986 F.2d 257
Richard T. DAWSON; Kenneth E. Gordon; George Segler;
Kline E. Goeders; Troy P. Shearon, Plaintiffs-Appellees,
v.
David SCURR; Terry Branstad; Paul Hedgepeth; Paul
Grossheim; Jack Pascal; Earl Willits; Charles
Lee; John Sissel; Crispus Nix; Gary
Baugher, Defendants-Appellants.
Richard T. DAWSON; Plaintiff,
Kenneth E. Gordon; George Segler; Kline E. Goeders; Troy
P. Shearon, Plaintiffs-Appellants,
Tyrone Pierce, Intervenor-Appellant,
v.
David SCURR; Terry Branstad; Paul Hedgepeth; Paul
Grossheim; Jack Pascal; Earl Willits; Charles
Lee; John Sissel; Crispus Nix; Gary
Baugher, Defendants-Appellees.
Richard T. DAWSON; Kenneth E. Gordon; George Segler;
Kline E. Goeders; Troy P. Shearon, Plaintiffs-Appellees,
Tyrone Pierce; Intervenor-Appellee,
v.
David SCURR; Terry Branstad; Paul Hedgepeth; Paul
Grossheim; Jack Pascal, Defendants-Appellants,
Earl Willits, Defendant,
Charles Lee; John Sissel; Crispus Nix; Gary Baugher;
James Helling; Donald Lynch, Defendants-Appellants.
Nos. 91-3755, 91-3778 and 92-1702.
United States Court of Appeals,
Eighth Circuit.
Submitted Nov. 9, 1992.
Decided Feb. 23, 1993.
Rehearing and Rehearing En Banc
Denied April 5, 1993.
Robin A. Humphrey, Des Moines, IA, argued, for defendants-appellants.
Philip B. Mears, Iowa City, IA, argued, for plaintiffs-appellees.
Before RICHARD S. ARNOLD, Chief Judge, LAY, Senior Circuit Judge, and LOKEN, Circuit Judge.
LAY, Senior Circuit Judge.
Inmates at the Iowa State Penitentiary (ISP) in Fort Madison, Iowa, challenged the constitutionality of Iowa prison regulations relating to the right of inmates to possess certain sexually explicit material in their cells. The district court, based upon the magistrate judge's recommendation, enjoined the prison authorities from enforcing the rule. The court awarded plaintiffs' reasonable attorney fees, but denied plaintiffs' other requested relief. The defendants have appealed the issuance of the injunction; the inmates have cross-appealed urging that the defendants should be held in contempt and seek damages. We reverse and order the injunction vacated; in addition, we vacate the award of attorney fees.
I.
Iowa Admin.Code R. 291-20.6(4), as it existed in 1981, barred prison inmates from receiving many sexually explicit publications. Seven inmates sued various prison and government officials, arguing that the rule violated the First Amendment. In September 1988, the district court, adopting the report and recommendation of the magistrate judge, found that Rule 20.6(4) was unconstitutional. The court reasoned that the regulation was overbroad, vague, and subject to inconsistent application; moreover, prison officials had not demonstrated the rule protected any significant interest in prison security. The district court therefore enjoined enforcement of the rule. See Dawson v. Scurr, No. 81-373-D (S.D.Iowa Sept. 6, 1988) (Dawson I ). Defendants did not appeal.
In December 1988, the Iowa Board of Corrections promulgated a new regulation, Iowa Admin.Code R. 291-20.6(4)-(6). Rule 20.6(4) provided that prison officials could exclude publications which portrayed, inter alia, child sex acts, sadomasochism or bestiality. Rule 20.6(5) provided that inmates found psychologically unfit could be denied access to sexually explicit materials. Finally, Rule 20.6(6) limited inmate access to publications portraying "fellatio, cunnilingus, masturbation, ejaculation, sexual intercourse or male erection" to a "designated controlled area" (the reading room).
Following promulgation of this new rule, publication review committee members screened publications ordered by inmates and decided whether to allow, control or deny a publication. Publications which were allowed were permitted in inmates' cells; these publications might contain sexually explicit material, but not depictions described in Rule 20.6(6). Publications which were controlled were those which contained depictions described in Rule 20.6(6); these could be viewed only in the reading room. Finally, publications which were denied (those containing child sex acts or bestiality, for example) were banned altogether.
