Petition for Writ of Certiorari — Jan Gawlik, Petitioner v. Scott Semple, et al.

A,.. -

SUPREME

COURT

.

;

. —T

STATE

OF j CONNECTICUT

r '

-j

'*■:

V "

4.

PSC 200146

AC 42550

fi

C

.>•

JAN GAWLIK

V.

c

v

* V'

i

SCOTT SEMPLE ET AL.

tl'-

t

DECEMBER 1/2020

.

•if

ORDER

. _ ■.jj-y.1- >

i

'~tV.

t-

s

JL

'i

y^

THE MOTION OF THE PLAINTIFF? FILED NOVEMBER 20, 2020, FOR

r

m-'a.

RECONSIDERATION €N BANG, HAVING BEEN PRESENTED TO THE COURT. IT IS

i

\

/'

HEREBY ORDERED DENIED.

L

(

ECKER, J„ DID NOT PARTICIPATE IN THE CONSIDERATION OF OR

DECISION ON THIS MOTION:

I'..

r

i

S/

i•

BY THE COURT,

!*

IS/

RENE L. ROBERTSON

ASSISTANT CLERK-APPELLATE

i

\

■

o;

NOTICE SENT: December 2, 2020

HON. STEVEN D. ECKER

COUNSEL OF RECORD'

CLERK; SUPERIOR COURT, NNH CV16-5036776-S

*'•

r

V?

a

y

t-.O

-

r .

/

200166

i

I,

b

r.

t

3

( . r

"APPENDIX#(A)"

X >

!

)

Tr

. APPENDIX^),

COFONE VvMANSON,409 F.SUPP.1033/MARCH 17th,1976.

:■

APPENDIX#(0),

CUTTER V.WILKINSON,544 U.S.709/MAY 31st,2005.

APPENDIX#(P),

WILLIAMS V.BRIMEYER,116 F.3D.351/JUNE 25th,1997.

APPENDIX#(Q),

CONNECTICUT CONSTITUTION/ARTICLE 7th OF RELIGION;

V'

appendix#(r),

LUKE:21;24-25

'V

.•

ii

■

APPENDIX

JAN GAWLIK v. SCOTT SEMPLE ET AL*

Superior Court, Judicial. District of New Haven

File No. CV-16-5036776-S

Memorandum filed September 4, 2018

Proceedings

Memorandum of decision in action alleging violation

of plaintiffs rights to religious freedom. Judgment for

the defendants.

Jan Gawlik, self-represented, the plaintiff.

Steven R. Strom, assistant attorney general, for the

defendants.

V

"APPENDIX#(B)n

LATE CLERK’S OFFICE

30TJRT/APPELLATE COURT

31 Capitol Avenue

>rd, Connecticut 06106

HARTFORD CT 060

3 DEC 2020

<5

SP0^y

Pr#i|gpp *L

S «*-*?■

‘

*

fry -5ai=£=^piTWi-Y 30WS3

$ 000=50°

02 1 p

0000878580

DEC 02 2020

mailed from zip code oei 06

200166

-===#-AN GAWLIK #138888

CHESHIRE CORRECTIONAL INSTITUT

900 HIGHLAND AVE

CHESHIRE, CT 06410-

J

W - ? 2®

OB41O-1&303S

|I,IIII|I,,II,,,|I|,),MI,I,,|I,,.I„|||.,,.||,.|I,|,.,I|,I,.,|.

rt

V!

I

t

" "APPENDIX#(A)":

\

Opinion

v

V

ECKER, J. This is an action for declaratory and

injunctive relief brought by an inmate at the Cheshire

Correctional Institution (Cheshire) against various

prison officials and staff. The plaintiff, Jan Gawlik,

claims that the defendants have violated his constitu­

tional and statutory rights to religious freedom by refus­

ing to deliver incoming mail containing blank religious

“prayer cards” and matching envelopes, used religious

books,, and religious newspapers sent from a source

other than the publisher. He seeks a declaratory judg­

ment holding that Ms religious rights have been violated

by the defendants’ practices and policies governing

delivery of these items, and an injunction requiring the

Commissioner of Correction to delete those portions

of the Department of Correction (department) adminis­

trative directives that prohibit the delivery of such

items. He also seeks a judicial declaration that the

administrative directives at issue were promulgated ille­

gally because the department adopted them without

complying with the procedural requirements of the Uni­

form Administrative Procedure Act (UAPA), General

Statutes § 4-166 et seq.

A bench trial was held before the undersigned judge

on January 25, 2017, January 31, 2017, and March 22,

2017. Extensive posttrial briefs were submitted by the

parties.1 For the reasons that follow, judgment is

entered in favor of the defendants.

I

FINDING OF FACTS

The plaintiff, Jan Gawlik, is serving a sixty year sen­

tence for murder. He is incarcerated at the Cheshire

Correctional Institution, which houses approximately

1300 inmates. Gawlik describes himself as a devout

Catholic. His family is from Poland. He speaks Polish

and was raised as a “Polish Catholic.” Gawlik has

decided that he wants to become a Catholic priest and

is engaged in a self directed course of study toward

that end.2 He also takes part in many religious practices

and activities at Cheshire. He participates in daily mass

services and also attends a collective weekly mass on

Wednesdays. On Mondays, he attends a weekly Bible

study class run by volunteers from the Legion of Mary.

He attends a weekly confirmation class conducted by

one of the prison chaplains, Deacon Robles. Gawlik

also reads religious texts and books about religion; he

has access to many religious books, including various

Bibles and other texts, and keeps approximately fifteen

(15) different religion related books in his cell. He also

donates money from his prison account to outside reli­

gious organizations that aid poor, hungiy, homeless,

and/or disabled individuals.

The plaintiffs present lawsuit complains that his reli­

gious freedom, and other legal rights, are being violated

"APPENDIX#(B)"

by department employees at Cheshire as a result of

their refusal to deliver certain types of incoming mail

to him. Four types of incoming mail are at issue. The

first is used books. Three used books ordered by the

plaintiff were rejected by department staff: (1) a used

copy of the 1983 Code of Canon Law, promulgated by

Pope John Paul II; (2) a book entitled The Book of

Angels; and (3) abook entitled International Eucharistic

Congress Pictorial Album.3 See Plaintiffs Exhibits 22,

33, 36, 37, 38, 56, 56-A. All three books were purchased

by the plaintiff from a company called Preserving Chris­

tian Publications, Inc. See Plaintiffs Exhibit 35 (com­

pany catalogue, August-September, 2016). All three

books are religious in nature.

Upon delivery to the mail room at Cheshire, the books

were rejected by department personnel under the

authority of either or both of two provisions of depart­

ment administrative directive 10.7 (“Inmate Communi­

cations”). The first directive, administrative directive

10.7 (4) (G) (1) (“Review, Inspection and Rejection”),

includes the following general authorization to reject

mail after the mandated inspection: “All incoming gen­

eral correspondence may be rejected if such review

discloses correspondence or materials) which would

reasonably jeopardize legitimate penological interests,

including, but not limited to . . . (a) [preventing] the

transport of contraband in or out of the facility . . . .”

The second directive, administrative directive 10.7 (4)

(N) (“Incoming Publications and Educational Materi­

als”), states in relevant part: “An inmate may order

books in new condition only from a publisher, book

club, or book store.”4 (Emphasis added.) The depart­

ment’s underlying security concerns are discussed [in

part II A of this opinion].

c.

w

The second type of rejected material consists of

newspapers mailed to Gawlik from outside sources

other than the publisher. The newspapers included The

Catholic Transcript, which is a publication of the Arch­

diocese of Hartford, Narod Polsla, a bilingual publica­

tion Of the Polish Roman Catholic Union of America,

and various Polish language newspaper editions pub­

lished by the New Britain Herald. See Plaintiffs Exhibit.

6. The newspapers evidently were forwarded to the '

plaintiff by someone associated with Sts. Cyril and

Methodius Church in Hartford and perhaps other

sources; they were not mailed to the plaintiff directly

from the publisher or a commercial vendor.6 Depart­

ment staff explained to the plaintiff at the time that the

newspapers were rejected by department personnel on

the ground that “magazines and newspapers [are]

allowed only by subscription or if mailed directly from

the bookstore/booksellerAendor.” Plaintiff’s Exhibit 47

(rejection form, dated January 6, 2017).

The third type of rejected materials consists of large

quantities of “blank” religious “prayer cards” and

"APPENDIX#(B)"

.

matching envelopes sent to the plaintiff, free of charge,

as a gesture of gratitude, by the churches, missions,

and other religious organizations to which he has made

monetary donations. Apparently, it is not unusual for

these organizations to respond to a donation by sending

a note of thanks, accompanied by a set of blank greeting

cards of the type sold in stationery stores and gift shops.

The cards typically are embossed with religious icons,

symbols, prayers, biblical quotations, and the like.

Matching envelopes are included. The idea is that the

donor can use the cards to communicate religious mes­

sages to friends and loved ones on holidays and other

occasions. The plaintiff wanted to use the cards for that

purpose because he liked their religious messages, in

contrast to what he called the “pagan” or “nonreligious”

cards available from the prison commissary. Compare

Plaintiff’s Exhibit 4 (examples of “religious” prayer

cards), with Plaintiffs Exhibit 5 (examples of “nonrelig­

ious” holiday cards). A combination of considerations

under administrative directives 10.7 and 10.8 formed

the basis of the department’s rejection of these cards

and envelopes. See [part II A of this opinion].

The fourth type of rejected mail includes religious

and nonreligious greeting cards or homemade cards

(relatively few in number) containing glitter, crayon,

lipstick, or similar decorative materials. Some of these

were holiday cards for Christmas or Easter sent by

correspondents in Poland; one rejected item was a dec­

orative drawing made by the plaintiffs goddaughter.

These cards and other items were rejected by depart­

ment staff, under the authority of administrative direc­

tive 10.7, based on concerns that illegal drugs, including

a substance known as “suboxone,” have been found in

similar decorative features of incoming correspondence

sent to other prison inmates, both at Cheshire and else­

where. The department has no means by which to con­

duct drug testing on each piece of incoming mail with

these decorative features. See [part IIA of this opinion].

Before commencing the present lawsuit, the plaintiff

filed numerous administrative grievances and appeals

concerning the staffs refusal to deliver the used books,

blank prayer cards and envelopes.6 Administrative

directive 9.6 sets forth procedures governing inmate

requests for administrative relief from adverse deci­

sions regarding various conditions of confinement,

including everything from allegations of improper disci­

plinary action to the unjustified rejection of incoming

mail. See Administrative Directive 9.6 (4) (A) through

(M). The department’s administrative review process

varies somewhat depending on the subject matter at

issue but, in general, begins with an attempt at informal

resolution, moves to a procedure involving a formal

written grievance by the inmate, and then provides for

one or more sequential levels of review ascending the

administrative hierarchy.

