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RAYMOND LUDWIG FROST, Plaintiff-Appellant,
v.
J. FIFE SYMINGTON, Governor; SAMUEL A. LEWIS, Director; LARRY
BARROWS, Asst. Deputy Warden; CHARLES L. RYAN, Senior Warden;
JAMES UPCHURCH, Warden; ANGELO P. DANIELS, Deputy Warden; PAUL
SCHRINER, Deputy Warden; MARVIN E. JUMP, CPO aka Marvin E. Tump;
M. STURM, #688; SGT. ALLEN; SGT. DURAN, Defendants-Appellees.
No. 98-15578
United States Court of Appeals for the Ninth Circuit
D.C. No. CV-96-00346-RCB
Appeal from the United States District Court for the District
of Arizona Robert C. Broomfield, District Judge, Presiding
Submitted June 18, 1999[FOOTNOTE *] San Francisco, California
Before: Mary M. Schroeder, Betty B. Fletcher, and Cynthia
Holcomb Hall, Circuit Judges.
COUNSEL
Raymond Ludwig Frost, Florence, Arizona, in pro se for
the plaintiff-appellant.
S. Christopher Copple, Assistant Attorney General, Phoenix,
Arizona, for the defendants-appellees.
Filed November 23, 1999
HALL, Circuit Judge:
Raymond Ludwig Frost ("Frost" ) appeals from
the district court' s order granting the Defendants' motion for
summary judgment in Frost' s action under 42 U.S.C. § 1983
for violations of his First and Fourteenth Amendment rights and
the Hook Consent Decree. Frost seeks damages from Arizona
Department of Corrections ("ADOC" ) officials who allegedly
withheld issues of Penthouse and Gallery magazines and
returned without authorization music CDs Frost ordered from BMG
Music Service ("BMG" ). We have jurisdiction under
28 U.S.C. § 1291, and we affirm in part, reverse in part,
and remand.
I.
In October 1973, the district court approved a consent
decree in Hook v. Arizona, No. CIV-73-97 PHX-CAM (the
"Hook Consent Decree" ), a suit brought by eleven
inmates of the ADOC over mail regulations. Under the Hook
Consent Decree, inmates could not receive publications[FOOTNOTE
1] that were found to contain (1) "material which constitutes
a direct and immediate threat to the security, safety or order
of the institution," or (2) "any material which is
deemed obscene under applicable constitutional standards."
The Hook Consent Decree also provided that "[p]rompt
written notice will be given a resident if any publications are
excluded for the above reasons. Upon request, the resident will
be given an opportunity to discuss the reasons for the exclusion
with the Deputy Superintendent for Programs, whose decision shall
be final." Although Hook was not initially certified
as a class action,[FOOTNOTE 2] the Ninth Circuit held that inmates
of the ADOC who were not parties to the Hook Consent
Decree were entitled to enforce the provisions of the Hook
Consent Decree as intended third-party beneficiaries. See
Hook v. Arizona Dep' t of Corrections, 972 F.2d 1012, 1014-15
(9th Cir. 1992).
Frost has been an inmate at the ADOC since 1989, and was
not a party to the Hook Consent Decree. During the time
of his confinement, Frost has subscribed to Gallery and Penthouse
magazines, both of which are pornographic publications. In addition,
Frost has been a member of BMG, through which he has ordered
various music CDs.
In late January 1994, J. Fife Symington ("Symington"
), the Governor of Arizona, said in a public speech that he planned
to get tough with inmates at the ADOC. On January 31, 1994, Samuel
Lewis ("Lewis" ), Director of the ADOC, announced in
a memorandum that all sex-based publications were to be banned
from the ADOC as of February 27, 1994.[FOOTNOTE 3] On February
24, 1994, Lewis withdrew the directive, and the ban did not officially
go into effect. Frost claims that Lewis nevertheless issued clandestine
orders to Senior Warden Charles L. Ryan ("Ryan" ),
Warden James Upchurch ("Upchurch" ), Warden James Thomas,[FOOTNOTE
4] and Deputy Warden Angelo P. Daniels ("Daniels"
) to withhold from inmates any sex-based publications without
notifying the inmates that the publications were being withheld,
and to dispose of the publications. Frost claims that no pornographic
magazines were allowed into the ADOC during February and March,
1994.
