Dubarry v. Capra

Background

Darius Dubarry, Harry Rivera, and Jayquan Griffin, proceeding without lawyers, sued Anthony Annucci, Jeff McKoy, Michael Capra, Leslie Malin, Stephen Brandow, JPay, Inc., and unidentified reviewing officials. The plaintiffs brought claims under 42 U.S.C. § 1983, a federal statute allowing suits for constitutional violations committed under state law. They alleged that prison officials and JPay implemented or enforced a policy denying incarcerated people nude photographs and videos sent through secure tablet devices.

The plaintiffs alleged that various senders attempted to send them photographs and short videos between December 2019 and April 2021. Reviewing officers rejected the materials. After the plaintiffs filed grievances, prison officials explained that nude photographs threatened prison safety, security, and order. The plaintiffs claimed that the policy violated the First Amendment’s free-speech protections, the Fourteenth Amendment’s equal-protection protections, and the constitutional rule against vague laws or policies. They sought damages and an injunction.

The defendants filed separate motions to dismiss under Federal Rule of Civil Procedure 12(b)(6). A Rule 12(b)(6) motion tests whether a complaint alleges enough facts to state a legally plausible claim. The court considered the complaint, documents incorporated into it, and materials the plaintiffs submitted consistently with their allegations.

First Amendment Claim

The court dismissed the free-speech claim. Applying the standards used for prison regulations that restrict constitutional rights, the court relied on Second Circuit decisions upholding bans on nude or semi-nude photographs and sexually explicit materials in correctional facilities. Those decisions recognized prison safety, security, order, and the risk of violence as legitimate reasons for such restrictions.

The court found that the policy at issue was materially the same as the policy upheld in an earlier Second Circuit decision and similar to another policy upheld more recently. The court rejected the plaintiffs’ argument that secure, password-protected tablets removed the security concern, reasoning that materials could still be voluntarily shared among incarcerated people. It also rejected the argument that the different policy considered in the later decision made that decision irrelevant.

Equal-Protection Claim

The court dismissed the equal-protection claim. To state that type of claim, a plaintiff generally must allege different treatment from similarly situated people and an improper basis for the difference. The plaintiffs did not allege that they were treated differently from similarly situated incarcerated people or that they had a characteristic that led to different treatment. The court also noted that incarcerated people are not a protected class for equal-protection purposes and that the policy was alleged to apply generally.

Vagueness Claim

The plaintiffs described their vagueness challenge as arising under the First Amendment, but the court treated it as a due-process claim under the Fourteenth Amendment. A policy is unconstitutionally vague when ordinary people cannot reasonably understand what it prohibits or when it encourages arbitrary enforcement.

The court dismissed this claim because the plaintiffs did not identify specific policy language that lacked adequate clarity or encouraged arbitrary enforcement. The court also relied on the Second Circuit’s conclusion that an identical policy was understandable to a person of ordinary intelligence.

JPay and Other Arguments

The court additionally agreed with JPay that it was not a state actor for purposes of § 1983 liability. Although JPay contracted with the Department of Corrections and Community Supervision to provide media services, the court concluded that providing those services was comparable to providing telephone services and was not a function traditionally performed exclusively by the government.

Because the court concluded that the complaint failed to state the constitutional claims, it did not need to decide the defendants’ other arguments, including personal involvement and qualified immunity. It also rejected the plaintiffs’ argument that earlier preliminary screening prevented later dismissal motions.

Disposition

Judge Kenneth M. Karas granted the motions to dismiss. The dismissal was without prejudice because this was the first adjudication of the claims on their merits. The court allowed the plaintiffs 30 days to file an amended complaint containing all claims and factual allegations they wanted considered. The court stated that failure to meet the deadline could result in dismissal with prejudice. The court reserved judgment on any new due-process claim the plaintiffs might plead and expressed skepticism that such a claim could succeed based solely on denial of nude photographs and videos.