Gawlik v. Semple ( 2020 )

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APPENDIX
JAN GAWLIK v. SCOTT SEMPLE ET AL.*
Superior Court, Judicial District of New Haven
File No. CV-XX-XXXXXXX-S
Memorandum filed September 4, 2018
Proceedings
Memorandum of decision in action alleging violation
of plaintiff’s rights to religious freedom. Judgment for
the defendants.
Jan Gawlik, self-represented, the plaintiff.
Steven R. Strom, assistant attorney general, for the
defendants.
Opinion
ECKER, J. This is an action for declaratory and
injunctive relief brought by an inmate at the Cheshire
Correctional Institution (Cheshire) against various
prison officials and staff. The plaintiff, Jan Gawlik,
claims that the defendants have violated his constitu-
tional and statutory rights to religious freedom by refus-
ing to deliver incoming mail containing blank religious
‘‘prayer cards’’ and matching envelopes, used religious
books, and religious newspapers sent from a source
other than the publisher. He seeks a declaratory judg-
ment holding that his religious rights have been violated
by the defendants’ practices and policies governing
delivery of these items, and an injunction requiring the
Commissioner of Correction to delete those portions
of the Department of Correction (department) adminis-
trative directives that prohibit the delivery of such
items. He also seeks a judicial declaration that the
administrative directives at issue were promulgated ille-
gally because the department adopted them without
complying with the procedural requirements of the Uni-
form Administrative Procedure Act (UAPA), General
Statutes § 4-166 et seq.
A bench trial was held before the undersigned judge
on January 25, 2017, January 31, 2017, and March 22,
2017. Extensive posttrial briefs were submitted by the
parties.1 For the reasons that follow, judgment is
entered in favor of the defendants.
I
FINDING OF FACTS
The plaintiff, Jan Gawlik, is serving a sixty year sen-
tence for murder. He is incarcerated at the Cheshire
Correctional Institution, which houses approximately
1300 inmates. Gawlik describes himself as a devout
Catholic. His family is from Poland. He speaks Polish
and was raised as a ‘‘Polish Catholic.’’ Gawlik has
decided that he wants to become a Catholic priest and
is engaged in a self directed course of study toward
that end.2 He also takes part in many religious practices
and activities at Cheshire. He participates in daily mass
services and also attends a collective weekly mass on
Wednesdays. On Mondays, he attends a weekly Bible
study class run by volunteers from the Legion of Mary.
He attends a weekly confirmation class conducted by
one of the prison chaplains, Deacon Robles. Gawlik
also reads religious texts and books about religion; he
has access to many religious books, including various
Bibles and other texts, and keeps approximately fifteen
(15) different religion related books in his cell. He also
donates money from his prison account to outside reli-
gious organizations that aid poor, hungry, homeless,
and/or disabled individuals.
The plaintiff’s present lawsuit complains that his reli-
by department employees at Cheshire as a result of
their refusal to deliver certain types of incoming mail
to him. Four types of incoming mail are at issue. The
first is used books. Three used books ordered by the
plaintiff were rejected by department staff: (1) a used
copy of the 1983 Code of Canon Law, promulgated by
Pope John Paul II; (2) a book entitled The Book of
Angels; and (3) a book entitled International Eucharistic
Congress Pictorial Album.3 See Plaintiff’s Exhibits 22,
33, 36, 37, 38, 56, 56-A. All three books were purchased
by the plaintiff from a company called Preserving Chris-
tian Publications, Inc. See Plaintiff’s Exhibit 35 (com-
pany catalogue, August-September, 2016). All three
books are religious in nature.
Upon delivery to the mail room at Cheshire, the books
were rejected by department personnel under the
authority of either or both of two provisions of depart-
ment administrative directive 10.7 (‘‘Inmate Communi-
cations’’). The first directive, administrative directive
10.7 (4) (G) (1) (‘‘Review, Inspection and Rejection’’),
includes the following general authorization to reject
mail after the mandated inspection: ‘‘All incoming gen-
eral correspondence may be rejected if such review
discloses correspondence or material(s) which would
reasonably jeopardize legitimate penological interests,
including, but not limited to . . . (a) [preventing] the
transport of contraband in or out of the facility . . . .’’
The second directive, administrative directive 10.7 (4)
(N) (‘‘Incoming Publications and Educational Materi-
als’’), states in relevant part: ‘‘An inmate may order
books in new condition only from a publisher, book
club, or book store.’’4 (Emphasis added.) The depart-
ment’s underlying security concerns are discussed [in
part II A of this opinion].
The second type of rejected material consists of
newspapers mailed to Gawlik from outside sources
other than the publisher. The newspapers included The
Catholic Transcript, which is a publication of the Arch-
diocese of Hartford, Narod Polski, a bilingual publica-
tion of the Polish Roman Catholic Union of America,
and various Polish language newspaper editions pub-
lished by the New Britain Herald. See Plaintiff’s Exhibit
6. The newspapers evidently were forwarded to the
plaintiff by someone associated with Sts. Cyril and
Methodius Church in Hartford and perhaps other
sources; they were not mailed to the plaintiff directly
from the publisher or a commercial vendor.5 Depart-
ment staff explained to the plaintiff at the time that the
newspapers were rejected by department personnel on
the ground that ‘‘magazines and newspapers [are]
allowed only by subscription or if mailed directly from
the bookstore/bookseller/vendor.’’ Plaintiff’s Exhibit 47
(rejection form, dated January 6, 2017).
The third type of rejected materials consists of large
quantities of ‘‘blank’’ religious ‘‘prayer cards’’ and
matching envelopes sent to the plaintiff, free of charge,
as a gesture of gratitude, by the churches, missions,
and other religious organizations to which he has made
monetary donations. Apparently, it is not unusual for
these organizations to respond to a donation by sending
a note of thanks, accompanied by a set of blank greeting
cards of the type sold in stationery stores and gift shops.
The cards typically are embossed with religious icons,
symbols, prayers, biblical quotations, and the like.
Matching envelopes are included. The idea is that the
donor can use the cards to communicate religious mes-
sages to friends and loved ones on holidays and other
occasions. The plaintiff wanted to use the cards for that
purpose because he liked their religious messages, in
contrast to what he called the ‘‘pagan’’ or ‘‘nonreligious’’
cards available from the prison commissary. Compare
Plaintiff’s Exhibit 4 (examples of ‘‘religious’’ prayer
cards), with Plaintiff’s Exhibit 5 (examples of ‘‘nonrelig-
ious’’ holiday cards). A combination of considerations
under administrative directives 10.7 and 10.8 formed
the basis of the department’s rejection of these cards
and envelopes. See [part II A of this opinion].
The fourth type of rejected mail includes religious
and nonreligious greeting cards or homemade cards
(relatively few in number) containing glitter, crayon,
lipstick, or similar decorative materials. Some of these
were holiday cards for Christmas or Easter sent by
correspondents in Poland; one rejected item was a dec-
orative drawing made by the plaintiff’s goddaughter.
These cards and other items were rejected by depart-
ment staff, under the authority of administrative direc-
tive 10.7, based on concerns that illegal drugs, including
a substance known as ‘‘suboxone,’’ have been found in
similar decorative features of incoming correspondence
sent to other prison inmates, both at Cheshire and else-
where. The department has no means by which to con-
duct drug testing on each piece of incoming mail with
these decorative features. See [part II A of this opinion].
Before commencing the present lawsuit, the plaintiff
filed numerous administrative grievances and appeals
concerning the staff’s refusal to deliver the used books,
blank prayer cards and envelopes.6 Administrative
directive 9.6 sets forth procedures governing inmate
requests for administrative relief from adverse deci-
sions regarding various conditions of confinement,
including everything from allegations of improper disci-
plinary action to the unjustified rejection of incoming
mail. See Administrative Directive 9.6 (4) (A) through
(M). The department’s administrative review process
varies somewhat depending on the subject matter at
issue but, in general, begins with an attempt at informal
resolution, moves to a procedure involving a formal
written grievance by the inmate, and then provides for
one or more sequential levels of review ascending the
administrative hierarchy.
The principal target of the plaintiff’s complaints was
the defendant Simone Wislocki, a department employee
who works as a ‘‘mail handler’’ at Cheshire. Mail han-
dlers are responsible for reviewing and inspecting
incoming mail to determine whether the incoming item
will be delivered to the addressee inmate under applica-
ble department policy, including administrative direc-
tive 10.7 (4) (G) (‘‘Incoming General Correspondence’’)
and administrative directive 10.7 (4) (N) (‘‘Incoming
Publications and Educational Materials’’). The record
reflects that Wislocki rejected the plaintiff’s incoming
mail containing blank prayer cards and envelopes on
many occasions in 2015 and 2016. The plaintiff was
made aware of the rejections when he received a depart-
ment form entitled ‘‘Returned Letter or Funds Notifica-
tion,’’ which was completed by Wislocki in connection
with some (but not all) of the rejected cards and enve-
lopes. The three used books were rejected in 2016 and
early 2017. The newspapers were rejected in early 2017.
Of the plaintiff’s numerous administrative grievances
and appeals relating to these rejections of incoming
mail, some complaints focused on substantive issues
involving the alleged violation of his religious freedom
under federal and state law. See, e.g., Plaintiff’s Exhibits
16, 17, 28, 36, 43, 45, 46, 46A, 48, 48-A. Other complaints
were procedural in nature, and claimed, for example,
that Wislocki was rejecting prayer cards without provid-
ing the plaintiff with notice of rejection required by
administrative directives 10.7 (4) (G) (2) or 10.7 (4) (N)
(3); see, e.g., Plaintiff’s Exhibits 21A, 21B, 23-25, 29;
or that the rejection/administrative review process in
some other respect had not been conducted in accor-
dance with applicable department policy. See, e.g.,
Plaintiff’s Exhibits 37, 41, 56, 56-A. It does not appear
that any of these administrative grievances or appeals
was successful.
The record is replete with evidence that the plaintiff
pursued certain avenues of administrative recourse, by
filing grievances and appeals from denied grievances
in connection with the mail handler’s rejections of the
used books, prayer cards/envelopes, and newspapers.
