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Hughes v. Bos

United States District Court, D. Kansas

September 11, 2017

MARIA BOS et al., Defendants.



         Plaintiff Charley Hughes, Jr., is an inmate in the custody of Kansas Department of Corrections (“KDOC”). He brings this action against Defendants Maria Bos, William Shipman, Keshia Lee, and Doug Burris under 42 U.S.C. § 1983 alleging that Defendants violated his First Amendment right to receive information. Specifically, Plaintiff challenges the application of certain prison regulations resulting in the censorship of sixteen publications and an item of mail sent to him. Defendants Bos and Shipman have moved for summary judgment on Plaintiff's claim (Doc. 31).[1] Because the Court concludes that they are entitled to qualified immunity, the Court grants Defendants' motion.

         I. Factual and Procedural Background[2]

         Plaintiff is currently incarcerated at the Hutchinson Correctional Facility in Hutchinson, Kansas. At the time of the matter at issue, he was incarcerated at the El Dorado Correctional Facility (“EDCF”) in El Dorado, Kansas. Plaintiff is a member of the New Afrikan Black Panther Party.

         Defendant Bos is the mailroom supervisor at EDCF. As part of her duties, she conducts a preliminary review of publications and determines whether they should be censored. She then notifies all correctional facilities of her decision and forwards the publication to Lansing Correctional Facility for further review. Defendant Lee is the Publications Review Administrative Assistant at Lansing Correctional Facility. She conducts an independent review of the publications and forwards her decision to Deputy Warden Shipman, who oversees the censorship review. Defendant Burris serves as the Secretary of Corrections' designee when inmates appeal the censorship of the publications.

         While incarcerated at EDCF, Plaintiff had an unknown number of publication subscriptions. During 2015 and 2016, Plaintiff had a total of 16 publications censored and denied pursuant to K.A.R. 44-12-601 and I.M.P.P. 12-134 Uniform Review of Publication. The stated reason for the censorship was that the publications posed a threat to the safety and security of the institution. The censored publications include: “The San Francisco Bay View National Black Newspaper, ” “Turning the Tide, ” “The Burning Spear, ” “Change-Links Community Calendar & News, ” “MIM Theory, Psychology Imperialism Issue 9, ” “Instead of Prisons, ” “The CR Abolition Organizing Tool Kit by Shana Agid, ” “Abolition Now, ” and “Under Lock & Key.” In addition, an item of mail sent to Plaintiff containing an article concerning the New Afrikan Black Panther Party was censored pursuant to K.A.R. 44-12-325.

         Plaintiff appealed the censorship decisions, and his appeals were denied. Proceeding pro se, he then filed a Complaint in this Court against Defendants Bos and Shipman. On October 20, 2016, Plaintiff filed an Amended Complaint, adding Defendants Lee and Burris to the suit. Plaintiff asserts a claim under 42 U.S.C. § 1983 alleging that Defendants violated his First Amendment right to receive information. Defendants Bos and Shipman subsequently filed a Motion for Summary Judgment arguing that they are entitled to Eleventh Amendment immunity and qualified immunity. Plaintiff moved for the Court to appoint him counsel, and the Court granted his motion. Plaintiff then responded to Defendants' motion, which is now ripe for the Court's consideration.

         II. Legal Standard

         Summary judgment is appropriate if the moving party demonstrates that there is no genuine issue as to any material fact, and the movant is entitled to judgment as a matter of law.[3]A fact is “material” when it is essential to the claim, and issues of fact are “genuine” if the proffered evidenced permits a reasonable jury to decide the issue in either party's favor.[4] The moving party bears the initial burden of proof, and must show the lack of evidence on an essential element of the claim.[5] If the moving party carries this initial burden, the non-moving party that bears the burden of persuasion at trial may not simply rest on its pleading but must instead “set forth specific facts” from which a rational trier of fact could find for the non-moving party.[6] These facts must be clearly identified through affidavits, deposition transcripts, or incorporated exhibits-conclusory allegations alone cannot survive a motion for summary judgment.[7] To survive summary judgment, the non-moving party's evidence must be admissible.[8] The Court views all evidence and reasonable inferences in the light most favorable to the party opposing summary judgment.[9]

         III. Analysis

         A. Eleventh Amendment Immunity

         The Eleventh Amendment generally prohibits suits in federal court seeking declaratory or injunctive relief or money damages against states or those people or organizations that are arms of the state.[10] “[A]n official capacity suit is, in all respects other than name, to be treated as a suit against the entity. It is not a suit against the official personally, for the real party in interest is the entity.”[11] As employees of the State of Kansas and KDOC during the time at issue, Defendants Bos and Shipman share the State's immunity for suits against them in their official capacities.[12]

         It's not clear from Plaintiff's Amended Complaint whether he is bringing his suit against Defendants in their official capacity or individual capacity. However, in response to Plaintiff's motion, he asserts that he is bringing his claims against them in their individual capacity. Therefore, Defendants are not entitled to Eleventh Amendment immunity on Plaintiff's claim.