In 1988, when the new rule went into effect, the Iowa State Penitentiary in Fort Madison had some 450 inmates. Around 150 of them were screened to determine fitness for receipt of sexually explicit materials. Seven of those inmates were found unfit.
For those found psychologically fit, the Iowa State Penitentiary provides a reading room for viewing controlled materials. The room, one of the attorney-client visiting areas, is approximately six feet wide by eight feet long. Before entering the reading room, inmates are strip searched; they receive their publication in a brown paper bag, then walk through a general visitation area into the reading room. There is a window between the visiting room and the reading room. Inmates are allowed to use the reading room only when the visiting room is open to the public and only for 30 minutes at a time. Publications are retained for three months, after which the inmate must either send the material out of the prison or allow it to be destroyed. Finally, masturbation is prohibited in the reading room.
Five inmates, all of whom were found psychologically fit to view sexually explicit material, challenged the new rule. They argued that (1) res judicata principles precluded relitigating the issue of inmate access to sexually explicit materials because of the injunction in Dawson I; (2) by promulgating the new rule, defendants violated the injunction in Dawson I and should be found in contempt; and (3) the new rule was constitutionally invalid under the test set out in Thornburgh v. Abbott, 490 U.S. 401, 414-19, 109 S.Ct. 1874, 1881-84, 104 L.Ed.2d 459 (1989); thus, enforcement of the rule should be enjoined, and plaintiffs should receive money damages.
The district court, adopting the magistrate's report and recommendation, enjoined enforcement of Rule 20.6(6), but not Rules 20.6(4) or 20.6(5). The court refused, however, to apply issue preclusion, holding the initial claim for relief was not the same request for money damages for contempt of the original injunction. Pursuant to 42 U.S.C. § 1988, the judge ordered defendants to pay reasonable attorney fees.
II.
A. Constitutionality of Rule 20.6(6)
The law is settled that prison regulations which restrict an inmate's access to publications are constitutionally valid if they are "reasonably related to legitimate penological interests." Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S.Ct. 1874, 1876, 104 L.Ed.2d 459 (1989).
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986 F.2d 257
Richard T. DAWSON; Kenneth E. Gordon; George Segler;
Kline E. Goeders; Troy P. Shearon, Plaintiffs-Appellees,
v.
David SCURR; Terry Branstad; Paul Hedgepeth; Paul
Grossheim; Jack Pascal; Earl Willits; Charles
Lee; John Sissel; Crispus Nix; Gary
Baugher, Defendants-Appellants.
Richard T. DAWSON; Plaintiff,
Kenneth E. Gordon; George Segler; Kline E. Goeders; Troy
P. Shearon, Plaintiffs-Appellants,
Tyrone Pierce, Intervenor-Appellant,
v.
David SCURR; Terry Branstad; Paul Hedgepeth; Paul
Grossheim; Jack Pascal; Earl Willits; Charles
Lee; John Sissel; Crispus Nix; Gary
Baugher, Defendants-Appellees.
Richard T. DAWSON; Kenneth E. Gordon; George Segler;
Kline E. Goeders; Troy P. Shearon, Plaintiffs-Appellees,
Tyrone Pierce; Intervenor-Appellee,
v.
David SCURR; Terry Branstad; Paul Hedgepeth; Paul
Grossheim; Jack Pascal, Defendants-Appellants,
Earl Willits, Defendant,
Charles Lee; John Sissel; Crispus Nix; Gary Baugher;
James Helling; Donald Lynch, Defendants-Appellants.
Nos. 91-3755, 91-3778 and 92-1702.
United States Court of Appeals,
Eighth Circuit.
Submitted Nov. 9, 1992.
Decided Feb. 23, 1993.
Rehearing and Rehearing En Banc
Denied April 5, 1993.
Robin A. Humphrey, Des Moines, IA, argued, for defendants-appellants.
Philip B. Mears, Iowa City, IA, argued, for plaintiffs-appellees.
