 F.Supp.2d 1246, 1252 (D. Colo. 1998). The demonstration of "some metaphysical doubt as to the material facts" is not sufficient to establish a genuine issue of material fact. Foreman v. Richmond Police Dep't, 104 F.3d 950, 957 (7th Cir. 1997). "The very purpose of a summary judgment action is to determine whether trial is necessary." White v. York lull Corp., 45 F.3d 357, 360 (10th Cir. 1995). In short, this court must determine whether the non-moving party has come forward with specific facts to overcome the moving party's motion in whole or in part.

         ANALYSIS

         I. Mootness

         In their Reply, Defendants allege that in February 2016, the November 2012 policy was "significantly changed" and the definition of nudity was amended in an effort to remedy some of the strict interpretations that occurred under the previous language. Doc. 167 at 40. Defendants allege that the CDOC has "taken specific actions to right the unintended over-censorship that occurred under the prior definitions of nudity." Id. at 41. They argue, therefore, that Plaintiffs" facial challenge is moot. The court is not persuaded.

         It is well established that a defendant's "voluntary cessation of a challenged practice" moots an action only if "subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000); see Knox v. Serv. Emps. Int'l Union, Local 1000, 567 U.S. 298, 307 (2012) ("The voluntary cessation of challenged conduct does not ordinarily render a case moot because a dismissal for mootness would permit a resumption of the challenged conduct as soon as the case is dismissed.") United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953) ("voluntary cessation of allegedly illegal conduct does not deprive the tribunal of power to hear and determine the case, i.e., does not make the case moot"). "The 'heavy burden of persua[ding]' the court that the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness." Friends of the Earth, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Exp. Ass'n, 393 U.S. 199, 203 (1968)).

         Here, the Defendants have not conceded that the challenged versions of the policy violated the First Amendment. See Doc. 167 at 41-42. Nor has any Defendant submitted any affidavit or otherwise stating that the prior policies were constitutionally suspect and, therefore. will never be re-implemented by the CDOC. Rather, the evidence submitted with Defendants" Reply indicates that the changes were made for clarification purposes. Doc. 167-1 at 10-11. Defendants have not pointed to any legal or practical barrier to their reinstatement of the previous versions of the policy, and "they have failed to even offer a bald conclusory pledge not to return to such policies." Prison Legal News v. Stolle, No. 2;l3cv424, 2015 WL 1487190, at *4 (E.D. Va. July 8, 2016); see also Young v. Raemisch, No 13-cv-01744-RPM, 2015 WL 4607679, at *1 (D. Colo. Aug. 3, 2015) (rejecting Defendants argument regarding mootness where there was "nothing to assure [the court] that the officials responsible for the mail policy recognize the need to consider the First Amendment").

         Consequently, the court concludes that Defendants have not met their burden in this regard and will proceed to consider the merits of Plaintiffs' facial claims.

         II. Facial Claims

         The Defendants contend that they are entitled to judgment on Plaintiffs' First Amendment claim because the June and November 2012 policies are facially constitutional under the test articulated in Turner v. Safley, 482 U.S. 78, 89 (1987). Doc. 148 at 21-27. In addition, Defendants contend that the regulation's censorship procedures adequately protect prisoners' interests under the Due Process clause. The court agrees with Defendants in part.

         A. Defendants' Credibility

         In their Response, Plaintiffs acknowledge that this court may not weigh the credibility of witnesses when determining a motion for summary judgment. Fogarty v. Gallegos, 523 F.3d 1147, 1165 (10th Cir. 2008). Nevertheless, they contend that the affidavits and materials submitted with Defendants" motion contain infirmities and, therefore, raise questions as to the legitimacy of their arguments. Doc. 157 at 24-28. Specifically, Plaintiffs lament Defendants citation of more recent versions of AR 300-26, and argue that Defendants are attempting to co-opt provisions from these amended versions.^[3] In addition, Plaintiffs also contend that Defendants are improperly attempting to rely on discovery materials disclosed after the discovery deadline had passed.

         I. Affidavits

         First, the court concludes that Aiello v. Litscher, 104 F.Supp.2d 1068 (W.D. Wise. 2000), cited by Plaintiffs, is distinguishable. In Aiello, the district court observed that a prison guard's affidavit was directly contradicted by her deposition testimony and was possibly perjurious. Id. at 1071. The court noted that several of the defendants' proposed affiants contradicted their own sworn affidavits or revealed that their "personal knowledge" was actually based on many layers of hearsay. Based on this sanctionable conduct, the court concluded that many of the defendants' proposed facts could not be credited. Id. at 1027.

         Here, however. Plaintiffs have not cited any such inconsistencies in the submitted affidavits. Rather, the "inconsistency" arises in Defendants' citation errors and in Defendants' citation to later versions of the regulations in their Summary Judgment briefing. In their proposed facts regarding the censorship procedures, Defendants cited to the most recent versions of AR 300-26. In explanation. Defendants state that they believed Plaintiffs were challenging AR 300-26 generally, as opposed to only challenging the June and November 2012 versions.^[4]Defendants further contend that the citations to the more recent versions are relevant to demonstrating that the policy has materially changed and, therefore, that Plaintiffs' facial claims are moot.^[5] Whatever, the explanation for these citation errors and inconsistencies, the court concludes that it does not implicate the veracity of the affiants.

         Unlike in Aiello, none of these affiants have contradicted their affidavits with sworn deposition testimony. Indeed, none of Defendants' affiants refer to these more recent versions of AR 300-26 as the basis for their statements. See Docs. 148-8, -9, -10. Furthermore, the court is not confronted with a situation wherein it must sift through the evidence to determine which of the implicated facts are truly undisputed. Aiello, 104 F.Supp.2d at 1072. Defendants' citation to the more recent version of AR 300-26 - and thereby policy provisions that are not at issue in this case - is easily remedied. The court has been provided with copies of the at-issue policies (Doc. 148-2 (June); Doc. 148-3 (November)) and refers to them as evidence of what policy provisions are implicated in Plaintiffs' claims.

         2. Late Disclosures

         Plaintiffs also argue that, pursuant to F.R.C.P. 37(c)(1), this court should disregard the attachments to Keith Nordell's affidavit (Doc. 148-8) because these documents were disclosed after the discovery period had ended.^[6] Defendants contend that the untimely disclosure is harmless.

"The determination of whether a Rule 26(a) violation is justified or harmless is entrusted to the broad discretion of the district court." Mid-America Tablewares, Inc. v. Mogi Trading Co., 100 F.3d 1353, 1363 (7th Cir. 1996). A district court need not make explicit findings concerning the existence of a substantial justification or the harmlessness of a failure to disclose. United States v. $9, 041, 598.68, 163 F.3d 238, 252 (5th Cir. 1998). Nevertheless, the following factors should guide its discretion: (1) the prejudice or surprise to the party against whom the [information] is offered; (2) the ability of the party to cure the prejudice; (3) the extent to which introducing such [information] would disrupt the trial; and (4) the moving party's bad faith or willfulness.

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