Pope v. Hightower

United States Court of Appeals,

Eleventh Circuit.

No. 95-6944.

Freddie Glenn POPE, Plaintiff-Appellee,

v.

Roy HIGHTOWER, Associate Commissioner, Alabama Dept. of

Corrections, Defendant-Appellant,

Ronald W. Kitzinger, Deputy Warden, Ken Mayes, Institutional

Accounting Officer, MCI Telecommunications Corporation, Ronald E.

Jones, W.I. Petry Company, Inc., State of Alabama, Alabama

Department of Corrections, Defendants.

Dec. 26, 1996.

Appeal from the United States District Court for the Northern

District of Alabama. (No. CV-93-1432), J. Foy Guin, Jr., Judge.

Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit

Judge.

BLACK, Circuit Judge:

I. STATEMENT OF THE CASE

On June 30, 1993, Freddie Glenn Pope, an inmate at the William

Donaldson Correctional Facility, instituted this § 1983 action

against Assistant Warden Ronald Kitzinger and the Regional

Coordinator for the Alabama Department of Corrections, Roy

Hightower. The complaint alleged a variety of constitutional

violations, but only Pope's challenge to prison telephone

restrictions survived a motion for summary judgment. Following a

bench trial on the constitutionality of the telephone restrictions,

the district court rendered a verdict in favor of Pope. The

district court held that limiting to ten the number of people Pope

could call violated the First Amendment. Defendant Hightower filed

a timely notice of appeal.

II. STANDARD OF REVIEW

The district court's findings of fact are subject to review

under a clearly erroneous standard. Massaro v. Mainlands Section

1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir.1993), cert.

denied, --- U.S. ----, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994). The

application of the law to the facts, however, is subject to de novo

review. Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.1996).

III. FACTS

Pope has been incarcerated at the William Donaldson

Correctional Facility (Donaldson) for three and one half years. As

Donaldson houses the most dangerous inmates, the facility maintains

the highest security level of any state prison in Alabama. Among

the restrictions imposed by virtue of the security classification

are those governing telephone usage. Inmates are permitted to use

the telephones only from 10:30 a.m. to 12:00 p.m. and from 3:00

p.m. to 10:30 p.m. The Donaldson facility also limits the number

of people to whom inmates may place telephone calls. Each inmate

may designate no more than ten individuals on their telephone

calling lists. A computer system automatically blocks calls an

inmate attempts to place to phone numbers that do not appear on

their ten-person list. Inmates may change the individuals on their

list every six months. After inmates furnish their proposed

telephone lists to prison officials, the prison checks to ensure

that the individuals designated do not have a record of criminal

activity. Although the screening process is time consuming,

Hightower testified that utilization of the ten-person phone lists

helps to curtail criminal activity and harassment of judges and

jurors.

The district court credited the explanation offered by

Hightower, but concluded that use of the ten-person calling list

violated inmate Pope's First Amendment rights. Specifically, the

court ascribed constitutional significance to the possibility that

Pope might be unable to take full advantage of his opportunities

for visitation given that his friends and family reside in Kansas.

The district court concluded that constitutional principles of

reasonableness required that Pope receive compensation in the form

of increased access to the telephone. The district court therefore

directed prison officials to expand Pope's telephone calling list

to fifteen individuals.

IV. ANALYSIS

Prison walls do not form a barrier separating prison inmates

from the protections of the Constitution. Turner v. Safley, 482

U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). At the

same time, the Supreme Court has recognized that "courts are ill

equipped to deal with the increasingly urgent problems of prison

administration and reform." Procunier v. Martinez, 416 U.S. 396,

405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974). Accordingly, in

Turner the Supreme Court formulated a standard of review for

prisoners' constitutional claims that strikes a balance between the

policy of judicial restraint regarding prisoner complaints and the

need to protect constitutional rights. 482 U.S. at 85, 107 S.Ct.

at 2259. The Turner Court held that when a prison regulation

impinges upon on inmate's constitutional rights, the regulation is

valid if it is reasonably related to legitimate penological

interests. Id. at 89, 107 S.Ct. at 2261.1 The Supreme Court

considered this deferential standard necessary if "prison

administrators ... and not the courts, [are] to make the difficult

judgments concerning institutional operations." Id. (quoting Jones

v. North Carolina Prisoners' Union, Inc., 433 U.S. 119, 128, 97

S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977)).

The Turner Court identified several factors that serve to

channel the reasonableness inquiry: (1) whether there is a "valid,

rational connection" between the regulation and a legitimate

government interest put forward to justify it; (2) whether there

are alternative means of exercising the asserted constitutional

right that remain open to the inmates; (3) whether and the extent

to which accommodation of the asserted right will have an impact on

prison staff, inmates, and the allocation of prison resources

generally; and (4) whether the regulation represents an

"exaggerated response" to prison concerns. Turner, 482 U.S. at 89-

91, 107 S.Ct. at 2261-63; Harris v. Thigpen, 941 F.2d 1495, 1516

(11th Cir.1991).

In considering the constitutionality of the prison telephone

list, the district court did not follow the analysis prescribed by

Turner. After recognizing that the telephone restriction was

1

Contrary to the position urged by Pope, the Turner

reasonableness inquiry involves application of law to facts and,

as a result, must be reviewed de novo. See, e.g., Mosier v.

Maynard, 937 F.2d 1521, 1525 (10th Cir.1991); Friedman v.

