Fletcher Casey, Jr., on Behalf of Themselves and All Others Similarly Situated v. Samuel A. Lewis, Director, Arizona Department of Corrections

provide purpose of ONA to The overall will the needs meet

regulatory structure changing services rapidly enhanced is to

industry. way to facilitate this The best tech- unbundling to the fullest extent

require make

nologically and to unbundled possible to ESPs as broad

services available hold that the federal possible. We

basis technically com-

tariffing that are of BSEs service meets these

patible interstate juris- goals and is within FCC’s

overall authority.

dictional

CONCLUSION petitions for review and Cali- MCI DENIED.

fornia are CASEY, al., Jr., et behalf

Fletcher similarly others

themselves all

situated, Plaintiffs-Appellees, Director, LEWIS, Arizona

Samuel A. Corrections, al.,

Department of et

Defendants-Appellants.

No. 91-16513. Appeals,

United States Court

Ninth Circuit.

Argued Nov. and Submitted Sept.

Decided Hochuli, Wieneke,

Edward G. Kathleen L. Struck, Jones, Lewis, Daniel P. and David C. Hochuli, Phoenix, AZ, Skelton & for defen- dants-appellants. Adams, Jr., Alexander, Stuart H. Elizabeth ' Fathi,

Adjoa Aiyetoro, A. and David C. DC, Project, Washington, ACLU Nat: Prison Bendheim, Phoenix, AZ, Alice L. plain- tiffs-appellees. (cid:127) GOODWIN, FARRIS,

Before: PREGERSON, Judges. Circuit OPINION FARRIS, Judge: Circuit OVERVIEW Department The Arizona of Corrections summary granting partial appeals an order judgment plaintiff of a certified class favor enjoining of Arizona state (a) prohibiting contact vis- Department from section 504 claim attorneys, and correctional facilities. The inmates and its between policy denying ADOC food- (b) jobs HIV-posi- is based on the denying food-service seropositive inmates. employment service brought inmates. The tive1 § 1983 action under U.S.C. August 1991, the district court On 1973, the Rehabilitation Act of section 504 of summary judgment favor of granted (1988). in- § We vacate the 29 794 U.S.C. 6, 1991, the plaintiff September class. On attorney-inmate junction. the issue of On and memorandum court filed amended visitation, grant of reverse the contact we Lewis, Casey F.Supp. v. 773 1365 order. class and judgment for the inmate summary (D.Ariz.1991). enjoined Ari- The order summary judgment of favor order Department prohib- from zona of Corrections Corrections. With Department Arizona of iting visits between inmates and contact claim, remand respect section 504 we to the attorneys of the Arizona State in all facilities of stand- dismiss lack with instructions system, except good It Prison cause. ing. enjoined Department denying also HIV-positive in- employment to food-service mates, finding absence of a written JURISDICTION (1) quali- inmate is that: not “otherwise juris- original The district exercised (2) fied,” reasonably and the ADOC cannot §§ pursuant to 28 U.S.C. diction “handicap”. the inmate’s On accommodate Department 1343(a)(3), The of and 2201. 1,1991, Department’s we denied the October plaintiff class Corrections contends stay emergency petition for an the district III standing under Article the Unit- lacks court’s order. claims to assert its ed States Constitution section under the Constitution under STANDARD OF REVIEW standing issue 504. We address the re Standing question is a of law separately. juris- We have these two claims Roofers, viewed de novo. United Union of 1292(a)(1). § pursuant to 28 U.S.C. diction Trades v. Waterproofers, and Allied No. 40 Am., F.2d 1399 Corp. Insurance BACKGROUND (9th Cir.1990); States, Bruce v. United (9th Cir.1985). by twenty-two This action was filed class January 1990. The plaintiffs named Summary judgment is also reviewed per- all composed certified adult class R.R., Pac. 968 F.2d novo. Jones v. Union de now, be, will in the sons who are or who (9th Cir.1992); Serv., Elec. Inc. T.W. custody Department the Arizona of Cor- Ass’n, 809 F.2d v. Elec. Contractors Pacific rections. A consists all subclass (9th Cir.1987). inquiry is handicapped who are individuals within whether, viewing light in a evidence most in the custody or who will of the ADOC nonmoving party, there re favorable to the custody. future in ADOC Defendants fact, genuine material main issues of officials, agents, employees of the Arizona applied correctly the district court Department of Corrections. law. the relevant substantive FDIC (9th O’Melveny Meyers, & prisoners allege policies certain Cir.1992). practices of the violate their four- ADOC rights teenth amendment access DISCUSSION They HIV-positive courts. also claim against in violation inmates are discriminated I. VISITATION ATTORNEY-INMATE Act of 504 of the Rehabilitation section Policy. A. The ADOC right of claim based on 1973. The access Department of Department’s attorney- Corrections policy prohibiting Arizona forbidding attorney contact visitation client contact visitation to inmates at certain Virus) interchang- (Human "seropositive" Immunodeficiency "HIV-positive” is the 1. HIV ably agent Acquired individuals who been found viral Immune Defi- describe causes (AIDS). ciency Syndrome adjectives with HIV. We use the to be infected (1) applies ery to: inmates housed at appeal, the Alham- writ of error or the first and Reception awaiting question jurisdiction, bra Center and classifica- fundamental (2) first, court, tion; of this inmates at Cell Block 6 of and then of ASPC- the court from (8) Florence; which the Special inmates housed in the record comes.” C. & Mansfield Swan, Ry. 379, 382, L.M. Management Co. v. facility; Unit at the Florence 510, 511, (1884). 28 L.Ed. 462 lock-down units at other ADOC facilities. The nature and extent of minimum, “[A]t an irreducible Art. Ill re- permitted depends upon visitation the loca- quires party who invokes the court’s tion of the and his classification. authority to ‘show that he personally has suffered some actual injury or threatened

Many inmates at Alhambra are allowed a result putatively illegal conduct of visitation; those who are not are the defendant’----” Valley Forge Christian county jail recent arrivals from who College v. Separation Americans United yet They been temporarily classified. are State, Inc., 464, 472, Church and 454 U.S. 5, highest possible considered Level secu- of 752, 758, (1982) 102 S.Ct. 70 L.Ed.2d 700 rity risk. Gladstone, (quoting Village v. Realtors Cell Block 6 houses more than 100 in- Bellwood, 91, 99, 1601, U.S. 99 S.Ct. mates, roughly one-half of whom have been 1608, (1979)). 60 L.Ed.2d 66 This is the sentenced to death. The other injury” “actual component standing of the CB6 are classified Level 3. Inmates seek- doctrine; requires it injury to be “real ing placed, contact visitation at CB6 are un- immediate,” merely “conjectural” or shackled, caged measuring approxi- in a area Littleton, “hypothetical.” See O’Shea v. mately wide, high, seven feet four feet and" 488, 494, 669, 675, U.S. 94 S.Ct. 38 L.Ed.2d deep. permits three feet A mail slot (1973); Zwickler, Golden v. 394 U.S. passage attorney of documents between 109-110, 956, 960-61, 89 S.Ct. 22 L.Ed.2d 113 inmate. (1969). prisoners vast of the housed At plaintiff least one named must sat Special at the Management Unit are classi- isfy injury component the actual standing fied as Level 5 risks. An SMU in order to seek relief on behalf of himself or inmate sits on one side of a cinder-block and O’Shea, 494-95, the class. 414 U.S. at glass partition, attorney while his sits on the inquiry S.Ct. at 675-76. is whether opposite side. Each partition side plaintiff named has demonstrated that he has equipped telephone through with a which the imminently sustained or danger of sus attorney inmate and converse. Documents taining injury a direct as the result of the are transferred between inmate and challenged conduct. Id. procedures accordance with strict to en- privacy sure the of those documents. prisoners allege, and the district found, court denying the ADOC Standing. B. attorney-inmate contact visitation violates rights the inmates’ fourteenth amendment judicial III power limits the Article meaningful prison áccess to the courts. The the federal courts to “cases” and “controver ers must demonstrate that prisoner a named sies.” presumed Federal courts are to lack either or danger sustained imminent jurisdiction, contrary appears “unless the af sustaining injury a direct as a result of the firmatively from the record.” Bender v. policy. Dist., Williamsport Area Sch. 475 U.S. 1326, 1334, 106 S.Ct. 89 L.Ed.2d 501 The record convinces us (1986) (internal omitted). quotation They “On ev- have met this burden.2 have estab- Bartholic, Kyle Baptisto complained policy. Any and Frank about the non-contact SMU, James, CB6, derived, however, Stephen right to contact visitation is alleged complaint inadequate right Ching in the access to the of access to the courts. Cir.1990). (9th Lewis, Eight twenty-two plaintiffs courts. named eov Mor er, alleged Stephen some form of interference with their the record reveals that James was right meaningful specifically attorney during access. None denied a contact visit with his courts, ..., are tors and not the to make “personal stake” in the lished sufficient judgments concerning difficult institutional action to “assure that con- outcome of operations.’” (quoting Id. v. North sharpens pre- Jones which crete adverseness Union, upon so which Carolina Prisoners’ sentation of issues 2532, 2539, of difficult 53 L.Ed.2d largely depends illumination 97 S.Ct. Carr, (1977)). questions.” Baker v. constitutional 186, 204, 703, 7 factors identifies four relevant Turner (1962). injuries, past and Their L.Ed.2d 663 determining prison pol the reasonableness

