Petition for Writ of Certiorari — Richard Reynolds, et al., Petitioners v. Angel Quiros, Commissioner, Connecticut Department of Correction

Supreme Court briefJun 16, 2022

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Petition Appendix

25 FEDERAL REPORTER, 4th SERIES

Ruesch’s remaining claims were moot.3

CONCLUSION

For the foregoing reasons, the order of

the Tax Court is AFFIRMED in part

insofar as the Tax Court dismissed some of

Ruesch’s claims as moot and VACATED

and REMANDED in part with instructions to the Tax Court to dismiss all the

remaining claims as moot insofar as it

dismissed those claims for lack of statutory

jurisdiction.

Holdings: The Court of Appeals, Bianco,

Circuit Judge, held that:

Richard REYNOLDS, John Vivo, Kenya

Brown, Dwight G. Pink, Andres R.

Sosa, Akov Ortiz, Victor Smalls,

Plaintiffs-Appellants,

Angel QUIROS, Commissioner of the

Connecticut Department of Correction, in his official capacity, Defendant-Appellee.*

(1) regulation was reasonably related to

legitimate penological interests unrelated to suppression of expression;

(2) regulation satisfied the ‘‘neutrality’’ requirement to survive First Amendment

challenge;

(3) alternative avenues of expression remained available;

(4) accommodating asserted right would

have had a significant ripple effect;

No. 20-1158

August Term 2020

(5) no easily available alternatives to regulation existed;

United States Court of Appeals,

Second Circuit.

(6) regulation and its artistic exception

provided fair notice as to scope of

prohibited materials; and

Argued: April 12, 2021

Decided: February 3, 2022

Background: Inmates brought action

against Connecticut Department of Cor3.

rections (DOC) alleging that DOC’s prison

regulation limiting inmate access to pictorial sexually explicit materials violated

their First Amendment rights and that its

exception for literary, artistic, educational,

or scientific material was unconstitutionally vague under due process clause. After a

bench trial, the United States District

Court for the District of Connecticut, Stefan R. Underhill, Chief Judge, 2020 WL

1140885, entered judgment for DOC. Inmates appealed.

We note that Ruesch may yet have the

chance to challenge her underlying liability in

court. That liability is currently the subject of

an IRS appeals process that has still to run its

course. See 26 U.S.C. § 6320. After receiving

a final determination through that process,

Ruesch will be able, if necessary, to ‘‘petition

the Tax Court for review of such determination (and the Tax Court shall have jurisdiction

with

respect

such

matter).’’ Id.

§ 6330(d)(1); see id. § 6320(c). If Ruesch

continues to object to the IRS’s position regarding her underlying liability, she will even-

(7) regulation and its exception did not

encourage arbitrary enforcement.

Affirmed.

tually have her day in court. For now, however, there is nothing further for our Court or

the Tax Court to do.

* Pursuant to Federal Rule of Appellate Procedure 43(c)(2), Commissioner of the Connecticut Department of Correction Angel Quiros is

automatically substituted for former Commissioner Rollin Cook, in his official capacity, as

Defendant-Appellee.

The Clerk of the Court is respectfully instructed to amend the caption to conform

with the above.

REYNOLDS v. QUIROS

Cite as 25 F.4th 72 (2nd Cir. 2022)

1. Federal Courts O3567, 3603(2)

Court of Appeals reviews a district

court’s conclusions of law following a bench

trial de novo and its findings of fact for

clear error.

2. Prisons O111

Prison walls do not form a barrier

separating prison inmates from the protections of the Constitution.

3. Prisons O112

When a prison regulation or practice

offends a fundamental constitutional guarantee, federal courts will discharge their

duty to protect constitutional rights.

4. Constitutional Law O1194

Prisons O111

The fact of confinement and the needs

of the penal institution impose limitations

on constitutional rights, including those derived from the First Amendment, which

are implicit in incarceration. U.S. Const.

Amend. 1.

5. Constitutional Law O1194

A prison inmate retains those First

Amendment rights that are not inconsistent with his status as a prisoner or with

the legitimate penological objectives of the

corrections system. U.S. Const. Amend. 1.

6. Prisons O103

Given the doctrine of federalism, the

exercise of judicial restraint is especially

important where the administration of a

state penal system is at issue.

7. Prisons O112

When a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.

8. Prisons O112

Assessment of whether a prison regulation which impinges on inmates’ constitutional rights can be sustained as being

reasonably related to a legitimate penological interest involves a consideration of

four factors: (1) whether there is a valid

and rational connection between regulation

and legitimate, neutral government rationale offered to justify it; (2) whether the

prisoner has an alternative means of exercising the constitutional right; (3) impact

that accommodating prisoner’s constitutional right would have on corrections

staff, other inmates, and the general allocation of prison resources; and (4) whether

there are ready alternatives to the prison

regulation such that the regulation would

be an exaggerated response to prison concerns.

9. Civil Rights O1404

Burden of proof is not on the State to

prove the validity of prison regulation that

a prisoner challenges as unconstitutional

but on the prisoner to disprove its validity.

10. Constitutional Law O2282

Prisons O140

Prison regulation of Connecticut Department of Corrections (DOC) that impinged on inmates’ First Amendment

rights by limiting inmate access to pictorial

sexually explicit materials was reasonably

related to legitimate penological interest

unrelated to suppression of expression,

with that interest being the promotion of a

non-hostile work environment for corrections staff, where, before regulation, sexually explicit materials were found throughout DOC facilities hanging on walls and in

inmate lockers, and the practice of ‘‘gunning,’’ i.e., inmates masturbating in front

of female staff, was a prevalent at DOC

facilities making it a ‘‘pretty gross,’’ horrific, and threatening environment for staff.

U.S. Const. Amend. 1.

11. Constitutional Law O2282

The First Amendment does not confer

upon a prison inmate the right to possess

25 FEDERAL REPORTER, 4th SERIES

or display pictorial depictions of sexually

explicit conduct, such that it creates a hostile work environment for corrections staff.

U.S. Const. Amend. 1.

12. Prisons O121

It is rational for a correctional institution to censor any materials found to create an intolerable risk of disorder under

the conditions of a particular prison at a

particular time.

13. Constitutional Law O2282

Prisons O140

Prison regulation of Connecticut Department of Corrections (DOC) that impinged on inmates’ First Amendment

rights by limiting inmate access to pictorial

sexually explicit materials was reasonably

related to legitimate penological interest

unrelated to suppression of expression,

with that interest being the enhancement

of safety and security of DOC staff and

inmates, where, prior to regulation, cell

shakedowns revealed contraband items

such as drugs, currency, and razors found

concealed behind or within pornographic

materials and photographs, female corrections staff were particularly disinclined to

search through pornography while performing cell shakedowns, and pornography

was material that prison predators offered

to their intended victims as a tool of manipulation. U.S. Const. Amend. 1.

14. Constitutional Law O2282

Prisons O140

Prison regulation of Connecticut Department of Corrections (DOC) that impinged on inmates’ First Amendment

rights by limiting inmate access to pictorial

sexually explicit materials was reasonably

related to legitimate penological interest

unrelated to suppression of expression,

with that interest being the facilitation of

rehabilitation of sex offenders in DOC facilities, where there was at least some

research finding that exposure to pornog-

raphy was correlated with negative attitudes toward women, and sex offenders

were housed with the general inmate population in DOC facilities, thereby making it

impossible to limit access and exposure to

pornography to only some inmates. U.S.

Const. Amend. 1.

15. Constitutional Law O2270

A prison regulation or practice which

impinges on inmates’ First Amendment

rights does not necessarily need to be content-neutral to satisfy requirement that

the legitimate government objective be

neutral; rather, ‘‘neutrality’’ goes no further than to require that the regulation or

practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. U.S. Const. Amend. 1.

16. Constitutional Law O2282

Where prison administrators draw

distinctions between publications that are

allowed or not allowed for inmates solely

on basis of potential implications for prison

security, a prison regulation which impinges on inmates’ First Amendment

rights satisfies the requirement that the

legitimate government objective be neutral. U.S. Const. Amend. 1.

17. Constitutional Law O2282

Prisons O140

Prison regulation of Connecticut Department of Corrections (DOC) limiting

inmate access to pictorial sexually explicit

materials satisfied the ‘‘neutrality’’ requirement to survive inmates’ First

Amendment free speech challenge, where

regulation drew distinctions between

banned sexually explicit pictorial materials

that substantially undermined important

penological interests of protecting DOC

staff from hostile work environment, ensuring safety and security of DOC facilities, and facilitating rehabilitation of sex

REYNOLDS v. QUIROS

Cite as 25 F.4th 72 (2nd Cir. 2022)

offender inmates, as compared to pictorial

materials containing sexual content that

fell within artistic exception and various

categories of written sexually explicit materials that were not prohibited. U.S.

Const. Amend. 1.

18. Constitutional Law O2270

Analysis of alternative avenues of expression, as a factor for determining

whether a prison regulation that impinges

on inmates’ First Amendment rights can

be upheld as being reasonably related to a

legitimate penological interest, assesses

whether there are alternative means of

exercising the right that remain open to

inmates; in other words, a court considers

what other avenues remain available for

the exercise of the asserted right. U.S.

Const. Amend. 1.

19. Constitutional Law O2282

Prisons O140

In considering alternative avenues of

expression as a factor for determining

whether prison regulation of Connecticut

Department of Corrections (DOC) limiting

inmate access to pictorial sexually explicit

materials could be upheld on a First

Amendment challenge as being reasonably

related to a legitimate penological interest,

Court of Appeals would define the right at

issue sensibly and expansively and allow

for flexibility in determining what qualified

as another means of expression. U.S.

Const. Amend. 1.

20. Constitutional Law O2282

Prisons O140

A right to receive sexually explicit

communications, and not a right to possess

and view pictorial depictions of nudity and

sexual activity, was the right at issue for

purposes of analysis of alternative avenues

of expression as a factor for determining

whether prison regulation of Connecticut

Department of Corrections (DOC) limiting

inmate access to pictorial sexually explicit

materials could be upheld on a First

Amendment challenge as being reasonably

related to a legitimate penological interest,

where regulation allowed inmates to possess various categories of written sexually

explicit material in addition to allowing

pictorial materials falling within the artistic exception or containing sexual content

that was not within definition of ‘‘sexually

explicit.’’ U.S. Const. Amend. 1.

21. Constitutional Law O2270

Prison officials need not provide alternative means of expression that are

identical in nature to the banned modes of

expression to withstand a constitutional

challenge to a prison regulation that impinges on inmates’ First Amendment

rights; rather, a court will look to see

whether the officials allow similar alternative forms of expression that are consistent with the penological interests at

stake. U.S. Const. Amend. 1.

22. Constitutional Law O2282

Prisons O140

Alternative avenues of expression remained available for inmates’ asserted

right to receive sexually explicit communications, as a factor for determining whether prison regulation of Connecticut Department of Corrections (DOC) limiting

inmate access to pictorial sexually explicit

materials could be upheld on a First

Amendment challenge as being reasonably

related to a legitimate penological interest,

where regulation allowed inmates to possess various categories of written sexually

explicit material in addition to allowing

pictorial materials falling within the artistic exception or containing sexual content

that was not within definition of ‘‘sexually

explicit.’’ U.S. Const. Amend. 1.

23. Prisons O112

When the ripple effect from accommodation of inmates’ asserted constitutional

25 FEDERAL REPORTER, 4th SERIES

right would be significant, a court should

be particularly deferential to the informed

discretion of corrections officials in adopting a prison regulation which impinges on

that right. U.S. Const. Amend. 1.

24. Constitutional Law O2282

Prisons O140

Accommodating inmates’ asserted

right to receive sexually explicit communications would have had a significant ripple

effect on fellow inmates and prison staff,

as a factor for determining whether prison

regulation of Connecticut Department of

Corrections (DOC) limiting inmate access

to pictorial sexually explicit materials

could be upheld on a First Amendment

challenge as being reasonably related to a

legitimate penological interest, where

DOC’s pre-regulation policy resulted in

sexually explicit pictorial materials being

rampantly displayed and possessed by inmates, which had a ‘‘ripple effect’’ on staff

in terms of the work environment, as well

as on staff and inmates as it related to

safety and security concerns in the prison

facilities and rehabilitation of sex offender

inmates. U.S. Const. Amend. 1.

25. Prisons O112

Existence of obvious, easy alternatives

to a prison regulation that infringes on

inmates’ constitutional rights may be evidence that the regulation is not reasonable, but is an exaggerated response to

prison concerns.

26. Prisons O112

If an inmate can point to an alternative that fully accommodates the asserted

constitutional right at de minimis cost to

valid penological interests, a court may

consider that as evidence that a prison

regulation that infringes on the right does

not satisfy the reasonable relationship

standard.

27. Constitutional Law O2282

Prisons O140

No easily available alternatives existed to prison regulation of Connecticut Department of Corrections (DOC) limiting

inmate access to pictorial sexually explicit

materials, as a factor for determining

whether regulation could be upheld on inmates’ First Amendment challenge as being reasonably related to a legitimate penological interest, where numerous other

correctional systems employed similar

bans on sexually explicit publications, and

DOC reviewed two-tiered approaches by

other states allowing possession of softcore

pornography but not of hardcore pornography leading to a conclusion that a policy

involving a partial ban was not a viable

alternative due to requirement of ongoing

monitoring with subjective standards that

would be difficult to codify into strictly

objective criteria. U.S. Const. Amend. 1.

28. Constitutional Law O2282

Prisons O140

Increasing enforcement of prohibitions against, and punishment for, certain

prison infractions by inmates such as masturbating in front of female corrections

staff was not a viable alternative to prison

regulation of Connecticut Department of

Corrections (DOC) limiting inmate access

to pictorial sexually explicit materials, as a

factor for determining whether regulation

could be upheld on inmates’ First Amendment challenge as being reasonably related to a legitimate penological interest,

where inmates did not explain how such an

alternative would have addressed the

broader penological interests regarding

workplace and safety and security of prison, as well as rehabilitation of sex offender

inmates, created by possession and/or display of those pictorial materials. U.S.

Const. Amend. 1.

REYNOLDS v. QUIROS

Cite as 25 F.4th 72 (2nd Cir. 2022)

29. Constitutional Law O4822

Prisons O140

A separate vagueness analysis under

due process clause, apart from First

Amendment free speech analysis, was warranted with respect to prison regulation of

Connecticut Department of Corrections

(DOC) limiting inmate access to pictorial

sexually explicit materials, even though

regulation had no disciplinary mechanism

and no inmate had been subjected to discipline under it, where it was possible to

imagine a situation in which a prison regulation could withstand a First Amendment

challenge as being reasonably related to a

legitimate penological interest but still run

afoul of due process clause because one or

more of its terms was unconstitutionally

vague. U.S. Const. Amends. 1, 14.

30. Constitutional Law O4506

Under the due process clause, the

‘‘void-for-vagueness doctrine’’ requires that

a penal statute define the criminal offense

with sufficient definiteness that ordinary

people can understand what conduct is

prohibited and in a manner that does not

encourage arbitrary and discriminatory

enforcement. U.S. Const. Amend. 14.

See publication Words and Phrases

for other judicial constructions and

definitions.

31. Constitutional Law O3905

A party challenging a statute under

the due process clause as void for vagueness can prevail by showing that the statute either fails to provide people of ordinary intelligence a reasonable opportunity

to understand what conduct it prohibits or

authorizes or even encourages arbitrary

and discriminatory enforcement. U.S.

Const. Amend. 14.

32. Constitutional Law O3905

Degree of vagueness that the due process clause tolerates, as well as the relative

importance of fair notice and fair enforce-

ment, depends in part on the nature of the

enactment. U.S. Const. Amend. 14.

33. Constitutional Law O3905, 4506

The void for vagueness doctrine under

due process clause is chiefly applied to

criminal legislation; laws with civil consequences receive less exacting vagueness

scrutiny. U.S. Const. Amend. 14.

34. Constitutional Law O4822

Prisons O140

Prison regulation of Connecticut Department of Corrections (DOC) limiting

inmate access to pictorial sexually explicit

materials provided fair notice as to scope

of prohibited materials, and thus was not

unconstitutionally vague under due process

clause, where regulation described ‘‘pictorial sexually explicit material’’ as a visual

depiction of sexual activity or nudity with

additional definitions provided as to sexual

activity and nudity, regulation defined

‘‘pictorial depiction of sexual activity’’ with

reference to an enumerated list of certain

types of sexual acts, and regulation defined

‘‘pictorial depiction of nudity’’ as the visual

depiction or display of genitalia, pubic region, anus, or female breast where the

areola was visible and not completely and

opaquely covered. U.S. Const. Amend. 14.

35. Constitutional Law O4822

Prisons O140

Exception in prison regulation of Connecticut Department of Corrections (DOC)

limiting inmate access to pictorial sexually

explicit materials, for material that qualified as literary, artistic, educational, or

scientific material, provided fair notice as

to scope of prohibited materials, and thus

was not unconstitutionally vague under

due process clause, where exception allowed pictorial material containing sexually explicit depictions if the material, ‘‘taken

as a whole,’’ was ‘‘literary, artistic, educational or scientific in nature,’’ regulation

25 FEDERAL REPORTER, 4th SERIES

contained no disciplinary mechanism, and

inmates were permitted to submit any

publication for pre-clearance review by

DOC officials before ordering a publication. U.S. Const. Amend. 14.

State of Connecticut, Hartford, CT, for

Defendants-Appellees.

Before: KEARSE, CABRANES, and

BIANCO, Circuit Judges.

36. Constitutional Law O4822

JOSEPH F. BIANCO, Circuit Judge:

Prisons O140

Prison regulation of Connecticut Department of Corrections (DOC) limiting

inmate access to pictorial sexually explicit

materials, including its exception for material that qualified as literary, artistic, educational, or scientific material, did not lead

to arbitrary enforcement by DOC officials,

and thus was not unconstitutionally vague

under due process clause, where DOC implemented an extensive, multi-level review

process involving a first-level review of

incoming publications by prison mailroom

staff, a second-level review by a media

review point person at prison, and a thirdlevel review by a media review board consisting of a group of DOC personnel with

varied backgrounds, and board decisions

were appealable by inmate to board chairperson and then to DOC Commissioner’s

designee. U.S. Const. Amend. 14.

