Julio Giano v. Daniel Senkowski, Superintendent, Clinton Correctional Facility Thomas Coughlin, Commissioner, Department of Correctional Services

54 F.3d 1050, 1995 U.S. App. LEXIS 11625

• Court: Court of Appeals for the Second Circuit
• Decided: May 16, 1995
• Docket: 359, Docket 94-2167
• Status: Published

Opinions

McLAUGHLIN, Circuit Judge:

In July 1991, inmate Julio Giano’s girlfriend sent him án envelope containing two semi-nude photographs of herself. Pursuant to prison policy, a prison mailroom employee confiscated the photographs.

Giano filed an action under 42 U.S.C. § 1983 in the United States District Court for the Northern District of New York (Neal P. MeCurn, Judge), against two high ranking prison officials. He argued that the prison’s policy banning sexually explicit photographs of inmates’ wives and girlfriends violated his right to free speech under the First Amendment and his right to equal protection under the Fourteenth Amendment. He sought injunctive and declaratory relief as well as money damages. After both sides moved for summary judgment, the action was assigned to a magistrate judge, who recommended granting defendants’ motion for summary judgment. The district court adopted the recommendation without opinion. Giano appeals.

Because the prison’s policy is rationally related to the legitimate penological concern of minimizing violence in the prison setting, and because the policy only minimally burdens Giano’s First Amendment freedoms, we affirm.

BACKGROUND

In July 1991, Clinton Correctional Facility (“Clinton”) had a policy that allowed inmates to possess commercially produced erotic literature, e.g., Playboy Magazine, but prohibited possession of nude or semi-nude photographs of spouses or girlfriends. The State of New York Department of Correctional Services’ Central Office Review Committee (“CORC”) explained that the policy was designed to maintain prison security and decrease violence among inmates, stating:

The possession of actual photographs of nude females, which may be either girlfriends or wives, could cause violent confrontations should they wind up in the possession of the wrong inmate/or be circulated amongst the members of the population. Photographs of nudes present a clear threat to safety, security and good order of the correctional facility. Consequently, due to the sensitive nature of nude photographs, they will not be permitted into the facility.

Pl. Mot. for Summ. J., Ex. B., Grievance No. WK 2089-88.

During July 1991, inmate Julio Giano’s girlfriend (they later married) sent him an envelope containing four photographs, two of which were semi-nude pictures of her. In accordance with prison policy, a Clinton mail-room employee removed the two semi-nude photographs from the envelope addressed to Giano, and placed them with Giano’s confiscated personal property. He then forwarded the rest of the envelope to Giano along with an explanatory note.

In April 1992, Giano filed a complaint under 42 U.S.C. § 1983 against defendants Daniel Senkowski, Superintendent of Clinton, and Thomas Coughlin, Commissioner of the Department of Correctional Services. He alleged that the prison policy: (1) violated his right to freedom of speech under the First Amendment; (2) violated his right to equal protection under the Fourteenth Amendment; and (3) was unconstitutionally vague. He sought injunctive and declaratory relief as well as money damages.

Both sides moved for summary judgment, and the case was assigned to a magistrate judge, who recommended granting defendants’ motion for summary judgment. Analyzing Clinton’s policy under the four-prong test set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the magistrate judge concluded that the policy passed constitutional muster because it was rationally related to legitimate penological interests. He further rejected Giano’s equal protection challenge, explaining that Giano offered no evidence that the policy intentionally discriminated against an identifiable class of prisoners, and finding that the policy applied evenhandedly to all inmates.

On March 19, 1994, the district court adopted the magistrate judge’s report-recommendation, and granted defendants’ motion for summary judgment without opinion. Gi-ano now appeals.

DISCUSSION

To prevail on a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that it is entitled to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Fed.R.Civ.P. 56(c). In deciding such a motion, the district court must view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor. Consarc Corp. v. Marine Midland Bank, N.A., 996 F.2d 568, 572 (2d Cir.1993). We review the district court’s grant of summary judgment de novo. Westinghouse Elec. Corp. v. New York City Transit Auth., 14 F.3d 818, 821 (2d Cir.1994).

I. Giano’s First Amendment Claim

Giano argues that the prison’s policy violates the First Amendment. We disagree.

Prison walls are not a barrier separating inmates from the protections of the constitution. Thornburgh v. Abbott, 490 U.S. 401, 407, 109 S.Ct. 1874, 1878, 104 L.Ed.2d 459 (1989); Turner v. Safley, 482 U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987). The Supreme Court has also acknowledged, however, that “[t]he fact of confinement and the needs of the penal institution’ impose limitations on constitutional rights, including those derived from the First Amendment, which are implicit in incarceration.” Jones v. North Carolina Prisoners’ Union, 433 U.S. , 97 S.Ct. 2532, 2537-38, 53 L.Ed.2d 629 (1977); see Pell v. Procunier, 417 U.S. 817, 822, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974); Wolff v. McDonnell, 418 U.S. 539, 555, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974).

