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

8-12-2004

Ramirez v. Pugh Precedential or Non-Precedential: Precedential

Docket No. 02-2101

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

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova University School of Law Digital Repository. It has been accepted for inclusion in 2004 Decisions by an authorized administrator of Villanova University School of Law Digital Repository. For more information, please contact [email protected]. PRECEDENTIAL Vijay Shanker, Esq. (Argued) Covington & Burling UNITED STATES COURT OF 1201 Pennsylvania Avenue, N.W. APPEAL Washington, DC 20004 FOR THE THIRD CIRCUIT Counsel for Appellant

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

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

On Appeal from the United States OPINION District Court for the Middle District of Pennsylvania (D.C. Civil No. 97-cv-00359) COWEN, Circuit Judge. District Judge: Hon. James F. M cClure, Jr. A federal prisoner at the low- security correctional institution in Argued May 27, 2004 Allenwood, Pennsylvania brought this action pursuant to

, BEFORE: RENDELL and COWEN, challenging a Congressional ban on the Circuit Judges and use of federal funds to distribute certain SCHW ARZER*, District Judge sexually explicit material to prisoners, along with its implementing regulation. (Filed: August 12, 2004) The District Court rejected plaintiff’s argument that the ban violates the First *Honorable William W Schwarzer, Amendment and dismissed his complaint, Senior United States District Judge for finding the prohibition to be reasonably the Northern District of California, related to the legitimate penological goal sitting by designation. of prisoner rehabilitation. Because we find that the District Court erred in includes an exception for material that resolving the constitutional issue without contains nudity “illustrative of medical, an adequate factual basis, we will reverse educational, or anthropological content.” and remand for further proceedings

As examples of publications that do consistent with this opinion. not “feature nudity,” a 1996 program statement released by the BOP cites I. National Geographic, Our Body, Our The Ensign Amendment, originally Selves, the swimsuit issue of Sports enacted as part of the Omnibus Illustrated, and the Victoria’s Secret Consolidated Appropriations Act of 1997, catalog. Fed. Bureau of Prisons Program prohibits the use of funds appropriated for Statement 5266.07 (Nov. 1, 1996). The the United States Bureau of Prisons (the regulations are clearly targeted to the “BOP”) to “distribute or make available receipt by inmates of softcore and hardcore any commercially published information or pornography. material to a prisoner . . . [when] such Plaintiff Marc Ramirez filed suit in information or material is sexually explicit the Middle District of Pennsylvania in or features nudity.”

, naming as defendants the United § 614,

-66 (1996). The States Attorney General, the director of the amendment has been reenacted in each BOP, and the warden of the Allenwood subsequent appropriations act, and is now i n s ti t u ti o n (colle c t i v e l y , t h e codified at 28 U.S.C. § 530C(b)(6). An “government”). Alleging that magazines implementing regulation promulgated by addressed to him were rejected as either the BOP defines the key terms of the being “sexually explicit” or “featuring amendment as follows: “sexually explicit” nu di ty,” Ramirez challenged th e means “a pictorial depiction of actual or constitutionality of the Ensign Amendment simulated sexual acts including sexual and its implementing regulation on First intercourse, oral sex, or masturbation”; Amendment grounds. After a series of “features” means that the publication in procedural delays, the District Court question “contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon distribution of sexually explicit such depictions in the case of individual publications permitted the warden of an one-time issues”; and “nudity” means “a institution to reject material that “by its pictorial depiction where genitalia or nature or content poses a threat to the female breasts are exposed.” 28 C.F.R. § security, good order, or discipline of the 540.72(b). 1 The definition of “features” institution, or facilitates criminal activity.”

(b)(7). These regulations are still in place to the 1 Before the Ensign Amendment’s extent that they involve material falling passage, BOP regulations governing the outside the scope of § 540.72(b).