MAPPENDIX#(B)"

The principal target of the plaintiffs complaints was

the defendant Simone Wislocki, a department employee

who works as a “mail handler” at Cheshire. Mail han­

dlers are responsible for reviewing and inspecting

incoming mail to determine whether the incoming item

will be delivered to the addressee inmate under applica­

ble department policy, including administrative direc­

tive 10.7 (4) (G) (“Incoming General Correspondence”)

and administrative directive 10,7 (4) (N) (“Incoming

Publications and Educational Materials”). The record

reflects that Wislocki rejected the plaintiffs incoming

mail containing blank prayer cards and envelopes on

many occasions in 2015 and 2016. The plaintiff was

made aware of the rejections when he received a depart­

ment form entitled “Returned Letter or Funds Notifica­

tion,” which was completed by Wislocki in connection

with some (but not all) of the rejected cards and enve­

lopes. The three used books were rejected in 2016 and

early 2017. The newspapers were rejected in early 2017.

Of the plaintiffs numerous administrative grievances

and appeals relating to these rejections of incoming

mail, some complaints focused on substantive issues

involving the alleged violation of his religious freedom

under federal and state law. See, e.g., Plaintiffs Exhibits

16,17,28,36,43,45,46,46A, 48,48-A. Other complaints

were procedural in nature, and claimed, for example,

that Wislocki was rejecting prayer cards without provid­

ing the plaintiff with notice of rejection required by

administrative directives 10.7 (4) (G) (2) or 10.7 (4) (N)

(3); see, e.g., Plaintiffs Exhibits 21A, 21B, 23-25, 29;

or that the rejection/administrative review process in

some other respect had not been conducted in accor­

dance with applicable department policy. See, e.g.,

Plaintiffs Exhibits 37, 41, 56, 56-A, It does not appear

that any of these administrative grievances or appeals

was successful.

The record is replete with evidence that the plaintiff

pursued certain avenues of administrative recourse, by

filing grievances and appeals from denied grievances

in connection with the mail handler’s rejections of the

used books, prayer cards/envelopes, and newspapers.

The record is equally clear, however, that the plaintiff

did not pursue other available means for obtaining

relief.7 Thus, with respect to prayer cards, for example,

administrative directive 10.8 (5) (I) provides expressly

that inmates may seek permission from the director

of programs or treatment or that person’s designee to

purchase religious articles not available through the

prison commissary.8 Testimony at trial established that

this recourse was available to the plaintiff but was not

used by him as a way to obtain prayer cards or other

items that he considered religiously appropriate. Like­

wise, evidence at trial established that the department

allows inmates to obtain permission from designated

department personnel to engage in “individual religious

V

"APPENDIX#(B)"

,

V-

practices,” which is defined [to] include, without limita­

tion, “access to religious publications.” Administrative

Directive 10.8 (5) (D). The procedure for obtaining per­

mission under administrative directive 10.8 (5) (D)

requires the inmate to submit a request to the correc­

tional facility’s director of religious services (Father

Bruno, during the time in question at Cheshire), who

is required to “consider whether there is a body of

literature stating principles that support the practices

and whether the practices are recognized by a group

of persons who share common ethical, moral or intellec­

tual views.” Id. For security reasons, the directive also

requires approval by the department’s deputy commis­

sioner of operations.9 Again, the trial record shows that

the plaintiff made no effort to obtain the desired items

under administrative directive 10.8 (5) (D). Nor did he

purchase a subscription to any of the newspapers that

he wished to receive, despite having ample personal

funds to do so. See Administrative Directive 10.7 (4)

(N) (procedure for ordering subscriptions).

The court has paused to highlight the plaintiffs failure

to pursue alternative means of redress because this

evidence, though not essential to the judgment, rein­

forces the court’s conclusion (based in large part on

his own statements at trial) that the plaintiff was more

interested in battling with the department over abstract

principles than actually obtaining possession of the reli­

gious materials at issue. Rather than purchasing a news­

paper subscription, or buying new religious books (pre­

sumably available in many thousands of titles through

nationwide vendors),10 or working through proper chan­

nels at Cheshire pursuant to administrative directive

10.8 to obtain a workable, pragmatic solution providing

him access to the sought-after religious materials with­

out creating a risk to prison security, the plaintiff

viewed the situation as a personal battle between him­

self and a “malicious” mail handler (Wislocki), and he

became fixated on vindicating his absolutist and incor­

rect view of his legal “rights.”11 It is clear from the

plaintiffs administrative grievances and the testimony

at trial that the plaintiff considered the rejections as

part of a campaign waged by Wislocki against him per­

sonally, and believed that Wislocki was acting out of a

combination of religious animus and personal antipa­

thy.12 See, e.g., Plaintiffs Exhibit 16 (containing various

administrative filings by plaintiff accusing Wislocki of

“superseding” order to deliver “religious media mail,”

accusing Wislocki of engaging in deliberate actions to

purposely cause harm to plaintiff as a “malicious puni­

tive measure,” and “knowingly” violating his religious

freedom); Plaintiffs Exhibit 24 (grievance accusing

Wislocki of implementing “punitive measures” against

plaintiff by rejecting mail); Plaintiff’s Exhibit 45 (stating

that Wislocki’s disposition reflects “deliberate indiffer­

ence” to his grievances); Plaintiffs Exhibit 46 (accusing

mail room staff of “fabrication” and allowing “ego and

"APPENDIX#(B)"

/

pride” to impair its performance); Plaintiff’s Exhibit

58 (accusing Wislocki of “lying” with respect to basis

for rejection).

The plaintiff filed this lawsuit in mid-2016. He seeks

injunctive and declaratory relief of two kinds. First, he

requests a judicial decree requiring the defendants to

deliver to himself (and all other inmates) all “religious

and nonreligious cards with factory glitter ... all art­

work, letters, sketches, drawings, anything artistic . . .

any form of communication from adults and/or chil­

dren, written or colored or drawn in colored pencil(s),

crayons, markers, letters sent with a lipstick kiss ...

used books, donated books, used donations] from

prison ministries, churches, envelopes with and without

postage, newspapers donated from churches, prayer,

photo books . . . flyers, bookmarks, pamphlets, and

any or all donations .. : . .” See Plaintiffs Posttrial

Brief, dated May 22, 2017, at 53; see also Plaintiffs

“Injunction,” dated January 31, 2017 (seeking perma­

nent injunction prohibiting department from rejecting

plaintiffs “religious media mail, religious correspon­

dence, all prayer cards, religious blank envelopes, reli­

gious pamphlets, religious literature, religious books,

used and new, from piiblisher(s), bookstore(sj, book

clubs, libraries, religious stationery, religious note­

book^), religious posters, bookmark(s), religious Cath­

olic denominational materials in all forms of correspon­

dence from churches, missions, orphanages,

organizations, etc., incoming and outgoing, ordered/

sent to the plaintiff”).

0

Second, the plaintiff seeks a declaratory judgment

determining that the department’s administrative direc­

tives applicable to inmate property (administrative

directive 9.6), inmate correspondence (administrative

directive 10.7) and religious services (administrative

directive 10.8) are invalid because they were not prom­

ulgated as “regulations” pursuant to the UAPA. See,

e.g., Plaintiffs “Declaratory Judgment,” dated February'

27, 2017.

As noted, a bench trial before the undersigned was

held over the course of three days. The plaintiff person­

ally appeared and represented himself in a capable and

organized manner. He submitted voluminous exhibits,

which were admitted into evidence without objection.

In addition to his own testimony, the plaintiff called

numerous department employees as witnesses, includ­

ing the defendant Wislocki (the Cheshire mail handler);

Selena Rios, department district administrator; Angel

Quiros, department director of security; Christine Whidden; Captain Robert Hartnett; and Deputy Warden Rich­

ard LaFarge. These witnesses were cross-examined by

the plaintiff on a range of subjects relating to depart­

ment policies and practices concerning incoming mail

and related security issues, media review procedures

for rejected books, administrative review of grievances,

"APPENDIX#(B)M

and religious services available to inmates.

*

*

The court finds that there is no credible evidence

whatsoever to support the plaintiffs claim of discrimi­

natory treatment based on religion. The rejected

items—books, newspapers, blank cards and envelopes,

decorated cards and artwork from relatives, etc.—were

disallowed based on content neutral considerations of

safety and security in a prison setting. After hearing all

of the testimony and viewing all of the exhibits, the

court is convinced that the items would have received

identical treatment had their content related to the New

York Yankees, the native birds of Indonesia, or any

other subject, religious or nonreligious. This finding

does not end the case in all respects, but it is important

to highlight this particular finding at the outset.

n

LEGAL ANALYSIS

A

Plaintiffs First Amendment Claims

4

„

The plaintiff’s first amendment claims13 cover rela­

tively well-worn ground. It is clear that a person’s con­

stitutionally protected speech and religious rights are

not forfeited upon criminal incarceration. See, e.g., Bell

v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 60 L. Ed.

2d 447 (1979) (“our cases have held that sentenced

prisoners enjoy freedom of speech and religion under

the [f]irst and [fjourteenth [a]mendments”). It is equally

clear, however, that these rights are subject to signifi­

cant curtailment in the prison setting. Id. (“But our

cases also have insisted on a second proposition: simply

because prison inmates retain certain constitutional

rights does not mean that these rights are not subject

to restrictions and limitations. ‘Lawful incarceration

brings about the necessary withdrawal or limitation of

many privileges and rights, a retraction justified by the

considerations underlying our penal system.’ ” (quoting

Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92

L. Ed. 1356 (1948)). These general principles are firmly

established. See, e.g., Beard v. Banks, 548 U.S. 521,

528-29,126 S. Ct. 2572,165 L. Ed. 2d 697 (2006) (plural­

ity opinion); Shaw v. Murphy, 532 U.S. 2^3, 229, 121 S.

