     10-1193-CV
     Ahlers v. Rabinowitz

 1                       UNITED STATES COURT OF APPEALS
 2
 3                           FOR THE SECOND CIRCUIT
 4
 5                             August Term, 2011
 6
 7
 8      (Argued: December 7, 2011             Decided: April 6, 2012)
 9
10                             Docket No. 10-1193
11
12   - - - - - - - - - - - - - - - - - - - -x
13
14   KARL AHLERS,
15
16                     Plaintiff-Appellant,
17
18               - v.-
19
20   STEVEN RABINOWITZ, Director, Manhattan Psychiatric Center,
21   DORA DEATRAS, Ward D-9-B Treatment Team Leader, Manhattan
22   Psychiatric Center, IMOGINE THOMPSON, Ward D-9-B, Staff
23   Member, Manhattan Psychiatric Center, FELICITY MOE, Ward D-
24   9-B, Staff Member, Manhattan Psychiatric Center,
25
26                     Defendants-Appelles.
27
28   - - - - - - - - - - - - - - - - - - - -x
29
30         Before:          JACOBS, Chief Judge, CABRANES and WESLEY,
31                          Circuit Judges.
32
33         Plaintiff appeals from a judgment entered in the

34   Southern District of New York (Crotty, J.) dismissing his 42

35   U.S.C. § 1983 claims.       We agree with the district court’s

36   analysis; but we undertake to clarify some applicable

37   principles and affirm on the ground of qualified immunity.

38
 1                                 THOMAS H. DUPREE, JR. (Frederick
 2                                 Liu, Erik R. Zimmerman, on the
 3                                 brief), Gibson, Dunn & Crutcher
 4                                 LLP, Washington, D.C., for
 5                                 Appellant.
 6
 7                                 DAVID LAWRENCE III, Assistant
 8                                 Solicitor General (Barbara D.
 9                                 Underwood, Solicitor General,
10                                 Michael S. Belohlavek, Senior
11                                 Counsel, on the brief), for Eric
12                                 T. Schneiderman, Attorney
13                                 General of the State of New
14                                 York, New York, N.Y., for
15                                 Appellees.
16
17   DENNIS JACOBS, Chief Judge:

18

19       Karl Ahlers appeals from a judgment entered in the

20   United States District Court for the Southern District of

21   New York (Crotty, J.) dismissing his claims under 42 U.S.C.

22   § 1983.   Ahlers is a convicted sex-offender who has been

23   civilly committed post-release from prison.    He alleges that

24   when he was confined in the Manhattan Psychiatric Center

25   (the “Center”), staff seized and withheld his personal DVDs

26   and CDs and his incoming non-legal mail in violation of the

27   First and Fourth Amendments and his procedural due process

28   rights.   The district court did not err in concluding that

29   the complaint fails to state any claim for which relief can

30   be granted.   See Fed. R. Civ. P. 12(b)(6).   This opinion



                                    2
1    undertakes to clarify some applicable principles.   We affirm

2    the judgment of the district court because, in any event, it

3    was objectively reasonable for the Center staff to believe

4    that their acts did not violate Ahlers’s rights.    They are

5    therefore entitled to qualified immunity.

6

7                              BACKGROUND

8        In August 1982, Ahlers was convicted of sex offenses

9    involving children aged seven to sixteen: specifically, two

10   counts of sodomy in the first degree, one count of sodomy in

11   the second degree, one count of sodomy in the third degree,

12   three counts of sexual abuse in the first degree, and two

13   counts of endangering the welfare of a child.    People v.

14   Ahlers, 470 N.Y.S.2d 483, 483 (3d Dep’t 1983).   After

15   release from prison in 2005, Ahlers was involuntarily placed

16   in civil custody, first in the Kirby Forensic Center and

17   then, in August 2007, in the Sex Offender Treatment Program

18   at the Center.   In December 2008, Ahlers filed a pro se

19   complaint against the Center’s Director, Steven Rabinowitz,

20   and three Center employees--Dora Deatras, Imogine Thompson,

21   and Felicity Moe --(collectively, the “Defendants”) alleging

22   that they withheld from him certain CDs and DVDs, and his


                                   3
1    mail, in violation of the Constitution and federal law.     The

2    allegations are set out below.