Appeal from the United States District

Court for the District of Connecticut (Underhill, C.J.)

Joseph K. Scully (Elizabeth P. Retersdorf, Rosendo Garza, Jr., Matthew J. Letten, Hartford, CT, Palak Sharma, Parsippany, NJ, on the brief), Day Pitney LLP,

for Plaintiffs-Appellants.

Clare Kindall, Solicitor General (Madeline A. Melchionne, Steven R. Strom, Assistant Attorneys General, on the brief),

for William Tong, Attorney General of the

Plaintiffs-Appellants are seven inmates

in Connecticut state prison facilities who

sued Connecticut Department of Correction officials in their official and individual

capacities (collectively, ‘‘DOC’’), alleging

that the 2012 revised Administrative Directive 10.7 (‘‘A.D. 10.7’’),1 which limits access by inmates to pictorial sexually explicit materials, violates their First

Amendment rights. Plaintiffs also assert

that the prison regulation’s exception for

material that qualifies as ‘‘literary, artistic,

educational or scientific in nature’’ is unconstitutionally vague because it does not

provide fair notice as to the scope of the

prohibited materials and leads to arbitrary

enforcement by DOC officials under a subjective standard.

The United States District Court for the

District of Connecticut (Underhill, C.J.)

conducted a bench trial over five days,

during which the court heard testimony

from fifteen witnesses, and then issued its

Memorandum of Decision on March 9,

2020, ruling in DOC’s favor on the federal

claims. In particular, the district court applied the four-factor test set forth by the

Supreme Court in Turner v. Safley, 482

U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64

(1987), and held that A.D. 10.7 does not

violate the inmates’ First Amendment

rights. The district court further found

that A.D. 10.7 is not unconstitutionally

vague. Judgment was entered for DOC on

While the existing directive prior to the

2012 amendment was also called Administrative Directive 10.7, for the purposes of this

opinion, ‘‘A.D. 10.7’’ refers specifically to the

amended version.

REYNOLDS v. QUIROS

Cite as 25 F.4th 72 (2nd Cir. 2022)

March 12, 2020, and plaintiffs’ appeal followed.2

We discern no clear error as to the

district court’s factual findings in light of

the trial record. We further conclude that

the district court, based upon its factual

findings, properly held that A.D. 10.7 is

reasonably related to legitimate penological objectives—namely, promoting a nonhostile work environment for DOC staff,

enhancing the safety and security of DOC

facilities, and facilitating the rehabilitation

of sex offender inmates—and passes constitutional muster under the Turner

framework. In addition, the district court

correctly determined that the regulation,

including the exception, is neither unconstitutionally vague on its face, nor unconstitutional as applied to plaintiffs. Accordingly, we AFFIRM the judgment of the

district court.

BACKGROUND

The following facts are drawn from the

district court’s factual findings after the

bench trial, which we accept unless clearly

erroneous. See Krist v. Kolombos Rest.

Inc., 688 F.3d 89, 95 (2d Cir. 2012).

The Development of A.D. 10.7

Prior to 2012, when A.D. 10.7 came into

effect, sexually explicit materials, especially pictorial depictions of nudity and sexual

acts, were ‘‘ubiquitous’’ in DOC facilities.

Special App’x at 4. Although existing administrative directives prohibited the dis2.

Plaintiffs also brought claims under the

Connecticut State Constitution seeking declaratory relief. After holding that plaintiffs

were not entitled to relief under federal law,

the district court did not exercise supplemental jurisdiction over the state law claims and

dismissed them without prejudice. The state

law claims are not at issue in this appeal.

play by inmates of sexually explicit pictorial depictions, possession of such materials

was not strictly prohibited, and they were

regularly found hanging on inmates’ cell

walls and in their lockers. According to

Deputy Commissioner Monica Rinaldi, the

widespread possession and display of these

materials created a ‘‘very sexually charged

environment’’ in DOC facilities. Special

App’x at 5. In that environment, acts of

public indecency by inmates, such as masturbating in front of (typically female)

staff, a practice known as ‘‘gunning,’’ were

commonplace and, according to former

Warden Anne Cournoyer, contributed to a

‘‘very threatening environment’’ for staff. 3

Special App’x at 6.

In August 2010, then-DOC Commissioner Leo Arnone ordered a review of DOC’s

existing directives regarding inmate possession of sexually explicit materials. He

convened a committee of six DOC personnel to consider whether DOC could implement a dual-tiered system to allow inmates to possess pictorial depictions of

nudity (‘‘softcore’’ pornography) but ban

possession of depictions of explicit sexual

activity (‘‘hardcore’’ pornography). Over

the course of six months, the committee

reviewed DOC’s existing policy, which

banned certain categories of sexually explicit materials, such as those involving sadomasochism, bestiality, children, and nonconsensual sexual activity, but otherwise

permitted the possession of sexually explicit material.4 In addition to reviewing

segregation, forfeiture of earned credits, and

the loss of other privileges, it was underreported due to the frequency of violations by

inmates.

Although the practice of gunning qualified

as a ‘‘public indecency’’ Class A offense,

which could result in an inmate’s punitive

The district court noted that, although hardcore pornographic materials may have been

technically banned beginning in 2002, in

practice, both softcore and hardcore pornographic materials were widely available to

inmates and on display in DOC facilities prior

to 2012.

25 FEDERAL REPORTER, 4th SERIES

DOC’s existing policy, the committee examined policies adopted by other states

and the Federal Bureau of Prisons and

reviewed case law on this issue from other

states and the federal courts.

As part of its review, the committee

considered two types of partial bans of

pictorial depictions of sexually explicit material. The first, as referenced above,

would ban hardcore pornography, but allow softcore pornography. The committee

rejected this option because its implementation would require subjective standards

and ongoing monitoring, which would be

difficult to codify into objective criteria

and would be both expensive and labor-intensive to implement. The second partial

ban the committee considered was a twotiered approach that would impose different standards for inmates depending upon

whether or not they were sex offenders.

This two-tiered approach was ultimately

rejected because the sex offender inmates

and non-sex offender inmates were all

housed in the general inmate population,

thereby making enforcement almost impossible, particularly given that materials

within the prisons are bartered by inmates, and thus sex offender inmates

would still be able to obtain them. Accordingly, the committee decided that a total

ban of pictorial depictions of sexual activity and nudity (except for a limited Artistic

Exception discussed below) was necessary,

from a practical standpoint, to achieve

DOC’s objectives of (1) enhancing the

‘‘safety, security, and order’’ of prison facilities, (2) supporting the rehabilitation of

the inmate population, and (3) ‘‘reduc[ing]

the exposure of [DOC] staff to displays of

sexually explicit materials while in the

workplace,’’ thereby seeking to avoid ‘‘a

hostile work environment, particularly for

female staff.’’ Joint App’x at 99.

The result of the committee’s recommendation was A.D. 10.7, which updates

the prior directive’s definition of sexually

explicit material to include ‘‘[a]ny pictorial

depiction of sexual activity or nudity.’’

Joint App’x at 172. A.D. 10.7 also defines a

non-exhaustive list of banned pictorial depictions of sexual activity including:

1 sexual intercourse, including genitalgenital, oral-genital, or oral-anal contact, whether between persons of the

same sex or opposite sex, with any

artificial device, or any digital penetration;

1 bestiality;

1 masturbation;

1 sadistic or masochistic abuse;

1 depiction of bodily functions, including urination, defecation, ejaculation,

or expectoration;

1 conduct involving a minor, or someone who appears to be under the age

of 18; and

1 sexual activity which appears to be

nonconsensual, forceful, threatening

or violent.

Joint App’x at 179. The regulation further

defines ‘‘[p]ictorial depictions of nudity’’ as

‘‘the visual depiction or display of genitalia,

pubic region, buttock, or female breast at a

point below the top of the areola that is

not completely and opaquely covered.’’

Joint App’x at 179. Shortly after the revised regulation came into effect, however,

DOC determined that the above-referenced definition of nudity was too restrictive because, for example, magazines such

as US Weekly that included photographs

of female actors in cocktail dresses were

banned under the definition. Therefore,

DOC amended A.D. 10.7 to narrow the

definition of nudity to ‘‘the visual depiction

or display of genitalia, pubic region, anus

or female breast where the areola is visible

and not completely and opaquely covered.’’

Joint App’x at 187.

REYNOLDS v. QUIROS

Cite as 25 F.4th 72 (2nd Cir. 2022)

As relevant here, A.D. 10.7 contains several additional limitations. First, A.D. 10.7

includes what the district court referred to

as an ‘‘Artistic Exception’’ whereby material ‘‘taken as a whole’’ that is ‘‘literary,

artistic, educational or scientific in nature’’

is excepted from the ban. Joint App’x at

179. Second, the regulation states that a

publication may not be rejected ‘‘solely

because its content is TTT sexual, or because its content is unpopular or repugnant.’’ Joint App’x at 178. Third, although

broadly banning pictorial depictions of

sexual activity, AD 10.7’s prohibition on

sexually explicit written material largely

mirrors that of the prior version of the

directive, banning only written material

that ‘‘by its nature or content, poses a

threat to the security, good order, or discipline of the facility, or facilitates criminal

activity.’’ Joint App’x at 179. More specifically, A.D. 10.7 states that ‘‘[a] Unit Administrator or designee shall determine

that written sexually explicit material of

the following types is to be excluded: 1.

sado-masochistic; 2. bestiality; 3. involving

minors; or 4. materials depicting sexual

activity which involves the use of force or

without the consent of one or more parties,’’ Joint App’x at 179–80, an essentially

similar prohibition to the one contained in

the prior version of the directive, see Joint

App’x at 97. Therefore, as relevant here,

under A.D. 10.7, written materials of a

sexually-explicit nature outside of these

categories can still be possessed by inmates.

The regulation was phased in over a

one-year period in order to, among other

things, allow inmates to dispose of banned

materials in their possession, and thus the

regulation became effective in June 2012.

II.

The Implementation of A.D. 10.7

As described below, DOC also implemented a procedure for enforcing A.D.

10.7, which included a review of incoming

materials in the mail by DOC officials to

determine whether such materials were

banned under A.D. 10.7.

In practice, the mailroom staff of the

prison conducts a first-level review of all

incoming publications. If a mailroom staff

member reviews a publication and determines it does not violate A.D. 10.7, then it

is admitted. However, if upon review, the

mailroom staff member believes the incoming publication might run afoul of the regulation, the publication is then set aside for

a media review ‘‘point person’’ at the prison to conduct a second-level review. This

media review ‘‘point person’’ may admit,

reject, or present the publication to the

larger Media Review Board (‘‘MRB’’), of

which the ‘‘point person’’ is a member, for

the MRB’s determination. The MRB is a

group of about 19 DOC personnel from all

DOC facilities with distinct backgrounds—

that is, corrections officers, custody supervisors, counselors, treatment officers, support staff, a librarian, and an attorney. The

MRB meets twice per month for threehour sessions and reviews about fifty to

one hundred publications per session. With

a copy of the text of A.D. 10.7 in front of

them for reference, MRB members review

the materials to determine if the publication is prohibited under the regulation. If

the MRB finds that a publication meets

the regulation’s definition of prohibited

material, it then considers whether the

Artistic Exception applies. At trial, MRB

members acknowledged that applying the

Artistic Exception could be, at times, difficult. Any disagreement between MRB

members is put to a simple majority vote,

and the MRB then catalogues the outcome

of every publication it reviews.

Inmates are not left without recourse in

the process. A decision to reject a publication by the media review point person or

the MRB is appealable, and inmates also

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25 FEDERAL REPORTER, 4th SERIES

may preemptively ask DOC if a publication

they are thinking of ordering will be admitted under A.D. 10.7. If a publication is

rejected, the inmate receives a notice indicating the reason (although they are not

allowed to see the publication). The inmate

can first appeal to the MRB chairperson

and then, if unsuccessful, to the DOC

Commissioner’s designee—usually the

prison’s director of security—who conducts

an independent review. The director of

security makes a final decision and sends a

notice to the inmate explaining the reason

for rejection or the reason for reversal of

the MRB’s initial decision. DOC statistics

indicate that approximately 68% of initial

rejections are upheld.

III.

Procedural History

The seven plaintiffs, who were each convicted of a crime in Connecticut and are

serving their respective sentences in a

DOC facility, brought lawsuits challenging

the constitutionality of A.D. 10.7 under the

First Amendment. The district court held

a two-day bench trial in the first case,

Ortiz v. Arnone, No. 3:11-cv-1793 (SRU),

2012 WL 3985173, in January 2015. During

the post-trial briefing in that case, the

district court became aware of the additional cases in the district raising the same

constitutional challenge to A.D. 10.7 and

consolidated all of the cases under Reynolds v. Arnone, No. 3:13-cv-388 (SRU).

The district court also appointed new counsel for plaintiffs and a Second Amended

Complaint was filed in the consolidated

action. The district court subsequently

held a three-day bench trial in April 2019.

After consultation with the parties, the

district court ordered that all of the exhibits and testimony from the Ortiz bench

trial become part of the trial record in this

consolidated action.

In total, the district court heard testimony from fifteen witnesses—including DOC

officials and staff, inmates, and expert witnesses—who testified about the prison environment both before and after the 2012

implementation of A.D. 10.7, the development and implementation of the regulation, and the psychological effect of pornography on inmates. Following the bench

trial in this consolidated action, the district

court issued a 54-page Memorandum of

Decision on March 9, 2020, containing its

findings of fact and conclusions of law.

More specifically, applying the four-factor

test set forth by the Supreme Court in

Turner v. Safley, 482 U.S. 78, 107 S.Ct.

2254, 96 L.Ed.2d 64 (1987), the district

court concluded that A.D. 10.7 did not

violate plaintiffs’ First Amendment rights.

The district court further held that A.D.

10.7 was not unconstitutionally vague.

Judgment was entered for DOC on March

12, 2020.

This appeal followed.

DISCUSSION

On appeal, plaintiffs contend that the

district court erred in concluding that A.D.

10.7 did not violate the First Amendment

to the United States Constitution. Specifically, although conceding that the reasonableness of A.D. 10.7 is analyzed under the

four-factor test set forth in Turner, plaintiffs argue that the district court did not

properly weigh, under the Turner standard, the restriction of inmates’ First

Amendment rights against the penological

interests asserted by DOC. In addition,

plaintiffs assert that the district court incorrectly concluded that the Artistic Exception to A.D. 10.7 was not unconstitutionally vague, either facially or as applied

to them. In particular, they argue that the

Artistic Exception is a subjective standard

that encourages arbitrary decisions by

DOC officials charged with applying it.

[1] Here, we review the district court’s

conclusions of law following a bench trial

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de novo and its findings of fact for clear

error. White v. White Rose Food, Div. of

DiGiorgio Corp., 237 F.3d 174, 178 (2d Cir.

2001). As discussed below, we find both of

plaintiffs’ constitutional challenges to A.D.

10.7 unpersuasive. In its thorough and

well-reasoned decision, the district court

properly balanced the competing rights of

inmates and the interests of DOC officials

under Turner in determining that A.D.

10.7 did not violate plaintiffs’ First Amendment rights, and correctly concluded that

the regulation, including the Artistic Exception, was not unconstitutionally vague.

The First Amendment and Challenges to Prison Regulations

[2–5] In cases involving the constitutional rights of prisoners, we must balance

competing principles. As the Supreme

Court articulated in Turner, ‘‘[p]rison

walls do not form a barrier separating

prison inmates from the protections of the

Constitution.’’ 482 U.S. at 84, 107 S.Ct.

2254. Thus, ‘‘ ‘[w]hen a prison regulation or

practice offends a fundamental constitutional guarantee, federal courts will discharge their duty to protect constitutional

rights.’ ’’ Id. (quoting Procunier v. Martinez, 416 U.S. 396, 405–06, 94 S.Ct. 1800,

40 L.Ed.2d 224 (1974)). On the other hand,

‘‘[t]he fact of confinement and the needs of

the penal institution impose limitations on

constitutional rights, including those derived from the First Amendment, which

are implicit in incarceration.’’ Jones v.

North Carolina Prisoners’ Lab. Union,

433 U.S. 119, 125, 97 S.Ct. 2532, 53

L.Ed.2d 629 (1977). ‘‘A prison inmate,

therefore, retains those First Amendment

rights that are not inconsistent with his

status as a prisoner or with the legitimate

penological objectives of the corrections

system.’’ Giano v. Senkowski, 54 F.3d

1050, 1053 (2d Cir. 1995).

[6] In weighing these competing interests, both the Supreme Court and this

Court have emphasized that deference

should be accorded to decision-making in

the corrections system because courts are

‘‘ill equipped to deal with the increasingly

urgent problems of prison administration

and reform’’ and ‘‘[r]unning a prison is

an inordinately difficult undertaking that

requires expertise, planning, and the

commitment of resources, all of which are

peculiarly within the province of the legislative and executive branches of government.’’ Turner, 482 U.S. at 84–85, 107

S.Ct. 2254 (internal quotation marks

omitted); accord Giano, 54 F.3d at 1053.

Moreover, given the doctrine of federalism, the exercise of our judicial restraint

is especially important where, as here,

the administration of a state penal system is at issue. Giano, 54 F.3d at 1053.

[7–9] Therefore, in Turner, the Supreme Court concluded that the appropriate standard of review is ‘‘reasonableness.’’

482 U.S. at 89, 107 S.Ct. 2254. More specifically, under this deferential standard,

‘‘[w]hen a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid if it is reasonably related to

legitimate penological interests.’’ Id. The

Turner Court articulated a four-factor test

for assessing the reasonableness of a prison regulation: (1) whether there is a valid

and rational connection between the prison

regulation and the legitimate, neutral government rationale offered to justify it; (2)

whether the prisoner has an alternative

means of exercising the constitutional

right; (3) the impact that accommodating

the prisoner’s constitutional right would

have on corrections staff, other inmates,

and the general allocation of prison resources; and (4) whether there are ready

alternatives to the prison regulation such

that the regulation would be an exaggerated response to prison concerns. Id. at 89–

91, 107 S.Ct. 2254. Further, the burden of

proof ‘‘is not on the State to prove the

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25 FEDERAL REPORTER, 4th SERIES

validity of prison regulations but on the

prisoner to disprove it.’’ Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156

L.Ed.2d 162 (2003).