2 finally reached the merits of Ramirez’s Court recognized an enduring tension complaint on a government motion to between two conflicting principles in dismiss. Applying the familiar test for operation whenever a prisoner brings a constitutional challenges to prison constitutional challenge to a law or regulations set out in Turner v. Safley, 482 regulation affecting prison policy. The U.S. 78 (1987), the District Court first principle, that “[p]rison walls do not determined that the amendment and form a barrier separating prison inmates regulations passed constitutional muster from the protections of the Constitution,” because they were rationally connected to must be balanced against the practical the government’s asserted interest in reality that the judicial branch is ill-suited prisoner rehabilitation, prisoners still had for running the country’s prisons, a task access to a broad range of materials committed to the particular expertise of the (including materials with sexually explicit legislative and executive branches. text), accommodating the asserted right to Turner, 482 U.S. at 84-85. To strike an view explicit materials would threaten the appropriate balance between prisoners’ safety of correctional staff and other exercise of their constitutional rights and inmates, and no ready alternative existed the institutional needs of prison that would accommodate Ramirez’s administrators, the Supreme Court held asserted right at a de minimus cost to valid that a prison regulation implicating an penological interests. inmate’s constitutional rights must be “reaso nably related to legitimate On appeal, Ramirez argues that the penological interests” to be valid. Id. at District Court erred in finding a rational 89. The Court developed a four-part test connection between the ban on for assessing the overall reasonableness of pornography and rehabilitation in the such a regulation. As a threshold inquiry, absence of any factual record, and in “there must be a ‘valid, rational failing to engage in a “contextual, record- connection’ between the prison regulation sensitive analysis” before determining the and the legitimate governmental interest ban’s overall reasonableness under Turner. put forward to justify it.” Id. (quoting The District Court had jurisdiction under Block v. Rutherford,

, 586

, and we exercise (1984)). Courts must then determine jurisdiction pursuant to

. “whether there are alternative means of We review de novo the District Court’s exercising the right that remain open” to decision to grant the government’s motion p r i s o n e r s , a n d “ [ w h a t ] im p a c t to dismiss. Pryor v. National Collegiate a c c o mm odati o n o f t h e a s s e r t e d Athletic Ass’n,

(3d Cir. constitutional right will have on guards 2002). and other inmates, and on the allocation of II. prison resources generally.” Id. at 90. Finally, a regulation’s reasonableness may In Turner v. Safley, the Supreme be evidenced by “the absence of ready

3 a l t er n a t iv e s ” t h a t w o u l d f u l l y as tending generally to thwart the character accommodate the constitutional right “at growth of its consumers,” and that, as a de minimus cost to valid penological matter of common sense, “prisoners are interests.” Id. at 90-91. These more likely to develop the now-missing requirements “serve as guides to a single self-control and respect for others if reasonableness standard,” but the first prevented from poring over pictures that “‘looms especially large’ because it ‘tends a r e t h e m s e l v e s d e g ra d i n g a n d to encompass the remaining factors, and disrespectful.” Id. at 199. some of its criteria are apparently The Amatel court did not see the necessary conditions.’” Waterman v. need for an evidentiary record, holding Farmer,

(3d Cir. that its own common sense was sufficient 1999) (quoting Amatel v. Reno, 156 F.3d to verify the rational connection between 192, 196 (D.C. Cir. 1998)). the Ensign Amendment’s proscriptions and To date, the United States Court of the asserted rehabilitative goal.

It did, Appeals for the D.C. Circuit is the only however, cite a body of scholarly research federal appellate court to have considered to support the reasonableness of the the merits of a First Amendment challenge proposition that pornography leads to male to the Ensign Amendment and its objectification of women, and that certain implementing regulation. In Amatel v. types of pornography can lead to male Reno,

(D.C. Cir. 1998), that aggression and desensitize viewers to court rejected the challenge, finding the violence and rape. See

. restriction on the distribution of sexually The court determined that none of the explicit material to be reasonably related to three other Turner factors undermined the the asserted penological interest of overall reasonableness of the Ensign prisoner rehabilitation. See 156 F.3d at Amendment and its im plem enting 202-03. After identifying prisoner regulation. rehabilitation as the legitimate penological Our own court has considered the interest advanced by the government, the constitutionality of a restriction similar to court defined that interest broadly. It the Ensign Amendment, albeit in a reasoned that the government’s power to different context than the one here. In inculcate values in contexts such as public Waterman v. Farmer,

(3d education transferred readily to the context Cir. 1999), we upheld a New Jersey statute of prison administration, implicitly that restricted prisoners’ access to identifying the promotion of “respect for pornographic materials at a facility for sex authority and traditional values” as a offenders who exhibited “repetitive and legitimate rehabilitative purpose in and of compulsive” behavior. After identifying itself.