3        CDs and DVDs.    Ahlers alleges that because of his

4    hearing loss, he was granted permission to have a personal

5    DVD player, DVDs, and CDs, so that he could listen through

6    headphones.   Other patients received similar accommodations.

7    Over time, with the Center’s permission, Ahlers acquired a

8    collection of 163 DVDs and 86 CDs (collectively, the

9    “discs”).   According to Ahlers, the DVDs contain content

10   similar to what is broadcast on the Center’s televisions,

11   and the CDs contain classical music.

12       On April 21, 2008, staff entered Ahlers’s room without

13   warning, seized his DVD player and all his discs, and

14   informed him that the discs would be reviewed and returned.

15   On May 6, Ahlers met with his parole officer and members of

16   his treatment team--defendants Deatras, Thompson, and Moe--

17   and he was assured that they would review his DVDs.    On May

18   19, at a meeting of all the patients in Ahlers’s ward,

19   Deatras announced that the staff was screening for sexually

20   explicit material.

21       On May 28, Ahlers met to discuss the seizure with the

22   Center’s Deputy Director, Charles Herrmann, who said he


                                   4
1    would look into the matter, but did not get back to Ahlers.

2    Ahlers followed up with a letter, but got no reply.

3        On May 30, Deatras returned 16 DVDs and the DVD player

4    to Ahlers and presented him with a receipt, which indicated

5    that 14 DVDs had been permanently confiscated for containing

6    sexually explicit material and that 131 had yet to be

7    reviewed.1

8        On June 18, Ahlers discussed the seizure with Don

9    Graham, a lawyer in “Mental Health Services,” who later met

10   with the ward psychologist and Deatras.   Two days later,

11   Ahlers asked when he would get back the remaining discs, and

12   was told by Deatras that just one person was available to

13   screen DVDs, but that she would talk to that individual.

14   Later that day, Deatras returned 15 DVDs, and told Ahlers

15   that the remaining DVDs had not yet been reviewed.

16       Toward the end of June, Deatras gave Ahlers a list of

17   the 14 permanently confiscated DVDs and a memo from

18   defendant Steven Rabinowitz, Director of the Center,

19   responding to a letter Ahlers had written.   Rabinowitz

20   advised that it was clinically inappropriate for Ahlers to


          1
            This adds up to 161 DVDs. Ahlers alleges that 163
     were seized. The complaint is confusing in this respect,
     and others.
                                  5
1    have sexually explicit material and sexual material

2    involving children, and that the permanently confiscated

3    DVDs had been deemed clinically inappropriate.

4        On July 28, the Center returned ten more DVDs to

5    Ahlers.   On August 8, twenty more were returned.

6        Mail.   On March 20, 2008, a United States Government

7    Printing Office (“GPO”) catalog arrived in the mail for

8    Ahlers.   Thompson withheld it to submit it to Deatras for

9    review.   On April 28, Ahlers asked Moe about it and was told

10   a decision had not yet been made.    On May 3, Deatras

11   returned the catalog; with Ahlers’s permission, the cover

12   was removed.

13       On March 21, 2008, Thompson intercepted a piece of mail

14   and turned it over to Deatras, who told Ahlers that it had

15   been given to his social worker.    Ahlers never received the

16   item.

17       On April 28, Moe withheld an issue of Smithsonian

18   magazine and a mail-order catalog.   In response to Ahlers’s

19   inquiry about the magazine in early May, Deatras told Ahlers

20   she had not yet had time to review it.   On May 12, Moe

21   returned the magazine.

22


                                   6
1        Also on April 28, another patient informed Ahlers that

2    he had seen a package addressed to Ahlers.    Ahlers went to

3    pick it up, but the package was not available.    The next

4    day, Ahlers received the package and was told by Deatras

5    that she was holding pending review five catalogs and one

6    magazine.

7        On May 5, defendant Thompson withheld a Heartland mail-

8    order catalog and a catalog of DVDs.   The Heartland catalog

9    had a photograph of a replica revolver, and the DVD catalog

10   had a photograph of Civil War soldiers with flintlock

11   rifles.   When Ahlers objected, Thompson gave him the DVD

12   catalog, but withheld the Heartland catalog for review by a

13   parole officer.

