MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The plaintiff, Edward G. Wright, an inmate at the Souza-Baranowski Correctional Center (SBCC), filed an action in the Superior Court against the Department of Correction (DOC) and five individual correction officers (collectively, defendants). The plaintiff challenged the constitutionality of the DOCs inmate mail regulations, 103 Code Mass. Regs. § 481.13(2)(g) (2017), as unconstitutionally vague, and alleged violations of his rights under 42 U.S.C. § 1983. A Superior Court judge allowed the defendants’ motion to dismiss the vagueness challenge and subsequently allowed the defendants’ cross motion for summary judgment on the § 1983 claims. Judgment then entered dismissing the complaint. We affirm.
Background. While processing mail in the SBCC mailroom on February 22, 2019, Correction Officer Roberto Baez (Officer Baez) screened a correspondence addressed to Wright. The correspondence contained sixty-nine photographs, twenty-seven of which Officer Baez identified as sexually explicit or containing nudity. Pursuant to SBCC practice, Officer Baez forwarded the photographs to SBCC Deputy Superintendent of Operations, Christopher Phelps (Deputy Superintendent Phelps), by way of Captain Joseph Prato (Captain Prato). Deputy Superintendent Phelps reviewed each of the twenty-seven photographs and determined that all twenty-seven were contraband because they contained “sexually explicit and nude” material. The photographs were returned to the mailroom, where Officer Baez completed a “Disapproved Correspondence/Publication and Contraband Notice to Inmate” (first contraband notice). Officer Baez checked a box on the first contraband notice indicating that the photographs were withheld because they “f[e]ll as a whole or in significant part into” the category of “[s]exually explicit material or material that features nudity.”
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While processing mail in the SBCC mailroom on March 7, 2019, Correction Officer Thomas Lynch (Officer Lynch) received a second correspondence addressed to Wright containing the same sixty-nine photographs. Officer Lynch flagged twenty-four of the photographs as contraband because they depicted “nudity or sexually explicit material.” The photographs were again sent to Deputy Superintendent Phelps who determined that the twenty-four photographs flagged by Officer Lynch were contraband.
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Officer Lynch completed a second contraband notice, checking the box indicating that the photographs were contraband because they contained “[s]exually explicit material or material that features nudity.”
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After the plaintiffs administrative appeal was denied, he brought the present action in the Superior Court. The plaintiff sought declaratory and injunctive relief arguing that DOCs inmate mail regulation, 103 Code Mass. Regs. § 481.13(2)(g), is unconstitutionally vague, and alleging violations of his rights under 42 U.S.C. § 1983. The defendants’ motion to dismiss was allowed in part, dismissing the vagueness challenge, and following a hearing on cross motions for summary judgment, judgment entered for the defendants on the § 1983 claims. The plaintiff appeals therefrom.
Discussion. 1. Vagueness. The plaintiff challenges the inmate mail regulations as unconstitutionally vague insofar as they encompass photographs depicting partial but not complete nudity.
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He contends that the “definition of the term ‘nudity’ is unconstitutionally vague and over broad where it fails to give notice with specificity [of] the norm for nudity.” This argument is unavailing.
“A law is void for vagueness if persons ‘of common intelligence must necessarily guess at its meaning and differ as to its application’ ” (citation omitted). Caswell v. Licensing Commn for Brockton, 387 Mass. 864, 873 (1983). In short, “[a] vague rule subjects people to an unascertainable standard.” Brookline v. Commissioner of Dept of Envtl. Quality Engg, 387 Mass. 372, 378 (1982), S.C., 398 Mass. 404 (1986). However, “the practical necessities of discharging the business of government inevitably limit the specificity with which [a regulatory agency] can spell out prohibitions.” Id., quoting Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, 340 (1952). See Burnham v. Board of Appeals of Gloucester, 333 Mass. 114, 118 (1955) (“The degree of certainty with which standards for the exercise of discretion are set up must necessarily depend on the subject matter and the circumstances”). This flexibility is at its zenith in the context of regulations governing the internal security of prisons, where we give significant deference to the decisions of prison administrators. See LaChance v. Commissioner of Correction, 463 Mass. 767, 776 (2012), S.C., 475 Mass. 757 (2016) (“We have long recognized that, owing to difficulties inherent in prison management, prison administrators enjoy ‘broad discretion in the administration of prison affairs’ ” [citation omitted]); Libby v. Commissioner of Correction, 385 Mass. 421, 433 (1982) (“The adoption of measures designed to preserve a prisons internal security is a matter ‘normally left to the discretion of prison administrators’ ” [citation omitted]). See also Massachusetts Prisoners Assn Political Action Comm. v. Acting Governor, 435 Mass. 811, 819 (2002) (Massachusetts Prisoners Assn), quoting Turner v. Safley, 482 U.S. 78, 89 (1987) (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests”).
