Snow v. Woodford

• Decision Date: 11 April 2005
• Docket Number: No. D043702.,D043702.
• Citation: 26 Cal.Rptr.3d 862,128 Cal.App.4th 383
• Parties: Stephen F. SNOW, Plaintiff and Appellant, v. Jeanne S. WOODFORD, as Director, etc., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

26 Cal.Rptr.3d 862

128 Cal.App.4th 383

Stephen F. SNOW, Plaintiff and Appellant, v. Jeanne S. WOODFORD, as Director, etc., Defendant and Respondent.

No. D043702.

Court of Appeal, Fourth District, Division 1.

April 11, 2005.

Review Denied July 27, 2005.

Stephen F. Snow, in pro. per., Plaintiff and Appellant.

Bill Lockyer, Attorney General, Robert A. Anderson and Frances T. Grunder, Assistant Attorneys General, Julie L. Garland, Michelle A. Des Jardins and Heather Bushman, Deputy Attorneys General for Defendant and Respondent.

O'ROURKE, J.

Stephen F. Snow filed a petition for writ of mandate to require the California Department of Corrections (Department) to rescind a regulation prohibiting inmates from possessing sexually explicit materials, combined with a request for declaratory relief to declare the regulation violates the federal and California constitutions and Penal Code section 2601, subdivision (c). Snow appeals the order dismissing the petition and request for declaratory relief, contending (1) the regulation violates the First Amendment and (2) the regulation violates Penal Code section 2601, subdivision (c). We affirm.

FACTUAL AND PROCEDURAL HISTORY

On July 10, 2002, Department issued a policy prohibiting inmates from possessing or receiving materials showing the frontal nudity of either gender. Frontal nudity is defined as "includ[ing] either the exposed female breast(s) and/or genitalia of either gender." In issuing this policy, Department relied upon Mauro v. Arpaio (9th Cir.1999) 188 F.3d 1054 (Mauro) (en banc), which upheld the constitutionality of a similar Arizona policy.¹ On July 18, 2002, officials at Richard J. Donovan Correctional Facility (Donovan), where Snow was housed, issued a letter notifying inmates that the ban would go into effect on September 9, 2002.

In September 2002, Department issued a notice of adoption of emergency regulations (the Notice) to amend title 15 California Code of Regulations, section 3006² by adding subdivision (c)(17), which bans possession of the following:

"(17) Sexually explicit images that depict frontal nudity in the form of personal photographs drawings, magazines, or other pictorial format:

"(A) Sexually explicit material shall be defined as material that shows the frontal nudity of either gender, including the exposed female breast(s) and/or the genitalia of either gender.

"(B) The following sexually explicit material shall be allowed:

"1. Departmentally purchased or acquired educational, medical/scientific, or artistic materials, such as books or guides purchased by the department for including in institution libraries and/or educational areas; or

"2. Educational, medical/scientific, or artistic materials, including, but not limited to, anatomy medical reference books, general practitioner reference books and/or guides, National Geographic, or artistic reference material depicting historical, modern, and/or post modern era art, purchased or possessed by inmates and approved by the institution head or their designee on a case-by-case basis."

In the Notice, Department analyzes the amendment to section 3006 as follows: "This regulation will aid in the legitimate penological interests of maintaining the safety and security of the prisons, rehabilitating inmates, reducing sexual harassment of correctional officers and preventing a hostile work environment. Sexually explicit materials, within institutions, have contributed to an increase of verbal assaults and have led to intimidation of female correctional staff when attempting to perform cell searches. Inmates subject female correctional staff to a daily barrage of unwarranted sexual advances, thus causing an uncomfortable working environment and continued confrontation with inmates. [¶] Additionally, unrestricted access to sexually explicit material could lead to bartering between inmates and anatomical comparisons could lead to fights between inmates thereby jeopardizing the safety of prison staff and other inmates." The amendment was adopted on March 18, 2003.

On August 15, 2002, Snow filed a petition for writ of mandate to require Department to rescind the ban on possession of sexually explicit materials, combined with a request for declaratory relief to declare the ban violates the federal and California constitutions and Penal Code sections 2601, subdivision (c). On November 15, 2002, Snow filed an administrative appeal challenging the confiscation of his magazine pictures of nude women. Department denied the first level appeal on December 19, 2002 and the second level appeal on February 13, 2003.