14       On June 24, Center staff withheld several brochures

15   from the Chamber of Commerce of Klamath Falls, Oregon, which

16   contained pictures of children in bathing suits.    The

17   brochures were not returned.

18       On July 11, an attendant told Ahlers that some of his

19   mail was being withheld for review; Ahlers never got it.     On

20   July 21, two books were held for review.     On July 22,

21   Thompson withheld brochures from the Medford, Oregon Chamber

22   of Commerce.   Ahlers never received them.



                                    7
1        Dismissal of the Complaint.   The district court

2    construed the complaint to raise allegations under the

3    Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112-

4    12117 (“ADA”), and 42 U.S.C. §§ 1983, 1985, and 1986 for

5    violations of the First and Fourth Amendments.   The court

6    concluded that Ahlers failed to state an ADA claim because

7    he had not alleged an impairment that “substantially limits

8    one or more major life activities,” 42 U.S.C. § 12102(1)(A);

9    that he failed to state claims under § 1985 and § 1986

10   because he had not alleged that he was deprived of rights on

11   account of his membership in a protected class; that he

12   failed to state a Fourth Amendment claim because the

13   “Defendants seized [his] property to promote the safety and

14   welfare of the [Center’s] staff and patients”; and that he

15   failed to state a First Amendment claim because “the

16   Defendants had a legitimate penological interest in

17   monitoring, screening, and withholding [his] property.”

18   Ahlers v. Rabinowitz, No. 08 Civ. 11091 (PAC)(KNF), 2010 WL

19   808773 (S.D.N.Y. Mar. 9, 2010).

20       Ahlers appeals the dismissal of his § 1983 claims for

21   First and Fourth Amendment violations and argues that the

22


                                  8
1    district court failed to consider his procedural due process

2    claim.2

3                              DISCUSSION

4        “We review de novo a district court’s dismissal of a

5    complaint pursuant to Rule 12(b)(6), construing the

6    complaint liberally, accepting all factual allegations in

7    the complaint as true, and drawing all reasonable inferences

8    in the plaintiff’s favor.”   Chambers v. Time Warner, Inc.,

9    282 F.3d 147, 152 (2d Cir. 2002).

10       “To survive a motion to dismiss, a complaint must

11   contain sufficient factual matter, accepted as true, to

12   ‘state a claim to relief that is plausible on its

13   face.’ . . .   The plausibility standard is not akin to a

14   ‘probability requirement,’ but it asks for more than a sheer

15   possibility that a defendant has acted unlawfully.”

16   Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949

17   (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,

18   556, 570 (2007)).


          2
             Ahlers does not appeal the district court’s
     dismissal of his ADA, § 1985, and § 1986 claims. Issues
     related to Ahlers’s civil commitment were litigated in
     several separate actions, and we do not revisit them here.
     See, e.g., Ahlers v. Spitzer, No. 09 Civ. 10006(SAS), 2010
     WL 2545962 (S.D.N.Y. June 24, 2010), aff’d, 432 F. App’x 42
     (2d Cir. Sept. 27, 2011); Ahlers v. Boruch, No. 04 CV 1747
     (JG), 2007 WL 2042794 (E.D.N.Y. July 16, 2007).
                                   9
1        “A document filed pro se is ‘to be liberally

2    construed,’ and ‘a pro se complaint, however inartfully

3    pleaded, must be held to less stringent standards than

4    formal pleadings drafted by lawyers.’”    Erickson v. Pardus,

5    551 U.S. 89, 94 (2007) (citation omitted) (quoting Estelle

6    v. Gamble, 429 U.S. 97, 106 (1976)).     “This is particularly

7    so when the pro se plaintiff alleges that h[is] civil rights

8    have been violated.”   Sealed Plaintiff v. Sealed Defendant,

9    537 F.3d 185, 191 (2d Cir. 2008).3

10       “In order to state a cause of action under 42 U.S.C.

11   § 1983, a plaintiff must allege that some person acting

12   under color of state law deprived him of a federal right.”

