188 F.3d 1054 (9th Cir. 1999), 97-16021, Mauro v. Arpaio

Docket Nº:97-16021
Citation:188 F.3d 1054
Party Name:JONATHAN D. MAURO, Plaintiff-Appellant, v. JOSEPH M. ARPAIO, Sheriff; MARICOPA COUNTY, a political subdivision of the State of Arizona, Defendants-Appellees.
Case Date:August 17, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 1054

188 F.3d 1054 (9th Cir. 1999)

JONATHAN D. MAURO, Plaintiff-Appellant,


JOSEPH M. ARPAIO, Sheriff; MARICOPA COUNTY, a political subdivision of the State of Arizona, Defendants-Appellees.

No. 97-16021

United States Court of Appeals, Ninth Circuit

August 17, 1999

Argued and Submitted March 25, 1999--Pasadena, California

Page 1055

[Copyrighted Material Omitted]

Page 1056

[Copyrighted Material Omitted]

Page 1057

Nicholas S. Hentoff, Phoenix, Arizona, for the plaintiff-appellant.

Daniel P. Struck and David C. Lewis, Jones, Skelton & Hochuli, Phoenix, Arizona, for the defendants-appellees.

Appeal from the United States District Court for the District of Arizona; Robert C. Broomfield, District Judge, Presiding, D.C. No. CV-95-02729-RCB.

Before: Procter Hug, Jr., Chief Judge, Mary M. Schroeder, Betty B. Fletcher, Melvin Brunetti, Ferdinand F. Fernandez, Pamela Ann Rymer, Thomas G. Nelson, Andrew J. Kleinfeld, A. Wallace Tashima, Sidney R. Thomas and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge T.G. Nelson;

Dissents by Judges Schroeder, B. Fletcher and Kleinfeld

T.G. NELSON, Circuit Judge:

This case concerns the constitutionality of a policy issued by Joseph M. Arpaio, in his capacity as Maricopa County Sheriff, prohibiting inmates from possessing "sexually explicit material." Jonathan Mauro, an inmate in the Maricopa County jail system, filed an action under 42 U.S.C.S 1983 claiming that the policy infringed on his First Amendment rights. Because we conclude that the policy is reasonably related to legitimate penological interests, we hold that the policy is a valid restraint on Mauro's First Amendment rights.


The Maricopa County jail system is one of the country's largest, housing 6500 inmates at any given time. The average inmate stay is slightly less than fourteen days. Until 1993, the jail had no policy restricting possession of sexually explicit materials.

Prior to adoption of the policy challenged by Mauro, female detention officers were faced with situations in which male inmates compared the officers' anatomy to that of nude women depicted in various publications, often Playboy magazine centerfolds. The officers would be invited to look at the breasts on these nude models, or asked their opinion about shaved genitalia. The officers would also encounter inmates who were openly masturbating while looking at sexually explicit pictures. One inmate told an officer that he was mentally having anal intercourse with Miss July, and when he was done, he was going to do the same to the officer. The officers were confronted with this type of behavior often, ranging from several times daily to several times a week.

In response to this problem, on August 6, 1993, the jail administration instituted a policy which prohibited inmates from possessing "sexually explicit materials. " The notice to the inmates only included the prohibition on sexually explicit materials, while the accompanying notice to jail employees defined "sexually explicit materials" as "materials that show frontal nudity" including "personal photographs, drawings, and magazines and pictorials that show frontal nudity." Pursuant to the policy, sexually explicit materials found in the possession of inmates are confiscated and destroyed.

Implementation of the policy resulted in a sharp decrease in the number of problems encountered by the female officers. The officers reported that the situations declined to only happening to them occasionally, if at all. Also, from August 1993, when the policy was implemented, until August 1995, no inmate had requested authorization

Page 1058

to receive and possess sexually explicit materials that are prohibited under the policy.

Jonathan D. Mauro was incarcerated in the Maricopa County jail system as a pretrial detainee in August 1995. He requested that he be allowed to receive a Playboy magazine, which was denied pursuant to the policy. He filed suit under 42 U.S.C. S 1983 against Maricopa County and its sheriff, Joseph Arpaio, claiming that the policy infringed his rights under the First Amendment.

