The opinion of the court was delivered by: Kendall J. Newman United States Magistrate Judge
ORDER and FINDINGS AND RECOMMENDATIONS
Plaintiff is a state prisoner, proceeding in forma pauperis and without counsel, in this civil rights action filed pursuant to 42 U.S.C. § 1983. Plaintiff was incarcerated at High Desert State Prison ("HDSP") when he filed this action on November 19, 2008. Plaintiff was transferred to California State Prison-Corcoran ("CSP-COR") in August 2009, and to California State Prison-Centinela ("CSP-CEN") in June 2011, where he is currently incarcerated under the authority of the California Department of Corrections and Rehabilitation ("CDCR"). Plaintiff challenges, on federal constitutional grounds, a California regulation that prohibits state inmates from possessing "sexually explicit material," as defined by Section 3006(c)(17), title 15, of the California Code of Regulations ("Section 3006(c)(17)"). Pending is defendants' motion for summary judgment, filed April 29, 2011. Plaintiff filed an opposition; defendants filed a reply.
Plaintiff thereafter filed a "Supplemental Opposition," which the court strikes as an impermissible surreply. For the reasons set forth herein, the undersigned recommends that defendants' motion for summary judgment be granted.
This case proceeds on Claims 10 through 20, and 26, of plaintiff's Second Amended Complaint ("SAC" or "complaint"), filed February 12, 2009 (Dkt. No. 13). (See Dkt. No. 34 at 3.) Plaintiff contends that on May 13, 2008, defendants HDSP correctional officers Barron and Wedemeyer (sued as "Wedemire"), "injured/violated plaintiff's constitutional rights . . . when they confiscated three of his magazines that, 'when taken as a whole,' were not obscene, but that displayed female nudity (1 Penthouse, 1 Playboy, and 1 Hustler magazine)." (Dkt. No. 13 at 7-8 (SAC, Claim 20).) Plaintiff contends that the policy underlying this confiscation, set forth in Section 3006(c)(17), violates his First Amendment right to freedom of expression. (See generally Claims 10-14.) Plaintiff further contends that enforcement of the challenged regulation violates his rights under the Eighth Amendment's proscription against cruel and unusual punishment (Claims 15, 26); the Fourteenth Amendment's Equal Protection Clause (Claims 16, 17); the First Amendment's Establishment Clause (Claim 18); and the Fourth Amendment's proscription against unreasonable seizures (Claim 19). (Id. at 7.)
In addition to defendants Barron and Wedemeyer, this action proceeds against former CDCR Director Jeanne Woodford, and former CDCR Deputy Director John Dovey (who served as Director of CDCR's Division of Adult Institutions). Plaintiff contends that defendants Woodford and Dovey were responsible for enacting and/or enforcing the challenged regulation. Defense counsel informs the court that defendant Woodford was CDCR Director from February 23, 2004, to June 30, 2005; that she was appointed to the position of CDCR Undersecretary on July 1, 2005; and that she retired from state service on July 5, 2006. (Dfs. Ex. B.) Defense counsel further states that defendant Dovey was appointed to head CDCR's Division of Adult Institutions on July 1, 2005, and remained in that position until his retirement on December 31, 2006. (Id.)
III. Plaintiff's "Supplemental Opposition"
Plaintiff filed a "Supplemental Opposition" (Dkt. No. 103), in response to defendants' reply brief. While plaintiff acknowledges that such briefing is generally inappropriate, he asserts that the brief responds only to "new matters" raised by defendants in their reply.
Neither the Federal Rules of Civil Procedure, nor the Local Rules of this court, provide for the filing of a surreply. Local Rule 230(l), contemplates the filing of only a motion, opposition and reply. Nevertheless, if a party raises a new argument or presents new evidence in a reply brief, the court may consider these matters only if the adverse party is given an opportunity to respond. El Pollo Loco v. Hashim, 316 F.3d 1032, 1040-41 (9th Cir. 2003).
This court has reviewed the substance of defendants' reply, and plaintiff's "Supplemental Opposition." The court finds that defendants presented no new evidence or arguments in their reply; rather, the reply is responsive to the arguments set forth in plaintiff's opposition.
Accordingly, plaintiff's "Supplemental Opposition" is stricken, and will be disregarded. Although plaintiff's "Supplemental Opposition," includes his belatedly-filed "Statement of Undisputed Facts," this case involves very few relevant facts, which are not impacted by the striking of plaintiff's brief "Statement."
