                                                                                                                           Opinions of the United
2005 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


2-25-2005

Banks v. Beard
Precedential or Non-Precedential: Precedential

Docket No. 03-1245




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                                             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 District of Pennsylvania,
                                                    Appellant

                              v.

 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)


JERE KRAKOFF [Argued]
PA I.D. No. 13701

                              1
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
6th 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 inmates,
arguing that the policy violates the prisoners’ free speech rights
under the First Amendment.



                                2
      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 inmates1 which the DOC
views, because of their history of behavior in prison, as too
disruptive, violent or problematic to house elsewhere.2 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 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.

1
 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 disturbance(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 5 Housing Units Procedure Manual at 1-16.
                                  3
       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, one
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 cells
which can be exchanged on a one-for-one basis and are also
permitted five subscription magazines at any given time.3
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 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


3
    The photograph prohibition, however, remains unchanged.
                                  4
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 newspapers, 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 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 Turner factors weighed 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
impermissible 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
                                   5
behavior for promotion to Level 1 or by corresponding with family
and friends. 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. 4
Banks timely appealed the District Court’s grant of summary
judgment.

            II. 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).

                          III. 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 rights may in some cases be limited, and held that a
prison regulation that impinges on inmates’ constitutional rights “is




4
 Here, the DOC asserts the existence of the “ripple effect,” cited in
Turner, as a magnifier of cost in the prison environment. 482 U.S.
at 90.
                                  6
valid if it is 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
governmental interest put forward to justify it.” Turner, 482 U.S.
at 89 (quotations omitted). Second, the court must determine
“whether there 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.” Id. 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,6 the Court was not 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 Turner, 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

5
 Neither party contests that inmates have a First Amendment right
to receive magazines and newspapers through the mail. See Allen
v. Caughlin, 64 F.3d 77, 79 (2d Cir. 1995); Sizemore v. Williford,
829 F.2d 608, 610 (7th 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.
                                7
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 rights that a prisoner retains.” Fortner
v. Thomas, 983 F.2d 1024, 1029 (11th 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 particular
behaviors for which prisoners were incarcerated, or those that arose
and presented security risks during incarceration.7 Id.

      The District Court essentially determined that (1)
withholding privileges to get compliance is a sensible policy, and


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.
                                  8
(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 (8th Cir. 1985); Daigre v. M aggio, 719 F.2d 1310,
1313 (5th 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
v. 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 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 rights 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 place for

                                 9
“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 indefinitely. 8 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
agreed that limiting access to such material was a sensible
rehabilitation strategy. 183 F.3d at 215. In Guajardo, the
defendants offered evidence as to the frequency and percentage of


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.
                                  10
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 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 goings-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.9 It certainly seems relevant




9
 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 (9th Cir. 2001)
(citing studies and articles noting the “correlation between reading,
writing and inmate rehabilitation”).
                                  11
to the above inquiry, as well as likely, that the ban may produce
less rather than more compliance in at least some inmates.10

              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 (“cellblock 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 what materials they




10
  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 Turner
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.
                                    12
were set and fueled.11 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 items, 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 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


11
  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)
                                  13
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.12 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.

       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.13 It is important to note here that the

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)
13
  See Spellman, 95 F. Supp. 2d at 1278; Jackson v. Elrod, 671 F.
Supp. 1508, 1511 (N.D. Ill. 1987) aff’d, 881 F.2d 441 (7th 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
                                 14
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 legal or
religious periodicals or texts, would meaningfully improve prison
security by forbidding him one copy of the Graterfriends prison
newsletter.14

       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


governmental interest”); Mann v. Smith, 796 F.2d 79, 82-83 (5th
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 (7th 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 quite suitable for fire starting . . .;
yet no one suggests that cells ought to be stripped of bedding,
clothing, toilet paper, writing materials, and so on.”).
14
  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.
                                15
and have been used to fuel fires, hide contraband, fling feces and
create weapons. (App. 112)

       C.     Factor two: Means for exercising the burdened right

       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. Horn, 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 given greater weight in
the Turner balancing process. Id.15

       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 good
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.”




15
 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.
                                 16
       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, 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 right 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 these 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 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

                                 17
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 must determine
whether the right 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
(9th 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.16 The Court determined that the third prong
weighed in 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.”

16
  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).” Fraise, 283 F.3d
at 509.
                                  18
        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.17 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
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 Graterfriends 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 District Court’s assumption that prisoners would be
more reluctant to use religious 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

17
 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.
                               19
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 periodical of their choosing.
Again, the District Court found that such an accommodation would
intensify security concerns by increasing the amount of inmate
movement and thereby placing a formidable burden on LTSU
staff.18 Inmates are already permitted to leave 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. Superintendent
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 periodicals 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 “ripple 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

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 that
the third Turner 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 Turner 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.
                                  20
other prisoners alike.” Abbott, 490 U.S. at 418 (quoting Turner,
482 U.S. at 92).

        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 periodicals
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 receive 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 District 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 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, last-
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

                                 21
correctional officials. Because I believe that the majority has
misapplied Turner, I must respectfully dissent.

       Under Turner, prison regulations that restrict constitutional
rights must be sustained if they are “reasonably related to
legitimate penological interests.” 482 U.S. at 89. Turner 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 right that
remain open to prison inmates”; (3) “the impact accommodation of
the asserted constitutional right 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. I agree with the District
Court that this factor weighs 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” 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.

       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,
                                 22
768 F.2d 287, 290 (8 th Cir. 1985); Daigre v. M aggio, 719 F.2d
1310, 1313 (5 th 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 majority’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 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 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 imperilled 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 majority’s conclusion that the
regulations are facially unconstitutional. The regulations impinge
upon the right 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
                                  23
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.

       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 Turner factors, I
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.




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