A prison inmate, therefore, retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. North Carolina Prisoners’ Union, 433 U.S. at 125, 97 S.Ct. at 2537 (quoting Pell, 417 U.S. at 822, 94 S.Ct. at 2804). The Court has counseled judicial restraint in the federal courts’ review of prison policy and administration, noting that “courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.” Turner, 482 U.S. at 84, 107 S.Ct. at 2259 (quoting Procunier v. Martinez, 416 U.S. 396, 405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974)). Moreover, the doctrines of separation of powers and federalism (where, as here, a state penal system is involved) dictate a policy of judicial restraint. See id. at 85, 107 S.Ct. at 2259.

Turner is particularly instructive. There, inmates alleged that a prison policy prohibiting correspondence among inmates of different institutions violated the First Amendment. Balancing the competing concerns, the Turner court held that the appropriate standard of review was a “reasonableness” review. Turner, 482 U.S. at 89, 107 S.Ct. at 2261-62 (“[W]hen a prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.”). The Turner court explained that such a deferential standard was necessary if “prison administrators ..., and not the courts, [are] to make the difficult judgments concerning institutional operations.” Id. (quoting North Carolina Prisoners’ Union, 433 U.S. at 128, 97 S.Ct. at 2539) (internal quotations omitted).

The Turner court set forth a four-part test to determine the reasonableness of the regulation at issue;

First, there must be a “valid, rational connection” between the prison regulation and the legitímate governmental interest put forward to justify it_ Moreover, the governmental objective must be a legitimate and neutral one_

A second factor ... is whether there are alternative means of exercising the right that remain open to prison inmates....

A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally....

Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation..

Id. at 89-90, 107 S.Ct. at 2261-62 (citations omitted).

The Turner test has been routinely invoked to uphold prison policies restricting First Amendment rights that would not be permissible outside the prison context. See Thornburgh, 490 U.S. at 403, 109 S.Ct. at 1876 (upholding a regulation prohibiting inmates from receiving incoming publications which were detrimental to prison security); O’Lone v. Shabazz, 482 U.S. 342, 107 S.Ct. 2400, 96 L.Ed.2d 282 (1987) (upholding a regulation prohibiting Muslim inmates from attending weekly afternoon services), superseded by Religious Freedom Restoration Act of 1993 (“RFRA”), 42 U.S.C. § 2000bb (Nov. 16, 1993); Turner, 482 U.S. at 78, 107 S.Ct. at 2255-56 (upholding a regulation severely restricting correspondence between prisoners at different penal institutions); Fromer v. Scully, 874 F.2d 69 (2d Cir.1989) (upholding a policy restricting inmates’ beard length), superseded by RFRA.

Indeed, the very policy Giano complains about has been upheld in other circuits involving other prisons.¹ See Trapnell v. Riggsby, 622 F.2d 290, 292 (7th Cir.1980) (upholding prison policy banning nude photos of wives or girlfriends, but employing a stricter standard of review — reasonable regulations necessary to further significant government interests — than Turner)-, Davis v. Yohey, No. 90-172 (HDM) (D.Nev. July 8, 1991) (applying Turner to uphold a policy banning nude photographs of an inmate’s spouse or girlfriend), aff'd, 981 F.2d 1257 (9th Cir.1992) (unpublished order); Bullock v. McGinnis, No. 90-7019, 1992 WL 166666 (N.D.Ill. July 9, 1992) (same citing Trapnell), aff'd, 14 F.3d 604 (7th Cir.1993) (unpublished order); Furrow v. Magnusson, No. 90-0212 (DBH) (D.Me. May 31, 1991) (dismissing prisoner’s constitutional claims regarding prison officials’ confiscation of a photo album containing nude photographs), aff'd, 960 F.2d 143 (1st Cir.1992) (unpublished order); Thomas v. Scully, Civ. No. 89-4175, 1990 WL 200641, 1990 U.S. Dist. LEXIS 16229 (S.D.N.Y. Dec. 5, 1990) (applying Turner to uphold a policy banning nude photographs of an inmate’s spouse or girlfriend); see also Patterson v. Koehler, No. 83-1278, 718 F.2d 1100, 1983 U.S.App. LEXIS (6th Cir. Aug. 29, 1983) (unpublished opinion) (applying Trapnell to uphold prison policy), cert. denied, 464 U.S. 1046, 104 S.Ct. 719, 79 L.Ed.2d 181 (1984). But cf. Pepperling v. Crist, 678 F.2d 787 (9th Cir.1982) (although concluding that nude photographs of wives and girlfriends were emotionally charged and often lead to violent altercations among inmates, the court rejected the prison policy as too broad, holding that the prison must employ the less restrictive alternative — subsequently rejected in Turner — of prohibiting prisoners from openly displaying the photos in their cells).

