                                                                                                                           Opinions of the United
2004 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


8-12-2004

Ramirez v. Pugh
Precedential or Non-Precedential: Precedential

Docket No. 02-2101




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Recommended Citation
"Ramirez v. Pugh" (2004). 2004 Decisions. Paper 372.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/372


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                     PRECEDENTIAL          Vijay Shanker, Esq. (Argued)
                                           Covington & Burling
    UNITED STATES COURT OF                 1201 Pennsylvania Avenue, N.W.
            APPEAL                         Washington, DC 20004
     FOR THE THIRD CIRCUIT
                                           Counsel for Appellant

              No. 02-2101                  Marc Ramirez, #27353-053
                                           Allenwood LSCI
                                           P.O. Box 1000
          MARC RAMIREZ,                    White Deer, PA 17887

                                           Appellant, Pro Se
                     Appellant
                                           August E. Flentje, Esq. (Argued)
                    v.                     United States Department of Justice
                                           Civil Division, Appellate Staff
 MICHAEL V. PUGH, Warden, LSCI-            601 D Street, N.W.
 Allenwood; JANET RENO, Attorney           Washington, DC 20530
  General; KATHLEEN HAW K, Dr.,
   Director of the Bureau of Prisons       Counsel for Appellees


    On Appeal from the United States                      OPINION
             District Court
 for the Middle District of Pennsylvania
      (D.C. Civil No. 97-cv-00359)
                                           COWEN, Circuit Judge.
             District Judge:
       Hon. James F. M cClure, Jr.                A federal prisoner at the low-
                                           security correctional institution in
         Argued May 27, 2004               Allenwood, Pennsylvania brought this
                                           action pursuant to 28 U.S.C. § 1331,
  BEFORE: RENDELL and COWEN,               challenging a Congressional ban on the
        Circuit Judges and                 use of federal funds to distribute certain
    SCHW ARZER*, District Judge            sexually explicit material to prisoners,
                                           along with its implementing regulation.
        (Filed: August 12, 2004)           The District Court rejected plaintiff’s
                                           argument that the ban violates the First
*Honorable William W Schwarzer,            Amendment and dismissed his complaint,
Senior United States District Judge for    finding the prohibition to be reasonably
the Northern District of California,       related to the legitimate penological goal
sitting by designation.                    of prisoner rehabilitation. Because we
find that the District Court erred in              includes an exception for material that
resolving the constitutional issue without         contains nudity “illustrative of medical,
an adequate factual basis, we will reverse         educational, or anthropological content.”
and remand for further proceedings                 Id. As examples of publications that do
consistent with this opinion.                      not “feature nudity,” a 1996 program
                                                   statement released by the BOP cites
                     I.
                                                   National Geographic, Our Body, Our
       The Ensign Amendment, originally            Selves, the swimsuit issue of Sports
enacted as part of the Omnibus                     Illustrated, and the Victoria’s Secret
Consolidated Appropriations Act of 1997,           catalog. Fed. Bureau of Prisons Program
prohibits the use of funds appropriated for        Statement 5266.07 (Nov. 1, 1996). The
the United States Bureau of Prisons (the           regulations are clearly targeted to the
“BOP”) to “distribute or make available            receipt by inmates of softcore and hardcore
any commercially published information or          pornography.
material to a prisoner . . . [when] such
                                                             Plaintiff Marc Ramirez filed suit in
information or material is sexually explicit
                                                   the Middle District of Pennsylvania in
or features nudity.” Pub. L. No. 104-208,
                                                   1997, naming as defendants the United
§ 614, 110 Stat. 3009-66 (1996). The
                                                   States Attorney General, the director of the
amendment has been reenacted in each
                                                   BOP, and the warden of the Allenwood
subsequent appropriations act, and is now
                                                   i n s ti t u ti o n (colle c t i v e l y , t h e
codified at 28 U.S.C. § 530C(b)(6). An
                                                   “government”). Alleging that magazines
implementing regulation promulgated by
                                                   addressed to him were rejected as either
the BOP defines the key terms of the
                                                   being “sexually explicit” or “featuring
amendment as follows: “sexually explicit”
                                                   nu di ty,” Ramirez challenged th e
means “a pictorial depiction of actual or
                                                   constitutionality of the Ensign Amendment
simulated sexual acts including sexual
                                                   and its implementing regulation on First
intercourse, oral sex, or masturbation”;
                                                   Amendment grounds. After a series of
“features” means that the publication in
                                                   procedural delays, the District Court
question “contains depictions of nudity or
sexually explicit conduct on a routine or
regular basis or promotes itself based upon
                                                   distribution of sexually explicit
such depictions in the case of individual
                                                   publications permitted the warden of an
one-time issues”; and “nudity” means “a
                                                   institution to reject material that “by its
pictorial depiction where genitalia or
                                                   nature or content poses a threat to the
female breasts are exposed.” 28 C.F.R. §
                                                   security, good order, or discipline of the
540.72(b). 1 The definition of “features”
                                                   institution, or facilitates criminal
                                                   activity.” 28 C.F.R. § 540.71(b)(7).
                                                   These regulations are still in place to the
   1
    Before the Ensign Amendment’s                  extent that they involve material falling
passage, BOP regulations governing the             outside the scope of § 540.72(b).

