United States District Court, D. Nebraska
CHRISTOPHER M. PAYNE, Plaintiff,
FRED BRITTEN, CHRISTOPHER CONNELLY, MICHELLE HILLMAN, LEE TINKLER, MAILROOM PERSON 1, MAILROOM PERSON 2, ET. AL., BENNY NOORDHOEK, CARINA MCROBERTS, and J KUNZMAN, Defendants.
MEMORANDUM AND ORDER
Richard G. Kopf, Senior United States District Judge
Without repeating the complex procedural history of this four-year-old case, the issue before me is whether the defendant prison employees, in their individual capacities,  are entitled to qualified immunity as to plaintiff-inmate Christopher Payne’s First and Fourth Amendment claims that the defendants withheld 14 pieces of his incoming and outgoing mail for an extended period of time without justification-four of which they still hold and do not intend to return to Payne.
I. UNDISPUTED MATERIAL FACTS
1. At all relevant times, Payne was an inmate at Tecumseh State Correctional Institution (“TSCI”) in Nebraska, where Payne was and is serving sentences for two convictions of first-degree sexual assault of a child. The defendants were all employed at TSCI: Fred Britten was employed as the Warden; Christopher Connelly was a Captain; Michelle Hillman was the Associate Warden; Lee Tinkler was a Canine Corporal; Benny Noordhoek was an Investigations Officer; Carina McRoberts was a Corporal; and J. Kunzman was a mailroom employee.
2. On October 13, 2010, Payne received notices that pieces of his incoming and outgoing mail had been withheld pending a criminal investigation, and sometime that month, Payne was notified that his mail had been withheld and monitored in conjunction with a Federal Bureau of Investigation (“FBI”) investigation regarding child enticement. During the time the defendants thought the FBI investigation was open, Nebraska Department of Correctional Services (“NDCS”) staff forwarded Payne’s mail to the local FBI office.
3. In addition to the mail that was withheld on October 13, 2010, several subsequent pieces of Payne’s mail were withheld pending the criminal investigation. Court’s Exhibit #1 from the September 11, 2015, hearing on the defendants’ motion for summary judgment (Filing 132) contains the 14 pieces of mail that are at issue in this case.
4. At all relevant times, Payne was the subject of “institutional mail monitoring.” Inspection of Payne’s mail was intended to identify information which potentially threatened the safety, security, and good order of TSCI because prison officials were concerned that Payne’s incoming and outgoing correspondence contained information regarding possible sexual assaults against minors and that Payne was attempting to contact his victims. As a result of NDCS’s mail monitoring, defendant Christopher Connelly, the Investigative Captain at TSCI, believed that:
Evidence from the mail monitoring indicates Payne is engaging in potential criminal activities inside the facility, to wit: Payne has been running or attempting to run a book making business. Payne is attempting to get people to write sexually erotic stories involving young children. Payne is trying to collect pictures from the internet of prepubescent boys dressed in leotards, swim suits, underwear, etc. to try to put together books to sell to other pedophiles in and out of prison.
Evidence from the mail monitoring further indicates Payne is attempting to set up a pedophile network to share stores, pictures, etc., and is still trying to entice young boys on the internet. Among other things, Payne’s incoming and outgoing correspondence contained information regarding possible sexual assaults against minors and also attempts by Payne to make contact with prior victims.
As a result of my investigation, it is my opinion that Payne is a still a danger to children. Payne may not be able to touch them while incarcerated, but he is still trying to entice children. It is apparent from the evidence that Payne is attempting to enter a network of other pedophiles and possibly even assist pedophiles on the outside meet up with potential victims.
(Filing 62-1, Decl. Christopher Connelly ¶¶ 12, 13, 16 (paragraph numbering deleted); see also Filing 68 (Sealed), Memorandum from Connelly (communicating belief that mail referenced Payne’s victims); Filing 63-1, Decl. Jerry Bell (stating that FBI Special Agent Bell was asked to review Payne’s mail items because NDCS suspected the mail “might represent evidence of a violation of federal criminal law relating to child pornography”).)
5. Payne has filed an affidavit denying that he is attempting to run a book-making business, collecting photographs to sell to others, attempting to set up a pedophile network, assisting others in meeting potential victims, or attempting to contact children or his victims. (Filing 78 at CM/ECF pp. 3-5.) Payne also states that since he has arrived at TSCI, defendant Britten “has reviewed and authroized [sic] my receipt and possession of a large quantity of photographs of males of all agesin [sic] swimsuits and leotards.” (Filing 91-1 at CM/ECF p. 2.) Further, Payne has filed an a December 14, 2011, Inmate Interview Request form to which TSCI’s reply was, “the mailroom staff have been reminded of the guidelines that photos are reviewed by. Males in acceptable swim suits will be allowed in the future.” (Filing 91-1 at CM/ECF p. 5.)
6. While evidence on file indicates that the FBI elected not to open an investigation in early 2011, the parties agree that from early 2011 to October 2014, none of the defendants knew that the FBI had declined to open an investigation of Payne. (Filing 148, Restricted Audio File of Oral Arg. on Mot. Summ. J., at 19:53, 29:19-32:36; Filing 63-1, Decl. Jerry Bell.) However, Payne filed this lawsuit on February 2, 2011-four months after the mail monitoring began-which, according to Defendants, “dictated . . . continued retention” of the letters, so Defendants “retained [the letters] pending resolution of this lawsuit.” (Filing 133, Defs.’ Br. Supp. Mot. Summ. J. at CM/ECF p. 18 n.2.)
7. Unless a victim requests to speak with an inmate, official NDCS policy precludes inmates from contacting their victims. (Filing 135-3, Administrative Regulation 005.03, Section II(G).)
8. NDCS Operational Memorandum 205.01.01 for TSCI directs staff to search inmates’ mail for-and to withhold mail that contains-“contraband, ” which includes “[m]aterials that advocate or are likely to incite . . . illegal activity, including materials that advocate or depict . . . illegal sexual activity” and “[a]ny other printed, published or photographed materials that are deemed by the Warden to constitute a threat to the safety, security, or good order of the facility.” NDCS’s definition of “contraband” also includes “any other items which in the opinion of the Warden constitute a threat to the security, safety or good order of the institution.” (Filing 135-4, Mail Room Procedures, at CM/ECF pp. 2-4 (emphasis added); Filing 135-7, NDCS Administrative Regulation 204.01, Inmate Property Control, at CM/ECF pp. 7-8 (repeating definitions of “contraband”).)
9. NDCS Administrative Regulation 205.01 provides that “[c]ontraband which is removed from incoming inmate mail which is not returned to the sender may be turned over to law enforcement authorities for possible prosecution. Contraband not returned to the sender or given to law enforcement will be disposed of according to facility procedures.” (Filing 135-8, Inmate Mail, at CM/ECF p. 6.)
10. Title 68 of the Nebraska Administrative Code states that “[a]n inmate’s access to the mail will be limited only if the access constitutes a violation of state law, federal law, regulations governing mail or threatens the security, safety or good order of the facility.” These regulations repeat that “contraband” includes “[a]ny item that would constitute a threat to the safety, security or good order of the facility, ” “[a]ny publication . . . that advocates or is likely to incite . . . illegal activity, including materials which advocate or depict . . . illegal sexual activity, ” and “[a]ny other printed, published . . . or photographed material that the Warden ...