Case Information
*1 Before W OOD , Chief Judge , and P OSNER and R OVNER , Circuit Judges .
R OVNER , Circuit Judge . Eugеne Brown is civilly committed to the Rushville Treatment and Detention Center under Illi- nois’s Sexually Violent Persons Commitment Act. The Act authorizes detention of persons who are determined through a civil proceeding to be a “sexually violent person.” See 725 ILCS 207/40. Brown and 17 others confined at Rushville sued the facility’s officials and clinical staff under 42 U.S.C. § 1983. They allege that policies restricting their access to movies, video games, and video game consoles vio- late the First Amendment. The district court entered sum- mary judgment for the defendants, and only Brown ap- pealed. Because the rеcord does not contain a sufficient basis to conclude that the ban on movies and video games is rea- sonably related to the state’s interests in security and reha- bilitation, we vacate the judgment in part.
A “sexually violent person” includes someone who has been convicted of a sexually violent offense and “suffers from a mental disorder that makes it substantially probable that the person will engage in acts of sexual violence.” 725 ILCS 207/5(f). Brown was convicted of five counts of aggra- vated sexual assault for raping adult women. See In re Com- mitment of Brown , No. 1-11-0732, 2012 WL 6962055, *1, *3–4 (Ill. App. Ct. Oct. 30, 2012). He was diagnоsed with paraphil- ia (specifically, sexual attraction to non-consenting women) and personality disorder with antisocial and narcissistic traits. Id. at *4–5. If, as in Brown’s case, a court or jury finds beyond a reasonable doubt that the person is sexually vio- lent, he is committed to the custody оf the Illinois Depart- ment of Human Services “for control, care and treatment un- til such time as the person is no longer a sexually violent person.” 725 ILCS 207/5(a), 207/35(f), 207/40(a).
Before this lawsuit began, Rushville prohibited its resi- dents from watching all R-rated movies and playing any M- rated video game. (The rating “M” for “maturе” is defined by the Entertainment Software Rating Board as denoting ma- terial that is “generally suitable for ages 17 and up” and may “contain intense violence, blood and gore, sexual content and/or strong language.” See ESRB Ratings Guide , E NTERTAINMENT S OFTWARE R ATING B OARD http://www.esrb.org/ratings/ratings_guide.jsp (last visited Sept. 3, 2015).) After Brown sued to contend that thesе pro- hibitions violated the First Amendment, Rushville replaced its complete ban on all R and M-rated media with a list of banned movies and video games. In addition, after this suit began, Rushville discovered that two residents were using a video game console to access the internet to view forbiddеn material. So Rushville also banned residents from possessing video game consoles capable of accessing the internet. These new restrictions led Brown to contend that Rushville had re- taliated against him for suing.
The most recent list of censored content bans 353 movies and 232 video games. Rushville says that this list includes only movies “with sexual and/or graphic violent themes deemed especially counter-therapeutic.” Therapists at Rush- ville apparently review a movie or video game upon a resi- dent’s request for the media. For example, one moviе titled Immortals , an action film about the Greek demi-god Theseus, was banned because, according to a therapist’s review, the movie depicts a “[n]ude woman–seen from back and side, sex scenes (nothing is actually seen, but it is simulated), bare breasts[,] and implied sex” and “[s]trong bloody violencе and [s]exuality.”
The parties cross-moved for summary judgment. Relying
on
Turner v. Safley
,
The defendants also offered evidence to justify, on bоth therapeutic and security grounds, the ban on game consoles. Scott asserted in his affidavit that the policy prevents “resi- dents from frustrating their treatment by having unrestricted access to counter-therapeutic information, contacting the vic- tims of their sexually violent offenses, оr engaging in further crime.” The ban, he added, also prevents residents from us- ing the console’s hard drive to smuggle “contraband” into the facility (like child pornography) and eliminates consoles as an “unregulated currency.” In response to Brown’s argu- ment that the policy is overbroad beсause it need ban only Wi-Fi-enabled consoles, the defendants submitted an affida- vit from Jason White, an information systems analyst at the facility. White stated that even if consoles could be pur- chased without Wi-Fi hardware, the consoles still could wirelessly connect to the internet by plugging into the con- sole’s Ethernet or USB port a device that would convert the cable-only device to a wireless device. A resident could then connect to the internet in several ways, including simply asking outsiders to emit a wireless signal from a cell phone in the parking lot.