In Giano, applying the Turner standard,

we held that New York’s policy of banning

inmates from possessing nude photographs

of their wives and girlfriends did not violate the First Amendment. 54 F.3d at

1051. In addition, many of our sister Circuits have upheld as reasonable under

Turner prison policies similar to the one at

issue here, including bans on nude photographs and/or sexually explicit materials,

because such bans were based upon one or

more legitimate penological interests. See,

e.g., Jones v. Salt Lake County, 503 F.3d

1147 (10th Cir. 2007) (upholding a Utah

county jail’s ban on sexually explicit materials to protect safety and security of the

prison, employees, and other inmates);

Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.

1999) (en banc) (upholding a county jail’s

ban on sexually explicit materials under

rationales of safety and security, inmate

rehabilitation, and the promotion of a nonhostile work environment for female employees); Waterman v. Farmer, 183 F.3d

208 (3d Cir. 1999) (upholding a ban on

‘‘sexually oriented and obscene materials’’

in a facility exclusively housing sex offenders); Amatel v. Reno, 156 F.3d 192 (D.C.

Cir. 1998) (upholding the federal Bureau of

Prison’s regulation banning commercial

nude photographs); see also Fauconier v.

Clarke, 257 F. Supp. 3d 746 (W.D. Va.

2017), aff’d, 709 F. App’x 174 (4th Cir.

2018) (per curiam) (upholding Virginia’s

ban on prisoner access to publications containing nudity or sexually explicit acts),

cert. denied, ––– U.S. ––––, 139 S. Ct. 1353,

203 L.Ed.2d 590 (2019); Josselyn v. Dennehy, 333 F. App’x 581 (1st Cir. 2009) (per

curiam) (upholding Massachusetts’ ban on

sexually explicit materials or those that

feature nudity to help ensure the safety

and security of prisons); Strope v. Collins,

315 F. App’x 57 (10th Cir. 2009) (upholding

a Kansas prison regulation banning pictures containing nudity under asserted rationales of reducing harassment of staff

and managing the sex offender inmate

population); see generally Trapnell v.

Riggsby, 622 F.2d 290 (7th Cir. 1980) (upholding, prior to Turner, a federal prison’s

ban on non-commercial nude and pornographic photographs due to safety and security concerns).5

II.

Analysis of A.D. 10.7 under the Turner Standard

Plaintiffs’ primary argument is that the

district court misapplied the Supreme

Court’s four-factor test as articulated in

Turner to the facts of this case. DOC

offered the following justifications for A.D.

10.7: (1) ensuring the safety and security

of prisons; (2) encouraging the rehabilitation of inmates; and (3) promoting a nonhostile and less offensive work environment for DOC employees. Here, plaintiffs

focus on the first Turner factor, but nevertheless assert that all of the Turner factors ‘‘confirm that A.D. 10.7 is neither a

neutral nor legitimate restriction of inmate’s rights.’’ Appellants’ Br. at 22. We

disagree and hold that the district court

correctly concluded, under the Turner factors, that A.D. 10.7 does not violate plaintiffs’ First Amendment rights.

The First Turner Factor: Rational

Relationship to a Legitimate Penological Interest

The Supreme Court has explained that

‘‘[t]he first Turner factor is multifold’’ and

But see Couch v. Jabe, 737 F. Supp. 2d 561

(W.D. Va. 2010) (holding unconstitutional a

Virginia regulation which banned sexually explicit books from prisons, including Ulysses

13a

and Lady Chatterley’s Lover, but not softcore

pornography such as Playboy magazine);

Cline v. Fox, 319 F. Supp. 2d 685 (N.D. W.

Va. 2004) (similar).

REYNOLDS v. QUIROS

Cite as 25 F.4th 72 (2nd Cir. 2022)

requires proof that ‘‘the governmental objective underlying the regulations at issue

is [1] legitimate and [2] neutral, and that

[3] the regulations are rationally related to

that objective.’’ Thornburgh v. Abbott, 490

U.S. 401, 414, 109 S.Ct. 1874, 104 L.Ed.2d

459 (1989).

As discussed below, A.D. 10.7 is rationally related to several legitimate penological

interests—promoting a non-hostile work

environment for corrections staff, enhancing the safety and security of DOC facilities, and facilitating the rehabilitation of

sex offenders in DOC facilities—and A.D.

10.7 is neutral in its application. We discuss each of these penological interests in

turn.

[10] Non-Hostile Work Environment.

DOC asserts the promotion of a non-hostile work environment in DOC facilities as

a penological interest in support of A.D.

10.7. The district court found that A.D.

10.7 is ‘‘rationally related to enhancing a

less offensive and non-hostile work environment.’’ Special App’x at 41. More specifically, the district court explained that

‘‘[i]t is plainly rational to believe that removing sexually explicit pictorial depictions from DOC facilities would improve

the hyper-sexualized environment within

those facilities.’’ Special App’x at 41. Plaintiffs characterize the district court’s conclusions as ‘‘merely a restatement of the

false and moralistic claim that the possession of sexually explicit materials causes

bad behavior among men’’ and contend

that ‘‘[t]here is no evidence to support this

opinion.’’ Appellants’ Br. at 37. We disagree with plaintiffs and conclude that the

record fully supported the district court’s

conclusion that A.D. 10.7 is rationally related to the penological objective of seeking to provide a non-hostile work environment for DOC staff.

[11] The First Amendment does not

confer upon an inmate the right to possess

or display pictorial depictions of sexually

explicit conduct, such that it creates a hostile work environment for corrections staff.

See Mauro, 188 F.3d at 1059 (‘‘[A]lthough

no court has addressed whether reducing

sexual harassment of prison employees is a

legitimate penological interest, there is no

doubt that protecting the safety of guards

in general is a legitimate interest, and that

reducing sexual harassment in particular

likewise is legitimate.’’). In fact, numerous

Circuit courts have held that correctional

facilities can be held liable under Title VII

of the Civil Rights Act of 1964 for failing

to remedy a sexually hostile work environment for its employees created by inmates’

behavior. See Beckford v. Dep’t of Corr.,

605 F.3d 951, 958 (11th Cir. 2010) (collecting cases); see also Freitag v. Ayers, 468

F.3d 528, 539 (9th Cir. 2006) (‘‘Nothing in

the law suggests that prison officials may

ignore sexually hostile conduct and refrain

from taking corrective actions that would

safeguard the rights of the victims, whether they be guards or inmates.’’). As set

forth below, there was more than sufficient

evidence in the record to support the district court’s conclusion that such a hostile

work environment existed in DOC facilities, and that DOC rationally implemented

A.D. 10.7 to address this legitimate penological interest.

The district court relied upon evidence

that, prior to the implementation of A.D.

10.7, sexually explicit materials were found

throughout DOC facilities—hanging on the

walls and in inmate lockers. For example,

Eileen Redden, DOC’s director of sex offender treatment programs in DOC, testified that she ‘‘often observed pornographic

images TTT taped on [the] windows [of

inmates’ cells] facing outward so the female staff was forced to look at them.’’

Special App’x at 5. Similarly, Commissioner Arnone wrote in 2011 that ‘‘sexually

explicit pictures are [ ] found inside inmate

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25 FEDERAL REPORTER, 4th SERIES

lockers and displayed in other areas of

correctional facilities where staff is exposed to them.’’ Special App’x at 4. Moreover, Deputy Commissioner Monica Rinaldi testified that the common availability of

pornography among inmates created ‘‘a

very sexually charged environment.’’ Special App’x at 5. Indeed, even one of the

plaintiffs testified that DOC facilities were

not a ‘‘pleasant environment’’ for female

staff. Deferred App’x (‘‘Def. App’x’’) at 98.

Moreover, several witnesses described

‘‘gunning,’’ i.e., masturbating in front of

female staff, to be a prevalent practice at

DOC facilities. The district court recounted testimony from Captain Julie Kunkel

who testified that, as a DOC corrections

officer in the 1990s, ‘‘it was pretty gross

being a female’’ officer and that she ‘‘can

still hear the sounds of the inmates masturbating when you walked on the tier,’’

which ‘‘happened a lot.’’ Special App’x at

5–6. Former Warden Anne Cournoyer testified that, while she was touring a unit as

a correctional counselor, prisoners ‘‘oftentimes TTT would strip down to be naked

and just stand there and wait for [her] to

come’’ to then engage in masturbation in

front of her. Def. App’x at 130–31. She

emphasized that this created ‘‘a very

threatening environment’’ for DOC staff.

Def. App’x at 131. Accordingly, DOC characterizes its own facilities prior to 2012 as

having been ‘‘a horrific, hostile and threatening environment, especially for women

working in DOC.’’ Appellees’ Br. at 6.

For their part, plaintiffs do not dispute

the evidence regarding the severity of the

work environment female staff faced at

DOC facilities. See Appellants’ Reply Br.

at 13 (‘‘Plaintiffs never doubted or dismissed legitimate concerns that female

staff are subjected to harassment in these

facilities—including harassment from prisoners and male staff.’’). Instead, plaintiffs

contend that ‘‘the evidence at trial was

that a ban on sexually explicit materials

was not a rational means of combatting

this workplace harassment.’’ Id. We disagree. Both logic and the trial evidence

established that A.D. 10.7 was a rational

means of addressing these serious workplace issues.

[12] Common sense dictates that, if the

possession and display of these sexually

explicit pictorial materials by inmates created an offensive and hostile workplace

environment for staff, banning such materials is a rational means of rectifying and

improving that workplace environment. As

we have previously held, ‘‘[i]t is rational to

censor any materials found to create an

intolerable risk of disorder under the conditions of a particular prison at a particular time.’’ Shakur v. Selsky, 391 F.3d 106,

114 (2d Cir. 2004) (internal quotation

marks omitted). Indeed, the evidence at

trial provided further support for that rational inference. For instance, following

the implementation of A.D. 10.7, DOC employees reported a more respectful workplace environment, including significantly

fewer instances of gunning. One DOC official noted that ‘‘morale TTT has improved’’

among employees following the implementation of the pornography ban under A.D.

10.7. Def. App’x at 29. Similarly, DOC

statistics bore out these observations and

sentiments of DOC employees, as there

was a significant reduction in public indecency tickets issued in DOC facilities after

A.D. 10.7 came into effect: from a peak of

494 tickets in 2012 to only 79 tickets in

2018.

On appeal, plaintiffs argue that much of

the pre-2012 hostile work environment was

due to the behavior of male staff, rather

than inmates, as evidenced by lawsuits

filed by female DOC staff. However, as

plaintiffs themselves acknowledge, the lawsuits brought by female staff against male

staff alleging sexual harassment were set-

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tled in April 2003—almost ten years before

A.D. 10.7 was implemented—and the hostile work environment persisted. Moreover, as noted above, the testimony and

other evidence at trial made clear that the

hostile work environment observed and reported by DOC staff was attributable to

the conduct of inmates, apart from any

other issues that may have remained in

DOC facilities with regard to harassing

conduct committed by staff.

Additionally, plaintiffs contend that the

committee that devised and recommended

A.D. 10.7 did so without consulting either

an advisory committee on women’s issues

or a working group on sexual harassment,

both formed by DOC in response to the

prior sexual harassment litigation. However, it is unclear why such consultation

would be required when the DOC Commissioner formed a separate committee to focus on sexual harassment and hostility

emanating from inmates, including the

practice of gunning. There is nothing irrational about DOC seeking to reduce overall

hostility in the workplace from both

sources by forming separate groups to

deal with harassment by male staff and

then implementing a regulation to confront

and reduce sexual harassment by inmates.

Although some consultation between the

two committees may have been constructive or prudent, the lack of such consultation does not render A.D. 10.7 irrational.

In sum, we conclude under the first

Turner factor that A.D. 10.7 is rationally

related to the legitimate penological interest of promoting a non-hostile work environment for DOC staff.

[13] Safety and Security. Another penological interest asserted by DOC in support of A.D. 10.7 is the safety and security

of its prisons. DOC argued, inter alia,

that: (1) the bartering of sexually explicit

materials often leads to fights between

inmates, which would be avoided with the

pornography ban; (2) the ban would improve cell shakedowns (i.e., thorough

searches of inmates’ cells); and (3) the ban

would reduce inmate aggression in DOC

facilities. As an initial matter, the district

court, relying on ‘‘rudimentary supply-anddemand economics,’’ rejected the DOC’s

first justification for the pornography ban

based on the avoidance of fights related to

the bartering of pornography. Special

App’x at 34 (‘‘[T]he underground price of

sexually explicit material in DOC facilities

has risen since the 2012 ban TTT [which]

makes it much more likely that bartering

of sexually explicit materials will cause

fights because inmates are more likely to

fight over large debts than over small

debts.’’ (emphasis added)). However, the

district court held that DOC’s other safety

and security rationales provide additional

support for the reasonableness of A.D. 10.7

under the first Turner factor. We agree

and hold that there is sufficient evidence in

the record to support the district court’s

conclusions as to these safety and security

justifications.

As described by a DOC official, prior to

the implementation of A.D. 10.7, cell

shakedowns, typically conducted by two

corrections officers, would reveal contraband items such as ‘‘drugs, currency and

razors’’ found ‘‘concealed behind or within

[ ] pornographic materials and photographs.’’ Def. App’x at 460–61. In one instance recounted at trial, a corrections officer described finding ‘‘Latin King hand

signs’’ hidden within a Penthouse magazine. Def. App’x at 24. The district court

also credited trial testimony from both an

inmate and a DOC official that female

corrections officers were particularly disinclined to search through pornography

while performing cell shakedowns. Def.

App’x at 5, 25 (inmate and corrections

officer describing how male corrections officers would review sexually explicit mate-

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25 FEDERAL REPORTER, 4th SERIES

rials instead of their female counterparts);

accord Def. App’x at 93 (a plaintiff stating

that, in his experience, two female officers

would not together conduct a cell shakedown).

Both below and now on appeal, plaintiffs

argue that there is no evidence that cell

shakedowns are more effective since the

2012 ban. They also argue that there is no

evidence that the presence of sexually explicit materials prevented corrections officers from searching cells or posed a health

or safety risk to officers conducting

searches. However, we conclude that there

is no basis to disturb the district court’s

finding that the ‘‘presence of sexually explicit materials’’ made it ‘‘more likely that

a corrections officer conducting a shakedown w[ould] miss something the officer

otherwise might have caught.’’ Special

App’x at 33. There was evidence in the

record to support DOC’s view that cell

shakedowns became more effective and efficient because officers were, inter alia,

more apt to search cells thoroughly when

they no longer had to avoid pornographic

materials because of ‘‘embarrassment,’’

‘‘disgust,’’ and concerns for hygiene. Def.

App’x at 410–11, 461. Thus, the need to

conduct efficacious cell shakedowns in

maintaining a safe and secure prison facility supports the reasonableness of A.D.

10.7.

We similarly find no error in the district

court’s conclusion that ‘‘it is reasonable for

[DOC] to have believed that the availability of pornographic material would make it

easier for predators to sexually assault

other inmates.’’ Special App’x at 36. More

specifically, Redden, who oversaw DOC’s

sex offender treatment program, including

facilitating therapy sessions for DOC inmates, recounted her experience interviewing victims of sexual assault within the

prison who described a ‘‘pattern’’ of predatory behavior, whereby predators would

offer pornography to their intended victims as a tool of manipulation. Def. App’x

at 432. The trial record also contained

statements by the United States Department of Justice’s National Institute of Corrections on the subject of inmate sexual

assault, averring that prison predators

may use pornography ‘‘to manipulate other

inmates.’’ Def. App’x at 331.

Plaintiffs argued at trial that ‘‘lots of

guys look at pornography,’’ and that

‘‘doesn’t mean they’re going to rape their

cell mate.’’ Special App’x at 33. However,

the question under the Turner test is not

whether such violence is common or likely,

but rather whether it was rational for

DOC to believe that at least some violence

in the prison facility could be prevented

through the regulation. In other words,

although the evidence is far from definitive on the relationship between inmate

aggression and the viewing of pornography, DOC was not required to demonstrate ‘‘extensive empirical support TTT

before making the common sense determination that these photographs may provoke violence.’’ Giano, 54 F.3d at 1055.

Thus, in Giano, we upheld a prison ban on

nude photographs of inmates’ wives, girlfriends, and other loved ones, rejecting

the ‘‘need for extensive factual ‘proof’ of

the link [between the legitimate government interest and the prison’s policy] TTT

because we accord substantial deference

to the informed judgment of prison officials on matters of prison administration.’’

Id.; see also Thornburgh, 490 U.S. at 417,

109 S.Ct. 1874 (‘‘We agree that it is rational for the Bureau [of Prisons] to exclude

materials that, although not necessarily

‘likely’ to lead to violence, are determined

by the warden to create an intolerable risk

of disorder under the conditions of a particular prison at a particular time.’’).

Here, according that same ‘‘substantial

deference to the informed judgment of

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prison officials’’ that we articulated in Giano, 54 F.3d at 1055, there was sufficient

record evidence to support DOC’s reasonable belief that the pornography ban would

improve safety and security in the prison

by reducing the amount of inmate-on-inmate sexual violence. Other courts have

reached the same conclusion under analogous circumstances. See, e.g., Jones, 503

F.3d at 1155–56 (‘‘The jail’s ban on inmate

access to ‘sexually explicit material’ and

‘technical publications’ is expressly aimed

at advancing jail security and the ban on

‘sexually explicit material’ also protects the

safety of jail personnel and other inmates.’’); Trapnell, 622 F.2d at 293 (‘‘The

defendants proved, to the satisfaction of

the magistrate [judge] in the proceedings

below, that the propensity for violence is

increased by the possession of such photos.

