United States District Court, D. Rhode Island
J. McConnell Jr. United States District Judge
Rivera brings a three-count complaint against the Defendants
in their individual capacities, each of whom is employed with
the Rhode Island Department of Corrections
("RIDOC"). He claims that, in withholding a
photograph sent to him containing nudity, the Defendants
violated his First Amendment rights (Count One), did not
follow RIDOC policy (Count Two), and defamed him (Count
Three). ECF No. 1 at 20. The Defendants moved to dismiss each
count, asserting that (1) they are entitled to qualified
immunity, (2) they did not violate department policy, and (3)
Mr. Rivera failed to plausibly allege the elements of
defamation. ECF No. 10.
One-Violation of the First Amendment
Rivera alleges that the Defendants violated his rights under
the First Amendment of the United States by withholding the
photograph containing nudity. ECF No. 1 at 20. The Defendants
in response claim qualified immunity. ECF No. 10 at 6.
principles of qualified immunity shield an officer from
personal liability when an officer reasonably believes that
his or her conduct complies with the law." Pearson
v. Callahan, 555 U.S. 223, 244 (2009). In order to
determine whether an officer qualifies for qualified
immunity, the Court must determine: (1) whether the facts
alleged show that the officer violated a constitutional
right; and (2) if so, whether that right was clearly
established at the time of the event. Ashcroft v.
al-Kidd, 563 U.S. 731, 735 (2011) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). If the right a
state actor is alleged to have violated was not clearly
established at the time of the violation, then the state
actor is entitled to qualified immunity. See Id.
Here, the Court need not reach the issue whether the First
Amendment prohibits the state from depriving an inmate of
nude photographs because it is certain that this right, if it
exists, is not clearly established in this jurisdiction. The
law here is simply not clear whether the RIDOC's policy
of prohibiting photographs with nudity is constitutional.
Because this is not clearly established, these individual
state actors are entitled to qualified immunity and Count One
must be dismissed.
Two-Violation of 'the RIDOC Policy
Rivera claims that the RIDOC violated its own policy because
it prohibited him from having a nude photograph even though
he is not a sexual offender. ECF No. 1 at 20. The relevant
RIDOC policy states:
RIDOC reserves the right to disallow personal photographs
and/or facsimiles which feature nudity as defined herein [see
item III.C.2.c.[(4)]viii NOTE]. C.2.c. (1).
contents of the material, as a whole or in part may be
prohibited if the materials:
vii. Are sexually explicit."
NOTE: 'Sexually explicit material,' means a
pictorial depiction of sexually explicit acts including
sexual intercourse, oral sex, masturbation and/or anal sex.
viii. Inmates who are serving sentences that would require
them upon release to register as 'sexual offenders'
pursuant to R.I. Gen. Laws §11* 37.1-1 et seq. and the
most recent version of RIDOC Policy 20.07 DOC, Notifying
Offenders of their Duty to Register with Law Enforcement
Agencies and Procedures for Community Notification, for
specific offenses delineated therein are also prohibited from
receiving materials that feature nudity.
NOTE: 'Nudity', means a pictorial depiction
where male or female genitalia or buttocks and/or female
breasts are exposed; 'features' means that the item
contains depictions of nudity or sexually explicit conduct on
a routine basis or promotes itself based upon ...