Before RICHARD S. ARNOLD, Chief Judge, LAY, Senior Circuit Judge, and LOKEN, Circuit Judge.
LAY, Senior Circuit Judge.
Inmates at the Iowa State Penitentiary (ISP) in Fort Madison, Iowa, challenged the constitutionality of Iowa prison regulations relating to the right of inmates to possess certain sexually explicit material in their cells. The district court, based upon the magistrate judge's recommendation, enjoined the prison authorities from enforcing the rule. The court awarded plaintiffs' reasonable attorney fees, but denied plaintiffs' other requested relief. The defendants have appealed the issuance of the injunction; the inmates have cross-appealed urging that the defendants should be held in contempt and seek damages. We reverse and order the injunction vacated; in addition, we vacate the award of attorney fees.
I.
Iowa Admin.Code R. 291-20.6(4), as it existed in 1981, barred prison inmates from receiving many sexually explicit publications. Seven inmates sued various prison and government officials, arguing that the rule violated the First Amendment. In September 1988, the district court, adopting the report and recommendation of the magistrate judge, found that Rule 20.6(4) was unconstitutional. The court reasoned that the regulation was overbroad, vague, and subject to inconsistent application; moreover, prison officials had not demonstrated the rule protected any significant interest in prison security. The district court therefore enjoined enforcement of the rule. See Dawson v. Scurr, No. 81-373-D (S.D.Iowa Sept. 6, 1988) (Dawson I ). Defendants did not appeal.
In December 1988, the Iowa Board of Corrections promulgated a new regulation, Iowa Admin.Code R. 291-20.6(4)-(6). Rule 20.6(4) provided that prison officials could exclude publications which portrayed, inter alia, child sex acts, sadomasochism or bestiality. Rule 20.6(5) provided that inmates found psychologically unfit could be denied access to sexually explicit materials. Finally, Rule 20.6(6) limited inmate access to publications portraying "fellatio, cunnilingus, masturbation, ejaculation, sexual intercourse or male erection" to a "designated controlled area" (the reading room).
Following promulgation of this new rule, publication review committee members screened publications ordered by inmates and decided whether to allow, control or deny a publication. Publications which were allowed were permitted in inmates' cells; these publications might contain sexually explicit material, but not depictions described in Rule 20.6(6). Publications which were controlled were those which contained depictions described in Rule 20.6(6); these could be viewed only in the reading room. Finally, publications which were denied (those containing child sex acts or bestiality, for example) were banned altogether.
In 1988, when the new rule went into effect, the Iowa State Penitentiary in Fort Madison had some 450 inmates. Around 150 of them were screened to determine fitness for receipt of sexually explicit materials. Seven of those inmates were found unfit.
For those found psychologically fit, the Iowa State Penitentiary provides a reading room for viewing controlled materials. The room, one of the attorney-client visiting areas, is approximately six feet wide by eight feet long. Before entering the reading room, inmates are strip searched; they receive their publication in a brown paper bag, then walk through a general visitation area into the reading room. There is a window between the visiting room and the reading room. Inmates are allowed to use the reading room only when the visiting room is open to the public and only for 30 minutes at a time. Publications are retained for three months, after which the inmate must either send the material out of the prison or allow it to be destroyed. Finally, masturbation is prohibited in the reading room.
Five inmates, all of whom were found psychologically fit to view sexually explicit material, challenged the new rule. They argued that (1) res judicata principles precluded relitigating the issue of inmate access to sexually explicit materials because of the injunction in Dawson I; (2) by promulgating the new rule, defendants violated the injunction in Dawson I and should be found in contempt; and (3) the new rule was constitutionally invalid under the test set out in Thornburgh v. Abbott, 490 U.S. 401, 414-19, 109 S.Ct. 1874, 1881-84, 104 L.Ed.2d 459 (1989); thus, enforcement of the rule should be enjoined, and plaintiffs should receive money damages.
The district court, adopting the magistrate's report and recommendation, enjoined enforcement of Rule 20.6(6), but not Rules 20.6(4) or 20.6(5). The court refused, however, to apply issue preclusion, holding the initial claim for relief was not the same request for money damages for contempt of the original injunction. Pursuant to 42 U.S.C. § 1988, the judge ordered defendants to pay reasonable attorney fees.