This conclusion is supported by the highly

emotionally charged nature of the photographs and the assaultive background of

[the facility’s] inmates.’’ (internal quotation

marks and citation omitted)).

In short, A.D. 10.7 is reasonably related

to the legitimate penological interest of

improving safety and security in the prison

not only for DOC staff, but for the inmates

themselves.

[14] Rehabilitation. The additional

penological interest asserted by DOC—

that the ban would promote the rehabilitation of inmates—was debated at length in

the district court. The debate centered on

the rehabilitative effect of the pornography

ban as to both sex offender and non-sex

offender inmates. After hearing the trial

evidence, the district court declined to take

a position as to whether ‘‘the connection

between the 2012 ban is reasonably related

to the goal of rehabilitating all inmates,’’

Special App’x at 40, but concurred with

other courts that have found a rational

relationship ‘‘between bans on sexually explicit materials and the rehabilitative goal

of reducing the likelihood that sexual offenders will commit future sex crimes or

violence against women,’’ Special App’x at

38. The district court stated that, ‘‘[i]n this

case, both record evidence and common

sense support that conclusion.’’ Special

App’x at 38.

We conclude that there was sufficient

evidence in the trial record for the district

court to reach this conclusion. Redden,

based upon her research and more than

30,000 hours of experience providing programs and treatment to sex offenders, testified that the ubiquitous exposure to pornography in DOC facilities interferes with

the rehabilitation efforts of sex offenders.

She explained that pornography has negative effects on sex offenders and their rehabilitation because pornography reinforces tendencies to objectify others and to

de-sensitize sex offenders to their victims.

Citing research by Gert Hald, Neil Malamuth, and Carlin Yuen, Redden testified to

a correlation between viewing pornography and ‘‘problem’’ sexual behavior, as well

as negative attitudes towards women. Def.

App’x at 430–31. Moreover, relying on her

own experience talking to sex offenders

housed in DOC facilities, Redden further

explained, as it related to DOC facilities,

that sex offenders ‘‘often complained’’

about the prevalence of pornography in

prison because they ‘‘could not get away

from it.’’ Def. App’x at 429. Redden further

noted that, in addition to sex offender inmates complaining about the prevalence of

pornography in their housing units, they

would ‘‘use pornography as a primary

source of meeting emotional, psychological

and sexual needs, thereby disabling their

ability to relate and create attachments’’

and that the use of pornography might

even ‘‘break[ ] down their ability to view or

participate in sexual activities in any

healthy way.’’ Def. App’x at 429.

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25 FEDERAL REPORTER, 4th SERIES

Other courts also have shared the district court’s conclusion that the reasonableness of the pornography regulation is

supported not only by this type of psychological evidence, but also by common

sense. See generally Amatel, 156 F.3d at

199 (‘‘[T]he regulations restrict prison consumption of publications that implicitly

elevate the value of the viewer’s immediate

sexual gratification over the values of respect and consideration for others. Common sense tells us that prisoners are more

likely to develop the now-missing self-control and respect for others if prevented

from poring over pictures that are themselves degrading and disrespectful.’’).

In response, plaintiffs argued that the

national recidivism rate among sex offenders was extremely low, and the rate among

formerly incarcerated prisoners in DOC

facilities was even lower. Plaintiffs’ expert,

Dr. Robert Selverstone, a psychologist and

sex educator, countered Redden’s testimony and opined that viewing pornography

has generally either neutral or positive

effects and helps with ‘‘self-soothing, [ ]

self-control, [and] stress release.’’ Def.

App’x at 104. He also disputed that there

was a negative relationship between the

availability of pornography and sex offenders’ negative attitudes towards women.

To be sure, as the district court acknowledged, there is no doubt a difference

of expert opinion as to whether the viewing of adult pornography interferes with

the rehabilitation of sex offenders. However, as discussed above in connection with

the safety and security interest, all that

Turner requires is that there be a rational

connection between the policy and the regulation. As the Ninth Circuit explained in

Mauro:

The relationship between the jail’s policy

of prohibiting the possession of sexually

explicit materials and the goals of preventing sexual harassment of the female

officers, inmate rehabilitation and maintenance of jail security is not so remote

as to render the policy arbitrary or irrational. Although, as the defendants candidly admit, the ‘fit’ between the policy

and the jail’s objectives is not ‘exact,’ an

exact fit is not required. Rather, all that

is required is that there be a ‘rational’

connection between the policy and the

jail’s legitimate objectives. This standard

is met.

188 F.3d at 1060 (internal quotation marks

and citations omitted); accord Amatel, 156

F.3d at 199 (‘‘It does not matter whether

we agree with the legislature, only whether we find its judgment rational. The question for us is not whether the regulation in

fact advances the government interest,

only whether the legislature might reasonably have thought that it would.’’).

Here, we similarly hold that this modest

standard has been met. Indeed, even plaintiffs’ expert, Dr. Selverstone, acknowledged at trial that at least some of the

research supported Redden’s experience

and testimony that ‘‘exposure to pornography TTT was correlated with negative attitudes toward women.’’ Def. App’x at 113.

Thus, there was sufficient evidence, as

found by the district court, to support the

conclusion that it was ‘‘valid and rational’’

for DOC to implement a pornography ban

to promote the rehabilitation of sex offenders in DOC facilities.6 Giano, 54 F.3d at

1055.

In reaching this decision, we recognize

that the plaintiffs in this case are not sex

offenders and, thus, may question why this

rationale should apply at all to their ability

The district court did not address (nor do

we) the broader argument made by DOC that

A.D. 10.7 facilitates not only rehabilitation for

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sex offenders, but for all inmates by reducing

the risk of criminal behavior upon their release.

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to access such materials. Indeed, sex offender inmates could similarly argue that,

even though adult pornography affects rehabilitation for some sex offenders, it does

not necessarily affect rehabilitation for all

sex offenders.7 However, because sex offenders are housed with the general inmate population in DOC facilities, it was

reasonable for DOC to conclude, as a practical matter, that it would be impossible to

limit access and exposure to pornography

to only some inmates, and thus application

of A.D. 10.7 to all inmates was a rational

means to promote the legitimate penological interest of rehabilitation for, at a minimum, a subset of sex offenders as to whom

DOC reasonably believed such materials

were harmful.

Finally, we emphasize that, even in the

absence of DOC’s hotly-debated rehabilitation justification, the other legitimate penological interests asserted by DOC—that

is, promoting a non-hostile work environment for DOC staff and ensuring the safety and security of staff and inmates alike—

each independently support the constitutionality of A.D. 10.7 under this component

of the Turner test.

* * *

[15, 16] The first Turner factor also

requires that the legitimate governmental

objective be ‘‘neutral.’’ Turner, 482 U.S. at

90, 107 S.Ct. 2254. As the Supreme Court

clarified in Thornburgh, Turner does not

require the regulation to necessarily be

content-neutral; rather, the ‘‘reference to

‘neutrality’ in Turner was intended to go

no further than [to] require[ ] TTT that the

regulation or practice in question must

further an important or substantial governmental interest unrelated to the suppression of expression.’’ 490 U.S. at 415,

109 S.Ct. 1874 (internal quotation marks

and citation omitted). Therefore, ‘‘[w]here

TTT prison administrators draw distinctions between publications solely on the

basis of their potential implications for

prison security, the regulations are ‘neutral’ in the technical sense in which [the

Supreme Court] meant and used that term

in Turner.’’ Id. at 415–16, 109 S.Ct. 1874;

see also Hanrahan v. Mohr, 905 F.3d 947,

956 (6th Cir. 2018) (‘‘[T]he ‘technical sense’

of the term ‘neutral’ does not require that

a regulation be divorced from the speech’s

content—indeed, the [Supreme] Court recognized that the publication regulations

upheld in Thornburgh ‘turn[ed], to some

extent, on content.’ ’’ (quoting Thornburgh,

490 U.S. at 415–16, 109 S.Ct. 1874)).

[17] Here, A.D. 10.7 furthers substantial penological interests unrelated to the

suppression of expression—i.e., protecting

DOC staff from a hostile work environment, ensuring the safety and security of

DOC facilities, and facilitating the rehabilitation of sex offender inmates. Moreover,

A.D. 10.7 draws distinctions between

We have grappled with this precise issue in

the context of special conditions of supervised

release for sex offenders upon their release

from prison. More specifically, we have held

that district courts should make a specific

finding to support the necessity of an adult

pornography ban as a special condition of

supervised release. See United States v. Eaglin,

913 F.3d 88, 100 (2d Cir. 2019) (‘‘Imposing a

wholesale ban on accessing adult pornography might be justified TTT where a mental

health professional testified that viewing pornography would be detrimental to the defendant’s rehabilitation.’’ (citation omitted)); see

20a

also United States v. Betts, 886 F.3d 198, 202

(2d Cir. 2018) (holding that, in the absence of

an explanation as to the reason for a special

condition, ‘‘we may uphold the condition imposed only if the district court’s reasoning is

self-evident in the record’’ (internal quotation

marks and citation omitted)). In any event,

under certain circumstances, we have upheld

the special condition of an adult pornography

ban on supervised release as reasonably necessary to accomplish the goals of sentencing

for sex offenders. See United States v. Savastio, 777 F. App’x 4, 7 (2d Cir. 2019) (summary

order) (collecting cases).

25 FEDERAL REPORTER, 4th SERIES

banned sexually explicit pictorial materials

that substantially undermine these important penological interests and are therefore banned, as compared to pictorial materials containing sexual content that fall

within the Artistic Exception and various

categories of written sexually explicit materials that are not prohibited under A.D.

10.7. Therefore, the district court properly

concluded that A.D. 10.7 satisfied the ‘‘neutrality’’ requirement in Turner.

B. The Second Turner Factor: Alternative Avenues of Expression

[18] The second Turner factor assesses whether ‘‘there are alternative means of

exercising the right that remain open to

prison inmates.’’ Turner, 482 U.S. at 90,

107 S.Ct. 2254. In other words, we consider what ‘‘other avenues remain available

for the exercise of the asserted right.’’ Id.

(internal quotation marks omitted). Here,

plaintiffs seek to define the right as ‘‘to

possess and view pictorial depictions of

nudity and sexual activity.’’ Appellants’ Br.

at 38. Thus, they argue, the second Turner

factor favors them because A.D. 10.7 prohibits all pictorial pornography.

[19, 20] However, we define the right

at issue ‘‘sensibly and expansively’’ and

‘‘allow for flexibility in determining what

qualifies as another means of expression.’’

Giano, 54 F.3d at 1055 (first quoting

Thornburgh, 490 U.S. at 417, 109 S.Ct.

1874; then citing Turner, 482 U.S. at 92,

107 S.Ct. 2254). Accordingly, we decline to

accept the formulation of the right as proposed by plaintiffs and, instead, agree with

the district court’s adoption of the broader

‘‘right to receive sexually explicit communications.’’ Special App’x at 44. As noted

above, in addition to allowing pictorial materials containing sexual content that are

not within the definition of ‘‘sexually explicit’’ or fall within the Artistic Exception,

A.D. 10.7 also permits possession by in-

mates of various categories of written sexually explicit materials.

[21] Plaintiffs assert that writings are

not the same as pictures for purposes of

the First Amendment and that pictorial

materials protected by the Artistic Exception or sexually suggestive television

shows and commercials (which are not

prohibited by A.D. 10.7) are not the same

as, for example, a Playboy magazine. However, prison officials need not provide alternative means of expression that are

identical in nature to the banned modes of

expression to withstand a constitutional

challenge; rather, courts look to see

whether the prison officials allow similar

alternative forms of expression that are

consistent with the penological interests at

stake.

[22] For example, in Giano, we upheld

a prison regulation banning nude and sexually explicit photographs of wives and

girlfriends of inmates under the second

Turner factor because inmates could still

receive ‘‘commercially produced erotica’’ or

‘‘conventional photographs [of loved ones]

and romantic letters.’’ 54 F.3d at 1056; see

also Mauro, 188 F.3d at 1061 (defining the

relevant right, in evaluating a prison ban

on sexually explicit materials including

frontal nudity, as ‘‘the right to receive

sexually explicit communications’’). Therefore, although a sexually-suggestive television show or a sexually-explicit novel may

be an imperfect substitute for a Playboy,

just as a romantic letter from a loved one

is different from a sexually-explicit photograph of that loved one as analyzed in

Giano, the alternatives available in DOC

facilities for the receipt of sexually explicit

communications, as well as pictorial materials with sexual content that fall under

the Artistic Exception or are outside the

definition of ‘‘sexually explicit,’’ are sufficient for us to conclude that ‘‘ ‘other avenues’ remain available for the exercise of

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the asserted right.’’ Giano, 54 F.3d at 1056

(quoting Turner, 482 U.S. at 90, 107 S.Ct.

2254). Thus, A.D. 10.7 satisfies the second

Turner factor.

C. The Third Turner Factor: Ripple

Effect of the Asserted Right

[23, 24] The third Turner factor requires us to evaluate ‘‘the impact accommodation of the asserted constitutional

right will have on guards and other inmates, and on the allocation of prison resources generally.’’ Turner, 482 U.S. at 90,

107 S.Ct. 2254. When ‘‘the ripple effect’’

from the accommodation would be significant, ‘‘courts should be particularly deferential to the informed discretion of corrections officials.’’ Id. (internal quotation

marks omitted). The district court concluded that ‘‘accommodating the Plaintiffs’ asserted right to receive sexually explicit

communications would have a significant

ripple effect on fellow inmates and prison

staff.’’ Special App’x at 44. Based upon the

district court’s factual findings during the

bench trial, which survive clear error review, there was sufficient evidence in the

record for the district court to reach this

conclusion as to the third Turner factor.

As discussed in reference to the first

Turner factor, there was substantial evidence that DOC’s pre-A.D. 10.7 policy had

resulted in sexually explicit pictorial materials being rampantly displayed and possessed by inmates, which had a ‘‘ripple

effect’’ on staff in terms of the work environment, as well as on staff and inmates as

it related to safety and security concerns

in the prison facilities and the rehabilitation of sex offender inmates. See Amatel,

156 F.3d at 201 (noting that the third

Turner factor is ‘‘in part a restatement of

the deferential balancing called for under

the first factor’’). In short, we need not

resort to a prediction about the ripple

effect that may be caused by the inmates’

assertion of the right at issue here—that

is, the right to unrestricted access to sexually explicit pictorial materials. Instead, as

was demonstrated by the evidence credited

by the district court after an extensive

bench trial, such a ripple effect on staff

and inmates from the assertion of that

right had already been experienced and

documented for many years within DOC

facilities prior to the implementation of

A.D. 10.7. There is sufficient evidence in

the record that, prior to the implementation of A.D. 10.7 in 2012, the inmate right

at issue was being exercised with significant costs to the work environment of

DOC staff and with risk to the safety and

security of staff and inmates alike, as well

as the rehabilitation of sex offender inmates. Under those circumstances, we

should defer to the ‘‘informed discretion of

corrections officials’’ under the third Turner factor. 482 U.S. at 90, 107 S.Ct. 2254.

The Fourth Turner Factor: The

Existence of Obvious, Easy Alternatives

[25, 26] The fourth Turner factor considers whether there are easily available

alternatives to the regulation. As the Supreme Court explained in Turner, ‘‘[t]he

existence of obvious, easy alternatives [to

the regulation] may be evidence that the

regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.’’

482 U.S. at 90, 107 S.Ct. 2254. However,

the Court emphasized that ‘‘[t]his is not a

‘least restrictive alternative’ test’’ and

‘‘prison officials do not have to set up and

then shoot down every conceivable alternative method of accommodating.’’ Id. Instead, ‘‘if an inmate claimant can point to

an alternative that fully accommodates the

prisoner’s rights at de minimis cost to

valid penological interests, a court may

consider that as evidence that the regulation does not satisfy the reasonable rela-

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25 FEDERAL REPORTER, 4th SERIES

tionship standard.’’ Id. at 91, 107 S.Ct.

2254.

[27] As a potential alternative, plaintiffs point to a two-tiered system whereby

inmates would be able to possess photographs of nudity (softcore pornography)

but not of sexually explicit acts (hardcore

pornography). Although Turner does not

require DOC to consider every conceivable alternative method of accommodation,

this and other alternatives were explicitly

considered and rejected by the DOC committee after ‘‘[s]ubstantial thought and

discussion’’ (including a review of two-tiered approaches by other states) that led

to the conclusion that ‘‘any form of a divided policy’’ was not a viable alternative.

Joint App’x at 100. More specifically, as

the DOC committee further explained, a

partial ban would require ‘‘an ongoing

monitoring system’’ with ‘‘subjective standards that would be difficult to codify into

any kind of a strictly objective criteria.’’

Joint App’x at 100. As one DOC official

and committee member further noted, a

partial ban ‘‘would, therefore, result in an

inconsistent implementation of the policy’’

and in a system that ‘‘would be [both] financially costly and labor intensive.’’ Def.

App’x at 438. After weighing these various

practical considerations, the Committee

concluded:

In the end, it seems prudent to the

committee that if we as an agency feel

strongly enough about the detrimental

effects on our staff and the inmates resulting from the presence of such publications in our correctional facilities, then

a total ban makes the most sense, would

be the easiest to implement, and would

be the most practical.

Joint App’x at 101.

The burden of proof ‘‘is not on the State

to prove the validity of prison regulations

but on the prisoner to disprove it.’’ Overton, 539 U.S. at 132, 123 S.Ct. 2162. Here,

plaintiffs have failed to adequately address

the practical obstacles to the implementation of a partial ban and have not demonstrated that any type of partial ban was an

‘‘obvious, easy alternative[ ] to the policy.’’

Giano, 54 F.3d at 1056. As the district

court additionally noted, ‘‘[t]he fact that

numerous other correctional systems employ similar bans on sexually explicit publications is further evidence that there are

no obvious, easy alternatives to the 2012

ban at issue here.’’ Special App’x at 48.

Plaintiffs have similarly failed to demonstrate, through other proposed alternatives

or any other proof in the record, that A.D.

