Petition for Writ of Certiorari — Beard v. Banks

Supreme Court, U.S.

FILED

© |

0417 39 JUN 2 0 2005

No. __OFEICE OF THE CLERK

IN THE

Supreme Court of the United States

JEFFREY BEARD,

Petitioner

v.

RONALD BANKS,

Respondent

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE THIRD CIRCUIT

PETITION FOR WRIT OF CERTIORARI

THOMAS W. CORBETT, JR.

Attorney General

Commonwealth oy Pennsylvania

CALVINR. KOONS .

Senior Deputy Attorney General

Counsel of Record

JOHN G. KNORR, III

Chief Deputy Attorney General

Office of Attorney General

Appellate Litigation Section

15th Floor, Strawberry Square

Harrisburg, PA 17120

(717) 783-6709

QUESTION PRESENTED

Does a prison policy that denies newspapers,

magazines, and photographs to the most difficult

inmates in the prison system in an effort to promote

security and good behavior violate the First Amendment

under the standards of Turner and Overton?

PARTIES TO THE PROCEEDINGS

The petitioner is Jeffrey Beard, in his official

capacity as Pennsylvania’s Secretary of the Department

of Corrections. Respondent is Ronald Banks, a state

prisoner.

TABLE OF CONTENTS

QUESTION PRESENTED ..0.....ccccceccecceseseseeseeeeeeeeees i

PARTIES TO THE PROCEEDINGS .............ccc0cee0e00e. ii

TABLE CP COMTTIED 5c ccs ceesessccsessecsesessecesssess iii

TABLE OF AUTHORITIES ..........cccccccscescesessesseeeseeees iv

TER LR SNE TTET 1

STATEMENT OF JURISDICTION .........ccccsceeeseeseseees 1

CONSTITUTIONAL PROVISION INVOLVED .............. 1

STATEMENT OF THE CASE ...........: ae eI ae 1

REASONS FOR GRANTING THE WRIT .........0.c0000000-- 7

A. There is a Conflict Among the Circuits as to

The Proper Application of Turner ..................0006 8 -

B. The Court of Appeal’s Decision is So Far at

Odds with Turner and Overton that it Ought

To be Summarily Reversed .................c.ccseseeeees 11

GUND wovnipadistinnossnnngndatciecresatenbesnnssesepesoniieis 15

ill

TABLE OF AUTHORITIES

CASES:

Crofton v. Roe,

170 F.3d 957 (9 Cir. 1999) .............ccscsessssseees 9

Fraise v. Terhune,

SOS F.SG SOS GSS Civ. DOOD) .cccctrccccccecsccccccccesee: 4

Jacklovich v. Simmons,

392 F.3d 420 (10% Cir. 2004) ............. cee 10

Jones v. North Carolina Prisoners’ Labor Union, Inc.,

SE a. he Oe OO cocececeesctnccsesseenninnctenssennaneins 9

- Maydak v. United States,

98 Fed.Appx. 1, 2004 WL 852218

GUE. GARR. GERED ceccccncscscncncsescosonpescocenncsontoneestion 10

O’Lone v. Estate of Shabazz,

GE DE. Be CED cccecccccsevesccssccsacsctonsivsscvsnens 9

Overton v. Bazzetta,

BE EL ee GID wcccccccenescccssscscecsecnensen passim

Shaw v. Murphy,

BD UB. Tw GOED ccccccccccsscssccvcescopcoscssessevsseves 9

Thomas v. Leslie,

176 F.3d 489 (10% Cir. 1999) 00.0... ce cceee eee eees 9

Tumer v. Safley,

GI GBD. Fee CTD toccccncccesenccscsscocscoscccenss passim

Wilkinson v. Austin,

No. 04-495 (Jume 13, 2O0S)............ccccceeeeeeeeeee 11

Wirsching v. Colorado,

360 F.3d 1191 (10 Cir. 2004) ........ ccc cece cece ee 11

1V

TABLE OF AUTHORITIES - CONT'D.

CONSTITUTIONAL PROVISIONS:

SESS Ee OT ONeE 1

STATUTES:

ETE LAE NOTE nee aa l

OPINIONS BELOW

The decision of the Court of Appeals is reported at

399 F.3d at 134 and is reprinted at Pet. App. la. The

decision of the District Court is not reported, but is

reprinted at Pet. App. 32a.

STATEMENT OF JURISDICTION

The judgment of the Court of Appeals was entered

on February 25, 2005. A petition for rehearing was

timely filed and was denied on March 22, 2005 by a

vote of 6-5. Pet. App. 30a-3la. This petition is being

filed within ninety days thereafter. This Court has

jurisdiction pursuant to 28 U.S.C. §1254.

CONSTITUTIONAL PROVISION INVOLVED

The First Amendment to the Constitution provides

in relevant part that “Congress shall make no law ...

abridging the’ freedom of speech .. .” U.S. CONST.,

Amend I.

STATEMENT OF THE CASE

In Pennsylvania’s prison system, the most

incorrigible inmates face severe restrictions on their

already restricted privileges, subject to reinstatement

should their behavior improve. Among other things,

they face an almost total prohibition on newspapers,

magazines and photographs. Prison officials adopted

this policy in order to modify the behavior of these

incorrigible inmates, to deter misconduct by others,

and to increase prison security. The Court of Appeals,

_

l

considering a First Amendment challenge to this policy,

held that it could survive this challenge only if prison

officials could establish that it addressed specific

incidents of inmate misconduct, was the only way to

address their rehabilitative and security concerns, and

was actually successful. The Court should review this

decision because is cannot be squared with the

teachings of Turner v. Safley, 482 U.S. 78 (1987) and its

progeny; or with the decisions of other courts of appeals

facing similar situations.

1. The Pennsylvania Department of Corrections

established a Long Te1m Segregation Unit (LTSU) at the

State Correctional Institution at Pittsburgh to house

inmates that are “the most incorrigible, the most

difficult, problematic, and have demonstrated the most

behavior conflicts.” Pet. App. 34a-35a. Prison officials

established the LTSU to improve both inmate behavior

and prison security. Id.

The LTSU is the “last stop” for inmates who present

intractable security or disciplinary problems. Inmates

who have failed to respond to other, less restrictive

disciplinary programs — known as Special Management

Units and Restricted Housing Units — may be

transferred into the LTSU. Other candidates for the

LTSU are those who have a history of escape attempts

or possessed weapons or implements of escape; who

have seriously assaulted or caused injury to staff or

other inmates; who have a history of sexual predation;

or who have committed new crimes while in prison. Pet.

App. 3a, fn.2.

Inmates in the less restrictive disciplinary programs

have already lost many privileges, such as tobacco use

and contact visits.' Further restrictions may be

' A comparative chart, an attachment to Department of

Corrections Policy 6.5.1, relating to disciplinary housing, and

(continued...)

2

imposed or eased, depending upon the inmates’

behavior. In the Special Management Units, for

example, inmates may be forbidden or permitted to

have radios and televisions in their cells, and may be

allowed varying numbers of (non-contact) visits and

telephone calls, depending on their progress level. Pet.

App. 47a. Similarly, inmates are permitted to possess

one newspaper at a time, ten photographs, and from

one to ten magazines, depending again on their

progress level. /d.

The LTSU imposes further restrictions on

recalcitrant inmates. The unit has two levels. Inmates

are initially placed in Level 2 — the more restrictive

level — and spend at least ninety days at that custody

level. Pet App. 3a. Besides other restrictions not

challenged below, Level 2 inmates are not permitted

any newspapers, magazines, or photographs in their

cells, nor do they have access to the prison library

where newspapers and magazines are available.

Although Level 2 inmates are permitted limited

visitation with family and correspondence, they are only

permitted to receive news clippings in the mail which

relate to them. Pet. App. 3a-4a. They are also permitted

some legal papers and religious materials in their cells.

After the first ninety days, prison officials review an

inmate’s status every thirty days to determine if

promotion to Level 1 is appropriate. If it is, then the

inmate may have a newspaper in his cell, and up to five

magazines at a time.

Prison officials testified that this regimen promotes

positive behavioral changes by encouraging inmates to

improve their behavior to regain a desired privilege.

This, officials said, was the “most important” goal,

a part of the record before the lower court, is reproduced at

Pet. App. 47a.

achieved by effectively telling the inmate, “You comply,

you modify your behavior, and you can obtain these

things, these privileges, . . ., you have the ability

through your own actions to be promoted .. . from a

Level 2 inmate to a Level 1 inmate, and we do that every

day.” Deposition of Joel Dickson, N.T. 86, 88. The

restrictions also promote security, in that the

limitations on property in the cells make it harder for

inmates to conceal contraband; in addition, the specific

property prohibited — newspapers and magazines —

can be rolled up and used as blow guns or spears, used

to fling feces or urine at guards, or as tinder to start a

fire in the cell. Pet. App. 40a-41a.

2. The respondent brought this action on behalf of

himself and those similarly situated, contending that

the prohibition on mewspapers, magazines and

photographs for Level 2 inmates violates the First

Amendment. The District Court certified a class, and

the parties, after discovery, filed cross motions for

summary judgment.

The District Court granted the petitioner’s motion

and denied the respondent’s.? Applying Turner v. Safley,

482 U.S. 78 (1987), and the Court of Appeal’s decision

in Fraise v. Terhune, 283 F.3d 506 (3d Cir. 2002), the

District Court noted the substantial deference due

prison authorities. The District Court accepted that

inmates housed in the LTSU posed unique security

concerns, and that the policy of denying Level 2

inmates newspapers, magazines, and photographs did

serve the goal of improving security, as newspapers,

magazines, and photos could be used to fashion

weapons or start fires, and that inmates would be more

likely to use these items for that purpose than legal

2 A Magistrate Judge’s report recommended that

Petitioner’s motion be granted, and the District Court

adopted the report as its opinion.

papers and religious texts which they were permitted to

have in their cells. Pet. App. 40a. The District Court

also concluded that the policy was rationally related to

goals of rehabilitation: “Having . . . been transferred to

the LTSU, it seems not only rational to impose more

restrictive conditiors in an effort to encourage

compliant behavior but imperative to the success of the

LTSU.” Id.

The District Court went on to say that inmates have

alternative means of exercising their rights: first, by

modifying their behavior and being promoted to less

restrictive custody, and also by visitation and

correspondence. Pet. App. 4la-42a. The court also

concluded’ that, in view of the security concerns

prompting the challenged policy, accommodating the

prisoners’ rights would have a negative impact on other

inmates and guards in the LTSU. Pet. App. 43a. Finally,

the District Court concluded that there were no ready

alternatives to the policy: giving the inmates a “reading

period” for example, “would not be without sacrifice to

the prison’s behavioral modification goals,” would not

prevent prohibited use of magazines and newspapers,

and would have an impact on prison resources. Pet.

App. 45a.

3.a. <A divided panel of the Court of Appeals

reversed and remanded for further proceedings. The

panel majority acknowledged that “the deterrence of

future infractions of prison rules can be an appropriate

justification for temporarily restricting the rnghts of

inmates,” but thought that “it is unclear how the policy

would achieve the deterrence that it seeks”, Pet. App.

lla-17a, in view of the indefinite period of confinement

in the LTSU and the discretionary nature of decisions

regarding custody status; and noted that “the

{|Department of Corrections] has offered no evidence

that the rule achieves or could achieve its stated

rehabilitative purpose.” Pet. App. 12a. The majority also

discounted the prison officials’ security concerns,

5

because “there [was] no evidence in the record of the

misuse of periodicals or photographs in any of the ways

described by the DOC,” that is, no evidence of “specific

incidents” where these materials had been used to start

fires or fling feces. Pet. App. 14a. The majority also

thought that, because Level 2 inmates were permitted

other flammable materials in their cells, including

clothing and legal and religious materials, the ban on

papers, magazines and photos “may be too attenuated

to be reasonable.” Pet. App. 17a. The majority

acknowledged testimony that few fires had been started

in the LTSU and that paper products were generally

used to ignite them but criticized the lack of specific

testimony “as to the effect such a ban has had on the

frequency of fires, be it in the LTSU or elsewhere.” Pet.