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“Thus, a policy authorizing censorship of inmate mail does not run afoul of the First Amendment so long as it is ‘reasonably related to legitimate penological interests.’ ”
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Commonwealth v. Ecker, 92 Mass. App. Ct. 216, 220 (2017), quoting Commonwealth v. Jessup, 471 Mass. 121, 130-131 (2015).
DOCs inmate mail regulation allows for the withholding of incoming correspondences which contain pictures featuring, inter alia, nudity. Title 103 Code Mass. Regs. § 481.13(2) provides that “[t]he Deputy Superintendent or his or her designee may disapprove receipt by an inmate of non-privileged correspondence, the contents of which fall as a whole or in significant part into” the category of “sexually explicit pictorial material or material which features nudity which, by its nature or content, poses a threat to the security, good order, or discipline of the institution.” The regulation defines nudity as “[a] pictorial depiction where genitalia, buttocks or female breasts are exposed.” 103 Code Mass. Regs. § 481.05 (2017). “Nude” is generally defined as “devoid of some natural, conventional, or customary covering, furnishing, or adornment,” or “devoid of clothing.” Websters Third New International Dictionary 1548 (2002).
Here, the photographs in question depict a woman in partial states of undress. While the woman is not completely nude, her breasts are exposed but for heart-shaped pasties that cover her areolas, and she is wearing revealing panties that cover just the crack of her buttocks. The plaintiff argues that the regulation is unconstitutionally vague as applied to photographs where the subjects “intimate female body parts” are covered. We disagree. The coverings in question leave the vast majority of the womans breasts and buttocks exposed and are not the “conventional” or “customary” coverings for those body parts. Neither 103 Code Mass. Regs. § 481.13(2) nor § 481.05 limit the definition of nudity to total or complete nudity. Thus, 103 Code Mass. Regs. § 481.13(2)(g) is not unconstitutionally vague because it sufficiently warns that prison administrators may withhold photographs depicting exposed breast or buttocks without requiring the complete exposure of those body parts. See Boyce Motor Lines, Inc., 342 U.S. at 340 (it is fair “to require that one who deliberately goes perilously close to an area of proscribed conduct shall take the risk that he may cross the line”). See also LaChance, 463 Mass. at 776; Massachusetts Prisoners Assn, 435 Mass. at 819-820.
The plaintiff also contends that the arbitrary and capricious application of 103 Code Mass. Regs. § 481.13(2)(g) to the instant photographs demonstrates the regulations vagueness. He asserts, inter alia, that the withholding of three photographs in the first contraband notice that were later permitted to reach him under the second contraband notice demonstrate the arbitrary application of the regulation.
“A decision is not arbitrary and capricious unless there is no ground which ‘reasonable men might deem proper’ to support it” (citation omitted). T.D.J. Dev. Corp. v. Conservation Commn of N. Andover, 36 Mass. App. Ct. 124, 128 (1994). Further, “ ‘[w]e ordinarily accord an agencys interpretation of its own regulation[s] considerable deference.’ The party challenging an agencys interpretation of its own rules has a ‘formidable burden’ of showing that the interpretation is not rational” (citations omitted). Ten Local Citizen Group v. New England Wind, LLC, 457 Mass. 222, 228 (2010). Here, the determination as to what level of nudity warranted exclusion was arguably inconsistent between the two contraband notices. Notwithstanding this purported inconsistency, having reviewed the photographs in question, neither determination fell outside the prison administrators broad discretion to decide what degree of nudity “pose[d] a threat to the security, good order, or discipline of the institution.” 103 Code Mass. Regs. § 481.13(2)(g). See Libby, 385 Mass. at 433 (“The adoption of measures designed to preserve a prisons internal security is a matter ‘normally left to the discretion of prison administrators’ ” [citation omitted]).