10.7 is an ‘‘ ‘exaggerated response’ to prison concerns.’’ Turner, 482 U.S. at 90, 107

S.Ct. 2254. To the contrary, DOC even

updated the definition of nudity shortly

after implementing A.D. 10.7 when it became clear that the prior definition was

unnecessarily restrictive.

[28] We are also unpersuaded by plaintiffs’ suggestion that DOC had the viable

alternative of increasing the enforcement

of prohibitions against, and punishment

for, certain infractions such as gunning,

that would address all of DOC’s broader

legitimate penological goals. Critically,

plaintiffs do not explain how such an alternative (even if effective at reducing such

infractions) would address the broader penological interests regarding the workplace and the safety and security of the

prison, as well as the rehabilitation of sex

offender inmates, created by the possession and/or display of these pictorial materials. In short, plaintiffs have failed to

‘‘point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests.’’ Id.

at 91, 107 S.Ct. 2254. Accordingly, we

agree with the district court that the

fourth Turner factor also weighs in favor

of defendants because plaintiffs have failed

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to demonstrate that there are any easily

available alternatives to A.D. 10.7.

In sum, A.D. 10.7 satisfies the reasonableness test set forth in the Turner factors and does not violate plaintiffs’ First

Amendment rights.

III.

The Vagueness Challenge

Plaintiffs also separately challenge A.D.

10.7 as being unconstitutionally vague.

More specifically, they contend that, even

if the regulation satisfies the Turner test

as to their First Amendment challenge, it

is still unconstitutional because it ‘‘encourages arbitrary and erratic behavior on the

part of officials charged with enforcing the

rule.’’ Appellants’ Br. at 45 (quoting Giano,

54 F.3d at 1057).

[29] As an initial matter, DOC contends that the vagueness test applied to

criminal statutes has no application to prison regulations and that, if the regulation

satisfies the four-part reasonableness test

set forth in Turner, no separate vagueness

challenge can prevail. Some Circuit courts

have adopted this view. For example, in

Waterman v. Farmer, the Third Circuit

declined to specifically address the vagueness and overbreadth challenges and, instead, held that ‘‘if the challenged statute

withstands review under [Turner], it does

not violate the Constitution.’’ 183 F.3d at

213; see also Bahrampour v. Lampert, 356

F.3d 969, 975–76 (9th Cir. 2004) (rejecting

claims of vagueness and overbreadth by

reference only to the Turner factors).

Plaintiffs counter by noting that, in Giano, we separately analyzed a vagueness

challenge even after we concluded that the

prison regulation regarding nude photographs satisfied the Turner test. 54 F.3d

at 1057. That approach is consistent with

other decisions by this Court that have

specifically considered vagueness challenges to prison regulations. See Farid v.

Ellen, 593 F.3d 233, 240 (2d Cir. 2010);

Chatin v. Coombe, 186 F.3d 82, 87 (2d Cir.

1999). Importantly, in these decisions, the

prison regulation at issue resulted in the

inmate receiving a disciplinary infraction.

In fact, in Chatin, we noted that we were

applying the vagueness standard for criminal statutes to a prison regulation because,

inter alia, the regulation ‘‘carries penalties

which are more akin to criminal rather

than civil penalties.’’ 186 F.3d at 86–87; see

also Farid, 593 F.3d at 241 (considering

whether rules under which inmate was

disciplined were unconstitutionally vague).

Here, in contrast, A.D. 10.7 has no disciplinary mechanism and, thus, none of the

plaintiffs allege that they have been subject to any disciplinary sanction under

A.D. 10.7; rather, plaintiffs allege that they

discarded materials prohibited under A.D.

10.7 and DOC will remove any prohibited

materials from the incoming mail in its

screening process before inmates receive

them. Although this important distinction

between prison regulations that may result

in disciplinary action and those that do not

may certainly impact the nature of the

vagueness review for a particular prison

regulation, it is nevertheless difficult to see

how the lack of a disciplinary sanction

could render a prison regulation limiting

First Amendment activity completely immune from any vagueness challenge. See

generally Hills v. Scottsdale Unified Sch.

Dist. No. 48, 329 F.3d 1044, 1056 (9th Cir.

2003) (‘‘A policy can be unconstitutionally

vague if the standard (or lack thereof)

creates the danger of viewpoint discrimination; this is true even if there is no sanction or penalty imposed on the speaker.’’).

Moreover, although we recognize that

there may be some overlap between the

inquiry under the Turner test and aspects

of a vagueness analysis, see Thornburgh,

490 U.S. at 416–17, 109 S.Ct. 1874 (discussing arbitrariness concerns in the context of

the four-factor Turner test), it is nonethe-

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less possible to imagine a situation where a

prison regulation could be found to withstand a First Amendment challenge under

the Turner factors, but still run afoul of

the Due Process Clause because one or

more of its terms is unconstitutionally

vague. See Amatel, 156 F.3d at 203 (‘‘Although [Turner] may well function as an

all encompassing free speech test for the

circulation of reading materials in prison,

supplanting otherwise applicable First

Amendment doctrine, it may be that plaintiffs’ vagueness claim has independent

force.’’). Thus, here, as in Giano, we conduct a separate vagueness analysis apart

from the Turner test, and we agree with

the district court that plaintiffs’ vagueness

challenge to A.D. 10.7 fails on the merits.

[30, 31] As the Supreme Court has explained, under the Due Process Clause,

‘‘the void-for-vagueness doctrine requires

that a penal statute define the criminal

offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that

does not encourage arbitrary and discriminatory enforcement.’’ Kolender v. Lawson,

461 U.S. 352, 357, 103 S.Ct. 1855, 75

L.Ed.2d 903 (1983). Therefore, ‘‘the challenger can prevail by showing that the

statute either ‘fails to provide people of

ordinary intelligence a reasonable opportunity to understand what conduct it prohibits’ or ‘authorizes or even encourages arbitrary and discriminatory enforcement.’ ’’

Copeland v. Vance, 893 F.3d 101, 110 (2d

Cir. 2018) (quoting Hill v. Colorado, 530

U.S. 703, 732, 120 S.Ct. 2480, 147 L.Ed.2d

597 (2000)).

[32, 33] However, ‘‘[t]he degree of

vagueness that the Constitution tolerates—as well as the relative importance of

fair notice and fair enforcement—depends

in part on the nature of the enactment.’’

Vill. of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 498, 102

S.Ct. 1186, 71 L.Ed.2d 362 (1982). In other

words, ‘‘[t]he ‘void for vagueness’ doctrine

is chiefly applied to criminal legislation.

Laws with civil consequences receive less

exacting vagueness scrutiny.’’ Arriaga v.

Mukasey, 521 F.3d 219, 222–23 (2d Cir.

2008); see also Farid, 593 F.3d at 240

(‘‘The first question we consider is whether, in the special constitutional context of

prison regulations, the rules under which

[plaintiff] was disciplined were unconstitutionally vague as applied to him.’’(emphasis

added)); Wolfel v. Morris, 972 F.2d 712,

717 (6th Cir. 1992) (‘‘[T]he degree of specificity required in prison regulations is not

the same as that required in other circumstances TTTT’’); Meyers v. Aldredge, 492

F.2d 296, 310 (3d Cir. 1974) (‘‘Due process

undoubtedly requires certain minimal standards of specificity in prison regulations,

but we reject the view that the degree of

specificity required of such regulations is

as strict in every instance as that required

of ordinary criminal sanctions.’’).

[34] Here, ‘‘pictorial sexually explicit

material’’ under A.D. 10.7 is described as a

‘‘visual depiction of sexual activity or nudity,’’ with additional definitions provided as

to ‘‘sexual activity’’ and ‘‘nudity.’’ Joint

App’x at 179. More specifically, a ‘‘pictorial

depiction of sexual activity’’ is defined with

reference to an enumerated list of certain

types of sexual acts, Joint App’x at 179,

and a ‘‘pictorial depiction of nudity’’ is

defined as ‘‘the visual depiction or display

of genitalia, pubic region, anus or female

breast where the areola is visible and not

completely and opaquely covered,’’ Joint

App’x at 187.

Given the clear and specific definitions

of both ‘‘sexual activity’’ and ‘‘nudity,’’

there is no doubt that a person of ordinary

intelligence would understand which pictorial materials fell within those definitions.

Indeed, the ‘‘nudity’’ definition is even

more precise than the definition we found

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was not unconstitutionally vague in Giano.

54 F.3d at 1057. Thus, plaintiffs appear to

limit their vagueness challenge to what

they argue is a ‘‘cryptic and arbitrary Artistic Exception.’’ Appellants’ Reply Br. at

15. Under the Artistic Exception, DOC

officials may allow inmates to have pictorial material that, ‘‘taken as a whole,’’ is

‘‘literary, artistic, educational or scientific

in nature,’’ even if it contains sexually explicit depictions. Joint App’x at 179. Some

correctional facilities in other jurisdictions

with regulations similar to A.D. 10.7 also

include an exception for artistic, educational, or medical publications in an effort to

allow some alternatives for sexually explicit pictorial materials under the First

Amendment that do not jeopardize the

safety or security of inmates or staff. See,

e.g., 28 C.F.R. § 540.72(b)(3) (allowing inmates in federal correctional facilities access to ‘‘[p]ublications containing nudity

illustrative of medical, educational, or

anthropological content’’). In fact, as the

district court noted, if plaintiffs were successful in their vagueness challenge to an

Artistic Exception, the district court could

have potentially left in place a total ban

with even less First Amendment access to

sexually explicit materials by inmates (if

such a ban still satisfied the Turner test).

Special App’x at 52 (‘‘[I]t would be an odd

result to hold that the Artistic Exception

was unconstitutionally vague. Because I

have already held the 2012 ban constitutional under the [Turner] analysis (and

probably would even without the Artistic

Exception), the result for the Plaintiffs

would be worse if I held for them on this

point. In other words, the 2012 ban would

become a complete ban on sexually explicit

pictorial depictions and nudity, full stop.’’);

see also Giano, 54 F.3d at 1057 (‘‘Instead

of banning all erotica, prison officials have

prohibited only the sexually explicit material with the greatest likelihood for causing

violence and disorder within the prison

system. Their reward for forging a compromise policy that allows prisoners access

to some sexually explicit material is this

lawsuit. Perhaps it is true, after all, that no

good deed goes unpunished.’’).

[35] Undeterred by the potential practical implications of this limited vagueness

challenge to the exception to A.D. 10.7,

plaintiffs argue that the Artistic Exception

‘‘does not provide adequate notice to the

prisoners on what material may or may

not be allowed’’ and ‘‘relies on subjective

and personalized notions of how to assess

the overall quality of a publication.’’ Appellants’ Br. at 46. We disagree.

In the majority of the applications of

A.D. 10.7 to ‘‘sexually explicit material,’’

including as applied to the materials possessed by plaintiffs in their prison facilities, it would be clear to the ordinary

person whether or not a particular publication could even potentially qualify under

the Artistic Exception. When dealing with

an exception that centers upon analyzing

whether a particular work is artistic in

nature, no more specific definition is readily available—and perfect clarity in every

situation is unachievable. See U.S. Civ.

Serv. Comm’n v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 413 U.S. 548, 578–79, 93

S.Ct. 2880, 37 L.Ed.2d 796 (1973) (‘‘[T]here

are limitations in the English language

with respect to being both specific and

manageably brief, and it seems to us that

although the prohibitions may not satisfy

those intent on finding fault at any cost,

they are set out in terms that the ordinary

person exercising ordinary common sense

can sufficiently understand and comply

with, without sacrifice to the public interest.’’); see also Ward v. Rock Against Racism, 491 U.S. 781, 794, 109 S.Ct. 2746, 105

L.Ed.2d 661 (1989) (‘‘[P]erfect clarity and

precise guidance have never been required

even of regulations that restrict expressive

activity.’’).

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25 FEDERAL REPORTER, 4th SERIES

Moreover, to the extent that the line for

the Artistic Exception may become less

clear when considering certain literary, artistic, or other works, such situations do

not render this prison regulation unconstitutionally vague where the regulation contains no disciplinary mechanism and where

inmates are permitted to submit any publication for pre-clearance review by DOC

officials under the Artistic Exception. See

Nat’l Ass’n of Letter Carriers, 413 U.S. at

580, 93 S.Ct. 2880 (‘‘It is also important in

this respect that the [Civil Service] Commission has established a procedure by

which an employee in doubt about the

validity of a proposed course of conduct

may seek and obtain advice from the Commission and thereby remove any doubt

there may be as to the meaning of the law,

at least insofar as the Commission itself is

concerned.’’); see also Hoffman Estates,

455 U.S. at 498, 102 S.Ct. 1186 (allowing

for less stringent vagueness test for an

economic regulation because ‘‘the regulated enterprise may have the ability to clarify the meaning of the regulation by its own

inquiry, or by resort to an administrative

process’’); Mason v. Florida Bar, 208 F.3d

952, 959 n.4 (11th Cir. 2000) (‘‘[T]he availability of advisory opinions to gauge the

application of [the challenged enactment]

to specific situations bolsters its validity.’’);

accord Arnett v. Kennedy, 416 U.S. 134,

160, 94 S.Ct. 1633, 40 L.Ed.2d 15 (1974)

(noting it ‘‘important in rejecting the respondents’ vagueness contentions’’ that a

governmental entity was ‘‘available to

counsel employees who seek advice on the

interpretation of’’ the statute and regulations at issue). In short, because any close

case under this non-disciplinary regulation

can be preemptively submitted to DOC for

review before the inmate orders the publication, no inmate is denied the ability to

obtain ‘‘fair notice of [the] conduct proscribed or required by the regulation.’’ Giano, 54 F.3d at 1057.

[36] We also find plaintiffs’ argument

regarding arbitrary enforcement similarly

unpersuasive. The district court found that

DOC has implemented an extensive, multilevel review process to facilitate fair and

consistent enforcement of A.D. 10.7, including the Artistic Exception. As discussed infra, that process includes a firstlevel review of incoming publications by

the prison mailroom staff, a second-level

review by a media review point person at

the prison, and then a review by the MRB

(consisting of a group of about nineteen

DOC personnel from all DOC facilities

with varied backgrounds, including corrections officers, custody supervisors, counselors, treatment officers, support staff, a

librarian, and an attorney). Furthermore,

MRB decisions are appealable by the inmate to the MRB chairperson and then to

the DOC Commissioner’s designee, usually

the prison’s director of security.

These multiple layers of review, as well

as the appeals process, do not ‘‘encourage[ ] arbitrary and erratic behavior on the

part of officials charged with enforcing the

rule.’’ Giano, 54 F.3d at 1057. Nor is the

robust process of implementing A.D. 10.7

and applying the Artistic Exception indicative, as plaintiffs suggest, of one person’s

‘‘individual tastes’’ or ‘‘whether one sees

the work as having artistic merit.’’ Farrell

v. Burke, 449 F.3d 470, 489 & n.7 (2d Cir.

2006). Plaintiffs point to the number of

MRB decisions overturned on appeal as

evidence of arbitrary enforcement, but

‘‘what may appear to be inconsistent results are not necessarily signs of arbitrariness or irrationality.’’ Thornburgh, 490

U.S. at 417 n.15, 109 S.Ct. 1874. Instead,

the overturning of many of the MRB decisions to reject materials is consistent with

the design of the multi-level process, highly focused on producing more uniform results. In Thornburgh, the Supreme Court

rejected a facial challenge to regulations

27a

FEDERAL REPUBLIC OF NIGERIA v. VR ADVISORY SERV.

Cite as 25 F.4th 99 (2nd Cir. 2022)

that permitted a prison warden to reject

incoming publications under certain circumstances, emphasizing that ‘‘[w]here the

regulations at issue concern the entry of

materials into the prison, we agree with

the District Court that a regulation which

gives prison authorities broad discretion is

appropriate.’’ Id. at 416, 109 S.Ct. 1874.

Although plaintiffs argue that Thornburgh

is inapposite because it did not, as here,

specifically address a vagueness challenge,

its analysis of arbitrariness, as it relates to

a prison regulation prohibiting certain materials from entering the facility, certainly

provides helpful guidance in determining

what level of subjective discretion or inconsistency can be constitutionally tolerated

under a vagueness challenge to a prison

regulation of this nature.

CONCLUSION

We have considered plaintiffs’ remaining

arguments and find them to be without

merit. Therefore, for the reasons set forth

above, we AFFIRM the judgment of the

district court.

Therefore, although MRB members described how applying the Artistic Exception could be, at times, difficult or subjective, and could produce disagreements

among MRB members, we bear in mind

the Supreme Court’s caution in Thornburgh that ‘‘greater consistency might be

attainable only at the cost of a more broadly restrictive rule against admission of incoming publications.’’ Id. at 417 n.15, 109

S.Ct. 1874. Moreover, as the Supreme

Court noted that it was ‘‘comforted by the

individualized nature of the determinations

required by the regulation,’’ id. at 416, 109

S.Ct. 1874, so, too, are we comforted in

this case by the individualized and extensive review process for materials under

A.D. 10.7. That process and its implementation, in our view, is sufficiently robust to

survive any separate vagueness challenge

based upon arbitrary enforcement.

Accordingly, we conclude that A.D. 10.7,

including the Artistic Exception, is not unconstitutionally vague on its face, or as

applied to plaintiffs.

28a

Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

2020 WL 1140885

Only the Westlaw citation is currently available.

United States District Court, D. Connecticut.

Richard REYNOLDS, et al., Plaintiffs,

Rollin COOK, et al., Defendants.

No. 3:13-cv-388 (SRU)

Signed 03/09/2020

Attorneys and Law Firms

Alan Neigher, Byelas & Neigher, Westport, CT, Joseph Kevin

Scully, Elizabeth P. Retersdorf, Rosendo Garza, Jr., Day

Pitney LLP, Hartford, CT, for Plaintiffs Richard Reynolds,

John Vivo, Kenya Brown, Dwight G. Pink, Andres R. Sosa.

Elias A. Alexiades, New Haven, CT, Joseph Kevin Scully,

Rosendo Garza, Jr., Day Pitney LLP, Hartford, CT, for

Plaintiff Akov Ortiz.

Joseph Kevin Scully, Rosendo Garza, Jr., Day Pitney LLP,

Hartford, CT, for Plaintiff Victor Smalls.

