Josselyn v. Dennehy , 333 F. App'x 581 ( 2009 )

Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1095
DAVID A. JOSSELYN, ET AL.,
Plaintiffs, Appellants,
______________________
WILLIAM M. TYREE, ET AL.,
Plaintiffs,
v.
KATHLEEN DENNEHY, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
Before
Lynch, Chief Judge,
Torruella and Boudin, Circuit Judges.
David A. Josselyn with Prince Moses, Kevin King, Gary Emerson,
Jeffrey Doucette, Henry LaPlante, Jose Sime, Christopher Wolinski,
Nicholas R. Boccio, James Ware, and Kevin Galford on brief pro se.
Kevin A. Anahory, Legal Division, Department of Correction,
and Nancy Ankers White, Special Assistant Attorney General, on
brief for appellees.
June 9, 2009
Per Curiam. Eleven pro se inmates appeal from the
district court's rejection of their challenge to a state regulation
banning inmates' receipt of publications that are "sexually
explicit" or feature "nudity," 103 C.M.R. § 481.15(3)(b), and to a
policy banning the display of those publications or other "semi-
nude, scantily clad, and/or sexually suggestive material" in
inmates' cells, 103 DOC 400.03(2)(c)(1) & (2). For the reasons
given by the district court, Moses v. Dennehy, 523 F. Supp. 2d 57(D. Mass. 2007), supplemented by the discussion below, we affirm
the district court's grant of summary judgment to the defendants.
A. Facial First Amendment Challenge to Inmate-Mail Regulation
In rejecting the plaintiffs' facial First Amendment
challenge to the inmate-mail regulation, the district court
correctly applied the four-part test set forth in Turner v. Safley,
482 U.S. 78 (1987). See Beard v. Banks, 548 U.S. 521, 528-29
(2006) (plurality opinion); Thornburgh v. Abbott, 490 U.S. 401,
413-19 (1989). The plaintiffs agree that the Turner standard
applies but challenge the district court's determination that the
inmate-mail regulation survives scrutiny under that standard. None
of the plaintiffs' objections to the district court's Turner
analysis is availing.
As to the first Turner factor--whether the regulation is
rationally related to a legitimate governmental interest, Turner,
482 U.S. at 89--the plaintiffs do not dispute that prison security
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is a legitimate governmental interest, nor could they. See
Thornburgh, 490 U.S. at 415 (finding legitimacy of that interest to
be "beyond question"). Rather, they fault the district court for
deferring to former Commissioner Bender's view, "[b]ased on [his]
experience and professional judgment, [that] the allowance of
publications into correctional institutions which contain sexually
explicit material or feature nudity is . . . detrimental to . . .
the safety and the security of the institution."
That argument fails. "[T]he judiciary[, which] is 'ill
equipped' to deal with the difficult and delicate problems of
prison management," id. at 407-08, "must accord substantial
deference to the professional judgment of prison administrators,
who bear a significant responsibility for defining the legitimate
goals of a corrections system and for determining the most
appropriate means to accomplish them," Overton v. Bazzetta, 539
U.S. 126, 132 (2003); see also Beard, 548 U.S. at 535, particularly
with respect to matters affecting prison security, Beard, 548 U.S.
at 536; Poirier v. Mass. Dep't of Correction, 558 F.3d 92, 96 (1st
Cir. 2009). Here, deference to the Commissioner's views was
particularly appropriate because those views were based on his long
and varied experience as a corrections official and buttressed by
concrete examples of how restricting prisoners' receipt of sexually
explicit materials is related to prison safety and security. Thus,
the district court appropriately relied on the Commissioner's
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affidavit to establish the requisite rational connection between
the legitimate government interests articulated there and the
chosen means of furthering them. Beard, 548 U.S. at 541-42.
The plaintiffs' contentions that the defendants were
required to provide direct evidence of the incidents cited in the
Commissioner's affidavit and to prove that the incidents were
actually caused by inmates' exposure to sexually explicit material
inverts the proper burden of proof. "The burden . . . is not on
the State to prove the validity of prison regulations but on the
prisoner to disprove it." Overton, 536 U.S. at 132. Those
arguments also reflect a misunderstanding of the nature of the
inquiry. Determining whether a challenged regulation is rationally
related to a legitimate governmental interest does not require
making factual findings that the regulation will, in fact, serve
its intended purpose. Turner, 482 U.S. at 93 n.*.
