The opinion of the court was delivered by: Richard W. Roberts United States District Judge
This matter is before the Court on defendants' Motion to Dismiss or, in the Alternative, to Transfer. For the reasons stated below, the Court will dismiss some claims and transfer the remaining claims to the United States District Court for the District of Minnesota.
At all times relevant to the complaint, plaintiff was incarcerated at the Federal Correctional Institution in Waseca, Minnesota ("FCI Waseca") and defendant Carol Holinka ("Holinka") was its Warden.*fn1
A. July 2006 Issue of American Curves
Bureau of Prisons ("BOP") Program Statement 5266.10, Incoming Publications (1/10/2003), permits a warden to block certain material from being delivered to an inmate. It provides:
The Warden may reject a publication only if it is determined detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity. The Warden may not reject a publication solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant. Publications which may be rejected by a Warden include but are not limited to publications which [include] sexually explicit material which by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity.
Id., Sec. 6.b.(7). Only the Warden or Acting Warden may reject an incoming publication. Id. If the Warden rejects a publication, she "shall promptly advise the inmate in writing of the decision and the reasons for it [and] [t]he notice must contain reference to the specific article(s) or material(s) considered objectionable." Id., Sec. 6.d. In addition, BOP is subject to the Ensign Amendment, which provides:
None of the funds made available . . . to the Federal Bureau of Prisons may be used to distribute or make available any commercially published information or material to a prisoner when it is made known to the Federal Official having authority to obligate or expend such funds that such information or material is sexually explicit or features nudity.
Id., Sec. 7 (emphasis added).*fn2 In this circumstance, either the Warden or designated Mail Room staff "shall return the information or material to the publisher or sender." Id., Sec. 7.a. The inmate to whom the material is sent is "notified via use of the Notification to Inmate of Return of Publication or Materials." Id., Sec. 7.a.(8). The material is returned to the publisher, and the inmate may not review the material even for the purpose of filing an inmate grievance. See id., Sec. 7.a.(7), (9). For purposes of the Ensign Amendment, the term "nudity" means "a pictorial depiction where genitalia or female breasts are exposed." Id., Sec. 7.b.(2). Information or material "features" nudity if it: contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues. Publications containing nudity illustrative of medical, educational, or anthropological content may be excluded from this definition.
Id., Sec. 7.b.(3).*fn3 "Sports magazine swimsuit issues" are "examples of commercial publications which . . . may be distributed to inmates even though they may contain nudity because the publication[s] do not feature nudity." Id., Sec. 7.b.(3). (emphasis in original). However, "[a]ny publication may change a single issue . . . at any time which would allow it to become . . . non-acceptable for distribution." Id.
On or about June 27, 2006, plaintiff received a notice that his July 2006 issue of American Curves magazine was rejected and returned to the publisher on the ground that the BOP cannot use appropriated funds to distribute a magazine which features nudity. See Complaint ("Compl.") ¶¶ 4-6 & Ex. A (Notification to Inmate of Return of Publication or Materials) (exhibit designation by the Court).*fn4 Plaintiff promptly availed himself of the Administrative Remedy Program by filing a grievance to "appeal the rejection of [the] July 2006 issue of American Curves." Id., Ex. B (Informal Resolution Attempt). His request was denied at each stage. See id.¶¶ 22-25 & Ex. D (Warden Holinka's September 15, 2006 Administrative Remedy Response), Ex. F (October 27, 2006 Response to Regional Administrative Remedy Appeal) & Ex. H (January 27, 2007 Response by the Administrator of National Inmate Appeals).
According to plaintiff, the July 2006 issue of American Curves "is a sports magazine swimsuit issue," Compl. ¶ 13, which "does not contain depictions of nudity or sexually explicit conduct on a routine or regular basis." Id. ¶ 11. He asserts that American Curves does not "feature nudity" as these terms are defined in Program Statement 5266.10, such that defendants "acted with malice or reckless disregard for Plaintiff Ballard's First Amendment rights" in rejecting the July 2006 issue. Id. ¶ 36. In the alternative, plaintiff asserts that Program Statement 5266.10 is void for vagueness because it does not define the phrase "routine or regular basis."
B. Limits on the Purchase ...