                                               2
finally reached the merits of Ramirez’s            Court recognized an enduring tension
complaint on a government motion to                between two conflicting principles in
dismiss. Applying the familiar test for            operation whenever a prisoner brings a
constitutional challenges to prison                constitutional challenge to a law or
regulations set out in Turner v. Safley, 482       regulation affecting prison policy. The
U.S. 78 (1987), the District Court                 first principle, that “[p]rison walls do not
determined that the amendment and                  form a barrier separating prison inmates
regulations passed constitutional muster           from the protections of the Constitution,”
because they were rationally connected to          must be balanced against the practical
the government’s asserted interest in              reality that the judicial branch is ill-suited
prisoner rehabilitation, prisoners still had       for running the country’s prisons, a task
access to a broad range of materials               committed to the particular expertise of the
(including materials with sexually explicit        legislative and executive branches.
text), accommodating the asserted right to         Turner, 482 U.S. at 84-85. To strike an
view explicit materials would threaten the         appropriate balance between prisoners’
safety of correctional staff and other             exercise of their constitutional rights and
inmates, and no ready alternative existed          the institutional needs of prison
that would accommodate Ramirez’s                   administrators, the Supreme Court held
asserted right at a de minimus cost to valid       that a prison regulation implicating an
penological interests.                             inmate’s constitutional rights must be
                                                   “reaso nably related to legitimate
        On appeal, Ramirez argues that the
                                                   penological interests” to be valid. Id. at
District Court erred in finding a rational
                                                   89. The Court developed a four-part test
connection between the ban on
                                                   for assessing the overall reasonableness of
pornography and rehabilitation in the
                                                   such a regulation. As a threshold inquiry,
absence of any factual record, and in
                                                   “there must be a ‘valid, rational
failing to engage in a “contextual, record-
                                                   connection’ between the prison regulation
sensitive analysis” before determining the
                                                   and the legitimate governmental interest
ban’s overall reasonableness under Turner.
                                                   put forward to justify it.” Id. (quoting
The District Court had jurisdiction under
                                                   Block v. Rutherford, 468 U.S. 576, 586
28 U.S.C. § 1331, and we exercise
                                                   (1984)). Courts must then determine
jurisdiction pursuant to 28 U.S.C. § 1291.
                                                   “whether there are alternative means of
We review de novo the District Court’s
                                                   exercising the right that remain open” to
decision to grant the government’s motion
                                                   p r i s o n e r s , a n d “ [ w h a t ] im p a c t
to dismiss. Pryor v. National Collegiate
                                                   a c c o mm odati o n o f t h e a s s e r t e d
Athletic Ass’n, 288 F.3d 548, 559 (3d Cir.
                                                   constitutional right will have on guards
2002).
                                                   and other inmates, and on the allocation of
                    II.                            prison resources generally.” Id. at 90.
                                                   Finally, a regulation’s reasonableness may
       In Turner v. Safley, the Supreme
                                                   be evidenced by “the absence of ready