App. 15a. :

The majority rejected the District Court’s conclusion

that inmates have alternative means of exercising their

rights simply by modifying their behavior because

“segregation in Level 2 is not linked to a particular

infraction and is of potentially unlimited duration,” Pet.

App. 19a-20a, and because there were no affidavits in

the record from those who made decisions regarding

custody level or documentation of the review process.

Pet. App. 20a.

Finally, the panel majority thought that the prison

could accommodate the_ prisoners’ interests. by

establishing “reading periods” during which they could

read newspapers and magazines, or by escorting them

individually to a secure mini library “to read a

periodical of their choosing.” Pet. App. 22a-24a.

b. Judge Alito dissented because he thought the

prison policy was constitutional on its face under the

Tumer standards. Judge Alito thought that it was

“rational’ for corrections officials to think that inmates

who are not in Level 2 will be deterred from engaging in

serious misconduct because they do not want to be

6

transferred to that unit and thus be subjected to the

restrictions that accompany that assignment.” Pet. App.

26a. “It is also ‘rational’,” Judge Alito continued, “for

corrections officials to think that inmates who are in

Level 2 will be deterred from engaging in serious

misconduct while in that unit because they wish to be

transferred out and thus to escape such restrictions.”

Pet. App. 26a-27a. Judge Alito noted that the indefinite

nature of confinement in the LTSU might diminish its

deterrent effect, it would not eliminate that effect as the

majority thought, and also faulted the majority for

misconstruing the nature of the first Turner factor:

“This factor requires us to determine whether there is a

‘logical connection between the regulation and the

asserted goal,’ see 482 U.S. at 89 (emphasis added), not

whether there is empirical evidence that the regulation

in fact serves that goal.- The entire system of prison

discipline might be imperiled if each sanction for prison

misconduct could net be sustained without empirical

evidence that the sanction provided some incremental

deterrent.” Pet. App. 27a-28a. As to the second Turner

factor, alternative means of exercising the nght, Judge

Alito found it significant that inmates in Level 2 could .

still read books and receive letters, and had the option

of modifying their behavior so as to be promoted to

Level 1. Pet. App. 28a. Finally, as to the availability and

impact of accommodation, Judge Alito thought that the

modifications to prison policies proposed by the

majority “would almost certainly have an impact on

prison resources.” Pet. App. 29a.

4. The full Court of Appeals narrowly denied

petitioner’s request for en banc rehearing, by a vote of

6-5.

REASONS FOR GRANTING THE WRIT

The Court of Appeals’ decision conflicts with the

direction in Turner v. Safley that judgments regarding

prison administration generally be made by prison

7

officials, not judges. By requiring prison officials to bear

the burden of proving their policies constitutional, it

also conflicts directly with Overton v. Bazzetta, a case

which the Court of Appeais did not mention. The

decision also exemplifies a conflict among the circuits

regarding the proper application of Turner and Overton.

A. There is a Conflict Among the Circuits as to

the Proper Application of Turner.

In Turner, the Court set forth the now familiar four

pronged test for evaluating the constitutionality of

prison rules and policies that implicate inmates’

constitutional rights: whether there is a rational

connection between the policy and a legitimate

government interest, whether inmates have alternative

means of exercising the right, the impact of

accommodation on guards and other inmates, and

whether there are ready alternatives to the policy that

will accommodate the inmates’ interest. 482 U.S. at 89-

91. The Court repeatedly emphasized that the standard

adopted in Turner was meant to be deferential to prison

officials so that they could do their jobs properly.

Thus, in adopting the undemanding standard that a

challenged prison regulation need only be “reasonably

related to legitimate penological interests,” the Court

said “[sjuch a standard is necessary if prison

administration and not the courts [are] to make the

difficult judgments concerning institutional operations.”

482 U.S. at 89 {internal quotations and citations

omitted). The Court went on to say that “/s]ubjecting

the day-to-day judgments of prison officials to an

inflexible strict scrutiny analysis would seriously

hamper their ability to anticipate security problems and

to adopt innovative solutions to the _ intractable

problems of prison administration.” Jd. Similarly, with

respect to the “absence of ready alternatives” part of the

standard, the Court emphasized that “/t}his is not a

‘least restrictive alternative’ test: prison officials do not

8

have to set up and then shoot down every conceivable

alternative method of accommodating the claimant’s

constitutional complaint.” Id. at 90-91.

More recently, the Court in Overton v. Bazzetta, 539

U.S. 126 (2003), a case closely similar to this one,

reiterated the “substantial deference [due] to the

professional judgment of the prison administrators,

who bear a significant responsibility for defining the

legitimate goals. of a corrections system and for

determining the mos: appropriate means to accomplish

them.” /d. at 132 (citations omitted), and emphasized

that “/t]he burden ig-net—on the State to prove the

validity of Prison regulations but on the prisoner to

disprove it.” Id.., citing Jones v. North Carolina Prisoners’

Labor Union, ee. 433 U.S.119, 128 (1977); O’Lone v.

Estate of Shabazz, 482 U.S. 342, 350 (1987); Shaw v.

Murphy, 532 U.S. 223, 232 (2001).

1. Despite the Court’s clear direction in Tumer, and

again in Overton, some Courts of Appeals, like the Third

Circuit, have been reluctant to give proper deference to

prison officials in matters of prison administration. The

decision of the Court of Appeals here is a part of a split

among the circuit courts applying Turner to analyze_

restrictions like these. A few Courts of Appeals,

particularly predating the Court’s decision in Overton,

have invalidated bans on publications for reasons

similar to the Third Circuit’s, and even after Overton,

some courts have failed to give pmson authorities

proper deference. For example, in Crofton v. Roe, 170

F.3d 957 (9% Cir. 1999), the Ninth Circuit held that a

regulation on gift publications for the purpose of

“inhibit{ing] contraband and strong-arming” was invalid

because of the state’s failure “to develop a record” to

support the ban or to describe “any particular risk

created by prisoners receiving such publications.”

Similarly, in Thomas v. Leslie, 176 F.3d 489 (10% Cir.

1999) (unpublished opinion), the Tenth Circuit rejected

the argument that a ban on newspapers at a county

9

detention facility was rationally related to concerns that

newspapers could be used as weapons or to start fires,

because the prison allowed inmates to have other types

of flammable materials in their cells. The court also felt

that the inmate’s ability to watch television was not an

adequate alternative as it did not provide the “depth

and diversity” of mewspapers. More recently in

Jacklovich v. Simmons, 392 F.3d 420 (10 Cir. 2004), a

post-Overton decision, the Court said that a ban on

publications for inmates promoted from intake status to

Level 1 (the most secure custody level) justified as a

behavioral management measure was “unsupported” as

it appeared to be based more on custody status than on

conduct.

By contrast, other Courts of Appeals have taken an

approach more in line with Tumer and Overton. In

Maydak v. United States, 98 Fed.Appx. 1, 2004 WL

852218 (D.C. Cir. 2004), for example, the Court

considered whether a policy of withholding certain

publications from inmates in disciplinary custody (in

this case, The Wall Street Journal), was constitutional

under Turner. The Court said that it was permissible as

a means to improve behavior, affirming a grant of

summary judgment. The Court concisely analyzed each

of the four prongs of the Tumer test in a way very

different from the Third Circuit: “permitting inmates

whatever reading materials they desire would eliminate

one of the punitive aspects of disciplinary segregation

(factor one). The government also satisfies the other

three factors: Maydak enjoyed access to other reading

materials (factor two), accommodating Maydak would

make disciplinary segregation appear less unattractive,

having a potentially adverse effect on other inmates’

incentives for following prison rules (factor three), and

Maydak points to no real alternative that BOP could

undertake as a disciplinary measure (factor four).” **1.

Other courts have handled similar issues in a

similar way. In Wirsching v. Colorado, 360 F.3d 1191

10

(10% Cir. 2004), for example, affirming the grant of a

motion for summary judgment, the Tenth Circuit

upheld as constitutional a prison regulation that

prohibited a convicted sex offender who refused to

participate in a sex offender treatment program from

visitation with his own children. The prison offered

some testimony that visitation could put the children at

risk and could be detrimental to the prisoner’s

rehabilitation. The prisoner- argued, much as the

respondent does here, that there was no evidence that

he ever harmed or attempted to harm his daughter or

children like her. Nevertheless, the Court said, although

the evidence “may be debatable,” the burden of proof

was on the prisoner and “substantial deference” was

due “the professional judgment of prison

administrators,” and concluded that “there is a rational

connection between the CDOC policy and legitimate

governmenta! interests.” 360 F.3d at 1200, citation

omitted.

The Court in Wilkinson v. Austin, No. 04-495 (June

13, 2005), recently recognized the growing trend 'to

create “Supermax” facilities to segregate the most

dangerous prisoners. Evidently, the courts of appeals

need further guidance on the proper application of

Turner and Overton to such situations, and the Court

should review this case to provide that guidance.

B. The Court of Appeal’s Decision is So Far at

Odds with Turner and Overton that it Ought to be

Summarily Reversed. ‘

Alternatively, the Court should summarily reverse

the judgment of the Court of Appeals because it is at

odds with Turner and even more at odds with Overton,

which is almost directly on point and ought to have

controlled the result here.

1. In Overton, prisoners challenged regulations that

restricted visitation rights, inter alia; with former

“yl

inmates, and limited visitation for inmates with

multiple substance abuse violations to attorneys and

members of the clergy for a period of two years, to be

reinstated at the discretion of prison officials. With

respect to the first restriction, the Court found a “self

evident connection” between prohibiting visitation with

former inmates and an interest in promoting prison

security and preventing future crimes. The restriction

for substance abuse violators, the Court said, was also

legitimate to modify behavior: “withdrawing visitation

privileges is a proper and even necessary management

technique to induce compliance with the rules of

inmate behavior, especially for high-security prisoners

who have few other privileges to lose.” 539 U.S. at 134

(emphasis added). The Court also made it clear that the

prisoner bears the burden of proving that a policy is

unconstitutional, rather than prison authorities of

supporting it. These principles are especially important

in evaluating the constitutionality of housing units and

programs, like this one, designed to deal with “problem”

inmates.

The decision of the Court of Appeals here holds

prison officials to a strict burden of proof, requires

empirical evidence tliat their policies are narrowly

designed to address specific instances of prisoner

misconduct, and second-guesses them as to the

feasibility of alternative means of accommodating the

prisoners’ asserted interest. In so doing, it has

misapplied Turner and completely ignored Overton’s

allocation of burden of proof to the prisoner. It ignores

as well as Overton’s holding that the withholding of

privileges is a constitutionally permissible means of

attempting to modify prisoners’ behavior: there is no

constitutionally significant difference between a

program that restricts visitation privileges to induce

good behavior and one which restricts newspaper and

magazine privileges to induce good behavior. The Court

should review the case and summarily reverse on the

basis of Overton.

12

2. The penological goals here - rehabilitation and

security — are indisputable, and the connection

between the goals and the challenged policy a simple

matter of common sense. As to rehabilitation, it seems

obvious, as the Court recognized in Overton, that taking

privileges away from prisoners who misbehave and

restoring them when their conduct improves provides

an incentive for good behavior; as the Court likewise

recognized in Overton, incentives of this kind are

especially important — and hard to come by — for the

most recalcitrant inmates, who already have fewer

privileges than inmates in the pmson’s_ general

population. The challenged policy is also an

inducement to prisoners who are not in the LTSU to

behave themselves so they will not be placed there. As

to security, it is clear that pnmsoners can and do start

fires, throw feces other objects and make weapons out

of paper products like newspapers, magazines, and

photographs, and are more likely to do so with these

items than with religious texts which they may hold

sacred.

