Prisoner’s Right to Receive Magazine Subscription

Plaintiff, a prisoner at a state correctional facility, filed a pro se civil rights action pursuant to 42 U.S.C. §1983 alleging that the defendants, employees of the institution, violated his constitutional rights by refusing to permit plaintiff to receive four issues of his subscription to Penthouse magazine. Defendants moved for summary judgment based on their qualified immunity.

The court noted that in order to defeat the defendants' qualified immunity, the plaintiff must plead facts which, if true, describe a violation of a clearly established statutory or constitutional right of which a reasonable public official, under an objective standard, would have known. Without such facts, the plaintiffs cannot even proceed with discovery. The court found that the governmental objective underlying the regulation at issue was legitimate, neutral and that the regulation was reasonably related to a legitimate penological interest. Here the policy at issue stated that prisoners would not be allowed to receive "publications . . . considered to be a threat to the order and security of an institution or to the rehabilitation of prisoners," including "materials describing or showing acts of homosexuality, sadism, masochism, bestiality . . . or any other unlawful sexual behavior." The court concluded that the policy was legitimate because it furthered the important governmental interest of maintaining prison security; that the policy was neutral because the regulations at issue permitted a broad range of publications to be sent, received and read; and finally, that the impact of the policy was limited to those publications found potentially detrimental to order and security. The court held that the policy was not an "exaggerated response to prison conditions." Further, the specific publications excluded here contained depictions of sodomy and bondage, the exclusion of which was rationally related to the asserted penological interest and the order and security of the institution. Finally, the individual plaintiffs were granted summary judgment on claims attempting to hold them personally liable as they were shielded from liability for civil damages in so far as their conduct did not violate clearly established statutory or constitutional rights of which a reasonable person would have known. Since plaintiff did not show that he has a clearly established right to receive publications that depict sodomy and bondage, plaintiff failed to create a genuine issue of material fact and defendants were entitled to summary judgment.

Galen E. Haye v. Kenneth L. McGinnis, et al., Case No. 97-CV-75391, 4/29/98, Taylor, Anna Diggs.
This article was prepared by William F. Frey, a partner in our Litigation Department, and previously appeared in the August, 1998 edition of the Michigan Bar Journal.