Frost claims that, pursuant to the Lewis directive, the
ADOC withheld four magazines he had ordered: the January 1994
and February 1994 issues of Gallery and Penthouse. He
claims that he did not receive notice that these magazines were
being withheld, and that he was not told why these issues had
been withheld. It appears, however, that Frost received both
issues of Gallery after contacting the publisher and having
the issues redelivered. It also appears that Frost' s subscription
to Penthouse was extended by two months to reflect the
issues that were withheld, but Frost never apparently received
the two withheld issues of Penthouse. On September 5,
1995, the ADOC received the October 1995 issue of Penthouse.
An unidentified mailroom officer rejected this issue for "showing
penetration," "material which, in the Warden' s opinion,
pose[d] a threat to the safe, secure and orderly operation of
the prison." On September 14, 1995, Frost appealed the rejection
of the October 1995 issue by writing an inmate letter to the
Deputy Superintendent of Programs pursuant to the Hook
Consent Decree. Two weeks later, Deputy Warden David Bourgeous[FOOTNOTE
5] interviewed Frost, and explained to Frost that the issue was
one of "penetration and not threat to security!"
On October 3, 1995, the November 1995 issue of Penthouse
was received by the prison mailroom. An unidentified mailroom
officer rejected this issue because it was "Unauthorized
Property: Items not inherently illegal which are considered contraband
when possessed by an inmate." On October 5, 1995, Daniels
reviewed this issue of Penthouse and noted, "Photos
show penetration. Advertisements solicit sexual behavior that
poses a threat to female staff working in this institution."
Then on January 2, 1996, approximately three months after the
ADOC received this issue of Penthouse, Frost received
a notice indicating that this issue had been rejected by the
ADOC.
On December 29, 1995, Frost claims that he received four
magazines: the December 1995 and January 1996 issues of Gallery
and Penthouse. Frost had not received notice that these magazines
were being stored.
On February 6, 1996, the March 1996 issue of Penthouse
was received by the mailroom. On March 14, 1996 the mailroom
received the April 1996 issue of Penthouse. On both occasions
an unidentified mailroom officer rejected the issues because
they "contain[ed] material which, in the Warden' s opinion,
pose[s] a threat to the safe, secure and orderly operation of
the prison." In addition, on separate forms, Deputy Warden
Murphy rejected the issues because they showed "vaginal
penetration," and "anal penetration," respectively.
It is unclear whether Frost received notice that the March 1996
issue of Penthouse had been rejected by the ADOC. On April
3, 1996, Frost received notice that the April 1996 issue had
been rejected by the ADOC.
On April 1, 1996, and again on April 30, 1996, the mailroom
received the May 1996 issue of Penthouse. On both dates,
an unidentified mailroom officer rejected the issues because
they "contain[ed] material which, in the Warden' s opinion,
pose[s] a threat to the safe, secure and orderly operation of
the prison." The record does not show, however, that this
issue was reviewed by a deputy warden, nor does it contain the
reasons why this issue was rejected. On April 11, 1996, and on
May 14, 1996, Frost received notice that this issue had been
rejected by the ADOC.
As of August 14, 1996, Frost had not received the June
1996, July 1996, August 1996, and September 1996 issues of Penthouse,
nor had Frost received notice that any of these issues had been
rejected by the ADOC. However, Frost was informed by Penthouse
that these issues had been sent.
In 1991, Frost became a member of BMG, through which he
purchased music CDs that were delivered to the prison and distributed
to Frost between July, 1991, and July, 1992. In December, 1992,
and again in January, 1993, Frost received from BMG notices indicating
that CDs that had been sent to Frost had been returned to BMG.
ADOC officials explained to Frost that the CDs had never been
received by the ADOC. In February 1993, Frost canceled his BMG
membership. In April 1995, Frost received a letter from BMG inviting
him once again to become a member of BMG. Under the terms of
the letter, Frost was invited to choose eight free CDs for which
he would be obligated to pay a per-item shipping and handling
fee. In return for the eight free CDs, Frost would be obligated
to purchase at full price one CD through BMG any time within
the next year. In June 1995, Frost accepted the offer, and BMG
mailed to Frost the eight CDs that he had chosen. Shortly thereafter,
BMG determined that Frost was institutionalized and requested
that ADOC officials return the CDs to BMG. The record indicates
that BMG' s policy at the time prohibited residents of institutions
from becoming BMG members. The ADOC officials concluded that
the CDs were still BMG' s property because Frost had not paid
for them, and returned the CDs to BMG. Frost alleges that ADOC
officials never informed him that the CDs had been returned to
BMG.