Here, the plaintiffs attempted to meet their burden by
submitting affidavits and exhibits purportedly demonstrating the
irrationality of the regulation or the existence of disputed facts,
as was their prerogative under Rule 56(e) of the Federal Rules of
Civil Procedure. See Beard, 548 U.S. at 534. Although, with
respect to issues of fact, the district court was required to "draw
'all justifiable inferences' in [the plaintiffs'] 'favor,'" id. at
529 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255
(1986)), no such requirement applies to matters of professional
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judgment. Id. at 530. In such matters, the district court was
required to "accord deference to the views of prison authorities,"
id., not to the plaintiffs' views as to whether the regulation
serves its stated purposes. To the extent that the plaintiffs'
submissions focused on the effect of the regulation on their
rights, those submissions were irrelevant to the first Turner
factor, the regulation's rational connection to a legitimate
purpose. "'Rational basis review does not permit consideration of
the strength of the individual's interest or the extent of the
intrusion on that interest caused by the [regulation]; the focus is
entirely on the rationality of the state's reason for enacting the
[regulation].'" Poirier, 558 F.3d at 96 (quoting Cook v. Gates,
528 F.3d 42, 55 (1st Cir.), petition for cert. filed, 77 U.S.L.W.
3400 (U.S. Dec. 23, 2008)).
Thus, the district court correctly concluded that the
crucial first Turner factor weighs in the defendants' favor.
Moses, 523 F. Supp. 2d at 62. The remaining factors serve only as
further checks on the regulation's reasonableness. Beard, 548 U.S.
at 523.
As to the second Turner factor--whether there are
"alternative means of exercising the right that remain open to
prison inmates," Turner, 482 U.S. at 90--the plaintiffs argue that
they do not have alternative means of receiving sexually explicit
materials. That argument defines the "right" in question too
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narrowly. Thornburgh, 490 U.S. at 417 (requiring that "'the right'
in question be viewed sensibly and expansively"). Where, as here,
"the [inmate-mail] regulation permit[s] a broad range of
publications to be sent, received, and read, th[e] [second Turner]
factor is clearly satisfied." Id. at 418. Moreover, even if no
alternative means of receiving publications existed, that "would
not be conclusive . . . [but] would [only] be some evidence that
the regulation[] w[as] unreasonable." Overton, 539 U.S. at 135.
As to the third Turner factor--"the impact [that]
accommodation of the asserted constitutional right w[ould] have on
guards and other inmates, and on the allocation of prison resources
generally," Turner, 482 U.S. at 78--the plaintiffs rely on extra-
record material attached to their appellate brief to argue that
allowing unrestricted access to sexually explicit publications
would have no adverse impact. Assuming that we may consider the
cited materials as evidence of "legislative," as opposed to
"adjudicative," facts, see Daggett v. Comm'n on Governmental Ethics
and Election Practices, 172 F.3d 104, 112 (1st Cir. 1999), we
nevertheless give greater weight to "'the informed discretion of
corrections officials,'" Thornburgh, 490 U.S. at 418 (quoting
Turner, 490 U.S. at 90), who are most familiar with the
difficulties of managing their own institutions, than to the more
general views expressed in the cited materials as to other means of
addressing sexual violence in prison.
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As to the fourth and final Turner factor--"the absence of
ready alternatives," Turner, 482 U.S. at 90--the plaintiffs do not
argue for the alternative considered and rejected by the
defendants, i.e., allowing receipt of sexually explicit materials
on a case-by-case basis. Instead, they argue that allowing inmates
to receive all publications as long as they are not "obscene" as
defined by state law is a readily available alternative. But, as
discussed above, that alternative would have more than a de minimus
adverse effect on legitimate penological interests and therefore is
neither an "obvious" nor an "easy" alternative solution,
Thornburgh, 490 U.S. at 418, to the problems that the regulation
was intended to address. Therefore, the district court correctly
concluded that plaintiffs had not met their burden of satisfying
the "high standard" for demonstrating the existence of a "ready
alternative." Overton, 539 U.S. at 136.
B. As-Applied Challenge to the Inmate-Mail Regulation
The plaintiffs make two arguments with respect to the
district court's upholding of the inmate-mail regulation as
applied. First, they challenge the exclusion of portions of a
National Geographic article as being unrelated to the governmental
interest in rehabilitation. However, without copies of the
excluded material or even specific descriptions of it, it was
impossible for the district court (and is equally impossible for
this court) to determine whether the regulation is invalid as
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applied to that material. To the extent that plaintiffs argue that
the National Geographic materials fell within the regulation's
exception for "material illustrative of . . . anthropological
content," 103 C.M.R. § 481.15((3)(d), that is a state-law issue,
which the district court appropriately declined to address once it
disposed of plaintiffs' federal claims. Cao v. Puerto Rico, 525
F.3d 112, 116 (1st Cir. 2008).1
The second issue raised under the as-applied rubric is
that the regulation is not applied even-handedly. As evidence, the
plaintiffs point to a memorandum indicating that at another
institution inmates are permitted to receive material containing
pictures of exposed buttocks, while at Cedar Junction, where most
of the plaintiffs are incarcerated, they are not. The short answer
to that argument is that the two institutions may not be similarly
situated. There is therefore nothing arbitrary or capricious about
applying the regulation more strictly at Cedar Junction than at the
other institution. As the Supreme Court stated in upholding a
similar regulation against a similar challenge, "The exercise of
discretion called for by th[is] regulation may produce seeming
1
Another state-law issue that plaintiffs advert to is whether
some of the publications on the "prohibited publications list" in
fact contain "nudity" or "sexually explicit" material within the
meaning of the regulation. Although the district court's method of
making that finding--i.e., taking "judicial notice" that many of
the listed publications "invariably contain" such material, Moses,
523 F. Supp. 2d at 64--is dubious, the correctness of its finding
on that state-law issue is not before us.