Michael A. Martone, Office of the Attorney General,

Madeline A. Melchionne, Attorney General's Office Public

Safety & Special Revenue, Steven R. Strom, Terrence M.

O'Neill, Office of the Attorney General, Hartford, CT, for

Defendants Leo C. Arnone, James E. Dzurenda.

Madeline A. Melchionne, Attorney General's Office Public

Safety & Special Revenue, Steven R. Strom, Office of the

Attorney General, Hartford, CT, for Defendant Scott Semple.

Michael A. Martone, Steven R. Strom, Office of the Attorney

General, Hartford, CT, for Defendants Angel Quiros, Peter J.

Murphy, Scott Simple.

Steven R. Strom, Office of the Attorney General, Hartford,

CT, for Defendants Lauren Powers, Kimberly J. Weir, Jon

Brighthaupt.

Michael A. Martone, Office of the Attorney General,

Hartford, CT, for Defendant White.

MEMORANDUM OF DECISION

Stefan R. Underhill, United States District Judge

*1 Before 2012, inmates in Connecticut's prisons could

order sexually explicit publications, such as Playboy, and

prisoners often ordered them. As a result, Connecticut's

prisons contained large amounts of sexually explicit

pictorial depictions. In 2012, the Connecticut Department

of Correction (“DOC”) implemented a revised version of

Administrative Directive 10.7 (“A.D. 10.7”), which governed

inmate communications, including incoming publications.

The 2012 revision to A.D. 10.7 redefined pictorial sexually

explicit material—to include both sexual activity and nudity

—and banned that material unless it was “literary, artistic,

educational, or scientific in nature.” I will refer to that

revision as the “2012 ban.” Numerous prisoners challenged

the constitutionality of the 2012 ban under both the United

States and Connecticut Constitutions. Because the 2012 ban

is constitutional under the United States Constitution, I shall

enter judgment in favor of the Defendants. The Plaintiffs’

state law claims are not properly before me and so I dismiss

those claims without prejudice; if the Plaintiffs wish to pursue

those claims, the proper venue to do so would be in state court.

The following constitutes my findings of fact and conclusions

of law.

I. Procedural Background

I held a two-part bench trial in this matter. The first part

was a two-day bench trial in January 2015 in Akov Ortiz v.

Leo C. Arnone, No. 3:11-cv-1793 (SRU) (“Ortiz”). In Ortiz,

four witnesses testified: Akov Ortiz, Eileen Redden, Robert

Hartnett, and Monica Rinaldi. The second part was a threeday bench trial in April 2019 in this case. In this case, thirteen

witnesses testified: Richard Reynolds, Dwight G. Pink, Andre

R. Sosa, Eileen Redden, John Vivo III, Victor Smalls, Robert

Selverstone, Robert Hartnett, Julie Kunkel, David McNeil,

Anne Cournoyer, Jose Rivera, and Rollin Cook.

This matter is the lead case into which five other matters have

been consolidated. First, in May 2015, I consolidated three

cases into this matter: (1) Kenya Brown v. Leo C. Arnone,

No. 3:13-cv-902 (SRU); (2) Andres R. Sosa v. Leo C. Arnone,

et al., No. 3:14-cv-318 (SRU); and (3) Dwight G. Pink v.

Leo C. Arnone, et al., No. 3:14-cv-993 (SRU). In September

2015, I consolidated Ortiz into this case and ordered that the

record from Ortiz would become part of the record in this

case. See Ortiz, Conf. Mem. and Order, Doc. No. 93. And in

June 2017, I consolidated another case—Victor Smalls v. Scott

Simple, et al., No. 3:17-cv-119 (SRU)—into this case. In this

29a U.S. Government Works.

Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

consolidated case, there are seven plaintiffs, all state prisoners

in the custody of the DOC (the “Plaintiffs”): Ortiz, Brown,

Sosa, Pink, Smalls, Reynolds, and Vivo. The Plaintiffs have

been in DOC custody at all times relevant to this case; none

was convicted of a sex offense. 1

*2 The Plaintiffs allege violations of their rights under

the First and Fourteenth Amendments to the United States

Constitution, Art. 1, Sections 4 and 5 of the Constitution of the

State of Connecticut, and unlawful application of an invalid

regulation under Connecticut law. See Second Am. Compl.,

Doc. No. 110, at ¶¶ 48–60.

II. Facts

A. Before 2012

Apparently, before 2002, DOC inmates could receive

publications containing “hardcore” sexually explicit pictorial

material. As Ortiz explained, “hardcore” refers to visible

depictions of “penetration, secretion, [and sex acts with]

multiple partners.” Ortiz Trial Tr., Doc. No. 79, 75:21–24;

Trial Tr., Doc. No. 155, at 403:16–17 (Hartnett defining

“hardcore” as depictions of “actual sexual penetration,

ejaculation, contact between genital to genital, genital to

oral”). In contrast, “softcore” refers to visible depictions of

nudity—including breasts and genitalia—without secretions

or penetration. See Ortiz Trial Tr., Doc. No. 79, at

76:8–77:13 (Ortiz). Ortiz reported that between 1999 and

2002, he subscribed to numerous “hardcore” pornographic

magazines. See id. at 15:3–22. Ortiz explained that “hardcore”

pornographic material was “rampant” in his facility between

1999 and 2002. See id. at 14:19. Other witnesses confirmed

that “hardcore” pornographic material was ubiquitous. See,

e.g., Ortiz Trial Tr., Doc. No. 80, at 161:8–12 (Hartnett

confirming that “like Mr. Ortiz said yesterday, it was

everywhere”).

In 2002, according to Ortiz, the DOC altered its regulations

(or changed its enforcement strategy) so that inmates could

no longer receive “hardcore” materials, but it did not

proactively confiscate inmates’ existing “hardcore” materials.

See Ortiz Trial Tr., Doc. No. 79, at 16:15–19. 2 Still,

the DOC allowed “softcore” pornographic materials, such

as Playboy and Penthouse, into its facilities. See id. at

16:20–17:10; 35:13–25. As a result, even after 2002, both

“hardcore” and “softcore” sexually explicit materials were

still ubiquitous in DOC facilities. See, e.g., Trial Tr., Doc.

No. 155, at 329:19–24 (Sosa acknowledging that at Northern

from 2007 to 2010 some inmates ordered “hundreds, if not

thousands, of pictures”); id. at 293:2–23 (Vivo testifying

that, before 2012, he kept 2,500 nude photos in a manila

envelope). Although administrative directives prohibited

inmates from displaying in public view sexually explicit

pictorial depictions, Commissioner Arnone wrote in 2011

that “sexually explicit pictures are still found inside inmate

lockers and displayed in other areas of correctional facilities

where staff is exposed to them.” See Arnone Mem., Defs.’

Ex. C, at 20 (citing Administrative Directive 6.10); see also

Administrative Directive 2.2, Defs.’ Ex. S, at ¶ 5F (defining as

sexual harassment the “[d]isplay in the workplace of sexually

suggestive objects, pictures, or photographs”).

*3 Even though it was against prison rules for prisoners

to display sexually explicit pictorial depictions on their wall

space or to store it in their lockers, in practice, it happened

all the time. See, e.g., Ortiz Trial Tr., Doc. No. 79, at 16:1–

7 (Ortiz explaining that even though “it's not allowed,”

prisoners posted sexually explicit materials on their cell

walls); Trial Tr., Doc. No. 156, at 510:4–20 (Cournoyer, a

former Warden at Enfield Correctional Institution, describing

how, when she was a corrections counselor at Somers

Prison (now Osborn Correctional Institution) from 1992

into the 2000s, sexually explicit pictorial depictions were

“pervasive”); Trial Tr., Doc. No. 155, at 402:21–403:5

(Hartnett recounting finding such materials in an inmate's

“foot locker, wall locker, on his bed, under his bed,” and

“posted to the back of the door”); Ortiz Trial Tr., Doc. No. 80,

at 193:24–25 (Hartnett recalling that inmates used to cover

their TVs with sexually explicit material).

As one might imagine, and as Deputy Commissioner Monica

Rinaldi explained, the ubiquity of sexually explicit pictorial

depictions created “a very sexually charged environment.”

Ortiz Trial Tr., Doc. No. 80, at 251:23. Eileen Redden,

who was employed at the time of the Ortiz trial as the

DOC's Durational Program Manager (her job duties included

overseeing the DOC's sex offender treatment program),

recalled visits to Northern during which she “often observed

pornographic images of women exposing their vaginas ...

taped on [the] windows [of inmates’ cells] facing outward so

the female staff was forced to look at them.” Redden Aff.,

Defs.’ Ex. N, at ¶ 16. Some inmates also acknowledged that

DOC facilities were not pleasant environments in which to

work, especially for female staff. See, e.g., Trial Tr., Doc. No.

155, at 326:5–8 (Smalls acknowledging as much).

30a U.S. Government Works.

Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

Both before and after 2012, “gunning” has been an

unfortunately common practice in DOC facilities. “Gunning”

refers to an inmate's masturbating (often to ejaculation) in

view of a (usually female) DOC staff member. See, e.g., Trial

Tr., Doc. No. 154, at 29:10–18; 34:6–11 (Reynolds describing

the practice); id. at 112:21–117:25 (Sosa describing the

practice and his personal involvement with it); see also

Disciplinary Reports, Defs.’ Ex. V.

Several DOC employees explained that “gunning” can make

DOC facilities extremely difficult places to work, and, for

years after, can leave a scar. For instance, Captain Julie

Kunkel testified that—as a corrections officer at Northern in

the 1990—“it was pretty gross being a female” officer and

that she “can still hear the sounds of the inmates masturbating

when you walked on the tier.” Trial Tr., Doc. No. 155, at

469:2–6. Kunkel recounted that “it happened a lot” and that

she “remember[s] to this day the smell and the sound.” Id.

at 469:17–18. Former Warden Anne Cournoyer testified that,

when she toured a unit as a correctional counselor at Somers

Prison (now Osborn Correctional Institution), prisoners

oftentimes ... would strip down to be

naked and just stand there and wait

for me to come. They would, you

know, have an erection. They would

masturbate in front of me. They would

ejaculate in front of me.

Trial Tr., Doc. No. 156, at 510:24–511:2. Cournoyer

explained that that created “a very threatening environment.”

Id. at 511:16. One inmate who testified in this trial—Andres

Sosa—has received Class A tickets for public indecency

for masturbating while being treated by a female nurse and

in a classroom while a female teacher was teaching. See

Disciplinary Reports, Defs.’ Ex. V, at Bates 000012 (nurse),

000052 (class); Trial Tr., Doc. No. 154, at 137:12–139:22.

Both before and after 2012, “gunning” has qualified as

“public indecency” and so has been a Class A offense. See

Trial Tr., Doc. No. 154, at 34:15. Class A offenses are the

highest class of offense in the DOC and can result in punitive

segregation, 3 forfeiture of good time or risk reduction earned

credits, and up to two different penalties from a list including,

for instance, loss of recreation, telephone, or commissary

privileges for at least 30 days. See Administrative Directive

9.5, Defs.’ Ex. U, at ¶¶ 10, 12. Normally, the punishment for

a first-time Class A offense seems to have been seven days in

punitive segregation and loss of recreation and commissary

privileges for 30 days. See Ortiz Trial Tr., Doc. 80, at 234:21–

23 (Hartnett). Even though “gunning” has always been a

Class A “public indecency” offense, DOC employees did not

submit a disciplinary report for every instance of “gunning”

to which they were exposed. Captain Jose Rivera explained

that “sometimes female staff members don't report [‘gunning’

incidents] all the time” because they “feel that, especially

an inmate who does it often ... just doesn't care about the

disciplinary report that they're going to get from it.” Trial Tr.,

Doc. No. 156, at 540:18–24; see also Trial Tr., Doc. No. 154,

at 114:3–7 (Sosa explaining that he does not get a disciplinary

report every time he masturbates in front of a female DOC

employee); id. at 140:19–20 (Sosa describing his theory that

“they write you off to secure their job” but “[a]fter that, they

won't write you again”).

*4 The work environment inside DOC facilities was difficult

in the years leading up to 2012 not only because of

the pervasiveness of sexually explicit pictorial depictions

and “gunning.” Indeed, in April 2003, a settlement was

reached in two class action suits brought by female DOC

employees against the State of Connecticut; the suits alleged,

generally, that male DOC employees had been sexually

harassing female DOC employees. See Stipulated Agreement,

Defs.’ Ex. J; Ortiz Trial Tr., Doc. No. 80, at 250:4–

21 (Rinaldi); Trial Tr., Doc. No. 156, at 522:23–523:21

(Cournoyer); Trial Tr., Doc. No. 154, at 186:9–14 (Redden).

The stipulated agreement that resolved those suits called

for the establishment of an advisory committee on women's

issues and a working group on sexual harassment, which were

meant to address, in part, the DOC facilities’ hostile work

environment. See Stipulated Agreement, Defs.’ Ex. J, at ¶¶ 64,

76. The stipulated agreement also called for the codification

of Administrative Directive 2.2, which was a new sexual

harassment policy. See id. at ¶¶ 21–22; A.D. 2.2, Defs.’ Ex. S.

Given all the foregoing, it would be incorrect to say that the

sexually hostile environment in DOC facilities before 2012

owed entirely to inmates’ belongings and behavior.

Before the 2012 ban, testimony established that the presence

of sexually explicit publications in DOC facilities made cell

shakedowns potentially less efficacious. Although there are a

variety of types of shakedown, 4 shakedowns are, essentially,

thorough cell searches. As Captain Hartnett explained, in a

regular cell shakedown, a DOC corrections officer

31a U.S. Government Works.

Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

would go through basically all the

inmate's property. Start with the bunk,

you'd look under the mattress, you'd

take the sheets off, make sure the

mattress was intact, that it wasn't

opened and so that something could

be hidden inside the mattress. You

go through the foot locker, you go

through his desk. Any of his mail you

usually go through as well. Basically

you're trying to go from the ceiling

to the floor to make sure that there

was nothing in the cell that the inmate

shouldn't have.

Ortiz Trial Tr., Doc. No. 80, at 158:11–24. Cell shakedowns

are a primary way that DOC corrections officers ensure safety

in DOC facilities by finding and seizing contraband. See Trial

Tr., Doc. No. 155, at 309:6–10 (Smalls). Contraband can

include dangerous items such as drugs or weapons, but it

can also take the form of, for instance, “excess food, worn

cords, electronics, clothing, toiletries, or similar items that can

be used to barter or that can create unsanitary or hazardous

conditions within the prison.” Semple Aff., Defs.’ Ex. L, at ¶¶

13–14. Shakedowns only infrequently required strip searches;

when a strip search was necessary, a male corrections officer

would conduct the strip search, during which an inmate was

forced to reveal his genitals; sometimes, inmates reported, a

female officer was present and could see the inmate during

the strip search. See, e.g., Ortiz Trial Tr., Doc. No. 79, at

28:20–29:19 (Ortiz); Trial Tr., Doc. No. 155, at 308:13–309:2

(Smalls); but see Trial Tr., Doc. No. 156, at 539:1–21 (Rivera

explaining that the Prison Rape Elimination Act requires—

and the DOC adheres to the requirement—that females be

relieved of their duties when a male inmate is strip searched).

DOC corrections officers normally conducted shakedowns

in pairs. See, e.g., Ortiz Trial Tr., Doc. No. 80, at 179:16

(Hartnett); Ortiz Trial Tr., Doc. No. 79, at 19:12–21 (Ortiz).

Both male and female DOC corrections officers participated

in shakedowns. See Trial Tr., Doc. No. 156, at 538:22–

539:4 (Rivera explaining that, with one limited exception

for strip-searching, male and female COs do the exact same

job). Some inmates and DOC employees testified that female

corrections officers were especially uncomfortable looking

through sexually explicit materials and would allow the

male corrections officers to conduct that portion of the

shakedown. See Ortiz Trial Tr., Doc. No. 79, at 19:22–

25, 79:10–12 (Ortiz); Ortiz Trial Tr., Doc. No. 80, at

180:3–182:8 (Hartnett). Several DOC employees explained

that inmates often hid contraband inside sexually explicit

materials because they believed corrections officers would

search those materials less thoroughly “because of their

embarrassment, disgust, humiliation, or because it was not

sanitary to do so.” Semple Aff., Defs.’ Ex. L, at ¶¶ 18–

20; see also Dzurenda Aff., Defs.’ Ex. P, at ¶ 7; Ortiz Trial

Tr., Doc. No. 80, at 180:13–181:23 (Hartnett). Some inmates

disputed that they would hide contraband inside pornographic

magazines because they wanted corrections officers to spend

time looking through the magazines rather than shaking down

their cells. See Trial Tr., Doc. No. 155, at 309:21–310:14

(Smalls).

*5 Both before and after 2012, bartering has been prevalent

in DOC facilities. Bartering is defined as “[c]onducting any

transaction for which payment of any kind is made, promised

or expected.” A.D. 9.5, Defs.’ Ex. U, at ¶ 13. Inmates can

and do barter anything of value; items with the highest value

are normally those with the lowest supply (and therefore

highest demand), which is normally contraband, but can be

anything. See Trial Tr., Doc. No. 156, at 542:22–543:19

(Rivera). Bartering is not allowed because it puts the lender

in a position of power, and disagreements over the terms of

the loan or deal can cause fights. See id. at 543:2–8. However,

bartering was common before 2012, including with sexually

explicit materials. See, e.g., Ortiz, Trial Tr., Doc. No. 79, at

81:4–8 (Ortiz describing exchanging pornographic magazine

subscriptions); Trial Tr., Doc. No. 80, at 161:22–165:4

(Hartnett explaining the commonality of bartering sexually

explicit materials). Both before and after 2012, bartering

has been defined as a Class B offense, which is punishable

by, potentially, punitive segregation, forfeiture of good time

or risk reduction earned credits, and one penalty from a

list including, for instance, loss of recreation, telephone, or

commissary privileges for at least 30 days. See A.D. 9.5,

Defs.’ Ex. U, at ¶¶ 10, 13.