Ct. 1475,149 L. Ed. 2d 420 (2001); Thomburghv. Abbott,

490 U.S. 401, 409, 109 S. Ct. 1874, 104 L. Ed. 2d 459

(1989); O’Lone v. Estate of Shabazz, 482 U.S. 342, 348,

107 S. Ct. 2400,96 L. Ed. 2d 282 (1987); Turner v. Safley,

482 U.S. 78,84-85,107 S. Ct. 2254,96 L. Ed. 2d 64 (1987).

The following analysis will focus on the plaintiffs

first amendment free exercise claims because those are

the focus of his case. The same legal standard, taken

from Turner v. Safley, supra, 482 U.S. 78, also applies

to his first amendment free speech claims, with the

same results. See, e.g., Thornburgh v. Abbott, supra,

490 U.S. 414 (holding that Turner analysis applies to

inmates’ free speech claims relating to publications sent

MAPPENDIX#(B)"

(

into prison). The applicable legal analysis under Turner

considers four factors:14 “[I]n Turner [v. Safley, supra,

78], we adopted a unitary, deferential standard for

reviewing prisoners’ constitutional claims: [W]hen a

prison regulation impinges on inmates’ constitutional

rights, the regulation is valid if it is reasonably related

to legitimate penological interests. [Id., 89]. Under this

standard, four factors are relevant. First and foremost,

there must be a valid, rational connection between the

prison regulation and the legitimate [and neutral] gov­

ernmental interest put forward to justify it. [Id.] ... If

the connection between the regulation and the asserted

goal is arbitrary or irrational, then the regulation fails,

irrespective of whether the other factors tilt in its favor.

[Id., 89-90]. In addition, courts should consider three

other factors: the existence of alternative means of

exercising the right available to inmates; the impact

accommodation of the asserted constitutional right will

have on guards and other inmates, and on the allocation

of prison resources generally; and the absence of ready

alternatives available to the prison for achieving the

governmental objectives. [Id., 90].” (Citation omitted;

internal quotation marks omitted.) Shaw v. Murphy,

supra, 532 U.S. 229—30; see, e.g., MikeU v. Folino, 722

Fed. Appx. 304, 308 (3d Cir. 2018) (applying Turner

test to prisoner’s religious freedom claims involving

dietary restrictions); Keys v. Torres, 737 Fed. Appx

717, 719 (5th Cir. 2018) (applying Turner test to prison­

er’s first amendment challenge to prison mail regulation

prohibiting delivery of certain publications); Davis v.

Heyns, No. 17-1268, 2017 WL 8231366, *4 (6th Cir. Octo­

ber 16, 2017) (applying Turner test to prisoner’s reli­

gious freedom claims involving dietary restrictions).

The legal standard adopted in Turner reflects a policy

of substantial deference to the judgment and expertise

of prison officials with respect to issues of prison secu­

rity. See, e.g., Thornburgh v. Abbott, supra, 490 U.S.

407-408 (due to “the expertise of these [prison] officials

and the [recognition that the] judiciary is ill equipped

to deal with the difficult and delicate problems of prison

management, this [c]ourthas afforded considerable def­

erence to the determinations of prison administrators

who, in the interest of security, regulate the relations

between prisoners and the outside world” (internal quo­

tation marks omitted)). The court in Turner itself

explained the underlying policy considerations: “In our

view, such a standard is necessary if prison [administra­

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

judgments concerning institutional operations.” (Inter­

nal quotation marks omitted.) Turner v. Safley, supra,

482 U.S. 89. “Subjecting the day-to-day judgments of

prison officials to an inflexible strict scrutiny analysis

would seriously hamper their ability to anticipate secu­

rity problems and to adopt innovative solutions to the

intractable problems of prison administration. The rule

would also distort the [decision-making] process,, for

V

MAPPENDIX#(B)"

every administrative judgment would be subject to the

possibility that some court somewhere would conclude

that it had a less restrictive way of solving the problem

at hand. Courts inevitably would become the primary

arbiters of what constitutes the best solution to every

administrative problem, thereby unnecessarily perpetu­

ating] the involvement of the federal courts in affairs

of prison administration.” (Internal quotation marks

omitted.) Id.

*

The plaintiff has failed to meet his burden under the

applicable legal standard.15 His claim relating to the

used books will be taken up first. Prison authorities

based their refusal to deliver the three used books prin­

cipally on the mandate contained in administrative

directive 10.7 (4) (N), which states in relevant part: “An

inmate may order books in new condition only from a

publisher, book club, or book store. . . .” The directive

contains two significant restrictions on an inmate’s abil­

ity to obtain books from outside of the correctional

facility: first, the book must be new, and second, the

seller must be either the publisher, a book club or a

bookstore. At trial, the court heard credible testimony

from numerous department witnesses about the legiti­

mate security concerns underlying administrative direc­

tive 10.7 (4) (N). Books in general are a particularly

effective means for outsiders to pass contraband into

prison.16 It is difficult, for prison staff to detect hidden

items such as drugs, weapons, or secret messages

(plans of illegal activity), which can easily be secreted

in book bindings, between interior pages, or in other

overlooked crevices or crannies. A thorough search

for such contraband would require prison personnel to

inspect every page of every book sent from any source

to every prisoner, an untenable task. The purpose of

administrative directive 10.7 (4) (N) is to restrict the

flow of such contraband by limiting incoming books to

new books sent directly by a publisher or other reputa­

ble source. Limiting sources to specified commercial

enterprises (publishers, bookstores and book clubs)

minimizes the risk that an inmate or outsider can

arrange with a friend or family member for delivery of

banned material. It also makes sense that new books

are far easier to inspect for contraband than used books.

By limiting permissible incoming items to new books

only, sent by specified commercial sources only, the

department directive makes it less likely that books

will serve as a conduit for contraband into prison.

Substantial case law applying Turner v. Safley, supra,

482 U.S. 78, upholds the constitutionality of similar

prison rules prohibiting used books or otherwise

restricting the source or physical characteristics of

books sent to inmates. See Minton v. Childers, 113

F. Supp. 3d 796, 802-803 (D. Md. 2015) (“The [c]ourt

concludes that the [prison’s] directive banning incom­

ing used books not sent directly by the publisher is not

unconstitutional. . . . The ban is expressly aimed at

"APPENDIX#(B)"

advancing jail security and protecting the safety of jail

personnel and other inmates and is logically connected

to those goals.”); Phipps v. Vail, No. C11-5093-BHSJRC, 2012 WL 472894, *5-6 (W.D. Wn. January 9, 2012);

id., *6 (rejecting inmate’s first amendment challenge to

correctional facility’s decision to refuse delivery of two

used books based on valid concern that “the chance of

the book being altered or tampered with increases when

the book is used [rather than new]”); see also Bell v.

Wolfish, supra, 441 U.S. 550-51 (holding' that first

amendment is not violated by prison regulation prohib­

iting inmates from receiving books that were not

directly mailed from publisher, book club or book­

store); Azukas v. Amone, No. 3:14-cv-721 (RNC), 2017

WL 1282196, *2-3 (D. Conn. March 31, 2017) (rejecting

inmate’s first amendment challenge to Connecticut cor­

rectional facility’s decision to refuse delivery of two

books based on quantity limitation provision contained

in administrative directive 10.7); Walker v. Calderon,

No. C95-2770 FMS, 1997 WL 703774, *3 (N.D. Cal. Octo­

ber 31, 1997) (“[ajpplying the Turner analysis to the

ban on the receipt of books mailed by correspondents

other than approved or verified vendors, the [c]ourt

finds first that the regulation is rationally connected to

the prison’s concerns about contraband being smuggled

into the prison in book packages to which third parties

have had physical access”).

The first Turner factor, then, is easily satisfied here.

There clearly is a valid, rational connection between

the general prohibition on used books contained in

administrative directive 10.7 (4) (N) and a legitimate

governmental objective in prison security.

Turner also instructs courts to examine three addi­

tional factors: the existence of “alternative means of

exercising the right”; “the impact accommodation of

the asserted constitutional right will have on guards and

other inmates, and on the allocation of prison resources

generally”; and “the absence of ready alternatives”

available to the prison for achieving the governmental

alternatives. Turner v. Safley, supra, 482 U.S. 90. These

considerations also favor the defendants’ position on

this record.

The plaintiff has at least two alternative means of

exercising the right to religious freedom at issue. First,

there is an administrative procedure available to the

plaintiff by which he can request religious books that

are unavailable. As explained, administrative directive

10.8 (5) (D) provides a mechanism by which inmates

may obtain permission to engage in “individual religious

practices,” which includes “access to religious publica­

tions” not otherwise available in the prison library or

through the usual means under administrative directive

10.7 (4) (N) (purchase of new books). The procedure

requires approval by the director of religious services

and the deputy commissioner of operations. The evi-

"APPENDIX#(B)M

*

dence at trial established that the plaintiff never pur­

sued this option. See [part I of this opinion]. Second,

the plaintiff has virtually unrestricted access to new

books. See, e.g.,Mintonv. Childers, supra, 113 F. Supp.

3d 803 (“[plaintiff] was allowed to receive new books

sent directly from the publisher”). No showing has been

made that the plaintiff is unable to obtain new books

containing essentially the same or equivalent material

as that contained in the three “out of print” books made

unavailable to him under administrative directive 10.7

(4) (N). The court does not find, on this record, that

any of these books contain information that is unique,

unusual or particularly distinctive in form, expression

or substance.

The third Turner factor asks what impact accommo­

dation of the asserted right will have on prison staff,

other inmates, and the allocation of prison resources

generally. There are approximately 1300 inmates

housed at Cheshire alone. Every day, eight to fourteen

bins of incoming mail addressed to inmates are deliv­

ered for distribution at Cheshire, and, because contra­

band cannot be found unless it is seen or felt, every

single item (except legal mail) must be visually and

“tactilely” inspected by a department mail handler

before it is delivered to an inmate. The mail handler

must search for contraband of all types, including seem­

ingly innocuous items that can be used for improper

or illegal purposes. The task is made more difficult due

to the fact that some prohibited items are easily hidden

or camouflaged. Certain drugs such as “suboxone” can

be easily hidden or absorbed in paper strips or other

unobtrusive materials “laced” with the illegal sub­

stance, for example. This has occurred many times at

department facilities in connection with incoming

mail items.

Under these circumstances, and in light of the grave

dangers that can arise when incoming contraband

escapes detection, it is reasonable for the department

to draw the line where it does, by distinguishing

between new and used books as an efficient and sensi­

ble means to deploy its limited resources for the pur­

pose of safeguarding the prison population while still

allowing its residents robust, expansive access to pub­

lished books. A new book mailed directly from the

vendor presumably can be delivered to an inmate after

a relatively quick, cursory inspection. Inspection of a

used book, by contrast, would require a mail handler to

engage in a time-consuming examination of the binding,

cover, interior markings (for improper messages), and

even individual pages (to ensure that the paper has

not been glued together or “laced” with suboxone).

Anything less than a painstaking, resource intensive

inspection of used books would place at risk the safety

and security of prison guards and other inmates alike.

This third Turner factor therefore also weighs in favor

of upholding the prison policy. See, e.g., Phipps v.

"APEENDIX#(B)m

Phelps, supra, 2012 WL 472894, *6 (“[a] much more

costly search process would have to be implemented

[if used books were allowed]”).

