Ramirez v. Pugh

• Decision Date: 12 August 2004
• Docket Number: No. 02-2101.,02-2101.
• Citation: 379 F.3d 122
• Parties: Marc RAMIREZ, Appellant v. Michael V. PUGH, Warden, LSCI-Allenwood; Janet Reno, Attorney General; Kathleen Hawk, Dr., Director of the Bureau of Prisons.
• Court: U.S. Court of Appeals — Third Circuit

379 F.3d 122

Marc RAMIREZ, Appellant v. Michael V. PUGH, Warden, LSCI-Allenwood; Janet Reno, Attorney General; Kathleen Hawk, Dr., Director of the Bureau of Prisons.

No. 02-2101.

United States Court of Appeals, Third Circuit.

Argued May 27, 2004.

Filed August 12, 2004.

Appeal from the United States District Court for the Middle District of Pennsylvania, James F. McClure, J.

COPYRIGHT MATERIAL OMITTED

Vijay Shanker, (Argued), Covington & Burling, Washington, DC, for Appellant.

Marc Ramirez, Allenwood LSCI, White Deer, PA, Appellant, pro se.

August E. Flentje, (Argued), United States Department of Justice, Civil Division, Appellate Staff, Washington, DC, for Appellees.

Before RENDELL and COWEN, Circuit Judges and SCHWARZER,^* District Judge.

COWEN, Circuit Judge.

A federal prisoner at the low-security correctional institution in Allenwood, Pennsylvania brought this action pursuant to 28 U.S.C. § 1331, challenging a Congressional ban on the use of federal funds to distribute certain sexually explicit material to prisoners, along with its implementing regulation. The District Court rejected plaintiff's argument that the ban violates the First Amendment and dismissed his complaint, finding the prohibition to be reasonably related to the legitimate penological goal of prisoner rehabilitation. Because we find that the District Court erred in resolving the constitutional issue without an adequate factual basis, we will reverse and remand for further proceedings consistent with this opinion.

I.

The Ensign Amendment, originally enacted as part of the Omnibus Consolidated Appropriations Act of 1997, prohibits the use of funds appropriated for the United States Bureau of Prisons (the "BOP") to "distribute or make available any commercially published information or material to a prisoner ... [when] such information or material is sexually explicit or features nudity." Pub.L. No. 104-208, § 614, 110 Stat. 3009-66 (1996). The amendment has been reenacted in each subsequent appropriations act, and is now codified at 28 U.S.C. § 530C(b)(6). An implementing regulation promulgated by the BOP defines the key terms of the amendment as follows: "sexually explicit" means "a pictorial depiction of actual or simulated sexual acts including sexual intercourse, oral sex, or masturbation"; "features" means that the publication in question "contains depictions of nudity or sexually explicit conduct on a routine or regular basis or promotes itself based upon such depictions in the case of individual one-time issues"; and "nudity" means "a pictorial depiction where genitalia or female breasts are exposed." 28 C.F.R. § 540.72(b).¹ The definition of "features" includes an exception for material that contains nudity "illustrative of medical, educational, or anthropological content." Id. As examples of publications that do not "feature nudity," a 1996 program statement released by the BOP cites National Geographic, Our Body, Our Selves, the swimsuit issue of Sports Illustrated, and the Victoria's Secret catalog. Fed. Bureau of Prisons Program Statement 5266.07 (Nov. 1, 1996). The regulations are clearly targeted to the receipt by inmates of softcore and hardcore pornography.

Plaintiff Marc Ramirez filed suit in the Middle District of Pennsylvania in 1997, naming as defendants the United States Attorney General, the director of the BOP, and the warden of the Allenwood institution (collectively, the "government"). Alleging that magazines addressed to him were rejected as either being "sexually explicit" or "featuring nudity," Ramirez challenged the constitutionality of the Ensign Amendment and its implementing regulation on First Amendment grounds. After a series of procedural delays, the District Court finally reached the merits of Ramirez's complaint on a government motion to dismiss. Applying the familiar test for constitutional challenges to prison regulations set out in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the District Court determined that the amendment and regulations passed constitutional muster because they were rationally connected to the government's asserted interest in prisoner rehabilitation, prisoners still had access to a broad range of materials (including materials with sexually explicit text), accommodating the asserted right to view explicit materials would threaten the safety of correctional staff and other inmates, and no ready alternative existed that would accommodate Ramirez's asserted right at a de minimus cost to valid penological interests.