It is equally clear that inmates in the LTSU have

alternative, although limited means of communicating

with the outside world: correspondence, visits, and

most importantly, modifying their behavior so as to

regain newspaper and magazine privileges. Finally, it is

clear that no accommodation by prison officials is

possible. Such an accommodation — such as the

“reading period” endorsed by the Court of Appeals —

would necessarily reinstate in some form the very

privileges being withheld, without requiring the inmate

to modify his behavior to regain them, thus

undermining the policy’s rehabilitative goals.

The Court of Appeals here refused to credit these

obvious facts and connections, and refused to allow

prison officials the leeway to use their experience,

judgment, and common sense to deal with behavioral

13

problems. Instead, the Court of Appeals insisted upon

evidence that officials acted in response to specific

instances of misconduct, in a narrowly tailored

regulation, supported by empirical evidence showing

that the regulation is actually effective in achieving the

desired goals. Prison officials are thus prohibited from

anticipating problems, from experimenting with

solutions to problems, and from using their judgment

and experience to run the prisons. Instead, every policy

that affects an inmate’s constitutional rights - and

there will be few that do not - will be tried in court. This

is the antithesis of the proper arrangement described

by the Court in Turner and reinforced in Overton, and

the Court should summarily reverse. :

14

CONCLUSION

The Court should grant the writ. |

Respectfully submitted,

THOMAS W. CORBETT, JR.

Attorney General

Commonwealth of Pennsylvania

CALVIN R. KOONS

Senior Deputy Attorney General

Counsel of Record

John G. Knorr, Ill

Chief Deputy Attorney General

Office of Attorney General

Appellate Litigation Section

15th Fl., Strawberry Square

Harrisburg, PA 17120

(717) 783-6709

COUNSEL FOR PETITIONER

DATED: June 20, 2005

1S

APPENDIX

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-1245

RONALD BANKS, for himself and on behalf of all

similarly situated prisoners who are confined or will be

confined in Long Term Segregation Units of State

Prisons located in the Western Judicial Distnct of

Pennsylvania,

Appellant

Vv.

JEFFREY BEARD, in his official capacity as Secretary of

the Pennsylvania Department of Corrections

On Appeal from the United States District Court for the

Western District of Pennsylvania

District Court Judge: The Honorable Terrence F.

McVerry

(D.C. No. 01-cv- 1956)

Argued on October 22, 2003

Before: ALITO, FUENTES, and ROSENN, Circuit

Judges

(Opinion Filed: February 25, 2005)

la

JERE KRAKOFF (Argued)

PA I.D. No. 13701

1705 Allegheny Building

Pittsburgh, PA 15219

Counsel for Appellants

D. MICHAEL FISHER

Attorney General

KEMAL ALEXANDER MERICLI {Argued]

Senior Deputy Attorney General

CALVIN R. KOONS

Senior.Deputy Attorney General

JOHN G. KNORR III

Chief Deputy Attorney General

Appellate Litigation Section

Office of Attorney General of Pennsylvania

6% Floor, Manor Complex .

564 Forbes Avenue

Pittsburgh, PA 15219

Counsel for Appellee

OPINION OF THE COURT

FUENTES, Circuit Judge

Ronald Banks, on behalf of himself and all other

Level 2 prisoners confined in the Long Term Segregation

Unit (“LTSU”) of the State Correctional Institution at

Pittsburgh (“SCI Pittsburgh”), challenges the

constitutionality of the Pennsylvania Department of

Corrections’ (“DOC”) policy banning access. to

newspapers, magazines and photographs for Level 2

2a

inmates, arguing that the policy violates the prisoners’

free speech rights under the First Amendment. ,

The District Court granted summary judgment to

the defendant and upheld the policy as reasonably

related to legitimate penological interests. We disagree

and therefore will reverse.

I. Factual and Procedural Background

The LTSU was established at SCI Pittsburgh in April

2000 as a place to confine a small population of

inmates! which the DOC views, because of their history

of behavior in prison, as too disruptive, violent or

problematic to house elsewhere.? Inmates are classified

at “Level 2” when admitted to the Unit, must remain

there a minimum of 90 days, and may remain at Level 2

indefinitely. The length of time a prisoner may spend in

the LTSU is open-ended and subject to the discretion of

prison personnel. Department policy prohibits Level 2

prisoners from receiving newspapers or magazines

' The maximum population in the LTSU is 40. (App. 92)

Deposition testimony in this case discloses that, during the

relevant period, the LTSU population was comprised of 36

Level 2 and three Level 1 inmates. (App. 93)

2? The relevant DOC regulations state: “Any inmate who is,

has or may be planning to engage in the following activities

may be appropriate for assignment in the LTSU: (1) inmates

who fail to complete SMU [Special Management unit]; (2)

serious escape history; (3) assaultive behavior with the intent

to cause death or serious bodily injury; (4) injury to staff

and/or inmates; (5) engaging in facility disturbances(s); (6)

recorded history of exerting negative influence in facility

activities; (7) Security Threat Group (STG) member or other

unauthorized organization(s); (8) Perpetuated criminal

activity that threatens the community; (9) a history of being a

sexual predator; and/or (10) possessing weapons and/or

implements of escape.” 6.5.1 Administration of Security

Level S Housing Units Procedure Manual at 1-16.

3a

directly from the publisher, from the prison library, or

from any other source for the duration of their

confinement at Level 2 status unless the publication is

religious or legal in nature. Individual articles clipped

from publications are prohibited, unless they relate to

the inmate or his family. Also prohibited is the

possession or receipt of photographs of spouses, other

family members, or friends.

Other DOC rules which govern life at LTSU Level 2

prohibit inmates from having radios or televisions,

permit phone calls only in emergencies or when related

to inmates’ legal representation, limit inmates to one

visit with an immediate family member per month, and

require inmates to remain in their cells 23 hours a day,

one inmate to a cell. Inmates are permitted, however,

religious or legal publications and paperback books

that can be ordered from the prison library. To review

legal materials, once LTSU inmate at a time may be let

out of his cell and is escorted from it to a “mini law

library” in hand and leg irons by two corrections

officers. (App. 11)

The policy challenged here is unique in the state

prison system, even among other segregated inmates.

Level 1 LTSU inmates are permitted one subscription

newspaper in their ceils which can be exchanged on a

one-for-one basis and are also permitted five

subscription magazines at any given time.? Department

policy also authorizes Special Management Unit

(“SMU”) inmates (another class of segregated inmates

identified as being among the most difficult inmates in

the system) to have various numbers of subscription

newspapers, magazines and photographs in their cells,

depending on their classification level. (App. 77)

Similarly, dangerous inmates who are segregated in the

Department's regular Restrictive Housing Unit on

3 The photograph prohibition, however, remains unchanged.

4a

Administrative Custody status for security reasons are

permitted one subscription newspaper in their cells

which can be exchanged on a one-for-one basis, as well

as subscription magazines and up to 10 photographs.

Deputy Superintendent Joel Dickson, who

supervises the LTSU, testified in his deposition that the

prohibition serves several penological purposes, which

were reiterated by the defendant in its briefs. First, and

emphasized by Dickson as most important, is behavior

modification and rehabilitation. Dickson explained that

in Level 2, inmates are deprived of certain privileges to

create an incentive to comply with prison-rules and

thereby be removed to Level 1 and eventually to the

general population. Among Level 1 inmates, the

prospect of having the privileges denied’ discourages

backsliding. Also, Dickson explained that as inmates

improve their behavior to earn privileges, they become

better integrated members of prison society or, if

released, better members of free society and “more

productive citizen{s].”. (App. 111) Second, the less

material Level 2 prisoners have in their cells, the easier

it is for correctional offices to detect concealed

contraband and provide security. Third, newspapers

and magazines can be rolled up and used as blow guns

or spears, can fuel cell fires, or can be used as crude

tools to catapult feces at the guards.

Plaintiff Ronald Banks filed the Complaint in this

action on October 18, 2001. Seeking equitable and

declaratory relief, the Complaint challenged the

constitutionality of the DOC policy that denies Level 2

inmates access to mewspapers, magazines and

photographs of family members and friends. The

inmates argued that, under Turner v. Safley, 482 U.S.

78 (1987), the policy offends their right to free speech

either because it bears no rational connection to any

legitimate penological interest or because it is an

exaggerated response to such an interest. A motion for

Sa

class certification was filed and granted on March 22,

2002. After discovery was completed, the parties filed

cross-motions for summary judgment in September of

2002.

On November 15, 2002, Magistrate Judge Robert

Mitchell recommended granting summary judgment to

the DOC. The recommendation reasoned that the

Tumer factors weighea in the DOC’s favor and that the

policy was rationally related to, and furthered the

' legitimate penological interests of, institutional security

and prisoner rehabilitation. Despite Banks’ objections,

on January 10, 2003 the magistrate’s recommendation

and reasoning were adopted by order of the District

Court.

The District Court reasoned first that the policy is

not an impermussible First Amendment violation

because it is rationally related to the legitimate and

interrelated penological interests in rehabilitation and

security. It encourages compliance with prison rules

and deprives especially incorrigible prisoners of

material from which they can fashion crude weapons or

feed cell fires.

Second, the District Court held that the policy is not

an exaggerated response to the stated penological

concerns. The court agreed with the DOC that inmates

can meaningfully exercise the burdened First

Amendment rights by qualifying with good behavior for

promotion to Level 1 or by corresponding with family

and frends. Furthermore, given the particular

intractability of Level 2 inmates, any further

accommodation of their rights would impose costs that

cannot be characterized as only de minimus.’ Banks

* Here, the DOC asserts the existence of the “ripple effect,”

cited in Tumer, as a magnifier of cost in the prison

environment. 482 U.S. at 90.

6a

timely appealed the District Court’s grant of summary

judgment.

Il. Jurisdiction and Standard of Review

The District Court had original jurisdiction over the

action pursuant to 28 U.S.C. § 1343 because the claim

asserts a violation of the First Amendment to the U.S.

Constitution. This Court has appellate jurisdiction over

the order of the District Court granting summary

judgment pursuant to 28 U.S.C. § 1291. We review de

novo the District Court’s decision to grant the DOC’s

motion for summary judgment. See Sutton v. Rasheed,

323 F.3d 236, 248 (3d Cir. 2003). In reviewing the

record, we view the evidence and any inferences

therefrom in the light most favorable to the non-moving

party, and resolve all factual conflicts in its favor. We

reverse the District Court’s decision where there are

genuine issues of material fact precluding judgment as

a matter of law. See Suders v. Easton, 325 F.3d 432,

440 (3d Cir. 2003).

Ill. Discussion

A. The Turner Standard

We have repeatedly echoed the Supreme Court’s

admonition that “prison walls do not form a barrier

separating prison inmates from the protections of the

Constitution.” Ramirez v. Pugh, 379 F.3d 122, 126 (3d

Cir. 2004); Fraise v. Terhune, 283 F.3d 506, 515 (3d

Cir. 2002) (quoting Turner, 482 U.S. at 84). In Turner,

the Supreme Court acknowledged, however, that

inmates’ constitutional mghts may in some cases be

limited, and held that a prison regulation that impinges

on inmates’ constitutional mghts “is valid if it is

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reasonably related to legitimate penological interests.”

482 U.S. at 89.5

The Supreme Court articulated an analytical

framework within which the reasonableness of such a

regulation is assessed by weighing four factors. First,

there must be a “valid, rational connection between the

prison regulation and the legitimate governinental

interest put forward to justify it.” Turner, 482 U.S. at

89 (quotations omitted). Second, the court must

determine “whether ‘here are alternative means of

exercising the right that remain open to prison

inmates.” Id. at 90. Third, the court must assess “the

impact accommodation of the asserted constitutional

right will have on guards and other inmates” and prison

resources generally.° id. Finally, the court must

consider whether there are “ready alternatives” to the

regulation that “fully accommodate the prisoners’ rights

at de minimus cost to valid penological interests.” Id. at

90-91. The existence of such alternatives is evidence

that the regulation is an “exaggerated response to

prison concerns.” /d. at 90 (quotations omitted).