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'inconsistencies,' but what may appear to be inconsistent results
are not necessarily signs of arbitrariness or irrationality[,]
[g]iven the likely variability . . . between institutions . . . ."
Thornburgh, 490 U.S. at 417 n.15; see also Savard v. Rhode Island,
338 F.3d 23, 30-31 (1st Cir. 2003).
C. Other Constitutional Challenges to the Inmate-Mail Regulation
The plaintiffs correctly point out that the district
court failed to address the other constitutional challenges to
the inmate-mail regulation that were added by their amended
complaint, all of which stem from the purported inconsistency
between the regulation and the state obscenity statute. However,
those challenges are not developed in the plaintiffs' brief,
which merely alludes to the arguments made in their summary
judgment memorandum. Consequently, those challenges are
forfeited. R.I. Dep't of Envtl. Mgmt. v. United States, 304 F.3d
31, 47 (1st Cir. 2002).
D. Challenges to the Cell-Decoration Policy
As the plaintiffs also point out, the district court
did not expressly rule on the constitutionality of the cell-
decoration policy. Rather, it conflated that policy with the
inmate-mail regulation, which it described as banning the receipt
(as opposed to merely the display) of semi-nude and scantily clad
images, Moses, 523 F. Supp. 2d at 58, 64, and then proceeded to
uphold the constitutionality of that ban on its face, id. at 63,
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and as applied, id. at 63-65. However, the absence of a separate
ruling on the constitutionality of the cell-decoration policy is
not fatal, since much of the district court's analysis of the
Turner factors is equally applicable to the cell-decoration
policy, and we review the district court's grant of summary
judgment de novo, In re Citigroup, Inc., 535 F.3d 45, 50 (1st
Cir. 2008), and are free to affirm it on any grounds apparent
from the record, Mulloy v. Acushnet Co., 460 F.3d 141, 145 (1st
Cir. 2006).
To the extent that the plaintiffs challenge the policy
on its face as violating the First Amendment, that challenge
fails. "'In a facial attack . . ., it is plaintiff[s'] burden to
show that the [policy] has no constitutional application.'" Del
Gallo v. Parent, 557 F.3d 58, 68 (1st Cir. 2009) (quoting Naser
Jewelers, Inc. v. City of Concord, 513 F.3d 27, 33 (2008)).
"'The fact that [it] might operate unconstitutionally under some
conceivable set of circumstances is insufficient to render it
wholly invalid.'" Dutil v. Murphy, 550 F.3d 154, 160 (1st Cir.
2008), cert. denied, 77 U.S.L.W. 3595 (U.S. Apr. 27, 2009). As
recognized by Massachusetts courts in upholding a predecessor of
the cell-decoration policy challenged here, the policy is
reasonably related to legitimate governmental interests including
prison security, Collins v. Mass. Dep't of Correction, No. 95-
0153, 1995 WL 542517 (Mass. Super. Sept. 7, 1995) (unpublished);
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Perito v. Duval, No. 91-2387 (Mass. Super. Feb. 25, 1992)
(unpublished) (Red Br. Add. at 48-50), aff'd, 34 Mass. App. Ct.
1114 (1993) (table), and therefore is susceptible of
constitutional application. Although those nonprecedential
decisions are not binding on this court, their reasoning is
persuasive and consistent with the Turner factors. The fact that
the policy might be applied to prohibit the display of relatively
innocuous pictures, such as a family outing at the beach, does
not render the regulation invalid on its face. Dutil, 550 F.3d
at 160.
In one conclusory sentence, plaintiffs also challenge
the policy as impermissibly vague. As a threshold matter, it
is doubtful that the plaintiffs here have standing to raise a
vagueness challenge since the only picture in the record whose
display was allegedly prohibited by the cell-decoration
policy--a photograph of a woman wearing lacy underwear and a
garterbelt and posing with her thighs spread apart--clearly
falls within the terms "scantily clad," "semi-nude," or
"sexually suggestive." Whiting v. Town of Westerly, 942 F.2d
18, 22 (1st Cir. 1991) (holding that "a plaintiff who engages
in conduct that is clearly proscribed by the [challenged
provision] cannot complain that the [provision] is vague on its
face nor challenge the vagueness of the law as applied to the
conduct of others"). Even if such standing exists, those terms
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are not so subjective or indeterminate that an "ordinary person
exercising ordinary common sense" would be unable to understand
and comply with them. Welch v. United States, 750 F.2d 1101,
1112 (1st Cir. 1985). Consequently, the plaintiffs' vagueness
challenge to the cell-decoration policy also fails.
Accordingly, the district court's judgment is
affirmed.
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