B. 2012 Ban

In about August 2010, 5 Leo Arnone (then-DOC

Commissioner) tasked Brian Garnett (the then-Director

of External Affairs) with reviewing the DOC's policy

regarding the possession of sexually explicit material by the

inmate population. See Garnett Aff., Defs.’ Ex. O, at ¶ 4.

32a U.S. Government Works.

Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

Commissioner Arnone noted in his charge to Director Garnett

that the DOC's current policy regarding the possession of

sexually explicit materials in A.D. 10.7 left “great leeway

for the possession of seriously offensive and pornographic

depictions of sexual activity and that such depictions are ...

displayed in areas of correctional facilities where staff is

exposed to them.” Id. at ¶ 6. Commissioner Arnone initially

wanted Garnett to determine whether a two-tiered system

was feasible for sexually explicit materials; in that system,

“inmates would be allowed to possess pictorial depictions of

nudity (i.e., similar to those found in publications such as

Playboy magazine), but would not be permitted to possess the

depictions of explicit sexual activity that commonly are found

in the facilities today.” Id. at ¶ 7. Garnett subsequently formed

a six-member committee to address Commissioner Arnone's

request. 6

The committee undertook its work with either three or four

goals in mind: (1) to enhance the safety, security and order of

DOC facilities, (2) to support the rehabilitation of the inmate

population, (3) to enhance a professional and non-hostile

work environment, and (4) to prevent inappropriate behavior.

See id. at ¶ 9. While the first three goals are consistently

cited throughout the evidence in this case, the Defendants

cite the fourth goal—to “prevent inappropriate behavior”—

sporadically. Compare Garnett Aff., Defs.’ Ex. O, at ¶ 9

(appearing) with Garnett Mem., Defs.’ Ex. C, at 21 (excluded)

and Defs.’ Post-Trial Brief, Doc. No. 147, at 3 (excluded) and

Notices, Defs.’ Exs. D, G (excluded).

The committee met about once per month, for one to two

hours each time, for a period of about six months. See

Garnett Aff., Defs.’ Ex. O, at ¶ 10; Trial Tr., Doc. No.

154, at 150:1–9. (Redden). The committee “reviewed the

existing policy, researched policies adopted by other states

and the Federal Bureau of Prisons, and reviewed the historical

and current case law from other state and federal courts.”

Garnett Aff., Defs.’ Ex. O, at ¶ 10. In October 2010, staff

attorney O'Brasky and Captain Chartier sent the committee

a memorandum summarizing the current state of the law

with respect to department of corrections’ bans on sexually

explicit materials; that memorandum listed and described

cases which, in their view, both upheld 7 and struck down 8

similar bans. See O'Brasky and Chartier Mem., Pl.’s Ex. 35.

Over the course of its existence, the committee consulted

neither with inmates nor with the working group on sexual

harassment nor with the advisory committee on women's

issues. See Trial Tr., Doc. No. 154, at 219:5–220:5 (Redden).

*6 The committee examined the feasibility of two different

kinds of partial bans on sexually explicit materials. The first,

as described above, contemplated a ban on “hardcore” sexual

activity but allowing in pictorial depictions of nudity, such

as those in Playboy. The committee noted that Florida, for

instance, allowed certain depictions of nudity into its state

prison facilities. See Garner Mem., Defs.’ Ex. C, at 22 &

App'x 9. 9 However, the committee decided that that type

of partial ban would not work because its implementation

“would require an ongoing, subjective monitoring system to

determine what materials would be allowable,” the system

“would be difficult—if not impossible—to codify and would,

therefore, result in an inconsistent implementation of the

policy,” and “such a system would be financially costly

and labor intensive.” Garnett Aff., Defs.’ Ex. O, at ¶ 16.

The committee explained that its review of such two-tiered

policies in other states revealed that such bans were codified

in “convoluted and tortured language” that tries “to strictly

define what would be allowed.” Garnett Mem., Defs.’ Ex. C,

at 22.

The second type of partial ban that the committee considered

was a two-tiered approach that would impose different

standards for inmates who were, and were not, sex offenders.

See Garner Aff., Defs.’ Ex. O, at ¶ 17. The idea behind such

an approach is that sexually explicit materials of any kind

are more damaging to the rehabilitation of a sex offender

than a non-sex offender. In the DOC, about 20 percent of

inmates (some 3,000 in total) are “sex offenders,” which

means they have an elevated sex treatment score. See Redden

Aff., Defs.’ Ex. N, at ¶ 6; Dzurenda Aff., Defs.’ Ex. P, at

¶ 10. An inmate can get an elevated sex treatment score by

being convicted of a sexual crime, or, even if not, if his case

has underlying sexual elements. See Ortiz Trial Tr., Doc. No.

79, at 96:22–97:9 (Redden). Although not entirely clear, it

appears than an inmate's sex treatment score can be elevated

through his misbehavior as an inmate. See, e.g., Trial Tr., Doc.

No. 156, at 533:11–16 (Cournoyer). The committee rejected

a two-tiered approach based on the distinction between sex

offender inmates and non-sex offender inmates because: (1)

sex offenders are interspersed within the general inmate

population, and so enforcing such a different standard would

be “impractical, if not impossible”; (2) materials within DOC

facilities flow freely, and so even if the policy prohibited sex

offenders from possessing nude pictorial depictions, if nude

pictorial depictions were present in the DOC facilities, they

would be able to obtain them through bartering. See Redden

Aff., Defs.’ Ex. N, at ¶ 20; Garnett Aff., Defs.’ Ex. O, at ¶ 17.

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The committee thus decided that a total ban on pictorial

depictions of sexual activity and nudity was the only way

to accomplish its goals. See Garnett Aff., Defs.’ Ex. O, at

¶ 18. The committee explained that it considered the ban's

effect on inmates and felt that the ban adequately balanced

the committee's goals with inmates’ interests. In particular,

the committee noted (1) that the ban would be limited by

an exception for sexually explicit pictorial depictions that

are of a literary, artistic, educational, or scientific nature,

and (2) that the ban related only to pictorial depictions of

sexual activity and nudity, and so inmates had alternative

means to obtain sexually explicit material, such as written

material. See id. at ¶¶ 19–22. Along the same lines, the

committee suggested that the ban be implemented only after a

lengthy “phase-in” process to “minimize the potential to incite

the inmate population.” Id. at ¶ 23. Ultimately, a one-year

“phase-in” process was agreed; that period allowed inmates

to “dispose of, or send home, any [to-be banned] materials

in your possession” and allowed “any magazine subscriptions

to expire.” See, e.g., Notice, Defs.’ Ex. D. Between July 8,

2011 and June 1, 2012, the DOC issued four notices to the

inmate population that explained the impending change. See

Notices, Defs.’ Exs. D (July 8, 2011), G (April 2, 2012), H

(May 10, 2012), I (June 1, 2012). The new policy, as codified

in A.D. 10.7, became effective on June 19, 2012. See A.D.

g. it is sexually explicit material, either pictorial or

written, which by its nature or content poses a threat

to the security, good order, or discipline of the facility,

facilitates criminal activity or harasses staff.

1) Pictorial sexually explicit material that shall be

rejected by a Unit Administrator or designee is any

visual depiction of sexual activity or nudity, ... unless

those materials which, taken as a whole, are literary,

artistic, educational or scientific in nature.

Pictorial depiction of sexual activity is defined as the

visual depiction of conduct which includes but is not

limited to:

• sexual intercourse, including genital-genital, oralgenital, or oral-anal contact, whether between persons

of the same sex or opposite sex, with any artificial

device, or any digital penetration;

• bestiality;

• masturbation;

• sadistic or masochistic abuse;

10.7, Defs.’ Ex. A, at 1. 10

• depiction of bodily functions, including urination,

defecation, ejaculation, or expectoration;

*7 The new policy was codified in a portion of A.D. 10.7.

That portion read:

• conduct involving a minor, or someone who appears

to be under the age of 18; and

N. Incoming Publications and Educational Materials....

Incoming materials which adversely affect a valid

penological interest may be rejected in accordance with

the following review procedures:

• sexual activity which appears to be non consensual,

forceful, threatening or violent.

1. Procedures for Review of Publications. The Unit

Administrator or designee may reject a publication

only if it is determined to be detrimental to the

security, good order, or discipline of the facility

or which may facilitate criminal activity. The Unit

Administrator or designee may not reject a publication

solely because its content is religious, philosophical,

political, social or sexual, or because its content is

unpopular or repugnant. Publications which may be

rejected by a Unit Administrator or designee include

but are not limited to publications which meet one of

the following criteria:

...

Pictorial depiction of nudity is defined as the visual

depiction or display of genitalia, pubic region,

buttock, or female breast at a point below the top of the

areola that is not completely and opaquely covered.

2) Written sexually explicit material that may be

rejected by a Unit Administrator or designee include

but is not limited to written material which, by its

nature or content, poses a threat to the security,

good order, or discipline of the facility, or facilitates

criminal activity. A Unit Administrator or designee

shall determine that written sexually explicit material

of the following types is to be excluded:

1) sado-masochistic;

2) bestiality;

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3) involving minors; or

4) materials depicting sexual activity which involves

the use of force or without the consent of one or more

parties.

...

3) Possession or transferring of pictorial sexually

explicit materials will result in the issuance of a Class

‘A’ Discipline in accordance with Administrative

Directive 9.5 Code of Penal Discipline.

chairperson of the MRB; and from 2017 through the time

of this trial in 2019, Captain Kunkel was the chairperson.

Captain Hartnett explained that the members of the MRB

—which included corrections officers, custody supervisors,

counselors, treatment officers, support staff, a librarian, and

an attorney—represented a “good cross section of people with

a lot of experience” in DOC facilities. See Ortiz Trial Tr., Doc.

No. 80, at 169:1–10; Defs.’ Post-Trial Brief, Doc. No. 147,

at 10–11.

violates A.D. 10.7, 11 or (3) to withhold the publication and

present it to the entire MRB for a determination. See id. at

167:1–4 (Hartnett); A.D. 10.7, Defs.’ Ex. A, at ¶ 4(N)(2);

Defs.’ Post-Trial Brief, Doc. No. 147, at 11.

The MRB met twice per month for about three hours each

time. Ortiz Trial Tr., Doc. No. 80, at 202:10–12 (Hartnett).

At any given meeting, Captain Hartnett estimated that

between twelve and fifteen members were in attendance.

See id. at 186:8 (Hartnett). At each meeting, the MRB

reviewed anywhere from 50 to 100 publications. See id.

at 202:15 (Hartnett). The MRB reviewed publications for

sexually explicit pictorial depictions, but it also reviewed

publications for all of types of impermissible written or

pictorial depictions, such as those that might help an inmate

construct a weapon or pick a lock, those that might be

written in code, those that encourage or instruct in the

commission of criminal activity, or those that might, in

writing, describe sado-masochism or rape, for instance.

See A.D. 10.7, Defs.’ Ex. A, at ¶ 4(N)(1)(g). When the

MRB reviews a publication, its internal guidelines (not

codified) call for different standards with respect to books and

magazines. When reviewing a magazine, if the magazine has

five or fewer pages of objectionable materials (of any kind),

the MRB simply rips out those pages and admits the altered

magazine into the DOC facility. However, if a magazine

has six or more pages of objectional materials, the entire

magazine is rejected. See Ortiz Trial Tr., Doc. No. 80, at

214:7–22 (Hartnett). The same exception does not apply to

books—that is, if even one page of a book violates A.D.

10.7, the entire book is rejected. See id. The reason for that

difference is the high cost of books relative to magazines; if a

book is rejected, the inmate might want to return that book for

its full price rather than receiving an altered book. See Trial

Tr., Doc. No. 155, at 476:2–13 (Kunkel).

*8 The MRB is the DOC body that is ultimately responsible

for withholding incoming publications that violate the terms

of A.D. 10.7. The MRB is a group of about 19 DOC

employees, including one member from each of fifteen

facilities and representatives from the legal affairs unit, the

religious services unit, the educational unit, and the security

division. See Ortiz Trial Tr., Doc. No. 80, at 166:5–15

(Hartnett). From 2012 until 2017, Captain Hartnett was the

The 2012 ban has several qualifying clauses. Three in

particular are important. The first is the direction that a DOC

employee “may reject a publication only if it is determined

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

of the facility or which may facilitate criminal activity.”

See A.D. 10.7, Defs.’ Ex. A, at ¶ 4(N)(1). Captain Hartnett

explained that that phrase hardly ever, if at all, entered the

MRB's thinking when it was considering the admissibility

A.D. 10.7, Defs.’ Ex. A, at ¶ 4(N)(1)(g).

C. Implementation of 2012 Ban

The DOC implemented a process for enforcing the 2012

ban. Facility-level mailroom staff undertake the first level of

review of incoming publications. See Ortiz Trial Tr., Doc.

No. 80, at 166:20 (Hartnett). If the mailroom staff looks

at a publication and determines that it does not run afoul

of A.D. 10.7, then the staff member admits the publication

into the DOC facility. See id. at 166:20–22 (Hartnett).

That is precisely what happens to the majority of incoming

publications. See Trial Tr., Doc. No. 155, at 431:15–19

(Hartnett). But if the mailroom staff member believes the

incoming publication might run afoul of A.D. 10.7, the staff

member sets it aside for the media review point person at that

facility—each facility has one, and that person serves as a

member on the Media Review Board (“MRB”) (see below).

See Ortiz Trial Tr., Doc. No. 80, at 166:22–25 (Hartnett). The

facility-level media review officer can decide (1) to admit the

publication in question because it clearly complies with A.D.

10.7, (2) to reject the publication in question because it clearly

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of a publication. See Trial Tr., Doc. No. 155, at 466:16–

20. The second is the limitation that a DOC employee

“may not reject a publication solely because its content is

religious, philosophical, political, social or sexual, or because

its content is unpopular or repugnant.” A.D. 10.7, Defs.’ Ex.

A, at ¶ 4(N)(1). That limitation, too, seems to have been

only a vague direction to consider inmates’ rights under the

First Amendment; there was no evidence in this case that that

limitation played any significant part in MRB considerations,

either. However, the third limitation was the topic of much

discussion: DOC employees were not to reject pictorial

sexually explicit material that was, taken as a whole, “literary,

artistic, educational or scientific in nature.” Id. at ¶ 4(N)(1)(g)

(1). I will refer to that limitation as the “Artistic Exception.”

*9 At each meeting, the MRB went through the materials

gathered during the preceding two-week period. The MRB

first discussed whether the publication at issue violated the

terms of A.D. 10.7. Indeed, the text of A.D. 10.7 was brought

to every meeting so that the MRB could refer to its exact text.

See Trial Tr., Doc. No. 155, at 476:23–477:12 (Kunkel). If

the publication at issue did violate the terms of A.D. 10.7, the

MRB next discussed whether the Artistic Exception applied.

If, at any step, there was a close question on which members

disagreed, that disagreement was put to a simple majority

vote. See Ortiz Trial Tr., Doc. No. 80, at 167:10–20 (Hartnett).

The members of the MRB who testified admitted that

applying the Artistic Exception was extremely difficult. As

Captain Hartnett testified on direct examination:

Q: When you're sitting on the media review board, are

you ever in a position where you need to make a

determination of what constitutes porn versus what

constitutes art?

A: Yes.

Q: And what tools do you use to make that determination?

A: Generally it's just the experience of the people in the

room. You know, we use our experience in corrections

and what we've been exposed to and what we've seen.

Trial Tr., Doc. No. 155, at 437:19–438:2. Indeed, on crossexamination, Captain Hartnett admitted that under certain

hypothetical circumstances, the MRB might reject a picture

of Michelangelo's statue of David as not qualifying for the

Artistic Exception. See id. at 451:19–452:9.

As Dwight Pink's testimony made clear, inmates who

order art books with depictions of nude models present a

difficult borderline case. Pink attempted to order Atlas of

Foreshortening: The Human Figure in Deep Perspective

by John Cody with Ron Tribell. That book consists almost

entirely of full-page nude photos of one man and one woman

in various poses. See Pl.’s Ex. 11. The MRB rejected Atlas

of Foreshortening as sexually explicit material not subject

to the Artistic Exception. See Letter, Pl.’s Ex. 12. Captain

Hartnett explained that the MRB admits art books that “g[i]ve

instruction or information pertaining to the actual form of the

art” but rejected Atlas of Foreshortening because it did not do

that—in other words, the MRB determined that the purpose

of Atlas of Foreshortening was not instruction. See Trial Tr.,

Doc. No. 155, at 432:9–433:15. Captain Hartnett identified

another problem with Atlas of Foreshortening: an inmate

could rip out the full-length pages of pictorial depictions of

nudity, “and he's got a number of pictures which are now

contraband.” See id. at 434:14–435:5. Indeed, Captain Kunkel

testified that if there were an exception for all art books,

“[e]verybody would be ordering art books that contained nude

pictures and photography books that are just nude ... to get

around” the 2012 ban. See Trial Tr., Doc. No. 155, at 478:7–

13.

Despite the difficulties in applying the Artistic Exception,

members of the MRB who testified all expressed confidence

in the integrity of their decisionmaking process and enough

humility to acknowledge that sometimes they surely got it

wrong. See, e.g., Trial Tr., Doc. No. 155, at 443:2–4 (Hartnett

explaining that “we all took it seriously” and “did the best we

could”); id. at 443:8–9 (Hartnett remarking that “[w]hat's art

to me could be porn to my mother”); id. at 473:2–17 (Kunkel

remarking that the MRB had made a mistake in rejecting

Island of Vice—see Pl.’s Exs. 3 (excerpt), 3A (full book), and

4 (MRB rejection letter)—a book that was almost entirely

text and regarded Teddy Roosevelt and New York City);

Spreadsheet, Pl.’s Ex. 27 (a 413-page spreadsheet cataloging

every publication the MRB reviewed from 2014 to 2018 and

the outcome of its review).