                                               3
a l t er n a t iv e s ” t h a t w o u l d f u l l y       as tending generally to thwart the character
accommodate the constitutional right “at                  growth of its consumers,” and that, as a
de minimus cost to valid penological                      matter of common sense, “prisoners are
interests.”            Id. at 90-91.      These           more likely to develop the now-missing
requirements “serve as guides to a single                 self-control and respect for others if
reasonableness standard,” but the first                   prevented from poring over pictures that
“‘looms especially large’ because it ‘tends               a r e t h e m s e l v e s d e g ra d i n g a n d
to encompass the remaining factors, and                   disrespectful.” Id. at 199.
some of its criteria are apparently
                                                                  The Amatel court did not see the
necessary conditions.’” Waterman v.
                                                          need for an evidentiary record, holding
Farmer, 183 F.3d 208, 213-14 (3d Cir.
                                                          that its own common sense was sufficient
1999) (quoting Amatel v. Reno, 156 F.3d
                                                          to verify the rational connection between
192, 196 (D.C. Cir. 1998)).
                                                          the Ensign Amendment’s proscriptions and
        To date, the United States Court of               the asserted rehabilitative goal. Id. It did,
Appeals for the D.C. Circuit is the only                  however, cite a body of scholarly research
federal appellate court to have considered                to support the reasonableness of the
the merits of a First Amendment challenge                 proposition that pornography leads to male
to the Ensign Amendment and its                           objectification of women, and that certain
implementing regulation. In Amatel v.                     types of pornography can lead to male
Reno, 156 F.3d 192 (D.C. Cir. 1998), that                 aggression and desensitize viewers to
court rejected the challenge, finding the                 violence and rape. See id. at 199-200.
restriction on the distribution of sexually               The court determined that none of the
explicit material to be reasonably related to             three other Turner factors undermined the
the asserted penological interest of                      overall reasonableness of the Ensign
prisoner rehabilitation. See 156 F.3d at                  Amendment and its im plem enting
202-03.      After identifying prisoner                   regulation.
rehabilitation as the legitimate penological
                                                                 Our own court has considered the
interest advanced by the government, the
                                                          constitutionality of a restriction similar to
court defined that interest broadly. It
                                                          the Ensign Amendment, albeit in a
reasoned that the government’s power to
                                                          different context than the one here. In
inculcate values in contexts such as public
                                                          Waterman v. Farmer, 183 F.3d 208 (3d
education transferred readily to the context
                                                          Cir. 1999), we upheld a New Jersey statute
of prison administration, implicitly
                                                          that restricted prisoners’ access to
identifying the promotion of “respect for
                                                          pornographic materials at a facility for sex
authority and traditional values” as a
                                                          offenders who exhibited “repetitive and
legitimate rehabilitative purpose in and of
                                                          compulsive” behavior. After identifying
itself. Id. (internal citation omitted).
                                                          the legitimate penological interest at stake
Having done this, it found that “Congress
                                                          as the rehabilitation of the state’s “most
might well [have] perceive[d] pornography
                                                          dangerous and compulsive sex offenders,”

