Dustin Trowbridge v. Indiana Department of Correcti ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted July 26, 2021*
Decided July 27, 2021
Before
MICHAEL S. KANNE, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
AMY J. ST. EVE, Circuit Judge
No. 20-3314
DUSTIN TROWBRIDGE, Appeal from the United States District
Plaintiff-Appellant, Court for the Southern District of Indiana,
Terre Haute Division.
v. No. 2:19-cv-00014-JMS-MJD
INDIANA DEPARTMENT OF Jane Magnus-Stinson,
CORRECTION, et al., Judge.
Defendants-Appellees.
ORDER
The Indiana Department of Correction bars prisoners from possessing most
materials depicting nudity. Dustin Trowbridge, a Wabash Valley inmate whose fiancée
sent him an intimate photo intercepted by prison staff, challenged this policy under the
First Amendment. He lost at summary judgment. Because a reasonable factfinder could
not deem the policy irrational on this record, we affirm.
*
We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-3314 Page 2
Trowbridge’s fiancée emailed him a photo of her pubic area in partly see-
through underwear. But Department policy restricts prisoners from possessing, among
other things, “personal photographs” of exposed “genitalia.” IND. DEP’T OF CORR.,
MANUAL OF POL’YS & PROCS., No. 02-01-103 § (XIX)(G) (Sept. 1, 2015). Citing this policy,
a mailroom supervisor deleted the email.
After grieving this dispute administratively, Trowbridge sued the Department,
the mailroom supervisor, and several prison officials to whom he had complained
about the matter. See 42 U.S.C. § 1983. Claims for injunctive relief and damages against
some of these defendants survived screening. 28 U.S.C. § 1915A. In a scheduling order,
the district court outlined witness disclosure deadlines and explained the procedure for
moving to compel discovery responses. See FED. R. CIV. P. 37(a)(1).
In written discovery requests, Trowbridge sought (among other things) data
about rates of violence and harassment in Indiana prisons before and after the policy
was enacted. Further, Trowbridge asked for the names—and motivations—of the
policy’s drafters, plus a description of the manner in which policies are reviewed and
renewed. Yet the defendants asserted that this information was mostly unavailable or
would be unduly burdensome to gather. The policy was “reviewed annually and
updated if necessary,” they conceded, though they provided no details.
One of these discovery responses was signed by Andy Dunigan, the
Department’s Director of Policy and Accreditation. Although Dunigan was not
previously listed in the defendants’ initial disclosures, the disclosures contained a catch-
all statement that potential witnesses included “[i]ndividuals listed or identified in any
discovery responses.” Trowbridge did not move to compel further responses.
At the close of discovery, the defendants moved for summary judgment, arguing
that the policy was rationally related to a legitimate interest in protecting staff from
sexual harassment by inmates. In support they cited a declaration by Dunigan, who
explained that “inmate access to materials depicting nudity would create a hostile work
environment for female custody and administrative staff”; further, he said, female staff
at Indiana prisons “are more often objectified and harassed by the inmate population
when inmates are allowed to possess printed materials depicting nudity.”
Trowbridge countered with two scholarly articles that, he says, undermine this
rationale. Both are cited in our opinion in Payton v. Cannon, 806 F.3d 1109, 1110 (7th Cir.
2015), where we upheld a similar policy from Illinois. The first article voices doubts
about some traditional rationales for explicit-photo bans, such as fostering prisoner
No. 20-3314 Page 3
rehabilitation. Corey D. Burton & Richard Tewksbury, Policies on Sexually Explicit
Materials in State Prisons, 24(2) CRIM. J. POL’Y REV. 222 (2011). The authors characterize
the data as “mixed” and concede that officials “may still have a legitimate penological
interest” in these regulations. Id. at 222, 230. The second article denies a causal link
between pornography and violent crime in society. Christopher J. Ferguson & Richard
D. Hartley, The Pleasure is Momentary … the Expense Damnable? The Influence of
Pornography on Rape and Sexual Assault, 14 AGGRESSION & VIOLENT BEHAV. 323 (2009).
In his response, Trowbridge also sought to strike Dunigan’s declaration because
Dunigan was not named in the initial witness disclosures. But, though Trowbridge
criticized the defendants’ discovery responses, he did not ask to reopen discovery or
defer ruling on summary judgment. See FED. R. CIV. P. 56(d).
The district court entered summary judgment for the defendants, albeit without
addressing Trowbridge’s request to strike Dunigan’s declaration. Instead, relying on
that declaration and our decision in Payton, the court found no material factual dispute
about the policy’s rational link to legitimate interests. Further, Trowbridge and his
fiancée still could communicate intimate thoughts through written text. IND. DEP’T OF
CORR., MANUAL OF POL’YS & PROCS., No. 02-01-103 § (XIX)(H) (exempting written text
from ban on explicit material); see generally Turner v. Safley, 482 U.S. 78, 89–90 (1987)
(listing factors for evaluating prison rules that impinge on constitutional rights).
On appeal, Trowbridge presses three arguments. First, he maintains that the
district court should have disregarded Dunigan’s declaration because Dunigan was not
named in the defendants’ initial disclosures. But, although the district court should
have addressed this objection when Trowbridge raised it, any error was harmless.
See FED. R. CIV. P. 37(c)(1); David v. Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003). The
defendants’ disclosures said that anyone named in discovery responses was a potential
witness. Dunigan, in turn, signed one of those discovery responses, listing his
Department title. Despite knowing this, Trowbridge sought no further discovery from
Dunigan. So, even if we assume a violation of the court’s scheduling order, there is no
reason to infer that a clearer disclosure would have yielded a different summary-
judgment record, or that the district court would have ruled to the contrary.
Second, Trowbridge contends that the scholarly articles he cited at summary
judgment create a factual dispute about the policy’s rationality. But the Burton and
Tewksbury piece does no more than explain that further research is needed to fully
understand the effects of regulations such as the one Trowbridge challenges. And it
does not address inmate harassment of staff. The Ferguson and Hartley article,
No. 20-3314 Page 4
meanwhile, contests the link between pornography and violence in society as a whole—
but this does not address the narrower problem of non-violent harassment in prisons.
And although, as Trowbridge notes, we cited these articles favorably in Payton, 806 F.3d
at 1111, we did not say they were proof of an irrational policy. (Indeed, Payton lost.)
Instead, we said they invited future social-science research. Id. These articles, on their
own, would not permit reasonable factfinders to deem the policy here irrational.
Third, Trowbridge argues that prison officials must justify their policies with
data, not broad assertions about inmate behavior. But at summary judgment we “must
distinguish between inferences related to disputed facts and those relating to disputed
matters of professional judgment.” Singer v. Raemisch, 593 F.3d 529, 534 (7th Cir. 2010)
(citing Beard v. Banks, 548 U.S. 521, 530 (2006) (plur.)). Dunigan’s statements, although
not rooted in quantitative data, reflect the kinds of professional judgment about inmate
behavior and prison safety to which federal courts routinely defer. See, e.g., Payton,
806 F.3d at 1110; Trapnell v. Riggsby, 622 F.2d 290, 293 (7th Cir. 1980); see also Giano v.
Senkowski, 54 F.3d 1050, 1054 (2d Cir. 1995) (collecting cases). The burden was “not on
the State to prove the validity of prison regulations but on [Trowbridge] to disprove it.”
Overton v. Bazzetta, 539 U.S. 126, 132 (2003). Where, as here, no reliable evidence
contradicts plausible reasons advanced by prison authorities, the defendants are
entitled to summary judgment. Payton, 806 F.3d at 1110.
AFFIRMED