Frost filed suit under 42 U.S.C. § § 1983 and
1985 for violations of the Hook Consent Decree and his
First and Fourteenth Amendment rights. Frost sought compensatory
damages in the amount of $1000 "for each magazine withheld,
delayed, or stored in violation of Hook. To date in the
amount of $12,000." Frost also sought compensatory damages
in the amount of $1408 for the unauthorized return of his CDs.
In addition, Frost sought punitive damages in the amount of $10,000
for the ADOC' s "continued unlawful planned scheme to knowingly
and deliberate[ly] violation of [sic] this Court' s Orders and
the Hook Consent Decree, as well as the pattern of coverup
of Defendants[' ] actions." Finally, Frost sought "other
relief as may be just and proper." In his motion for summary
judgment, Frost requested (pursuant to the prayer in his complaint
for "other relief" ) that the court hold the Defendants
in contempt for their violations of the Hook Consent Decree.
Frost named as defendants Symington, Lewis, Barrows, Ryan, Upchurch,[FOOTNOTE
6] Daniels, Schriner, Jump, Sturm, Allen, and Duran.
Construing the claims liberally, as must be done because
of Frost' s pro se prisoner status, see Franklin v. Murphy,
745 F.2d 1221, 1235 (9th Cir. 1984) (holding that a pro se prisoner
litigant' s pleadings must be construed liberally on a motion
for summary judgment); see also Karim-Panahi v. Los Angeles
Police Dep' t, 839 F.2d 621, 623 (9th Cir. 1988) ("In civil
rights cases where the plaintiff appears pro se, the court must
construe the pleadings liberally and must afford plaintiff the
benefit of any doubt." ), it appears that Frost asserted
the following claims based on the following conduct: (1) violation
of the Hook Consent Decree for failure to notify Frost
that magazines had been rejected, late delivery of notices rejecting
magazines, late delivery of magazines, improper withholding of
magazines, unauthorized return of music CDs, and failure to notify
Frost that music CDs were to be returned; (2) violation of Frost'
s First Amendment rights for withholding issues of Penthouse
and for returning his music CDs; (3) violation of Frost' s Fourteenth
Amendment due process rights (property and liberty interests)
for failure to notify Frost that his magazines had been rejected,
and for returning without notice Frost' s music CDs. In response,
the Defendants asserted a qualified immunity defense as to the
withholding of the magazines. Both Frost and the Defendants filed
motions for summary judgment.
Analyzing the cross motions for summary judgment, the district
court determined that Frost' s claim was basically one seeking
enforcement of the Hook Consent Decree, and that Frost
was therefore required to proceed through Hook class counsel.
However, the court also decided that Frost could proceed outside
of the Hook class action to the extent that he was seeking
damages, as opposed to equitable relief. To that end, the court
characterized Frost' s claim as one alleging violations of his
First Amendment rights instead of one alleging breach of the
Hook Consent Decree. The court then addressed separately
the ADOC' s conduct with respect to the CDs and the magazines.
The district court rejected Frost' s claim with respect to the
CDs because the court decided that the CDs had been returned
to BMG at the request of BMG, and that BMG was entitled to the
return of the discs because Frost had not paid for them. Admitting
that the ADOC' s confiscation of Frost' s magazines raised First
Amendment concerns, the district court applied the Turner
reasonableness test to the ADOC' s policy to reject publications
"that dictate sexual penetration." The district court
decided that Frost' s First Amendment rights had not been violated,
and that the Defendants were entitled to qualified immunity.
The district court then granted the Defendants' motion for summary
judgment, and denied Frost' s motion for summary judgment. Frost
timely appealed the district court' s order.
II.
We review de novo the district court' s order granting
the Defendants' motion for summary judgment to determine whether
there are any genuine issues of material fact and whether the
district court properly applied the relevant substantive law.