*10 Indeed, less than two years after the 2012 ban went into

effect, the MRB realized that the definition of “nudity” in the

2012 ban was overbroad and the MRB—in faithfully applying

the language of the 2012 ban—was excluding publications

that were not meant to be captured by the spirit of the 2012

ban. In the 2012 ban, “nudity” was defined as “the visual

depiction or display of genitalia, pubic region, buttock, or

female breast at a point below the top of the areola that

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is not completely and opaquely covered.” See A.D. 10.7,

Defs.’ Ex. A, at ¶ 4(N)(1)(g). There were two problems with

that definition. First, buttocks and cleavage are ubiquitous in

mainstream publications: for instance, US Weekly was at one

point excluded by this definition, and pictures of actresses

in cocktail dresses qualified as nudity. See Ortiz Trial Tr.,

Doc. No. 80, at 176:5–17 (Hartnett describing the red carpet

cleavage problem); id. at 178:2–12 (Hartnett describing the

US Weekly instance); id. at 196:2–10 (Hartnett explaining that

buttocks are ubiquitous in modern media materials). As a

result, in January 2014, the definition of “nudity” in A.D. 10.7

was changed to be “the visual depiction or display of genitalia,

pubic region, anus or female breast where the areola is visible

and not completely and opaquely covered.” See Revision to

A.D. 10.7, Defs.’ Ex. B.

Relatedly, every MRB decision is appealable. (In fact,

inmates can also preemptively write to the director of security

to find out if a publication that they are thinking of ordering

will be admitted. See, e.g., Letter, Pl.’s Ex. 4 (such a letter

from the Director of Internal Security to Reynolds).) When a

publication is rejected, an inmate receives a notice indicating

the reason for rejection. See Trial Tr., Doc. No. 155, at

429:7–12 (Hartnett); A.D. 10.7, Defs.’ Ex. A, at ¶ 4(N)(1)

(g)(3). Should an inmate wish to appeal the rejection, he

can appeal to the commissioner's designee, who “happens to

be the director of security.” See Trial Tr., Doc. No. 155, at

429:13–15 (Hartnett). The commissioner's designee conducts

an “independent review” and makes a final decision. See Ortiz

Trial Tr., Doc. No. 80, at 183:10–15 (Hartnett). Apparently,

at least in the time from 2017 through the time of this trial,

inmate appeals would go first to the MRB's chairperson

before making their way to the commissioner's designee.

Captain Kunkel testified that as chairperson of the MRB,

any appeal regarding publications that the MRB had rejected

“originally comes to me, and I will do the preliminary indepth review.” See Trial Tr., Doc. No. 155, at 474:15–22.

That in-depth review could include, for instance (assuming

that the rejected publication was a book), doing research on

the book, reading “a lot” of the book, reading the publisher's

review of the book, reading reviewers’ comments on the

book, and preparing a review for the director of security. See

id. at 474:1–25. The director of security will then make a

final decision and send a brief notice to the inmate detailing

the reason for rejection, or the reason for reversal. See, e.g.,

Letter, Pl.’s Ex. 10 (upholding rejection); Letter, Pl.’s Ex. 12

(upholding rejection); Letter, Pl.’s 14 (upholding rejection);

Letter, Pl.’s Ex. 16 (upholding rejection); Letters, Defs.’ Ex.

CC (upholding rejections); Letter, Pl.’s Ex. 19 (reversing

rejection); Letters, Defs.’ Ex. DD (upholding numerous

rejections and reversing one); Letter, Defs.’ Ex. EE (reversing

rejection). DOC statistics indicate that from 2012 through

2017, about 68 percent of rejections for sexually explicit

material were upheld in their entirety. See Response, Pl.’s Ex.

54, at ¶ 7.

D. Apparent Effects of 2012 Ban

1. Inmates

Each of the six inmates who testified explained that the 2012

ban had had a negative effect on him. For instance, although

Reynolds testified that he masturbates the same amount now

as he did before the ban, he has less to stimulate him. See

Trial Tr., Doc. No. 154, at 63:2–9. That loss of stimulation,

Reynolds said, has led to increased stress and has made

Reynolds resort to objectifying female DOC employees.

Reynolds explained that without nude magazines:

I don't have one outlet, one healthy

outlet, which would have been the

magazines, so now every time I hear a

female voice, I notice I go to the door.

My C.O., she walks by, I'm looking at

her butt as she walks off.... [B]efore, I

never paid attention to them one way

or the other. I had magazines. The

magazines had women nude.

*11 Id. at 27:13–25. Reynolds has never “gunned down” a

female DOC employee, but he now looks at them in a more

sexual way. See id. at 70:7–15. Reynolds admitted that there

are other possible ways that he could become stimulated—

such as by seeing an attractive actress on TV, a personal

memory, or a memory of his old magazines. See id. at 70:16–

71:22.

Several inmates testified that since the 2012 ban, they

masturbate less. See, e.g., Trial Tr., Doc. No. 154, at 131:9–12

(Sosa); Trial Tr., Doc. No. 155, at 294:20–295:8 (Vivo); id. at

314:19–25 (Smalls explaining that masturbating post-ban is

“extremely hard”). Inmates echoed Reynolds's testimony that

they have begun to view female DOC employees in a more

sexual manner since the 2012 ban. See, e.g., Trial Tr., Doc.

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Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

No. 154, at 111:14 (Sosa). Inmates also reported that, after the

ban was put in place, they feel more depressed and stressed.

See, e.g., Trial Tr., Doc. No. 154, at 27:1–7 (Reynolds); Trial

Tr., Doc. No. 155, at 315:4–5 (Smalls). One inmate, Sosa,

reported that he has become “more horny” since the ban. See

Trial Tr., Doc. No. 154, at 120:7–9; Disciplinary Reports,

Defs.’ Ex. V (showing that Sosa has accumulated more

disciplinary reports for “gunning” after 2012 than before).

Pink testified that his displeasure with the 2012 ban was not

that it made masturbating more difficult but that it hindered

his ability to make art and to improve as an artist. Since he

has been incarcerated, Pink's hobby has become drawing. See

Drawings, Pl.’s Ex. 53. Since 2012, when the nudity ban came

into effect, Pink has had several art books depicting nude

models either confiscated or rejected. See Books, Defs.’ Exs.

W (Art Models Series (multiple volumes)), X (Virtual Pose

4), Y (The Nude Figure), and Z (The Nude Female Figure);

Trial Tr., Doc. No. 154, 83:14–92:19 (Pink describing many

of those).

Some inmates testified that the ban has led to a negative

culture change inside DOC facilities. For instance, Vivo

testified that since 2012, inmates in DOC facilities are

exhibiting “more like a predator atmosphere” and “[w]hen

they see a picture or they see females, they like stalkers,

and disrespectful.” See Trial Tr., Doc. No. 155, at 284:16–

23. Vivo and Smalls explained that the climate was worse

now for female corrections officers than it was before. See

id. at 288:13 (Vivo); id. at 320:22–321:3 (Smalls describing

the atmosphere as “more aggressive”). Smalls indicated that,

Year

Public Indecency Tickets

2007

164

2008

161

2009

338

2010

424

2011

461

2012

494

2013

194

2014

171

2015

161

in his estimation, there had been no change in the amount

of “gunning,” cat calling, or inmate-on-inmate violence since

2012. See id. at 317:10–320:2; see also Trial Tr., Doc. No.

154, at 34:19 (Reynolds estimating that sexual harassment of

female corrections officers has gotten worse since 2012).

Finally, inmates reported that the nudity ban has made

bartering worse because the price for sexually explicit

pictorial depictions has gone up as their supply has gone

down. See, e.g., Trial Tr., Doc. No. 155, at 278:2–15 (Vivo);

id. at 305:6–16 (Smalls).

2. Staff

From DOC employees’ perspective, since the 2012 nudity

ban, “morale ... has improved.” Ortiz Trial Tr., Doc. No.

80, at 252:4–5 (Rinaldi). Former deputy warden Cournoyer

testified that there was a “very positive” climate at Enfield

between 2016 and 2018 due to more mutual respect between

the inmates and the staff. See Trial Tr., Doc. No. 156, 522:4–

11. Sexually explicit pictorial depictions are clearly much less

pervasive in DOC facilities now.

*12 The Defendants also believe that, contrary to the

Plaintiffs’ contentions, “gunning” has decreased dramatically

since 2012. Indeed, the number of disciplinary reports handed

out for public indecency (which includes “gunning”) has

decreased from the levels immediately preceding the ban:

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Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

2016

148

2017

153

2018

See DOC Research, Defs.’ Ex. BB. (Plaintiffs contest the

reason for that decline and its significance; that debate is taken

up below.)

Even DOC employees, though, appear to admit that bartering

—or the possibility of bartering—sexually explicit pictorial

depictions has gotten worse since the 2012 ban. DOC

employees confirmed that the price of sexually explicit

pictorial depictions has gone up since the nudity ban. See

Trial Tr., Doc. No. 156, at 544:9–11 (Rivera testifying that

sexually explicit magazines were going for $60 to $100 worth

of commissary at the time of trial).

E. Psychological Effect of Sexually Explicit Materials

At trial, each side produced a witness who testified about the

effects of sexually explicit material on inmates’ aggression.

The Defendants produced Eileen Redden, who, as already

explained, was at the time of the Ortiz trial the DOC's

Durational Program Manager and whose job duties included

overseeing the DOC's sex offender treatment program. See

Redden Aff., Defs.’ Ex. N, at ¶ 2–4. Redden explained

that through her work—she estimated that she had worked

with sex offenders for over 30,000 hours—she “learned of

the potentially dangerous effects caused by the viewing of

and exposure to pornography by inmates in correctional

facilities.” See id. at ¶¶ 5, 7. As part of her job, Redden helped

run therapy treatment groups. Those groups met once per

week for two hours over, ideally, a year. The groups included

between fifteen and eighteen inmates who had “prior problem

sexual behavior” and two therapists (one of each gender) as

group leaders. See Ortiz Trial Tr., Doc. No. 79, at 97:10–99:24

(Redden).

From her work with these groups, Redden gleaned important

insights about pornography's effect on sex offenders. First,

Redden surmised that “the viewing of pornography can cause

deviant sexual arousal which ‘primes’ the offender before

committing sexual abuse against his or her victim(s).” See

Redden Aff., Defs.’ Ex. N, at ¶ 9(a). Relatedly, Redden

found that many sex offenders use pornography to satisfy

emotional, psychological and sexual needs that should come

from “appropriate sexual partners.” Id. Those sex offenders’

use of pornography reinforces the sex offenders’ tendencies

to objectify others, including their victims. Id. Indeed,

Redden testified that allowing those sex offenders to view

pornography “completely undermines all the basic tenants of

[their] treatment” because “pornography objectifies women”

and “it's really essential for someone to objectify and

dehumanize someone before they can harm them.” Ortiz

Trial Tr., Doc. No. 79, at 100:12–101:5. From all of this,

Redden concluded: “[T]he primary thread for all offenders

I've worked with ... is their exposure and their use of

pornography.” Id. at 104:21–105:2. Relatedly, Redden also

learned that the sex offenders in her group therapy “often

complained” about the prevalence of pornography in the DOC

facilities because they felt they “could not get away from it.”

Redden Aff., Defs.’ Ex. N, at ¶ 9(b); Ortiz Trial Tr., Doc. No.

79, at 101:14–23.

*13 Redden also warned that the continuing prevalence

of sexually explicit materials in DOC facilities led to an

unacceptably high risk of sexual violence. Redden explained

that sex offenders “are more likely than non-criminals to

perform sexual acts after viewing pornography.” See Redden

Aff., Defs.’ Ex. N, at ¶ 10. Redden cited both her own

experience and a study by Gert Hald, Neil Malamuth, and

Carlin Yuen (the “Malamuth Study”) in concluding that there

is “a correlation between problem sexual behavior and the

viewing of nonviolent pornography.” See id. at ¶¶ 10–11. And

Redden warned that predatory inmates “will use pornography

to create a sexualized environment to then pursue and attempt

to exploit a more vulnerable inmate into sexual behavior.”

Ortiz Trial Tr., Doc. No. 79, at 102:6–15; see also id.

at 126:16–17 (discussing such grooming); Trial Tr., Doc.

No. 155, at 423:8–18 (Hartnett). Indeed, the United States

Department of Justice's National Institute of Corrections has

warned that an inmate's using pornography personally and to

barter with and manipulate other inmates is one indication that

that inmate may be a predator. See Guidebook, Pl.’s Ex. 59.

Redden extrapolated from her experience with sex offenders

to develop views about the general inmate population. For

instance, Redden testified that pornography is bad for all

inmates because both sex offenders and general population

inmates “have very sexist and inappropriate attitudes and

perceptions of women” and pornography reinforces those

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Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

attitudes and perceptions. See Ortiz Trial Tr., Doc. No. 79,

at 100:18–24; see also Redden Aff., Defs.’ Ex. N, at ¶ 12

(reporting that “[a] correlation has also been found between

hostility and negative attitudes towards women and the

viewing of pornography”). However, Redden was unaware of

“any study of the effects of pornography on the incarcerated

population of any prison system.” Trial Tr., Doc. No. 154, at

249:21–24.

The plaintiffs produced Dr. Robert Selverstone, a

psychologist and sex educator who was qualified as an expert

in “human sexuality and typical human behavior.” See Trial

Tr., Doc. No. 155, at 346:25–347:2. Dr. Selverstone opined

that viewing sexually explicit materials has “either neutral or

positive” effects on people because doing so facilitates sexual

arousal, which is a “normal human function.” See id. at 350:8–

17. Dr. Selverstone similarly believed that masturbation has

a positive effect on an individual's mental well-being because

masturbation is a form of “self-soothing,” “self-control,” and

“stress release,” and it has a positive physiological, hormonal

effect. See id. at 350:23–351:6. Dr. Selverstone concluded

that if one's opportunity to masturbate declines, “the resulting

frustration might lead one to be more angry and ... to

engage in behavior that would be potentially antisocial.” Id.

at 371:11–16. Dr. Selverstone noted that research showed

an inverse relationship between the availability of sexually

explicit materials and sexual crimes. See id. at 354:24–

356:19 (citing “Pornography, Public Acceptance and SexRelated Crime: A Review,” an article by Milton Diamond

published in the Journal of Love and Psychology in 2009).

Dr. Selverstone noted also that research showed a positive

correlation between the availability of sexually explicit

materials and positive attitudes towards women. See id. at

357:15–358:24 (citing “Voluntary Exposure to Pornography

and Men's Attitudes Toward Feminism and Rape,” an article

by Kimberly Davies published in the Journal of Sex Research

in 1997). Dr. Selverstone did acknowledge that “a minority of

articles” supported the opposite conclusion. See id. at 359:9–

360:6.

III. Discussion

Prisoners do not forfeit all their constitutional rights upon

incarceration. However, the fact of incarceration and the

needs of the prison system impose limitations on prisoners’

constitutional rights, even those derived from the First

Amendment. Jones v. North Carolina Prisoners’ Union,

433 U.S. 119, 125 (1977). Indeed, a prisoner retains only

“those First Amendment rights that are not inconsistent with

his status as a prisoner or with the legitimate penological

objectives of the corrections system.” Giano v. Senkowski, 54

F.3d 1050, 1053 (2d Cir. 1995) (citing Jones, 433 U.S. at 125);

see also Florence v. Bd. of Chosen Freeholders of County

of Burlington, 566 U.S. 318, 326 (2012) (“[A] regulation

impinging on an inmate's constitutional rights must be upheld

‘if it is reasonably related to legitimate penological interests.’

”) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). When

reviewing prison policies and practices, the federal courts

must exercise judicial restraint and significant deference

because courts do not have the expertise that corrections

officials do in the difficulties of operating a detention center.

See Florence, 566 U.S. at 326; Giano, 54 F.3d at 1053;

Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (collecting

cases).

*14 The Supreme Court directs the courts to review

prison policies that impact constitutional rights under a

reasonableness standard. A prison regulation should be

upheld “if it is reasonably related to legitimate penological

interests.” Safley, 482 U.S. at 89. In Safley, the Court set

forth four factors to consider in evaluating the reasonableness

of a prison regulation: (1) whether there is a valid and

rational connection between the prison regulation and the

legitimate government interest proffered to justify it; (2)

whether the prisoner has an alternative means of exercising

his constitutional right; (3) the impact that accommodating

the prisoner's constitutional right would have on correction

staff, other inmates, and the allocation of prison resources;

and (4) whether there are ready alternatives to the prison

regulation. See id. at 89–91.

The first factor “looms especially large.” Amatel v. Reno, 156

F. 3d 192, 196 (D.C. Cir. 1998). With respect to the first factor,

the question “is not whether the regulation in fact advances

the government interest, only whether the [governmental

body] might reasonably have thought that it would.” Amatel,

156 F.3d at 199. The policy must also be neutral, meaning

that it furthers a legitimate governmental interest unrelated to

the suppression of expression. See Thornburgh v. Abbott, 490

U.S. 401, 415–16 (1989). The burden is “not on the State to

prove the validity of prison regulations but on the prisoner

to disprove it.” Overton, 539 U.S. at 132. The prisoner must

prove that the prison regulation is not reasonably related to a

legitimate penological interest—that is, that the regulation is

irrational. See Giano, 54 F.3d at 1054.

Other courts analyzing prison regulations banning sexually

explicit materials have applied the Safley factors, and the

parties here agree that the Safley factors provide the correct

40a U.S. Government Works.

Reynolds v. Cook, Not Reported in Fed. Supp. (2020)

framework for analyzing the 2012 ban. In this case, the

Defendants put forth either three or four interests promoted

by the 2012 ban: (1) the 2012 ban promotes safe and secure

correctional facilities; (2) the 2012 ban promotes inmate

rehabilitation; (3) the 2012 ban enhances a less offensive

and non-hostile workplace; and, possibly, (4) the 2012

ban prevents inappropriate behavior. See Defs.’ Proposed

Conclusions of Law, Doc. No. 120, at 10. As noted above,

although the first three goals are consistently cited throughout

the evidence in this case, the Defendants cite the fourth goal

—to “prevent inappropriate behavior”—sporadically. Other

courts have recognized that the Defendants’ first three

asserted goals are legitimate penological interests. See, e.g.,

Thornburgh, 490 U.S. at 415 (security); Pell v. Pro

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