         B. Qualified Immunity

         “Qualified immunity protects officials ‘from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.' ”[13] Qualified immunity leaves “ample room for mistaken judgments, ” protecting “all but the plainly incompetent or those who knowingly violate the law.”[14] When a defendant raises qualified immunity on summary judgment, the burden shifts to the plaintiff to demonstrate that (1) the defendant's actions violated a constitutional or statutory right and (2) the constitutional or statutory right was clearly established at the time of the conduct at issue.[15]

         Because Defendants have raised the defense of qualified immunity, the burden shifts to Plaintiff to demonstrate that Defendants violated his First Amendment rights. Generally, inmates have a First Amendment right to receive information while in prison.[16] This right, however, is not without limitation.[17] Prison regulations may constitutionally impinge on this right so long as they are “reasonably related to legitimate penological interests.”[18] To determine whether a regulation is reasonably related to legitimate penological interests, the Court applies the deferential four factor test set forth in Turner v. Safley.[19] Under this test, the Court must consider (1) whether there is a rational connection between the prison policy and a legitimate governmental interest; (2) whether there are alternative means for inmates to exercise their constitutional rights; (3) the effect that accommodating the exercise of disputed rights would have on guards, other inmates, and prison resources; and (4) whether there are ready, easy-to-implement alternatives that would accommodate the inmates' rights.[20] “The burden . . . is not on the State to prove the validity of prison regulations but on the prisoner to disprove it.”[21]

         In this case, Plaintiff challenges the censorship of the publications under two regulations: K.A.R. 44-12-601(d)(1)(A) and K.A.R. 44-12-325. The Court will analyze each of these regulations under the Turner test below.

         1. K.A.R. 44-12-601(d)(1)(A)

         K.A.R. 44-12-601(d) states that “[i]ncoming or outgoing mail, other than legal, official, or privileged mail may be censored only when there is reasonable belief in any of the following: (A) [t]here is a threat to institutional safety, order, or security.”[22] Under the Turner analysis, the first factor requires a multifold analysis: “[the court] must determine whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective.”[23] This factor “is actually more of an element than a factor in the sense that it is not simply a consideration to be weighed but rather an essential requirement.”[24]

         According to Defendants, the underlying objective of K.A.R. 44-12-601(d)(1)(A) is institutional security. In Thornburgh, the Supreme Court analyzed a regulation that allowed prison officials to reject incoming publications found to be detrimental to institutional security.[25]When analyzing the regulation under the first Turner factor, the Supreme Court found that the governmental objective of prison security is legitimate “beyond question.”[26] The Supreme Court then held that “[w]here, as here, prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are neutral.”[27] Finally, the Supreme Court concluded that the regulation was rationally related to prison security.[28] The Court noted that “[w]here the regulations at issue concern the entry of materials into the prison, we agree . . . that a regulation which gives prison authorities broad discretion is appropriate.”[29]

         The Tenth Circuit has applied this analysis to similar regulations protecting institutional security. In Ind v. Wright, [30] the plaintiffs, who were incarcerated at the Colorado State Penitentiary, challenged the constitutionality of DOC administrative regulation 300-26.[31] That regulation prohibits materials that an objective person could reasonably believe “encourage or endorse: violence or disorder; . . . hatred or contempt of other persons; [or] vengeance against other persons.”[32] The regulation specifically identifies as excludable “[a]ny publication advocating hatred or contempt of other persons” and “[a]ny . . . material advocating or depicting association in a [security threat group] which is contrary to the interests of the facility.”[33] In applying the first Turner factor, the Tenth Circuit adopted the Supreme Court's analysis in Thornburgh and concluded that the regulation was rationally related to legitimate penological objectives.[34]

         The Court applies the same analysis as the Supreme Court in Thornburgh and the Tenth Circuit in Ind with regard to K.A.R. 44-12-601(d). Like the regulations at issue in those cases, K.A.R. 44-12-601(d)(1)(A) allows prison officials to censor material that could pose a threat to prison order or security. Therefore the regulation is rationally related to the legitimate penological interest of maintaining prison order and security.