                                                      4
we evaluated the connection between the            approach in Waterman, and summarily
statute and that interest in light of an           concluded that the restriction was “neutral
evidentiary record that included two expert        and reasonable” under Turner. We found
affidavits from the facility itself. Those         the district court’s opinion deficient
experts testified that sex offenders’              because it never stated or described the
exposure to pornography would thwart               relevant peno logica l interest (the
specific rehabilitative strategies and             government had asserted three distinct
treatments administered by prison staff.           interests:     prison se curity, crime
Id. at 215-16. In reversing a district court       deterrence, and rehabilitation). Id. at 308.
that had found the prisoners’ experts              We also noted that while a court “need not
“more reasonable” than the government’s,           nece ssarily enga ge in a detailed
we cited Amatel for the basic proposition          discussion” of the connection between a
that “as long as [a] statute is rational, it       prison policy and that interest, a “brief,
clears [Turner]’s first hurdle.” Id. at 217.       conclusory statement” is insufficient for
At least within the specific context of the        evaluating the application of Turner’s first
rehabilitation of recidivist sex offenders,        prong. Id. Finally, we rejected the
we also approved the Amatel court’s use            government’s contention that such a
of common sense with regard to whether a           connection could always be found without
ban on pornography might encourage the             an evidentiary hearing:
development of self-control and respect
                                                          While the connection may be a
for others. See id. After examining the
                                                          matter of common sense in certain
other Turner factors, we upheld the New
                                                          instances, such that a ruling on this
Jersey statute as being reasonably related
                                                          issue based only on the pleadings
to the legitimate penological interest of
                                                          may be appropriate, there may be
sex-offender rehabilitation.
                                                          situations in which the connection
                    A.                                    is not so apparent and does require
                                                          s o me factu al dev elo p m e n t .
        We addressed whether the requisite
                                                          Whether the requisite connection
rational connection between a prison
                                                          may be found solely on the basis of
restriction and a legitimate penological
                                                          “common sense” will depend on
interest can be found on the basis of
                                                          the nature of the right, the nature of
“common sense” alone in Wolf v.
                                                          the interest asserted, the nature of
Ashcroft, 297 F.3d 305 (3d Cir. 2002). In
                                                          the proh ibition, and the
Wolf, we reversed a district court’s
                                                          obviousness of its connection to the
decision upholding a restriction on the
                                                          proferred interest. The showing
showing of R-rated and NC-17-rated
                                                          required will vary depending on
movies in federal prisons. The district
                                                          how close the court perceives the
court in that case found that no evidentiary
                                                          connection to be.
record was necessary because we had
endorsed Amatel’s “common sense”

                                               5
Id. at 308-09. On remand, we directed the            issue, and then give the parties the
district court to “describe the interest             opportunity to adduce evidence sufficient
served, consider whether the connection              to enable a determination as to whether the
between the policy and interest is obvious           connection between these goals and the
or attenuated--and, thus, to what extent             restriction is rational under Turner.
some foundation or evidentiary showing is
                                                             While the obvious end of
n e cessary--and, in light of this
                                                     rehabilitation is the prevention of further
determination, evaluate w hat th e
                                                     lawbreaking once offenders are released
government has offered.” Id. at 309.
                                                     from prison, the scope of the interest itself
        Turning to the appeal before us, we          has never been defined by the Supreme
find that the District Court erred in                Court. See Amatel, 156 F.3d at 209
evaluating the Ensign Amendment and its              (“Unlike its interest in institutional
implementing regulation under Turner’s               security, the contours of the government’s
first prong on a motion to dismiss, without          interest in rehabilitation are quite
any analysis or inquiry into the interests           amorphous and ill-defined.”) (Wald, J.,
involved and the connection between those            dissenting). Certainly falling within the
interests and the restriction at issue. First,       legitimate bounds of the interest are prison
although the District Court correctly                policies designed to target the specific
identified rehabilitation as a legitimate            behavioral patterns that led to a prisoner’s
penological interest, see O’Lone v. Estate           incarceration in the first place, or
of Shabazz, 482 U.S. 342, 348 (1987), it             behavioral patterns emerging during
did so without adequately describing the             incarceration that present a threat of
specific rehabilitative goal or goals                lawbreaking activity other than that for
furthered by the restriction on sexually             which the prisoner was confined. To say,
explicit materials. Second, even though              however, that rehabilitation legitimately
the connection between the amendment                 includes the promotion of “values,”
and the rehabilitation of federal sex                broadly defined, with no particularized
offend ers may be obvious under                      identification of an existing harm towards
Waterman, that connection becomes                    which the rehabilitative efforts are
attenuated upon consideration of the entire          addressed, would essentially be to
population of BOP inmates, such that a               acknowledge that pris oner s’ First
factual record becomes necessary for                 Amendment rights are subject to the
determining the rationality of the                   pleasure of their custodians. See, e.g., id.
amendment’s overall connection to                    at 210 (arguing that under such a broad
rehabilitative interests.      On remand,            definition of rehabilitation, lawmakers
therefore, the District Court must first             could constitutionally engage in viewpoint
identify with particularity the specific             discrimination by proscribing texts
rehabilitative goals advanced by the                 expressing disfavored positions) (Wald, J.,
government to justify the restriction at             dissenting). To the extent that the Amatel