See Margolis v. Ryan, 140 F.3d 850, 852 (9th Cir. 1998).
In reviewing the district court' s order, the panel views the
evidence in the light most favorable to Frost. See id.
III.
Frost contends that the district court improperly granted
summary judgment on his claims that the Defendants violated his
Fourteenth Amendment due process rights by withholding magazines
without notice, delivering notices of withholding after unreasonable
delays, and storing the magazines for unreasonable amounts of
time before delivering them to him. The district court did not
consider whether the Defendants had violated Frost' s Fourteenth
Amendment rights, and instead considered only whether the Defendants
had violated his First Amendment rights.
Frost has a Fourteenth Amendment due process liberty interest
in receiving notice that his incoming mail is being withheld
by prison authorities. See Miniken v. Walter, 978 F. Supp.
1356, 1363-64 (E.D. Wash. 1997) (holding that prison officials'
failure to notify an inmate that his incoming non-junk mail was
being withheld violated the inmate' s Fourteenth Amendment Rights);
see also Thornburgh v. Abbott, 490 U.S. 401, 406 (1989)
(upholding a prison' s restrictions on inmates receiving publications
detrimental to prison security where the prison regulations required
the warden to promptly notify an inmate that his mail was being
withheld); Hook Consent Decree (requiring "[p]rompt
written notice" when publications withheld); ADOC Internal
Management Policy No. 302.4 § 6.9.6 (requiring notice "within
24 hours after seizure of items" ). The district court therefore
erred by not considering Frost' s Fourteenth Amendment claims,
which were supported by unrebutted evidence that (1) Frost did
not receive the February or March 1994 issues of Penthouse
and Gallery, the June, July, August, or September 1996 issues
of Penthouse, and was not notified that these magazines
were being withheld; (2) Frost received notice that the November
1995 issue of Penthouse was being withheld three months
after the ADOC had received the magazine; (3) Frost received
the December 1995 issues of Gallery and Penthouse almost
two months after the ADOC had received these magazines; and (4)
Frost received the January 1996 issues of Gallery and Penthouse
approximately three weeks after the ADOC had received these magazines.
On remand, the district court should consider whether the Defendants'
actions satisfied the minimum procedural safeguards required
by the Due Process Clause.[FOOTNOTE 7]
IV.
Frost next contends that, with respect to the sexually
explicit magazines, the district court erred by granting the
Defendants' motion for summary judgment on alternate grounds:
(1) that the Defendants did not violate his First Amendment rights
by withholding issues of Gallery and Penthouse magazines,
and (2) that the Defendants were entitled to qualified immunity
for their actions.
Frost' s First Amendment claim prompts us to reconcile
our recent en banc opinion in Mauro v. Arpaio, 188 F.3d
1054 (9th Cir. 1999) with our earlier decision in Walker v.
Sumner, 917 F.2d 382 (9th Cir. 1990) relating to the evidentiary
burden that prison officials must meet in order to satisfy the
first prong of the Supreme Court' s Turner test.
Under Turner v. Safley, a regulation that impinges
upon a prisoner' s constitutional rights is valid if the regulation
"is reasonably related to legitimate penological interests."
482 U.S. 78, 89 (1987). The Turner Court articulated a
four-pronged test that guides courts in determining whether a
challenged regulation passes constitutional muster. "First,
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 (1984)). Specifically, the "logical connection
between the regulation and the asserted goal" must not be
"so remote as to render the policy arbitrary or irrational,"
and the governmental objective must be both "legitimate
and neutral." Turner, 482 U.S. at 89-90. Second,
it is relevant "whether there are alternative means of exercising
the right that remain open to prison inmates." Id.
at 90. Third, courts are to consider "the impact accommodation
of the asserted constitutional right will have on guards and
other inmates, and on the allocation of prison resources generally."
Id. Fourth, "the absence of ready alternatives is
evidence of the reasonableness of a prison regulation."
Id.
Handed down just a few years after Turner, Walker v.