threatened, sufficiently “real immedi- (1) valid, icies: whether is a rational there standing upon the class. ate” confer prison policy and the connection between the put legitimate governmental interest forward C. Merits. (2) it; justify whether there are alterna summary judgment, granting (3) right; exercising tive means district court held unconstitutional ADOC impact of the constitu that accommodation attorney-client policy denying contact visita guards, tional will have on Alhambra, CB6, housed tion inmates, on the allocation of re SMU, units. and other lock-down sources; “exaggerated response” prison an policy is prison A inmate is entitled mean 89-90, 482 U.S. at 107 at concerns. S.Ct. ingful under access to courts the four 2262. The burden on the inmates to show is Smith, v. 430 teenth amendment. Bounds challenged regulation is that the unreason 817, 1491, 1495, 822, 97 S.Ct. 52 L.Ed.2d U.S. Patrissi, Turner. v. 967 able under Covino (1977). Historically, right “require[d] 72 (2d Gunter, Cir.1992); F.2d 73 Abdullah v. prison inmates in the authorities assist (8th Cir.1991), de 949 F.2d 1032 cert. filing meaningful legal preparation and of - nied, -, 1995, 112 S.Ct. 118 U.S. papers by providing adequate (1992). 591 L.Ed.2d adequate or law libraries assistance 828, in the persons trained law.” Id. 97 1. Rational Connection. “ ‘pro at 1498. The main concern was S.Ct. Department The of Corrections asserts tecting ability prepare of an inmate to a ” justifications‘for poli- its non-contact several 17, n. petition complaint.’ 97 or Id. 828 cy. argues policy It serves “the (quoting n. 17 v. McDon S.Ct. 1498 Wolff important public protecting in- interest 2963, nell, 539, 576, 2984, 41 418 94 U.S. S.Ct. mates, general public staff and the (1974)). L.Ed.2d 935 assault, possibility hostage-taking from the Lewis, 608, (9th Ching v. 895 F.2d 610 policy escape.” It also contends that the Cir.1990), right held access we designed to reduce the introduction includes contact visita- the courts contraband. tion. The inclusion of contact visitation with- access, however, meaningful in the erroneously district found The merely present beginning inquiry; our precluded it from that the record determin un- whether such visitation has been denied ing justifications&emdash;pre- asserted necessarily remains to be determined. assault, escape, hostage-taking, vention of Ching supply contraband&emdash;were the answer to this does not and the introduction of question. implementation reasons behind the actual Lewis, policy. Casey F.Supp. v. 773 infringement prisoners’ Any con (D.Ariz.1991). 1365, 1368-69 reasonably rights must related stitutional be “ merely ‘put officials need for- legitimate penological interests. Turner Prison ” interest, 2254, legitimate government ward’ a Safley, v. Sumner, (9th (1987). This Walker v. 385 relaxed L.Ed.2d Cir.1990) necessary (quoting ‘prison administra- U.S. at if standard “is Department pursuant deposition litigation was ditions established of this action: his dle taken, Block 6. objection, con its Cell under non-contact over his 2261-62), testimony provide Although Kenney’s largely justi- evi some 107 S.Ct. at put anticipat- fies the on'the dence that the interest forward basis security regulation. problems, Kenney’s actual for the ed we find reason Swift (9th Cir.1990). Lewis, testimony might The sufficient. read Swift requiring under provided support sufficient evidence concrete evidence to ADOC imple regulation e.g. past, Walker and was Smith ADOC — security problem measure. had a prophylactic recapturing mented as a Deputy However, he The affidavits of Warden McFadden shaved his beard. Keeney, as the reading and Assistant Director as well such a would create a (cid:127)Swift Crist, testimony sup deposition requires Warden conflict with Turner. Turner port allow this conclusion. coiirts officials “to antici- pate‘security problems adopt and to inno- also found rational district court no problems vative solutions to the intractable penological, asserted connection between.the administration.” 482 F.Supp. Casey, policy. interests and the added). (emphasis [at] finding primari- 1368-69. This based ly .testimony on the failure to cite incident ADOC’s of' Warden Crist demon- assault, escape oc- hostage-taking, strates his belief that visits between of contact be- curred as a result visitation attorneys inmates and their an creates intol- attorneys prisoners. security tween of a erable risk breach. That belief is not unreasonable. placed unduly

The district court Department onerous burden on of Cor specify past ADOC’s failure to pris A official’s rections. concern for event wherein contact visit resulted in as significant defer is entitled sault, escape, hostage-taking, does not 728, Harper Wallingford, ence. v. 877 F.2d adoption implemen render irrational the (9th Cir.1989). Harper, In 733 we held policy. tation a non-contact See of Thorn affidavit, a which superintendent’s 417, 109 1883-84; burgh, S.Ct. material, regulated if not stated that certain Friedman, 912 F.2d at Nor 332-33. does the censored, consti “could lead violence policy fact that the allows'some inmates 'to showing tuted a of a threat sufficient family have contact visits with members un proof prison security. required Id. We no rationality of ban on dermine the attor that such ever had been the cause materials ney-inmate inquiry contact visits. The Abbott, Thornburgh of 490 violence. v. the-justifications “invoked” for the 1883, 401, 417, 1874, U.S. S.Ct. 104 332; 109 policy by policy, see id. at are served (1989), Supreme Court L.Ed.2d 459 Kolodzieczak, 126, F.2d 127- Friend v. 923 regulations designed found (9th Cir.1991), rational certain policy banning not whether a “although avoid situations that not necessari visits would serve the' as all contact better violence, ly ‘likely’ to lead to deter [were] interests. find rational serted We by mined to create an the warden intolerable of relationship Department between the. Cor risk of disorder.” legitimate penological its rections’ concerns. recently

We another where decided case justified prison regulation ADOC officials 2. Avenues. Alternative prob anticipated security on the basis of Arizona, lems. In Friedman v. State 912 other avenues remain available for “Where (9th Cir.1990), denied, F.2d cert. 498 right, of the exercise asserted courts U.S. S.Ct. L.Ed.2d particularly of the mea- should be conscious (1991), we said: judicial deference to corrections sure of owed Here, Swift, pro- unlike has officials.” 482 U.S. at ADOC (citation witness, quotation omit- through expert at 2262 and internal vided evidence its ted).3 right” right is the Kenney, “asserted here support policy. its no beard “Where, here, appropriate prison penal to the authori- 3. a state as institution deference " involved, Sielaff, have a reason ties.’ Dreher 'federal courts further courts, Impact- on which Others. meaningful access to attorney. visitation with includes contact providing contact The ADOC contends 609-10. Ching, by in areas its visitation affected non-contact safety jeopardize the of its staff will Shabazz, 482 Estate In O’Lone v. and will to an and of visitors lead members 2400, 2406, 342, 352, 107 96 L.Ed.2d 282 in its in the amount of contraband increase (1987), “In Supreme Court stated: Tur argue prisons. The inmates that the ADOC ner, not look to see whether we did that, has demonstrated that this so and communicating fel other means of had contrary Deputy affidavit Warden inmates, instead examined whether low but McFadden, adequate space secure there is deprived- of ‘all means of the inmates were visits, at least at personnel contact ” omitted). (Citation In Fried expression.’ SMU. man, -332, applied the O’Lone 912 F.2d at we ' in court found that contact visits

reasoning prison policy prohibiting The district to a inmates, significantly affect other would not growing mates from inmates beards. staff, Casey, resources. religious prac no Friedman had alternative so, doing F.Supp. at 1369. In the court wearing beards. Ne tice substitute disputed regard issue of fact with resolved vertheless, we concluded inmates impact accommodation at SMU. expression all were “denied means worse, the ruled in Even court .favor partici “they could religion” though they produced no evidence religion,” pate aspects of their such other concerning impact of accommodation (internal eating quota food. Kosher Id. policy. areas -the affected omitted). tion justified finding its The district Here, “all inmates were not denied claim this factor follows: “Defendants’ their-rights of expression” mean means require visits at SMU would ingful rights Those satisfied if access. are. expenditure of is insuffi- additional resources “adequate provided law prisoners are protecting cient since the ‘cost of a constitu- persons adequate libraries assistance ” justify its total tional cannot denial.’ Bounds, 430 U.S. at trained in the law.” Bounds, Casey, F.Supp. (quoting at 1369 Meaningful access was not 97 S.Ct. at 1496-97). 430 at 97 at U.S. S.Ct. by prison policy. completely denied As district court mischaracterized the constitu- , legal said in “a access Court Bounds right right tional at constitutional issue: the program any particular not ele need include meaningful necessarily de- of access was ... as a ment must evaluated whole [but] entirety, though nied in its even the inmates compliance with constitutional to ascertain its were contact visitation. denied 832, 97 482 U.S. at S.Ct. at standards.” the ex The inmates failed to demonstrate express 1500. as Friedman could his Just concerning a triable of fact istence of issue beard, religion growing in without these factor, regards except perhaps SMU. “express” rights meaning mates can their question We not remand for trial need attorney ful access contact visitation. without SMU, impact of of at accommodation most, may remain At a triable issue as to however, the resolution this factu rights whether the inmates’ of access were al in favor would not dispute adequate by heavily analysis. libraries or assis weigh satisfied in our Scott v. Cf. trial, Corrections, Dept. tance. We need not remand for howev Mississippi 961 er, (5th Cir.1992) (“Neither because resolution of this factor in favor nor 81 Turner O’Lone, however, weigh require of the inmates would not alter our ultimate a court to consider, fac legal evenly, the Turner test rea even each these conclusion—that tors.”). is satisfied. sonableness 413-14, Martinez, (7th Cir.1980) (quoting by Thornburgh, at v. 490 U.S. at Procunier 396, 405, 1800, 1807, 1881-82).