13   Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986).     In

14   sum, Ahlers has not pleaded sufficient facts to support a

15   claim that the seizure and withholding of his CDs, DVDs and

16   mail deprived him of First and Fourth Amendment rights, as

17   incorporated through the Fourteenth Amendment, or of his

18   right under the Fourteenth Amendment to procedural due

19   process.


          3
            Ahlers litigated this case pro se. When Ahlers
     appealed the judgment of the district court, he petitioned
     this Court to appoint counsel, which we did on October 13,
     2010. We thank appointed counsel for their dedicated and
     skillful advocacy in this matter.
                                   10
1                                  I

2        To determine the substantive rights of a person

3    involuntarily committed to a state institution, the

4    interests of the individual are balanced against the

5    interests of the state.   Youngberg v. Romeo, 457 U.S. 307,

6    320 (1982); see Buthy v. Comm’r of the Office of Mental

7    Health, 818 F.2d 1046, 1050 (2d Cir. 1987) (balancing to

8    determine the due process rights of persons committed after

9    acquittal by reason of insanity); United States v. Cohen,

10   796 F.2d 20, 23-24 (2d Cir. 1986) (balancing to determine

11   the Fourth Amendment rights of pretrial detainees).    We have

12   not previously undertaken to perform that analysis with

13   regard to the Fourth Amendment right of civilly committed

14   persons to be free from unreasonable searches and seizures.

15       In a prison or institution housing pretrial detainees,

16   the “essential” state interests include “maintaining

17   institutional security and preserving internal order.”    Bell

18   v. Wolfish, 441 U.S. 520, 546 (1979).   “[O]fficials must be

19   free to take appropriate action to ensure the safety of

20   inmates and . . . personnel and to prevent escape or

21   unauthorized entry.”   Id. at 547.

22


                                   11
1        On the other hand, “[p]ersons who have been

2    involuntarily committed are entitled to more considerate

3    treatment and conditions of confinement than criminals whose

4    conditions of confinement are designed to punish.”

5    Youngberg, 457 U.S. at 321-22.      However, the state’s

6    interest in maintaining order and security is not punitive

7    in purpose or character, and remains valid in institutions

8    of civil commitment.    See Aiken v. Nixon, 236 F. Supp. 2d

9    211, 232 (N.D.N.Y. 2002) (noting the “societal interest in

10   protecting the health, safety, and welfare of the patients

11   and staff” in a state psychiatric center); see also Bell,

12   441 U.S. at 540 (“The Government . . . has legitimate

13   interests that stem from its need to manage the facility in

14   which the individual is detained [pretrial].”).

15       The state also has an interest in treating the civilly

16   committed individual.   “[T]he dual goals of involuntary

17   commitment [are] to provide care and treatment to those

18   unable to care for themselves and to protect the individual

19   and society from those who pose a danger to themselves and

20   others because of mental illness.”     Goetz v. Crosson, 967

21   F.2d 29, 34 (2d Cir. 1992); see also McKune v. Lile, 536

22   U.S. 24, 33 (2002) (“States . . . have a vital interest in

23   rehabilitating convicted sex offenders.”).

                                    12
1        The reasonableness of the seizure in this case depends

2    on a balance of interests: the state’s interests in order,

3    security, and treatment, and Ahlers’s property interest in

4    his discs.4   In striking the appropriate balance, decisions

5    made by the Defendants are entitled to a “‘presumption of

6    correctness.’”   Buthy, 818 F.2d at 1050 (quoting Youngberg,

7    457 U.S. at 324); see also Youngberg, 457 U.S. at 323 n.30,

8    324-25 (“The administrators, and particularly professional

9    personnel [i.e., persons competent by education, training or

10   experience], should not be required to make each decision in

11   the shadow of an action for damages.”).

12       Ahlers does not claim entitlement to possess sexually

13   explicit media; his allegation is that none of the discs is

14   sexually explicit.   But the Defendants are not bound to

15   accept his characterizations or assurances.   It was

16   therefore not unreasonable to seize the discs to look for

17   prohibited material.   The fact that the Center allowed

18   Ahlers to acquire the discs did not diminish its interest in

19   ensuring that they were appropriate.

