Jewell v. Gonzales, Civil Action No. 97-408 Erie.

• Decision Date: 17 March 2006
• Docket Number: Civil Action No. 97-408 Erie.
• Citation: 420 F.Supp.2d 406
• Parties: Richard JEWELL, et al., Plaintiffs, v. Alberto R. GONZALES, et al., Defendants.
• Court: U.S. District Court — Western District of Pennsylvania

420 F.Supp.2d 406

Richard JEWELL, et al., Plaintiffs, v. Alberto R. GONZALES, et al., Defendants.

Civil Action No. 97-408 Erie.

United States District Court, W.D. Pennsylvania.

March 17, 2006.

COPYRIGHT MATERIAL OMITTED

Jere Krakoff, Stember Feinstein, Pittsburgh, PA, for Plaintiffs.

Marsha S. Edney, Department of Justice, Civil Division, Washington, DC, Tina O. Miller, Christy C. Wiegand, United States Attorney's Office, Pittsburgh, PA, for Defendants.

MEMORANDUM OPINION

McLAUGHLIN, District Judge.

In this Bivens action,¹ a class of inmates at the Federal Correctional Institution ("FCI") in McKean, Pennsylvania challenges the constitutionality of a Program Statement issued by the U.S. Bureau of Prisons ("BOP"), as well as an "Institutional Supplement" issued by FCI-McKean, which prohibit the showing of unedited "11" rated movies to prisoners. Named as Defendants are Alberto Gonzales, in his official capacity as Attorney General of the United States, Harley G. Lappin, in his official capacity as Director of the Federal Bureau of Prisons, and Bernie D. Ellis, in his official capacity as the Warden of the FCI-McKean.² We have subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331.

Both Plaintiffs and Defendants have filed motions for summary judgment. On August 31, 2005, the United States Magistrate Judge to whom this case was referred recommended that the Plaintiff's motion for summary judgment be granted and the Defendants' motion be denied. For the reasons that follow, we decline to adopt the Magistrate Judge's Report and Recommendation and conclude, instead, that Defendants' motion should be granted and the Plaintiffs' motion denied.

I. STANDARD OF REVIEW

Under well established principles, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir.1990). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. United States ex rel. Quinn v. Omnicare, Inc., 382 F.3d 432, 436 (3d Cir.2004). Rule 56, however, mandates the entry of judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

II. PROCEDURAL BACKGROUND

In 1996, Congress passed the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub.L. No. 104-134, § 611, 110 Stat. 1321 (April 26, 1996). Section 611 of that Act, commonly known as the Zimmer Amendment (after its sponsor, Representative Dick Zimmer) provided, in relevant part, that:

None of the funds made available in this Act shall be used to provide the following amenities or personal comforts in the Federal prison system—

* * * * * *

(2) the viewing of R, X, and NC-17 rated movies, through whatever medium presented; ...

110 Stat. 1321-64 (April 26, 1996). Substantially identical versions of this amendment have been enacted in annual appropriations bills since that time.³

At the time the Zimmer Amendment was proposed, the BOP already had in place a regulation prohibiting the showing of X-rated movies⁴ as well as a Program Statement, PS 5370.08 (June 13, 1994), which directed the Supervisor of Education or his/ her designee to "exercise good judgment" when selecting movie video rentals. PS 5370.08 § 7. With the Zimmer Amendment's enactment, the BOP updated its Program Statement, which now provides:

The Recreation Supervisor will exercise good judgment and follow statutory restrictions when selecting video movies rentals. No movies rated R, X, or NC-17 may be shown to inmates.

a. Institutions may show R and NC-17 movies that have been edited for general public viewing.

b. Spanish movies that are not rated may be shown if they do not include profanity, graphic violence, or nudity.

c. Not all edited movies may be appropriate for the correctional setting; each institution must use caution in selecting movies. (See Attachment A.)

PS 5370.10 (Feb. 23, 2000). F CI-McKean similarly updated its Institutional Supplement, which now provides: "Movies are shown each weekend. Only contracted movies rated PG-13, PG, G and airline edited will be shown." See IS 5370.08 (Sept. 15,1997).