Arizona, 912 F.2d 328, 331 (9th Cir.1990) (holding de novo review

was required because "the application of law to fact will require

the consideration of legal concepts and involve the exercise of

judgment about the values underlying legal principles"), cert.

denied, 498 U.S. 1100, 111 S.Ct. 996, 112 L.Ed.2d 1079 (1991);

Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir. 1990).

rationally related to a legitimate penological interest, the court

declared it unconstitutional on the basis of inmate Pope's

particular circumstances. The approach taken by the district court

does not comport with Turner. By considering whether Pope could

take advantage of alternate means of exercising his First Amendment

rights to the same extent as other Donaldson inmates, the district

court expanded the scope of its inquiry beyond permissible bounds.2

When considering a constitutional challenge to a prison regulation,

courts are obliged to ensure that the restriction bears a

reasonable relation to a legitimate penological objective. If such

a relation exists, the inquiry is at an end. Whether the

restriction seems reasonable in any more general sense presents a

question outside the purview of the federal judiciary.

The challenged telephone restriction, when analyzed under the

Turner framework, does not violate inmate Pope's First Amendment

rights. First, a valid, rational connection exists between the

telephone restriction and the legitimate governmental interest put

forward to justify it. Reduction of criminal activity and

harassment qualifies as a legitimate governmental objective. The

2

We note that the district court proceeded to compound its

error by dictating the precise course the prison officials had to

follow to rectify the perceived constitutional violation. The

Supreme Court recently reiterated in Lewis v. Casey that "strong

considerations of comity ... require giving the States the first

opportunity to correct errors made in the internal administration

of their prisons." --- U.S. ----, ----, 116 S.Ct. 2174, 2185,

135 L.Ed.2d 606 (1996) (quoting Preiser v. Rodriguez, 411 U.S.

475, 492, 93 S.Ct. 1827, 1837-38, 36 L.Ed.2d 439 (1973)).

Federal courts must scrupulously respect the limits on their role

by not thrusting themselves into prison administration; prison

administrators must be permitted to exercise wide discretion

within the bounds of constitutional requirements. Lewis, ---

U.S. at ----, 116 S.Ct. at 2185 (citing Bounds v. Smith, 430 U.S.

817, 832, 97 S.Ct. 1491, 1500, 52 L.Ed.2d 72 (1977)).

connection between that objective and the use of a ten-person

calling list is valid and rational because it is not so remote as

to render the prison telephone policy arbitrary or irrational.

Turner, 482 U.S. at 89, 107 S.Ct. at 2262.

Second, alternative means of exercising the First Amendment

right at stake remain open to Pope. When considering this factor,

the Supreme Court has instructed that the right must be viewed

sensibly and expansively. Thornburgh, 490 U.S. 401, 417, 109 S.Ct.

1874, 1884, 104 L.Ed.2d 459. The right at issue in the present

case may be defined expansively as the First Amendment right to

communicate with family and friends. The undisputed evidence

establishes that Pope had alternate means of exercising this right

because he could receive visitors and correspond with virtually

anyone he wished. The availability of "other avenues" suggests

that we should be particularly conscious of the "measure of

judicial deference owed to correctional officials ... in gauging

the validity of the regulation." Turner, 482 U.S. at 90, 107 S.Ct.

at 2262.

Third, accommodation of the asserted constitutional right

would have a significant impact on prison staff, other inmates, and

the overall allocation of prison resources. Appellant Hightower

presented uncontradicted testimony that conducting a background

investigation for each individual on an inmate's phone list

requires a considerable expenditure of time by prison staff. Given

that Donaldson houses nearly 1,500 inmates, requiring the prison to

accommodate five additional individuals on each list, with the

possibility for wholesale changes of the individuals on the list

every six months, appears certain to have far-reaching

implications. Where, as here, accommodation of an asserted right

would have a significant "ripple effect" on fellow inmates or

prison staff, courts should be particularly deferential to the

informed discretion of corrections officials. Turner, 482 U.S. at

90, 107 S.Ct. at 2262.

Fourth, the telephone regulation does not represent an

"exaggerated response" to prison concerns because no ready

alternatives to the challenged restriction are evident. See

Turner, 482 U.S. at 90, 107 S.Ct. at 2262. No alternative has been

proposed that would fully accommodate Pope's claimed right at a de

minimis cost to valid penological interests. Although Pope

maintains that other prisons at which he has been incarcerated do

not employ telephone calling lists, this does not indicate that

dropping the restriction at Donaldson would come at a de minimis

cost to penological interests. Initially, the Supreme Court has

made it patently clear that the Constitution does not mandate a

lowest common denominator security standard whereby a practice

permitted at one penal institution must be permitted at all

institutions. Id. at 93 n. *, 107 S.Ct. at 2264 n. *. Moreover,

Donaldson may have a greater penological need for the telephone

restrictions than other facilities because it houses the most

dangerous prisoners.

Consideration of the Turner factors demonstrates that the

ten-person telephone calling list imposed at Donaldson bears a

reasonable relation to legitimate penological objectives.

Consequently, we hold the challenged restriction does not violate

inmate Pope's First Amendment rights.

V. CONCLUSION

In accordance with the foregoing, we REVERSE the district

court's denial of Appellant Hightower's motion for judgment as a

matter of law and render judgment in favor of Defendants.3

REVERSED.

3

Although the caption of the order appealed from lists

Hightower, the State of Alabama, and the Alabama Department of

Corrections as Defendants, it is not clear against whom the

district court intended the judgment to run. To avoid the

specter of confusion stemming from this lack of clarity, we

specify that judgment is rendered in favor of all Defendants.