416 94 40 U.S. S.Ct. (1974), grounds L.Ed.2d 224 overruled on other

1523 Exaggerated Response. 482 at U.S. 107 S.Ct. at 2261-62. We hold that it is. Turner, obvious, Under existence of easy prison policy to a restrict alternatives Contact visitation with an may

ing rights constitutional be evidence merely aspect one of the broad and funda reasonable, policy but is an right mental meaningful access to the “exaggerated response” concerns. courts. The have-not been denied 90-91, 2262; at S.Ct. Thorn access to the courts as that traditionally burgh, 490 U.S. at S.Ct. by has been Supreme described Court. Bounds, officials are able to “[W]hen demon See U.S. S.Ct. at 1498. they rejected strate that a less restric Inmates are not denied assistance “in the reasonably preparation tive alternative because of found filing meaningful legal harm, greater papers” phrase ed fears that it will lead to interpreted that, they in demonstrating (holding succeed the alter Bounds. See id. that such assis they requires-only tance ‘exag provision native in fact selected was not an adequate gerated response’ adequate law libraries or under Turner.” Thorn assistance from law”). “persons, burgh, trained in 109 S.Ct. at 1884-85 U.S. the. added). (emphasis policy The ADOC is a response reasonable legitimate to the- posed institutional concerns suggest acceptable The inmates that an- by prevention full contact visitation: of es- policy alternative to the non-contact is for assault, cape, hostageftaking, and the intro- (1) prison guards to: search the duction of say contraband. This is not to visit, before and after each contact expansion policy of this to all facilities proposal may observe each visit. While this within system the Arizona State Prison contraband, suffice to stem the flow of it fails would be reasonable. The facilities affected adequately potential- problems to address the prison- current house -primarily hostage-taking injury, to staff and ers who high security have been'classified as Friend, visiting attorneys. 923 F.2d at Cf. awaiting risks or who are classification and (inmates’ proposed alternative inade- prudently high therefore assumed risk. some, all, quate where it satisfied but not Cf. Sumner, concerns). security officials’ Michenfelder (9th Cir.1988) (“The fact that Unit 7 houses upon It is incumbent prisoners gives the state’s most difficult rise point alternative that accommodates legitimate governmental security to a inter- 'rights at de minimis cost to procedures might est be unreasonable interests. elsewhere.”). They at 2262-63. have not done so. The Nothing Ching contrary. is to the We exaggerated non-contact is not an re failed to Turner in our decision in discuss sponse. did, however, Ching. emphasize We justi- Ching any in to failed offer defendants 5. Conclusion: Reasonableness. fication whatsoever for their denial of contact regulation We find that the non-contact is visitation, policy to and we referred rationally legitimate penological to related “arbitrary.” ap- 895 F.2d at Had we interests'; may that a triable issue remain as test, plied the no Turner we doubt would to whether alternative avenues exist for exer- analy- have found the first factor of the cising right meaningful the to access and as sis, connection,” missing. the “rational accommodating impact to the institutional holding Ching merely Our demonstrates SMU; and that the is arbitrary an and irrational where exaggerated response not an con- regulation impinges upon, the constitutional cerns. inmates', rights it is invalid as a words, said, Ching That we must answer the ultimate matter of law. other teach- question: regulation reasonably rational relation-- is the relat- es that satisfaction ship necessary, though not Department ed to the Arizona of Corrections’ factor is necessar- sufficient, legitimate penological ily policy to sustain a concerns? Walker, 675-76, and lacked S.Ct. the district court rights. abridging constitutional Cf. nn (rational power injunction. relationship the to enter the is the at 385 917 F.2d ” test); Scott, qua Turner non “sine named had identi- if a inmate been Even third, (second, fourth at 81 early HIV-positive pleading as the fied merely help resolve Turner factors stage, inmates still failed to demonstrate is controlling which whether question, rely injury. inmates on a an actual The logical legiti- regulation has a connection Mauclet, 1, Nyquist footnote interests). governmental mate n. 2124 n. 53 L.Ed.2d 63

(1977), argue though no named that even seropositive plaintiff applied for or oth- ever POLICY II. FOOD-SERVICE expressed an interest a food-service erwise Standing. A. job, standing chal- they nonetheless have lenge validity policy. Ny- the ADOC Department The Arizona Correc plaintiff Ny- quist not control. The does adopted prohibiting tions HIV- has quist submitted an unrebutted affidavit obtaining employ positive individuals from showing might need the that he benefits department. The ment in its food-service policy, him under denied the defendant’s they standing argue to chal Nyquist defendants conceded that lenge validity this application by plaintiff for those benefits HIV-positive named is now and be inmate Moreover, summarily. denied Id. would be cause inmate would have been denied this plaintiff already applied had for and been applied employment. had she such benefits, by defendants denied similar argument. reject HIV-posi- We policy. Id. under the same any injury not tive inmate did demonstrate plaintiff he No named has ever stated that fact; HIV-positive she was not identified as job. in a she is interested food-service until months the issuance of the three after applied None one. There reason order, injunctive nei- district court’s she HIV-positive that an inmate would believe position nor applied ther for a food-service position. never seek such unrebutted intended to so. demonstrated she do Security Terry, Frank affidavit of Chief facility, Unit in the Florence standing must address even Central We an- though presented that whenever inmates discover the issue was not indicates Mansfield, HIV-positive, which accord- district 111 U.S. at inmate court. ing Terry despite stringent occurs confi- S.Ct. 511-12. We first determine our own members, by jurisdiction dentiality staff and then the district efforts ADOC life. jurisdiction against it are made that inmate’s court had when entered threats Terry, HIV-positive injunctive According fact inmate order. See id. The that an HIV-positive dispositive. seropositive inmate whose status is discovered is now general population inmate would in a right to have the Government “An asserted sufficient, threatening life situation. act-in accordance with law is alone, jurisdiction standing to confer on a plaintiff subject per- No has been named Wright, federal court.” Allen v. alleged policy. The sonally to the unlawful 754, 104 L.Ed.2d 556 jurisdiction to court lacked enter district (1984). complaining party must demon injunction application prohibiting the injury Valley 454 Forge, strate an fact. policy.. 473, 759; v. U.S. 102 S.Ct. at Nevada (9th Cir.1990), Burford, F.2d 918 856 CONCLUSION - denied, -, cert. U.S. (1991). entering partial court At the The district erred L.Ed.2d 458 time order, judgment prisoners and in summary for the

district entered the record court its Department of Correc- plaintiff enjoining the Arizona any did not that named was establish enforcing its non-contact visitation seropositive. tions from The therefore lacked class O’Shea, 494-95, policy. VA- policy its food-service We standing, see U.S. injunction. CATE.the respect With to the I visitation policy, we grant REVERSE the

summary judgment for the inmate class and BACKGROUND summary ORDER judgment in favor Defendants-Appellants.' respect With A. Procedural Background policy, food-service we REMAND to the dis- On January 12,1990, twenty-two prisoners trict court with instructions to DISMISS initiated this class action against Arizona lack standing. side Each bear its prison officials, state alleging a number of n own costs. statutory constitutional and claims. In one claim under 42 § prisoners U.S.C. al- PREGERSON, Judge, Circuit concurring leged that prison’s absolute ban on con- part and dissenting part: tact visits between prisoners certain I concur in majority’s disposition their attorneys, solely based prison- on the Rehabilitation Act claim because the class ers’ assignment particular to a unit, housing representatives have not demonstrated that violated process their due right of access to any class member has standing to challenge the courts. the food policy. service Lynch v. Daw son, (9th Cir.1987). 9,May On granted district court However, I dissent from majority’s opin plaintiffs’ motion for a preliminary injunction, ion respect to the “access to the courts” prison ordefed suspend officials to appli- claim has, majority effect, because the cation of the attorney noncontact visitation abandoned the' Turner “reasonableness” policy to prisoners. Cellblock 6 prison- The standard of review in favor of the “toothless” ers then summary moved for adjudication of rational basis standard of review. In revers this claim. ing summary judgment prisoners on this claim, (1) majority departs from district court the well- found that prisoners principle settled had state established an injury right bears to their of justifying regulation burden injures courts, access to the relying in part Ching (2) a constitutionally protected interest; Lewis, (9th Cir.1990) (denial dis v. regards interpretation our circuit’s of Tur of contact with attorney visit right violates ner, requires which 'prove courts). officials to access to the The court further justification their asserted “actual found that had .failed to sub (3). basis” for a challenged regulation; vio any mit evidence to their meet burden of lates Fed.R.Civ.P. 56 by crediting unsupport proving that their asserted interest allegations; ed sharply narrows the was the actual basis for the noncontact process due right courts, of access to the or that the reasonably has been through fifty defined related to their penological asserted interest. years Supreme The ma Court decisions. Lewis, Casey v. F.Supp. 1365, 1368-69 jority compounds then these errors sua (D.Ariz.1991). enjoined then sponte entering judgment in favor of Arizona Department Corrections from of. officials, despite the genuine existence of a prohibiting attorney contact visits in all facili fact, issue of material remanding without ties of the Arizona’s system, state permit the case comply except good cause. newly evidentiary created burden. n Because- the has abdicated its B. The Challenged Policy duty to prisoners’ review constitutional challenged policy claims under Turner’s denies contact visits reasonableness stan- dard, and in to all Special effect has drawn an housed in the “iron cur- Man- agement Unit, tain” Constitution, between and the Cellblock the Alhambra Re- McDonnell, Center, see 555-56, ception lockdown unit. Wolff 2963, 2974, (1974), Mgmt. 89-21-B, L.Ed.2d 935 I ADOC Div. Proc. No. dissent. § 5.1.6 (restricting all prisoners housed i.e., visitation, posses- regarding rule only).1 visits to noncontact units these one of A drug use. illegal or contraband of sion “visit as a defined is visit

