Tripp v. Ky. Dep't of Corr., 2015-CA-001187-MR
| Decision Date | 23 September 2016 |
| Docket Number | NO. 2015-CA-001187-MR,2015-CA-001187-MR |
| Parties | JAMES TRIPP APPELLANT v. KENTUCKY DEPARTMENT OF CORRECTIONS APPELLEES |
| Court | Kentucky Court of Appeals |
NOT TO BE PUBLISHED
APPEAL FROM FRANKLIN CIRCUIT COURT
Tripp ordered two books of photographs from a prison approved vendor. These books, entitled Night Hawks and Wicked Dreams, were specifically marketed as "homoerotic" on the vendor's website. Tripp described the material as "present[ing] a collection of visually stimulating, mostly full-color, photographs of the male nude form...." Staff at Northpoint Training Center reviewed the material, classified these books as promoting homosexuality, and consequently deemed them contraband, confiscating them.
Tripp then initiated the grievance procedure, arguing that the books are neither classified as pornography, nor violated any institutional security interest. An informal grievance committee disagreed, finding the material was pornographic, and held against Tripp, who then invoked the formal grievance procedures. Warden Don Bottom, after having reviewed the material, denied Tripp's appeal, stating that the sexual content of the books created a "threat within a male institution." Next, Tripp appealed to the Commissioner of the Kentucky Department of Corrections, LaDonna Thompson, who also denied his appeal.
Tripp filed a petition for a declaration of rights in Franklin Circuit Court. He again argued that the policy violated his rights under the First Amendment. The circuit court dismissed Tripp's petition. This appeal followed.
Tripp alleges that Kentucky Correctional Policies and Procedures (CPP) 16.2(II)(D) violates his rights under the First Amendment of the United States Constitution.1 CPP 16.2(II)(D) provides as follows:2
Our Supreme Court has previously upheld the policy contained in CPP 16.2 of opening and inspecting inmates' mail against a First Amendment challenge. Thurman v. Commonwealth, 975 S.W.2d 888, 898-99 (Ky. 1998). Although no Kentucky courts have considered the question in the present case, both the Sixth Circuit Court of Appeals and the Supreme Court of the United States have considered similar questions. In Espinoza v. Wilson, the Sixth Circuit upheld aregulation banning homosexual publications under the First Amendment stating, in part, as follows:
The Supreme Court has stated that prison officials should be accorded wide-ranging deference in the adoption and execution of policies and practices that in their judgment are needed to preserve internal order and discipline and to maintain institutional security. Prison officials are thus given wide discretion to implement those policies they deem necessary to preserve internal order and security. Provided the officials present evidence to support their judgment that prison security will be undermined in the absence of a challenged regulation, a court will not substitute its judgment for theirs. Warden Seabold was operating within the wide discretion he is given and he did present evidence to support his judgment. Consequently, his decision to withhold certain publications is appropriate.
Espinoza, 814 F.2d 1093, 1098-99 (6th Cir. 1987) (citations and internal quotation marks and brackets omitted).
Tripp argues that the reasoning in this case should not be persuasive, because the United States has subsequently adopted a different test in Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987). This argument is misplaced, however, because the United States Supreme Court reached the same conclusion as the Sixth Circuit in Espinoza, applying the Turner standard. In Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874, 104 L. Ed. 2d 459 (1989), the Court considered a regulation in which a warden was permitted to reject sexual material depicting homosexual acts, sadomasochism, bestiality and sexual actsinvolving children.3 Id., 490 U.S. at 405, n. 6, 109 S. Ct. at1877, n. 6. Unlike in the present case, however, the regulation stated that homosexual material may be admitted if the warden deems it does not "pose a threat to the institution[,]" and "[h]omosexual material that is not sexually explicit is to be admitted[,]" such as publications "covering the activities of gay-rights groups or gay religious groups, and literary publications with homosexual themes or references[.]" Id. (citation omitted).
The first factor that the Thornburgh Court considered was "whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective." 490 U.S. 401, 414, 109 S. Ct. 1874, 1882. The Court concluded that this factor was satisfied, stating that "[w]here, as here, prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are 'neutral' in the technical sense in which we meant and used that term in Turner." Id., 490 U.S. at 415-16, 109 S. Ct. at 1882-83. Additionally, the Sixth Circuit has held that regulating materials in this context was rationally related to the objective of prison safety. See Mezo v. Taylor, 12 F.3d 213 (6th Cir. 1993) (). The regulations about which Tripp complains rationally relate to the legitimate government interest of prison safety, we, therefore, find that this factor is satisfied.
The second factor the Thornburgh Court considered under Turner was "whether there are alternative means of exercising the right that remain open to prison inmates." 490 U.S. at 417, 109 S. Ct. at 1884 (quoting Turner, 482 U.S., at 90, 107 S.Ct., at 2262). The Court concluded that "[a]s the regulations at issue in the present case permit a broad range of publications to be sent, received, and read, this factor is clearly satisfied." Id., 490 U.S. at 418, 109 S. Ct. at 1884. One way that the prison here provides alternative means through which Tripp may exercise his First Amendment rights is through written material that is not sexually explicit. See Rogers v. Martin, 84 F. App'x 577, 579 (6th Cir. 2003) () We find this Turner factor to also be satisfied.
Third, the Court considered "the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison." Id. Again, the Court found that that factor was satisfied, stating that "the class of publications to be excluded is limited to those found potentially detrimental to order and security; the likelihood that such material will circulate within the prison raises the prospect of precisely the kind of 'ripple effect' withwhich the Court in Turner was concerned." Id. Again, we find this analysis applicable to the present case.
Finally, the Court noted that Id. (quoting Turner, 482 U.S., at 90-91, 107 S.Ct., at 2262). The Court found that the regulations in that case "on their face, are not an 'exaggerated response' to the problem at hand[,]" and that "no obvious, easy alternative has been established." Id. Under Thornburgh the regulation in the present case is not an exaggerated response, nor is there an obvious, easy alternative to that regulation.
The Thornburgh Court ultimately upheld the regulation, stating:
We deal here with incoming publications, material requested by an individual inmate but targeted to a general audience. Once in the prison, material of this kind reasonably may be expected to...
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