Sumner was one of our earlier efforts to give greater content
to the Turner test. Walker involved a civil rights
action brought by a prison inmate who alleged that prison officials
had forcibly taken a blood sample from him without his consent
and had threatened to shoot him with a taser gun unless he agreed
to provide a sample. In their pleadings, the prison officials
alleged that the "blood tests were in fact administered
in order to determine if any prisoners were carriers of the AIDS
virus." Walker, 917 F.2d at 384. But Walker argued
that the real purpose behind the tests was to train medical personnel
in the administration of AIDS tests. The court noted that if
that was indeed the purpose of the tests, Walker "may well
be correct" that the policy did not further "a legitimate
penological objective." Id. at 387. In parsing the
various competing explanations, the Walker court held
that:
Prison authorities cannot rely on general or conclusory assertions
to support their policies. Rather, they must first identify the
specific penological interests involved and then demonstrate
both that those specific interests are the actual bases for their
policies and that the policies are reasonably related to the
furtherance of the identified interests. An evidentiary showing
is required as to each point.
Id. at 386. Thus, the court brushed aside the government'
s stated justification for the policy -- preserving the health,
safety, and welfare of the inmates -- in the absence of any evidence
that the policy actually was implemented to further this objective.
Without citing Walker, Mauro appears to have implicitly
called its underpinnings into question. In very clear and broad
language, Mauro dramatically diminishes the level of scrutiny
that courts ordinarily are to apply to the decisions of prison
administrators:
To show a rational relationship between a regulation and a
legitimate penological interest, prison officials need not prove
that the banned material actually caused problems in the past,
or that the materials are "likely" to cause problems
in the future. See Thornburgh, 490 U.S. at 417; Casey,
4 F.3d at 1521. Moreover, it "does not matter whether we
agree with" the defendants or whether the policy "in
fact advances" the jail' s legitimate interests. See
Amatel, 156 F.3d at 199. The only question that we must answer
is whether the defendants' judgment was "rational,"
that is, whether the defendants might reasonably have thought
that the policy would advance its interests. See id.
Mauro, 188 F.3d at 1060 (emphasis added).
This language holds that even in the absence of institution-specific
or general social science evidence, as long as it is plausible
that prison officials believed the policy would further a legitimate
objective, the governmental defendant should prevail on Turner'
s first prong.
Indeed, it was the lack of a trial record that could have
shed light on the prison' s actual (as opposed to possible)
motivations for the policy that sparked a strong dissent by Judge
Kleinfeld. See id. at 1066, 1068 (Kleinfeld, J., dissenting).
Thus, whereas the Walker court found fatal the defendant'
s failure to offer evidence concerning its actual motivation
for implementing the regulation at issue, the Mauro court
did not inquire into the prison' s actual motivation, and ruled
that as a matter of law the prison' s purported motivations were
legitimate and rationally furthered by the prison' s ban on sexually
explicit materials. See id. at 1060.
Mauro' s favorable citations to Amatel are also
quite relevant. In Amatel v. Reno, 156 F.3d 192 (D.C.
Cir. 1998), cert. denied, 119 S. Ct. 2392 (1999), the
D.C. Circuit reversed a district judge' s ruling that a ban on
the use of prison funds to purchase sexually explicit materials
for inmates violated the prisoners' First Amendment rights. In
that instance, the circuit court was deferring to a legislative
judgment about the relationship between sexually explicit materials
and prison security. In a critical passage, the Court noted that
even though there was no evidence in the record supporting
a connection between the ban and prison security, that did not
render the legislative judgment irrational:
There is, of course, no "record evidence," and certainly
no sophisticated multiple regression analyses or other social
science data, to support this belief -- a fact our dissenting
colleague finds fatal. We do not think, however, that common
sense must be the mere handmaiden of social science data or expert
testimonials in evaluating congressional judgments. Quite the
opposite: scientific studies can have a corrective effect by
establishing an apparently implausible connection or refuting
an apparently obvious one, but, subject to such corrections,
conformity to commonsensical intuitive judgments is a standard
element of both reasonableness and rationality. . . . Here, the
regulations restrict prison consumption of publications that
implicitly elevate the value of the viewer' s immediate sexual
gratification over the values of respect and consideration for
others. Common sense tells us that 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 (citations omitted).