20

          4
             Ahlers does not challenge the search of his room--
     only the seizure of his property--so we need not determine
     whether he had a privacy interest. Cf. Hudson v. Palmer,
     468 U.S. 517, 522-30 (1984) (holding prisoners do not have a
     privacy interest in their cells).
                                   13
1        Ahlers challenges the motivations of the Defendants in

2    seizing his property and the length of the seizure.         But

3    “the subjective motivations of the individual officers . . .

4    has no bearing on whether a particular seizure is

5    ‘unreasonable’ under the Fourth Amendment,” Graham v.

6    Connor, 490 U.S. 386, 397 (1989), and where, as here, “an

7    initial seizure of property was reasonable, defendants’

8    failure to return the items does not, by itself, state a

9    separate Fourth Amendment claim of unreasonable seizure,”

10   Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363

11   F.3d 177, 187 (2d Cir. 2004).        “To the extent the

12   Constitution affords . . . any right with respect to a

13   government agency’s retention of lawfully seized property,

14   it would appear to be procedural due process.”        Id.

15

16                                   II

17       In alleging a violation of his procedural due process

18   rights, a plaintiff must plead facts sufficient to give rise

19   to a claim that he was deprived of his property without

20   “constitutionally adequate pre- or post-deprivation

21   process.”   N.Y. State Nat’l Org. for Women v. Pataki, 261

22   F.3d 156, 163 (2d Cir. 2001).        A court must balance three


                                     14
1    factors in determining what process is due:

2        (1) “the private interest that will be affected by the

3        official action”; (2) “the risk of an erroneous

4        deprivation of such interest through the procedures

5        used, and the probable value, if any, of additional or

6        substitute procedural safeguards”; and (3) “the

7        Government’s interest, including the function involved

8        and the fiscal and administrative burdens that the

9        additional or substitute procedural requirement would

10       entail.”

11   McMenemy v. City of Rochester, 241 F.3d 279, 288 (2d Cir.

12   2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 335

13   (1976)).

14       Ahlers’s allegations are insufficient to support a

15   claim that the Center’s pre-deprivation procedures were

16   constitutionally inadequate.

17       Ahlers alleges that his discs were seized without prior

18   notice.    Pretrial detainees are not entitled to notice

19   before a search of their cells.     See Block v. Rutherford,

20   468 U.S. 576, 590, 591 n.12 (1984).    The private interest

21   may be greater for civilly committed persons, see Youngberg,

22   457 U.S. at 321-22; but the state’s interest in seizing



                                    15
1    contraband is no less, and the self-defeating effect of

2    advance notice would be the same.    A random search “‘allows

3    . . . flexibility and prevents inmates from anticipating,

4    and thereby thwarting, a search for contraband.’”   Hudson,

5    468 U.S. at 529 (quoting Marrero v. Commonwealth, 284 S.E.2d

6    809, 811 (Va. 1981)).

7        Ahlers complains that at the time of the seizure, the

8    Center staff did not tell him what they were screening for

9    and gave him no receipt.   The state’s interest in quick and

10   efficient searches militates against requiring that a

11   detailed explanation or a written receipt be given at the

12   time of seizure.   Cf. Block, 468 U.S. at 589-91 (holding

13   searches of pretrial detainees’ cells are constitutional

14   even when the detainees are absent during the searches).

15   After the seizure, Ahlers was given a receipt, and informed

16   of the reason for the screening.    Ahlers alleges that the

17   staff used different terms to describe the prohibitions--

18   explicit sexuality, pornography, nudity, clinically

19   inappropriate material--but each term had similar import.

20       Ahlers alleges that the seizure was unguided by any

21   “written facility policy” or “written authorization.”   In

22   any context, “[a] requirement that . . . random searches be



                                   16
1    conducted pursuant to an established plan would seriously

2    undermine the effectiveness of this [measure].” Hudson, 468

3    U.S. at 529.   In the therapeutic context, where “[a] single

4    professional may have to make decisions with respect to a

5    number of residents with widely varying needs and problems

6    in the course of a normal day,” Youngberg, 457 U.S. at 324,

7    it is particularly hard to catalog contraband.   Disorders

8    differ; treatments are individual and subject to change; and

9    deviant interests will render otherwise-benign images

10   clinically inappropriate.   Accordingly, the state’s interest

11   in the staff’s ability to effectively perform their jobs

12   outweighs the value of any additional protection to Ahlers’s

13   property interests that would result from a written policy

14   or formula.