(internal citation omitted). the legitimate penological interest at stake Having done this, it found that “Congress as the rehabilitation of the state’s “most might well [have] perceive[d] pornography dangerous and compulsive sex offenders,”

4 we evaluated the connection between the approach in Waterman, and summarily statute and that interest in light of an concluded that the restriction was “neutral evidentiary record that included two expert and reasonable” under Turner. We found affidavits from the facility itself. Those the district court’s opinion deficient experts testified that sex offenders’ because it never stated or described the exposure to pornography would thwart relevant peno logica l interest (the specific rehabilitative strategies and government had asserted three distinct treatments administered by prison staff. interests: prison se curity, crime

. In reversing a district court deterrence, and rehabilitation).

. that had found the prisoners’ experts We also noted that while a court “need not “more reasonable” than the government’s, nece ssarily enga ge in a detailed we cited Amatel for the basic proposition discussion” of the connection between a that “as long as [a] statute is rational, it prison policy and that interest, a “brief, clears [Turner]’s first hurdle.”

. conclusory statement” is insufficient for At least within the specific context of the evaluating the application of Turner’s first rehabilitation of recidivist sex offenders, prong.

Finally, we rejected the we also approved the Amatel court’s use government’s contention that such a of common sense with regard to whether a connection could always be found without ban on pornography might encourage the an evidentiary hearing: development of self-control and respect While the connection may be a for others. See

After examining the matter of common sense in certain other Turner factors, we upheld the New instances, such that a ruling on this Jersey statute as being reasonably related issue based only on the pleadings to the legitimate penological interest of may be appropriate, there may be sex-offender rehabilitation. situations in which the connection A. is not so apparent and does require s o me factu al dev elo p m e n t . We addressed whether the requisite Whether the requisite connection rational connection between a prison may be found solely on the basis of restriction and a legitimate penological “common sense” will depend on interest can be found on the basis of the nature of the right, the nature of “common sense” alone in Wolf v. the interest asserted, the nature of Ashcroft,

(3d Cir. 2002). In the proh ibition, and the Wolf, we reversed a district court’s obviousness of its connection to the decision upholding a restriction on the proferred interest. The showing showing of R-rated and NC-17-rated required will vary depending on movies in federal prisons. The district how close the court perceives the court in that case found that no evidentiary connection to be. record was necessary because we had endorsed Amatel’s “common sense”

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. On remand, we directed the issue, and then give the parties the district court to “describe the interest opportunity to adduce evidence sufficient served, consider whether the connection to enable a determination as to whether the between the policy and interest is obvious connection between these goals and the or attenuated--and, thus, to what extent restriction is rational under Turner. some foundation or evidentiary showing is While the obvious end of n e cessary--and, in light of this rehabilitation is the prevention of further determination, evaluate w hat th e lawbreaking once offenders are released government has offered.”

. from prison, the scope of the interest itself Turning to the appeal before us, we has never been defined by the Supreme find that the District Court erred in Court. See Amatel,

evaluating the Ensign Amendment and its (“Unlike its interest in institutional implementing regulation under Turner’s security, the contours of the government’s first prong on a motion to dismiss, without interest in rehabilitation are quite any analysis or inquiry into the interests amorphous and ill-defined.”) (Wald, J., involved and the connection between those dissenting). Certainly falling within the interests and the restriction at issue. First, legitimate bounds of the interest are prison although the District Court correctly policies designed to target the specific identified rehabilitation as a legitimate behavioral patterns that led to a prisoner’s penological interest, see O’Lone v. Estate incarceration in the first place, or of Shabazz,

(1987), it behavioral patterns emerging during did so without adequately describing the incarceration that present a threat of specific rehabilitative goal or goals lawbreaking activity other than that for furthered by the restriction on sexually which the prisoner was confined. To say, explicit materials. Second, even though however, that rehabilitation legitimately the connection between the amendment includes the promotion of “values,” and the rehabilitation of federal sex broadly defined, with no particularized offend ers may be obvious under identification of an existing harm towards Waterman, that connection becomes which the rehabilitative efforts are attenuated upon consideration of the entire addressed, would essentially be to population of BOP inmates, such that a acknowledge that pris oner s’ First factual record becomes necessary for Amendment rights are subject to the determining the rationality of the pleasure of their custodians. See, e.g.,

amendment’s overall connection to at 210 (arguing that under such a broad rehabilitative interests. On remand, definition of rehabilitation, lawmakers therefore, the District Court must first could constitutionally engage in viewpoint identify with particularity the specific discrimination by proscribing texts rehabilitative goals advanced by the expressing disfavored positions) (Wald, J., government to justify the restriction at dissenting). To the extent that the Amatel