Although the Supreme Court emphasized that the

judiciary is often “ill equipped to deal with the

increasingly urgent problems of prison administration

and reform,” and should therefore give significant

deference to prison officials in interpreting and

implementing regulations,© the Court was _ not

5 Neither party contests that inmates have a First

Amendment right to receive magazines and newspapers

through the mail. See Allen v. Coughlin, 64 F.3d 77, 79 (2d

Cir. 1995); Sizemore v. Williford, 829 F.2d 608, 610 (7™ Cir.

1987).

6 As the District Court correctly pointed out, Fraise also

asserted that particular deference to prison authorities is

especially appropriate when a regulation implicates prison

security. 283 F.3d at 516.

8a

-

relinquishing the policing of prison policy to prison

administrators. Id. at 84 (quoting Procunier v. Martinez,

416 U.S. 396, 405 (1974)). To the contrary, in Tumer,

while the Supreme Court upheld a rule barring inmate-

to-inmate correspondence as reasonably related to

legitimate security interests, it also struck down an

inmate marriage restriction as an “exaggerated

response to petitioners’ rehabilitation and security

concerns.” Turner, 482 U.S. at 91. The Court held that

the rule “sweeps much more broadly” than can be

explained by the stated objectives and therefore failed

the reasonable relationship test. Turner, 482 U.S. at

98.

As the Eleventh Circuit has aptly noted, “traditional

deference does not mean that courts have abdicated

their duty to protect those constitutional mghts that a

prisoner retains.” Fortner v. Thomas, 983 F.2d 1024,

1029 (11% Cir. 1993) (citations omitted). If Turner is to

be a meaningful limit on the discretion of prison

administrators, its four factors must be diligently

weighed by reviewing courts.

B. Factor One: Rational relationship _ to

legitimate penological interest

Banks argues that the connection between the

policy and the valid penological objectives cited as its

justification is too attenuated to be rational.

1. Rehabilitation

Unlike the government’s interest in security, the

rehabilitation objective has never been defined by the

Supreme Court, and its contours remain “quite

amorphous and ill-defined.” Ramirez, 379 F.3d at 128

(citing Amatel v. Reno, 156 F.3d 192, 209 (D.C.Cir.

1998) (Wald, J., dissenting)). Clearly, however,

restrictive prison policies can be designed to target

9a

particular behaviors for which prisoners’ were

incarcerated, or those that arose and presented security

risks during incarceration.’ Id.

The District Court essentially determined that (1)

withholding privileges to get compliance is a sensible

policy, and (2) denying all other privileges short of

access to publications and photographs had proven in

the past not to be a sufficient incentive for behavior

modification because, if it had been, inmates would not

have been transferred to LTSU Level 2. Therefore, the

District Court found that denying publications and

photographs was a rational next step.

Certainly, “deterrence of future infractions of prison

rules” is a legitimate penological interest. See Gregory

v. Auger, 768 F.2d 287, 290 (8 Cir. 1985); Daigre v.

Maggio, 719 F.2d 1310, 1313 (5 Cir. 1983). In the

Fifth and Eighth Circuits, temporary restrictions on

prisoners’ receipt of certain mail and subscription

publications in disciplinary segregation have been

upheld following exactly the logic advanced by the DOC

here. Those courts held that such restrictions made

disciplinary segregation less endurable and therefore

discouraged inmates from the rule infractions that

would lead to such segregation. See also Guajardo uv.

Estelle, 568 F.Supp. 1354, 1366 (D.C. Tex. 1983)

(permitting inmates in solitary confinement access to

books, magazines and newspapers may “water down

the conditions in solitary and would make the threat of

7 In Waterman v. Farmer, for example, this Court upheld a

prison regulation justified as rehabilitative, which restricted

sex offenders’ access to pornographic materials. 183 F.3d

208, 215 (3d Cir. 1999). Prison authorities submitted

affidavits from two _ psychologists who testified that

pornographic materials threatened to thwart the effectiveness

of the treatment given to sex offenders, and therefore that

limiting access to such material was a sensible rehabilitation

strategy.

10a

solitary confinement meaningless”) (internal quotations

omitted).

Although we agree that deterrence of future

infractions of prison rules can be an appropriate

justification for temporarily restricting the nghts of

inmates, we cannot say that the DOC has shown how

the regulations in this case serve such a purpose. We

recognize how such a rule could be reasonably related

to a_ penological interest in_ rehabilitation § in

“disciplinary segregation” where inmates are placed for

“specific rule infraction[s]” and for limited and specific

periods, but this is not such a case. Spellman v.

Hopper, 95 F.Supp.2d 1267, 1281 (M.D.Ala. 1999).

Although the DOC asserts that LTSU is a

“disciplinary” status, the LTSU Level 2 is a unique kind

of segregation with characteristics of both disciplinary

and administrative segregation. Inmates come to LTSU

because of “unacceptable behaviors” in _ other

institutions, but they have not all been adjudicated by a

hearing officer to have violated the DOC’s rules. (App.

95) The LTSU is not a place where inmates are sent for

a discrete period of punishment, pursuant to a specific

infraction, but is a p'ace for “Long Term” segregation of

the most incorrigible and difficult prisoners for as long

as they fall under that umbrella.

All LTSU inmates must spend 90 days at Level 2

status when they first arrive, and although their

behavior will be reviewed every 30 days to determine

whether they deserve promotion to Level 1, that

determination is entirely within the discretion of prison

administrators and is not linked to any particular

infraction or compliance. While disciplinary segregation

ordinarily has a_ specified duration, inmates may

remain in Level 2 and under the publication ban

lla

indefinitely. In fact, several inmates have remained in

Level 2 since the LTSU’s inception two years ago. As

administered, it is unclear how the policy would achieve

the deterrence it seeks. Not only is the rehabilitation

justification illogical given the nature of LTSU

confinement, but LTSU Level 2 is a far cry from the

disciplinary contexts in which such bans have been

deemed constitutional.

~ Furthermore, the DOC has offered no evidence that

the rule achieves or could achieve its stated

rehabilitative purpose. In Waterman, the DOC

submitted affidavits from two psychologists who

testified that pornographic materials threatened to

thwart the effectiveness of the treatment given to sex

offenders and who agyeed that limiting access to such

material was a sensible rehabilitation strategy. 183

F.3d at 215. In Guajardo, the defendants offéred

evidence as to the frequency and percentage of solitary

confinements in the Texas Department of Corrections

(“TDC”) which showed that the negative perception of

solitary confinement had a deterrent effect. 568

F.Supp. at 1368 (“a significant majority of TDC inmates

8 In fact, disciplinary segregation is usually quite short in

duration. In Daigre, after addressing a guard profanely,

Daigre was put in “administrative and punitive lockdown” for

“a maximum of 10 days’ isolation” pursuant to a finding of

“defiance.” 719 F.2d at 1311. In Gregory, the challenged

policy was in place for inmates on Disciplinary Detention

Status, which carried with it a 60-day maximum duration.

768 F.2d at 290. In Guajardo, the court was evaluating a

publication ban in place in solitary confinement, a type of

punitive segregation used as a sanction for violation of Texas

Department of Corrections rules and regulations. An inmate

could be confined in solitary for a maximum of 15 days, and

an interval of at least three days was required between terms

in solitary, during which time the inmate could have access

to any publications withheld during the term. 568 F.Supp.

at 1366.

12a

have never experienced solitary confinement and less

than half of those who are confined in solitary return a

second time”). Here, there are no such supporting

affidavits. The District Court presumably relied on

Superintendent Dickson’s testimony that the

prohibition in question “gives us a means or method to

say you comply, you modify your behavior, and you can

obtain these things, these privileges,” and his

explanation that “we’re very limited . . . in what we can

and cannot deny or give to an inmate, and these are

some of the items that we feel are legitimate as

incentives for inmate growth.” (App. 110) The District

Court did not examine the fit between the policy and its

rehabilitative goals, whether the ban was implemented

in a way that could modify behavior, or inquire into

whether the DOC’s deprivation theory of behavior

modification had any basis in real human psychology,

or had proven effective with LTSU inmates. At oral

argument, counsel for the DOC said it was a “hope.” In

fact, Banks argues that contrary to the assertions of the

prison authorities and the District Court, isolating

prisoners from the going-on in the outside world tends

to undercut any genuine rehabilitation. There is, again,

no evidence in the record on this point, but Banks cites

to language in several cases to support this assertion.?

It certainly seems relevant to the above inquiry, as well

® Rehabilitative goals are “furthered by efforts to inform and

educate inmates, and foster their involvement in the world

outside the prison gates.” Abdul Wali v. Coughlin, 754 F.2d

1015, 1034 (2d Cir. 1985). In Spellman v. Hopper, there was

testimony that deprivation of reading materials in segregation

can cause “psychological deterioration” which in turn can

cause inmates either to be “very withdrawn and curl up in

infancy, or [to] become acting out and aggressive people.” 95

F.Supp.2d at 1281; see also Morrison v. Hall, 261 F.3d 896,

904 n.7 (9% Cir. 2001) (citing studies and articles noting the

“correlation between reading, writing and inmate

rehabilitation”).

l3a

as likely, that the ban may produce less rather than

more compliance in at least some inmates. !°

2. Security

With respect to security, the District Court held that

there was a valid rational connection between the ban

on periodicals and photographs in LTSU Level 2 and

the constellation of security concerns put forth by the

DOC. We cannot conclude from the record that such a

connection exists. This is so for two reasons.

First, there is no evidence in the record of the

misuse of periodicals or photographs in any of the ways

described by the DOC. In fact, matches are not allowed

in the LTSU. See also Gregory, 768 F.2d at 289

(“celiblock fires have been eliminated entirely . . . by

new regulations prohibiting inmates from possessing

matches”). There was no testimony as to the frequency

of fires in the LTSU, nor testimony about any particular

fires, in or out of LTSU segregation, and how and with

1 Our dissenting colleague contends that we misapply the

first Turner factor by requiring the DOC to show some

evidence to support its contention that the rule achieves or

could achieve its stated rehabilitative purpose. However, our

insistence that the DOC offer some evidence is not, in our

view, at odds with Turmer but rather a complementary part of

the analysis in determining whether an asserted goal is

logically connected to the prison regulation. See Turner, 482

U.S. at 89 (requiring prison authorities to put forward a

legitimate governmental interest justifying the regulation).

Indeed, in Turner, the Supreme Court evaluated the evidence

in determining whether the prison rules in question served -

in theory or in practice — the alleged penological goals. See

id. at 91-93, 98-99. In our view, the paucity of any such

evidence in this matter reinforces the conclusion that there is

no valid, rational connection between the DOC rule and its

stated rehabilitative purpose.

l4a

what materials they were set and fueled.'! The same is

true for the materials’ potential use as weapons.