Fourth and finally, there is no reason for the court

to believe that the policy with respect to used books

. is an unreasonable, “exaggerated response to prison

concerns.” (Internal quotation marks omitted.) Turner

v. Safley, supra, 482 U.S. 90. The plaintiff has failed to

identify any. “alternative that fully accommodates the

prisoner’s rights at de minimis cost to valid penological

interests . . . .” Id., 91.

The plaintiffs constitutional free exercise claims

regarding an asserted right to receive blank prayer

cards/envelopes and nonsubscription newspapers fails

for much the same reasons. Judge Christopher F. Droney addressed and rejected a similar claim in the case

of Sadler v: Lantz, Civil No. 3-07-cv-1316 (CFD), 2011

WL 4561189 (D. Conn. September 30, 2011). Sadler

apparently was brought as a free speech rather than a

free exercise claim, but the same four factor Turner

analysis was employed to adjudicate whether the

inmate had a first amendment right to receive a blank

greeting card and envelope from outside sources. This

court finds Judge Droney’s analysis persuasive. Sadler

explains that the department’s policy prohibiting incom­

ing mail containing blank cards and unused envelopes

in that case rested on the same basic, underlying set

of directives relied on by the defendants in the present

case: “[Department] [a]dministrative [directive 6.10

. . . which was in effect at the time of the rejection of

the [rejected blank] card, provided that an inmate may

possess only that property authorized for retention

upon admission to the facility, issued while in custody,

purchased in the facility commissary, or approved at

the facility in accordance with this [a]dministrative

[d]irective. [Id., 6.10 (1)]. Contraband is defined as any­

thing not authorized to be in an inmate’s [possession

.... Id., 6.10 (3) (B)]. The main purpose of [a]dministrative [directive] 6.10(1) is to minimize the opportunity

for contraband to be sent to inmates from individuals

outside of prison. In addition, the directive serves to

minimize the time spent by correctional staff in search­

ing correspondence.” (Internal quotation marks omit­

ted.) Sadler v. Lantz, supra, 2011 WL 4561189, *3.

Administrative directive 10.7, which was also in effect

at the time of the rejection of the items mailed to the

plaintiff, provided: “All incoming general correspon­

dence shall be opened and inspected for contraband

and money .... All incoming general correspon­

dence may be rejected if such review discloses corre­

spondence or materials) which would reasonably jeop­

ardize legitimate penological interests, including, but

not limited to, material[s] which contain or [are believed

to contain] or concern: (a) the transport of contraband

in or out of the facility .... Incoming general corre-

"APPENDIX#(B)M

j

„

spondence containing any of the foregoing may be

restricted, confiscated, returned to the sender, retained

for further investigation, referred for disciplinary pro­

ceedings or forwarded to law enforcement officials. [Id.,

10.7 (4) (F) (1)].” (Internal quotation marks omitted.)

Sadler v. Lantz, supra, 2011 WL 4561189, *3. These

directives provided the basis for the department’s prohibition of blank greeting cards. Id.17 In addition, adminis­

trative directive 10.7 (4) (G) (1) (h) expressly prohibits

inmates from receiving incoming mail containing “envelopes with or without postage stamps. ”18

These policies are content neutral and plainly bear a

rational connection to the safety and security concerns

identified by the department’s witnesses, particularly

Wislocki, Quiros, Whidden and LaFarge. As in Sadler,

this court heard credible testimony about the real, nonfanciful risk that outsiders will attempt to convey drugs

(such as suboxone) to inmates by “lacing” the decora­

tions or adhesives contained on cards or stationery with

the illegal substance.19 See Sadler v. Lantz, supra, 2011

WL 4561189, *2. Witnesses, including District Adminis­

trator Quiros and Director Whidden, also testified credi­

bly that careful control over the incoming supply of

blank cards and envelopes in prison is considered nec­

essary due to safety and security risks associated with

barter and trade among inmates. See also id., *6 (“per­

mitting unsigned greeting cards to be mailed to inmates

would also increase the likelihood of inmate barter or

trade, gambling and thefts and inmate argument and

fighting, with the potential for injuries to both correc­

tional staff and inmates”). The large volume of cards

sent to the plaintiff in the present case, and the resulting

resource imbalance relative to other inmates, could

only have increased the potential for such problems

here.

,

The other three Turner factors also weigh in favor

of the constitutionality of the prohibition on incoming

mail containing blank cards/envelopes. Cards, enve­

lopes and blank paper are all available to inmates

through the prison commissary. If the plaintiff does not

like the preprinted messages contained on the stock

greeting cards and wishes to communicate a different,

more pious or serious religious message, he can use

stationery to draw or write his own prayers or religious

messages on his own cards. There is no reason to

believe that such custom-made cards would encounter

any official censorship or curtailment. (Again, the

restrictions confronted by the plaintiff have nothing to

do with the religious content of the incoming cards.

Alternatively, if the plaintiff prefers commercially

printed religious cards over the homemade variety but

cannot find sufficiently solemn cards at the commis­

sary, he can request individualized approval from the

director of religious services to purchase otherwise

unavailable religious cards, pursuant to administrative

directive 10.8 (5) (I). See [part I of this opinion].

"APPENDIX#(B)M

The court also finds that there is no evidence indicat­

ing that it would be practicable for the department to

take reasonable steps to accommodate the asserted

right to blank prayer cards while still safeguarding

prison security. There are no practical, cost-effective

means for individually testing or inspecting the cards

and envelopes for drugs like suboxone. Nor have the

defendants suggested how the prison authorities might

mitigate the dangers arising from the underground

economy that inevitably would accompany the

unrestricted incoming flow of blank cards/envelopes to

inmates. The department policy barring these items

does not violate the plaintiffs constitutional right to

free exercise of religion. See Sadler v. Lantz, supra,

2011 WL 4561189, *7; Spruyttev. Feighner, Docket No.

93-2009, 1994 WL 32669, *1 (6th Cir. February 4, 1994)

(“Michigan Department of Corrections Policy Directive

PD-BCF-63.03 requires prisoners to purchase items only

from authorized vendors. [The plaintiffs] parents, who

are not authorized vendors, sent him the greeting card

in the mail. The defendants’ refusal to allow [the plain­

tiff] to receive the card did not infringe upon [his] consti­

tutional rights.”); Avery v. Powell, 806 F. Supp. 7, 10-11

(D.N.H. 1992) (upholding constitutionality of prison pol­

icy prohibiting inmates from obtaining blank greeting

cards except from authorized vendors).

The court reaches the same conclusion with respect

to the department’s ban on newspapers or magazines

sent from sources other than the publisher. For much

the same reason that incoming mail containing books

must be mailed to inmates from presumptively legiti­

mate commercial sources (publisher, book club or

bookstore), it makes sense that the department has

seen fit to impose similar restrictions on newspapers

and magazines. See, e.g., Wardv. Washtenaw County

Sheriffs Dept., 881 F.2d 325, 328-30 (6th Cir. 1989)

(upholding constitutionality of prison’s “publisheronly” restriction on magazines); Hurd v. Williams, 755

F.2d 306, 307-308 (3d Cir. 1985) (upholding constitu­

tionality of prison’s “publisher-only” restriction on

newspapers and periodicals); Kines v. Day, 754 F.2d 28

. (1st Cir. 1985) (upholding constitutionality of prison’s

“publisher-only” restriction on hardcover, softcover,

and newspaper publications); cf. Minton v. Childers,

supra, 113 F. Supp. 3d 803 (“[t]he [c]ourt concludes

that the [prison] directive banning incoming used books

not sent directly by the publisher is not unconstitutional

[under Turner}")] Walker v. Calderon, supra, 1997 WL

703774, *3 (“[applying the Turner analysis to the ban

on the receipt of books mailed by correspondents other

than approved or verified vendors, the [c]ourt finds

first that the regulation is rationally connected to the

prison’s concerns about contraband being smuggled

into the prison in book packages to which third parties

have had physical access”).

"APPENDIX#(B)"

*

Newspapers and magazines, unlike books, usually

do not have bindings, but they do contain voluminous

densely printed pages, and this physical characteristic

justifies the source restriction imposed by the depart­

ment. See Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.

1995) (observing, that “bulk” of newspaper makes it

difficult to inspect for prohibited content and contra­

band in prison setting).20 The plaintiff does not claim

that he is unable to order a subscription to The Catholic

Transcript or any of the other religious (or nonreligious)

newspapers he wishes to read. The publications are

readily available to him. His claim is solely based on

the notion that he should be able to receive these publi­

cations from sources other than the publisher. On this

evidentiary record, the claim is notviable under Turner.

There is no need to repeat the entire analysis again.

See [part II A of this opinion].

To summarize, the plaintiff has failed to carry his

burden to establish any violation of his first amendment

rights. The challenged department policies, on this

record, pass constitutional muster under the Turner

analysis.

B

Due Process and Equal Protection

The plaintiff’s substantive due process claim rests

on his assertion that he has been “deprive[d]” of his

Catholic religious faith by the department as a result

of its refusal to deliver the used books to study for the

priesthood and the prayer cards containing statements

of faith central to his religious beliefs. See, e.g., Plain­

tiffs Response to Defendants’ Posttrial Briefs and

Facts, dated June 23, 2017, at 29. He argues that the

department’s practices are “sadistic and evil,” and says

that the department is operating a “concentration camp

that has no respect for human rights, dignity, respect

for any human life.” Id. The plaintiff’s substantive due

process claim fails for two reasons. First, the Supreme

Court has instructed that “[wjhere a particular [a]mendment provides an explicit textual source of constitu­

tional protection against a particular sort of government

behavior, that [a]mendment, not the more generalized

notion of substantive due process, must be the guide

for analyzing these claims.” (Internal quotation marks

omitted.) County ofSacramento v. Lewis, 523 U.S. 833,

842, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998); see also

Southerland v. City of New York, 680 F.3d 127, 142-43

(2d Cir. 2012), cert, denied, 568 U.S. 1150, 133 S. Ct.

980, 184 L. Ed. 2d 773 (2013). The plaintiff’s claims in

this case are fundamentally grounded in rights defined

by the first amendment. His claims based on religious

freedom and freedom of speech therefore should not be

reevaluated under substantive due process principles.

Second, even if (or to the extent that) the plaintiffs

allegations warrant independent consideration as sub-

"APPENDIX#(B)M

stantive due process claims, no violation has occurred

on these facts. A person’s substantive due process right

under the fourteenth amendment is violated when the

government’s conduct “shocks the conscience.” See,

e.g., Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005) (sub­

stantive due process is violated by governmental con­

duct that “is so egregious, so outrageous, that it may

fairly be said to shock the contemporary conscience,”

quoting County of Sacramento v. Lewis, supra, 523 U.S.