Because Snow repeatedly failed to effect service of the petition, the court issued a series of orders to show cause as to why the case should not be dismissed. In response to the first of those orders, Snow filed a memorandum of points and authorities as to why the case should not be dismissed. Among the exhibits Snow attached to the memorandum are pictures of women with exposed breasts, including a picture Snow drew and the cover of an issue of New Yorker magazine showing cartoon drawings of Greek goddesses. Snow also attached an art photograph of a nude woman and an issue of a pornographic magazine entitled OnLine. On November 26, 2003, the court acknowledged Snow's untimely service on Department and rescheduled the hearing on the petition and request for declaratory relief.

On November 7, 2003, Snow filed a memorandum of points and authorities in support of the petition and request for declaratory relief. Department filed an opposition, arguing the amendment is constitutional because it serves a legitimate penological interest. In his reply, Snow included as an exhibit a Time magazine article containing a photograph of a painting of a nude woman.

After a hearing, the court denied Snow's petition for writ of mandate and request for declaratory relief, concluding the regulation is reasonably related to a legitimate penological interest, in that: "(1) there is a valid rational connection between restricting sexually explicit materials within prison and the interest in preserving [institutional] security and preventing sexual harassment; (2) Petitioner has alternative means of expression available to him; (3) allowing the sexually explicit material will have a negative impact on other inmates and correctional staff; and (4) the policy is not an exaggerated response to officials['] concerns." The court denied Snow's request for declaratory relief because it "is premised on the same arguments." This appeal followed.

DISCUSSION

I. Constitutionality of Section 3006

We review de novo "a constitutional challenge to the facial validity of a prison policy." (In re Collins (2001) 86 Cal.App.4th 1176, 1181, 104 Cal.Rptr.2d 108.) In order to withstand a constitutional challenge, including a First Amendment challenge, a prison regulation must be "reasonably related to legitimate penological interests."³ (Turner v. Safley (1987) 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (Turner).) The United States Supreme Court developed this standard by acknowledging "two basic and potentially competing principles." (Mauro, supra, 188 F.3d at p. 1058.) First, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution." (Turner, at p. 84, 107 S.Ct. 2254.) Second, "`courts are ill equipped to deal with the increasingly urgent problems of prison administration and reform.'" (Ibid.)

The Court developed a four-pronged test (the Turner test) to determine whether a prison regulation or policy is reasonably related to legitimate penological interests: "(1) whether there is a valid, rational connection between the policy and the legitimate governmental interest put forward 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 [prison's] concerns." (Mauro, supra, 188 F.3d at pp. 1058-1059 [citing Turner, supra, 482 U.S. at pp. 89-90, 107 S.Ct. 2254].)

A. First Prong of the Turner Test

In order to determine whether there is a rational connection between a prison regulation and a governmental interest justifying the regulation, a court must find the following: (1) the governmental interest is legitimate; (2) the governmental interest is neutral; and (3) the logical connection between the regulation and the interest is close enough to be rational and not arbitrary. (Turner, supra, 482 U.S. at pp. 89-90, 107 S.Ct. 2254.)

We first determine whether Department's interests are legitimate. Here, the Notice defined those interests as "maintaining the safety and security of the prisons, rehabilitating inmates, reducing sexual harassment of correctional officers and preventing a hostile work environment." Many cases have found that prison safety and security are legitimate penological interests. (See, e.g. Turner, supra, 482 U.S. at p. 91, 107 S.Ct. 2254; In re Collins, supra, 86 Cal.App.4th at pp. 1184-1185 104 Cal.Rptr.2d 108.) Rehabilitation and the prevention of sexual harassment are also legitimate penological interests. (Mauro, supra, 188 F.3d at p. 1059.)

We next determine whether the regulation is neutral. In order to be neutral, "`the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression.'" (Thornburgh v. Abbott (1989) 490 U.S. 401, 415-416, 109 S.Ct. 1874, 104 L.Ed.2d 459, fn. omitted (Thornburgh).) Prison regulations enacted to enhance prison security are neutral. (Ibid.) In the Notice, Department states it enacted the regulation because sexually explicit materials had contributed to sexual advances towards and the intimidation of female correctional staff, and such materials could lead to fights...