6 majority defines rehabilitation in this way, (“[Turner’s] reasonableness standard is not we disagree with its reasoning. See

toothless.”) (internal quotation omitted);

(“[T]o proceed on some Amatel,

(“[M]ore vague assertion of an interest in precisely, [the standard] is not a license for ‘rehabilitation’ without the need to define lawmakers, any more than prison wardens, the term or to show a connection between to shortchange the constitutional rights that the proscribed activity and the chosen the Supreme Court has insisted prisoners definition . . . runs an overwhelming risk continue to possess. . . . If rehabilitation is of overregulation.”) (Wald, J., dissenting). to be deemed a legitimate penological While the actual right to view materials interest, the term must be given some subject to the Ensign Amendment’s shape, at least when it collides with proscriptions might be significantly narrow fundamental liberties.”) (W ald, J., in this case, courts may not abdicate their dissenting). As a preliminary step in responsibility to scrutinize carefully the determining the extent to which evidence government’s reasons for infringing that is required under Wolf where the right. 2 See Thornburgh, 490 U.S. at 414 penological interest advanced by the government is rehabilitation, therefore, a district court must describe with 2 particularity the specific rehabilitative goal Inmates have no right to receive or goals relied upon by the government to materials that constitute obscenity. justify the chall enged regulation. Miller v. California,

, 23 See Wolf,

(rejecting (1973) (“[O]bscene material is “conclusory” statements that make it unprotected under the First difficult to determine what connection a Amendment.”). However, materials that court sees between the advanced constitute indecent sexual expression not penological interest and a prison rising to the level of obscenity are restriction). constitutionally protected. Reno v. American Civil Liberties Union, 521 We may gather from the District U.S. 844, 874-75 (1997). To the extent Court’s reliance upon the scholarly works that the Ensign Amendment and its discussed in Amatel that, at the very least, implementing regulation target non- it believed the government’s specific obscene material, therefore, its rehabilitative goals to include the proscriptions must satisfy the prevention of sex crimes and violence requirements of Turner. In considering against women. See Amatel, 156 F.3d at the evidence on remand, the District Court should be sensitive to arguments that draw legitimate distinctions between that the government had provided no prohibited materials that are evidence that non-pornographic nudity constitutionally protected. See, e.g., has any effect on long-term rehabilitative Amatel,

(maintaining interests) (Wald, J., dissenting).

7 199-200. Were the Ensign Amendment’s convicted federal sex offenders. We scope limited to federal prisoners who recognize that the government has wide have committed sex crimes or violence l a t it u d e i n p u r s u i n g l e g i ti m a te against women, the means-end connection rehabilitative goals; courts may not would be sufficiently obvious such that the substitute their own judgment in place of first prong of Turner could be resolved on that of the legislative or executive the basis of common sense. In Waterman, branches where the position advanced by we found the prohibition against sexually the government is not “irrational or explicit material to be clearly connected to u n r e a s o n a b l e ” b u t s i m p l y “ l e ss the rehabilitation of recidivist sex reasonable” than that of the prisoner- offenders whose demonstrated inability to plaintiffs. See Waterman,

. control their sexual impulses had led to In the absence of a factual record, their incarceration at the facility in however, we cannot ignore the possibility question. See Waterman,

that the proscription rationally applies to (noting that restrictions on pornography such a small percentage of the BOP inmate f o st e r t he “deferring of sexual population that its connection to the gratification, [] sublimation of sexual government’s rehabilitative interest “is so impulses, [and] channeling of sexual remote as to render [it] arbitary or expression into long-term relationship of irrational.” Turner,

