FINDINGS AND RECOMMENDATIONS RECOMMENDING GRANTING DEFENDANT'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED Doc. 21 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE DAYS
Findings and Recommendations
On January 11, 2010, Plaintiff Christopher Reynolds ("Plaintiff"), a federal prisoner proceeding pro se and in forma pauperis, filed this civil rights action pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971). On February 22, 2011, Plaintiff filed a first amended complaint, alleging that Defendant H.A. Rios ("Defendant") erroneously rejected two magazines on the basis of nude content. Pl. Am. Compl. at 5, Doc. 9. On March 1, 2011, the Court found a cognizable claim against Defendant for First Amendment interference with mail. Doc. 10. On September 8, 2011, Defendant filed a motion to dismiss. Doc. 21. On September 20, 2011, Plaintiff filed objections to Defendant's motion to dismiss. Doc. 25. On September 26, 2011, Defendants filed a reply to Plaintiff's objections. Doc. 26. On October 7, 2011, Plaintiff filed a sur-reply to Defendant's response. Doc. 27.*fn1
II. Legal Standard for Motion to Dismiss
A motion to dismiss brought pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure tests the legal sufficiency of a claim, and dismissal is proper if there is a lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory. Conservation Force v. Salazar, 646 F.3d 1240, 1241-42 (9th Cir. 2011). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, __, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Conservation Force, 646 F.3d at 1242; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir. 2009). The Court must accept the well-pleaded factual allegations as true and draw all reasonable inferences in favor of the non-moving party. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010); Sanders v. Brown, 504 F.3d 903, 910 (9th Cir. 2007); Huynh v. Chase Manhattan Bank, 465 F.3d 992, 996-97; Morales v. City of Los Angeles, 214 F.3d 1151, 1153 (9th Cir. 2000). However, while prisoners proceeding pro se in civil rights actions are entitled to have their pleadings liberally construed and to have any doubt resolved in their favor, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010), courts are not required to indulge unwarranted inferences, Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009). While factual allegations are accepted as true, legal conclusions are not. Iqbal, 129 S. Ct. at 1949.
III. The Pleadings On File
In Plaintiff's amended complaint, he alleges that Defendant erroneously rejected two magazines, W, and Esquire, on the basis of nude content. Pl. Am. Compl. at 5, Doc. 9. Plaintiff stated that the Warden cited Bureau of Prisons ("BOP") Program Statement 5266.10 and 28 C.F.R. § 540.72. Id. at 4. Plaintiff attaches the rejection letters to his complaint, which cite the Ensign Amendment. Id. at 8-9. Plaintiff contends that Defendant arbitrarily rejected Plaintiff's magazines while the BOP "allows nudity" by permitting the distribution of sports magazine swimsuit issues and lingerie catalogs. Id. at 5.
In Defendant's motion to dismiss, Defendant Warden Rios contends that in rejecting Plaintiff's magazines, he acted in accordance with the Ensign Amendment,*fn2 which provides that, "no funds may be used to distribute or make available to a prisoner any commercially published information or material that is sexually explicit or features nudity."28 U.S.C. § 530c(b)(6)(D). Def. Mot. Dismiss at 2, Doc. 21. BOP regulations enacted in furtherance of the Ensign Amendment provide that:
a) When commercially published information or material may not be ... made available to inmates due to statutory restrictions (for example, a prohibition on the use of appropriated funds to distribute or make available to inmates information or material which is sexually explicit or features nudity), the Warden or designee shall return the information or material to the publisher or sender. ....Staff shall provide the inmate with written notice of the action.
The pertinent definitions for application of the restriction are as follows: (2) Nudity means a pictorial depiction where genitalia or female breasts are exposed. (3) Features means the publication contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues. Publications containing nudity illustrative of medical, educational, or anthropological content may be excluded from this definition. 28 C.F.R. § 540.72(b)(2)-(3). Def. Mot. Dismiss at 3, Doc. 21. Finally, the BOP issued Program Statement 5266.10 for incoming publications setting forth the procedures for restricting materials that are precluded under the Ensign Amendment because they are "detrimental to the security, discipline, or good order of the institution or if it might facilitate criminal activity." BOP Program Statement 5266.10, Incoming Publication (1996) attached as Exhibit "A" to Declaration of Marc Fischer.*fn3 The objectives of the Program Statement include that publications prohibited by law, such as by the Ensign Amendment are excluded from the prison to, among others, create a "safer environment for staff and inmates." Id. at 2. The specific procedures for restricting publications featuring nudity, defined as "genitalia or female breasts" are the publication be returned to the publisher with a letter to both the publisher and the inmate regarding the prohibition of such publication from the prison. Id. at p. 7. The Program Statement contains sample letters to assist the Warden in communicating that the publication is prohibited at the prison under the Ensign Amendment. See Def. Mot. Dismiss, Ex. A Decl. Marc Fisher, Doc. 21.
In Plaintiff's original complaint, Plaintiff stated that Defendant erroneously rejected magazines where a "bare female breast is exposed." Pl. Compl. at 3, Doc. 1. Plaintiff further argued that the law does not permit Defendant to reject a magazine for "one or two female breasts." Id. at 4. In Plaintiff's objections to Defendant's motion to dismiss, Plaintiff states that "simple nudity" in mainstream magazines (in this case, Esquire and W) differ from magazines known for sexually explicit photos, i.e., Playboy, Penthouse, and Hustler. Pl. Obj. Mot. Dismiss at 2-3. Finally, Plaintiff contends that the Court should ignore the "two to three nude photos" because of the remaining literary content in the magazines. Id. at 12.
A. Legal Standard for First Amendment Limitation on ...