                                                 6
majority defines rehabilitation in this way,       (“[Turner’s] reasonableness standard is not
we disagree with its reasoning. See id.,           toothless.”) (internal quotation omitted);
156 F.3d at 209 (“[T]o proceed on some             Amatel, 156 F.3d at 206, 211 (“[M]ore
vague assertion of an interest in                  precisely, [the standard] is not a license for
‘rehabilitation’ without the need to define        lawmakers, any more than prison wardens,
the term or to show a connection between           to shortchange the constitutional rights that
the proscribed activity and the chosen             the Supreme Court has insisted prisoners
definition . . . runs an overwhelming risk         continue to possess. . . . If rehabilitation is
of overregulation.”) (Wald, J., dissenting).       to be deemed a legitimate penological
While the actual right to view materials           interest, the term must be given some
subject to the Ensign Amendment’s                  shape, at least when it collides with
proscriptions might be significantly narrow        fundamental liberties.”) (W ald, J.,
in this case, courts may not abdicate their        dissenting). As a preliminary step in
responsibility to scrutinize carefully the         determining the extent to which evidence
government’s reasons for infringing that           is required under Wolf where the
right. 2 See Thornburgh, 490 U.S. at 414           penological interest advanced by the
                                                   government is rehabilitation, therefore, a
                                                   district court must describe with
   2                                               particularity the specific rehabilitative goal
     Inmates have no right to receive
                                                   or goals relied upon by the government to
materials that constitute obscenity.
                                                   justify the chall enged regulation.
Miller v. California, 413 U.S. 15, 23
                                                   See Wolf, 297 F.3d at 308 (rejecting
(1973) (“[O]bscene material is
                                                   “conclusory” statements that make it
unprotected under the First
                                                   difficult to determine what connection a
Amendment.”). However, materials that
                                                   court sees between the advanced
constitute indecent sexual expression not
                                                   penological interest and a prison
rising to the level of obscenity are
                                                   restriction).
constitutionally protected. Reno v.
American Civil Liberties Union, 521                       We may gather from the District
U.S. 844, 874-75 (1997). To the extent             Court’s reliance upon the scholarly works
that the Ensign Amendment and its                  discussed in Amatel that, at the very least,
implementing regulation target non-                it believed the government’s specific
obscene material, therefore, its                   rehabilitative goals to include the
proscriptions must satisfy the                     prevention of sex crimes and violence
requirements of Turner. In considering             against women. See Amatel, 156 F.3d at
the evidence on remand, the District
Court should be sensitive to arguments
that draw legitimate distinctions between          that the government had provided no
prohibited materials that are                      evidence that non-pornographic nudity
constitutionally protected. See, e.g.,             has any effect on long-term rehabilitative
Amatel, 156 F.3d at 207-08 (maintaining            interests) (Wald, J., dissenting).