The district court grаnted the defendants’ motions for summary judgment. First, it ruled that Turner ’s reasonable- relationship standard, rather than the more exacting scrutiny that Brown preferred, applied to civil detainees. Then it as- sessed the restriction on movies and video games. It con- cluded that the affidavits of Dr. Jumper аnd Scott articulated “legitimate security, safety, and therapeutic goals which the restrictions are logically designed to achieve.” The court added that their conclusions are “rational based on the na- ture of the facility and the nature of the range of mental dis- ordеrs from which the detainees suffer.” The court also ap- plied Turner to conclude that the policy prohibiting most consoles is reasonably related to the facility’s interests in preventing residents from obtaining, storing, and trading pornography and “other counter-therapeutic materiаls.” Fi- nally, because the policies do not violate the residents’ First Amendment rights, the court concluded that the retaliation claims also fail.
Brown maintains on appeal that the district court erred in
upholding Rushville’s bans. As a preliminary matter, we
address what legal standard governs civil detаinees’ First
Amendment claims. Other circuits have applied
Turner
to
evaluate civil detainees’ civil-rights claims.
See Pesci v. Budz
,
730 F.3d 1291, 1298 (11th Cir. 2013);
Beaulieu v. Ludeman
,
690 F.3d 1017, 1039 (8th Cir. 2012);
Ahlers v. Rabinowitz
,
684 F.3d 53, 65–66 (2d Cir. 2012). We too have said that “it
would not be too difficult to adopt [
Turner
’s reasonable-
relationship] standard for claims by civil detainees,” so long
as the standard is modified to recognize “the different legit-
imate interests that governments hаve with regard to pris-
oners as compared with civil detainees.”
Lane v. Williams
689 F.3d 879, 884 (7th Cir. 2012). One recognized difference
is that “[p]ersons who have been involuntarily committed
are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confine-
ment are designed to punish.”
Youngberg v. Romeo
, 457 U.S.
307, 321–22 (1982). We also have recognized as legitimate the
state’s interests in the security of the facility and the incapac-
itation and treatment of civil detainees.
Lane
,
Keeping in mind the detainee’s and state’s interests when
the state detains sexually violent persоns, we think that
Turner’s
rational-relationship test provides the appropriate
structure to analyze Brown’s claims.
Turner
requires that, for
the state to restrain a civil detainee’s First Amendment
rights, the restraint must be rationally connected to the
state’s interests—here, security and the rehabilitation and
treatment of sexually violent persons. To demonstrate the
rational relationship, the state must “show more than a for-
malistic logical connection between a regulation and
[its institutional] objective.”
Beard v. Banks
,
Aрplying this standard, we conclude that the defendants’
evidence at summary judgment is too feeble to justify the
ban on movies and video games. Defendants argue that
“common sense” justifies prohibiting sex offenders from
viewing sexually explicit materials.
See Waterman v. Farmer
,
The record at this point does not contain a basis for link-
ing the ban on media content to Rushville’s therapeutic or
security goals. The defendants, through Dr. Jumper and
Scott, have offered a conclusion that eliminating “counter-
therapeutic” images of graphic content furthers a resident’s
treatment and security. But a bare assertion that Rushville’s
ban on sexual material promotes treatment is insufficient to
justify summary judgment on a First Amendment claim.
See Ramirez v. Pugh
,
The defendants’ assertions are insufficient to justify
summary judgment no matter whether they are treated as
lay or expert opinions. The defendants apparently offered
the affidavits as lay opinion testimony, since they did not
comply with the rules of civil procedure required to submit
expert affidavits.
See
F ED . R. C IV . P. 26;
Meyers v. Nat’l R.R.
Passenger Corp.
,
The ban on videо game consoles capable of accessing the internet is another matter—the record evidence shows that in two ways the policy bears a rational relationship to the facility’s interest in security. First, consoles capable of access- ing the internet allоw detainees to contact victims of their crimes; the ban on these consoles thus advances the state’s interest in protecting the public. Second, because these con- soles permit inmates to download, manipulate, share, and store illegal pornography, the ban аlso promotes the state’s legitimate interest in preventing crime. Because this evi- dence went unrebutted, summary judgment on the console- ban claim was proper.
Summary judgment for the defendants also was proper
with respect to Brown’s retaliation claims. First, Brown can-
not show thаt Rushville’s decision to replace its universal
ban on movies and games, and censor only listed movies
and games, was “likely to deter First Amendment activity in
the future.”
Gomez v. Randle
,
Accordingly, we VACATE the judgment with respect to Brown’s challenge to the policy restricting his access to mov- ies and video gamеs, and REMAND for further proceedings. Brown has abandoned his request for monetary damages, so the only defendant remaining on remand is Gregg Scott, the current program director responsible for implementing poli- cies at Rushville. In all other respects we AFFIRM the district court’s judgment.
Notes
[*] After examining the briefs and the record, we have concluded that oral argument is unnecessary. Thus the appeal is submitted on the briefs and the record. See F ED . R. A PP . P. 34(a)(2)(C).