II.
A. Constitutionality of Rule 20.6(6)
The law is settled that prison regulations which restrict an inmate's access to publications are constitutionally valid if they are "reasonably related to legitimate penological interests." Thornburgh v. Abbott, 490 U.S. 401, 404, 109 S.Ct. 1874, 1876, 104 L.Ed.2d 459 (1989). In determining the reasonableness of a prison regulation, this court must consider: (1) whether a rational connection exists between the regulation and a neutral, legitimate government interest; (2) whether alternative means exist for inmates to exercise the constitutional right at issue; (3) what impact the accommodation of the right would have on inmates, prison personnel, and allocation of prison resources; and (4) whether obvious, easy alternatives exist. See Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 2261-62, 96 L.Ed.2d 64 (1987); Thornburgh, 490 U.S. at 414-19, 109 S.Ct. at 1881-84.
The defendants advanced two reasons for Rule 20.6(6). One purpose was rehabilitative. If publications containing the specified depictions were allowed in the cells of some inmates, they would likely be passed around and find their way into the cells of psychologically unfit inmates, interfering with their rehabilitation. In addition, defendants indicated a security goal, contending that the materials could cause some inmates to act out their sexual aggression toward other inmates or prison personnel. We believe that these objectives are legitimate. Security is clearly a valid penological goal. O'Lone v. Estate of Shabazz, 482 U.S. 342, 348, 107 S.Ct. 2400, 2404, 96 L.Ed.2d 282 (1987); Thornburgh, 490 U.S. at 415, 109 S.Ct. at 1882. Rehabilitation is also a legitimate objective. Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974).
As to the neutrality requirement, the Thornburgh Court made clear that it is met if the regulation 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 Procunier v. Martinez, 416 U.S. 396, 413, 94 S.Ct. 1800, 1811, 40 L.Ed.2d 224 (1974). Thus, when prison administrators distinguish between publications on the basis of their potential implications for prison security and rehabilitation, as was done here, they are "neutral." 490 U.S. at 415-16, 109 S.Ct. at 1882-83.
The district court concluded that there was no rational connection between the regulation and the asserted governmental interests. We must respectfully disagree. Thornburgh recognizes that suspect publications, once in the prison, "may be expected to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct." 490 U.S. at 412, 109 S.Ct. at 1881. We hold Rule 20.6(6) rationally furthers the asserted goals of rehabilitation and security by restricting access to those materials to a reading room during certain times, thus preventing the dissemination of these materials to the general prison population. Rule 20.6(6) does not ban such materials from the prison. Under the circumstances, we think that the regulation is an acceptable way for prison officials to accommodate the inmates' First Amendment rights while advancing their legitimate interest in prison security and inmate rehabilitation.
The second factor to be evaluated examines whether alternative means of exercising the right remain open to inmates. Thornburgh states that the right in question "must be viewed sensibly and expansively." Id. at 417, 109 S.Ct. at 1883. Here, a broad range of publications are permitted in the prison. Moreover, inmates are allowed to keep many sexually explicit materials in their cells. Unlike a complete prohibition, Rule 20.6(6) merely restricts the time and place of access to certain sexually explicit materials. We are cautioned that "courts should be particularly conscious of the 'measure of judicial deference owed to corrections officials ... in gauging the validity of the regulation.' " Turner v. Safley, 482 U.S. 78, 90, 107 S.Ct. 2254, 2262, 96 L.Ed.2d 64 (1987), quoting Pell v. Procunier, 417 U.S. 817, 827, 94 S.Ct. 2800, 2806, 41 L.Ed.2d 495 (1974). Here, as in Thornburgh, there exists other means for inmates to exercise their first amendment rights since the regulations "permit a broad range of publications to be sent, received and read." 490 U.S. at 418, 109 S.Ct. at 1884.