848 n.8 (internal quotation marks omitted)). Although

no objective measure has been developed to identify

such a violation with scientific precision, it is under­

stood that “malicious and sadistic” abuses of power by

government officials, intended to “oppress or to cause

injury,” and designed for no legitimate government pur. pose, “unquestionably shock the conscience.” (Internal .

quotation marks omitted.) Velez v. Levy, supra, 94. The

doctrine is designed to protect the individual “against

. . . the exercise of power without any reasonable

justification in the service of a legitimate governmental

objective . . . .” (Citation omitted.) County of Sacra­

mento v. Lewis, supra, 846.

»

The record is devoid of any evidence supporting the

plaintiffs substantive due process claim. In prison, he

remains free to pray and believe as he wishes, attend

religious sendees, abide by religious dietary rules, pur­

chase religious texts (liturgical, theological, legal, his­

torical, and otherwise), and read those texts, virtually

to his heart’s content. The sole limitation is that the

purchased books must be available from a commercial

seller in new condition. This restriction does not shock

the court’s conscience. To the contrary, it appears to

be, at most, a relatively insignificant constraint. The

plaintiff is fortunate to have the financial resources to

purchase new books, religious and nonreligious alike,

from any publisher or bookstore that sells books to the

public. He clearly has the intelligence and practical

ability to arrange for such purchases, and has done so

during his incarceration. Or he can ask friends and

. family to place the order for him. He also can subscribe

to religious newspapers and have them sent by the

publisher to his prison address. Or, again, he can have

friends and family make those arrangements for him.

He can purchase greeting cards from the commissary

or request permission from the religious director to buy

more religiously minded cards from other sources, or

he can make his own customized prayer cards using

materials available to him for correspondence with the

outside world.

The court does not wish to trivialize the plaintiffs

feeling, expressed so intensively in his briefs and other

submissions, that he is subject to severe restrictions

on his liberty while incarcerated. He must appreciate,

however, that loss of liberty is largely the point of incar­

ceration as a criminal sanction. In his case, that period

of confinement is extremely lengthy, and it seems likely

"APPENDIX#(B)"

that he must confront, on a daily basis, the harsh and

painful reality that he will spend most or all of his

remaining life behind bars, under near constant surveil­

lance and subject to the strict control of prison rules

enforced by prison guards. The company he keeps,

moreover, consists of other inmates similarly situated

in many respects. At times, the plaintiff undoubtedly

must feel very lonely, indeed. He also must live with

the heavy burden of his particular crime, the killing of

his father. This combination of factors may explain, at

least in part, his (re)turn to religion.

Gawlik cannot be blamed for feeling frustrated and

even dehumanized by his circumstances, and it would

not be surprising if these circumstances have made him

peculiarly sensitive to the sting of certain restrictions,

as applied to him. His inability to order a used book

on a particular subject, for example, may be highly

cathected in a way that fuels his sense of outrage. Per­

haps not. But whatever the reason, it is clear that the

plaintiffs own personal sense of right and wrong seems

genuinely shocked by the deprivation of which he com­

plains. His feelings are not shared by the judicial con­

science charged with safeguarding substantive due pro­

cess, certainly not on this record.

For the reasons addressed in the preceding para­

graph, Gawlik can be forgiven for the inapt and wildly

inaccurate comparison contained in his brief, quoted

above, in which he likens his conditions to those in a

“concentration camp.” He should be reminded that he

sits in prison, not because of his religion, ethnicity or

race, but because he killed a man. Out of respect for

the historical record, and in recognition of his own

personal role in creating his current state of deprivation,

it seems fair to ask him to acknowledge the fundamental

differences between his present circumstances and

those existing at the “concentration camps” to which

he refers.

«

The plaintiffs procedural due process claim focuses

on two alleged deficiencies in the department’s treat­

ment of his mail.21 The first relates to the alleged failure

of department staff, on occasion, to follow the depart­

ment’s own written rules requiring staff to notify the

plaintiff that his incoming mail had been rejected. See

Administrative Directive 10.7 (4) (G) (2). The second

involves allegations that the Cheshire staff violated

applicable procedures by rejecting the used books sent

to the plaintiff without complying with the “media

review procedures” set forth in administrative directive

10.7 (4) (G). Neither of these constitutional claims

has merit.

A procedural due process claim must be based on

the deprivation of a constitutionally protected liberty

or property interest. See, e.g., Kentucky Dept, of Correc­

tions v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904,

104 L. Ed. 2d 506 (1989) (“The types of interests that

"APPENDIX#(B)"

constitute liberty and property for [f]ourteenth

[a]mendment purposes are not unlimited; the interest

must rise to more than an abstract need or desire . . .

and must be based on more than a unilateral hope

.... Rather, an individual claiming a protected inter­

est must have a legitimate claim of entitlement to it.

Protected liberty interests may arise from two

sources—the [d]ue [p]rocess fc]lause itself and the laws

of the [s]tates.” (Citations omitted; internal quotation

marks omitted.)). Numerous doctrinal principles have

been developed over the years to guide the analysis of

procedural due process claims arising in the prison

context. The oft-repeated starting point is the observa­

tion that “[although] prisoners do not shed all constitu­

tional rights at the prison gate . . . [l]awful incarcera­

tion brings about the necessary withdrawal or limitation

of many privileges and rights, a retraction justified by

the considerations underlying our penal system. ” (Cita­

tion omitted; internal quotation marks omitted.) Sandin

v. Conner, 515 U.S. 472, 485, 115 S. Ct 2293, 132 L. Ed.

2d 418 (1995). Under Sandin, which involved claims

relating to prison disciplinary proceedings, the court

held that inmates are not entitled to procedural due

process protections unless the disciplinary measure

imposes an “atypical and significant hardship on the

inmate in relation to the ordinary incidents of prison

life.” (Emphasis added.) Id., 484. This standard has been

applied to a wide variety of due process claims made

by prisoners since Sandin was decided in 1995. See,

e.g., Proctorv. LeClaire, 846 F.3d 597,608 (2d Cir. 2017)

(reciting district judge’s unchallenged conclusion that

confinement of prisoner in segregated housing for more

than [one] decade gave rise to cognizable liberty interest

under Sandin')-, Graziani v. Murphy, No. 3:11-CV-1615

(RNC), 2012 WL 2785907, *3 (D. Conn. July 5, 2012)

(holding under Sandin that complaint failed to state

procedural due process claim arising from suspension

of plaintiff’s eligibility for contact visits in prison).

Sandin also makes it clear that the due process

clause does not constitutionalize all ostensibly “manda­

tory” internal rules and directives governing prison life.

See Sandinv. Conner, supra, 515 U.S. 483-84 (expressly

rejecting idea that constitutionally protected liberty

interest in prison context is created by mandatory lan­

guage in prison regulations). This holding is consistent

with the well settled view that a procedural due process

violation is not triggered merely upon a showing, with­

out more, that prison officials have failed to abide by

the correctional system’s own written grievance proce­

dures: “Courts of appeal have held that inmates do

not have a constitutionally protected liberty interest in

having prison officials comply with institutional griev­

ance procedures. See, e.g., Grievesonv. Anderson, 538

F.3d 763, 772 (7th Cir. 2008); Thomas v. Warner, 237

Fed. Appx. 435, 437-38 (11th Cir. 2007); Rhoades v.

Adams, 194 Fed. Appx. 93, 95 (3d Cir. 2006); Geiger v.

"APPENDIX#(B)M

-

Jowers, 404 F.3d 371, 373-74 (5th Cir. 2005); Ramirez

v. Galaza, 334 F.3d 850,860 (9th Cir. 2003) [cert, denied

sub nom. McEnroe v. Ramirez, 541 U.S. 1063, 124 S.

Ct. 2388, 158 L. Ed. 2d 963 (2004)]; Buckley v. Barlow,

997 F.2d 494, 495 (8th Cir. 1993) (per curiam). Thus, to

the extent that the complaint may be construed to assert

a due process claim regarding any institutional griev­

ances, the complaint fails to state a cognizable claim.”

Gaskin v. Albreski, No. 3:ll-cv-834 AWT, 2012 WL

827073, *2 (D. Conn. March 8, 2012); accord, e.g., Fernandez v. Armstrong, No. 3:02-CV-2252 (CFD), 2005

WL 733664, *9 (D. Conn. March 30, 2005) (holding that

failure of department staff to abide by grievance proce­

dures set forth in administrative directive 9.6, standing

alone, did not state cognizable claim under federal law).

The defendants argue that the plaintiffs procedural

due process claims in the present case are foreclosed

by Sandin because the limitations imposed on the plain­

tiffs access to reading materials and incoming mail fall

far short of the type of “atypical and significant hardship

on the inmate in relation to the ordinary incidents of

prison life” necessary to trigger due process protec­

tions. Sandin v. Conner, supra, 515 U.S. 484.22 The court

agrees that the plaintiffs procedural due process claims

fail under the Sandin standard.

*

•

Less certain, however, is that the Sandin standard

encompasses the entire due process analysis applicable

to claims implicating first amendment rights, as the

plaintiffs claims do. The question arises because the

Supreme Court previously has held that the censorship

of inmate mail by prison authorities must be accompa­

nied by certain basic due process protections. See Procunierv. Martinez, 416 U.S. 396,418-19, 94 S. Ct. 1800,

40 L. Ed. 2d 224 (1974) (“The District Court [held that

due process] required that an inmate be notified of the

rejection of a letter written by or addressed to him,

that the author of that letter be given a reasonable

opportunity to protest that decision, and that com­

plaints be referred to a prison official other than the

person who originally disapproved the correspondence.

These requirements do not appear to be unduly burden­

some, nor do appellants so contend.”). Although the

first amendment analysis adopted in Procunier has

since been abandoned in part; see Thornburgh v.

Abbott, supra, 490 U.S. 413-14 (overruling Procunier1s

first amendment analysis as it relates to incoming mail

but not outgoing mail); at least some courts have held

that the due process component of Procunier remains

good law, such that inmate mail cannot be censored

without notice to the inmate and a right to appeal the

rejection to a prison official other than the original

decision maker. See, e.g., Krug v. Lutz, 329 F.3d 692,

697 (9th Cir. 2003); Witherow v. Crawford, 468 F. Supp.

2d 1253, 1271 (D. Nev. 2006).