The opinion then discusses the evidence that exposure to sexually
explicit materials makes inmates more likely to commit sex crimes
after release, more aggressive, more tolerant of violence against
women, and more susceptible to myths about rape. Id. at
200. While admitting that there is an impressive quantum of evidence
taking issue with these studies, the court concluded that this
scientific uncertainty unquestionably placed the "legislative
judgment within the realm of reason under the standards applicable
to the political branches' management of prisons." Id.
A careful reading of the passage excerpted supra
helps shed light on the apparent tension between Mauro and
Walker. The D.C. Circuit noted that the government could
use scientific studies or record evidence to establish a rational
connection between a policy and objective that do not appear
intuitively connected. Id. at 199. If it failed to do
so, the inmate would prevail on Turner' s first prong.
Conversely, an inmate could marshal scientific studies or record
evidence to "refute an apparently obvious" connection
between a prison policy and a legitimate objective. Id.
If he failed to do so, the government would prevail on prong
one.
In Walker, the plaintiff presented evidence, and
the government did not contest, that "the prison officials
knew that no prisoners had AIDS at the time the disputed samples
were taken." Walker, 917 F.2d at 384. This evidence
sufficed to refute the otherwise obvious connection between taking
blood samples from prisoners and preserving the health, welfare,
and safety of prisoners by diagnosing those who were HIV positive.
If prison officials knew that no prisoner was HIV positive but
nevertheless tested all prisoners for the AIDS virus, then an
interest in inmates' health, welfare, or safety cannot have rationally
motivated the policy.
In Mauro, on the other hand, the plaintiffs presented
no evidence casting doubt on the obvious connection "between
the possession of sexually explicit materials and the problems
sought to be addressed by the policy -- sexual harassment of
female officers, jail security and rehabilitation of inmates
. . . ." 188 F.3d at 1060. Indeed, the panel explicitly
held that because the parties did not raise the "issue of
material fact regarding whether the jail' s policy of excluding
sexually explicit materials was imposed for the purpose of punishing
pretrial detainees[,]" the argument was deemed waived. Id.
at 1059 n.2. Thus, unlike in Walker, Mauro did not satisfy
his burden of refuting an intuitive, common sense connection
between the state' s policy and its objectives.
This analysis helps demonstrate that Walker and Mauro
do not conflict;[FOOTNOTE 8] they merely apply in different situations.
When the inmate presents sufficient (pre- or post-) trial evidence
that refutes a common-sense connection between a legitimate objective
and a prison regulation, Walker applies, and the state
must present enough counter-evidence to show that the connection
is not so "remote as to render the policy arbitrary or irrational."
Mauro, 188 F.3d at 1060 (quoting Turner, 482 U.S.
at 89-90, and Amatel, 156 F.3d at 200-01). On the other
hand, when the inmate does not present enough evidence to refute
a common-sense connection between a prison regulation and the
objective that government' s counsel argues the policy was designed
to further, Mauro applies and, presuming the governmental
objective is legitimate and neutral, see Thornburgh, 490 U.S.
at 414, Turner' s first prong is satisfied.
In this instance Arizona' s government has put forward
three justifications for the challenged regulations: (1) They
are necessary "to insure the safety of inmates and prison
officers" ; (2) they "protect female officers from
abuse and harassment" ; and (3) the publications depicting
sexual penetration "are likely to cause inmates who come
in contact with the material to harass and/or abuse other individuals"
. Appellees' Brief at 16. These objectives and their connection
to a ban on possession of materials depicting sexual penetration
clearly pass the "common sense" standard of Mauro
and Amatel.[FOOTNOTE 9] Because, at the summary judgment
stage, the inmate presented insufficient evidence to refute this
common-sense connection, the government was not required to make
any evidentiary showing concerning the connection. Since the
same analysis holding the Mauro policy to be neutral
applies here, see Mauro, 188 F.3d at 1061, and the regulation
furthers an interest "unrelated to the suppression of expression,"
Thornburgh, 490 U.S. at 415, the prison regulation passes
Turner' s first prong. In other words, there is a valid,
rational connection between the policy and the legitimate governmental
interest put forward to justify it. We thus turn our attention
to the remaining prongs of the Turner inquiry.
Turner' s second prong prompts us to examine whether
there are alternative means of exercising the right in question.