The record is equally clear, however, that the plaintiff
did not pursue other available means for obtaining
relief.7 Thus, with respect to prayer cards, for example,
administrative directive 10.8 (5) (I) provides expressly
that inmates may seek permission from the director
of programs or treatment or that person’s designee to
purchase religious articles not available through the
prison commissary.8 Testimony at trial established that
this recourse was available to the plaintiff but was not
used by him as a way to obtain prayer cards or other
items that he considered religiously appropriate. Like-
wise, evidence at trial established that the department
allows inmates to obtain permission from designated
department personnel to engage in ‘‘individual religious
practices,’’ which is defined [to] include, without limita-
tion, ‘‘access to religious publications.’’ Administrative
Directive 10.8 (5) (D). The procedure for obtaining per-
mission under administrative directive 10.8 (5) (D)
requires the inmate to submit a request to the correc-
tional facility’s director of religious services (Father
Bruno, during the time in question at Cheshire), who
is required to ‘‘consider whether there is a body of
literature stating principles that support the practices
and whether the practices are recognized by a group
of persons who share common ethical, moral or intellec-
tual views.’’ Id. For security reasons, the directive also
requires approval by the department’s deputy commis-
sioner of operations.9 Again, the trial record shows that
the plaintiff made no effort to obtain the desired items
under administrative directive 10.8 (5) (D). Nor did he
purchase a subscription to any of the newspapers that
he wished to receive, despite having ample personal
funds to do so. See Administrative Directive 10.7 (4)
(N) (procedure for ordering subscriptions).
The court has paused to highlight the plaintiff’s failure
to pursue alternative means of redress because this
evidence, though not essential to the judgment, rein-
forces the court’s conclusion (based in large part on
his own statements at trial) that the plaintiff was more
interested in battling with the department over abstract
principles than actually obtaining possession of the reli-
gious materials at issue. Rather than purchasing a news-
paper subscription, or buying new religious books (pre-
sumably available in many thousands of titles through
nationwide vendors),10 or working through proper chan-
nels at Cheshire pursuant to administrative directive
10.8 to obtain a workable, pragmatic solution providing
him access to the sought-after religious materials with-
out creating a risk to prison security, the plaintiff
viewed the situation as a personal battle between him-
self and a ‘‘malicious’’ mail handler (Wislocki), and he
became fixated on vindicating his absolutist and incor-
rect view of his legal ‘‘rights.’’11 It is clear from the
plaintiff’s administrative grievances and the testimony
at trial that the plaintiff considered the rejections as
part of a campaign waged by Wislocki against him per-
sonally, and believed that Wislocki was acting out of a
combination of religious animus and personal antipa-
thy.12 See, e.g., Plaintiff’s Exhibit 16 (containing various
administrative filings by plaintiff accusing Wislocki of
‘‘superseding’’ order to deliver ‘‘religious media mail,’’
accusing Wislocki of engaging in deliberate actions to
purposely cause harm to plaintiff as a ‘‘malicious puni-
tive measure,’’ and ‘‘knowingly’’ violating his religious
freedom); Plaintiff’s Exhibit 24 (grievance accusing
Wislocki of implementing ‘‘punitive measures’’ against
plaintiff by rejecting mail); Plaintiff’s Exhibit 45 (stating
that Wislocki’s disposition reflects ‘‘deliberate indiffer-
ence’’ to his grievances); Plaintiff’s Exhibit 46 (accusing
mail room staff of ‘‘fabrication’’ and allowing ‘‘ego and
pride’’ to impair its performance); Plaintiff’s Exhibit
58 (accusing Wislocki of ‘‘lying’’ with respect to basis
for rejection).
The plaintiff filed this lawsuit in mid-2016. He seeks
injunctive and declaratory relief of two kinds. First, he
requests a judicial decree requiring the defendants to
deliver to himself (and all other inmates) all ‘‘religious
and nonreligious cards with factory glitter . . . all art-
work, letters, sketches, drawings, anything artistic . . .
any form of communication from adults and/or chil-
dren, written or colored or drawn in colored pencil(s),
crayons, markers, letters sent with a lipstick kiss . . .
used books, donated books, used donation[s] from
prison ministries, churches, envelopes with and without
postage, newspapers donated from churches, prayer,
photo books . . . flyers, bookmarks, pamphlets, and
any or all donations . . . .’’ See Plaintiff’s Posttrial
Brief, dated May 22, 2017, at 53; see also Plaintiff’s
‘‘Injunction,’’ dated January 31, 2017 (seeking perma-
nent injunction prohibiting department from rejecting
plaintiff’s ‘‘religious media mail, religious correspon-
dence, all prayer cards, religious blank envelopes, reli-
gious pamphlets, religious literature, religious books,
used and new, from publisher(s), bookstore(s), book
clubs, libraries, religious stationery, religious note-
book(s), religious posters, bookmark(s), religious Cath-
olic denominational materials in all forms of correspon-
dence from churches, missions, orphanages,
organizations, etc., incoming and outgoing, ordered/
sent to the plaintiff’’).
Second, the plaintiff seeks a declaratory judgment
determining that the department’s administrative direc-
tives applicable to inmate property (administrative
directive 9.6), inmate correspondence (administrative
directive 10.7) and religious services (administrative
directive 10.8) are invalid because they were not prom-
ulgated as ‘‘regulations’’ pursuant to the UAPA. See,
e.g., Plaintiff’s ‘‘Declaratory Judgment,’’ dated February
27, 2017.
As noted, a bench trial before the undersigned was
held over the course of three days. The plaintiff person-
ally appeared and represented himself in a capable and
organized manner. He submitted voluminous exhibits,
which were admitted into evidence without objection.
In addition to his own testimony, the plaintiff called
numerous department employees as witnesses, includ-
ing the defendant Wislocki (the Cheshire mail handler);
Selena Rios, department district administrator; Angel
Quiros, department director of security; Christine Whid-
den; Captain Robert Hartnett; and Deputy Warden Rich-
ard LaFarge. These witnesses were cross-examined by
the plaintiff on a range of subjects relating to depart-
ment policies and practices concerning incoming mail
and related security issues, media review procedures
for rejected books, administrative review of grievances,
and religious services available to inmates.
The court finds that there is no credible evidence
whatsoever to support the plaintiff’s claim of discrimi-
natory treatment based on religion. The rejected
items—books, newspapers, blank cards and envelopes,
decorated cards and artwork from relatives, etc.—were
disallowed based on content neutral considerations of
safety and security in a prison setting. After hearing all
of the testimony and viewing all of the exhibits, the
court is convinced that the items would have received
identical treatment had their content related to the New
York Yankees, the native birds of Indonesia, or any
other subject, religious or nonreligious. This finding
does not end the case in all respects, but it is important
to highlight this particular finding at the outset.
II
LEGAL ANALYSIS
A
Plaintiff’s First Amendment Claims
The plaintiff’s first amendment claims13 cover rela-
tively well-worn ground. It is clear that a person’s con-
stitutionally protected speech and religious rights are
not forfeited upon criminal incarceration. See, e.g., Bell
v. Wolfish, 441 U.S. 520, 545, 99 S. Ct. 1861, 60 L. Ed.
2d 447 (1979) (‘‘our cases have held that sentenced
prisoners enjoy freedom of speech and religion under
the [f]irst and [f]ourteenth [a]mendments’’). It is equally
clear, however, that these rights are subject to signifi-
cant curtailment in the prison setting. Id. (‘‘But our
cases also have insisted on a second proposition: simply
because prison inmates retain certain constitutional
rights does not mean that these rights are not subject
to restrictions and limitations. ‘Lawful incarceration
brings about the necessary withdrawal or limitation of
many privileges and rights, a retraction justified by the
considerations underlying our penal system.’ ’’ (quoting
Price v. Johnston, 334 U.S. 266, 285, 68 S. Ct. 1049, 92
L. Ed. 1356 (1948)). These general principles are firmly
established. See, e.g., Beard v. Banks, 548 U.S. 521,
528–29, 126 S. Ct. 2572, 165 L. Ed. 2d 697 (2006) (plural-
ity opinion); Shaw v. Murphy, 532 U.S. 223, 229, 121 S.
Ct. 1475, 149 L. Ed. 2d 420 (2001); Thornburgh v. Abbott,
490 U.S. 401, 409, 109 S. Ct. 1874, 104 L. Ed. 2d 459
(1989); O’Lone v. Estate of Shabazz, 482 U.S. 342, 348,
107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987); Turner v. Safley,
482 U.S. 78, 84–85, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987).
The following analysis will focus on the plaintiff’s
first amendment free exercise claims because those are
the focus of his case. The same legal standard, taken
from Turner v. Safley, supra, 482 U.S. 78, also applies
to his first amendment free speech claims, with the
same results. See, e.g., Thornburgh v. Abbott, supra,
490 U.S. 414 (holding that Turner analysis applies to
inmates’ free speech claims relating to publications sent
into prison). The applicable legal analysis under Turner
considers four factors:14 ‘‘[I]n Turner [v. Safley, supra,
78], we adopted a unitary, deferential standard for
reviewing prisoners’ constitutional claims: [W]hen a
prison regulation impinges on inmates’ constitutional
rights, the regulation is valid if it is reasonably related
to legitimate penological interests. [Id., 89]. Under this
standard, four factors are relevant. First and foremost,
there must be a valid, rational connection between the
prison regulation and the legitimate [and neutral] gov-
ernmental interest put forward to justify it. [Id.] . . . If
the connection between the regulation and the asserted
goal is arbitrary or irrational, then the regulation fails,
irrespective of whether the other factors tilt in its favor.
[Id., 89–90]. In addition, courts should consider three
other factors: the existence of alternative means of
exercising the right available to inmates; the impact
accommodation of the asserted constitutional right will
have on guards and other inmates, and on the allocation
of prison resources generally; and the absence of ready
alternatives available to the prison for achieving the
governmental objectives. [Id., 90].’’ (Citation omitted;
internal quotation marks omitted.) Shaw v. Murphy,
supra, 532 U.S. 229–30; see, e.g., Mikell v. Folino, 722
Fed. Appx. 304, 308 (3d Cir. 2018) (applying Turner
test to prisoner’s religious freedom claims involving
dietary restrictions); Keys v. Torres, 737 Fed. Appx.
717, 719 (5th Cir. 2018) (applying Turner test to prison-
er’s first amendment challenge to prison mail regulation
prohibiting delivery of certain publications); Davis v.
Heyns, No. 17-1268, 2017 WL 8231366, *4 (6th Cir. Octo-
ber 16, 2017) (applying Turner test to prisoner’s reli-
gious freedom claims involving dietary restrictions).
