257 F. Supp. 3d 746
W.D. Va.2017Background
- VDOC revised OP 803.2 (2015) to bar inmate receipt/possession of publications that contain nudity (defined objectively) or that "emphasize" explicit/graphic sexual acts; medical/educational/anthropological nudity excepted.
- Implementation: facility review, PRC review, appeal process; phased roll‑out culminating in October 1, 2015, when nudity publications became contraband.
- Fauconier, a pro se prisoner, sued under 42 U.S.C. § 1983 claiming OP 803.2 violates his First and Fourteenth Amendment rights by confiscating six Playboy issues and initially denying an October 2015 Esquire issue (later granted on appeal).
- Defendants (VDOC officials) justify the ban as reasonably related to legitimate penological interests: security, reducing inmate conflict/bartering, rehabilitation, and preventing harassment of female staff; they considered the issue for ~7 years.
- District court considered Turner factors, found ample procedural safeguards (PRC, appeal, objective nudity definition), and granted defendants summary judgment; monetary claims denied on qualified immunity grounds because no constitutional violation was shown.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether OP 803.2 is invalid under the First Amendment as facially overbroad | OP 803.2 sweeps in protected non‑obscene sexual expression by banning all nudity | Regulation targets pictorial nudity to further security/rehabilitation, leaves alternative access to non‑pictorial sexual content | Regulation not facially overbroad; survives Turner review and is reasonably related to penological interests |
| Whether OP 803.2 is unconstitutional as applied to Fauconier (Playboy/Esquire) | Application improperly denied Playboy and inconsistently applied to Esquire cartoon | PRC review and supervisory discretion produced permissible, facility‑specific results; Esquire later allowed on appeal | As‑applied challenge fails; denying Playboy and later allowing Esquire does not demonstrate unconstitutional application |
| Whether OP 803.2 is void for vagueness / permits arbitrary enforcement (Fourteenth Amendment) | Terms like "emphasizes" are vague and allow arbitrary decisions | Policy gives objective nudity definition, examples, PRC neutral review and appeal process provide guidance | Regulation provides adequate notice and enforcement guidance; not impermissibly vague facially or as‑applied |
| Whether defendants are entitled to qualified immunity for monetary damages | N/A (Fauconier seeks damages) | Officials argue no clearly established constitutional violation occurred | Qualified immunity applies because plaintiff failed to show a constitutional violation |
Key Cases Cited
- Pell v. Procunier, 417 U.S. 817 (1974) (prisoners retain First Amendment rights subject to penological constraints)
- Turner v. Safley, 482 U.S. 78 (1987) (four‑factor test for reasonableness of prison regulations affecting constitutional rights)
- Thornburgh v. Abbott, 490 U.S. 401 (1989) (deference to prison administrators and content‑neutral restrictions aimed at security)
- Overton v. Bazzetta, 539 U.S. 126 (2003) (prison regulation validity and burden on prisoner to disprove reasonableness)
- Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998) (upholding ban on commercial pictorial nudity under rehabilitative/security rationales)
- Mauro v. Arpaio, 188 F.3d 1054 (9th Cir. 1999) (upholding prohibition on pictorial nudity as related to institutional safety and staff protection)