In December of 1997, three inmates at FCI-McKean commenced this action⁵ on behalf of themselves and all other current and future FCI-McKean inmates asserting that their First Amendment rights are abridged by the prison's policy of categorically banning the showing of unedited R-rated movies.⁶ (See Complaint [Doc. # 1] at ¶¶ 30-36.) Plaintiffs seek a judgment declaring the policy unconstitutional and enjoining its future enforcement.⁷

On April 14, 2000, following the resolution of various preliminary procedural issues, the Defendants moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (See Def.s' Mot. for Judg. on the Pleadings and Mem. in Supp. [Doc. # 34).) Defendants' motion was premised upon their interpretation of Plaintiffs' complaint as challenging both the Zimmer Amendment and the implementing policies issued by the BOP and FCI-McKean. (Id. at p. 7.)

Defendants began their Rule 12(c) analysis by acknowledging that restrictions on the First Amendment rights of prisoners are evaluated using the test set forth in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). That test involves consideration of four factors to determine whether the restriction in question is constitutional, to wit:

whether the regulation has a "`valid, rational connection" to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are "ready alternatives" to the regulation. 482 U.S. at 89-91, 107 S.Ct. 2254.

Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 156 L.Ed.2d 162 (2003).

Applying this test, Defendants first asserted that deterrence, good order, discipline, and rehabilitation are among the penological interests rationally furthered by the Zimmer Amendment's proscription of R-rated films. (See Mot. for Judg. on Pleadings, supra, at pp. 10-11.) The Defendants further argued: that the Plaintiffs had adequate alternative means by which to exercise their First Amendment rights inasmuch as a broad range of movies (including those rated G, PG or airline edited) remain available to them (id. at pp. 13-14); that the restricted category of movies could be potentially detrimental to the safety of guards and other inmates (id. at p. 15); and that Plaintiffs had failed to identify a ready alternative that would fully accommodate their rights at de minimis cost to the government's valid penological interests (Id. at p. 15).

Defendants' Rule 12(c) motion was initially reviewed by the United States Magistrate Judge. Like the Defendants, she assumed the Plaintiffs' claims encompassed challenges to the Zimmer Amendment itself as well as the Policy Statement and Institutional Statement implementing the Amendment.⁸ The Magistrate Judge recommended that the Defendants' motion be granted insofar as Plaintiffs were challenging the Zimmer Amendment on its face; as to this point, she reasoned that the statute facially invoked only Congress' spending powers and therefore did not implicate any First Amendment issues because prisoners are not entitled to have the legislature fund their exercise of fundamental constitutional rights. (See Report and Recommendation (12/1/00 [Doc. # 37] ) at pp. 8-10.) On the other hand, the Magistrate Judge recommended that the Rule 12(c) motion be denied insofar as the Plaintiffs were lodging a facial challenge to the administrative policies implementing the Zimmer Amendment. Recognizing that these restrictions do implicate First Amendment rights, as they facially impose an outright ban on the viewing of R-rated movies, the Magistrate Judge concluded that an evidentiary record would be required in order for the Court to perform a complete Turner analysis. The Magistrate Judge further recommended that a record be developed for purposes of assessing the Plaintiffs'"as applied" challenges, since these would involve a fact-intensive analysis. (See id. at pp. 11-17.)

On March 15, 2001, this Court entered a Memorandum Order granting Defendants' Rule 12(c) motion in its entirety. (See Mem. Order (3/15/01 [Doc. # 41]).) Unlike the Magistrate Judge, this Court concluded that Plaintiffs' facial challenge to the statute did implicate First Amendment rights, thus necessitating a Turner analysis. Nevertheless, we endorsed a "common sense" application of Turner relative to both the Zimmer Amendment and its implementing regulations, finding that the development of an evidentiary record was unnecessary in this case. We reasoned that such a "common sense" approach was consistent with the analysis undertaken by the District of Columbia Court of Appeals in Amatel v. Reno, 156 F.3d 192 (D.C.Cir. 1998) (addressing a challenge to the constitutionality of the Ensign Amendment), and the Third Circuit Court of Appeals in Waterman v. Farmer, 183 F.3d 208 (3d Cir.1999) (upholding a New Jersey statute similar to Ensign Amendment). We concluded that "[a]pplying the Turner factors here, and for the reasons set forth in Amatel, 156 F.3d at 196-99, and Waterman, 183 F.3d at 214-18, ... the Ensign and Zimmer Amendments and their implementing regulations [are] neutral and reasonable, and...