The legal standard adopted in Turner reflects a policy
of substantial deference to the judgment and expertise
of prison officials with respect to issues of prison secu-
rity. See, e.g., Thornburgh v. Abbott, supra, 490 U.S.
407–408 (due to ‘‘the expertise of these [prison] officials
and the [recognition that the] judiciary is ill equipped
to deal with the difficult and delicate problems of prison
management, this [c]ourt has afforded considerable def-
erence to the determinations of prison administrators
who, in the interest of security, regulate the relations
between prisoners and the outside world’’ (internal quo-
tation marks omitted)). The court in Turner itself
explained the underlying policy considerations: ‘‘In our
view, such a standard is necessary if prison [administra-
tors . . . and] not the courts, [are] to make the difficult
judgments concerning institutional operations.’’ (Inter-
nal quotation marks omitted.) Turner v. Safley, supra,
482 U.S. 89. ‘‘Subjecting the day-to-day judgments of
prison officials to an inflexible strict scrutiny analysis
would seriously hamper their ability to anticipate secu-
rity problems and to adopt innovative solutions to the
intractable problems of prison administration. The rule
would also distort the [decision-making] process, for
every administrative judgment would be subject to the
possibility that some court somewhere would conclude
that it had a less restrictive way of solving the problem
at hand. Courts inevitably would become the primary
arbiters of what constitutes the best solution to every
administrative problem, thereby unnecessarily perpetu-
at[ing] the involvement of the federal courts in affairs
of prison administration.’’ (Internal quotation marks
omitted.) Id.
The plaintiff has failed to meet his burden under the
applicable legal standard.15 His claim relating to the
used books will be taken up first. Prison authorities
based their refusal to deliver the three used books prin-
cipally on the mandate contained in administrative
directive 10.7 (4) (N), which states in relevant part: ‘‘An
inmate may order books in new condition only from a
publisher, book club, or book store. . . .’’ The directive
contains two significant restrictions on an inmate’s abil-
ity to obtain books from outside of the correctional
facility: first, the book must be new, and second, the
seller must be either the publisher, a book club or a
bookstore. At trial, the court heard credible testimony
from numerous department witnesses about the legiti-
mate security concerns underlying administrative direc-
tive 10.7 (4) (N). Books in general are a particularly
effective means for outsiders to pass contraband into
prison.16 It is difficult for prison staff to detect hidden
items such as drugs, weapons, or secret messages
(plans of illegal activity), which can easily be secreted
in book bindings, between interior pages, or in other
overlooked crevices or crannies. A thorough search
for such contraband would require prison personnel to
inspect every page of every book sent from any source
to every prisoner, an untenable task. The purpose of
administrative directive 10.7 (4) (N) is to restrict the
flow of such contraband by limiting incoming books to
new books sent directly by a publisher or other reputa-
ble source. Limiting sources to specified commercial
enterprises (publishers, bookstores and book clubs)
minimizes the risk that an inmate or outsider can
arrange with a friend or family member for delivery of
banned material. It also makes sense that new books
are far easier to inspect for contraband than used books.
By limiting permissible incoming items to new books
only, sent by specified commercial sources only, the
department directive makes it less likely that books
will serve as a conduit for contraband into prison.
Substantial case law applying Turner v. Safley, supra,
482 U.S. 78, upholds the constitutionality of similar
prison rules prohibiting used books or otherwise
restricting the source or physical characteristics of
books sent to inmates. See Minton v. Childers, 113
F. Supp. 3d 796, 802–803 (D. Md. 2015) (‘‘The [c]ourt
concludes that the [prison’s] directive banning incom-
ing used books not sent directly by the publisher is not
unconstitutional. . . . The ban is expressly aimed at
advancing jail security and protecting the safety of jail
personnel and other inmates and is logically connected
to those goals.’’); Phipps v. Vail, No. C11-5093-BHS-
JRC, 2012 WL 472894, *5–6 (W.D. Wn. January 9, 2012);
id., *6 (rejecting inmate’s first amendment challenge to
correctional facility’s decision to refuse delivery of two
used books based on valid concern that ‘‘the chance of
the book being altered or tampered with increases when
the book is used [rather than new]’’); see also Bell v.
Wolfish, supra, 441 U.S. 550–51 (holding that first
amendment is not violated by prison regulation prohib-
iting inmates from receiving books that were not
directly mailed from publisher, book club or book-
store); Azukas v. Arnone, No. 3:14-cv-721 (RNC), 2017
WL 1282196, *2–3 (D. Conn. March 31, 2017) (rejecting
inmate’s first amendment challenge to Connecticut cor-
rectional facility’s decision to refuse delivery of two
books based on quantity limitation provision contained
in administrative directive 10.7); Walker v. Calderon,
No. C95-2770 FMS, 1997 WL 703774, *3 (N.D. Cal. Octo-
ber 31, 1997) (‘‘[a]pplying the Turner analysis to the
ban on the receipt of books mailed by correspondents
other than approved or verified vendors, the [c]ourt
finds first that the regulation is rationally connected to
the prison’s concerns about contraband being smuggled
into the prison in book packages to which third parties
have had physical access’’).
The first Turner factor, then, is easily satisfied here.
There clearly is a valid, rational connection between
the general prohibition on used books contained in
administrative directive 10.7 (4) (N) and a legitimate
governmental objective in prison security.
Turner also instructs courts to examine three addi-
tional factors: the existence of ‘‘alternative means of
exercising the right’’; ‘‘the impact accommodation of
the asserted constitutional right will have on guards and
other inmates, and on the allocation of prison resources
generally’’; and ‘‘the absence of ready alternatives’’
available to the prison for achieving the governmental
alternatives. Turner v. Safley, supra, 482 U.S. 90. These
considerations also favor the defendants’ position on
this record.
The plaintiff has at least two alternative means of
exercising the right to religious freedom at issue. First,
there is an administrative procedure available to the
plaintiff by which he can request religious books that
are unavailable. As explained, administrative directive
10.8 (5) (D) provides a mechanism by which inmates
may obtain permission to engage in ‘‘individual religious
practices,’’ which includes ‘‘access to religious publica-
tions’’ not otherwise available in the prison library or
through the usual means under administrative directive
10.7 (4) (N) (purchase of new books). The procedure
requires approval by the director of religious services
and the deputy commissioner of operations. The evi-
dence at trial established that the plaintiff never pur-
sued this option. See [part I of this opinion]. Second,
the plaintiff has virtually unrestricted access to new
books. See, e.g., Minton v. Childers, supra, 113 F. Supp.
3d 803 (‘‘[plaintiff] was allowed to receive new books
sent directly from the publisher’’). No showing has been
made that the plaintiff is unable to obtain new books
containing essentially the same or equivalent material
as that contained in the three ‘‘out of print’’ books made
unavailable to him under administrative directive 10.7
(4) (N). The court does not find, on this record, that
any of these books contain information that is unique,
unusual or particularly distinctive in form, expression
or substance.
The third Turner factor asks what impact accommo-
dation of the asserted right will have on prison staff,
other inmates, and the allocation of prison resources
generally. There are approximately 1300 inmates
housed at Cheshire alone. Every day, eight to fourteen
bins of incoming mail addressed to inmates are deliv-
ered for distribution at Cheshire, and, because contra-
band cannot be found unless it is seen or felt, every
single item (except legal mail) must be visually and
‘‘tactilely’’ inspected by a department mail handler
before it is delivered to an inmate. The mail handler
must search for contraband of all types, including seem-
ingly innocuous items that can be used for improper
or illegal purposes. The task is made more difficult due
to the fact that some prohibited items are easily hidden
or camouflaged. Certain drugs such as ‘‘suboxone’’ can
be easily hidden or absorbed in paper strips or other
unobtrusive materials ‘‘laced’’ with the illegal sub-
stance, for example. This has occurred many times at
department facilities in connection with incoming
mail items.
Under these circumstances, and in light of the grave
dangers that can arise when incoming contraband
escapes detection, it is reasonable for the department
to draw the line where it does, by distinguishing
between new and used books as an efficient and sensi-
ble means to deploy its limited resources for the pur-
pose of safeguarding the prison population while still
allowing its residents robust, expansive access to pub-
lished books. A new book mailed directly from the
vendor presumably can be delivered to an inmate after
a relatively quick, cursory inspection. Inspection of a
used book, by contrast, would require a mail handler to
engage in a time-consuming examination of the binding,
cover, interior markings (for improper messages), and
even individual pages (to ensure that the paper has
not been glued together or ‘‘laced’’ with suboxone).
Anything less than a painstaking, resource intensive
inspection of used books would place at risk the safety
and security of prison guards and other inmates alike.
This third Turner factor therefore also weighs in favor
of upholding the prison policy. See, e.g., Phipps v.
Phelps, supra, 2012 WL 472894, *6 (‘‘[a] much more
costly search process would have to be implemented
[if used books were allowed]’’).
Fourth and finally, there is no reason for the court
to believe that the policy with respect to used books
is an unreasonable, ‘‘exaggerated response to prison
concerns.’’ (Internal quotation marks omitted.) Turner
v. Safley, supra, 482 U.S. 90. The plaintiff has failed to
identify any ‘‘alternative that fully accommodates the
prisoner’s rights at de minimis cost to valid penological
interests . . . .’’ Id., 91.
The plaintiff’s constitutional free exercise claims
regarding an asserted right to receive blank prayer
cards/envelopes and nonsubscription newspapers fails
for much the same reasons. Judge Christopher F. Dro-
ney addressed and rejected a similar claim in the case
of Sadler v. Lantz, Civil No. 3-07-cv-1316 (CFD), 2011
WL 4561189 (D. Conn. September 30, 2011). Sadler
apparently was brought as a free speech rather than a
free exercise claim, but the same four factor Turner
analysis was employed to adjudicate whether the
inmate had a first amendment right to receive a blank
greeting card and envelope from outside sources. This
court finds Judge Droney’s analysis persuasive. Sadler
explains that the department’s policy prohibiting incom-
ing mail containing blank cards and unused envelopes
in that case rested on the same basic, underlying set
of directives relied on by the defendants in the present
case: ‘‘[Department] [a]dministrative [d]irective 6.10
. . . which was in effect at the time of the rejection of
the [rejected blank] card, provided that an inmate may
possess only that property authorized for retention
upon admission to the facility, issued while in custody,
purchased in the facility commissary, or approved at
the facility in accordance with this [a]dministrative
[d]irective. [Id., 6.10 (1)]. Contraband is defined as any-
thing not authorized to be in an inmate’s [possession
. . . . Id., 6.10 (3) (B)]. The main purpose of [a]dminis-
trative [directive] 6.10 (1) is to minimize the opportunity
for contraband to be sent to inmates from individuals
outside of prison. In addition, the directive serves to
minimize the time spent by correctional staff in search-
ing correspondence.’’ (Internal quotation marks omit-
ted.) Sadler v. Lantz, supra, 2011 WL 4561189, *3.