The third concern of the Turner- Thornburgh analysis relates to the impact that accommodation of the asserted constitutional right will have on other inmates and prison personnel. The district court found that permitting the controlled magazines in individual cells would have little impact on prison personnel or resources. The court reasoned that guards perform cell searches for other types of contraband, so they could simply make certain that these materials are not found in the cells of psychologically unfit inmates. We think that this reasoning misses the mark. Inmates are only screened for psychological fitness if they order sexually explicit publications subject to Rule 20. The record shows less than one percent of the total inmate population in the State of Iowa has requested such publications. Prison officials testified that screening all of the inmates would be expensive, create a tremendous administrative burden, and require an inordinate amount of administrative staff time. As the Turner Court instructed, we should defer to the "informed discretion of corrections officials" where accommodating the right would have a significant "ripple effect" on prison staff. 482 U.S. at 90, 107 S.Ct. at 2262.
Finally, the existence of obvious, easy alternatives which fully accommodate the inmates' rights at de minimis cost to valid penological interests may suggest that the regulation is unreasonable and an "exaggerated response" to prison concerns. The district court concluded that the rule was an exaggerated response to defendants' rehabilitation and security objectives. We disagree. Defendants have demonstrated that cell searches in this context would present administrative difficulty and cost. In addition, the alternative of a cell search does not come at a de minimis cost to the penological interests at issue. Allowing the restricted publications into individual cells, where they would likely be disseminated to other inmates, would substantially interfere with defendants' rehabilitation and security objectives. It is true that publications which depict nudity are permitted to be taken in individual cells and likely are passed within the institution. However, defendants' expert witness testified that the restricted publications, which depict sex acts, are more detrimental to rehabilitation.
Perhaps others would have chosen a different scheme to advance defendants' objectives, and it may be that Rule 20.6(6) is not the least restrictive way of doing so. Under Thornburgh, however, the test is simply one of reasonableness. 490 U.S. at 410-14, 109 S.Ct. at 1879-82 (rejecting the Martinez least restrictive means test). We find Rule 20.6(6) provides a reasonable means of allowing access to sexually explicit materials while advancing the legitimate penological interests in rehabilitation and security.
Because we conclude Rule 20.6(6) is constitutional, we vacate the district court's issuance of injunctive relief.
B. Constitutionality of Rule 20.6(6) as applied
The inmates argue that even if Rule 20.6(6) is facially valid, it is nevertheless unconstitutional as applied. They contend that the reading room at Fort Madison is unreasonable because of its location adjacent to a visiting room where women and children may be present. Prison officials testified at the evidentiary hearing that this location is the one common area to which all inmates at the Fort Madison facility have access. Having one reading room, rather than multiple rooms to serve different custody levels as plaintiffs request, is reasonable. One central reading room conserves needed space; all of the controlled publications are situated at one central location; and, because the visiting room staff is already in place, no staff need to be added to monitor the reading room. The reading room at issue therefore is constitutional as applied.
C. Attorney fees
The district court ordered defendants to pay plaintiffs' attorney fees pursuant to 42 U.S.C. § 1988, which authorizes such an award to a "prevailing party." Two of the defendants, James Helling and Donald Lynch, did not appeal the district court's injunction order, although they did appeal the attorney fee award. Plaintiffs argue that even if this court vacates the injunction, they are still prevailing parties as to the two defendants who did not appeal the injunction. We must respectfully disagree.
Whether a plaintiff is a prevailing party under section 1988 focuses on the result and whether it materially alters the legal relationship of the parties. Farrar v. Hobby, --- U.S. ----, ----, 113 S.Ct. 566, 571, 121 L.Ed.2d 494 (1992). The Farrar Court stated, "[A] plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff." Id. at 573. We think it clear that plaintiffs are not prevailing parties. Plaintiffs have obtained none of the requested relief, either injunctive or monetary, and the defendants' behavior was not modified to plaintiffs' benefit. Accordingly, we vacate the award of attorney fees as to all defendants.
III.
In sum, we hold that Iowa Administrative Code Rule 291-20.6(6) is constitutionally valid under Turner's reasonableness standard. We therefore vacate the district court's injunction and award of attorney fees. We find no merit to the cross-appeal as to the district court's denial of issue preclusion and the refusal of the district court to award money damages for contempt.