2. Qualified immunity. The plaintiff argues that the defendants are not immune from suit in their individual capacity under the doctrine of qualified immunity because they “intentionally mis-identified” the photographs in question in violation of his First Amendment rights. This argument is also unavailing.
The standard for qualified immunity is well settled. “[G]overnment officials performing discretionary functions, generally are shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Rodriques v. Furtado, 410 Mass. 878, 882 (1991), quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A right is clearly established if, at the time of the alleged violation, “the contours of the right allegedly violated [were] sufficiently definite so that a reasonable official would appreciate that the conduct in question was unlawful.” Longval v. Commissioner of Correction, 448 Mass. 412, 419 (2007). Thus, we must determine whether “it would be clear to a reasonable officer that his conduct was unlawful in the situation he confronted.” Id., quoting Gutierrez v. Massachusetts Bay Transp. Auth., 437 Mass. 396, 403-404 (2002).
Here, the defendant correction officers withheld the photographs pursuant to the inmate mail regulations. The summary judgment record belies the plaintiffs conclusory assertion that the defendants were driven by some ulterior, improper motive. Instead, the record indicates that the defendant correction officers reviewed the photographs to determine whether they contained nudity or sexually explicit material, as permitted under 103 Code Mass. Regs. § 481.13(2)(g).
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The plaintiff cites no authority to suggest that a reasonable officer would understand application of the inmate mail regulations to be unlawful, much less a violation of clearly established constitutional or statutory rights. To the contrary, the 103 Code Mass. Regs. § 481 ban on “the receipt, possession, and display of nearly all materials containing nude or semi-nude images or sexually explicit content” has been upheld as facially valid, and the correction officers here had no reason to believe otherwise. Moses v. Dennehy, 523 F. Supp. 2d 57, 59 (D. Mass. 2007), affd sub nom. Josselyn v. Dennehy, 333 Fed. Appx. 581 (1st Cir. 2009). Accordingly, the individual defendants are entitled to qualified immunity.
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Judgment affirmed.
FOOTNOTES
3
. The first contraband notice included a handwritten notation indicating the “Item[s] Rejected for Delivery” were “27 photos sexually explicit material.”
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. All twenty-four photographs flagged by Officer Lynch had been previously withheld under the first contraband notice. Three of the photographs withheld from the plaintiff under the first contraband notice were not flagged by Officer Lynch, were not reviewed and deemed contraband by Deputy Superintendent Phelps, and therefore were allowed to reach the plaintiff.
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. The second contraband notice included a handwritten notation indicating that the “Item[s] Rejected for Delivery” were “24 photos — nudity.”
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. The plaintiff also asserts that, under the first contraband notice, the photographs were withheld because they were “sexually explicit” and not because they contained depictions of nudity. Officer Baez, Captain Prato, and Deputy Superintendent Phelps each at different points referred to the photographs in the first contraband notice as containing “sexually explicit” material. Even accepting the plaintiffs characterization of the factual record, the terms of the first contraband notice are moot. The first contraband notice was superseded by the second contraband notice, which provided the plaintiff with three of the contested photographs and withheld the rest on alternate grounds. See Champagne v. Commissioner of Correction, 395 Mass. 382, 390 (1985). Thus, we decline to address whether it was arbitrary and capricious for DOC to withhold the photographs on the grounds that they were sexually explicit under 103 Code Mass. Regs. § 481.13(2)(g).
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. Much of the case law relied on by the plaintiff involves definitions of nudity in criminal statutes subject to the rule of lenity. See, e.g., Commonwealth v. Robertson, 467 Mass. 371, 377-378 (2013). Therefore, to the extent this case law supports the plaintiffs arguments, it is not controlling in the present context.
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. The plaintiff does not argue that 103 Code Mass. Regs. § 481.13(2)(g) is not reasonably related to a legitimate penological interest.
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. At most, the record shows that the regulation was applied with minor inconsistency, as discussed supra.
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. To the extent there are any remaining arguments raised by the plaintiff, they do not require further discussion. See Commonwealth v. Domanski, 332 Mass. 66, 78 (1954).