IV. Legal Standards for Summary Judgment
Summary judgment is appropriate when it is demonstrated that the standard set forth in Federal Rule of Civil Procedure 56(c) is met. "The judgment sought should be rendered if . . . there is no genuine issue as to any material fact, and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Under summary judgment practice, the moving party always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any," which it believes demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986), quoting Federal Rule of Civil Procedure 56(c). "[W]here the nonmoving party will bear the burden of proof at trial on a dispositive issue, a summary judgment motion may properly be made in reliance solely on the 'pleadings, depositions, answers to interrogatories, and admissions on file.'" Id. Indeed, summary judgment should be entered, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. "[A] complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Id. at 323. In such a circumstance, summary judgment should be granted, "so long as whatever is before the district court demonstrates that the standard for entry of summary judgment, as set forth in Rule 56(c), is satisfied." Id.
If the moving party meets its initial responsibility, the burden then shifts to the opposing party to establish that a genuine issue as to any material fact actually exists. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to establish the existence of this factual dispute, the opposing party may not rely upon the allegations or denials of its pleadings but is required to tender evidence of specific facts in the form of affidavits, and/or admissible discovery material, in support of its contention that the dispute exists. See Fed. R. Civ. P. 56(e); Matsushita, 475 U.S. at 586 n.11. The opposing party must demonstrate that the fact in contention is material, i.e., a fact that might affect the outcome of the suit under the governing law, see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987), and that the dispute is genuine, i.e., the evidence is such that a reasonable jury could return a verdict for the nonmoving party, see Anderson, 477 U.S. at 248; T.W. Elec. Serv., 809 F.2d at 631.
In the endeavor to establish the existence of a factual dispute, the opposing party need not establish a material issue of fact conclusively in its favor. It is sufficient that "the claimed factual dispute be shown to require a jury or judge to resolve the parties' differing versions of the truth at trial." T.W. Elec. Serv., 809 F.2d at 630. Thus, the "purpose of summary judgment is to 'pierce the pleadings and to assess the proof in order to see whether there is a genuine need for trial.'" Matsushita, 475 U.S. at 587 (quoting Fed. R. Civ. P. 56(e), Advisory Committee's note on 1963 amendments).
In resolving the summary judgment motion, the court examines the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any. Fed. R. Civ. P. 56(c). The evidence of the opposing party is to be believed. Anderson, 477 U.S. at 255. All reasonable inferences that may be drawn from the facts placed before the court must be drawn in favor of the opposing party. Matsushita, 475 U.S. at 587. Nevertheless, inferences are not drawn out of the air, and it is the opposing party's obligation to produce a factual predicate from which the inference may be drawn. Richards v. Nielsen Freight Lines, 602 F. Supp. 1224, 1244-45 (E.D. Cal. 1985), aff'd, 810 F.2d 898, 902 (9th Cir. 1987). Finally, to demonstrate a genuine issue, the opposing party "must do more than simply show that there is some metaphysical doubt as to the material facts . . . Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no 'genuine issue for trial.'" Matsushita, 475 U.S. at 586 (citation omitted).
On February 12, 2010, the court advised plaintiff of the requirements for opposing a motion pursuant to Rule 56 of the Federal Rules of Civil Procedure. (Dkt. No. 30.) See Rand v. Rowland, 154 F.3d 952, 957 (9th Cir. 1998) (en banc), cert. denied, 527 U.S. 1035 (1999), and Klingele v. Eikenberry, 849 F.2d 409, 411-12 (9th Cir. 1988).
V. Undisputed and Disputed Facts
The following facts are deemed undisputed for purposes of the pending motion:
1. Plaintiff, James Daniel Alexander, was received into CDCR's custody on June 13, 1993. He was released on parole on August 11, 1994, but was returned to state prison on March 12, 1996, for a term of thirty years to life under California's "Three Strikes" law. (Dfs. Ex. A.)
2. Defendants Barron and Wedemeyer were each employed as a correctional officer at HDSP, on May 13, 2008. (Dfs. Ex. E.)
3. Defendants Woodford and Dovey are each former CDCR administrators, who retired from CDCR before the challenged incident, on May 13, 2008, and hence before plaintiff's initiation of this action, on November 19, 2008. (Dfs. Ex. B.)
The parties dispute the following matter, viz., whether defendants Barron and
Wedemeyer confiscated plaintiff's magazines on May 13, 2008:
1. Plaintiff states, "I specifically remember when Defendants Barron and Wedemeyer confiscated three of my adult, mens magazines on May 13, 2008, at High Desert State Prison." (Pl. Ex. D, ¶ 10.)