                                               7
199-200. Were the Ensign Amendment’s                   convicted federal sex offenders. We
scope limited to federal prisoners who                 recognize that the government has wide
have committed sex crimes or violence                  l a t it u d e i n p u r s u i n g l e g i ti m a te
against women, the means-end connection                rehabilitative goals; courts may not
would be sufficiently obvious such that the            substitute their own judgment in place of
first prong of Turner could be resolved on             that of the legislative or executive
the basis of common sense. In Waterman,                branches where the position advanced by
we found the prohibition against sexually              the government is not “irrational or
explicit material to be clearly connected to           u n r e a s o n a b l e ” b u t s i m p l y “ l e ss
the rehabilitation of recidivist sex                   reasonable” than that of the prisoner-
offenders whose demonstrated inability to              plaintiffs. See Waterman, 183 F.3d at 216.
control their sexual impulses had led to               In the absence of a factual record,
their incarceration at the facility in                 however, we cannot ignore the possibility
question. See Waterman, 183 F.3d at 217                that the proscription rationally applies to
(noting that restrictions on pornography               such a small percentage of the BOP inmate
f o st e r t he “deferring of sexual                   population that its connection to the
gratification, [] sublimation of sexual                government’s rehabilitative interest “is so
impulses, [and] channeling of sexual                   remote as to render [it] arbitary or
expression into long-term relationship of              irrational.” Turner, 482 U.S. at 89-90;
caring and affection” related to the “now-             Waterman, 183 F.3d at 213 (holding that
missing self-control and respect for                   the Turner test subsumes traditional
others”) (quoting Amatel, 156 F.3d at                  overbreadth and vagueness analyses).
199). However, we do not find the                      Determining whether there is a rational
c o n n e c t io n b e t w e e n t h e E n sig n       link between sexually explicit material and
Amendment and the governmen t’s                        the harms toward which the government’s
rehabilitative interest to remain obvious              overall rehabilitative efforts are directed
upon consideration of the entire federal               requires more than a conclusory assertion
inmate population, including those                     that the “consumption of [sexually
prisoners not incarcerated for sex-related             explicit] publications [] imp licitly
crimes. In this case, therefore, we believe            elevate[s] the value of the viewer’s
Wolf necessitates the development of a                 immediate sexual gratification over the
factual record. See Wolf, 297 F.3d at 309              values of respect and consideration for
(requiring an evidentiary showing roughly              others” and a generalized statement that
corresponding to the degree to which the               sexual self-control is relevant to the
required means-end connection is                       rehabilitation of the entire class of federal
“attenuated”).                                         prisoners.3 Amatel, 156 F.3d at 199.
       By no means do we wish to suggest
that the only legitimate target of the
                                                          3
Ensign Amendment is the class of                           We further note that, “while a court
                                                       can bolster its finding of a connection by

                                                   8
                    B.                                     The third and fourth Turner factors
                                                   require consideration as to whether
        As to whether an evidentiary basis
                                                   accommodating the asserted right would
is required for the remaining three Turner
                                                   have an adverse impact “on guards and
prongs, we repeat our observation that “we
                                                   other inmates[] and on the allocation of
have historically viewed these inquiries as
                                                   prison resources,” as well as a
being fact-intensive . . . [requiring] ‘a
                                                   determination as to whether alternatives
contextual, record-sensitive analysis.’”
                                                   exist that can accommodate the right “at de
Wolf, 297 F.3d at 310 (quoting DeHart v.
                                                   minimus costs to valid penological
Horn, 227 F.3d 47, 59 n.8 (3d Cir. 2000)
                                                   interests.” Turner, 482 U.S. at 90-91. The
(en banc)). Where the link between the
                                                   District Court’s apparent factual
regulation at issue and the legitimate
                                                   conclusion that accommodation “would
government interest is sufficiently
                                                   increase the risks of sexual crimes and
obvious, no evidence may be necessary to
                                                   misconduct within the prison walls,” is
evaluate the other Turner prongs. See,
                                                   speculative and unsupported.            The
e.g., Waterman, 183 F.3d at 217; but see
                                                   existence of a possible “ripple effect” on
Wolf, 297 F.3d at 310 (observing that the
                                                   the rehabilitation of prisoners legitimately
first prong does not subsume the rest of the
                                                   targeted by the Ensign Amendment could
inquiry). In this case, however, we agree
                                                   reasonably be disputed; certainly relevant
with Ramirez that the third and fourth
                                                   to this inquiry is whether those prisoners
Turner factors cannot be adequately
                                                   are housed separately from inmates whose
assessed in the absence of an evidentiary
                                                   rehabilitation would not be affected. For
foundation.4
                                                   the same reason, it does not follow from


