54 F.3d 1050 (2nd Cir. 1995), 359, Giano v. Senkowski

Docket Nº:359, Docket 94-2167.
Citation:54 F.3d 1050
Party Name:Julio GIANO, Plaintiff-Appellant, v. Daniel SENKOWSKI, Superintendent, Clinton Correctional Facility; Thomas Coughlin, Commissioner, Department of Correctional Services, Defendants-Appellees.
Case Date:May 16, 1995
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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54 F.3d 1050 (2nd Cir. 1995)

Julio GIANO, Plaintiff-Appellant,


Daniel SENKOWSKI, Superintendent, Clinton Correctional

Facility; Thomas Coughlin, Commissioner,

Department of Correctional Services,


No. 359, Docket 94-2167.

United States Court of Appeals, Second Circuit

May 16, 1995

Submitted Nov. 24, 1994.

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Julio Giano, pro se.

Peter H. Schiff, Deputy Sol. Gen., Albany, NY (G. Oliver Koppell, Atty. Gen., Albany, NY, of counsel), for defendants-appellees.

Before: McLAUGHLIN, JACOBS, and CALABRESI, Circuit Judges.

McLAUGHLIN, Circuit Judge:

In July 1991, inmate Julio Giano's girlfriend sent him an 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. Sec. 1983 in the United States District Court for the Northern District of New York (Neal P. McCurn, 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.


In July 1991, Clinton Correctional Facility ("Clinton") had a policy that allowed inmates to possess commercially produced erotic literature,

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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 mailroom 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. Sec. 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. Giano now appeals.


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.

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119, 125, 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 legitimate 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. Sec. 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.

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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...

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