Furthermore, there was no testimony as to the effect

such a ban has had on the frequency of fires, be it in

the LTSU or elsewhere. In fact, Banks points out that

inmates on Death Row, in Administrative Custody, and

in the Special Management Unit are routinely permitted

to have these iterrs, and the DOC presented no

evidence that the security or operations of these units

are negatively affected to any palpable degree by the

presence of these items. |

The District Court dismissed this argument,

agreeing with the DOC that a comparison to other

forms of segregation within the Pennsylvania DOC is

irrelevant because LTSU inmates are the “worst of the

worst.” However, there is no evidence before us to

indicate that what sets these inmates apart from the

rest is their misuse of non-legal or non-religious

periodicals. The District Court’s conclusion that “the

fact that other segregated inmates have not created the

Same security concerns while in possession of

newspapers and magazines is one reason they are in

those units and not in the LTSU” is an inference that

finds no support in the record. In fact, there is no

indication in the record that any LTSU inmates were

transferred there because they had created a security

risk with periodicals or photographs. The LTSU

inmates are certainly and unquestionably incorrigible,

but whether their incorrigibility takes the form

described by the District Court is an open question

'! Superintendent Dickson testified only that within the last

six months there were “no more than two or three” cell fires

in the entirety of the LTSU, and “paper products generally are

the way it’s first ignited.” He also testified that he did not

know of any instance where a LTSU Level 1 inmate used a

newspaper or magazine to start or fuel a fire. (App. 112)

15a

which cannot be resolved at the summary judgment

stage by making inferences in favor of the DOC and

without support in the record.

Second, we agree with Banks that given the

materials Level 2 inmates are permitted in their cells,

prohibiting a single newspaper or magazine has no

significant relationship to the stated security objectives.

There are many other non-prohibited means for the

inmates to fuel fires, hurl waste, conceal contraband

and create weapons. Under current regulations, each

inmate is given a jumpsuit, a blanket, two bedsheets, a

pillow case, a roll of toilet paper, a copy of a prison

handbook, ten sheets of writing paper, several

envelopes, carbon paper, three pairs of socks, three

undershorts and three undershirts, and may at any

point also have religious newspapers, legal periodicals,

a prison library book, Bibles, and a lunch tray with a

plate and a cup. Many of these items are flammable,

could be used for the above purposes as effectively as a

newspaper, magazine or photograph, and have been so

used by LTSU Level 2 inmates.'!2 The District Court

again agreed with the DOC that the prohibition may not

eliminate but certainly reduces the security risks with

which the DOC is concerned, and that it is irrelevant

that the policy does not absolutely prevent the harms it

addresses because Turner is not a “least-restrictive-

alternative” test. Fraise, 283 F.3d at 520; Waterman,

183 F.3d at 219.

12 In his deposition, Superintendent Dickson testified not

only that under the challenged policy there have still been

cell fires and rashes of feces-flinging in LTSU level 2, but also

that inmates can and do use other permitted materials to

create these disturbances: “Oftentimes it’s with the cups

that they’re given for their drinks, things like that. . . .a piece

of paper or whatever .. . that they can use to give a little

leverage and fling the materials.” (App. 112)

l6a ,

Although the District Court is correct that the policy

need not be narrowly tailored to the harm it addresses

to pass constitutional muster, its conclusion here has

some flaws. Even if the policy need not be “narrowly

tailored” to the stated interests, if the prohibition of

newspapers, magazines and photographs has only a

minimal effect on security in the LTSU because of the

other materials that they are permitted in the cells, the

relationship between the policy and the penological

interest may be too attenuated to be reasonable.!3 It is

important to note here that the inmates are not

requesting unlimited access to innumerable periodicals

but for the ability to have one newspaper or magazine

and some small number of photographs in their cells at

one time. We fail to see how the DOC could have

reasonably thought that the challenged policy, which

permits an inmate to have in his cell 10 sheets of

writing paper and one records center box full of legai or

religious periodicals or texts, would meaningfully

13 See Spellman, 95 F.Supp.2d-at 1278; Jackson v. Elrod, 671

F.Supp. 1508, 1511 (N.D. Ill. 1987) affd, 881 F.2d 441 (7%

Cir. 1989) (admission that hardcover books are no greater a

risk to conceal contraband than, for example, clothing,

paperbacks, mattresses and light fixtures, “disproves

defendant’s assertion of a rational connection between their

hardcover book ban and a governmental interest”); Mann v.

Smith, 796 F.2d 79, 82-83 (S® Cir. 1986) (ban on newspapers

and magazines represents exaggerated response to legitimate

need to preserve discipline and maintain security); Kincaid v.

Rusk, 670 F.2d 737, 744 (7" Cir. 1982) (total ban on

newspapers unjustifiable when hazards of newspaper

possession could as well be caused by reading material

detainees were permitted to have); Payne v. Whitmore, 325

F.Supp. 1191, 1193 (N.D.Cal. 1971) (“Jail cells are already

filled with an abundance of materials quote suitable for fire

starting . . .; yet no one suggests that cells ought to be

stripped of bedding, clothing, toilet paper, writing materials,

and so on.”).

17a

improve prison security by forbidding him one copy of

the Graterfriends prison newsletter. '4

The District Court asserted that the prohibited

materials are “more likely” to be used to create'a

security concern and are “most easily and commonly

used as weapons or to set fires and fling feces” than

religious or legal materials, and therefore the .link

between the policy and the stated interest is more than

tenuous. (App.125) However, nowhere in Dickson’s

affidavit does he describe specific incidents where the

prohibited materials were used in any manner posing a

security risk by LTSU inmates before or after they were

transferred to LTSU. He articulates his belief that

periodicals are more well-suited to create particular

weapons, but admits that the items already in inmates’

cells certainly could and have been used to fuel fires,

hide contraband, fling feces and create weapons.

(App. 112)

C. Factor two: Means _ for exercising the

burdened nght

Under this factor, we are asked to “focus on the

burden that the regulation imposes on an inmate’s

ability to engage in constitutionally protected activity.”

DeHart v. Horm, 227 F.3d 47, 53 (3d Cir. 2000) (en

banc). If other avenues are open for the inmate to

exercise the right in question, the court should exhibit

deference to the judgment of corrections officials, while

if no other avenues are available, the inmate’s right is

'* In a memo dated February 8, 2001, and distributed to

LTSU inmates, Superintendent Dickson stated that the

publication Graterfriends is a newsletter, not legal mail, and

therefore denied to Level 2 inmates. Graterfriends is a

Pennsylvania-based newsletter published under the auspices

of The Pennsylvania Prison Society to which prisoners

contribute and which is distributed to prisoners and other

members of the corrections community.

18a

given greater weight in the Turner balancing process.

Id.'5

Banks argues that while Level 2 inmates can read

leisure books, they have no meaningful access to

current news accounts or published information about

current political, social, or other public events and

activities occurring outside the prison walls, and they

have no way to look at images of loved ones and friends

apart from the possibility of infrequent visits. The

District Court, however, disagreeing with Banks, found

that inmates had sufficient means to engage in the

constitutionally-protected activities.

The District Court characterized the periodicals ban

as “not a blanket prohibition” because Level 2 inmates

can qualify by gocd conduct to be promoted to LTSU

Level 1. The District Court’s justification for this

determination is its explanation that “each of these

prisoners has the option of modifying his behavior and

being promoted to a less restricted environment where

access to newspapers magazines and photographs may

be enjoyed.” (App. 126) As the DOC elaborated in its

brief, “there is no reason to suppose that a prison

administration would not respond favorably to a

prisoner's initiative to qualify for relief from the ban on

periodicals or photos through exhibiting good behavior.”

The District Court and the DOC are correct in

noting that inmates can be promoted from Level 2 to

Level 1 and, if they are, they will gain access to the

prohibited materials. However, that does not change

the fact that the prohibition is indeed a “blanket” one,

'S Although this inquiry depends in part on how the scope of

the constitutional right is defined, neither the parties nor the

District Court define the right in question, nor does the

District Court’s analysis depend on a_ particular

understanding of the rights in question.

19a

and that as long as an inmate is at Level 2 status and

is subject to the policy in question, he has no

alternative means to exercise his First Amendment nght

of access to a reasonable amount of newspapers,

magazines, and photographs.

Moreover, there is no reason to infer that the

process of “promotion” from Level 2 to Level 1 is as

much under the inmates’ control as the DOC and the

District Court characterize it. As noted above,

segregation in Level 2 is not linked to a particular

infraction, and is of potentially unlimited duration. Any

inmate who enters LTSU will remain at Level 2 for 90

days no matter how he modifies his behavior.

Furthermore, the only information in the record as to

how the process works is the following explanation from

Dickson’s deposition:

You know, you have the ability through

your own actions to be promoted, if you

will, from a level 2 inmate to a level 1

inmate, and we do that every day. We

have a system where the unit

management team reviews each inmate’s

progress every thirty days. The unit

management team is made up of the unit

manager, custody staff, psych staff,

nursing staff. And we try to give and

provide every inmate every opportunity to

progress through this system and to be

able to obtain the privileges. (App. 110)

There are no affidavits in the record from any of

those decision-makers mentioned by Dickson, nor is

there any documentation of the review process.

Although at Dickson’s deposition, Banks’ attorney

apparently examined and requested some documents

which indicated, with respect to current LTSU inmates,

how long they had been at the facility and how long

20a

they had been at Level 2, those documents are also not

in the record. Again, unlike the policies in solitary and

disciplinary confinement examined in Daigre, Gregory,

and Guajarde, the LTSU prohibition cannot be

characterized as merely a “time, place or manner”

restriction. See, e.g., Gregory, 768 F.2d at 290 (*|the

policy is] not directed at what mail an inmate could

receive, but only at when he could receive it”).

D. Factors ‘Three and Four: Accommodation

We now consider the District Court’s analysis of

Turner’s third and fourth factors. Under these factors,

we mu&st determine whether the nght in question can

be accommodated without significant negative

consequences in terms of efficiency and _ security,

DeHart, 227 F.3d at 58, and “whether the prison can

easily serve its interests with alternative means without

infringing upon the rights of prisoners,” Crofton v. Roe,

170 F.3d 957, 959 (9% Cir. 1999). The Supreme Court

has suggested that the “existence of obvious, easy

alternatives may be evidence that the regulation is not

reasonable, but is an exaggerated response to prison

concerns.” Thornburgh v. Abbott, 490 U.S. 401, 418

(1989) (citation and quotations omitted).

In Fraise, inmates challenged a policy which

authorized prison authorities to designate and transfer

core members of “Security Threat Groups” as violative

of the First Amendment’s Free Exercise Clause, as well

as the Equal Protection and Due Process Clauses. ©

The Court determined that the third prong weighed in

‘© A Security Threat Group (“STG”) is a group of inmates,

designated by the Commissioner, which “poses a threat to

the safety of staff, other inmates, the community, and/or

damages to, or destruction of property, and/or interrupting

the safe secure and orderly operation of the correctional

facility(ies).” Fratse, 283 F.3d at 509.

2la

favor of the DOC and, quoting Turner, stated that

“[w]hen accommodation of an asserted right will have a

significant ‘ripple effect’ on fellow inmates or on prison

staff, courts should be particularly deferential to the

informed discretion of corrections officials.” Fraise, 283

F.3d at 520 (quoting Turner, 482 U.S. at 90). It is

certainly supported by the record, as the District Court

repeatedly asserted, that the LTSU Level 2 inmates are

some of the most “intractable” in the Pennsylvania

prison system. We cannot agree, however, on the

record before us, that accommodation of those

prisoners’ rights by giving them reasonable access to a

limited number of periodicals and photographs would

have such a “ripple effect.”

At no point does Banks propose that Level 2 inmates

be allowed unmitigated and unregulated access to all

periodicals. Rather, Banks proposes, and the District

Court discussed, two alternative policies which would

accommodate the prisoners’ rights. First, the DOC

could establish a specific reading period, or several

different reading periods, in which guards deliver a

single newspaper or magazine to an inmate’s cell, if

requested, and retrieve it at the close of the period. The

DOC could easily control the number of periodicals in

his cell at one time, the frequency of the distributions,

the amount of time any inmate would be in possession

of the materials, as well as the number of inmates who

would have periodicals in their cells at any one time.!’

The DOC could also limit the total number of

photographs a Level 2 inmate could have in his cell at

one time to what they consider a reasonable number.

In conjunction with this policy, access to periodicals

could be entirely withheld from those individual

'7 Volume control is a well-recognized alternative to the

blanket exclusion of items protected by the First Amendment.