The prisoner-plaintiff bears the burden of proving that the disputed regulation is unreasonable. See Fromer, 874 F.2d at 74 (“[T]here was no burden on DOCS [Department of Correctional Services] to persuade the district court that its concerns [justifying a prison policy restricting beard length] were justifiable. Rather, the burden was on the plaintiff to show that these concerns were irrational.”). Cf. O’Lone, 482 U.S. at 350, 107 S.Ct. at 2405 (“By placing the burden on prison officials to disprove the availability of alternatives, the approach articulated by the Court of Appeals fails to reflect the respect and deference that the United States Constitution allows for the judgment of prison administrators.”); Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262 (“[PJrison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.”). Thus, although we must draw all reasonable inferences in Giano’s favor for purposes of summary judgment, Giano must still meet his burden of proving the policy irrational to avoid dismissal.

1. Turning to the first Turner factor, the prison officials’ purpose in promulgating the regulation — maintaining prison security and protecting against increased inmate violence — is obviously legitimate. See e.g., Thornburgh, 490 U.S. at 415, 109 S.Ct. at 1882 (the legitimacy of prison regulations whose purpose is to protect prison security is beyond question because that purpose is “central to all other corrections goals”) (quoting Pell, 417 U.S. at 823, 94 S.Ct. at 2804).

Giano, however, disputes that there is a valid, rational connection between the legitimate interest of maintaining prison security and Clinton’s policy. He contends that the policy is irrational and arbitrary, and that the government did not produce “an iota of evidence” to support it.

In response, the government advances two reasons why inmate possession of nude or semi-nude pictures of inmates’ wives or girlfriends may precipitate violence within the prison population: (1) an inmate who knows a fellow inmate or guard has seen the photographs without permission may become violent; and (2) insults — intended or perceived — from inmates who see the photographs (even with permission) may lead to violence. The government contends that the threat of violence establishes a logical connection between the policy and the legitimate government interest of maintaining prison security. We find the government’s explanation of the connection between the prison regulation and the legitimate interest both valid and rational.

Our dissenting brother dismisses the government’s explanation as “little more than a knee-jerk reaction,” although he concedes that some regulations are so obviously well grounded that they may be sustained upon a “common sense determination.” Post at 1059. Thus, we are of one mind on the principle, but disagree as to its application. We believe that common sense supports summary judgment here, as did every other federal court, save one, to pass on this question. We decline to dismiss those cases dealing with the same issue by regarding each as “a restricted railroad ticket, good for this day and train only.” Smith v. Allwright, 321 U.S. 649, 669, 64 S.Ct. 757, 768, 88 L.Ed. 987 (1944) (Roberts, J., dissenting).

Prison officials must be given latitude to anticipate the probable consequences of certain speech, see Martinez, 416 U.S. at 414, 94 S.Ct. at 1811-12, and must be allowed to take reasonable steps to forestall violence. North Carolina Prisoners’ Union, 433 U.S. at 132-33, 97 S.Ct. at 2541-42. Specifically, courts that have addressed banning nude photographs of inmate’s wives or girlfriends have not required the extensive empirical support Giano demands before making the common sense determination that these photographs may provoke violence. In Pepperling v. Crist, 678 F.2d 787 (9th Cir.1982), for example, the court accepted as a “point [] well-taken” the proposition, unsupported by the reported facts in the record, that nude photos of wives or girlfriends were “highly emotionally charged and often lead to violent altercations among prisoners.” Id. at 790. Similarly, the court in Trapnell v. Riggsby, 622 F.2d 290 (7th Cir.1980), upheld the regulation upon the simple showing that the prison housed long-term offenders with assaultive patterns of behavior, and the magistrate judge’s unsupported (except by common sense) assertion that “the ‘highly emotionally charged’ nature of the photographs” increased the prisoners’ propensity for violence. Id. at 293.

Because there is ample case law holding that the connection between the legitimate government interest and the prison’s policy is valid and rational without the need for extensive factual “proof’ of the link, and because we accord substantial deference to the informed judgment of prison officials on matters of prison administration, we find that there is a valid, rational connection between Clinton’s policy and maintaining prison order and security.