A “noncontact” or is rules visitation violates who prisoner is his visitor and inmate an between from may be barred contraband found with and contact any physical without conducted offi- visits, discretion at the contact them.” between barrier physical a with Proce- Management Division ADOC cials. R5-l-101(10). § Ariz.Admin.Code who 5.1.1, Prisoners §§ 5.1.5. 89-21-B dure prisoners all regulation, this result As a are drug use automat- illegal positive test per- are units affected of the in one housed only visits, but noncontact ically denied meeting with their from manently barred § 5.1.4. Id. days. condi- “noncontact” under except attorneys re- without applies prohibition This tions. Noncontact C. Conditions of prisoner, any individual to whether gard Attorneys with Visits non- The risk. a poses attorney, his at- imposed conditions noncontact The prison- to all applies also visit contact ob- create substantial visits torney-prisoner units, irrespective to these assigned ers attorney-client communi- for effective stacles is as- prisoner any individual reason the place take visits “noncontact” Most cation. And units. the affected one signed to glass and by a cinderblock divided rooms these imply although attorney are his and prisoner partition. most prison’s only with filled are units partition. of the sides opposite seated these prisoners, uncontrollable and violent verbally with communicate can prisoner secu- lowest prison’s house units four also at- telephone through a only attorney his segregat- including those prisoners, rity risk away from farthest wall tached first-time, and protection, own their ed for shouting through by partition, glass to a transfer awaiting offenders non-violént glass. ADOC program. incarceration” “shock evidence (an According to uncontroverted § 5.4 Policy 302.11 Management Internal prisoners record, requirement purposes a cell for confined inmate their with communicate telephone to sta- use in “lockdown segregation protective a exchange (some any serious attorneys makes (2/28/91) 65:8-10 Depo. tus”); Lewis First, are prisoners experience. frustrating Special Man- assigned to the prisoners of the wall toward torsos their required to bend in- the shock assigned Unit are agement tele- attorneys -because away their awaiting the and are program carceration static Sometimes short. cord is phone Ariz.Rev.Stat. platoon); a new formation of telephone communication make (1992) (only feedback 41-1604.08(A)(2) prisoners § forced result, are difficult, and as of incarceration term serving first addition, voices. their repetitive to raise dangerous to be determined diffi- telephone, it is hold prisoners must incarceration shock eligible for are offenders at- their with any documents review cult program). torneys. automatic with In contrast can prisoner attorney and way only attorney contact denial permanent through a exchange documents directly to one assigned visits opposite wall narrow, wavy slit in all units, housed affected four prevents opening of the The size telephone. with visits contact permitted units other pages two than one or exchange of more visitors. social well attorneys, get sometimes time, and documents except unit housed prisoner A Al- process. transfer in the caught torn regulation will in the listed those opening design “wavy” though the his visits denied exchange contra- prevent intended violated has particular only if the Management Unit 89-21-B, Special 5.1.6.1 pro- DMP part, ADOC relevant 1. In Reception Center Alhambra 5.1.6.2 that: vides desig- or as status down in lock Inmates 5.1.6.3 population shall following inmate 5.1.6 The by Warden. nated visits: non-contact band, design such passing paper makes cum- II Furthermore, bersome and slow. when a prisoner transfers or receives a document STANDARD OF REVIEW attorney slit, from his through the he must We de review novo district grant court’s telephone leave the opposite wall. of summary judgment. Jones v. Union Pa Consequently, prisoner and attorney can R.R., 937, (9th 968 F.2d Cir.1992); cific during communicate exchange process Serv., T.W. Elec. Inc. v. Elec. Con Pacific only by shouting through glass. Ass’n, (9th tractors 626, 809 F.2d Cir. exchange To more pages than one or two 1987). Our inquiry whether; viewing the time, at a guard an ADOC employee light evidence in a most favorable must legal transfer the documents under a nonmoving party, there genuine remain is procedure requires guard fact, sues of material and whether the dis out of the view of prisoner both the and the trict correctly applied sub-' relevant attorney period for a 2 to 7 minutes. At stantive law. Deposit Federal Corp. Ins. v. times, process delayed because no O’Melveny Meyers, (9th. 744, & 969 F.2d guard is available to effect the transfer.2 Cir.1992) . position The barrier and of the telephone To prisoners’ defeat' the impossible make it attorneys motion for sum and their mary judgment, prison prisoner clients simultaneously must estab review doc- lish that a genuine issue of

uments. fact exists with respect element for they which bear attorneys Two and an ADOC staff member proof burden of at trial. See British that, testified positions from outside the visi- Distributors, Motor Car Ltd. v. San Francis rooms, tation prisoner- have overheard they co Industries, Automotive Fund, 882 Welfare attorney taking place communications inside (9th 371, Cir.1989). F.2d Prison officials the noncontact visitation rooms. Some of the may rely on the assertions allega conversations were despite overheard tions of pleadings; they must forth set fact that attorneys were specific facts producing competent evi using moderate voice tones. dence that genuine shows a issue for trial. Attorney visits with housed at 56(e); Fed.R.Civ.P. Liberty Anderson v. Lob may Cellblock 6 place also take with the Inc., by, 248, 106 S.Ct. caged locked into a area and the (1986); 91 L.Ed.2d 202 Corp. Celotex attorney cage. seated outside the cage Catrett, 317, 323, “perforated constructed of steel or screen 2552-53, (1986). 91 L.Ed.2d 265 Conclusory mesh,” R.T. ap- 3/22/91 measures affidavits do not affirmatively per show proximately 34" deep by 46" wide by 81" tall. knowledge specific sonal facts insuffi are Def.Resp. Opp’n to Pis.’ Mot. for TRO and 56(e); cient. Sakai, Fed.R.Civ.P. Conner v. (schematic Inj., Prelim. Ex. B of cage). (9th Cir.1993); Long v. only light in the room is on the attor- Bureau Analysis, Economic ney’s side cage. attorney (9th Cir.1981). prisoner can see each expres- others’ facial only sions by looking simultaneously though III open trap” “food approximately located 40" from the floor. trap The food per- also RIGHT OF ACCESS TO THE COURTS mits an exchange documents, but the steel mesh prevents attorneys Under Clause, Due “[rjegula- Process simultaneously reviewing the same docu- practices tions and that unjustifiably obstruct ments. availability professional representation deposition When long asked how get the trans- But if I they can an officer and follow the takes, process fer an ADOC staff member who procedure get of how to to the room ... I would monitors visits testified that say Gagnon about Dep. five minutes.” at 24:25- "[s]ometimes get it takes a while to an officer 25:5. they available busy or whatever.