2. Defendants Barron and Wedemeyer each responded to plaintiff's discovery requests that neither has a "present recollection of confiscating Plaintiff's magazines." (Dfs. Ex. E.)
VI. Evidentiary Challenge
Defendants object to that portion of plaintiff's declaration that summarizes his discussions with other inmates, and was submitted as evidence in support of plaintiff's factual arguments. (See Plaintiff's Decl. (Pl. Ex. D, ¶¶ 5-7) (Dkt. No. 97 at 45-46).)*fn1 Defendants are correct that these statements are "inadmissible hearsay" (Dkt. No. 102 at 24),*fn2 by application of Federal Rule of Evidence 801.*fn3 Accordingly, the court strikes paragraphs 5 through 7 of plaintiff's declaration; the court does not consider these alleged facts, either as presented in plaintiff's declaration, or in his opposition.
VII. The Challenged Regulation
Section 3006(c)(17), title 15, California Code of Regulations, prohibits California inmates from possessing non-obscene, "sexually explicit material,"*fn4 defined in pertinent part to depict "the frontal nudity of either gender, including the exposed female breast(s) and/or the genitalia of either gender." 15 C.C.R. § 3006(c)(17)(A). Exceptions are made for "educational, medical/ scientific, or artistic materials," that are "[d]epartmentally purchased or acquired," or "purchased or possessed by inmates and approved by the institution head or their designee on a case-by-case basis." Id., § Section 3006(c)(17)(B). The regulation provides in full:
Section 3006. Contraband. Inmates may possess only the personal property, materials, supplies, items, commodities and substances, up to the maximum amount, received or obtained from authorized sources, as permitted in these regulations. Possession of contraband as defined in section 3000 may result in disciplinary action and confiscation of the contraband. . . . (c) Except as authorized by the institution head, inmates shall not possess or have under their control any matter which contains or concerns any of the following: . . . (17) Sexually explicit images that depict frontal nudity in the form of personal photographs, drawings, magazines, or other pictorial format.
(A) Sexually explicit material shall be defined as material that shows the frontal nudity of either gender, including the exposed female breast(s) and/or the genitalia of either gender.
(B) The following sexually explicit material shall be allowed:
1. Departmentally purchased or acquired educational, medical/scientific, or artistic materials, such as books or guides purchased by the department for inclusion in institution libraries and/or educational areas; or
2. Educational, medical/scientific, or artistic materials, including, but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic, or artistic reference material depicting historical, modern, and/or post modern era art, purchased or possessed by inmates and approved by the institution head or their designee on a case-by-case basis.
Section 3006(c)(17), was adopted as an emergency regulation on September 30, 2002, by former CDCR Director Edward S. Alamedia. (Dfs. Exs. C, D.) Pursuant to the adoption process, CDCR gave notice to inmates of the proposed regulation, and an opportunity to comment. (Dfs. Ex. D.) CDCR received, and responded to, numerous inmate comments before adopting Section 3006(c)(17). (Id.) CDCR published the following reasons for enacting the regulation:
This regulation will aid in the legitimate penological interests of maintaining the safety and security of the prisons, rehabilitating inmates, reducing sexual harassment of correctional officers and preventing a hostile work environment. Sexually explicit materials, within the institutions, have contributed to an increase of verbal assaults and have lead to the intimidation of female correctional staff when attempting to perform cell searches. Inmates subject female correctional staff to a daily barrage of unwarranted sexual advances, thus causing an uncomfortable working environment and continued confrontation with inmates. Additionally, unrestricted access to sexually explicit material could lead to bartering between inmates and anatomical comparisons could lead to fights between inmates thereby jeopardizing the safety of prison staff and other inmates.
. . . The Department contends that prohibiting sexually explicit materials that show frontal nudity is aimed at the legitimate interest of maintaining prison security, rehabilitating inmates, and reducing sexual harassment. The Department also contends that reducing violence and aggression toward female staff, and protecting the safety of departmental staff at the institutions, in general, is a legitimate interest, and that reducing sexual harassment and not allowed a hostile work environment in particular, likewise is legitimate.
The Department contends that inmates retain alternative means of exercising their constitutional right to receive sexually explicit communications, since these regulations do not prohibit sexually explicit letters nor does it prohibit sexually explicit articles or photographs of clothed persons. (Dfs. Ex. D (Dkt. No. 95-4 at 7-8) ("Background Material," dated Sept. 30, 2002, filed in support of § 3006(c)(17), prepared ...