USCA11 Case: 19-15160 Date Filed: 07/27/2022 Page: 1 of 5
[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 19-15160
____________________
BRIAN SCOTT CULVER,
Plaintiff-Appellant,
versus
SHANNON WITHERS,
STEPHANIE RUSH,
Chief Psychologist,
RAMON RIVERA,
SOMP Coordinator,
MICHELLE PROULX,
SOMP Psychologist,
Defendants-Appellees.
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2 Opinion of the Court 19-15160
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Appeal from the United States District Court
for the Northern District of Florida
D.C. Docket No. 5:18-cv-00160-TKW-HTC
____________________
Before WILSON, BRANCH, and TJOFLAT, Circuit Judges.
PER CURIAM:
Brian Culver, a federal prisoner currently incarcerated at
Federal Correctional Institution Marianna, appeals the District
Court’s dismissal of his pro se amended complaint for declaratory,
compensatory, punitive, and injunctive relief after the Marianna
prison staff allegedly confiscated from Culver certain family photo-
graphs. Culver is serving a 720-month sentence in federal prison
for five counts of producing child pornography. See United States
v. Culver,
598 F.3d 740 (11th Cir. 2010). Culver alleges in his com-
plaint that Marianna’s Sex Offender Management Program
(“SOMP”) uniformly prohibits inmates labeled as “sex offenders”
from possessing photographs containing images of a minor child
unless the minor child is the biological or adopted child of the in-
mate. Pursuant to this policy, in 2017 Marianna allegedly confis-
cated from Culver family vacation photographs containing images
of Culver’s minor nephews fully clothed in a public place. These
same minor nephews are allegedly on Culver’s approved visitation
list and have visited Culver in prison several times. Culver argues
that Marianna’s confiscation of these family photographs violated
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19-15160 Opinion of the Court 3
his First Amendment right to communicate with family and
friends, see Pope v. Hightower,
101 F.3d 1382, 1384–85 (11th Cir.
1996) (recognizing the right), and that Marianna’s censorship of his
incoming mail does not comply with the test set forth by the Su-
preme Court in Turner v. Safley,
482 U.S. 78, 89 (1987).
After the District Court dismissed Culver’s pro se amended
complaint, Culver appealed pro se. Based on the strength of Cul-
ver’s pro se appellate brief, we sua sponte appointed Culver coun-
sel and granted his request for oral argument. At oral argument,
Culver’s appointed counsel conceded Culver’s claims for monetary
damages, Oral Arg. at 2:15–3:01, and then persuasively argued that
Culver’s pro se amended complaint stated a plausible claim that
Marianna’s SOMP was unconstitutional as-applied to Culver and
so Culver was entitled to injunctive relief. The Government’s at-
torney then conceded that Culver stated a plausible claim for in-
junctive relief in his complaint. Oral Arg. at 14:20–15:40.
We agree with both Culver and the Government that Cul-
ver’s pro se amended complaint states a plausible as-applied chal-
lenge to the constitutionality of Marianna’s SOMP which, if suc-
cessful, merits injunctive relief. Pro se filings are “to be liberally
construed,” and “a pro se complaint, however inartfully pleaded,
must be held to less stringent standards than formal pleadings
drafted by lawyers.” Erickson v. Pardus,
551 U.S. 89, 94 (2007)
(quoting Estelle v. Gamble,
429 U.S. 97, 106 (1976)). Culver’s
amended complaint clearly states that Marianna’s SOMP “violates
plaintiff’s Constitutional rights under the First Amendment of the
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4 Opinion of the Court 19-15160
United States Constitution.” Amended Complaint at 4, ¶ 37. Un-
der our liberal standard of review for pro se complaints, this is more
than enough to raise an as-applied challenge to the constitutional-
ity of Marianna’s SOMP.
Further, as we must “accept as true the allegations in the
complaint,” Culver’s claim is clearly plausible. Glynn Env’t Coal.,
Inc. v. Sea Island Acquisition, LLC,
26 F.4th 1235, 1240 (11th Cir.
2022). Culver has a First Amendment right to communicate with
his family, Pope,
101 F.3d at 1384–85, and so Marianna must show
that its policy is “reasonably related to legitimate penological inter-
ests” under the test set forth in Turner. Turner,
482 U.S. at 89–91.
At the motion to dismiss stage, we cannot say that there is a “valid,
rational connection” to the Government’s interest in preventing
Culver from possessing family photographs of his fully clothed
nephews when Marianna permits those same nephews to visit Cul-
ver in prison. See
id. at 89. Nor can we adduce at this stage
whether any alternative means exists by which Culver could exer-
cise his First Amendment right nor what impact accommodating
Culver’s First Amendment right would have on the guards or other
inmates. See
id. at 90. And, finally, we cannot determine whether
there are any ready alternatives to Marianna’s policy.
Id.
As we have explained before, as-applied challenges address
whether “a statute [or policy] is unconstitutional on the facts of a
particular case or to a particular party.” Harris v. Mexican Specialty
Foods, Inc.,
564 F.3d 1301, 1308 (11th Cir. 2009) (quoting BLACK’S
LAW DICTIONARY 223 (7th ed. 1999)). “Because such a challenge
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19-15160 Opinion of the Court 5
asserts that a statute [or policy] cannot be constitutionally applied
in particular circumstances, it necessarily requires the development
of a factual record for the court to consider.”
Id. Culver has stated
a plausible as-applied challenge to the constitutionality of Mari-
anna’s SOMP and so must be allowed to create a factual record.
Accordingly, we reverse the District Court’s dismissal with
prejudice of Culver’s as-applied First Amendment challenge to Ma-
rianna’s SOMP and remand for further proceedings not incon-
sistent with this opinion. We affirm the Court’s dismissal with prej-
udice of all other claims raised in Culver’s amended complaint.
AFFIRMED IN PART, REVERSED IN PART.