Administrative directive 10.7, which was also in effect
at the time of the rejection of the items mailed to the
plaintiff, provided: ‘‘All incoming general correspon-
dence shall be opened and inspected for contraband
and money . . . . All incoming general correspon-
dence may be rejected if such review discloses corre-
spondence or material(s) which would reasonably jeop-
ardize legitimate penological interests, including, but
not limited to, material[s] which contain or [are believed
to contain] or concern: (a) the transport of contraband
in or out of the facility . . . . Incoming general corre-
spondence containing any of the foregoing may be
restricted, confiscated, returned to the sender, retained
for further investigation, referred for disciplinary pro-
ceedings or forwarded to law enforcement officials. [Id.,
10.7 (4) (F) (1)].’’ (Internal quotation marks omitted.)
Sadler v. Lantz, supra, 2011 WL 4561189, *3. These
directives provided the basis for the department’s prohi-
bition of blank greeting cards. Id.17 In addition, adminis-
trative directive 10.7 (4) (G) (1) (h) expressly prohibits
inmates from receiving incoming mail containing ‘‘enve-
lopes with or without postage stamps.’’18
These policies are content neutral and plainly bear a
rational connection to the safety and security concerns
identified by the department’s witnesses, particularly
Wislocki, Quiros, Whidden and LaFarge. As in Sadler,
this court heard credible testimony about the real, non-
fanciful risk that outsiders will attempt to convey drugs
(such as suboxone) to inmates by ‘‘lacing’’ the decora-
tions or adhesives contained on cards or stationery with
the illegal substance.19 See Sadler v. Lantz, supra, 2011
WL 4561189, *2. Witnesses, including District Adminis-
trator Quiros and Director Whidden, also testified credi-
bly that careful control over the incoming supply of
blank cards and envelopes in prison is considered nec-
essary due to safety and security risks associated with
barter and trade among inmates. See also id., *6 (‘‘per-
mitting unsigned greeting cards to be mailed to inmates
would also increase the likelihood of inmate barter or
trade, gambling and thefts and inmate argument and
fighting, with the potential for injuries to both correc-
tional staff and inmates’’). The large volume of cards
sent to the plaintiff in the present case, and the resulting
resource imbalance relative to other inmates, could
only have increased the potential for such problems
here.
The other three Turner factors also weigh in favor
of the constitutionality of the prohibition on incoming
mail containing blank cards/envelopes. Cards, enve-
lopes and blank paper are all available to inmates
through the prison commissary. If the plaintiff does not
like the preprinted messages contained on the stock
greeting cards and wishes to communicate a different,
more pious or serious religious message, he can use
stationery to draw or write his own prayers or religious
messages on his own cards. There is no reason to
believe that such custom-made cards would encounter
any official censorship or curtailment. (Again, the
restrictions confronted by the plaintiff have nothing to
do with the religious content of the incoming cards.
Alternatively, if the plaintiff prefers commercially
printed religious cards over the homemade variety but
cannot find sufficiently solemn cards at the commis-
sary, he can request individualized approval from the
director of religious services to purchase otherwise
unavailable religious cards, pursuant to administrative
directive 10.8 (5) (I). See [part I of this opinion].
The court also finds that there is no evidence indicat-
ing that it would be practicable for the department to
take reasonable steps to accommodate the asserted
right to blank prayer cards while still safeguarding
prison security. There are no practical, cost-effective
means for individually testing or inspecting the cards
and envelopes for drugs like suboxone. Nor have the
defendants suggested how the prison authorities might
mitigate the dangers arising from the underground
economy that inevitably would accompany the
unrestricted incoming flow of blank cards/envelopes to
inmates. The department policy barring these items
does not violate the plaintiff’s constitutional right to
free exercise of religion. See Sadler v. Lantz, supra,
2011 WL 4561189, *7; Spruytte v. Feighner, Docket No.
93-2009, 1994 WL 32669, *1 (6th Cir. February 4, 1994)
(‘‘Michigan Department of Corrections Policy Directive
PD-BCF-63.03 requires prisoners to purchase items only
from authorized vendors. [The plaintiff’s] parents, who
are not authorized vendors, sent him the greeting card
in the mail. The defendants’ refusal to allow [the plain-
tiff] to receive the card did not infringe upon [his] consti-
tutional rights.’’); Avery v. Powell, 806 F. Supp. 7, 10–11
(D.N.H. 1992) (upholding constitutionality of prison pol-
icy prohibiting inmates from obtaining blank greeting
cards except from authorized vendors).
The court reaches the same conclusion with respect
to the department’s ban on newspapers or magazines
sent from sources other than the publisher. For much
the same reason that incoming mail containing books
must be mailed to inmates from presumptively legiti-
mate commercial sources (publisher, book club or
bookstore), it makes sense that the department has
seen fit to impose similar restrictions on newspapers
and magazines. See, e.g., Ward v. Washtenaw County
Sheriff’s Dept., 881 F.2d 325, 328–30 (6th Cir. 1989)
(upholding constitutionality of prison’s ‘‘publisher-
only’’ restriction on magazines); Hurd v. Williams, 755
F.2d 306, 307–308 (3d Cir. 1985) (upholding constitu-
tionality of prison’s ‘‘publisher-only’’ restriction on
newspapers and periodicals); Kines v. Day, 754 F.2d 28
(1st Cir. 1985) (upholding constitutionality of prison’s
‘‘publisher-only’’ restriction on hardcover, softcover,
and newspaper publications); cf. Minton v. Childers,
supra, 113 F. Supp. 3d 803 (‘‘[t]he [c]ourt concludes
that the [prison] directive banning incoming used books
not sent directly by the publisher is not unconstitutional
[under Turner]’’); Walker v. Calderon, supra, 1997 WL
703774, *3 (‘‘[a]pplying the Turner analysis to the ban
on the receipt of books mailed by correspondents other
than approved or verified vendors, the [c]ourt finds
first that the regulation is rationally connected to the
prison’s concerns about contraband being smuggled
into the prison in book packages to which third parties
have had physical access’’).
Newspapers and magazines, unlike books, usually
do not have bindings, but they do contain voluminous
densely printed pages, and this physical characteristic
justifies the source restriction imposed by the depart-
ment. See Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir.
1995) (observing that ‘‘bulk’’ of newspaper makes it
difficult to inspect for prohibited content and contra-
band in prison setting).20 The plaintiff does not claim
that he is unable to order a subscription to The Catholic
Transcript or any of the other religious (or nonreligious)
newspapers he wishes to read. The publications are
readily available to him. His claim is solely based on
the notion that he should be able to receive these publi-
cations from sources other than the publisher. On this
evidentiary record, the claim is not viable under Turner.
There is no need to repeat the entire analysis again.
See [part II A of this opinion].
To summarize, the plaintiff has failed to carry his
burden to establish any violation of his first amendment
rights. The challenged department policies, on this
record, pass constitutional muster under the Turner
analysis.
B
Due Process and Equal Protection
The plaintiff’s substantive due process claim rests
on his assertion that he has been ‘‘deprive[d]’’ of his
Catholic religious faith by the department as a result
of its refusal to deliver the used books to study for the
priesthood and the prayer cards containing statements
of faith central to his religious beliefs. See, e.g., Plain-
tiff’s Response to Defendants’ Posttrial Briefs and
Facts, dated June 23, 2017, at 29. He argues that the
department’s practices are ‘‘sadistic and evil,’’ and says
that the department is operating a ‘‘concentration camp
that has no respect for human rights, dignity, respect
for any human life.’’ Id. The plaintiff’s substantive due
process claim fails for two reasons. First, the Supreme
Court has instructed that ‘‘[w]here a particular [a]mend-
ment provides an explicit textual source of constitu-
tional protection against a particular sort of government
behavior, that [a]mendment, not the more generalized
notion of substantive due process, must be the guide
for analyzing these claims.’’ (Internal quotation marks
omitted.) County of Sacramento v. Lewis, 523 U.S. 833,
842, 118 S. Ct. 1708, 140 L. Ed. 2d 1043 (1998); see also
Southerland v. City of New York, 680 F.3d 127, 142–43
(2d Cir. 2012), cert. denied, 568 U.S. 1150, 133 S. Ct.
980, 184 L. Ed. 2d 773 (2013). The plaintiff’s claims in
this case are fundamentally grounded in rights defined
by the first amendment. His claims based on religious
freedom and freedom of speech therefore should not be
reevaluated under substantive due process principles.
Second, even if (or to the extent that) the plaintiff’s
allegations warrant independent consideration as sub-
stantive due process claims, no violation has occurred
on these facts. A person’s substantive due process right
under the fourteenth amendment is violated when the
government’s conduct ‘‘shocks the conscience.’’ See,
e.g., Velez v. Levy, 401 F.3d 75, 93 (2d Cir. 2005) (sub-
stantive due process is violated by governmental con-
duct that ‘‘is so egregious, so outrageous, that it may
fairly be said to shock the contemporary conscience,’’
quoting County of Sacramento v. Lewis, supra, 523 U.S.
848 n.8 (internal quotation marks omitted)). Although
no objective measure has been developed to identify
such a violation with scientific precision, it is under-
stood that ‘‘malicious and sadistic’’ abuses of power by
government officials, intended to ‘‘oppress or to cause
injury,’’ and designed for no legitimate government pur-
pose, ‘‘unquestionably shock the conscience.’’ (Internal
quotation marks omitted.) Velez v. Levy, supra, 94. The
doctrine is designed to protect the individual ‘‘against
. . . the exercise of power without any reasonable
justification in the service of a legitimate governmental
objective . . . .’’ (Citation omitted.) County of Sacra-
mento v. Lewis, supra, 846.
