[DO NOT PUBLISH]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.

USCA11 Case: 19-15160 Date Filed: 07/27/2022 Page: 1 of 5
2 Opinion of the Court 19-15160

____________________

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 photographs. 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 complaint 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 inmate. Pursuant to this policy, in 2017 Marianna allegedly confiscated 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 

USCA11 Case: 19-15160 Date Filed: 07/27/2022 Page: 2 of 5
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 Supreme 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 Culver’s pro se appellate brief, we sua sponte appointed Culver counsel 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 attorney then conceded that Culver stated a plausible claim for injunctive relief in his complaint. Oral Arg. at 14:20–15:40.

We agree with both Culver and the Government that Culver’s pro se amended complaint states a plausible as-applied challenge to the constitutionality of Marianna’s SOMP which, if successful, 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 

USCA11 Case: 19-15160 Date Filed: 07/27/2022 Page: 3 of 5
4 Opinion of the Court 19-15160

United States Constitution.” Amended Complaint at 4, ¶ 37. Under our liberal standard of review for pro se complaints, this is more 

than enough to raise an as-applied challenge to the constitutionality 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 interests” 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 Culver in prison. See id. at 89. Nor can we adduce at this stage

whether any alternative means exists by which Culver could exercise 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 

USCA11 Case: 19-15160 Date Filed: 07/27/2022 Page: 4 of 5
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 Marianna’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 Marianna’s SOMP and remand for further proceedings not inconsistent with this opinion. We affirm the Court’s dismissal with prejudice of all other claims raised in Culver’s amended complaint.

AFFIRMED IN PART, REVERSED IN PART. 

USCA11 Case: 19-15160 Date Filed: 07/27/2022 Page: 5 of 5