See Clement v. California Dept. of Corrections, 220 F.Supp.2d

1098, 1113 (N.D.Cal. 2002); Spellman, 95 F.Supp.2d at 1286.

22a

prisoners who, in the judgment of prison officials,

would pose a particular risk given their records, or

those inmates who have abused their use of periodicals

or photographs. The DOC asserts that such a limited

restriction would not prevent Level 2 inmates from

using the materials to start fires, fling feces and create

weapons and therefore, during the reading period, extra

monitoring of cells would be required, thus affecting the

prison’s resources and possibly the safety of other

inmates.

We fail to see, however, as discussed above under

factor one, how an inmate’s hour-long possession of

Graterfnends would require further monitoring when at

any time that inmate may be in possession of 10 sheets

of writing paper, and as many copies of the

Watchtower, the Jewish Daily Forward, and the

Christian Science Monitor Magazine as can fit in a

records center box. As discussed above, the Distmnct

Court’s assumption that prisoners would be more

reluctant to use reliyious materials for such nefarious

purposes is unsupported by the record. Furthermore,

at any point, the entire LTSU can house no more than

40 inmates, one-tenth of one percent of the state’s

prison population. (App. 95) Even if limited

distribution of periodicals were to require additional

monitoring, such an accommodation would have a

minimal impact on prison resources.

Alternatively, individual prisoners could be escorted

to the secure mini-law library to read a penodical of

their choosing. Again, the District Court found that

such an accommodation would intensify secunty

concerns by increasing the amount of inmate

movement and thereby placing a formidable burden on

LTSU staff.'® Inmates are already permitted to leave

18 Here, the District Court relies on Allah v. Al-Hafeez, 208

F.Supp.2d 520, 530 (E.D.Pa. 2002), in which the court found

23a

their cells under guard escort to use the library to view

legal materials, so individual inmate escort has not

been deemed prohibitively burdensome or dangerous by

prison administrators. Although it is possible that the

demand for mini-law library sessions may increase if

the policy were changed, the DOC has not shown how

this would significantly increase the burden on prison

staff. Supenntendent Dickson explained in his

deposition that under current LTSU policy, one inmate

is allowed out of his cell at a time to visit the law library

for one two-hour session. A roster of requests, like a

waiting-list, is maintained and fulfilled on a first-come

first-serve basis. The amount or frequency of inmate

movement is already regulated. If the inmates’ rights to

read other penodicals were accommodated, that would

not change. We fail to see how the mere addition of

non-legal and non-religious periodicals to the materials

already available to the inmates in the library would

create the “npple effect” cited by the DOC. In short, the

DOC has not shown that a change in the publication

ban would mean “significantly less liberty and safety for

everyone else, guards and other prisoners alike.”

Abbott, 490 U.S. at 418 (quoting Tumer, 482 U.S. at

92).

that the third Tumer factor weighed in the prison authorities’

favor because the inmate was particularly ill-behaved and

accommodating his presence at religious services would

require more monitoring of those services, thereby straining

prison resources and affecting the prison staff and other

inmates. Although the Turmer factors are evaluated

independently, it is important to note with respect to this

decision that the prison policy was much narrower and the

court’s analysis was informed by the fact that the inmate had

many meaningful ways to practice his religion without

attending services. He could meditate, pray and study his

religion, as well as discuss it with other inmates outside his

cell. Id.

24a

Finally, the District Court asserted that the

alternatives proposed come at more than a de minimus

cost to the DOC’s behavior modification goals because

the accessibility of penodicals would render the threat

of Level 2 segregation toothless as a _ deterrent.

However, the District Court overlooked the extent to

which, even without the challenged restriction, Level 2

LTSU segregation is more restrictive than Level 1 in

significant respects. For example, Level 1 inmates are

permitted two family visits and one fifteen minute

telephone call per month. They are also permitted to

spend $5.00 per week at the commissary on items

defined by the Unit Team. Additionally, while inmates

at both levels received in-cell counseling and visits from

chaplains, and can be employed as Unit Janitor, only

Level 1 inmates receive compensation as per DC-816

Inmate Compensation System, and only Level 1 inmates

are permitted GED and Special Education in-cell study.

(App. 32)

IV. Conclusion

For the reasons stated above, we believe that the

DOC’s policy that prohibits inmates confined in the

LTSU at Level 2 status access to photographs, and all

newspapers and magazines which are neither legal nor

religious in nature, cannot be supported as a matter of

law by the record in this case. Accordingly, the

summary judgment of the Distmct Court will be

reversed and the case remanded for further proceedings

consistent with this opinion.

ALITO, Circuit Judge, dissenting:

At issue in this case are restrictions that the

Pennsylvania Department of Corrections imposes as a

last resort on the most disruptive and dangerous .1% of

its prison population. These restrictions apply only as

25a

long as an inmate remains in Level 2 of the LTSU, an

assignment that may terminate after as little as 90

days. The question before us is whether these

temporary, ast-resort restrictions are facially

unconstitutional under the standard set out in Turner

v. Safley, 482 U.S. 78 (1987), a standard that instructs

courts to extend considerable deference to judgments of

correctional officials. Because I believe that the

majority has misapplied Turmer, I must respectfully

dissent.

Under Turner, prison regulations that restrict

constitutional mghts must be sustained if they are

“reasonably related to legitimate penological interests.”

482 U.S. at89. Tumer noted four factors to be

considered in determining whether the _ requisite

reasonable relationship exists: (1) whether there is “a

‘valid, rational connection’ between the prison

regulation and the legitimate governmental! interest put

forward to justify it”; (2) “whether there are alternative

means of exercising the mght that remain open to

prison inmates”; (3) “the impact accommodation of the

asserted constitutional mght will have on guards and

other inmates”; and (4) whether there are “ready

alternatives” to the challenged regulation.” Id. at 89-90

(citation omitted). I will address each factor.

First factor: Rational relationship between

regulation and legitimate penological interests. |

agree with the District Court that this factor weights in

favor of the constitutionality of the challenged

regulations because there is a “rational” relationship

between that restriction and the legitimate penological

objective of deterring misconduct. It is “rational” for

corrections officials to think that inmates who are not

in Level 2 will be deterred from engaging in serious

misconduct because they do not want to be transferred

to that unit and thus to be subjected to the restrictions

that accompany that assignment. It is also “rational”

26a

for corrections officials to think that inmates who are in

Level 2 will be deterred from engaging in serious

misconduct while in that unit because they with to be

transferred out and thus to escape such restrictions.

The majority disagrees with these conclusions for

two reasons. First, the majority apparently believes

that a sanction cannot deter unless a potential violator

knows with some specificity the type misconduct that

will result in the imposition of the sanction and the

length of time that the sanction will last. The majority

concedes that “deterrence of future infractions of prison

rules can be an appropriate justification for temporarily

restricting the rights of inmates” and that other courts

of appeals have sustained rules restricting the receipt of

newspapers by prisoners in disciplinary segregation.

See Maj. At 9 (citing Gregory v. Auger, 768 F.2d 287,

290 (8 Cir. 1985); Daigre v. Maggio, 719 F.2d 1310,

1313 (5 Cir. 1983)). The majority finds these

precedents inapplicable because the “LTSU is not a

place where inmates are sent for a discrete period of

punishment, pursuant to a specific infraction, but a

place for ‘Long Term’ segregation of the most

incorrigible and difficult prisoners for as long as they

fall under that umbrella.” Id.

The majorty’s reasoning is unsound. The

uncertainties noted by the majority may diminish the

deterrent effect of the regulations on some inmates who

are not yet in Level 2, but there is no reason to think

that these uncertainties entirely eliminate the deterrent

effect of the regulations on the general prison

population. Similarly, it is rational to believe that the

challenged restrictions provide an incentive for those

inmates who are already in Level 2 to refrain from

disruptive behavior in the hope of obtaining a transfer

out of the unit. Again, uncertainty about what must be

done to obtain such a transfer or about when such a

transfer may be available may have an impact on the

27a

degree of the incentive, but there is no reason to

suppose that the incentive is wholly destroyed.

Second, the majority concludes that the regulations

are not rationally related to the goal of deterring

misconduct because “the DOC has offered no evidence

that the rule achieves or could achieve its stated

rehabilitative purpose.” Maj. Op. at 10. In taking this

approach, the majority misconstrues the nature of the

fist Turner factor. This factor requires us to determine

whether there is a ‘logical connection between the

regulation and the asserted goal,” see 482 U.S. at 89

(emphasis added), not whether there is empirical

evidence that the regulation in fact serves that goal.

The entire system of prison discipline might be

imperiled if each sanction for prison misconduct could

not be sustained without empirical evidence that the

sanction provided some incremental deterrent.

Second factor: alternative means of exercising

the right. This is the most troubling of the four

factors, but I do not think that it is sufficient to support

the majonty’s conclusion that the regulations are

facially unconstitutional. The regulations impinge upon

the night to receive information about current events

and communications (in the form of photographs) from

family members and friends, but the restrictions are

not absolute. Inmates in Level 2 may still read books

from the prison library and may receive letters.

Moreover, as the District Court noted, inmates in Level

2 have the “option of modifying their behavior and being

promoted to a less restricted environment.” Report &

Recommendation at 8. An as-applied challenge by an

inmate subjected to lengthy confinement in Level 2

despite a record of reformed behavior would present

different considerations, but the majority’s opinion is

not limited to such a case.

28a

Third and fourth factors: Availability and impact

of accommodation. The majority proposes

modifications in prison policies that would almost

certainly have an impact on prison resources. The

majority first suggests that guards could deliver

requested newspapers and magazines to inmates’ cells

and then retrieve these materials after the expiration of

a specified “reading period.” Maj. Op. at 18. Providing

this service for each of the 40 inmates in Level 2 would

be time consuming. “Alternatively,” the majority states,

“individual prisoners could be escorted to [the] secure

mini-law library to read a periodical of their choosing.”

Maj. Op. at 19. This service, however, would

undoubtedly impose a significant burden, particularly

since the inmates in question are those whom the

Department of Corrections has classified as the most

violent and disruptive. It is Department policy that

Level 2 inmates may not be transported from their cells

unless they are placed in hand and leg irons and are

escorted by two officers.

Taking into account all four of the Turmer factors, |

conclude that the challenged regulations are not facially

unconstitutional. On their face, these regulations are

reasonably related to the legitimate penological goal of

curbing prison misconduct, and I would therefore

affirm the decision of the District Court.

29a

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 03-1245 meer

RONALD BANKS, et al.

A ant

Vv.

JEFFREY BEARD

On Appeal from the United States District Court

for the Western District of Pennsylvania

District Court Judge: The Honorable Terrence F.

McVerry

(D.C. No. 01-cv-1956)

SUR PETITION FOR REHEARING EN BANC

Present: SCIRICA, Chief Judge, SLOVITER, NYGAARD,

ALITO, ROTH, McKEE, BARRY, AMBRO, FUENTES,

SMITH, VAN ANTWERPEN and '!%ROSENN, Circuit

Judges

The Petition for Rehearing filed by the Appellant in

the above-entitled matter, having been submitted to the

judges who participated in the decision of this court

19 Judge Rosenn’s vote is limited to panel rehearing only.

30a

and to all the other available circuit judges of the

circuit in regular active service, and no judge who

concurred in the decision having asked for rehearing,

and a majority of the circuit judges of the circuit in

regular service not having voted for rehearing, the

Petition for Rehearing by the panel and the Court en

banc, is hereby DENIED. Chief Judge Scirica, Judge

Nygaard, Judge Alito, Judge Barry and Judge Van

Antwerpen would have granted rehearing en banc.

BY THE COURT,

/s/ Julio M. Fuentes

Circuit Judge

DATED: March 22, 2005

CLC/cc: Jere Krakoff, Esq.

Kemal! A. Merich, Esq.