The record is devoid of any evidence supporting the
plaintiff’s substantive due process claim. In prison, he
remains free to pray and believe as he wishes, attend
religious services, abide by religious dietary rules, pur-
chase religious texts (liturgical, theological, legal, his-
torical, and otherwise), and read those texts, virtually
to his heart’s content. The sole limitation is that the
purchased books must be available from a commercial
seller in new condition. This restriction does not shock
the court’s conscience. To the contrary, it appears to
be, at most, a relatively insignificant constraint. The
plaintiff is fortunate to have the financial resources to
purchase new books, religious and nonreligious alike,
from any publisher or bookstore that sells books to the
public. He clearly has the intelligence and practical
ability to arrange for such purchases, and has done so
during his incarceration. Or he can ask friends and
family to place the order for him. He also can subscribe
to religious newspapers and have them sent by the
publisher to his prison address. Or, again, he can have
friends and family make those arrangements for him.
He can purchase greeting cards from the commissary
or request permission from the religious director to buy
more religiously minded cards from other sources, or
he can make his own customized prayer cards using
materials available to him for correspondence with the
outside world.
The court does not wish to trivialize the plaintiff’s
feeling, expressed so intensively in his briefs and other
submissions, that he is subject to severe restrictions
on his liberty while incarcerated. He must appreciate,
however, that loss of liberty is largely the point of incar-
ceration as a criminal sanction. In his case, that period
of confinement is extremely lengthy, and it seems likely
that he must confront, on a daily basis, the harsh and
painful reality that he will spend most or all of his
remaining life behind bars, under near constant surveil-
lance and subject to the strict control of prison rules
enforced by prison guards. The company he keeps,
moreover, consists of other inmates similarly situated
in many respects. At times, the plaintiff undoubtedly
must feel very lonely, indeed. He also must live with
the heavy burden of his particular crime, the killing of
his father. This combination of factors may explain, at
least in part, his (re)turn to religion.
Gawlik cannot be blamed for feeling frustrated and
even dehumanized by his circumstances, and it would
not be surprising if these circumstances have made him
peculiarly sensitive to the sting of certain restrictions,
as applied to him. His inability to order a used book
on a particular subject, for example, may be highly
cathected in a way that fuels his sense of outrage. Per-
haps not. But whatever the reason, it is clear that the
plaintiff’s own personal sense of right and wrong seems
genuinely shocked by the deprivation of which he com-
plains. His feelings are not shared by the judicial con-
science charged with safeguarding substantive due pro-
cess, certainly not on this record.
For the reasons addressed in the preceding para-
graph, Gawlik can be forgiven for the inapt and wildly
inaccurate comparison contained in his brief, quoted
above, in which he likens his conditions to those in a
‘‘concentration camp.’’ He should be reminded that he
sits in prison, not because of his religion, ethnicity or
race, but because he killed a man. Out of respect for
the historical record, and in recognition of his own
personal role in creating his current state of deprivation,
it seems fair to ask him to acknowledge the fundamental
differences between his present circumstances and
those existing at the ‘‘concentration camps’’ to which
he refers.
The plaintiff’s procedural due process claim focuses
on two alleged deficiencies in the department’s treat-
ment of his mail.21 The first relates to the alleged failure
of department staff, on occasion, to follow the depart-
ment’s own written rules requiring staff to notify the
plaintiff that his incoming mail had been rejected. See
Administrative Directive 10.7 (4) (G) (2). The second
involves allegations that the Cheshire staff violated
applicable procedures by rejecting the used books sent
to the plaintiff without complying with the ‘‘media
review procedures’’ set forth in administrative directive
10.7 (4) (G). Neither of these constitutional claims
has merit.
A procedural due process claim must be based on
the deprivation of a constitutionally protected liberty
or property interest. See, e.g., Kentucky Dept. of Correc-
tions v. Thompson, 490 U.S. 454, 460, 109 S. Ct. 1904,
104 L. Ed. 2d 506 (1989) (‘‘The types of interests that
constitute liberty and property for [f]ourteenth
[a]mendment purposes are not unlimited; the interest
must rise to more than an abstract need or desire . . .
and must be based on more than a unilateral hope
. . . . Rather, an individual claiming a protected inter-
est must have a legitimate claim of entitlement to it.
Protected liberty interests may arise from two
sources—the [d]ue [p]rocess [c]lause itself and the laws
of the [s]tates.’’ (Citations omitted; internal quotation
marks omitted.)). Numerous doctrinal principles have
been developed over the years to guide the analysis of
procedural due process claims arising in the prison
context. The oft-repeated starting point is the observa-
tion that ‘‘[although] prisoners do not shed all constitu-
tional rights at the prison gate . . . [l]awful incarcera-
tion brings about the necessary withdrawal or limitation
of many privileges and rights, a retraction justified by
the considerations underlying our penal system.’’ (Cita-
tion omitted; internal quotation marks omitted.) Sandin
v. Conner, 515 U.S. 472, 485, 115 S. Ct. 2293, 132 L. Ed.
2d 418 (1995). Under Sandin, which involved claims
relating to prison disciplinary proceedings, the court
held that inmates are not entitled to procedural due
process protections unless the disciplinary measure
imposes an ‘‘atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison
life.’’ (Emphasis added.) Id., 484. This standard has been
applied to a wide variety of due process claims made
by prisoners since Sandin was decided in 1995. See,
e.g., Proctor v. LeClaire, 846 F.3d 597, 608 (2d Cir. 2017)
(reciting district judge’s unchallenged conclusion that
confinement of prisoner in segregated housing for more
than [one] decade gave rise to cognizable liberty interest
under Sandin); Graziani v. Murphy, No. 3:11-CV-1615
(RNC), 2012 WL 2785907, *3 (D. Conn. July 5, 2012)
(holding under Sandin that complaint failed to state
procedural due process claim arising from suspension
of plaintiff’s eligibility for contact visits in prison).
Sandin also makes it clear that the due process
clause does not constitutionalize all ostensibly ‘‘manda-
tory’’ internal rules and directives governing prison life.
See Sandin v. Conner, supra, 515 U.S. 483–84 (expressly
rejecting idea that constitutionally protected liberty
interest in prison context is created by mandatory lan-
guage in prison regulations). This holding is consistent
with the well settled view that a procedural due process
violation is not triggered merely upon a showing, with-
out more, that prison officials have failed to abide by
the correctional system’s own written grievance proce-
dures: ‘‘Courts of appeal have held that inmates do
not have a constitutionally protected liberty interest in
having prison officials comply with institutional griev-
ance procedures. See, e.g., Grieveson v. Anderson, 538
F.3d 763, 772 (7th Cir. 2008); Thomas v. Warner, 237
Fed. Appx. 435, 437–38 (11th Cir. 2007); Rhoades v.
Adams, 194 Fed. Appx. 93, 95 (3d Cir. 2006); Geiger v.
Jowers, 404 F.3d 371, 373–74 (5th Cir. 2005); Ramirez
v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) [cert. denied
sub nom. McEnroe v. Ramirez, 541 U.S. 1063, 124 S.
Ct. 2388, 158 L. Ed. 2d 963 (2004)]; Buckley v. Barlow,
997 F.2d 494, 495 (8th Cir. 1993) (per curiam). Thus, to
the extent that the complaint may be construed to assert
a due process claim regarding any institutional griev-
ances, the complaint fails to state a cognizable claim.’’
Gaskin v. Albreski, No. 3:11-cv-834 AWT, 2012 WL
827073, *2 (D. Conn. March 8, 2012); accord, e.g., Fer-
nandez v. Armstrong, No. 3:02-CV-2252 (CFD), 2005
WL 733664, *9 (D. Conn. March 30, 2005) (holding that
failure of department staff to abide by grievance proce-
dures set forth in administrative directive 9.6, standing
alone, did not state cognizable claim under federal law).
The defendants argue that the plaintiff’s procedural
due process claims in the present case are foreclosed
by Sandin because the limitations imposed on the plain-
tiff’s access to reading materials and incoming mail fall
far short of the type of ‘‘atypical and significant hardship
on the inmate in relation to the ordinary incidents of
prison life’’ necessary to trigger due process protec-
tions. Sandin v. Conner, supra, 515 U.S. 484.22 The court
agrees that the plaintiff’s procedural due process claims
fail under the Sandin standard.
Less certain, however, is that the Sandin standard
encompasses the entire due process analysis applicable
to claims implicating first amendment rights, as the
plaintiff’s claims do. The question arises because the
Supreme Court previously has held that the censorship
of inmate mail by prison authorities must be accompa-
nied by certain basic due process protections. See Pro-
cunier v. Martinez, 416 U.S. 396, 418–19, 94 S. Ct. 1800,
40 L. Ed. 2d 224 (1974) (‘‘The District Court [held that
due process] required that an inmate be notified of the
rejection of a letter written by or addressed to him,
that the author of that letter be given a reasonable
opportunity to protest that decision, and that com-
plaints be referred to a prison official other than the
person who originally disapproved the correspondence.
These requirements do not appear to be unduly burden-
some, nor do appellants so contend.’’). Although the
first amendment analysis adopted in Procunier has
since been abandoned in part; see Thornburgh v.
Abbott, supra, 490 U.S. 413–14 (overruling Procunier’s
first amendment analysis as it relates to incoming mail
but not outgoing mail); at least some courts have held
that the due process component of Procunier remains
good law, such that inmate mail cannot be censored
without notice to the inmate and a right to appeal the
rejection to a prison official other than the original
decision maker. See, e.g., Krug v. Lutz, 329 F.3d 692,
697 (9th Cir. 2003); Witherow v. Crawford, 468 F. Supp.
2d 1253, 1271 (D. Nev. 2006).
There is no need here to definitively resolve this legal
question.23 Even assuming that the plaintiff’s right to
receive incoming mail is entitled to some procedural
due process protection after Sandin, the court finds
that he received all the process that was due under the
circumstances. See Mathews v. Eldridge, 424 U.S. 319,
335, 96 S. Ct. 893, 47 L. Ed. 2d 18 (1976) (enumerating
factors to be considered). The plaintiff received abun-
dant written notifications from the mail room staff at
Cheshire informing him that the blank prayer cards,
used books, repackaged newspapers, and other items
were being rejected. The plaintiff filed multiple griev-
ances challenging the rejections and explaining why,
in his view, the withholding of mail was improper,
unjustified and illegal. The grievances were processed
up the chain of command; none succeeded. The fact
that the plaintiff was displeased with the result, of
course, does not establish a due process violation.
