399 F.3d 134 (3rd Cir. 2005), 03-1245, Banks v. Beard

Docket Nº:03-1245.
Citation:399 F.3d 134
Party Name:Ronald BANKS, for himself and on behalf of all similarly situated prisoners who are confined or will be confined in Long Term Segregation Units of State Prisons located in the Western Judicial District of Pennsylvania, Appellant v. Jeffrey BEARD, in his official capacity as Secretary of the Pennsylvania Department of Corrections.
Case Date:February 25, 2005
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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399 F.3d 134 (3rd Cir. 2005)

Ronald BANKS, for himself and on behalf of all similarly situated prisoners who are confined or will be confined in Long Term Segregation Units of State Prisons located in the Western Judicial District of Pennsylvania, Appellant


Jeffrey BEARD, in his official capacity as Secretary of the Pennsylvania Department of Corrections.

No. 03-1245.

United States Court of Appeals, Third Circuit

February 25, 2005

Argued on Oct. 22, 2003.

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[Copyrighted Material Omitted]

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Jere Krakoff [Argued], PA I.D. No. 13701, Pittsburgh, for Appellants.

D. Michael Fisher, Attorney General, Kemal Alexander Mericli [Argued], Senior Deputy Attorney General, Calvin R. Koons, Senior Deputy Attorney General, John G. Knorr III, Chief Deputy Attorney General, Appellate Litigation Section, Office of Attorney General, Pittsburgh. for Appellee.


Before ALITO, FUENTES, and ROSENN, Circuit Judges.

ALITO, Circuit Judge, dissenting.


FUENTES, Circuit Judge.

Ronald Banks, on behalf of himself and all other Level 2 prisoners confined in the Long Term Segregation Unit ("LTSU") of the State Correctional Institution at Pittsburgh ("SCI Pittsburgh"), challenges the constitutionality of the Pennsylvania Department of Corrections' ("DOC") policy banning access to newspapers, magazines and photographs for Level 2 inmates, arguing that the policy violates the prisoners' free speech rights under the First Amendment.

The District Court granted summary judgment to the defendant and upheld the policy as reasonably related to legitimate penological interests. We disagree and therefore will reverse.

I. Factual and Procedural Background

The LTSU was established at SCI Pittsburgh in April 2000 as a place to confine a

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small population of inmates1 which the DOC views, because of their history of behavior in prison, as too disruptive, violent or problematic to house elsewhere.2 Inmates are classified at "Level 2" when admitted to the Unit, must remain there a minimum of 90 days, and may remain at Level 2 indefinitely. The length of time a prisoner may spend in the LTSU is open-ended and subject to the discretion of prison personnel.

Department policy prohibits Level 2 prisoners from receiving newspapers or magazines directly from the publisher, from the prison library, or from any other source for the duration of their confinement at Level 2 status unless the publication is religious or legal in nature. Individual articles clipped from publications are prohibited, unless they relate to the inmate or his family. Also prohibited is the possession or receipt of photographs of spouses, other family members, or friends.

Other DOC rules which govern life at LTSU Level 2 prohibit inmates from having radios or televisions, permit phone calls only in emergencies or when related to inmates' legal representation, limit inmates to one visit with an immediate family member per month, and require inmates to remain in their cells 23 hours a day, one inmate to a cell. Inmates are permitted, however, religious or legal publications and paperback books that can be ordered from the prison library. To review legal materials, one LTSU inmate at a time may be let out of his cell and is escorted from it to a "mini law library" in hand and leg irons by two corrections officers. (App.11)

The policy challenged here is unique in the state prison system, even among other segregated inmates. Level 1 LTSU inmates are permitted one subscription newspaper in their cells which can be exchanged on a one-for-one basis and are also permitted five subscription magazines at any given time.3 Department policy also authorizes Special Management Unit ("SMU") inmates (another class of segregated inmates identified as being among the most difficult inmates in the system) to have various numbers of subscription newspapers, magazines and photographs in their cells, depending on their classification level. (App.77) Similarly, dangerous inmates who are segregated in the Department's regular Restrictive Housing Unit on Administrative Custody status for security reasons are permitted one subscription newspaper in their cells which can be exchanged on a one-for-one basis, as well as subscription magazines and up to 10 photographs.