1528 regula- challenged that the to show the to of access the aspects or other Opinion Turner.’’ under Martinez, unreasonable tion is v. Procunier are invalid.” courts of this below, allocation explain IAs 1814, at 1520. 1800, 40 419, 396, 94 S.Ct. 416 U.S. burden, ex- court’s our violates Hull, prisoners to parte (1974), (citing Ex 224 L.Ed.2d as the contrary, well to holdings the press 1034 640, L.Ed. 85 546, 61 S.Ct. 312 U.S. Supreme of the practice Smith, 430 U.S. well-established v. Bounds (1941)). Accord 72 Court. 1495, L.Ed.2d 1491, 52 822, 97 S.Ct. ac- prisoners guarantees (due process effective, “adequate, is that courts to A cess recognizes majority meaningful”). we will held that repeatedly haveWe that established that the a injures that regulation prison a uphold injures then- visitation noncontact prison right unless constitutional prisoner’s course, this Of courts. to access right of justifi adequate demonstrate can officials by our decision required is conclusion See, e.g., regulation. offending for the cation (Arizona Department at 610 Ching, F.2d 895 (9th 382, 386 Sumner, F.2d 917 v. Walker arbitrarily denied that Corrections Lewis, 732 F.2d 901 Cir.1990); v. Swift attorney vio- his visits with prisoner Walker, example, we Cir.1990). (9th courts). to the access right of lated that: explained dis that recognizes also majority rely general cannot authorities Prison re test for appropriate used trict court support then- conclusory assertions Tur Under policy. viewing the identify Rather, first they must policies. 2254, 96 78, 107 S.Ct. 482 Safley, ner v. involved interests penological specific refuse (1987), must this court L.Ed.2d spe- that those both demonstrate then applied regulations the noncontact uphold for then- bases the actual are interests cific dem officials prison unless attorney visits are reason- policies policies and that to a reasonably related they are that onstrate iden- furtherance to the ably related 89, 107 Id. interest. penological legitimate showing evidentiary An tified interests. 2261-62. S.Ct. point. each as to required erroneously allo- However, the added). Swift, also See (emphasis Id. at disprov- the burden cates judg summary (reversing at 731-32 justifications officials’asserted prison ing the provide “failed prison officials where ment Furthermore, its rush policy. for the they have the interests that any evidence officials, majority credits defer bases actual asserted that evidence well as allegations as bare any of “evidence policy” grooming issue a raise triable clearly insufficient challenged poli justifies” interests these 56(e). Finally, disre- Fed.R.Civ.P. under n. Gardner, cy); Tribble deci- Court Supreme fifty years gard (“when regulation Cir.1988) a (9th prison officials majority holds sions, the government rights, the fundamental burdens attor- own to his access may deny a reasonably show must well- maintains long as the ney as (em goal”) penological legitimate ato related of these address each library. I stocked denied, added), cert. phasis turn, below. problems (1989). 104 L.Ed.2d IV B PROOF OF BURDEN ad expressly has Supreme Court of whether issue dressed matter, majority errs an initial As challenged justifying a the burden disprov- bear burden allocating Abbott, 490 Thornburgh v. regulation. justification asserted ing prison officials’ 1874, 1882n. 12, 109 n. Rely- U.S. noncontact visits. ban on the blanket (1989) (reserving comment 104 L.Ed.2d authority, ma- ing solely on out-of-circuit issue). However, prac the Court’s on that is on burden “[t]he jority declares tice has been to follow the Thus, traditional rule although there is Supreme no Court government justify regula must directly case point, decisions of the Su- injure tion plaintiffs shown to preme constitution Court reflect the practice Court’s al interest.3 requiring prison officials justify regula- to tions shown to prisoners’ violate constitution- Turner, example, For the Court invali- al interests. challenged dated a regulation precisely' be- cause officials failed to evidentiary meet their C

burden —even under relatively Turner’s def- erential 98, standard. 482 U.S. at 107 S.Ct. Completely ignoring the clear precedent of at 2266. The Court refused to sustain the circuit, our practice Supreme regulation because “pointed officials to noth- Court, and the traditional rules regarding ing in the record suggesting that the mar- analysis of claims, constitutional majority riage regulation was viewed as preventing” relies on two out-of-circuit cases justify to prison security problems, and because there allocating to prisoners the nonpersua risk of place was “no in the record prison where sion. Opinion See at 1520 (citing Covino v. officials testified that ... alternatives would Patrissi, (2d 73, Cir.1992) 967 F.2d 79 (citing fully satisfy not security their concerns.” Id. Fromer v. 69, (2d Scully, 874 F.2d 74 Cir. Court, Abbott, approached 1989)); also Gunter, and Abdullah v. 949 F.2d issues - prison (8th raised as 1032, if officials bear Cir.1991), 1035 denied, cert. burden of justifying regulations' injure -, that U.S. 1995, 112 S.Ct. 118 L.Ed.2d 591 fundamental (1992). constitutional In interests. that A reading careful of these out-of- case the Court held cases, that: however, cireuit they reveals that rely on prison

when Supreme mischaracterizations of are able to demon- Court officials decisions and they strate lack rejected independent justifica that a less re- tion for such a departure drastic strictive prece alternative reasonably because of dent. founded fears that it greater will lead to harm, they in demonstrating succeed Covino, In example, the Second Circuit they the alternative in fact selected was simply relies on its earlier decision From “exaggerated an response” under Tur- Covino, er. See 967 F.2d at (citing 79 From ner. er, 74). Fromer, turn, 874 F.2d at held 419, 109 490 atU.S. S.Ct. at (empha 1884-85 that “there was no burden on [prison offi added). sis See also v. O’Lone Estate persuade cials] the district court its

Shabazz, 342, 351, 482 U.S. 2400, 107 S.Ct. justifiable. Rather, concerns were the bur 2405-06, (1987) 96 L.Ed.2d 282 (citing to den was on the plaintiff to show that these testimony by prison support officials to find Fromer, concerns were irrational.” ings factors). on each of the Turner at support 74. In point, of this Fromer cites Generally 3. speaking, regulation injures a prison practices regulations. Turner, See individual’s 89, constitutional will not be Turner, sus 482 U.S. at 107 S.Ct at 2261-62. government tained unless the demonstrates Court held regulation that "when a regulation necessary accomplish impinges a on rights, com inmates’ constitutional pelling Schuster, e.g., state See interest. reasonably Simon & valid if it is related to legitimate Inc. Turner, penological v. Members the New York State Crime interests.” Board, - U.S. -, -, U.S. at Victims 107 S.Ct. at 2261-62. 112 S.Ct. (1991) 116 L.Ed.2d (equal protection); The Court exacting created this less standard Attorney General Soto-Lopez, New Yorkv. as a balancing prisoners’ means of rights under 898, 904, 2317, 2321-22, 106 S.Ct. Constitution, the need to allow travel); (right L.Ed.2d 899 to interstate officials complex discretion to deal con- Ramirez, 24, 77, Richardson 418 U.S. 94 S.Ct. Abbott, cerns administration. 490 U.S. 2655, 2682, (1974) (Marshall, J„ 41 L.Ed.2d 551 Turner, at 109 S.Ct. (citing at 1879 482 U.S. vote); dissenting) (right Party 89-90, American 2261-62). at lessening at S.Ct. While White, 767, 780, Texasv. 415 U.S. 94 S.Ct. showing the regulations, justify officials must make 1305-06, (1974) (freedom 39 L.Ed.2d 744 as the Turner court did offi- absolve sociation). held, Supreme Court has howev making cials from showing. Nothing this in the er, employ that courts exacting must language less stan opinion of the Turner can be read to dard reviewing when challenges constitutional support proposition. such a only Abdullah’s dullah, 1035. F.2d at 482 U.S. to O’Lone is a citation proposition support that: provides of O’Lone passage cited 2261-62. decision Appeals the Court thinkWe con- can be However, nothing page at that it established wrong when this case allocating support for strued burden separate justifica- state’s disproving the burden by exists method no reasonable prove “that regulation.4 challenged tion rights can religious [prisoners’] which creating bona Thus, without cases relied accommodated fide offer no support, without problems.” themselves (Prison from diverging should officials id., justification for independent 419 at also convincing that, of a evidence in the face produce rule “to required traditional the the satisfy institu- is on challenge, their burden to the they are unable that constitutional in- does any way regulations. that justify _ its to goals tional state rights”). exercise free fringe inmates’ availability of accommodations Though the V inquiry, reasonableness to the is relevant ANALYSIS TURNER THE “prison the notion rejected have we then shoot up court, majority to set the ... have officials the district did As method alternative relevant every conceivable factors four down the properly considers constitu- prison claimant’s accommodating challenged the a of whether to determine Turner, at U.S.] legitimate [482 a complaint.” to reasonably related tional policy By the placing (1) 2262]. at there whether S.Ct. 90-91 interest: penological [107 disprove the prison to prison officials the valid, connection between burden rational alternatives, approach the inter- availability governmental of legitimate the policy and (2) fails to Appeals it; of whether justify the Court articulated to put forward est exercising the and deference respect the means reflect are alternative there for the allows (3) Constitution impact States that accommodation United right; the guards, administrators. prison will judgment constitutional the prison the allocation or prisoners, at 2405 350, 107 S.Ct. O’Lone, at U.S. regulation the resources; whether Fromer, added). Second the In (emphasis prison to response” “exaggerated is an policy the to absolve language read this Circuit 89-90, 107 Turner, at 482 U.S. concerns. However, a proof. any burden state 2262. at S.Ct. O’Lone reading demonstrates close pris- holding that factors, Turner’s the merely considering reiterated these However, in sepa- pass the required alle- officials’ bare prison on officials majority defers justify test to means” restrictive rate “least the blanket gations that 90-91, at prison’s se- See regulation. the address implemented was above, And, the noted those 2262. at related needs, logically and is curity the evi- review on to went approach in O’Lone an Court Such security needs. light of officials by prison summary judg- granting submitted dence order of an review O’Lone, Turner. pris- concerning enunciated factors case law both violates ment 2405-07. 351-53, addition, at and Fed.R.Civ.P. suits oner the na- badly mischaracterizes Abdullah, majority decision Eighth Circuit’s courts, right of access ture ground. weaker on even rests F.2d may pre- prison essentially that the holding had “[p]laintiff There, stated that court communication attorney-client any vent [pris- trial proving the burden provides long as making prohibiting on] Finally, library. law a well-stocked access reasonably relat- was not religious donations in favor erroneously finds Ab- interests.” legitimate penological ed to prison officials summary judgment reversed is consistent court our approach of 4. The “an insuf- were conclusory affidavits In Caldwell Circuit. Seventh approach of the Id. summary judgment.” basis Cir.1986), ficient (7th Miller, final, factors, on the However, officials two de- defendants’ record in sup citation spite complete defendants’ failure to port adduce of this assertion does not exist. See id. support findings.. evidence those (citing Defs.’ Facts, 1-6, Statement of ¶23).5 precisely This is the'type bare A. Rational Connection allegation in a pleading that this court has Penological Actual Interest repeatedly rejected as support- insufficient to factors, The first of finding the Turner factual favor of officials. Walker, there is a 387; rational connection between F.2d at Swift, 901 F.2d regulation and the 731-32. underlying actual penolog interest, ical indispensable is an requisite for' Rather than affirm court, the district Walker, regulation. defense of the properly rejected which allegation, the bare F.2d at satisfy 385. To summary judg the majority scours record in an effort to burden, prison ment provide “must salvage officials’ major- case. The evidence proffered interest is the considers, ity cites to three documents that it why reason adopted to be “sufficient ... evidence that the [non- Walker, enforced.” 917 F.2d at 385. Accord policy contact] implemented was a.prophy- Swift, 901 F.2d at 732. Prison officials must (1) lactic security measure”: the affidavit of then demonstrate that “the logical connection (2) McFadden; James the transcript of War- policy between the noncontact and the as Roger den (3) deposition; Crist’s and goal serted is so [not] remote as to render affidavit of Keeney.6 J.C. Opinion at 1521. policy arbitrary or irrational.” my view, In these documents are insufficient 89, 107 482 U.S. at S.Ct. at 2262. An eviden- (1) only one of them addressed the