15       Ahlers protests that his property was held for an

16   unreasonably long period.   But vetting the CDs and DVDs

17   presumably entails real-time review, conducted by staff with

18   other responsibilities as well.    Considering that nearly 250

19   discs were seized from Ahlers alone, that discs were seized

20   from other patients as well, and that the process is not

21   necessarily of the first priority within the institution,

22   the months taken to complete the work does not suggest that



                                   17
1    the procedures or policies were constitutionally

2    inadequate.5

3        Ahlers alleges that the 14 DVDs that were permanently

4    confiscated are not sexually explicit.   But the Center may

5    consider that there is a broader category of material that

6    is clinically inappropriate without presenting itself as

7    sexual.   In any event, Ahlers’s disagreement with the

8    Defendants’ decision is insufficient to state a claim that

9    the state’s decision-making procedures were inadequate.

10       Ahlers recites a list of encounters with staff,

11   evidently to show that he was afforded inadequate post-

12   deprivation procedures.   Thus he alleges that two weeks

13   after the seizure, he was “called into a meeting” with his

14   parole officer and Deatras, Thompson, and Moe; and that

15   approximately five weeks after the seizure, he “was called

16   into a meeting” with the Center’s Deputy Director.    The

17   complaint does not make clear whether the meetings were

18   opportunities to challenge the deprivation, or whether they

19   were therapeutic, or both.   Similarly, the complaint does


          5
            It is unclear how long Ahlers was deprived of the
     discs. The complaint indicates that of the 163 DVDs and 86
     CDs that were seized, 14 DVDs were permanently confiscated,
     and 61 DVDs were returned. The complaint does not indicate
     what happened to the CDs or to the other 88 DVDs.
                                   18
1    not make clear whether Ahlers’s meeting with a lawyer from

2    “Mental Health Services” and the letter Ahlers sent to

3    Rabinowitz were part of a formal or informal appeals

4    procedure, or afforded that opportunity in effect.     Because

5    Ahlers has not alleged whether formal post-deprivation

6    procedures were available to him, he has not stated a claim

7    that they were insufficient.    See Marino v. Ameruso, 837

8    F.2d 45, 47 (2d Cir. 1988) (“Absent a showing of inadequate

9    state procedures [the plaintiff’s] claim must fail.”).6

10

11                                  III

12       This Circuit has not articulated the standard by which

13   to analyze censorship of mail in the civil commitment

14   context.   “Restrictions on prisoners’ mail are justified

15   only if they ‘further[] one or more of the substantial

16   governmental interests of security, order, and

17   rehabilitation . . .[and] must be no greater than is

18   necessary or essential to the protection of the particular

19   governmental interest involved.’”    Davis v. Goord, 320 F.3d

20   346, 351 (2d Cir. 2003) (alterations in original) (quoting


          6
            The government has not argued for the applicability
     of Hellenic Am. Neighborhood Action Comm. v. City of N.Y.,
     101 F.3d 877 (2d Cir. 1996), so we need not address it.
                                    19
1    Washington, 782 F.2d at 1139).       With regard to legal mail,

2    “an isolated incident of mail tampering is usually

3    insufficient to establish a constitutional violation.

4    Rather, the inmate must show that prison officials

5    ‘regularly and unjustifiably interfered with the incoming

6    legal mail.’”     Id. (citations omitted) (quoting Cancel v.

7    Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *6 (S.D.N.Y.

8    Mar. 29, 2001)).     In the context of civil commitment, this

9    formula is easily adapted.     A patient must show regular and

10   unjustifiable interference with incoming legal mail; the

11   actions of facility staff in restricting civilly committed

12   individuals’ access to legal mail are justified if they

13   advance or protect the state’s interest in security, order,

14   or treatment and the restrictions imposed are no greater

15   than necessary to advance the governmental interest

16   involved.