See Turner, 482 U.S. at 90. "In applying this factor,
' the right in question must be viewed sensibly and expansively.'
"Mauro, 188 F.3d at 1061 (quoting Thornburgh,
490 U.S. at 417). Here an inmate' s right to receive sexually
explicit communications is at issue. As with the regulation that
was challenged in Mauro, the policy banning such materials
"does not ban sexually explicit letters between inmates
and others, nor does it ban sexually explicit articles or photographs
of clothed females." Id. Indeed, the regulation at
issue here gives prisoners access to a larger universe of materials
than the regulation that was upheld in Mauro: Frost evidently
may access sexually explicit publications that do not depict
actual penetration. We thus conclude that the policy satisfies
Turner' s second prong.
The third prong of Turner requires us to assess
the consequences of accommodating the asserted constitutional
right for "prison personnel, other inmates, and the allocation
of prison resources." Id. Again, we follow the Mauro court'
s analysis of the more restrictive regulation at issue there.
As our prior analysis indicates, Frost has not met his burden
of refuting the prison' s claim that allowing inmates to have
unrestricted access to materials depicting sexual penetration
would threaten the security of inmates and of guards who might
be subjected to sexual harassment as a result. The district court'
s conclusion that allowing images depicting sexual penetration
could create a "ripple effect" within the institution
because of the likelihood that such materials would prompt bartering
among inmates, disputes over possession, and contribute to the
sexual harassment of female detention officers was not erroneous.
"When accommodation of an asserted right will have a significant
' ripple effect' on fellow inmates or on prison staff, courts
should be particularly deferential to the informed discretion
of corrections officials." Turner, 482 U.S. at 90.
The prison regulation thus does not run aground of prong three.
The final prong of Turner charges us to explore
whether the inmate can articulate alternatives to the regulation
at issue that would "fully accommodate the prisoner' s rights
at de minimis cost to valid penological interests . . . ."
Id. at 91. The "existence of obvious, easy alternatives
may be evidence that the regulation is not reasonable, but is
an ' exaggerated response' to prison concerns." Id.
at 90. Frost contends that the prison could subject individual
inmates who showed a female staff member an image depicting penetration
to disciplinary sanctions, confiscate the pornographic materials
of said inmate, or revoke the right of such prisoners to receive
sexually explicit magazines in the future. But, as the district
court concluded, forcing prison officials to wait until after
violations have occurred before restricting inmates' access to
these materials would unduly tie the hands of prison officials
who see the need for preventive measures. Furthermore, Frost'
s proposed alternative does not address the potential for such
material to be passed among inmates. Thus, the district court
correctly ruled that Frost' s alternative is not appropriately
feasible and that the policy does not offend Turner' s
fourth prong. Because the prison' s restriction on the receipt
of images depicting sexual penetration dexterously parries Turner'
s various prongs, we conclude that the regulation does not unconstitutionally
abridge Frost' s First Amendment rights.
Because the Defendants did not violate Frost' s First Amendment
rights, it is unnecessary for us to reach the district court'
s alternative grounds for summary judgment -- that the
Defendants were entitled to qualified immunity on the First Amendment
claims.
V.
Frost also contends that, with respect to the CDs, the
district court erred by granting the Defendants' motion for summary
judgment on the ground that the Defendants returned the CDs pursuant
to BMG' s request. The Defendants point out that they returned
the CDs only at BMG' s behest and that they determined that Frost
had not paid for the CDs before doing so. On this record, there
is no evidence that the ADOC officials violated Frost' s clearly
established rights by returning the CDs. Leaving questions of
notice aside, the dispute over the CDs' return is between Frost
and BMG. Therefore, the district judge' s decision to grant the
Defendants' motion for summary judgment on this claim was not
erroneous.
VI.
We cannot decide on the record before us whether the district
court correctly ruled that Frost must enforce his rights under
Hook through the Hook class action, which involves
a suit by Arizona inmates challenging various prison regulations.
See Hook v. Arizona, No. CIV-73-97-PHX-CAM (D. Ariz. Oct.