; caring and affection” related to the “now- Waterman,

(holding that missing self-control and respect for the Turner test subsumes traditional others”) (quoting Amatel, 156 F.3d at overbreadth and vagueness analyses). 199). However, we do not find the Determining whether there is a rational c o n n e c t io n b e t w e e n t h e E n sig n link between sexually explicit material and Amendment and the governmen t’s the harms toward which the government’s rehabilitative interest to remain obvious overall rehabilitative efforts are directed upon consideration of the entire federal requires more than a conclusory assertion inmate population, including those that the “consumption of [sexually prisoners not incarcerated for sex-related explicit] publications [] imp licitly crimes. In this case, therefore, we believe elevate[s] the value of the viewer’s Wolf necessitates the development of a immediate sexual gratification over the factual record. See Wolf,

values of respect and consideration for (requiring an evidentiary showing roughly others” and a generalized statement that corresponding to the degree to which the sexual self-control is relevant to the required means-end connection is rehabilitation of the entire class of federal “attenuated”). prisoners.3 Amatel,

. By no means do we wish to suggest that the only legitimate target of the 3 Ensign Amendment is the class of We further note that, “while a court can bolster its finding of a connection by

8 B. The third and fourth Turner factors require consideration as to whether As to whether an evidentiary basis accommodating the asserted right would is required for the remaining three Turner have an adverse impact “on guards and prongs, we repeat our observation that “we other inmates[] and on the allocation of have historically viewed these inquiries as prison resources,” as well as a being fact-intensive . . . [requiring] ‘a determination as to whether alternatives contextual, record-sensitive analysis.’” exist that can accommodate the right “at de Wolf,

(quoting DeHart v. minimus costs to valid penological Horn,

, 59 n.8 (3d Cir. 2000) interests.” Turner,

. The (en banc)). Where the link between the District Court’s apparent factual regulation at issue and the legitimate conclusion that accommodation “would government interest is sufficiently increase the risks of sexual crimes and obvious, no evidence may be necessary to misconduct within the prison walls,” is evaluate the other Turner prongs. See, speculative and unsupported. The e.g., Waterman,

; but see existence of a possible “ripple effect” on Wolf,

(observing that the the rehabilitation of prisoners legitimately first prong does not subsume the rest of the targeted by the Ensign Amendment could inquiry). In this case, however, we agree reasonably be disputed; certainly relevant with Ramirez that the third and fourth to this inquiry is whether those prisoners Turner factors cannot be adequately are housed separately from inmates whose assessed in the absence of an evidentiary rehabilitation would not be affected. For foundation.4 the same reason, it does not follow from

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

9 our decision in Waterman that limited government interest of rehabilitation distribution can never be conducted at without an adequate factual basis for so de minimus costs to valid penological doing.5 Accordingly, we will reverse the interests. See Waterman,

judgment of the District Court entered on (finding the third and fourth Turner prongs February 28, 2002 and remand with satisfied because the facility in question instructions to conduct an appropriate was insufficiently staffed to conduct case- proceeding before reevaluating the by-case reviews and prisoners were “more amendment and regulation under Turner. than likely” to pass materials among one another); cf. Amatel,

(arguing that a return to the case-by-case review embodied in the previously BOP regulation might not constitute an additional administrative burden because prison officials are required under the Ensign Amendment to examine each 5 We have not addressed the publication and determine whether it is government’s contention that the Ensign “sexually explicit or features nudity”) Amendment and its implementing (Ward, J., dissenting). Contrary to the regulation satisfy the Turner criteria decision in Amatel, we believe this to be a because they are reasonably related to the case in which factual development is legitimate penological interests of prison necessary for evaluating the Ensign security, deterrence, and punishment. Amendmen t and its im plem enting Although the District Court mentioned regulation under Turner. See Wolf, 297 “institutional security” as an interest to F.3d at 310 (“[C]ourts of appeals which the ban on sexually explicit ordinarily remand to the trial court where materials was rationally connected and the Turner factors cannot be assessed stated that accommodating the right because of an undeveloped record.”) “would increase the risks of sexual (citing Doe v. Delie,

, 317 crimes and misconduct,” its analysis (3d Cir. 2001)). focuses on the rehabilitative interest discussed in Amatel and Waterman. Cf. Mauro v. Arpaio,

(9th III. Cir. 1999) (finding a restriction on inmates’ possession of sexually explicit materials to be reasonably related to For the reasons discussed above, we institutional security under Turner). find that the District Court erred in Therefore, whether other legitimate determining that the Ensign Amendment penological interests might justify the and its implementing regulation were Ensign Amendment’s proscriptions is not reasonably related to the legitimate properly before us.

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