3la

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD BANKS, for himself andon i)

behalf of all similarly situated prisoners )

who are confined or will be confined in )

Long Term Segregation Units of State )

prisons located in the Western Judicial )

District of Pennsylvania

Plaintiffs

Civil Action

No. 01-1956

JEFFREY BEARD, in his official

Capacity as Secretary of the

Pennsylvania Department of

Corrections

mr re errr” ee” re” See” See ee”

Defendant.

MEMORANDUM ORDER

AND NOW, this 10 day of January, 2003, after the

plaintiff, Ronald Banks, filed an action in the above-

captioned case, and after cross motions for summary

judgment were submitted by the parties, and after a

Report and Recommendation was filed by United States

Magistrate Judge Robert C. Mitchell (Document No. 25)

granting the parties ten days after being served with a

copy to file written objections thereto, and upon

consideration of the objections filed by plaintiff

(Document No. 26), which the Court notes were virtually

identical to the arguments made by plaintiff in his brief

in support of summary judgment and said arguments

were previously given due consideration by the

Magistrate Judge, and upon independent review of the

motions and the record, and upon consideration of the

32a

Magistrate Judge’s Report and Recommendation, which

is adopted as the opinion of this Court,

It is ORDERED, ADJUDGED, AND DECREED that

defendant’s motion for summary judgment (Document

No. 16) is GRANTED and plaintiffs motion for summary

judgment (Document No. 20) is DENIED. .

It is further ORDERED that final judgment of this

Court is entered pursuant to Rule 58 of the Federal

Rules of Civil Procedure.

/s/ Terrence F. McVerry

Terrence F. McVerry, Judge

United States District Court

cc: Jere Krakoff, Esquire

1705 Allegheny Building

Pittsburgh, PA 15219

Kemal Alexander Mericli, Esquire

Office of the Attorney General

Civil Litigation Section

564 Forbes Avenue

6 Floor, Manor Complex

Pittsburgh, PA 15219

33a

IN THE UNITED STATES DISTRICT COURT

FOR THE WESTERN DISTRICT OF PENNSYLVANIA

RONALD BANKS,

Plaintiff,

JEFFREY BEARD,

)

)

)

vs. ) Civil Action No. 01-1956

)

)

Defendant. )

REPORT AND RECOMMENDATION

I. Recommendation

It is respectfully recommended that the motion for

summary judgment submitted on behalf of defendant

(Docket No. 16) be granted, and plaintiffs’ motion for

summary judgment (Docket No. 20) be denied.

Il. Report

Presently before this Court for disposition are cross

motions for summary judgment.

Plaintiff Ronald Banks commenced this action under

42 U.S.C. § 1983, on behalf of himself and other

similarly situated prisoners alleging that defendant’s

policy denying certain segregated inmates access to

newspapers, magazines and photographs is violative of

their First Amendment rights.

The record demonstrates that the Department of

Corrections has established a Long Term Segregation

Unit (“LTSU”) at the State Correctional Institution at

Pittsburgh (“SCIP”) to house inmates that are “the most

incorrigible, the most difficult, problematic, and have

34a

demonstrated the most behavior conflicts.”2° The

purpose of creating the LTSU is to ensure the safety

and security of the Department and to promote

behavioral changes in the inmates assigned there.?!

The LTSU_ population presently consists of

approximately forty inmates and_ constitutes

approximately one tenth of one percent of the entire

prison population in the state system.22 The LTSU is

the most restrictive in the State and policy permits only

one inmate out of his cell at a time who must then wear

hand and leg restraints and must be escorted by two

correctional officers.23 Each inmate coming into the

LTSU spends a minimum of ninety days on “Level 2”

where they are prohibited from having newspapers,

magazines or photographs in their cells.24 Nor do Level

2 inmates have access to the prison library where

newspapers and magazines subscribed to by the prison

are held. Moreover, they may only receive news

clippings in the mail if they have some connection to

the inmate.25 As such, any magazines, newspapers or

photographs in the inmates possession when he is

transferred to the LTSU are placed in storage and any

such materials subsequently found in an inmate’s

possession are considered contraband and

20 Deposition of Deputy Superintendent Joel Dickson

(“Dickson Depo.”}, pp. 25-26, 28, 92. A copy of Mr. Dickson’s

deposition transcript has been submitted by defendant as

Appendix A (Docket No. 19).

21 Id. at 24-25. /

22 Jd. at 17, 25.

23 Id. at 89.

24 Id. at 18-19, 46-48, 68-70.

25 Id. at 46-48.

35a

confiscated.26 Indeed, the only reading material that

Level 2 inmates are permitted to have are paperback

books that they can order from the library.?’

After the initial ninety-day period, correction officials

review each inmate’s progress every thirty days to

determine whether their behavior warrants a promotion

to Level 1 where the inmates are permitted to have an

ordinary general circulation newspaper in their cell and

up to five magazines that may be exchanged on a one-

for-one basis.28 Presently, approximately three of the

thirty-nine inmates held in the LTSU are on Level 1.?9

Deputy Superintendent Joel Dickson, who

supervises the LTSU at SCIP, testified at his deposition

that these prohibitions serve several penological

purposes. First, it promotes behavior modification.

Defendant’s position is that by ameliorating the

prohibitions for Level 1 inmates and _ virtually

eliminating them for the general prison population, it

encourages the most difficult prisoners to not only

become integrated into the general population but,

upon release, to be a more productive citizens. Second,

according to Deputy Dickson, the policy promotes

security as the less property these inmates have in their

cells the more difficult it is for them to conceal

contraband. As well, it minimizes the materials

available to these inmates that can be used to create

harm either to themselves or to others.°° In this regard,

Dickson testified that newspapers and magazines can

26 Id. at 48, 50-51, 71.

27 Jd. at 91.

28 Jd. at 20, 55-56, 88.

29 Id. at 17.

30 Jd. at 85-88.

36a

be rolled up and used as blow guns and spears, used to

fling feces and urine at the guards, or used as tinder for

cell fires.3!

Plaintiff Banks filed the instant complaint on

October 18, 2001, on behalf of himself and other

similarly situated prisoners alleging that defendant’s

policy prohibiting Level 2 inmates from maintaining

magazines, newspapers and photographs in their cells

violates the free speech component of the First

Amendment to the United States Constitution. Plaintiff

seeks equitable and declaratory relief as well as the

issuance of preliminary and permanent injunctions. A

Motion for Class Certification was also filed by plaintiff

on January 14, 2002, and, unopposed by defendant,

was granted on March 22, 2002.32 ;

The parties have now filed cross motions for

summary judgment. Summary judgment is appropriate

’ where “there is no genuine issue as to any material

fact” and “the moving party is entitled to a judgment as

a matter of law.” Fed.R.Civ.P. S6(c). See Marzano uv.

Computer Science Corp., 91 F.3d 497, 501 (3d Cir.

1996) In deciding a motion for summary judgment the —

court must view all inferences in a light most favorable

to the non-moving party. /d., citing Armbruster v.

Unisys Corp., 32 F.3d 768, 777 (3d Cir. 1994). The

non-moving party, however, may not rely on bare

assertions, conclusory allegations or mere suspicions to

support its claim but must demonstrate by record

evidence the meritorious nature of the claim. Orsatti v.

New Jersey, 71 F.3d 480, 484 (3d Cir. 1995).

The law is not in dispute. In an effort to balance an

inmate’s right to maintain his or her Constitutional

3! Id. at 85-88, 91-92.

32 See Docket Nos. 9 and 10.

37a

protections within the prison setting and the necessity

of limiting those righis by prison officials in order to

accommodate the demands of managing a prison, the

United States Supreme Court has held that a prison

policy that intrudes on an inmate’s constitutional rights

will nevertheless be upheld “if it is reasonably related to

legitimate penological interests.” Turner v. Safley, 482

U.S. 78, 89 (1987) (“Turner”). See Fraise v. Terhune,

283 F.3d 506, 515 (3d Cir. 2002) (“Fraise”). As

reiterated by the Court of Appeals for the Third Circuit,

Turner, requires a court to weight four factors in

determining whether this standard has been met:

[Fjirst, whether the regulation bears a

“valid, rational connection” to a legitimate

and neutral governmental objective;

second, whether prisoners have alternate

ways of exercising the circumscribed right;

third, whether accommodating the right

would have a deleterious impact on other

inmates, guards, and the allocation of

prison resources generally; and fourth,

whether alternatives exist that “fully

accommodate[] the prisoner’s rights at a de

minimis cost to valid penological interests.”

Fraise v. Terhune, 283 F.3d at 513-14, quoting Turner v.

Safley, 482 U.S. at 91. Although these factors are

merely guidelines by which to evaluate the

reasonableness of prison regulations “the first fact

looms especially large,’ because it ‘tends to encompass

the remaining factors, and some of the criteria are

apparently necessary conditions.” Waterman ov.

Farmer, 183 F.3d 208, 213-14 (3d Cir. 1999), quoting

Amatel v. Reno, 156 F.3d 192, 196 (D.C. Cir. 1998),

cert. denied, 527 U.S. 1035 (1999). Moreover, where

the regulation at issue implicates prison security,

particular deference should be accorded to prison

38a

authorities. Fraise v. Terhune, 283 F.3d at 516, relying

on Turner v. Safley, 482 U.S. at 84-85.

Here, as previously discussed, defendant contends

that the policies at issue serve the penological interests

of furthering prison security and encouraging compliant

behavior in particularly disobedient and rebellious

inmates.33 Plaintiffs do not appear to challenge the

legitimacy of these governmental objectives but rather

contend that there is no rational connection between

these objectives and the policy of prohibiting Level 2

inmates to have newspapers, magazines and

photographs in their cells.*4

Specifically, with respect to the prison’s interest in

encouraging compliant behavior, plaintiffs argue that

rehabilitative goals are only furthered by maintaining

contact with the outside world and that isolating these

inmates from such contact is therefore counter

productive. As well, plaintiffs contend that because the

LTSU invokes other compelling rehabilitation incentives

that the additional inducements of prohibiting

newspapers, magazines and photographs are only

marginally worthwhile.

33 We note here that defendant does not dispute that the

policies at issue infringe on plaintiffs’ First Amendment rights

in the first instance but argue that they should nevertheless

be upheld because they are reasonably related to legitimate

penologicai interests.

34 Although defendant has challenged whether plaintiffs have

exhausted administrative review of the policy against

photographs, plaintiffs have submitted documentation which

suggests that they have. See Plaintiffs’ Reply to Defendant’s

Motion for Summary Judgment (Docket No. 23). As such the

issue is properly considered by the Court. See Ahmed v.

Dragovich, 297 F.3d 201, 209 n.9 (3d Cir. 2002); Perez v.

Wisconsin Dept. of Corrections, 182 F.3d 532, 534-37 (7 Cir.

1999).

39a

The difficulty with plaintiffs arguments, in our view,

is that having newspapers and magazines available to

them while in the general population or the Special

Management Unit apparently did nothing to further

their rehabilitation or they wouldn’t now be in the

LTSU. Indeed, plaintiffs are in the LTSU because

efforts in other units failed thus already proving

themselves to be the most incorrigible, the most

difficult, and the most problematic prisoners.*5 Having

consequently been transferred to the LTSU, it seems

not only rational to impose more restrictive conditions

in an effort to encourage compliant behavior but

imperative to the success of the LTSU.

Plaintiffs also argue that defendant's security

objectives are not rationally related to the prohibition of

newspapers, magazines and photographs since there

are other means available to these prisoners to start

fires, hurl waste, conceal contraband and create

weapons. The fact that the policy does not completely

eliminate the opportunity for these inmates to create

security concerns, however, does not, in our view,

render the policy unrelated to those concerns or negate

the prison’s interest ir. minimizing the prisoners’ access

to materials that are most easily and commonly used as

weapons or to set fires and fling feces. Indeed, it

appears less likely that an inmate would use their

bedding, clothes, legal and religious papers to start fires

or fling feces than the daily newspaper.