reference to decisions of other courts on
the same issue,” it must engage in at least        stake,” factual development does not
some independent analysis of whether               appear necessary because the relevant
the connection is rational. Wolf, 297              right “must be viewed sensibly and
F.3d at 309. We are unclear from its               expansively.” Waterman, 183 F.3d at
passing reference to “the scholarly                219 (quoting Thornburgh, 490 U.S. at
findings detailed in Amatel” whether the           417). In the context of a prison ban on
District Court actually examined and               certain publications, this criterion is met
considered the scholarship at issue, and           if the regulations “permit a broad range
therefore reject the argument that its             of publications to be sent, received, and
reliance on these findings was sufficient          read.” Thornburgh, 490 U.S. at 418.
for establishing the requisite rational            Concerns that such a ban is overbroad
connection.                                        because it does not further the
                                                   rehabilitation of particular classes of
   4
    With regard to the “availability of            prisoners are appropriately addressed to
alternate means of exercising the right at         Turner’s other three prongs.

                                               9
our decision in Waterman that limited              government interest of rehabilitation
distribution can never be conducted at             without an adequate factual basis for so
de minimus costs to valid penological              doing.5 Accordingly, we will reverse the
interests. See Waterman, 183 F.3d at 219           judgment of the District Court entered on
(finding the third and fourth Turner prongs        February 28, 2002 and remand with
satisfied because the facility in question         instructions to conduct an appropriate
was insufficiently staffed to conduct case-        proceeding before reevaluating the
by-case reviews and prisoners were “more           amendment and regulation under Turner.
than likely” to pass materials among one
another); cf. Amatel, 156 F.3d at 213
(arguing that a return to the case-by-case
review embodied in the previously BOP
regulation might not constitute an
additional administrative burden because
prison officials are required under the
Ensign Amendment to examine each                      5
                                                       We have not addressed the
publication and determine whether it is
                                                   government’s contention that the Ensign
“sexually explicit or features nudity”)
                                                   Amendment and its implementing
(Ward, J., dissenting). Contrary to the
                                                   regulation satisfy the Turner criteria
decision in Amatel, we believe this to be a
                                                   because they are reasonably related to the
case in which factual development is
                                                   legitimate penological interests of prison
necessary for evaluating the Ensign
                                                   security, deterrence, and punishment.
Amendmen t and its im plem enting
                                                   Although the District Court mentioned
regulation under Turner. See Wolf, 297
                                                   “institutional security” as an interest to
F.3d at 310 (“[C]ourts of appeals
                                                   which the ban on sexually explicit
ordinarily remand to the trial court where
                                                   materials was rationally connected and
the Turner factors cannot be assessed
                                                   stated that accommodating the right
because of an undeveloped record.”)
                                                   “would increase the risks of sexual
(citing Doe v. Delie, 257 F.3d 309, 317
                                                   crimes and misconduct,” its analysis
(3d Cir. 2001)).
                                                   focuses on the rehabilitative interest
                                                   discussed in Amatel and Waterman.
                                                   Cf. Mauro v. Arpaio, 188 F.3d 1054 (9th
                   III.
                                                   Cir. 1999) (finding a restriction on
                                                   inmates’ possession of sexually explicit
                                                   materials to be reasonably related to
      For the reasons discussed above, we
                                                   institutional security under Turner).
find that the District Court erred in
                                                   Therefore, whether other legitimate
determining that the Ensign Amendment
                                                   penological interests might justify the
and its implementing regulation were
                                                   Ensign Amendment’s proscriptions is not
reasonably related to the legitimate
                                                   properly before us.

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