         Furthermore, the Court concludes that the regulation was reasonably applied in this case. Defendants have produced affidavits from Defendants which state that the publications at issue depict gang violence, symbolism of security threat groups, race-based violence, violent and gory images, and articles that are inflammatory toward law enforcement officers. The subject matter of these publications could cause a reasonable prison official to believe that the publications may threaten prison security.

         Plaintiff spends a good portion of his response detailing the history of the Turner test. However, he does argue that the first factor cannot be satisfied because the notice of censorship KDOC provided to Plaintiff did not specify how each publication posed or created a security threat. According to Plaintiff, without a specific explanation, the stated reason must be untrue and thus have nothing to do with legitimate security concerns.

         Plaintiff's argument is not persuasive. Defendants have produced evidence showing that security and safety concerns were not simply pretext for the censorship of the publications. For example, Defendant Lee prepared an affidavit in support of the Martinez Report which states that she censored the articles in the April 1, 2015 issue of the San Francisco Bay View because they were racially charged, included victims of violent acts with bloodied faces, and were inflammatory toward law enforcement officers. She also stated that other issues of the San Franciso Bay View were allowed in the prison because their content did not pose a security threat. Plaintiff similarly testified in his affidavit in response to Defendants' motion that he received other issues of the San Francisco Bay View and issues of other publications that were censored. While Plaintiff believes this is evidence that the publications were arbitrarily censored, it shows just the opposite. The fact that some issues of a publication were allowed into the facility while others were not shows that Defendants did not ban the entire publication itself. Rather, Defendants distinguished those issues that touched upon violence, racial tension, or defiance of authority, which relate to the safety and security of the prison.

         In the First Amendment context, the Court must “accord substantial deference to the professional judgment of prison administrators.”[35] Indeed, the Supreme Court has stated that it is inappropriate for courts to “ ‘substitute our judgment on . . . difficult and sensitive matters of institutional administration' . . . for the determinations of those charged with the formidable task of running a prison.”[36] Defendants have produced evidence showing that the regulations were reasonably applied and that they serve legitimate governmental interests. Accordingly, the first Turner factor favors Defendants.

         Plaintiff does not address the second, third, or fourth Turner factors and thus has not met his burden to show a genuine issue of fact on these elements. Regarding the second Turner factor-“whether there are alternative means of exercising the right that remain open to prison inmates”-Defendants have shown that Plaintiff has alternative means of exercising his First Amendment right because he has access to other publications, including other issues of the censored publications that do not contain provocative and inflammatory content.[37]

         The third Turner factor relates to the impact of providing Plaintiff the accommodation he seeks.[38] Here, Plaintiff requests Defendants provide him the censored publications. This is not an appropriate accommodation given their nature and content. As the Tenth Circuit has noted, allowing materials into the prison “that espouse hatred or contempt of others would negatively impact other prisoners, guards who must prevent any resulting animosity, and prison resources aimed at preventing violence.”[39] The Tenth Circuit also noted that “[i]n light of the extreme racial tensions and violence prevalent in prisons, such provocative materials are likely to increase the stress on prisoners, guards, and resources alike.”[40] Defendants have shown that materials that incite violence, contain imagery that relates to security threat groups, and encourage defiance of authority would negatively impact prisoners, prison guards, and prison resources. Thus, the third Turner factor favors Defendants.

         Finally, there is no evidence as to the fourth Turner factor-an obvious, easy alternative that fully accommodates Plaintiff's rights at a de minimis cost to the prison.[41] “This is not a ‘least restrictive alternative' test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint.”[42] If an inmate can point to an alternative that fully accommodates his rights at a de minimis cost to valid penological interests, this is evidence that the regulation does not meet the reasonable relationship standard.[43]

         Plaintiff has not produced any alternative that fully accommodates his right. In fact, he has not supplied any alternative at all. This failure to suggest any alternatives is evidence of the reasonableness of the regulation. Accordingly, the fourth Turner factor is satisfied.

         Based on the Court's analysis, K.A.R. 44-12-601(d)(1)(A) is rationally related to a legitimate penological interest, and it was reasonably applied in Plaintiff's case. Plaintiff has not shown that Defendants violated his First Amendment rights by censoring the publications under K.A.R. ...

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