As to neutrality: even content-based First Amendment restrictions have been treated as neutral if their sole purpose is to maintain prison security and decrease violence among inmates. See Thornburgh, 490 U.S. at 415-16, 109 S.Ct. at 1882-83 (“Where, as here, prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are ‘neutral’_”). Here, the prison policy is obviously content-based because its application depends on the sexually explicit nature of the photographs. The regulation nevertheless passes constitutional muster because its purpose is to maintain prison security and decrease violence among inmates. The regulation operates in a neutral fashion because it furthers “an important or substantial governmental interest unrelated to the suppression of expression.” Thornburgh, 490 U.S. at 415, 109 S.Ct. at 1882 (quoting Martinez, 416 U.S. at 413, 94 S.Ct. at 1811).

2. Regarding Turner’s second criterion, alternative means of exercising Giano’s alleged First Amendment right remain open to inmates. We view the right “sensibly and expansively,” Thornburgh, 490 U.S. at 417, 109 S.Ct. at 1884, and allow for flexibility in determining what qualifies as another means of expression. See Turner, 482 U.S. at 78, 107 S.Ct. at 2255-56 (regulation which prohibits communication between inmates at different prisons does not deprive inmates of all means of communication); see also Thomas v. Scully, Civ. No. 89-4715, 1990 U.S. Dist. LEXIS 17084, at *11 (S.D.N.Y. June 28, 1990) (Magistrate’s Report) (“[S]o long as the regulations foreclose only one of several ways in which inmates may exercise a specific first amendment right, the fact the prohibited activity may be a more desirable means of expression does not diminish the import of the remaining alternative.”).

If Giano’s right is framed as the right to graphic sexual imagery to satisfy carnal desires and expressions, commercially produced erotica and sexually graphic written notes from wives or girlfriends are adequate substitutes for semi-nude personal photographs. If, on the other hand, the right is seen as reinforcing the emotional bond between loved ones and similar affective links, conventional photographs and romantic letters would adequately satisfy this need. Historical evidence is abundant. For example, couples separated by the Civil War relied on studio portraits, cartes de visite and locket miniatures to keep green the memory of their beloved.

We intend no moral aspersions on Giano’s preferred means of expressing his emotional bond with his paramour, recognizing, as we do, that one man’s pornography may be another’s keepsake. We do, however, hold that where “other avenues” remain available for the exercise of the asserted right, courts should defer to the informed discretion of prison officials to gauge the validity of the regulation. See Turner, 482 U.S. at 90, 107 S.Ct. at 2262.

3. As to Turner’s third prong, if Giano’s claim is accorded full constitutional protection, it will, perforce, have an adverse impact on guards, other inmates and prison resources. As discussed above, courts are not oblivious to the relationship between allowing prisoners to possess nude photos of loved ones and the increased probability of violence among prisoners. Supra. Increased violence among inmates has a direct adverse affect on the inmates involved, and a ripple effect on other inmates, prison staff and prison resources. See generally Turner, 482 U.S. at 90, 107 S.Ct. at 2262 (“When the accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.”). Violent encounters among inmates drain prison resources quelling unrest and disciplining offenders. Furthermore, any increase in the level of prison violence unnecessarily risks lighting a spark in an environment in which there is no dearth of short fuses.

4. Finally, as to Turner’s fourth prong, we find that obvious, easy alternatives to the policy do not exist. The alternative suggested by Giano — allowing possession, but prohibiting inmates from displaying the personal photos in their cell and from distributing them to other prisoners, see Pepperling, 678 F.2d at 790-91,—imposes more than a de minimis cost on the state’s valid peno-logical concerns. It cavalierly disregards the informed judgment of prison officials regarding the ease with which such photos could fall into other inmates’ hands and lead to violence. Moreover, after Turner, there is no requirement that prison officials adopt the least restrictive alternative to their preferred policy. Turner, 482 U.S. at 90-91, 107 S.Ct. at 2262. We further note that the prison’s policy is not an “exaggerated response” to the problem (such as prohibiting all erotica might be), since other well-run prison systems, including the Federal Bureau of Prisons, have enacted similar policies to promote security and decrease the risk of violence. See, e.g., Thomas, 1990 U.S. Dist. LEXIS 17084, at *10-*11.

In addition, the administrative simplicity of Clinton’s rule contrasts sharply with the difficult line-drawing of alternatives: the more hardened the convicts, the greater the danger of violence should the photos fall into the wrong hands. In minimum security prisons, the open atmosphere facilitates easy access to other inmate’s pictures. Alternative policies involve administratively cumbersome line-drawing regarding the extent of the “right” to possess these photos and to whom the protection applies. For example, does the right apply to particularly degenerate or gruesome photographs? Should it be limited to spouses or extend to girlfriends, to a particular number of girlfriends, or lovers of the same sex as the inmate?