The plaintiff complains that he was not given written
notification of rejection with respect to every single
undelivered item of mail, and it appears to be the case
that the mail room did not always provide notice of
rejection on every single occasion due to the volume
and/or frequency of prohibited items (prayer cards/
envelopes in particular). The fact remains that the plain-
tiff received written notice sufficient to make him fully
aware of the basic nature and scope of the interdiction:
he knew that the mail room staff was not delivering his
mail containing blank prayer cards, envelopes, used
books, nonsubscription newspapers, and artwork con-
taining crayon and/or glitter. He received many notices
and filed many grievances. At least on the facts of this
case, when the plaintiff was made aware by written
notice of the nature and scope of the challenged con-
duct, due process did not require item by item notifica-
tion of every item. To require redundant notification
under these circumstances would serve no purpose
except to impose a significant, unnecessary administra-
tive burden on prison staff.
The plaintiff also contends that his due process rights
were violated because the three used books ordered
by him were rejected without review by the ‘‘media
review board’’ (MRB) under the procedures set forth
in administrative directive 10.7. This argument is based
on a fundamental misunderstanding about the function
of the MRB, which exists to promulgate guidelines and
conduct substantive review and censorship of incoming
publications that have been rejected on initial review
based on the content of those incoming materials. Thus,
for example, if a book or other incoming publication
is rejected by mail room staff because of inappropriate
sexual content, or because it contains information
about making weapons or alcohol, or depicts methods
of escape from correctional facilities, the initial deci-
sion to reject the item is subject to review by the MRB.
See Administrative Directive 10.7 (4) (N) (1) and (2).
The MRB process played no role in the plaintiff’s case
because the used books were not rejected based on
their substantive content—they were rejected because
they were in used condition. See [parts I and II A of
this opinion]. The plaintiff was not entitled to MRB
review on these facts.24
The plaintiff’s equal protection claim is not well elab-
orated, but the crux of his argument is that the defen-
dants treated incoming mail of a ‘‘religious’’ nature dif-
ferently than secular mail. There is no evidentiary basis
for this claim. To the contrary, it is clear to the court
that all of the items at issue were rejected based on
neutral criteria relating to legitimate concerns regarding
institutional security and safety. Religious content had
nothing to do with it. There is no credible evidence that
otherwise similar nonreligious material (e.g., secular
used books, secular blank greeting cards from outside
sources, or secular repackaged newspapers) were
treated any differently. There simply was no evidence
of discrimination—or discriminatory intent. See Arling-
ton Heights v. Metropolitan District Housing Corp.,
429 U.S. 252, 265, 97 S. Ct. 555, 50 L. Ed. 2d 450 (1977)
(‘‘[p]roof of . . . discriminatory intent or purpose is
required to show a violation of the [e]qual [p]rotec-
tion [c]lause’’).
C
Plaintiff’s Statutory Claims
1
Religious Land Use and Institutionalized Persons
Act of 2000, 42 U.S.C. § 2000cc
Section 3 of the Religious Land Use and Institutional-
ized Persons Act of 2000 (RLUIPA), 42 U.S.C. § 2000cc
et seq., states: ‘‘No government shall impose a substan-
tial burden on the religious exercise of a person residing
in or confined to an institution, as defined in section
1997 of this title, even if the burden results from a rule
of general applicability, unless the government demon-
strates that imposition of the burden on that person—
(1) is in furtherance of a compelling governmental inter-
est; and (2) is the least restrictive means of furthering
that compelling governmental interest.’’ 42 U.S.C.
§ 2000cc-1 (a) (2012).
Under the statute’s burden-shifting framework, the
plaintiff first must show that (1) the relevant religious
exercise is ‘‘grounded in a sincerely held religious
belief,’’ and (2) the government’s action or policy ‘‘sub-
stantially burden[s] that exercise . . . .’’ Holt v. Hobbs,
574 U.S. 352, 361, 135 S. Ct. 853, 190 L. Ed. 2d 747
(2015). If the plaintiff carries this threshold burden,
the burden shifts to the government to show that the
challenged action or policy is (1) in furtherance of a
compelling governmental interest and (2) the least
restrictive means of furthering that interest. Id., 362.
Despite RLUIPA’s express purpose to protect the reli-
gious observances of individualized persons, the statute
nevertheless anticipated that courts entertaining RLU-
IPA challenges ‘‘would accord ‘due deference to the
experience and expertise of prison and jail administra-
tors.’ ’’ Cutter v. Wilkinson, 544 U.S. 709, 717, 125 S.
Ct. 2113, 161 L. Ed. 2d 1020 (2005) (quoting 146 Cong.
Rec. 16,698, 16,699 (2000), joint statement of Senator
Orrin G. Hatch and Senator Edward M. Kennedy). ‘‘Due
deference,’’ of course, does not mean ‘‘unquestioning’’
acceptance. Holt v. Hobbs, supra, 364.
The court does not question the sincerity of the plain-
tiff’s religious beliefs. He has failed to show, however,
that the policies and practices at issue have imposed
any meaningful, much less ‘‘substantial,’’ burden on the
exercise of his religion. There is no evidence that the
defendants have done anything that directly or indi-
rectly requires or compels or pressures the plaintiff to
‘‘engage in conduct that seriously violates his religious
beliefs’’; Burwell v. Hobby Lobby Stores, Inc., 573 U.S.
682, 720, 134 S. Ct. 2751, 189 L. Ed. 2d 675 (2014); or
that they have done anything that would prevent him
from participating in any activity or practice necessary
for him to partake in religious exercise. See, e.g., Holt
v. Hobbs, supra, 574 U.S. 361 (prison policy requiring
plaintiff to shave his beard, contrary to religious law,
substantially burdened religious exercise). It may cause
the plaintiff a slight inconvenience to order new books
rather than used books on a particular subject, or order
newspapers directly from the publisher, or make his
own religious greeting cards, but these are truly de
minimis constraints and cannot fairly be considered to
‘‘burden’’ the exercise of his religion. There is nothing
in the record to support a finding that the unavailability
of the books, newspapers or cards at issue actually
impairs or burdens the plaintiff’s religious exercise in
any material or meaningful respect. See, e.g., Daker v.
Warren, 660 Fed. Appx. 737, 746 (11th Cir. 2016) (per
curiam) (holding that prisoner failed to establish RLU-
IPA violation in connection with prison’s ban on hard-
cover books because, ‘‘[a]lthough [the plaintiff] listed
some religious books that he could only obtain in hard-
cover format . . . he did not explain or show how the
inability to acquire these books constituted a substan-
tial burden on his religious exercise’’ (citation omit-
ted)), cert. denied, U.S. , 138 S. Ct. 94, 199 L.
Ed. 2d 60 (2017), and cert. denied, U.S. , 138 S.
Ct. 98, 199 L. Ed. 2d 60 (2017). The plaintiff is offended
by the defendants’ assertion of authority, which makes
certain items available by mail only in accordance with
specified security related procedures, and he might
derive religious gratification in having access to the
prohibited items (used books and prayer cards). This
sense of subjective frustration, however, and the plain-
tiff’s preference for alternative or additional means of
religious gratification, do not establish that the prison
policies at issue substantially burden the plaintiff’s free
exercise of religion. See, e.g., Robinson v. Jackson, 615
Fed. Appx. 310, 313–14 (6th Cir. 2015) (holding that
prison policy of providing Muslim inmate vegetarian
entrees without providing Halal meat entrees did not
substantially burden free exercise because vegetarian
entrees meet requirements of Halal and, therefore,
meals do not violate religious beliefs, despite Halal meat
entrees being preferred).
2
Connecticut Act Concerning Religious Freedom
Connecticut has adopted a ‘‘Little RFRA,’’ the Act
Concerning Religious Freedom (ACRF), General Stat-
utes § 52-571b.25 The ACRF prohibits the state from
burdening a person’s exercise of religious freedom
under [article first, § 3] of the Connecticut constitution,
even if the burden results from a rule of general applica-
bility; General Statutes § 52-571b (a); unless the state
can demonstrate that application of the burden to the
person (1) is in furtherance of a compelling governmen-
tal interest, and (2) is the least restrictive means of
furthering that compelling governmental interest. Gen-
eral Statutes § 52-571b (b).
The statute does not contain definitions of its opera-
tive terms. In Rweyemamu v. Commission on Human
Rights & Opportunities, 98 Conn. App. 646, 659, 911
A.2d 319 (2006), cert. denied, 281 Conn. 911, 916 A.2d
51, cert. denied, 552 U.S. 886, 128 S. Ct. 206, 169 L. Ed.
2d 144 (2007), our Appellate Court derived a nuanced
understanding of the statute’s key provisions, including
the prohibition against a state imposed ‘‘ ‘burden [on]
a person’s exercise of religion’ ’’; id., 656 n.7; by
reviewing the legislative history in light of related doc-
trinal developments taking place at the federal level.
Id., 659–64. Two important points emerge from the
Rweyemamu analysis. First, the ‘‘overarching purpose’’
of the statute; id., 660; was to restore free exercise
jurisprudence to its status prior to the United States
Supreme Court’s decision in Employment Division,
Dept. of Human Resources v. Smith, 494 U.S. 872, 110
S. Ct. 1595, 108 L. Ed. 2d 876 (1990). See Rweyemamu
v. Commission on Human Rights & Opportunities,
supra, 660–61.26 Second, the term ‘‘ ‘exercise of reli-
gion’ ’’ in subsections (a) and (b) of the ACRF; id., 656
n.7; refers specifically to religious rituals and practices
(as opposed to religious beliefs). See id., 664 (‘‘[b]y
protecting ‘free exercise’ with the strict scrutiny test
of subsections (a) and (b), the legislature intended to
provide greater protection to religious practices, such
as the ritualistic use of peyote at issue in Smith’’
(emphasis in original)); id., 664 n.10 (citing to legislative
history to provide examples of kind of free exercise
practices, such as lighting of candles in church, receiv-
ing of wine at Holy Communion, and wearing yarmulke
in court).