Moreover, of primary concern is the use of the

prohibited items as blow guns and spears for which

magazines and newspapers, given their ability to be

rolled, are ideal.°6 Plaintiffs nevertheless argue that the

35 See Dickson Depo. at 25.

%© Dickson Depo. at 91, 93.

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relationship between the policy and this objective is too

tenuous to pass constitutional muster as evidenced by

the fact that other dangerous and problematic inmates

housed in other segregated units do not have the same -

restrictions imposed upon them. While it may be true

that prisoners in the Special Management Unit and

Administrative Custody enjoy some access to

newspapers and magazines, Deputy Superintendent

Dickson testified that should they show a propensity to

use them as weapons or to set fires and fling feces that

they too “would be on their way to the LTSU.”°’ Thus, it

appears that the inmates in the other segregated units

do not present the same security concerns as those in

the LTSU and the fact that they have access to the

materials utilized by LTSU inmates as weapons does

not serve to sever the connection between the

prohibition at issue and prison security.

Because the record appears to support a finding

that the policy denying Level 2 inmates access to

newspapers, magazines and photographs bears a valid

and rational connection to legitimate prison objectives,

the first Turner factor appears to weigh in defendant’s

favor.

Similarly, it appears clear that the second factor -

whether these inmates have an alternative way of

exercising their constitutionally protected rights - also

weighs in defendant’s favor. Significantly, the prison’s

policy denying plaintiffs access to the cited articles is

not a blanket prohibition. To the contrary, each of

these prisoners has the option of modifying their

behavior and being promoted to a less restricted

environment where access to newspapers, magazines

and photographs may be enjoyed. Moreover, it appears

that Level 2 inmates are able, albeit on a limited basis,

37 Dickson Depo. At 92. .

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to visit with loved ones and are able to carry on a

correspondence.*®

The third factor appears to weigh in favor of the

prison’s policy as well. This prong of the Turner test

obligates the court to consider the effect that

accommodating the nght would have on fellow inmates,

prison staff and on the allocation of prison resources.

Fraise v. Terhune, 283 F.3d at 520; DeHart v. Horn, 227

F.3d 47, 57 (3d Cir. 2000).

In Fraise v. Terhune, supra, a group of inmates

brought suit alleging that the prison policy which

authorizes prison officials to designate and transfer

core members of “security threat groups” was violative

of the Free Exercise Clause of the First Amendment as

well as the Equal Protection and Due Process Clauses.

As in the present case, the prison’s stated penological

objective for justifying the policy was prison security.

In addressing the third Turner factor, the Court of

Appeals for the Third Circuit quoted the Fourth

Circuit’s opinion in Jn re Long Term Admin. Segregation

of Inmates Designated as Five Percenters, 174 F.3d 464,

470 (4% Cir.), cert. denied, 528 U.S. 874 (1999), which

in turn relied upon Tumer, stating that:

38 As well, although plaintiffs have stated that there is no

opportunity to see their minor children and other relatives

because the Department of Corrections prohibits minors from

visiting Level 2 inmates, see Plaintiffs’ Brief in Support of

Their Motion for Summary Judgment, p. 16 (Docket No. 21),

the LTSU Rules and Regulations, which have been provided

by plaintiffs, states that the number of visitors during any

given time is two which may include one child under the age

of 18 and that “{t}he Shift Commander has the discretion to

permit additional visitors such as small children and/or

infants on a case-by-case basis.” See Appendix to Plaintiffs’

Brief in Support of Their Motion For Summary Judgment, p.

23 (Docket No. 22).

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Prison administration often involves

tradeoffs. In the closed environment of a

prison, greater liberties for some may

mean increased danger and intimidation

for others. Because increased freedom for

the Five Percenters would come “only at

the cost of significant less liberty and

safety for everyone else, guard and other

prisoners alike,” we are _ particularly

reluctant to interfere with the judgment of

the [prison officials] in this case.

Fraise v. Terhune, 283 F.3d at 520. Noting that under

Turner a highly deferential standard should be applied

when there is a “ripple effect” on others, the Fraise

Court found that the fourth prong had been satisfied.

Id.

Here, having already found ample evidence to

support a finding that access to newspapers, magazines

and photographs presents a threat to the security of

both guards and other prisoners in the LTSU, it

appears that accommodating plaintiffs’ asserted right

would have the very “ripple effect” referred to in Turner

and Fraise. Accordingly, the prison officials are entitled

to a high degree of deference and, under Fraise, the

third factor also appears to weigh in defendant’s favor.

Nor does plaintiffs’ renewed argument that because

inmates in other segregated units have access to

newspapers and magazines without negative impact

compel a different result. Indeed, it is not the mere

presence of the magazines and newspapers that create

the security concerns but what these particular

inmates have chosen to do with them. The fact that

other segregated inmates have not created the same

security concerns while in possession of newspapers

and magazines is one reason why they are in those

units and not in the LTSU. Indeed, it appears that the

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same fate awaits any of the inmates confined in any of

the other segregation units that cannot maintain an

acceptable level of behavior. Conversely, plaintiffs are

being deprived of newspapers and magazines because

they have already proven themselves to be unwilling to

behave in a responsible manner which precipitated

their transfer to the LTSU in the first instance.

In addition, as argued by defendant, absent allowing

plaintiffs access to the prohibited materials, which has

' proven unsuccessful, the only alternative appears to be

individually escorting Level 2 prisoners to the mini

library which is the only available site in the LTSU for

reading newspapers. Such an accommodation,

however, would not only intensify security concerns by

increasing the amount of inmate movement but it

would seemingly place a formidable burden on the

LTSU staff. See Allah v. Al-Hafeez, 208 F.Supp.2d 520,

530 (E.D.Pa. 2002) (Finding that the third Turner factor

weighed in defendants’ favor where plaintiffs behavior

created a security concern and that accommodating his

attendance at religious services would require more

monitoring thereby straining prison resources and

affecting the prison staff and other inmates.)

Finally, the court must evaluate where there are

alternatives to the policy that would impose only a de

minimis cost to valid penological interests. Fraise v.

Terhune, 283 F.3d at 513-514.

Plaintiffs suggest that an alternative would be to

establish a reading period during which guards would

deliver newspapers and magazines to each inmate in

their respective cells and retrieve them at the end of the

period. Plaintiffs argue that the number of publications

that each inmate could have in his cell at one time

could be limited as well as the number of days each

week that the reading materials would be distributed.

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We fail to see, however, how having a designated

reading period would prevent the Level 2 inmates from

using the reading material provided to them to start

fires, fling feces or create weapon, as they have shown a

willingness to do. Indeed, it appears that in order to

give effect to plaintiffs’ proposed alternative a guard

would be required to monitor each cell during the

reading period thus impacting not only the guards and

other inmates but prison resources as well. Moreover,

implementing plaintiffs’ suggestion would not be

without sacrifice to the prison’s behavioral modification

goals. It therefore appears that the cost of plaintiffs’

proposed alternative is not de minimis and the fourth

consideration set forth in Turner also appears to weigh

in defendant’s favor. See Fraise v. Terhune, 283 F.3d at

521, quoting Turner, 482 U.S. at 91 (“We reiterate that

our inquiry is not whether the state could have adopted

a less restrictive alternative but rather it could have

adopted an alternative that imposed only ‘de minimis

cost to legitimate penological interests.”)

Because all of the factors set forth in Turner appear

to weigh in defendant’s favor, the LTSU’s policy

prohibiting access to newspapers, magazines and

photographs appears to be reasonably related to

legitimate penological interests and, thus, is properly

upheld notwithstanding its intrusion on plaintiffs’

Constitutional rights.

For these reasons, it is recommended that the

motion for summary judgment submitted on behalf of

defendant (Docket No. 16) be granted, and plaintiffs’

motion for summary judgment (Docket No. 20) be

denied.

Within ten (10) days of being served with a copy, any

party may serve and file written objections to this

Report and Recommendation. Any party opposing the

objections shall have seven (7) days from the date of

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service of objections to respond thereto. Failure to file

timely objections may constitute a waiver of any

appellate rights.

Respectfully submitted,

/s/ Robert C. Mitcheil

ROBERT C. MITCHELL |

United States Magistrate Judge

Dated November 15, 2002

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RHU SMU LTSU

Activities In Cell Phase 5, 4 and 3-In Cell Same as RHU

Phase 2 in Small Groups

Commissary DC Status - Toilet Articles Phases 5 and 4-Writing Materials Only Level 2 — None

AC-Status-In accordance with AC Phase 3-$10 per week (no clothing) Level 1-$5 per week

Commissary List. Phase 2-$20 per week (no clothing)

No Tobacco products permitted. No Tobacco products permitted. No Tobacco products permitted.

Compensation | As per OC-ADM 816, Inmate Same as RHU Same as RHU

Compensation System uy a

Counseling In Cell Visits by Counselor Phases 5, 4 and 3-In Cell Visits by Counseior Same as RHU

Services Phase2 | Small Group Unit

Educational Both Status-In cell as approved by PRC | All Phases — In cell as approved by Unit Team Level 2-In cell study (GED and Special Ed,

Services Phase 2 — Small Group in Unit if approved)

ala ES Level 1 - None

Employment DC Status-Unit Janitor (if no AC Phases 5 and 4 — None Level 2 — Unit Janitor (if no Level 1

available) Phase 3 — Unit Janitor (if no phase 2 available) available)

AC Status — Unit Janitor Phase 2 — Unit Janitor Level 1 — Unit Janitor

Exercise ______ 1 Hour — 5 Days a Week Same as RHU Same as RHU

Laundry Twice per week Same as RHU Same as RHU

Legal-Religious | Contents of 1 Records Center Box Same as RHU Same as RHU

Materials

Library Recreational balks from library. Mini Same as RHU Same as RHU

Mail-Incoming | Correspondence as per Phase 5 — 1 Newspaper, 10 Photos Level 2 — Legal/Persona! Correspondence

Publications DC-ADM 803, Inmate Mail and Phase 4 — 1 Newspaper, 10 Photos, 1 Magazine Level 1 — Legal/Personai Correspondence,

Incoming Pubtications Phase 3 — 1 Newspaper, 10 Photos, 10 Magazines 1 Newspaper, 5 Magazines

Phase 2 — Same as Phase 3

Medical-Dental | In Unit Screening Same as RHU Same as RHU

Mental Health In Unit Screening Same as RHU Same as RHU

Property AC/DC Status — Toilet Articles, Shower All Phases — Shower Shoes, Dictionary, Eyeglasses, Both Levels-Shower Shoes, Dictionary,

Shoes, Eyeglasses, Dentures _ Dentures Eyeglasses, Dentures

Radio- DC Status - None Phases 5 and 4 — None Level 2 — None

Television AC Status — As approved by PRC Phase 3 — Radio only Level 1 — None

Be PSE aS ___| Phase 2 — Radio and Television —

Religious In Cell Visits by Chaplain Same as RHU Same as RHU

Activities

Showers Three (3) perweek Ra SameasRHU | Same as RHU

Telephone OC Status As per OC-ADM 801, Inmate — Phase 5 - and 4 - Emergency Only Level 2 — Emergency Only

Calls Disapline Phase 3 — One per month Level 1 — 1 per month

AC Status As per DC-ADM 802, Phase 2—- One every 2 weeks

Administrative Procedures

Visits DC Status — 1/month immediate family. | Phase 5 — 1/month immediate family Level 2 — 1 per month immediate family

All Non-Contact | AC Status — 1/week Phases 4 & 3—-1/week and 2 weekend/holiday a month Level 1 — 2 per month immediate family

Phase 2 — 1/week and 3 weekend/holiday a month

6.5.1, Administration of Security Level 5 Housing Units, Section 1, Administration, Privileges and Services

Attachment A

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