The opinion of the court was delivered by: J. Michael Seabright United States District Judge
ORDER (1) GRANTING DEFENDANTS' MOTION FOR
SUMMARY JUDGMENT; AND
(2) DENYING PLAINTIFF'S
MOTION FOR RECONSIDERATION OF THE COURT'S
SEPTEMBER 21, 2010 GRANTING
IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR
In this action, pro se prisoner Travis George Miskam ("Plaintiff") asserts (1) a claim against Defendant T. Felker ("Warden Felker") based on the ban of various publications at California's High Desert State Prison ("HDSP") including the Art of War, Juxtapoz, Art of Seduction, and 48 Laws of Power; and (2) a claim against Defendant D. Davey ("Captain Davey") based on his refusal to provide Plaintiff with the magazine Resistance and the comic book Satan's Sodomy Baby.
Currently before the court is Defendants' Motion for Summary Judgment, in which they argue that Plaintiff failed to administratively exhaust his claims against Warden Felker, and that Captain Davey's refusals to provide Plaintiff Resistance or Satan's Sodomy Baby did not violate Plaintiff's First Amendment rights because the denials were rationally related to legitimate penological interests. Based on the following, the court agrees and GRANTS Defendants' Motion for Summary Judgment.
On September 18, 2007, while housed at HDSP, Plaintiff was mailed an issue of Resistance. Defendants' Concise Statement of Facts ("Defs.' CSF") ¶ 6.*fn1 Upon review, Captain Davey found that Resistance expressed racially biased viewpoints, id., and he refused to provide Resistance to Plaintiff on the grounds that it contained racially inflammatory material in violation of Cal. Code Regs. ("CCR") tit. 15 § 3006(c)(1).*fn2 Davey Decl. ¶¶ 5-7. Captain Davey believed that allowing Plaintiff to receive Resistance would incite racial violence at HDSP, id. ¶ 7, which had been on lockdown fifteen times due to racial tension in the five years prior to Plaintiff's request. Id. ¶ 6. Contrary to Captain Davey's characterization of Resistance, Plaintiff describes it as a "music magazine with band interviews, concert updates, cd reviews, book reviews, historical essays, and sports interviews." Pl.'s Opp'n at 13.
Plaintiff receives Resistance at his current prison, and provides as an exhibit a copy of the issue he was denied. See Pl.'s Ex. C. Upon review of Resistance, the court finds that although it includes articles, book reviews, and music reviews, the entire content of Resistance is permeated with white supremacist ideology. For example, titles of articles include "Aryan Solidarity Campout -- Ian Stuart Memorial Weekend," "Interview: Definite Hate -- Unite and Fight!," "White Lyrics Page," "Proud Aryan Women," and "Proud White Athlete: The Enforcer on Ice." Id. at 3. The book review -- "Setting the Record Straight (Letters from Cell # 7)" -- is a collection of letters from a Holocaust denier "who has felt the Iron Heel of Jewish power directly on his neck for decades." Id. at 12. Other articles exalt white unification and a general dislike of other races. See, e.g., id. at 8 (describing the "Aryan Solidarity Campout" where "we all stood together as soldiers in the fight for white survival"); at 17 (interview with musician Rob "Darken" Fudali asserting that "natural instinctive aversion to non-Whites . . . saves the country against the cataclysm of multiracism"); at 26 (interview with the music group "The Lordz of Hate," where "Ymir" explains that "[y]ou'll rarely see Blacks venturing far from the projects; Jews keep to their areas as do the Italians, Irishm Hellenes, etc. So you have definitely find a nice area to live in NY, it's just that rush hour and shopping is where you'll run into muds, Jews, etc."); at 29-34 ("I Remain Loyal to the Cause," an interview with a fifth-generation Klansmen and Imperial Wizard who expresses anger at the federal prison system for housing him with Black inmates and discusses the problem of women committing "interracial suicide").
Other content goes beyond expressions of white supremacy and solidarity by arguably suggesting violence to ensure the continuance of the white race. For example, the Editorial asserts that "[t]he schemes of Jews and the peril our race is in are so obvious. Why won't our people stand up and save themselves? When will we have our White homeland?" Id. at 4. The short article "The Rebel, Definite Hate: Unite and Fight!" shares the message to "[s]top the bullshit, get off your asses, and Unite & Fight! If only one kid wakes up and starts fighting for his race, then I feel it's worth it." Id. at 13. Finally, the "White Lyrics" page includes the lyric, "[a]n agent in cahoots with the fucking Jew; Fucking snitch we know your name; Fucking snitch, we'll hound your trail; Fucking snitch, we play no games; Fucking snitch tells no more tales!" Id. at 23. As should be painfully obvious from this recitation, Resistance is a magazine directed to white supremacists and supports violence against non-white races.
On December 13, 2007, while still housed at HDSP, Plaintiff was mailed a comic book entitled "Satan's Sodomy Baby." Defs.' CSF ¶ 10. Captain Davey refused to provide Plaintiff with the comic book, this time on the basis that it "vividly depicts, displays and describes penetration of the anus and contact between the genitals and mouth[, and] that throughout the comic were descriptions of sexual acts and exhibitions of frontal nudity of the male and female breasts and genitals," in violation of, among other provisions, §§ 3006(c)(1), (15), and (17).*fn3
See Davey Decl. ¶ 11, 12; see also Defs.' CSF ¶ 12.
3. Plaintiff's Claims Against Warden Felker
As to Plaintiff's claim against Warden Felker for approving a ban on a number of publications including The Art of War, Juxtapoz, The Art of Seduction, and 48 Laws of Power, there is no evidence that Plaintiff filed any administrative grievances regarding these materials. Rather, Plaintiff grieved and appealed only HDSP's denial to provide him a copy of Resistance and the placement of the magazine on a list of banned publications. See Pl.'s Ex. A; see also Robertson Decl. ¶¶ 7-8. At all four levels of the review process, prison officials denied Plaintiff's request to rescind the restriction on Resistance or to provide Plaintiff a copy of Resistance. Id. at 20-25.
On September 22, 2008, Plaintiff filed this action pursuant to 42 U.S.C. § 1983. In a February 10, 2009 Order Dismissing Complaint in Part, the court allowed Plaintiff's claims to proceed against Captain Davey, S. McAllister, N. Grannis, M. Keating, M.D. McDonald, T.R. Mossinger, R.L. Gower, R. Pimatel, K.J. Allen, and Warden Felker for confiscating or denying Plaintiff access to certain publications.
On July 14, 2010, Defendants filed a Motion for Summary Judgment, and the September 21, 2010 Order Granting in Part and Denying in Part the Motion for Summary Judgment (the "September 21, 2010 Order") followed. As a result of the September 21, 2010 Order, Plaintiff's remaining claims include (1) a claim against Captain Davey based on the refusal to provide Plaintiff with Resistance and Satan's Sodomy Baby; and (2) a claim against Warden Felker based on the ban of various publications including the Art of War, Juxtapoz, Art of Seduction, and 48 Laws of Power.
On December 14, 2010, Plaintiff filed a Motion for Reconsideration of the September 21, 2010 Order. On December 17, 2010, Defendants filed a Motion for Leave to File a Motion for Summary Judgment and proposed Motion for Summary Judgment. On December 20, 2010, the court granted Defendants' Motion for Leave to File a Motion for Summary Judgment and deemed filed Defendants' proposed Motion for Summary Judgment. The court further explained that it would address the Motion for Summary Judgment and the Motion for Reconsideration at the same time because the arguments ...