There is no need here to definitively resolve this legal

"APPENDIX#(B)"

question.23 Even assuming that the plaintiffs right to

receive incoming mail is entitled to some procedural

due process protection after Sandin, the court finds

that he received all the process that was due under the

circumstances. See Mathews v. Eldridge, 424 U.S. 319,

335, 96 S. Ct 893, 47 L. Ed. 2d 18 (1976) (enumerating

factors to be considered). The plaintiff received abun­

dant written notifications from the mail room staff at

Cheshire informing him that the blank prayer cards,

used books, repackaged newspapers, and other items

were being rejected. The plaintiff filed multiple griev­

ances challenging the rejections and explaining why,

in his view, the withholding of mail was improper,

ui\justified and illegal. The grievances were processed

up the chain of command; none succeeded. The fact

that the plaintiff was displeased with the result, of

course, does not establish a due process violation.

The plaintiff complains that he was not given written

. notification of rejection with respect to every single

undelivered item of mail, and it appears to be the case

that the mail room did not always provide notice of

rejection on every single occasion due to the volume

and/or frequency of prohibited items (prayer cards/

envelopes in particular). The fact remains that the plain­

tiff received written notice sufficient to make him fully

aware of the basic nature and scope of the interdiction:

he knew that the mail room staff was not delivering his

mail containing blank prayer cards, envelopes, used

books, nonsubscription newspapers, and artwork con­

taining crayon and/or glitter. He received many notices

and filed many grievances. At least on the facts of this

case, when the plaintiff was made aware by written

notice of the nature and scope of the challenged con­

duct, due process did not require item by item notifica­

tion of every item. To require redundant notification

under these circumstances would serve no purpose

except to impose a significant, unnecessary administra­

tive burden on prison staff.

The plaintiff also contends that his due process rights

were violated because the three used books ordered

by him were rejected without review by the “media

review board” (MRB) under the procedures set forth

in administrative directive 10.7. This argument is based

on a fundamental misunderstanding about the function

of the MRB, which exists to promulgate guidelines and

conduct substantive review and censorship of incoming

publications that have been rejected on initial review

based on the content of those incoming materials. Thus,

for example, if a book or other incoming publication

is rejected by mail room staff because of inappropriate

sexual content, or because it contains information

about making weapons or alcohol, or depicts methods

of escape from correctional facilities, the initial deci­

sion to reject the item is subject to review by the MRB.

See Administrative Directive 10.7 (4) (N) (1) and (2).

The MRB process played no role in the plaintiffs case

MAPPENDIX#(B)"

because the used books were not rejected based on

their substantive content—they were rejected because

they were in used condition. See [parts I and II A of

this opinion]. The plaintiff was not entitled to MRB

review on these facts.24

The plaintiffs equal protection claim is not well elab­

orated, but the crux of his argument is that the defen­

dants treated incoming mail of a “religious” nature dif­

ferently than secular mail. There is no evidentiary basis

for this claim. To the contrary, it is clear to the court

that all of the items at issue were rejected based on

neutral criteria relating to legitimate concerns regarding

institutional security and safety. Religious content had

nothing to do with it. There is no credible evidence that

otherwise similar nonreligious material (e.g., secular

used books, secular blank greeting cards from outside

sources, or secular repackaged newspapers) were

treated any differently. There simply was no evidence

of discrimination—or discriminatory intent. See Arling­

ton Heights v. Metropolitan District Housing Corp.,

429 U.S. 252, 265, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977)

(“[p]roof of . . . discriminatory intent or purpose is

required to show a violation of the [e]qual [protec­

tion [c]lause”).

C

Plaintiffs Statutory Claims

1

Religious Land Use and Institutionalized Persons

Act of 2000, 42 U.S.C. § 2000cc

Section 3 of the Religious Land Use and Institutional­

ized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc

et seq., states: “No government shall impose a substan­

tial burden on the religious exercise of a person residing

in or confined to an institution, as defined in section

1997 of this title, even if the burden results from a rule

of general applicability, unless the government demon­

strates that imposition of the burden on that person—

(1) is in furtherance of a compelling governmental inter­

est; and (2) is the least restrictive means of furthering

that compelling governmental interest.” 42 U.S.C.

§ 2000CC-1 (a) (2012).

Under the statute’s burden-shifting framework, the

plaintiff first must show that (1) the relevant religious

exercise is “grounded in a sincerely held religious

belief,” and (2) the government’s action or policy “sub­

stantially burden[s] that exercise . . . .” Holt v. Hobbs,

574 U.S. 352, 361, 135 S. Ct. 853, 190 L. Ed. 2d 747

(2015). If the plaintiff carries this threshold burden,

the burden shifts to the government to show that the

challenged action or policy is (1) in furtherance of a

compelling governmental interest and (2) the least

restrictive means of furthering that interest. Id., 362.

Despite RLUIPA’s express purpose to protect the reli­

gious observances of individualized persons, the statute

"APPENDIX#(B)M

nevertheless anticipated that courts entertaining RLU-'

IPA challenges “would accord ‘due deference to the

experience and expertise of prison and jail administra­

tors. Cutter v. Wilkinson, 544 U.S. 709, 717, 125 S.

Ct. 2113, 161 L. Ed. 2d 1020 (2005) (quoting 146 Cong.

Rec. 16,698, 16,699 (2000), joint statement of Senator

Orrin G. Hatch and Senator Edward M. Kennedy). “Due

deference,” of course, does not mean “unquestioning”

acceptance. Holt v. Hobbs, supra, 364.

1 »

•>

The court does not question the sincerity of the plain­

tiffs religious beliefs. He has failed to show, however,

that the policies and practices at issue have imposed

any meaningful, much less “substantial,” burden on the

exercise of his religion. There is no evidence that the

defendants have done anything that directly or indi­

rectly requires or compels or pressures the plaintiff to

“engage in conduct that seriously violates his religious

beliefs”; BwrweU v. Hobby Lobby Stores, Inc., 573 U.S.

682, 720, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014); or

that they have done anything that would prevent him

from participating in any activity or practice necessaiy

for him to partake in religious exercise. See, e.g., Holt

v. Hobbs, supra, 574 U.S. 361 (prison policy requiring

plaintiff to shave his beard, contrary to religious law,

substantially burdened religious exercise). It may cause

the plaintiff a slight inconvenience to order new books

rather than used books on a particular subject, or order

newspapers directly from the publisher, or make his

own religious greeting cards, but these are truly de

minimis constraints and cannot fairly be considered to

“burden” the exercise of his religion. There is nothing

in the record to support a finding that the unavailability

of the books, newspapers or cards at issue actually

impairs or burdens the plaintiffs religious exercise in

any material or meaningful respect See, e.g., Daker v.

Warren, 660 Fed. Appx. 737, 746 (11th Cir. 2016) (per

curiam) (holding that prisoner failed to establish RLUIPA violation in connection with prison’s ban on hard­

cover books because, “[although [the plaintiff] listed

some religious books that he could only obtain in hard­

cover format ... he did not explain or show how the

inability to acquire these books constituted a substan­

tial burden on his religious exercise” (citation omit, 138 S. Ct. 94, 199 L.

U.S.

ted)), cert, denied,

, 138 S.

U.S.

Ed. 2d 60 (2017), and cert denied,

Ct. 98,199 L. Ed. 2d 60 (2017). The plaintiff is offended

by the defendants’ assertion of authority, which makes

certain items available by mail only in accordance with

specified security related procedures, and he might

derive religious gratification in having access to the

prohibited items (used books and prayer cards). This

sense of subjective frustration, however, and the plain­

tiffs preference for alternative or additional means of

religious gratification, do not establish that the prison

policies at issue substantially burden the plaintiffs free

exercise of religion. See, e.g., Robinson v. Jackson, 615

"APPENDIX#(B)"

Fed. Appx. 310, 313-14 (6th Cir. 2015) (holding that

prison policy of providing Muslim inmate vegetarian

entrees without providing Halal meat entrees did not

substantially burden free exercise because vegetarian

entrees meet requirements of Halal and, therefore,

meals do not violate religious beliefs, despite Halal meat

entrees being preferred).

2

Connecticut Act Concerning Religious Freedom

*

.

•

.

Connecticut has adopted a “Little RFRA,” the Act

Concerning Religious Freedom (ACRF), General Stat­

utes § 52-571b.26 The ACRF prohibits the state from

burdening a person’s exercise of religious freedom

under [article first, § 3] of the Connecticut constitution,

even if the burden results from a rule of general applica­

bility; General Statutes § 52-571b (a); unless the state

can demonstrate that application of the burden to the

person (1) is in furtherance of a compelling governmen­

tal interest, and (2) is the least restrictive means of

furthering that compelling governmental interest. Gen­

eral Statutes § 52-571b (b).

The statute does not contain definitions of its opera­

tive terms. In Rweyemamu v. Commission on Human

Rights & Opportunities, 98 Conn. App. 646, 659, 911

A.2d 319 (2006), cert, denied, 281 Conn. 911, 916 A2d

51, cert, denied, 552 U.S. 886, 128 S. Ct. 206, 169 L. Ed.

2d 144 (2007), our Appellate Court derived a nuanced

understanding of the statute’s key provisions, including

the prohibition against a state imposed “ ‘burden [on]

a person’s exercise of religion’

id., 656 n.7; by

reviewing the legislative history in light of related doc­

trinal developments taking place at the federal level.

Id., 659-64. Two important points emerge from the

Rweyemamu analysis. First, the “overarching purpose”

of the statute; id., 660; was to restore free exercise

jurisprudence to its status prior to the United States

Supreme Court’s decision in Employment Division,

Dept, of Human Resources v. Smith, 494 U.S. 872, 110

S. Ct. 1595, 108 L. Ed. 2d 876 (1990). See Rweyemamu

v. Commission on Human Rights & Opportunities,

supra, 660-61.26 Second, the term “ ‘exercise of reli­

gion’ ” in subsections (a) and (b) of the ACRF; id); 656

n.7; refers specifically to religious rituals and practices

(as opposed to religious beliefs). See id., 664 (“[b]y

protecting ‘free exercise’ with the strict scrutiny test

of subsections (a) and (b), the legislature intended to

provide greater protection to religious practices, such

as the ritualistic use of peyote at issue in Smith”

(emphasis in original)); id., 664 n.10 (citing to legislative

history to provide examples of kind of free exercise

practices, such as lighting of candles in church, receiv­

ing of wine at Holy Communion, and wearing yarmulke

in court).

The clarification provided in Rweyemamu is useful

MAPPENDIX#(B)"

and confirms that the plaintiff cannot prevail under the

ACRF. There is no evidence that the prison policies

under review in the present case impose any material

burden on the plaintiff’s “religious exercise” within the

meaning of the statute. The plaintiff remains fully able

to engage in the rituals, rites and practices of his chosen

religion by attending mass, reading the Bible and other

sacred texts, observing Lenten dietary restrictions, and

so forth. On this record, the fact that the plaintiff cannot

purchase the three out of print books, or receive news­

papers and prayer cards from unauthorized sources,

fails to establish any violation of the ACRF.