On appeal, Ramirez argues that the District Court erred in finding a rational connection between the ban on pornography and rehabilitation in the absence of any factual record, and in failing to engage in a "contextual, record-sensitive analysis" before determining the ban's overall reasonableness under Turner. The District Court had jurisdiction under 28 U.S.C. § 1331, and we exercise jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo the District Court's decision to grant the government's motion to dismiss. Pryor v. National Collegiate Athletic Ass'n, 288 F.3d 548, 559 (3d Cir.2002).

II.

In Turner v. Safley, the Supreme Court recognized an enduring tension between two conflicting principles in operation whenever a prisoner brings a constitutional challenge to a law or regulation affecting prison policy. The first principle, that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution," must be balanced against the practical reality that the judicial branch is ill-suited for running the country's prisons, a task committed to the particular expertise of the legislative and executive branches. Turner, 482 U.S. at 84-85, 107 S.Ct. 2254. To strike an appropriate balance between prisoners' exercise of their constitutional rights and the institutional needs of prison administrators, the Supreme Court held that a prison regulation implicating an inmate's constitutional rights must be "reasonably related to legitimate penological interests" to be valid. Id. at 89, 107 S.Ct. 2254. The Court developed a four-part test for assessing the overall reasonableness of such a regulation. As a threshold inquiry, "there must be a `valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Id. (quoting Block v. Rutherford, 468 U.S. 576, 586, 104 S.Ct. 3227, 82 L.Ed.2d 438 (1984)). Courts must then determine "whether there are alternative means of exercising the right that remain open" to prisoners, and "[what] impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Id. at 90, 107 S.Ct. 2254. Finally, a regulation's reasonableness may be evidenced by "the absence of ready alternatives" that would fully accommodate the constitutional right "at de minimus cost to valid penological interests." Id. at 90-91, 107 S.Ct. 2254. These requirements "serve as guides to a single reasonableness standard," but the first "`looms especially large' because it `tends to encompass the remaining factors, and some of its criteria are apparently necessary conditions.'" Waterman v. Farmer, 183 F.3d 208, 213-14 (3d Cir.1999) (quoting Amatel v. Reno, 156 F.3d 192, 196 (D.C.Cir.1998)).

To date, the United States Court of Appeals for the D.C. Circuit is the only federal appellate court to have considered the merits of a First Amendment challenge to the Ensign Amendment and its implementing regulation. In Amatel v. Reno, 156 F.3d 192 (D.C.Cir.1998), that court rejected the challenge, finding the restriction on the distribution of sexually explicit material to be reasonably related to the asserted penological interest of prisoner rehabilitation. See 156 F.3d at 202-03. After identifying prisoner rehabilitation as the legitimate penological interest advanced by the government, the court defined that interest broadly. It reasoned that the government's power to inculcate values in contexts such as public education transferred readily to the context of prison administration, implicitly identifying the promotion of "respect for authority and traditional values" as a legitimate rehabilitative purpose in and of itself. Id. (internal citation omitted). Having done this, it found that "Congress might well [have] perceive [d] pornography as tending generally to thwart the character growth of its consumers," and that, as a matter of common sense, "prisoners are more likely to develop the now-missing self-control and respect for others if prevented from poring over pictures that are themselves degrading and disrespectful." Id. at 199.

The Amatel court did not see the need for an evidentiary record, holding that its own common sense was sufficient to verify the rational connection between the Ensign Amendment's proscriptions and the asserted rehabilitative goal. Id. It did, however, cite a body of scholarly research to support the reasonableness of the proposition that pornography leads to male objectification of women, and that certain types of pornography can lead to male aggression and desensitize viewers to violence and rape. See id. at 199-200. The court determined that none of the three other Turner factors undermined the overall reasonableness of the Ensign Amendment and its implementing regulation.

Our own court has considered the constitutionality of a restriction similar to the Ensign Amendment, albeit in a different context than the one here. In Waterman v. Farmer, 183 F.3d 208 (3d Cir.1999), we upheld a New Jersey statute that restricted prisoners' access to pornographic materials at a facility for sex offenders who exhibited "repetitive and compulsive" behavior. After identifying the legitimate penological interest at stake as the rehabilitation of the state's "most dangerous and compulsive sex offenders," we evaluated the connection between the statute and that...