19, 1973). To the extent that a class action involving the same
issues raised by Frost is currently pending in the District of
Arizona, Frost may have to bring all of his related claims for
equitable relief, which would include his equitable claim for
contempt of court, see Gates v. Shinn, 98 F.3d 463, 466
(9th Cir. 1996), through Hook class counsel. See Crawford
v. Bell, 599 F.2d 890, 892-93 (9th Cir. 1979). Although it
appears that a class action was certified in Hook in 1994,
nothing in the record or briefs filed by the parties explains
the status or scope of the 1994 class proceedings. As a result,
we remand this case to the district court to ascertain the current
status of the Hook class action, and to determine
whether Frost should bring his equitable claims for relief through
class counsel.
VII.
Finally, we decide that the district court properly granted
summary judgment with respect to Larry Barrows ("Barrows"
). Frost incorrectly identified Barrows as the individual who
interviewed him when Frost appealed the withholding of the October
1995 issue of Penthouse. However, the record shows that
the person who conducted the interview was Deputy Warden David
Bourgeous, who is not named as a defendant in Frost' s complaint.
Because Barrows' only connection to Frost' s action is in his
capacity as the incorrectly identified interviewer, the district
court' s grant of summary judgment is affirmed with respect to
Barrows.
Based on the foregoing, we AFFIRM in part, REVERSE in part,
and REMAND for further proceedings consistent with this decision.
Each party will pay its own costs.
::::::::::::::::::::::::::::: FOOTNOTE(S):::::::::::::::::::::::::::::
FN*.This panel unanimously agrees that this case is appropriate
for submission without oral argument pursuant to Fed. R. App.
P. 34(a)(2).
FN1. The Hook Consent Decree defined "publication"
as "[r]eproduced written and/or pictorial matter released
for public use including books, periodicals, newspapers, pamphlets,
photographs, etc."
FN2. It appears, however, that in August 1994 a class
may have been certified with respect to a limited issue. See
Hook v. Arizona Dep' t of Corrections, 907 F. Supp. 1326,
1332 (D. Ariz. 1995). Unfortunately, the August 1994 order granting
in part the motion for class certification is not part of the
record in this case.
FN3. Although Frost claims that Symington directed Lewis
to issue this memorandum, Lewis testified in a prior proceeding
that he had acted alone in circulating the memorandum, and that
Symington did not direct him to issue the memorandum. See
Hook v. Arizona, 907 F. Supp. 1326, 1331 (D. Ariz. 1995).
FN4. Thomas is not named as a defendant in Frost' s complaint.
FN5. In his complaint, Frost states that he was interviewed
by "Defendant Barrows." However, Frost' s identification
of his interviewer appears to be incorrect because Bourgeous'
name appears on the Inmate Letter with the written explanation
for the rejection of the magazine.
FN6. Upchurch ended his job as Warden on October 10, 1995,
before most of the actions alleged in Frost' s complaint took
place.
FN7. Furthermore, Frost alleges that ADOC officials never
notified him that his CDs had been returned to BMG. Frost has
the same due process interest in receiving notice of ADOC' s
actions regardless of whether the item being withheld or returned
is a magazine or a CD.
FN8. The Mauro court implicitly rejected the suggestion
that its ruling directly conflicted with Walker. In adopting
Amatel' s reasoning, the Mauro court rejected Judge Wald'
s dissent in Amatel. Judge Wald had argued that the Amatel
majority was placing itself in direct conflict with the Ninth
Circuit' s Walker opinion:
The majority' s apparent conclusion that the government bears
no responsibility for compiling evidence to support the breadth
of its ban -- in other words, that the courts may simply hypothesize
a rational connection -- runs counter to the wisdom of several
other circuit courts. See, e.g., . . . Walker v. Sumner,
917 F.2d 382, 386 (9th Cir. 1990).
Amatel, 156 F.3d at 208 (Wald, J., dissenting).
Thus, our court has already implicitly rejected the view that
Walker and Mauro are irreconcilable. Today we are more
explicit in our rejection of that view.
FN9. The Mauro court held that the "relationship
between the possession of sexually explicit materials and the
. . . sexual harassment of female officers [and] jail security
. . . is clear." 188 F.3d at 1060. Here, the prison has
banned the possession of a subclass of sexually explicit materials
-- those depicting sexual penetration. We believe that the relationship
here is at least as clear as it was in Mauro.
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