D

Plaintiffs Claim Under Uniform Administrative

Procedure Act

The plaintiff’s final argument is that the department’s

administrative directives at issue are invalid because

they were not promulgated in accordance with the

requirements of the UAPA To adopt a regulation under

the UAPA, an agency must comply with extensive pro­

cedural requirements, which include, among other

things, legislative review and approval. See General

Statutes § 4-168. The plaintiff contends that the depart­

ment’s failure to follow the required procedures under

the UAPA renders the relevant administrative directives

legally defective. This claim is without merit for a num­

ber of reasons.

The Appellate Court’s holding in Pierce v. Lantz, 113

Conn. App. 98, 965 A.2d 576, cert, denied, 293 Conn.

915, 979 A.2d 490 (2009), which obviously binds this

court, largely disposes of the plaintiffs argument. See

also Harris v. Armstrong, Docket No. CV-03-0825678S, 2009 WL 5342484, *3-5 (Conn. Super. December 7,

2009) (Prescott, J.) (following Pierce to uphold validity

of department’s administrative directive regarding out­

going mail). Pierce involved an inmate’s challenges to

the validity of a department administrative directive

relating to incoming mail restrictions, among other

things: the plaintiff objected in particular to department

“censorship” of publications depicting sexual activity

between consenting adults. Pierce v. Lantz, supra, 100.

He argued, as the plaintiff does here, that the relevant

administrative directive—which, as in the present case,

was also contained in administrative directive 10.7—

had not been adopted as a “regulation” in accordance

with the UAPA. Id. The Appellate Court rejected the

claim. It reasoned that the administrative directive at

issue represented a perfectly legitimate intra-agency

interpretation and application of existing regulatory

authority conferred on the department and its commis­

sioner by General Statutes § 18-81 and various regula­

tions promulgated thereunder. Id., 103-104.

Pierce points out, first of all, that § 18-81 expressly

authorizes the Commissioner of Correction to “estab-

MAPPENDIX#(B)"

.

lish rules for the administrative practices and custodial

and rehabilitative methods of [such correctional] insti­

tutions ... in accordance with recognized correc­

tional standards.” General Statutes § 18-81. The deci­

sion also emphasizes that the administrative guidelines

at issue fit within an existing regulatory framework,

which not only confers general authority upon the com­

missioner to administer and direct department opera­

tions, including supervision and direction of depart­

ment facilities and institutions under department

control, but also contains provisions specifically

authorizing inspection and rejection of incoming mail

for safety and security reasons. Pierce v. Lantz, supra,

113 Conn. App. 103-104 (discussing Regs., Conn. State

Agencies § 18-81-1 (general authority), § 18-81-32

(authority to inspect and reject incoming mail) and § 1881-39 (authority to review and reject incoming publica­

tions)). This statutory and regulatory framework, con­

cludes the Appellate Court, “empowers the commis­

sioner to create such administrative directives for the

administration and operation of the correctional institu­

tions.” Id., 104.

Pierce provides especially strong guidance here

because it involved a challenge to the same administra­

tive directive at issue in the present case, administrative

directive 10.7, relating to restrictions on incoming mail.

And, as Pierce observes, the core provisions of adminis­

trative directive 10.7 that authorize rejection of incom­

ing mail and publications have been promulgated as

regulations under the UAPA. See Regs., Conn. State

Agencies §§ 18-81-32 and 18-81-39.27 Administrative

directive 10-7 contains more detailed guidance than the

regulations, as one might expect, but the fundamental

authority to inspect mail, and reject items posing a

potential threat to security, derives from the governing

UAPA compliant regulatory framework.

j

A second, independent reason for rejecting the plain­

tiffs UAPA based argument is that General Statutes

§ 18-78a exempts “security and emergency procedures”

promulgated by the department from the UAPA’s proce­

dural requirements. Section 18-78a (a) (1) provides in

relevant part: “The provisions of chapter 54 [the UAPA]

shall apply to the Department of Correction, except

that in adopting regulations in regard to riot control

procedures, security and emergency procedures, disci­

plinary action or classification the Department of Cor­

rection shall not be required to follow the procedures

in sections 4-168,4-168a, 4-168b, 4-172,4-173,4-174, and

4-176. . . .” The various administrative directives relied

on by the defendants to reject the mail items at issue

in the present case were “security” procedures within

the meaning of § 18-78a (a) (1) and therefore are exempt

from the procedural requirements of the UAPA See

Beasley v. Commissioner of Correction, 50 Conn. App.

421, 434-36, 718 A.2d 487 (1998) (holding that adminis­

trative directive relating to inmate classification was

"APPENDIX#(B)M

exempt from UAPA under § 18-78a (a) (1)), affd, 249

Conn. 499, 733 A.2d 833 (1999); Harris v. Armstrong,

supra, 2009 WL 5342484, *5 (same holding with respect

to administrative directive 10.7).

m

CONCLUSION

Judgment shall enter for the defendants. No costs.

* Affirmed. Gawlik v. Semple, 197 Conn. App.

,

A.3d

(2020).

1 The final brief was filed July 17, 2017. The parties thereafter waived the

120 day deadline set forth in General Statutes § 51-183b. See Docket Entry

133.00 (Notice of Joint Consent, dated October 27, 2017).

2 The plaintiff is not enrolled in any organized educational or training

program to study for the priesthood.

3 The record also includes reference to a used book entitled The Lovely

Eucharist and Jesus Christ, which the Cheshire prison authorities also

rejected for delivery to the plaintiff. It is unclear if this was a fourth book,

or, instead, a reference by a different name to the third book listed above.

There is no need to resolve the question for purposes of this adjudication.

4 The precise meaning of this language is not crystal clear. It could mean

(as the department maintains) that inmates may order for purchase only

new books, and those purchases may be made only from the designated

categories of vendors (publishers, book clubs or bookstores). Alternatively,

the directive could be construed to mean that inmates may order only new

books from the designated vendors (publishers or bookstores). This reading

would imply, or at least leave open the possibility, that inmates are allowed

to order used books and nonbook publications from sources other than

publishers or bookstores. The plaintiff does not appear to challenge the

department’s construction as a grammatical matter. In any event, it is clear

to the court that the department’s construction is the intended meaning.

5 A few other religious magazines/pamphlets are also included by the

plaintiff in this category of rejected items. See Plaintiff’s Exhibit 6.

6 The problem involving delivery of newspapers to the plaintiff did not

arise until after this lawsuit was filed. The plaintiff never amended the

complaint to include a claim based on rejection of the newspapers, but the

issue was made part of the case by the submission of such evidence at trial,

without objection. The newspaper issue also was addressed by the parties

in their respective posttrial briefs. The court deems the complaint to have

been amended to conform to the proof in this regard.

7 The court’s findings are based solely on evidence presented at trial. The

court cannot, and has not, taken into consideration any nonrecord exhibits

submitted with the plaintiff’s posttrial briefs. The plaintiff’s posttrial briefs

include certain factual assertions and documents relating, in particular,

to alleged efforts by him to obtain individualized permission, on religious

grounds, to obtain access to otherwise prohibited items. The plaintiff was

given every opportunity to present his proof at trial. He was well prepared

and well organized, and did not appear to have any difficulty marshaling

the evidence as he deemed necessary. There was clear and unequivocal

evidence submitted at trial about what the plaintiff did—and did not do—

as part of his efforts to obtain the religious materials at issue. No extrarecord

submissions on this topic will be considered by the court

8 This same directive also states: “Donated religious articles and religious

items shall not be permitted from any source.” Administrative Directive 10.8

(5) (I). The plaintiff’s alternative under administrative directive 10.8 (5) (I)

was to seek permission to purchase the type of prayer cards that suited his

preferences. The record is clear that he had abundant personal funds avail­

able to him, had he wished to avail himself of this option.

8 “For institutional safety and security, all recommendations for religious

practices shall require approval of the Deputy Commissioner of Operations

or designee in consultation with the Director of Religious Services.” Adminis­

trative Directive 10.8 (5) (D).

10 The parenthetical observation in the text is common knowledge in this

day and age, but is not part of the record, and is not relied on by the court

in reaching its conclusions in this case. It is made for the benefit of any

reader who may be interested in seeking a nonjudicial solution to similar

problems in the future. Vendors such as Amazon and Barnes & Noble offer

for sale more new book titles than could be read in a lifetime. These vendors

apparently will ship new books directly to correctional facilities upon pur-

"APPENDIX#(B)"

chase by or on behalf of an inmate. See, e.g., https://www.amazon.com/gp/

help/customer/display.html?nodeld=201910480. If an inmate is unable to

place an order directly, the Connecticut Department of Correction’s website

indicates that friends or family can order new books from such vendors

for direct mailing to the correctional facility. See https:/4>ortal.ctgov/DOC/

Common-Elements, Common-Elements/Frequently-Asked-Questions-FAQ.

Again, this footnote should not be understood as stating factual findings

in the present case..It is included for informational purposes only,' with the

hope that the information might reduce the need for similar book related

prisoner litigation in the future.

"Quotation marks are used because the plaintiff’s position fails to

acknowledge the significant limitations on these rights in the prison setting, ■

as discussed in the legal analysis [in part II of this opinion].

12 The plaintiff’s administrative complaints contain allegations concerning

other department employees as well, but Wislocki is the primary focus of

his grievances.

13 The plaintiff raises constitutional free speech as well as religious free­

dom claims under both the federal and Connecticut constitutions. He pro­

vides no independent analysis of the state constitutional claims, however,

and those claims therefore are deemed abandoned. See Stale v. Arias, 322

Conn. 170, 185 n.4, 140 A-3d 200 (2016) (“[bjecause the defendant has not

provided an independent analysis of his state constitutional claim under

Stale v. Geisler, 222 Conn. 672, 684-86, 610 A.2d 1225 (1992), we consider

that claim abandoned and unreviewable”); Connecticut Light & Power Co.

v. Dept, of Public Utility Control, 266 Conn. 108,120,830 A.2d 1121 (2003)

(“[The Connecticut Supreme Court] repeatedly [has] stated that [it is] not

required to review issues that have been improperly presented to [it] through

an inadequate brief. . . . Where a claim is asserted in the statement of

issues but thereafter receives only cursory attention in the brief without

substantive discussion or citation of authorities, it is deemed to be aban­

doned. . . . These same principles apply to claims raised in the trial

court." (Citation omitted; emphasis added; internal quotation marks

omitted.)).