tiary showing required is point. as to each question issue, only and respect Walker, 917 F.2d at 386. Special Management Unit, none of the documents 'indicate that the witnesses The, 1. Actual Basis the Blanket for are testifying personal from knowledge. Policy Noncontact opposition In plaintiffs’ First, motion for sum- only the McFadden affidavit ad- mary judgment, prison officials asserted that question issue, i.e., dresses the “the reason justification “[t]he main security proce- for a why adopted was or enforced.” dure limiting Walker, prevent (9th visitation is to Cir.19'90). 917 F.2d at 385 being position ¶ from in a they where McFadden Aff. (“Controlling the intro- member, can assault attorney, staff other duction of is contraband a crucial element in prevent inmates or them escaping from the maintenance of a secure orderly attempting escape .hostages.” operation take within pre- SMU.... In order Resp. Defs.’ to Pis.’ Mot. for Summ. contraband, J. 10. vent the introduction all visi-' 5. Defendants’ Statement of Facts contains no you don’t believe that need contact visits in paragraph Paragraph 23. 22 of your Defendants’ order to do attorney. business as an Statement of Facts does address reason for Depo, Exhibit Nothing Lewis at 61:25-62:3. policy, the noncontact but the citation to' the else deposition in the excerpt of Lewis's submit- support record does not the asserted fact. Para- supports ted to the district court defendants' graph 22 of Defendants’ pro- Statement of Facts assertion "primary concerns are the vides that: rationale” for the blanket ban on contact visits. primary rationale for the non-contact visi- policy opposition tation prisoners’ at lockdown In prevent is to the unit for motion sum- escapes, attorneys mary judgment, assaults and staff and officials submitted five hostage taking. upon good It was also based evidentiary affidavits and other no materials. (Exhibit 7, practice. deposition Only correctional three of arguably those affidavits are rele- Lewis, p. [ADOC Director] Samuel line 25 vant to the access courts claim: those of 1-3). p. 62 lines Keeney, J.C. Director Assistant Institu- Adult portion deposition, At the cited Corrections; Department Lewis tions for.the Arizona testifies as McFadden, follows: Deputy James Spe-’ Warden my But I Florence, think decision Management Arizona; [to bar con- cial Unit at upon good Struck, tact visits] based correctional Daniel defendant offi- counsel practice. require- There’s no constitutional reproduced cials. These affidavits are in their don’t, ment for simply contact visits. And I entirety appendix as an to this dissent. affidavit, Warden McFadden like the noncontact.”) And (emphasis at SMU

tation he has indicate that not does affidavit Crist’s recognize However, added). it is critical basis for actual knowledge of the personal limited to expressly testimony is fact, the policy. the blanket Manage- Special application that Crist affirmatively indicates in record an interest only and asserts Unit ment knowledge had not could of contraband.” “introduction first-hand preventing policy because basis the actual reason not address does This affidavit war- he became before effect at the adopted policy was why the noncontact Compare at 113:7-11. R.T. not den. units, 3/22/91 and it does housing three (Lewis participated Dep. at 61:2-8 Lewis hos- assaults, escapes, or prevention raise poli- the noncontact process for approval policy. for the aas basis tage-taking cy). itself affidavit Furthermore, nothing in the regarding Keeney affidavit Finally, the testifying from McFadden indicates nothing contains Center Reception Alhambra Aff. McFadden knowledge. See personal to the effect vague statement than more judg- summary opposing an affidavit That a con- inmate allow an unclassified “[t]o knowledge anis personal be.made ment family member attorney or with an tact visit 56(e), Fed.R.Civ.P. requirement express security risk and an unwarranted would be affi- from the evident must that fact Keeney practice.” sound correctional See Conner itself. davit Sakai ¶ the “actual nothing about says This Aff. that do (conclusory affidavits applied to policy is the noncontact reason” knowledge of personal affirmatively show opinion expresses Alhambra, but rather insufficient); Long, 646 facts specific noncon- apply the “sound” to be it that would (same). F.2d does not And it to policy Alhambra. tact affidavit, the McFadden’s In contrast why the blanket explain by the cited documents two inwho Center Reception to applies general state- than nothing more contain classified, being held are but been fact example, the security. For related ments space- for medical Reception Center in the deposition Crist’s passage Warden cited reasons. related prison- holding Cellblock says that simply un- independently Thus, evidence from as- them cage prevents in a ers steel satisfy defen- majority fails to by the earthed escape, or attempting to saulting anyone, asserted that their proving dants’ burden Depo. at 19:12-18. hostage. Crist taking a visits contact on blanket ban for the rationale poli- the noncontact state Crist does the ban imposing for' reáson actual purpose for enforced” adopted or cy “was units. housing affected the four hostage- assaults, escapes, or preventing simple statement taking. Crist’s the Asserted Logical Connection secu- prevent serves visit “caged” n Penological Interest defendant’s satisfy does rity problems, correctly court Moreover, the district as demonstrating the “actual basis” burden n no evi- observed, submitted prison officials Tribble, at 325- regulation. Cf. could which district may dence search rectal (although digital logically ban blanket concerns, conclude security defendants’ justified Casey, interest. asserted . related the basis summary judgment on for motion filed brief In their F.Supp. at 1368-69. denied properly immunity was qualified summary judg- prisoners’ opposition to in such demonstrated where 'evidence only assert motion, officials ment puni- conducted may have been searches for visitation attorney-client current “[t]he purposes); tive protecting in interest important serves con- record (noting that public general inmates, prison staff a chal- suggest that no evidence tained taking assault, hostage possibility [by from the “was viewed marriage regulation lenged Mot. Resp. to Pis.’ escape.” Defs.’ security preventing” officials] However, defendants 10:5-8. brief). Summ.J. their in asserted concern support cite no evidence to allega- this bare agement Policy 302.11 § 5.4. Similarly, tion.7 prisoners some assigned are to Cellblock 6 simply to await transfer to another unit. Pi- Again, precisely this is the situation wé ¶4. sano Aff. in faced both Walker and Our refusal Swift.8 summary judgments sustain Even Special Management Unit, which those cases because officials relied houses dangerous the “most ... prisoners in solely general, eonelusory, unsupport system,” Arizona McFadden Affidavit assertions, ¶ requires ed us to affirm the dis also houses the lowest pris- risk summary trict court’s order of judgment for oners system: Arizona awaiting those prisoners in this case. an opening in the shock pro- incarceration gram. Dep. Lewis prisoners 65:8-10. These Apart from produce defendants’ failure to among are likely the least any to cause of the any substantial to support po evidence by prison concerns cited officials because af- sition, the record ample contains evidence ter a four-month “boot program, camp” they nature, arbitrary that establishes the of the will be returned to the community. Ariz. challenged First, policy. challenged reg (E). § 41-1604.08(0, Rev.Stats. qualify To ulation, effect, denies contact visits to the program, must be in his prison’s lowest security prisoners, risk first term of incarceration and cannot have prison’s highest well as the security risk been determined to dangerous be a and re- prisoners, groups because both repre are petitive offender. § Ariz.Rev.Stats. 41- sented housing affected units. 1604.08(A)(2). contrast, this policy deny does not security prisoners visits medium housed in The Special Management Unit also houses prison’s Moreover, other units. prisoners who are classified as medium secu- prison regulations permit (“level some rity 3”). Dep. Lewis the affected units to have contact visits 64:17-24. These assigned family legal members inmate Special workers at Management Unit as residential they the same time are denied contact visits workers. Id. at 65:2-4. pris- Because these ’ lawyers. with their These facts permitted demonstrate oners are carry employment out logical “the that connection unit, between the duties in that it prison follows that policy] [noncontact visit and the asserted [se officials do consider to’pose sig- them a curity] goal is so remote as to render security the nificant risk. policy arbitrary [and] irrational.” Tur Finally, the Alhambra Reception Center ner, at 107 S.Ct. at 2262. incoming houses prisoners, all Di- ADOC First, evidentiary as the and Management 90-14, materials rector’s including Order prison regulations demonstrate, the affected crimes, short-timers convicted of non-violent housing units house both prisoners “difficult” as well “dangerous” more prisoners. as Al- (those found to have' violated disciplinary though prison prisoner officials that no assert rules) as well as the least threatening may prison- in Reception be held the beyond Center in prison system. ers the entire days, lock- ten regulations the actually authorize units, example, down prisoners house so prisoners retention of certain in the Recep- general prison vulnerable to the population tion indefinitely. Center ADOC Director’s they placed that are in lockdown Management for their (listing § Order 90-14 4.5 rea- protection. own See ADOC Internal Man- may sons that inmates be at Recep- held only 7. portion evidence pris- cited in this Department of the Nevada of Prisons and in [sic] opposition on officials' relates to the composition public generally. best interests of health housing of the affected Resp. units. See Defs.’ to testing clearly legitimate governmen- AIDS a Pis.’ Mot. for Summ.J. 9:11-10:24. penological tal objective. and a valid interest rejected 917 F.2d at 387. This court that asser- Walker, 8. example, prison's In appellate "wholly tion as insufficient sustain either the mandatory brief asserted that a AIDs test grant burden or the defendants’ district court’s of clearly logical legitimate has a connection to judgment” summary because record was governmental testing Such interests. a bears "devoid of relevant evidence.” Id. health, logical safety connection to the welfare of all custody in the a in or aid prisoner to a traband Among those days). ten beyond Center tion In- of the court. are officers escape than their after days ten beyond be held can who why a understand addition, it difficult serious suffer prisoners who are arrival likely to assault any less awaiting transfer conditions, prisoner would those medical a than paralegal, prisoner criminal hostage whom a those facility, and or take another Id. Ne- attor- privately-retained interview. court-appointed seek to agencies justice assign- their reflect vertheless, by virtue further simply inconsistencies ney. These Center, prison- challenged policy. these Reception arbitrary nature ment with their visits of contact deprived are ers invalidated in Turner Supreme Court attorneys. marriages based prisoner a restriction action, officials Throughout this case, offi that reasoning. similar ban that blanket implied have create marriages prisoner that cials asserted “ security con- logically related might violent lead [that] triangles’ ‘love house vio- units the affected because cerns inmates.” between confrontations However, as prisoners. disruptive lent The Court 97, 107 S.Ct. that above, indicates the evidence discussed restriction, part uphold the refused surrogate poor ais housing assignment that suggests ... sense “[c]ommon po- prisoner particular determination between logical connection is no there Prison security risk. ses a formation marriage restriction demonstrated, logic explained, much less housing both surely prisons triangles: love ban, the arbitrariness given blanket rivalries inmate prisoners, female male prisoners housed the classifications a formal develop without likely to are units.’ affected Id. at ceremony with one.” marriage the rec- drawn from facts set A second arbitrary nature of also demonstrates ord sug- case, sense common Although prison officials Likewise ban. the blanket to one assigned prisoners affected gests prisoners housed imply that unre- for reasons housing units permitted contact if risk “noncontact” pose a units likely to of these no more attorneys, some are their conduct lated with their visits hostage, or receive escape, to have take permitted attempt are prisoners same similarly situated families their than with both contraband visits also at 107:24-108:6 sense units. Common R.T. in other legal assistants. 3/22/91 housed likely to be housed (some are more death-sentenced suggests have contact another by family permitted escape in an Cellblock aided families); family Internal attorney; ADOC inmate, by an visits with than (prison- § 6.1.10 Policy likely pass 302.11 to contraband Management more members are permitted “per- are and that attorneys; status on lockdown than are ers approved inmate an take ... with likely to interviews more assault sonal are “behavior prisoner’s unless their own attor- legal assistant” than inmate hostage another hostility is so inmate’s the this blanket so bizarre the fit between neys. Because pose a (but security contact would personal unproven) extreme and asserted ban or inmates safety of officers tenuous, prison to the and because threat is so interests ex- involved”)., no evidence have submitted officials inconsistencies obvious policy’s the plain visits with contact permits policy A results, find that I arbitrary would inmates, pro- but and other family members to the asserted logical connection lacks clearly attorneys, is visits hibits majority’s con- for the ban. justification any respect to secu- arbitrary policy by supported contrary not to the clusion tells us that sense rity Common interests. by logic.9 record or likely pass con- more family members testi- Crist’s pages in Warden to five citations on point to rele- Despite failure defendants' applica- hearing prisoners’ on mony an earlier issue, majority scours evidence vant restraining at Cell- order temporary for a majority tion settles on their behalf. record 3. The Role rejection the warden’s of each of the of “Deference” Challenges publications Constitutional introduced at trial was consti- Regulations