Deputy Superintendent Joel Dickson, who supervises the LTSU, testified in his deposition that the prohibition serves several penological purposes, which were reiterated

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by the defendant in its briefs. First, and emphasized by Dickson as most important, is behavior modification and rehabilitation. Dickson explained that in Level 2, inmates are deprived of certain privileges to create an incentive to comply with prison rules and thereby be removed to Level 1 and eventually to the general population. Among Level 1 inmates, the prospect of having the privileges denied discourages backsliding. Also, Dickson explained that as inmates improve their behavior to earn privileges, they become better integrated members of prison society or, if released, better members of free society and "more productive citizen[s]." (App.111) Second, the less material Level 2 prisoners have in their cells, the easier it is for correctional offices to detect concealed contraband and provide security. Third, newspapers and magazines can be rolled up and used as blow guns or spears, can fuel cell fires, or can be used as crude tools to catapult feces at the guards.

Plaintiff Ronald Banks filed the Complaint in this action on October 18, 2001. Seeking equitable and declaratory relief, the Complaint challenged the constitutionality of the DOC policy that denies Level 2 inmates access to newspapers, magazines and photographs of family members and friends. The inmates argued that, under Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the policy offends their right to free speech either because it bears no rational connection to any legitimate penological interest or because it is an exaggerated response to such an interest. A motion for class certification was filed and granted on March 22, 2002. After discovery was completed, the parties filed cross-motions for summary judgment in September of 2002.

On November 15, 2002, Magistrate Judge Robert Mitchell recommended granting summary judgment to the DOC. The recommendation reasoned that the Turner factors weighed in the DOC's favor and that the policy was rationally related to, and furthered the legitimate penological interests of, institutional security and prisoner rehabilitation. Despite Banks' objections, on January 10, 2003 the magistrate's recommendation and reasoning were adopted by order of the District Court.

The District Court reasoned first that the policy is not an impermissible First Amendment violation because it is rationally related to the legitimate and interrelated penological interests in rehabilitation and security. It encourages compliance with prison rules and deprives especially incorrigible prisoners of material from which they can fashion crude weapons or feed cell fires.

Second, the District Court held that the policy is not an exaggerated response to the stated penological concerns. The court agreed with the DOC that inmates can meaningfully exercise the burdened First Amendment rights by qualifying with good behavior for promotion to Level 1 or by corresponding with family and friends. Furthermore, given the particular intractability of Level 2 inmates, any further accommodation of their rights would impose costs that cannot be characterized as only de minimus.4 Banks timely appealed the District Court's grant of summary judgment.

II. Jurisdiction and Standard of Review

The District Court had original jurisdiction over the action pursuant to 28 U.S.C. § 1343 because the claim asserts a violation

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of the First Amendment to the U.S. Constitution. This Court has appellate jurisdiction over the order of the District Court granting summary judgment pursuant to 28 U.S.C. § 1291. We review de novo the District Court's decision to grant the DOC's motion for summary judgment. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d Cir. 2003). In reviewing the record, we view the evidence and any inferences therefrom in the light most favorable to the non-moving party, and resolve all factual conflicts in its favor. We reverse the District Court's decision where there are genuine issues of material fact precluding judgment as a matter of law. See Suders v. Easton, 325 F.3d 432, 440 (3d Cir. 2003).

III. Discussion

A. The Turner Standard

We have repeatedly echoed the Supreme Court's admonition that "prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Ramirez v. Pugh, 379 F.3d 122, 126 (3d Cir. 2004); Fraise v. Terhune, 283 F.3d 506, 515 (3d Cir. 2002) (quoting Turner, 482 U.S. at 84, 107 S.Ct. 2254). In Turner, the Supreme Court acknowledged, however, that inmates' constitutional rights may in some cases be limited, and held that a prison regulation that impinges on inmates' constitutional rights "is valid if it is reasonably related to legitimate penological interests." 482 U.S. at 89, 107 S.Ct. 2254.5

The Supreme Court articulated an analytical framework within which the reasonableness of such a regulation is assessed by weighing four factors. First, there must be a "valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it." Turner, 482 U.S. at 89, 107 S.Ct. 2254 (quotations omitted). Second, the court must determine "whether there are alternative means of exercising the right that remain open to prison inmates." Id. at 90, 107 S.Ct. 2254. Third, the...

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