17       Interference with non-legal mail, as Ahlers claims, is

18   more readily justifiable than interference with so-called

19   legal mail.     See id. at 351 (“In balancing the competing

20   interests implicated in restrictions on prison mail, courts

21   have consistently afforded greater protection to legal mail

22   than to non-legal mail . . . .”).      We need not articulate


                                     20
1    the correct standard here, however, because Ahlers’s

2    complaint cannot support a claim that any alleged

3    “interference” with his non-legal mail was “regular[]” or

4    “unjustifiabl[e].”   See id.

5        Broadly construed, the complaint alleges eleven

6    instances of interference, between March and July 2008.7

7    Three times, the withheld items were returned: the GPO

8    catalog was returned within six weeks; the Smithsonian

9    magazine (after Ahlers consented to the removal of its

10   cover) was returned after two weeks; and the package

11   withheld on April 28 was returned the next day.   Several

12   brief delays do not amount to a First Amendment violation.

13   See Rowe v. Shake, 196 F.3d 778, 780, 782 (7th Cir. 1999)

14   (holding an allegation that, over the course of three

15   months, eight items took more than fourteen days to reach a

16   prisoner was insufficient); Cancel v. Goord, No. 00 CIV.

17   2042 (LMM), 2002 WL 171698, at *3 (S.D.N.Y. Feb. 4, 2002)

18   (holding an allegation of seven delays, ranging from two to

19   six weeks, over the course of a year was insufficient).

20


          7
            This total does not include Ahlers’s allegation that
     on May 5, Moe chose not to withhold a DVD catalog after
     Ahlers objected.
                                    21
1        Ahlers alleges three instances involving mail that was

2    never returned, and an additional five instances in which he

3    leaves unspecified whether the seized mail was ever returned

4    to him.    The brochures from Klamath Falls were withheld

5    because they contained images of children in bathing suits,

6    which staff deemed clinically inappropriate.   Because of the

7    state’s interest in treating Ahlers’s sexual deviance,

8    Center staff had a justification for an embargo on these

9    images.    See Yeldon v. Hogan, No. 9:08-CV-769 (NAM/RFT),

10   2010 WL 983819, at *9 (N.D.N.Y. Mar. 15, 2010)

11   (“Restrictions on incoming mail containing pictures of

12   minors [in an institution of civil commitment] where many

13   residents have committed sexual offenses against children is

14   a policy that is rationally related to legitimate government

15   interests.”).

16       The reasons for some of the other withholdings are

17   unclear.   The complaint says very little about the

18   “publication” withheld on March 21, 2008, or the brochures

19   from Medford, or the material withheld on April 28, April

20   29, July 11 and July 21.

21       In any event, eleven instances over four months does

22   not in itself support an inference of regular interference.



                                    22
1   And the allegation that mail was withheld is insufficient to

2   support a claim that it was withheld unjustifiably.8

3       The foregoing analysis is directed to Ahlers’s

4   complaint that his mail was intercepted and withheld

5   arbitrarily, and that the Defendants’ actions were not

6   governed by any rule or policy.   We therefore must proceed

7   on the assumption that no rule or policy exists.   In so

8   doing, we recognize that the test for ascertaining the

9   constitutional validity of such a rule is established in

         8
           The complaint also fails to state Fourth Amendment
    and procedural due process claims with regard to the
    withholding of mail. Ahlers’s property interest in mail-
    order catalogs and similar materials borders on de minimis.
    See Buthy, 818 F.2d at 1050; see also Nickens v. White, 536
    F.2d 802, 803 (8th Cir. 1976) (per curiam) (holding a
    prisoner’s interest in a catalog was de minimis).
         In any event, the state’s interest in preventing Ahlers
    from obtaining clinically inappropriate images is strong,
    and Ahlers’s interest in incoming commercial mail is
    relatively weak. The Defendants’ seizure of such mail for
    screening was not unreasonable. See United States v.
    Felipe, 148 F.3d 101, 108 (2d Cir. 1998) (“[T]he
    interception of a defendant’s prison correspondence does not
    violate that individual’s First or Fourth Amendment rights
    if prison officials had ‘good’ or ‘reasonable’ cause to
    inspect the mail.”). Ahlers has not sufficiently alleged
    that the Center’s procedures were constitutionally
    inadequate because Ahlers has not alleged what (if any)
    procedures were available. Cf. Procunier v. Martinez, 416
    U.S. 396, 417 (1974), overruled on other grounds by
    Thornburgh v. Abbott, 490 U.S. 401, 417 (1989) (“[T]he
    decision to censor or withhold delivery of a particular
    letter must be accompanied by minimum procedural
    safeguards.”).

