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WO

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF ARIZONA

Prison Legal News,

Plaintiff,

v. 

Charles L Ryan, et al.,

Defendants.

No. CV-15-02245-PHX-ROS

ORDER 

The Ninth Circuit concluded the definition for “sexually explicit material” 

contained in Defendants’ publication policy was not facially unconstitutional. Prison 

Legal News v. Ryan, 39 F.4th 1121, 1135 (9th Cir. 2022). To reach that conclusion, the 

Ninth Circuit adopted a narrow construction of the definition such that it only covered 

material that contained more than “a mere mention” of sex. Id. at 1130. Thus, under the 

Ninth Circuit’s interpretation of the definition, material will only qualify as “sexually 

explicit” if it contains “a level of description akin to that of a painting.” Id. In light of this 

narrow construction, the definition was constitutional.

The Ninth Circuit also addressed “a broader prohibition” in Defendants’ publication 

policy. The Ninth Circuit concluded a portion of that prohibition was unconstitutional on 

its face and, therefore, had to be severed from the remainder of the prohibition. The bolded 

portion of the following quote is the portion identified by the Ninth Circuit as requiring 

severance:

Content in publications, photographs, drawings, or in any type 

of image or text, that may, could reasonably be anticipated 

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to, could reasonably result in, is or appears to be intended 

to cause or encourage sexual excitement or arousal or 

hostile behaviors, or that depicts sexually suggestive 

settings, poses or attire, and/or depicts sexual representations 

of inmates, correctional personnel, law enforcement, military, 

medical/mental health staff, programming staff, teachers or 

clergy.

Id. at 1133. 

In addition to the facial challenges, the Ninth Circuit addressed two as-applied 

challenges to different editions of Plaintiff’s publication. The Ninth Circuit concluded 

Plaintiff prevailed on one as-applied challenge but the other had to be remanded for 

additional proceedings.

After remand, Defendants did not change the definition of “sexually explicit 

material” in their publication policy. Defendants did, however, amend their policy to take 

out the bolded language cited above. Defendants also delivered the two publications that 

were at issue in the as-applied challenges. The Court then ordered briefing to determine 

what, if anything, was still pending. Based on their briefing, the parties disagree on three

issues. First, whether Defendants should be required to amend their definition of “sexually 

explicit material.” Second, whether the Court should require additional training of officers 

responsible for reviewing publications to ensure the policy is implemented as the Ninth 

Circuit envisioned. And third, whether Plaintiff is entitled to an award of attorneys’ fees.

A. Current Definition is Permissible 

Plaintiff believes the Court should order Defendants to amend the definition of 

“sexually explicit material” to reflect the narrow construction of that term imposed by the 

Ninth Circuit. Plaintiff lost its facial challenge to the definition. Therefore, there is no 

constitutional flaw to remedy by way of an injunction. To the extent Plaintiff fears 

Defendants will continue to apply the definition too broadly, Plaintiff’s remedy will be an 

as-applied challenge. Because the Ninth Circuit concluded the current definition is 

constitutional, this Court cannot require Defendants amend that definition.

B. Additional Training Not Required

Plaintiff argues the Court should require additional training to ensure Defendants 

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apply the definition of “sexually explicit material” as it was construed by the Ninth Circuit. 

Again, Plaintiff’s facial challenge to the definition failed. Thus, the Court has no basis for 

ordering additional training regarding proper application of the definition.

C. Attorneys’ Fees Will Be Resolved in the Future

The parties’ final disagreement involves attorneys’ fees. Defendants request the 

Court preemptively rule Plaintiff is not entitled to an award of any fees. (Doc. 347 at 7). 

In support, Defendants argue “[p]laintiffs are entitled to an award of fees when they 

‘prevailed on the merits and achieved excellent results.’” (Doc. 347 at 8) (quoting Hensley 

v. Eckerhart, 461 U.S. 424, 431 (emphasis added)). Defendants’ quotation is misleading 

because “excellent results” requires an award of all fees incurred. Hensley, 461 U.S. at 

435. When, as here, a plaintiff achieves only limited success, fees may still be awarded. 

The amount of those fees, however, might be less than all the fees incurred. Based on 

defense counsel’s extensive experience with federal litigation, they know entitlement to 

some amount of fees does not require “excellent results.” And Defendants do not cite any 

case where a plaintiff prevailed on some of its claims, but the Court prohibited that plaintiff 

from even filing a motion for fees. Defendants’ request for a ruling that no fees will be 

awarded must be denied. The amount of fees will be resolved after full briefing.

D. Form of Final Judgment

The Ninth Circuit concluded certain language in Defendants’ policy was 

unconstitutional, but Defendants subsequently removed that language from the policy. 

Therefore, Plaintiff’s challenge to that language is moot. Similarly, the Ninth Circuit 

affirmed Plaintiff’s victory on one as-applied challenge to an edition of its publication and 

remanded another as-applied challenge to a different edition of its publication. Defendants 

subsequently delivered both editions of the publication, meaning Plaintiff’s as-applied 

challenges are moot. Plaintiff did not prevail on other aspects of their claims. In these 

circumstances, there is nothing left for the Court to adjudicate. See Rosemere 

Neighborhood Ass’n v. U.S. Environmental Protection Agency, 581 F.3d 1169, 1173 (9th 

Cir. 2009) (holding “[i]n general, when an administrative agency has performed the action 

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sought by a plaintiff in litigation, a federal court lacks the ability to grant effective relief, 

and the claim is moot”). The Court will therefore enter judgment in favor of Defendants. 

This judgment, however, should not be construed as any ruling regarding Plaintiffs’ 

success for purposes of an application for attorneys’ fees. See Higher Taste, Inc. v. City of 

Tacoma, 717 F.3d 712, 717 (9th Cir. 2013) (noting “defendant’s action in rendering the 

case moot” did not prevent plaintiff from being prevailing party for purposes of award of 

attorneys’ fees). 

Accordingly, 

IT IS ORDERED the Clerk of Court shall enter a judgment in favor of Defendants.

Dated this 26th day of January, 2023.

Honorable Roslyn O. Silver

Senior United States District Judge

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