The clarification provided in Rweyemamu is useful
and confirms that the plaintiff cannot prevail under the
ACRF. There is no evidence that the prison policies
under review in the present case impose any material
burden on the plaintiff’s ‘‘religious exercise’’ within the
meaning of the statute. The plaintiff remains fully able
to engage in the rituals, rites and practices of his chosen
religion by attending mass, reading the Bible and other
sacred texts, observing Lenten dietary restrictions, and
so forth. On this record, the fact that the plaintiff cannot
purchase the three out of print books, or receive news-
papers and prayer cards from unauthorized sources,
fails to establish any violation of the ACRF.
D
Plaintiff’s Claim Under Uniform Administrative
Procedure Act
The plaintiff’s final argument is that the department’s
administrative directives at issue are invalid because
they were not promulgated in accordance with the
requirements of the UAPA. To adopt a regulation under
the UAPA, an agency must comply with extensive pro-
cedural requirements, which include, among other
things, legislative review and approval. See General
Statutes § 4-168. The plaintiff contends that the depart-
ment’s failure to follow the required procedures under
the UAPA renders the relevant administrative directives
legally defective. This claim is without merit for a num-
ber of reasons.
The Appellate Court’s holding in Pierce v. Lantz, 113
Conn. App. 98, 965 A.2d 576, cert. denied, 293 Conn.
915, 979 A.2d 490 (2009), which obviously binds this
court, largely disposes of the plaintiff’s argument. See
also Harris v. Armstrong, Docket No. CV-XX-XXXXXXX-
S, 2009 WL 5342484, *3–5 (Conn. Super. December 7,
2009) (Prescott, J.) (following Pierce to uphold validity
of department’s administrative directive regarding out-
going mail). Pierce involved an inmate’s challenges to
the validity of a department administrative directive
relating to incoming mail restrictions, among other
things: the plaintiff objected in particular to department
‘‘censorship’’ of publications depicting sexual activity
between consenting adults. Pierce v. Lantz, supra, 100.
He argued, as the plaintiff does here, that the relevant
administrative directive—which, as in the present case,
was also contained in administrative directive 10.7—
had not been adopted as a ‘‘regulation’’ in accordance
with the UAPA. Id. The Appellate Court rejected the
claim. It reasoned that the administrative directive at
issue represented a perfectly legitimate intra-agency
interpretation and application of existing regulatory
authority conferred on the department and its commis-
sioner by General Statutes § 18-81 and various regula-
tions promulgated thereunder. Id., 103–104.
Pierce points out, first of all, that § 18-81 expressly
authorizes the Commissioner of Correction to ‘‘estab-
lish rules for the administrative practices and custodial
and rehabilitative methods of [such correctional] insti-
tutions . . . in accordance with recognized correc-
tional standards.’’ General Statutes § 18-81. The deci-
sion also emphasizes that the administrative guidelines
at issue fit within an existing regulatory framework,
which not only confers general authority upon the com-
missioner to administer and direct department opera-
tions, including supervision and direction of depart-
ment facilities and institutions under department
control, but also contains provisions specifically
authorizing inspection and rejection of incoming mail
for safety and security reasons. Pierce v. Lantz, supra,
113 Conn. App. 103–104 (discussing Regs., Conn. State
Agencies § 18-81-1 (general authority), § 18-81-32
(authority to inspect and reject incoming mail) and § 18-
81-39 (authority to review and reject incoming publica-
tions)). This statutory and regulatory framework, con-
cludes the Appellate Court, ‘‘empowers the commis-
sioner to create such administrative directives for the
administration and operation of the correctional institu-
tions.’’ Id., 104.
Pierce provides especially strong guidance here
because it involved a challenge to the same administra-
tive directive at issue in the present case, administrative
directive 10.7, relating to restrictions on incoming mail.
And, as Pierce observes, the core provisions of adminis-
trative directive 10.7 that authorize rejection of incom-
ing mail and publications have been promulgated as
regulations under the UAPA. See Regs., Conn. State
Agencies §§ 18-81-32 and 18-81-39.27 Administrative
directive 10-7 contains more detailed guidance than the
regulations, as one might expect, but the fundamental
authority to inspect mail, and reject items posing a
potential threat to security, derives from the governing
UAPA compliant regulatory framework.
A second, independent reason for rejecting the plain-
tiff’s UAPA based argument is that General Statutes
§ 18-78a exempts ‘‘security and emergency procedures’’
promulgated by the department from the UAPA’s proce-
dural requirements. Section 18-78a (a) (1) provides in
relevant part: ‘‘The provisions of chapter 54 [the UAPA]
shall apply to the Department of Correction, except
that in adopting regulations in regard to riot control
procedures, security and emergency procedures, disci-
plinary action or classification the Department of Cor-
rection shall not be required to follow the procedures
in sections 4-168, 4-168a, 4-168b, 4-172, 4-173, 4-174, and
4-176. . . .’’ The various administrative directives relied
on by the defendants to reject the mail items at issue
in the present case were ‘‘security’’ procedures within
the meaning of § 18-78a (a) (1) and therefore are exempt
from the procedural requirements of the UAPA. See
Beasley v. Commissioner of Correction, 50 Conn. App.
421, 434–36, 718 A.2d 487 (1998) (holding that adminis-
trative directive relating to inmate classification was
exempt from UAPA under § 18-78a (a) (1)), aff’d, 249
Conn. 499, 733 A.2d 833 (1999); Harris v. Armstrong,
supra, 2009 WL 5342484, *5 (same holding with respect
to administrative directive 10.7).
III
CONCLUSION
Judgment shall enter for the defendants. No costs.
* Affirmed. Gawlik v. Semple, 197 Conn. App. , A.3d (2020).
1
The final brief was filed July 17, 2017. The parties thereafter waived the
120 day deadline set forth in General Statutes § 51-183b. See Docket Entry
133.00 (Notice of Joint Consent, dated October 27, 2017).
2
The plaintiff is not enrolled in any organized educational or training
program to study for the priesthood.
3
The record also includes reference to a used book entitled The Lovely
Eucharist and Jesus Christ, which the Cheshire prison authorities also
rejected for delivery to the plaintiff. It is unclear if this was a fourth book,
or, instead, a reference by a different name to the third book listed above.
There is no need to resolve the question for purposes of this adjudication.
4
The precise meaning of this language is not crystal clear. It could mean
(as the department maintains) that inmates may order for purchase only
new books, and those purchases may be made only from the designated
categories of vendors (publishers, book clubs or bookstores). Alternatively,
the directive could be construed to mean that inmates may order only new
books from the designated vendors (publishers or bookstores). This reading
would imply, or at least leave open the possibility, that inmates are allowed
to order used books and nonbook publications from sources other than
publishers or bookstores. The plaintiff does not appear to challenge the
department’s construction as a grammatical matter. In any event, it is clear
to the court that the department’s construction is the intended meaning.
5
A few other religious magazines/pamphlets are also included by the
plaintiff in this category of rejected items. See Plaintiff’s Exhibit 6.
6
The problem involving delivery of newspapers to the plaintiff did not
arise until after this lawsuit was filed. The plaintiff never amended the
complaint to include a claim based on rejection of the newspapers, but the
issue was made part of the case by the submission of such evidence at trial,
without objection. The newspaper issue also was addressed by the parties
in their respective posttrial briefs. The court deems the complaint to have
been amended to conform to the proof in this regard.
7
The court’s findings are based solely on evidence presented at trial. The
court cannot, and has not, taken into consideration any nonrecord exhibits
submitted with the plaintiff’s posttrial briefs. The plaintiff’s posttrial briefs
include certain factual assertions and documents relating, in particular,
to alleged efforts by him to obtain individualized permission, on religious
grounds, to obtain access to otherwise prohibited items. The plaintiff was
given every opportunity to present his proof at trial. He was well prepared
and well organized, and did not appear to have any difficulty marshaling
the evidence as he deemed necessary. There was clear and unequivocal
evidence submitted at trial about what the plaintiff did—and did not do—
as part of his efforts to obtain the religious materials at issue. No extrarecord
submissions on this topic will be considered by the court.
8
This same directive also states: ‘‘Donated religious articles and religious
items shall not be permitted from any source.’’ Administrative Directive 10.8
(5) (I). The plaintiff’s alternative under administrative directive 10.8 (5) (I)
was to seek permission to purchase the type of prayer cards that suited his
preferences. The record is clear that he had abundant personal funds avail-
able to him, had he wished to avail himself of this option.
9
‘‘For institutional safety and security, all recommendations for religious
practices shall require approval of the Deputy Commissioner of Operations
or designee in consultation with the Director of Religious Services.’’ Adminis-
trative Directive 10.8 (5) (D).
10
The parenthetical observation in the text is common knowledge in this
day and age, but is not part of the record, and is not relied on by the court
in reaching its conclusions in this case. It is made for the benefit of any
reader who may be interested in seeking a nonjudicial solution to similar
problems in the future. Vendors such as Amazon and Barnes & Noble offer
for sale more new book titles than could be read in a lifetime. These vendors
apparently will ship new books directly to correctional facilities upon pur-
chase by or on behalf of an inmate. See, e.g., https://www.amazon.com/gp/
help/customer/display.html?nodeld=201910480. If an inmate is unable to
place an order directly, the Connecticut Department of Correction’s website
indicates that friends or family can order new books from such vendors
for direct mailing to the correctional facility. See https://portal.ct.gov/DOC/
Common-Elements, Common-Elements/Frequently-Asked-Questions-FAQ.
Again, this footnote should not be understood as stating factual findings
in the present case. It is included for informational purposes only, with the
hope that the information might reduce the need for similar book related
prisoner litigation in the future.
11
Quotation marks are used because the plaintiff’s position fails to
acknowledge the significant limitations on these rights in the prison setting,
as discussed in the legal analysis [in part II of this opinion].
12
The plaintiff’s administrative complaints contain allegations concerning
other department employees as well, but Wislocki is the primary focus of
his grievances.