II. Giano’s Remaining Claims

In his brief, Giano mentions without elaboration the alternate arguments that Clinton’s policy (1) violates the equal protection clause and (2) is unconstitutionally vague. Both claims are meritless.

The equal protection clause directs state actors to treat similarly situated people alike. See Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 3254, 87 L.Ed.2d 313 (1985). To prove an equal protection violation, claimants must prove purposeful discrimination, see McCleskey v. Kemp, 481 U.S. 279, 292, 107 S.Ct. 1756, 1767, 95 L.Ed.2d 262 (1987), directed at an identifiable or suspect class. See Kadrmas v. Dickinson Pub. Schs., 487 U.S. 450, 457-58, 108 S.Ct. 2481, 2487, 101 L.Ed.2d 399 (1988). Here, Giano presents no evidence that the policy discriminated against a particular class of inmates. In fact, Clinton’s policy was applied to all inmates. Thus, Giano’s equal protection claim fails.

A statute is unconstitutionally vague if persons of common intelligence must necessarily guess at its meaning and differ as to its application, see Connolly v. General Constr. Co., 269 U.S. 385, 391, 46 S.Ct. 126, 127, 70 L.Ed. 322 (1926), or if it fails to give a person of ordinary intelligence fair notice of conduct proscribed or required by the regulation, see United States v. Harriss, 347 U.S. 612, 617, 74 S.Ct. 808, 811-12, 98 L.Ed. 989 (1954), and encourages arbitrary and erratic behavior on the part of officials charged with enforcing the rule. See Papachristou v. City of Jacksonville, 405 U.S. 156, 162, 92 S.Ct. 839, 843, 31 L.Ed.2d 110 (1972).

Clinton’s policy plainly proscribed nude or semi-nude photographs of wives or girlfriends. In reviewing the policy, CORC defined “nudity” as:

[T]he showing of the human male or female genitals, pubic area or buttocks with less than a full opaque covering, or the showing of the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple, or the depiction of covered male genitals in a discernibly turgid state.

Defs. Mot. for Summ. J., Ex. B., Grievance No. FCF-10346-91 (citing N.Y. Penal Law § 245.10). A person of ordinary intelligence would understand this policy. Accordingly, we find that the prison policy is not unconstitutionally vague.

CONCLUSION

In the prison context, courts applying Turner have routinely sanctioned restrictions similar, and in some cases identical, to the one we uphold today. Moreover, the distinction between commercial and non-commercial nude photographs inures to the inmate’s benefit. Instead of banning all erotica, prison officials have prohibited only the sexually explicit material with the greatest likelihood for causing violence and disorder within the prison system. Their reward for forging a compromise policy that allows prisoners access to some sexually explicit material is this lawsuit. Perhaps it is true, after all, that no good deed goes unpunished.

The dissent’s suggestion that our affir-mance of a prison regulation barring certain naked pictures from the prison puts us on the damnable path to Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (upholding an executive order that excluded citizens of Japanese ancestry from restricted areas of the West coast and placed them in relocation centers), is a lyric leap. Courts do not exist to rubber stamp bureaucratic excesses. There is a point where judicial deference to executive or administrative expertise must be denied. Nude pictures of loved ones in a prison setting do not begin to approach that point.

Because Clinton’s policy is rationally related to the legitimate penological concerns of maintaining security and minimizing violence in the prison setting, and because the policy only minimally burdens Giano’s First Amendment freedoms, we affirm the decision of the district court granting defendants’ motion for summary judgment.

AFFIRMED.

1 . The dissent notes that the appellate rules of the Seventh and Ninth Circuits prohibit citations to unpublished panel opinions. Compare 7th Cir.R. 53 (prohibiting citation to unreported panel opinions); 9th Cir.R. 36-3 (same); 1st Cir. R. 36.2 (same) with 6th Cir.R. 24 (merely disfavoring citation to unpublished panel opinions). Paradoxically, the dissent then quotes from those unpublished decisions. The majority, in contrast, cites to the district court decisions in Davis, Bullock, and Furrow, merely noting the affir-mances as relevant subsequent history, pursuant to Blue Book R. 10.7.1(a) (15th ed. 1991). We realize, of course, that the decisions of the two appellate court panels and four federal district courts we cite do not bind this Court. We are, however, not as quick as the dissent to disregard the judgments of other federal courts that have passed on prison regulations barring nude photos of spouses and loved ones.