                                 23
1    Turner v. Safley, 482 U.S. 78 (1987).    As we have explained:

2             In Turner, the Supreme Court instructed that

3        courts reviewing the validity of prison regulations

4        should apply several factors.     First, “there must be a

5        valid, rational connection between the prison

6        regulation and the legitimate governmental interest put

7        forward to justify it.”     Second, courts should assess

8        “whether there are alternative means of exercising the

9        right that remain open to prison inmates.”       Third,

10       courts should consider “the impact accommodation of the

11       asserted constitutional right will have on guards and

12       other inmates, and on the allocation of prison

13       resources generally.”     Finally, courts should consider

14       the challenged regulation in relation to proposed

15       alternatives.

16   Johnson v. Goord, 445 F.3d 532, 535 (2d Cir. 2006)

17   (citations omitted) (internal quotation marks omitted)

18   (quoting Turner, 482 U.S. at 89-90).    These four

19   considerations amount to an overall test of reasonableness

20   that differs from the test applied here more in its

21   procedure than in its substantive outcome.    See Turner, 482

22   U.S. at 89 (“[W]hen a prison regulation impinges on inmates’



                                    24
1    constitutional rights, the regulation is valid if it is

2    reasonably related to legitimate penological

3    interests. . . .   [S]everal factors are relevant in

4    determining the reasonableness of the regulation at

5    issue.”).

6

7                                  IV

8        We have for the first time undertaken a Fourth

9    Amendment balancing analysis with regard to the right of a

10   civilly committed person to be free from unreasonable

11   seizures.   In other circumstances, that might justify a

12   remand for a pro se complainant to replead.     See Gomez v.

13   USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999)

14   (“[T]he court should not dismiss without granting leave to

15   amend at least once when a liberal reading of the complaint

16   gives any indication that a valid claim might be stated.”)

17   (internal quotation marks omitted).     However, we are

18   satisfied that, in any event, “it was objectively reasonable

19   for [the Defendants] to believe their acts did not violate”

20   Ahlers’s Fourth Amendment rights, or his First Amendment or

21   procedural due process rights.     See Weyant v. Okst, 101 F.3d

22   845, 857 (2d Cir. 1996).


                                   25
1        “The qualified immunity doctrine protects government

2    officials from suits seeking to impose personal liability

3    for money damages based on unsettled rights or on conduct

4    that was not objectively reasonable . . . .”   Connell v.

5    Signoracci, 153 F.3d 74, 79 (2d Cir. 1998).    The complaint

6    requests relief of “one thousand dollars ($1,000.00) per day

7    punitive damages” from the date Ahlers’s property was seized

8    until the date it “is returned to him intact.”   This demand

9    for money damages might also be read as a prayer for

10   injunctive relief.   However, Ahlers, though pro se, knew how

11   to plead a claim for injunctive relief, and did, albeit as

12   to a matter now moot.9   More importantly, Ahlers’s brief,

13   filed by counsel, does not argue for an injunction.

14   Moreover, although the parties’ briefs argue back and forth

15   on the issue of qualified immunity, Ahlers does not contend

16   that his prayer for relief was anything but a claim for

17   money damages.   “Issues not sufficiently argued in the

18   briefs are considered waived and normally will not be

          9
            The complaint requests that the court “issue an
     order, directing that defendants . . . be stayed and
     prohibited from taking any action including . . . harassment
     and bullying, relating to defendant[s’] actions complained
     of in the instant proceeding.” Ahlers has since
     relinquished this claim as moot because in 2009, he was
     transferred from the Center to the Central New York
     Psychiatric Center.
                                   26
1   addressed on appeal.”   Norton v. Sam’s Club, 145 F.3d 114,

2   117 (2d Cir. 1998).   Accordingly, we construe the complaint

3   as a claim for money damages and conclude that the

4   Defendants are entitled to qualified immunity.

5

6                             CONCLUSION

7       For the foregoing reasons, we affirm the judgment of

8   dismissal.




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