Prison tutionally permissible); Friedman v. State of Arizona, (9th Cir.1990) 912 F.2d Despite arbitrary relationship between (affirming verdict for defendants after a the blanket ban and security the asserted trial, bench prison where officials testified in interest, complete and despite the lack of detail as to the actual basis of challenged security evidence asserted interest is regulation and explained in how the detail ban, fact the actual basis of the blanket regulation prison’s served security inter- majority resolves this first factor from ests); Harper Wallingford, Turner in prison favor of officials. The ma- (9th Cir.1989) 729-30 (summary judgment justifies jority ignoring evidentiary the clear granted in prison favor of only officials after requirements of by and Walker creat- Swift supplemented officials the record with de- ing According new rule. majority, to the tailed affidavits psychiatrist from a and a required courts are federal to defer to a prison superintendent). This court has al- prison official’s particular belief that a situa- ready resolved the tension between the re- risk, security tion creates a if that belief is quirement that prison prove officials their (con- Opinion unreasonable. See at 1521 justifications, asserted and the deference due cluding that testimony Warden Crist’s dem- prison officials’expertise subject on the onstrates his “not unreasonable” belief that prison security. explained As we this resolu- “contact visits between inmates and their Walker, tion in attorneys create an intolerable risk of a secu- breach”). rity deference does not mean abdication. Pris- “put officials must legitimate forward” a support unduly of this ap- deferential governmental justify interest to proach regu- prisoners’ claims, constitutional lation, provide and must evidence that majority relies on cases that caution courts to proffered interest why is the reason expertise prison defer officials on adopted or enforced. The prison However, issues related tó security. requires Constitution that “considerations in each by majority, cases cited advanced to support a restrictive produced officials significant, de- directly implicated by protected tailed, activi- competent support evidence ty, to, and sufficiently permit articulated security their asserted interests. And noth- meaningful constitutional review.” It ing in these cases authorizes us to defer to an only after put officials have forth conclusory expression officials’ security such evidence that courts defer to the offi- especially where the record does concerns — judgment. cials’ support expression. such an by The cases cited Walker, (citations are not to 917 F.2d at 385-86 omit contrary. ted). cases, In each of those See also 482 U.S. at produced competent evidence in the S.Ct. 2266 (refusing to defer to facts, specific form logically expressed demon concern by prison regard -officials strated the connection ing marriage between the chal restriction where the asserted lenged policy and the officials’ inter record); interest was not supported See, Abbott, e.g., est. Saxner, at Cleavinger cf. at (remanding 1884-85 (1985) to the district 106 S.Ct. 88 L.Ed.2d 507 (routine court a First challenge pris Amendment ato arguments and automatic to the ef regulation, with instructions “every to determine step protect fect that taken to consti- testimony block 6. The rately tage substance of this is accu- situations where the is unarmed (1) (id. cages 95); summarized as follows: used at Crist reviewed the noncontact assaults, attorney prevent for visits at Cellblock 6 developed prevent with staff and security problems it to believes (R.T. 85); escapes, hostage-taking (id. and 97); at and the 3/22/91 noncontact prisoners contraband, assaults, Crist believes prevents death-sentenced are escapes, likely attempt (id. 115). more to assault escape hostage others to and situations None of this "they very (id. 89); because have to testimony any little lose” arbitrary aspects addresses of the (3) prison may easily officials challenged policy. more resolve hos- necessary for is not visitation Contaet a lead to will rights of tutional to counsel. right their exercise and se- inmates discipline institutional breakdown their by which means exist restrictive Other support inadequate curity” means The alternative may exercised. policies).10 regulations right to com- their to exercise for failed case, have defendants In this mail, include counsel municate establish that could any evidence point to non-monitored and visitation non-contact are the security concerns asserted that their calls. telephone They have ban. the blanket for basis actual blanket' that demonstrate Summ.J. failed to Mot. for Resp. also to Pis.’ Defs.’ practices, of other ban, in the context 11:1-6. interest asserted to their related logically argument. rejected this court district The independently The evidence security. attorneys need that found Judge Mueeke majority, a collection by identified demean- their clients’ assess visits comments, does security-related stray, rapport credibility, to establish and or and Therefore, satisfy either. this burden Casey, 773 agree. I their clients. defendants found properly district Ching, F.2d also See F.Supp. at 1369. opposing burden their to meet had failed of' Department (rejecting the Arizona summary judgment. vis- that noncontact contention Corrections’ be logical connection Demonstrating the telephone communication its, and mail the ac regulation challenged this tween to the right of access prisoner’s satisfied qua a sine regulation is purpose tual courts). Walker, 917 See prison’s defense. non of findings, court’s to the district addition In failed defendants Because at 385. Ching precise- rejection in. this court’s factor, the to this burden as their sustain contention, the undis- F.2d at ly this the district affirmed have majority should record demonstrates in the puted evidence additional any of the discussing court without a substan- impose conditions However, if even id. Turner factors. com- attorney-client to effective barrier tial “valid,-rational established had defendants attorney example, as one For munication. inter penological legitimate to a connection” affidavit, bar- mesh the steel explained in an judg summary est, entitled plaintiffs are pre- her client rier between any adduce fail to defendants ment non- important but subtle much of vents remaining competent evidence that attor- interactions . or confidential verbal factors depositions. during normally rely on neys her client’s to see attorney is unable Prisoners’ Means B. Alternative and therefore grate, through the expressions Courts to the Access silences are his whether not know does determine to consider to factor second confusion, memory, or lack result of some relationship between questions. heard her never he simply because “rea underlying interest and its opportunity lack of an alter sonable,” is whether le- simultaneously attorneys to review right. Tur achieving that means of native substantial another creates gal documents at 2261-62. ner, U.S. at representation. legal to effective impediment summary judg motion opposition conviction, for a criminal review Appellate ment, asserted physical nication, including opportunity for defer in especially reluctant would be 10. I preclude physical contact contact. Devices "expertise” because defen- to defendants’ case substantiated except instances used are not visits prohibiting contact practice of dants’ assign- housing security risk. solely on their prisoners based Association, coopera- Correction- Correctional for Adult American Standards violates the ment on Accreditation of correc- by Commission an association tion with the issued al Institutions Adult require that: Standards experts. Corrections, Those Standards Foundation/Core tions C2-4206, (April § at 156 Institutions Correctional in- provide that procedure policy and Written added). 1989) (emphasis permit commu- informal visiting facilities mate