14 Many courts, before reaching the Turner factors, conduct a “threshold”

inquiry requiring the plaintiff to show “that the disputed conduct substan­

tially burdens his sincerely held religious beliefs.” Salahuddin v. Goord,

467 F.3d 263, 274-75 (2d Cir. 2006). At least in the United States Court of

Appeals for the Second Circuit, the continuing vitality of the “substantial

burden” test in constitutional free exercise cases remains an open question

after the Supreme Court’s statement, in Employment Division, Dept, of

Human Resources v. Smith, 494 U.S. 872,110 S. Ct 1595,108 L. Ed. 2d 876

(1990), that application of the test “embroils courts in the unacceptable

business of evaluating the relative merits of differing religious claims.”

(Internal quotation marks omitted.) Holland v. Goord, 758 F.3d 215, 220 (2d

Cir. 2014); see Salahuddin v. Goord, supra, 274 n.3; George v. Courtly of

Westchester, No. 17-CV-3632 (NSR) (JCM), 2018 WL 3364393, »3 (S.D.N.Y.

July 10, 2018); Sabir v. Williams, No. 3:17-cv-749 (VAB), 2017 WL 6514694,

*5 (D. Conn. December 19, 2017). Because its current vitality as part of the

constitutional free exercise analysis remains in doubt, and because the

plaintiffs free exercise claim here fails for other reasons under the four

factor Turner test, the court will not consider the "substantial burden” issue

as part of its constitutional analysis. If tire issue were considered, however,

it would be decided against the plaintiff. See [part II B of this opinion]

(analyzing “substantial burden” factor in connection with plaintiffs claims

under Religious Land Use and Institutionalized Persons Act of 2000, 42

U.S.C. § 2000cc et seq ).

13 “The burden, moreover, is not on the [sjtate to prove the validity of

prison regulations but on the prisoner to disprove it” Overton v. Bazzetta,

639 U.S. 126, 132, 123 S. Ct 2162, 156 L Ed. 2d 162 (2003).

15 “Contraband” necessarily includes a very broad category of items in

the prison context because an inmate’s right to possess personal property

is strictly limited due to safety and security concerns. See Administrative

Directive 10.7 (3) (A) (“Definitions/Acronyms”) (“Contraband. Anything not

authorized to be in an inmate’s possession or anything used in an unautho­

rized or prohibited manner.”). The basic limitation is set forth in administra­

tive directive 6.10 (1) (“Inmate Property,” “Policy”), which states: “An inmate

may possess only that property authorized for retention upon admission to

the facility, issued while in custody, purchased in the facility commissary,

or approved at the facility in accordance with this Administrative Directive.”

In this context, it is important to be aware that many items that we may

mAPPENDIX#(B)m

I •'

consider ordinary and innocuous can easily be made into weapons or used

for destructive purposes in a prison setting. Shoelaces are one of countless

examples. Some such items (sewing needles, for example) are easily hiddea

The scarcity of personal property among inmates gives rise to additional

security issues. See [part 0 A of this opinion).

17 The relevant language in the administrative directives remains essen­

tially unchanged in substance since Sadler, which was decided in 2011. Two

slight alterations made by the department in 2013 are indicated by the court

in the quoted excerpt above using brackets.

“To ensure the ready availability of materials needed by inmates to

correspond in writing with the outside world, administrative directive 10.7

• (4) (P) mandates that "[e]ach correctional facility commissary shall sell

. . . stationery, envelopes, postcards, greeting cards and postage . . . .”

In addition, indigent inmates must be provided postage and writing materials

free of charge. See Administrative Directive 10.7 (4) (D).

“ The testimony and exhibits established that suboxone and certain other

drugs can be concealed in decorative materials (script or drawings made

with crayon, colored pencil, or glitter) used in cards and artwork mailed

to inmates. See, e.g., Defendants' Exhibits A, B.

20 Allen v. Coughlin, supra, 64 F.3d 77, uses this very point to distinguish

between "publisher-only” rules as applied to entire newspapers, which pass

constitutional muster under Turner, and a rule that would extend the pub­

lisher only rule to newspaper clippings, which the United States Court of

Appeals for the Second Circuit suggests would be impermissible under

Turner due to the relative ease of inspecting clippings. Id., 80-81. Newspaper

clippings are not at issue in this case.

21 Additional procedural grievances are also mentioned in tire plaintiffs

briefs, but it has been difficult to discern the precise contours of the plaintiffs

procedural due process claims, in part because the plaintiffs written presen­

tation contains passing references to certain factual allegations made in

multiple, partially duplicative filings. The court has done its best to identify

tire specific procedural due process claims for adjudication.

22 The Sandin standard was formulated to determine the existence of a

cognizable “liberty” interest entitled to due process protection. The defen­

dants contend that courts use the same standard in the prison context to

decide claims based on an alleged deprivation of a property interest See

Defendants’ Posttrial Brief, dated May 26, 2017, at 31-32 (citing cases).

Although the case law relied on by the defendants is not crystal clear on

this point, it makes sense that an inmate’s property based due process claim

normally must be analyzed through the lens of the plaintiffs liberty based

entitlements because prisoners largely forfeit the right to possess property

while incarcerated and, therefore, an inmate often will not be able to allege

deprivation of a “property interest” within the usual due process framework.

See Board of Regents v. Roth, 408 U.S. 664, 577, 92 S. Ct 2701, 33 L. Ed.

2d 548 (1972) (providing definition of “property interest” in due process

analysis). A constitutionally protected “property interest” outside of prison,

in other words, is often prohibited “contraband” inside prison. See Adminis­

trative Directive 6.10 (3) (B) (defining “contraband” as anything “not author­

ized to be ... in an inmate’s possession”). At least for doctrinal purposes,

it seems sensible in this context to view the "liberty” (as opposed to the

“property”) component of the due process clause as the source of any limits

on the state’s authority to curtail an inmate’s right to possess property. See

also Hudson v. Palmer, 468 U.S. 517, 633, 104 S. Ct 3194, 82 L. Ed. 2d

393 (1984) (prisoner’s property rights adequately protected by meaningful

postdeprivation procedures under state law).

23 The parties do not squarely address the issue in their briefing.

24 The plaintiffs misunderstanding may have been fueled by Officer Wislocki’s mistaken use of the incorrect “Publication Rejection” form on one

or more occasions.

25 The term “Little RFRA” is the colloquial name given to the statutes

enacted by various states following the passage of the federal Religious

Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. According to

the National Conference of State Legislatures, twenty-one states (including

Connecticut) had passed such laws as of 2016. See http://www.ncsl.org/

research/civil-and-criminal-justice/state-rfra-stalutes.aspx (last consulted

August 22, 2018).

28 Smith held that the constitutionality of facially neutral laws of general

application would be reviewed using the “rational basis” standard, rather

than the heightened "strict scrutiny” standard, under the free exercise clause.

The Connecticut legislature in the ACRF, like the federal Congress in the

"APPENDIX#(B)"

,

„

»

G

‘

*

«

[Religious Freedom Restoration Act of 1993, 42 U.S.C. §2000bb et seq.],

revived the applicability of the pre-Smith "strict scrutiny” standard. The

goal of restoring the status quo ante is dear from the Connecticut statute’s

legislative history: “,[T)o be absolutely clear, this does not—this bill does

not expand, contract or alter the ability of a claimant to obtabrrelief in a

manner consistent with the Supreme Court’s free exercise jurisprudence

under the compelling interest test prior to the Smith case.” (Internal quota­

tion marks omitted.) 36 S. Proc., Pt 8,1993 Sess.,p.'2785, remarks'bf Senator

George -C. Jepsen, quoted in Rweyemamu\V. Commission'on Human

Rights & Opportunities, supra, 98 Conn, App. 660-61. V*

27 Section 18-81-32 of the Regulations of Connecticut State Agencies

(“Incoming general correspondence”) in pertinent part' contains thejfollowing language, which also appears in administrative directive 10-7-(4)*'(G)

(1),. in essentially identical terms: “(a) Review, Inspection and Rejection.

. . . All incoming general correspondence may be rejected if such review

discloses correspondence or material(s) which would reasonably jeopardize

legitimate penological interests, including, but not limited to, materials)

which contain or concern: (1) The transport of contraband in'or'out of the

facility. , . . (10) Any other general correspondence, rejection of which is

reasonably related to a legitimate penological interest.”.(“[cjontraband” is

defined in § 18-81-28 (b) of the Regulations of Connecticut State Agencies

to mean “anything not authorized to be in an inmate’s possession or anything

used in an unauthorized or prohibited manner”).

Section 18-81-39 (“Incoming publications anb materials”) contains the

following language, which can also be found in administrative directive 10.7

(4) (N): "Requests for any local orders for books, magazines, newspapers,

educational materials or periodicals shall be made through the school princi­

pal or other person as designated by the* Unit Administrator who shall

determine that the inmate is able to pay for such materials). . A* An inmate

may order hardcover books in new condition only from a publisher, book

club, or book store.” [Subsection] (a) of 18-81-39, “Procedures for Review

of Publications and Sexually Explicit Materials,” contains this general state­

ment: "The Unit Administrator may reject a publication only if it is deter­

mined to be detrimental to ,the security, good order, or discipline of the

facihty or if it might facilitate criminal activity. The'Unit Administrator may

not reject a publication solely because its content is religious, philosophical,

political, social or sexual, or because its content is unpopular orrepugriarit”

\

.1

•

_</

1

. \ » ,

. s

„•

f

•»>: •

•*.»

. r

* i.)

i *:

• * Jr

<*.*

.. * •

►

.v.

,*■

-

*s

*,

»

i .«!!

!\i

>

' 1

!

i

i

t

v£*

• *.

• ■

'

• V V'l.v'-

A.

/<

■

'tv

I*

I

”APPENDIX#(B)M

i

l

/

the court, Ecker, J., issued a forty-three page memoran­

dum of decision rendering judgment in favor of the

defendants on all counts on September 4, 2018. This

appeal followed.

Upon examination of the record on appeal and the

briefs and arguments of the parties, we conclude that

the judgment of the trial court should be affirmed.

Because the court’s memorandum of decision thor­

oughly addresses the arguments raised in this appeal,

we adopt its well reasoned decision as a proper state­

ment of the facts and the applicable law on the issues.

See, Gawlik v. Semple, Superior Court, judicial district

of New Haven, Docket No. CV-16-5036776-S (September

A3d

).

4,2018) (reprinted at 197 Conn. App.

It would serve no useful purpose for this court to engage

in any further discussion. See, e.g., Woodruff v.

Hemingway, 297 Conn. 317, 321, 2 A3d 857 (2010);

Samakaab v. Dept, of Social Services, 178 Conn. App.

52, 54, 173 A3d 1004 (2017).

The judgment is affirmed.

> •

"APPENDIX#(C)"