13
The plaintiff raises constitutional free speech as well as religious free-
dom claims under both the federal and Connecticut constitutions. He pro-
vides no independent analysis of the state constitutional claims, however,
and those claims therefore are deemed abandoned. See State v. Arias, 322
Conn. 170, 185 n.4, 140 A.3d 200 (2016) (‘‘[b]ecause the defendant has not
provided an independent analysis of his state constitutional claim under
State v. Geisler, 222 Conn. 672, 684–86, 610 A.2d 1225 (1992), we consider
that claim abandoned and unreviewable’’); Connecticut Light & Power Co.
v. Dept. of Public Utility Control, 266 Conn. 108, 120, 830 A.2d 1121 (2003)
(‘‘[The Connecticut Supreme Court] repeatedly [has] stated that [it is] not
required to review issues that have been improperly presented to [it] through
an inadequate brief. . . . Where a claim is asserted in the statement of
issues but thereafter receives only cursory attention in the brief without
substantive discussion or citation of authorities, it is deemed to be aban-
doned. . . . These same principles apply to claims raised in the trial
court.’’ (Citation omitted; emphasis added; internal quotation marks
omitted.)).
14
Many courts, before reaching the Turner factors, conduct a ‘‘threshold’’
inquiry requiring the plaintiff to show ‘‘that the disputed conduct substan-
tially burdens his sincerely held religious beliefs.’’ Salahuddin v. Goord,
467 F.3d 263, 274–75 (2d Cir. 2006). At least in the United States Court of
Appeals for the Second Circuit, the continuing vitality of the ‘‘substantial
burden’’ test in constitutional free exercise cases remains an open question
after the Supreme Court’s statement, in Employment Division, Dept. of
Human Resources v. Smith, 494 U.S. 872, 110 S. Ct. 1595, 108 L. Ed. 2d 876
(1990), that application of the test ‘‘embroils courts in the unacceptable
business of evaluating the relative merits of differing religious claims.’’
(Internal quotation marks omitted.) Holland v. Goord, 758 F.3d 215, 220 (2d
Cir. 2014); see Salahuddin v. Goord, supra, 274 n.3; George v. County of
Westchester, No. 17-CV-3632 (NSR) (JCM), 2018 WL 3364393, *3 (S.D.N.Y.
July 10, 2018); Sabir v. Williams, No. 3:17-cv-749 (VAB), 2017 WL 6514694,
*5 (D. Conn. December 19, 2017). Because its current vitality as part of the
constitutional free exercise analysis remains in doubt, and because the
plaintiff’s free exercise claim here fails for other reasons under the four
factor Turner test, the court will not consider the ‘‘substantial burden’’ issue
as part of its constitutional analysis. If the issue were considered, however,
it would be decided against the plaintiff. See [part II B of this opinion]
(analyzing ‘‘substantial burden’’ factor in connection with plaintiff’s claims
under Religious Land Use and Institutionalized Persons Act of 2000, 42
U.S.C. § 2000cc et seq.).
15
‘‘The burden, moreover, is not on the [s]tate to prove the validity of
prison regulations but on the prisoner to disprove it.’’ Overton v. Bazzetta,
539 U.S. 126, 132, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003).
16
‘‘Contraband’’ necessarily includes a very broad category of items in
the prison context because an inmate’s right to possess personal property
is strictly limited due to safety and security concerns. See Administrative
Directive 10.7 (3) (A) (‘‘Definitions/Acronyms’’) (‘‘Contraband. Anything not
authorized to be in an inmate’s possession or anything used in an unautho-
rized or prohibited manner.’’). The basic limitation is set forth in administra-
tive directive 6.10 (1) (‘‘Inmate Property,’’ ‘‘Policy’’), which states: ‘‘An inmate
may possess only that property authorized for retention upon admission to
the facility, issued while in custody, purchased in the facility commissary,
or approved at the facility in accordance with this Administrative Directive.’’
In this context, it is important to be aware that many items that we may
consider ordinary and innocuous can easily be made into weapons or used
for destructive purposes in a prison setting. Shoelaces are one of countless
examples. Some such items (sewing needles, for example) are easily hidden.
The scarcity of personal property among inmates gives rise to additional
security issues. See [part II A of this opinion].
17
The relevant language in the administrative directives remains essen-
tially unchanged in substance since Sadler, which was decided in 2011. Two
slight alterations made by the department in 2013 are indicated by the court
in the quoted excerpt above using brackets.
18
To ensure the ready availability of materials needed by inmates to
correspond in writing with the outside world, administrative directive 10.7
(4) (P) mandates that ‘‘[e]ach correctional facility commissary shall sell
. . . stationery, envelopes, postcards, greeting cards and postage . . . .’’
In addition, indigent inmates must be provided postage and writing materials
free of charge. See Administrative Directive 10.7 (4) (D).
19
The testimony and exhibits established that suboxone and certain other
drugs can be concealed in decorative materials (script or drawings made
with crayon, colored pencil, or glitter) used in cards and artwork mailed
to inmates. See, e.g., Defendants’ Exhibits A, B.
20
Allen v. Coughlin, supra, 64 F.3d 77, uses this very point to distinguish
between ‘‘publisher-only’’ rules as applied to entire newspapers, which pass
constitutional muster under Turner, and a rule that would extend the pub-
lisher only rule to newspaper clippings, which the United States Court of
Appeals for the Second Circuit suggests would be impermissible under
Turner due to the relative ease of inspecting clippings. Id., 80–81. Newspaper
clippings are not at issue in this case.
21
Additional procedural grievances are also mentioned in the plaintiff’s
briefs, but it has been difficult to discern the precise contours of the plaintiff’s
procedural due process claims, in part because the plaintiff’s written presen-
tation contains passing references to certain factual allegations made in
multiple, partially duplicative filings. The court has done its best to identify
the specific procedural due process claims for adjudication.
22
The Sandin standard was formulated to determine the existence of a
cognizable ‘‘liberty’’ interest entitled to due process protection. The defen-
dants contend that courts use the same standard in the prison context to
decide claims based on an alleged deprivation of a property interest. See
Defendants’ Posttrial Brief, dated May 26, 2017, at 31–32 (citing cases).
Although the case law relied on by the defendants is not crystal clear on
this point, it makes sense that an inmate’s property based due process claim
normally must be analyzed through the lens of the plaintiff’s liberty based
entitlements because prisoners largely forfeit the right to possess property
while incarcerated and, therefore, an inmate often will not be able to allege
deprivation of a ‘‘property interest’’ within the usual due process framework.
See Board of Regents v. Roth, 408 U.S. 564, 577, 92 S. Ct. 2701, 33 L. Ed.
2d 548 (1972) (providing definition of ‘‘property interest’’ in due process
analysis). A constitutionally protected ‘‘property interest’’ outside of prison,
in other words, is often prohibited ‘‘contraband’’ inside prison. See Adminis-
trative Directive 6.10 (3) (B) (defining ‘‘contraband’’ as anything ‘‘not author-
ized to be . . . in an inmate’s possession’’). At least for doctrinal purposes,
it seems sensible in this context to view the ‘‘liberty’’ (as opposed to the
‘‘property’’) component of the due process clause as the source of any limits
on the state’s authority to curtail an inmate’s right to possess property. See
also Hudson v. Palmer, 468 U.S. 517, 533, 104 S. Ct. 3194, 82 L. Ed. 2d
393 (1984) (prisoner’s property rights adequately protected by meaningful
postdeprivation procedures under state law).
23
The parties do not squarely address the issue in their briefing.
24
The plaintiff’s misunderstanding may have been fueled by Officer Wis-
locki’s mistaken use of the incorrect ‘‘Publication Rejection’’ form on one
or more occasions.
25
The term ‘‘Little RFRA’’ is the colloquial name given to the statutes
enacted by various states following the passage of the federal Religious
Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq. According to
the National Conference of State Legislatures, twenty-one states (including
Connecticut) had passed such laws as of 2015. See http://www.ncsl.org/
research/civil-and-criminal-justice/state-rfra-statutes.aspx (last consulted
August 22, 2018).
26
Smith held that the constitutionality of facially neutral laws of general
application would be reviewed using the ‘‘rational basis’’ standard, rather
than the heightened ‘‘strict scrutiny’’ standard, under the free exercise clause.
The Connecticut legislature in the ACRF, like the federal Congress in the
[Religious Freedom Restoration Act of 1993, 42 U.S.C. § 2000bb et seq.],
revived the applicability of the pre-Smith ‘‘strict scrutiny’’ standard. The
goal of restoring the status quo ante is clear from the Connecticut statute’s
legislative history: ‘‘[T]o be absolutely clear, this does not—this bill does
not expand, contract or alter the ability of a claimant to obtain relief in a
manner consistent with the Supreme Court’s free exercise jurisprudence
under the compelling interest test prior to the Smith case.’’ (Internal quota-
tion marks omitted.) 36 S. Proc., Pt. 8, 1993 Sess., p. 2785, remarks of Senator
George C. Jepsen, quoted in Rweyemamu v. Commission on Human
Rights & Opportunities, supra, 98 Conn. App. 660–61.
27
Section 18-81-32 of the Regulations of Connecticut State Agencies
(‘‘Incoming general correspondence’’) in pertinent part contains the follow-
ing language, which also appears in administrative directive 10-7 (4) (G)
(1), in essentially identical terms: ‘‘(a) Review, Inspection and Rejection.
. . . All incoming general correspondence may be rejected if such review
discloses correspondence or material(s) which would reasonably jeopardize
legitimate penological interests, including, but not limited to, material(s)
which contain or concern: (1) The transport of contraband in or out of the
facility. . . . (10) Any other general correspondence, rejection of which is
reasonably related to a legitimate penological interest.’’ (‘‘[c]ontraband’’ is
defined in § 18-81-28 (b) of the Regulations of Connecticut State Agencies
to mean ‘‘anything not authorized to be in an inmate’s possession or anything
used in an unauthorized or prohibited manner’’).
Section 18-81-39 (‘‘Incoming publications and materials’’) contains the
following language, which can also be found in administrative directive 10.7
(4) (N): ‘‘Requests for any local orders for books, magazines, newspapers,
educational materials or periodicals shall be made through the school princi-
pal or other person as designated by the Unit Administrator who shall
determine that the inmate is able to pay for such material(s). . . . An inmate
may order hardcover books in new condition only from a publisher, book
club, or book store.’’ [Subsection] (a) of 18-81-39, ‘‘Procedures for Review
of Publications and Sexually Explicit Materials,’’ contains this general state-
ment: ‘‘The Unit Administrator may reject a publication only if it is deter-
mined to be detrimental to the security, good order, or discipline of the
facility or if it might facilitate criminal activity. The Unit Administrator may
not reject a publication solely because its content is religious, philosophical,
political, social or sexual, or because its content is unpopular or repugnant.’’