The district court granted the defendants' motion for summary judgment and Mauro appealed. A panel of this court reversed. See Mauro v. Arpaio,147 F.3d 1137 (9th Cir. 1998). The panel opinion was withdrawn when this court voted to rehear the case en banc. See Mauro v. Arpaio, 162 F.3d 547 (9th Cir. 1998).


We begin our discussion with a review of two basic and potentially competing principles that necessarily frame our analysis of Mauro's constitutional claim. The first of these principles is that prisoners are not stripped of the protections of the Constitution upon incarceration. See Turner v. Safley, 482 U.S. 78, 84 (1987). Thus, "when a prison regulation or practice offends a fundamental constitutional guarantee, fed- eral courts will discharge their duty to protect[prisoners'] constitutional rights." Id.

The second basic principle that frames our analysis is that "courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform. " Id.

[T]he problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government. Prison administration is, moreover, a task that has been committed to the responsibility of those branches, and separation of powers concerns counsel a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appro priate prison authorities.

Id. at 84-85 (citations omitted).

To maintain the necessary balance between these two basic principles, we must apply a deferential standard of review to challenges regarding prison regulations and uphold the regulation "if it is reasonably related to legitimate penological interests." Id. at 89.

[S]uch a standard is necessary if prison administra tors, and not the courts, are to make the difficult judgments concerning institutional operations. Sub jecting the day-to-day judgments of prison officials to an inflexible strict scrutiny analysis would seri ously hamper their ability to anticipate security prob lems and to adopt innovative solutions to the intractable problems of prison administration. The rule would also distort the decisionmaking 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 perpetuating the involvement of the federal courts in affairs of prison administration.

Id. (citations, quotations and ellipses omitted).


To determine whether the jail's policy of excluding all material containing frontal nudity "is reasonably related to legitimate penological interests," and therefore valid, we must consider four factors: (1) whether there is a valid, rational connection between the policy and the legitimate governmental interest put forward

Page 1059

to justify it; (2) whether there are alternative means of exercising the right; (3) whether the impact of accommodating the asserted constitutional right will have a significant negative impact on prison guards, other inmates and the allocation of prison resources generally; and (4) whether the policy is an "exaggerated response" to the jail's concerns. See id. at 89-90; Casey v. Lewis, 4 F.3d 1516, 1520 (9th Cir. 1993).

A. Rational Connection

The first factor we must consider is whether there is a rational connection between the challenged policy and a legitimate governmental interest. See Turner, 482 U.S. at 89. This requires us to determine whether the governmental objective underlying the policy is (1) legitimate, (2) neutral, and (3) whether the policy is "rationally related to that objective." Thornburgh v. Abbott, 490 U.S. 401, 414 (1989).

The jail's policy of excluding sexually explicit materials is expressly aimed at maintaining jail security, rehabilitating inmates and reducing sexual harassment of female detention officers. It is beyond question that both jail security and rehabilitation are legitimate penological interests. 1 See id. at 415 (prison security); Turner, 482 U.S. at 91 (prison security); Pell v. Procunier, 417 U.S. 817, 823 (1974) (rehabilitation); Procunier v. Martinez, 416 U.S. 396, 413-14 (1974) (prison security, order and rehabilitation). Moreover, although no court has addressed whether reducing sexual harassment of prison employees is a legitimate penological interest, there is no doubt that protecting the safety of guards in general is a legitimate interest, and that reducing sexual harassment in particular likewise is legitimate.2 See Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997) (holding that employer may be liable for failing to prevent sexual harassment of employee by co-workers and by private individuals, such as business patrons).

The requirement that the policy be "neutral" is also unquestionably met in this case. As the Court explained in Thornburgh, to meet Turner's "neutrality" test,

the regulation or practice in question must further an important or substantial governmental interest unre lated to the suppression of expression. Where, as here, prison administrators draw distinctions between publications solely on...

To continue reading