Eugene Brown v. Larry PhillipsEugene Brown v. Larry Phillips
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
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.”
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 “mature” is definеd 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 these prо- 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 forbidden matеrial. 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 movie titled Immortals , аn 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 violence and [s]еxuality.”
The parties cross-moved for summary judgment. Relying
on
Turner v. Safley
,
The defendants also offered evidence to justify, on both therаpeutic 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, or engаging 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 becausе 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 granted thе 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 and Scоtt 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- orders from whiсh 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 materials.” Fi- nally, bеcause 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 detaineеs’ 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 have with rеgard 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 persons, we think thаt
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
,
Applying this stаndard, 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
The ban on video gamе 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 allow detаinees 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 also рromotes 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 that Rushville’s dеcision 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 games, and REMAND fоr 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