1537 part, Bounds, the most is limited to the contents of 828, 430 U.S. at 97 at S.Ct. (“We the record at sentencing hold, created trial and therefore, the fundamental hearings. procedures for exchanging right constitutional of access to the courts documents, page by page byor the requires prison authorities to assist inmates help boxload with the prison guard, of a preparation the and filing of meaningful simply is no substitute for simultaneous re- legal papers by providing prisoners with ade- view of by attorney record the an and her quate law libraries or adequate assistance adequate client. An opportunity for review- from persons law.”) trained the (emphasis ing discussing the especially record is added). case, capital critical in a where effective law- Supreme Prior Court’s decision in yering literally can make difference be- Bounds, decisions concerning right of tween life and death. access to the only required courts conditions, As a of result these even the officials to refrain from unjustifiably imped rudimentary most of be communications ing prisoner See, access to the e.g., courts. comes cumbersome and frustrating. Com McDonnell, 539, 579-580, 418 U.S. Wolff bined with time imposed limitations on attor (1974) 94 S.Ct. (prison 2986-87 may not visits, ney severely these abridge conditions prohibit inmates from helping each other to prisoners’ representation. access to legal prepare rights civil complaints, where state The record here makes clear that noncontact provide counsel); fails to Procunier v. Mar visits, much by less communication tinez, 396, 417-23, 416 U.S. 94 S.Ct. mail, telephone and are no substitute' for 1814-15, (1974) (prison may L.Ed.2d attorneys. visits with not bar law paraprofessionals students and by employed lawyers from visiting prisoner Paralegals Libraries Prisoner clients); Avery, Johnson v. as Substitutes Attorneys (1969) S.Ct. 21 L.Ed.2d 718 (prison offi In a startling departure from argu- may cials prohibit not helping inmates from by ments parties, advanced the majority each prepare petitions, habeas where declares that the here “were not state provide counsel); fails to parte Ex denied ‘all expression’ means of of their Hull, 546, 549, U.S. 641-42, S.Ct. rights meaningful access” because it is (state 85 L.Ed. 1034 may prevent possible they “adequate access to filing from petition habeas with the libraries or other Opinion assistance.” court). reviewing cases, After these 1522.11 seriously This declaration distorts expressly Bounds court stated newly scope prisoners’ constitutional right announced duty affirmative was an “addi access to the unsupported by courts and is tional measure meaningful [ ] to assure ac the record. cess to present inmates able to their own First, majority prisoners’ asserts that 823-24, cases.” 430 U.S. at 1496. right meaningful access the courts is Thus, Bounds did supplant historical if prisoners “satisfied are provided with ‘ade- duty refrain from inter quate law adequate libraries or assistance fering prisoners’ courts, access to the ” persons from trained in the law.’ Opinion but imposed rather the additional affirmative Bounds, (citing 97 duty by majority provide cited legal 1498.) Bounds, however, S.Ct. at addresses assistance one form or another. only prisons’ affirmative duties under the Due provide Process Clause to some majority’s form opinion ignores the histori legal persons. assistance incarcerated parameters cal right access conclusion, its preparation converts not denied filing “in the assistance speculative musing unqualified meaningful legal papers” into assertion: as that phrase interpreted (hold- in Bounds. See id. have not been denied access to ing requires only that such pro- assistance as that traditionally courts has been adequate adequate vision law libraries or Bounds, Supreme described Court. See law”). "persons assistance trained 430 U.S. at Opinion Inmates at 1523. majority’s con- disturbing as the that, under Almost concludes and instead courts the access to rights prisoners’ of of striction access deny prisoner a may

Bounds, prison a majority’s the factual courts, fact the is or federally-appointed, privately-retained, unsupported by in this is case conclusion prison long as the counsel as state-appointed is, That in the evidentiary record. material library. Such a well-stocked maintains the of majority’s characterization if even the the Su by clearly foreclosed is proposition accurate, the record were access right of Martinez, 416 U.S. decision preme Court’s support no evidence contains before us 224. In Mar 1800, L.Ed.2d 94 S.Ct. library or current finding ADOC’s tinez, program is sufficient legal assistant inmate regula- a California invalidated [t]he provide obligation to its affirmative to meet paraprofes- and barring law students tion with assistance. representing by lawyers employed sionals majori- disagree I Consequently, with We seeing inmate clients. prisoners from prisoners have alterna- ty’s conclusion prison though has even so did California “adequate, effec- gaining the of tive means legal permits inmate and libraries law the courts tive, meaningful” access significantly, Even more assistance. Clause. by Due Process guaranteed repre- actually question were Bounds, at 1495. S.Ct. 480 U.S. Thus, despite the chal- lawyers. by sented were receiv- the inmates lenged regulation, Impact That Accommodation C. of than legal assistance ing more Guards, Pris- Other Have on Right Will Nevertheless, writers. only writ aided oners, Resources Prison Allocation “impermissi- found we impact “the is factor The third Turner right of access.” bly burdened constitutional of the asserted accommodation n. Bounds, at 824 inmates, guards have on right will Martinez, 416 U.S. (citing n. 11 prison resources on the allocation added; citations (emphasis at 1815 S.Ct. generally.” omitted)). dis presented the officials Prison at 2262. rele evidence argument and court with trict majority’s characterization only respect factor to this vant far-reaching ramifica- have would of access Resp. Defs.’ Management Unit. See Special appeal, in this not briefed that were tions Thus, at 11:13-25. for Summ.J. to Pls.’ Mot. majori- by the considered expressly were per concede implicitly persons convicted indigent ty. example, For remaining affected prisoners in mitting counsel appointed are entitled of crimes their attor visits with contact units to have Amendment. the Sixth under appeal direct inmates, staff, impact on neys no would interpretation majority’s However, under resources. allocation and the completely Bounds, could prison officials Management Special respect to the With prisoner between deny communication full con- line is that Unit, bottom defendants’ long as the counsel Amendment his Sixth require ad- will attorney-client visitation tact parale- prisoner makes law books some modification staffing and ditional Furthermore, prisoner. gals available to argu- entire plant. physical Their prison’s right of majority’s interpretation para- in one presented this issue ment on over- prison officials permit access would graph: feder- the state and the determination ride not de- plant at SMU physical prison- that certain and courts legislatures al visitation. signed to accommodate of counsel assistance entitled ers are room, the visitation side And of proceedings. petitioner their habeas as a Plaintiffs by the suggested which per- would course, majority’s declaration visit, in a non- for a contact area viable con- prohibit officials to mit in- high risk allow To counsel, area. secure so privately-retained tact even area into this non-secure at SMU mates the alter- one of prison provided long as the possibility greatly increase would required in Bounds. natives violence, escapes hostage prison situations. officials and/or bear the burden of proving Additionally, staffing that would be that the justified, blanket ban is and because required in order conduct adduce, to such contact they have failed to any evidence to (DSOF, visitation is not at available SMU. satisfy that burden respect to this fac- ¶ 10). 4,p. Therefore, implement con- tor, 9— the district properly court concluded that tact visitation at SMU would result in an this factor weighed should be in favor of prison increased burden on resources. prisoners.12 Resp. Defs.’ to Pis.’ Mot. for at Summ.J. added). (emphasis 11:13-25 D. Alternative Means Achieving Defendants’ citations the record corre Underlying Goals spond to essentially repeat affidavits that The fourth and final factor we must consid- general assertions contained in defendants’ er is whether there are alternatives to the opposition. noted, As the court district such noncontact fully accommodate the eonelusory evidence does not enable the prisoners’ rights at de minimis cost to the court to impact determine on prison’s security asserted interests. prison significant. resources would be Ca so, U.S. 107 S.Ct. at 2262-63. If sey, F.Supp. at 1369. As the district may this be considered as evidence that the concluded, wisely courts be “un should reasonable, is not but rep- rather

willing abridge an inmate’s constitutional “exaggerated resents an response” prison right of access to the prison courts” unless concerns. Id. at 107 S.Ct. at officials can demonstrate that contact visits significant would have impact on In their summary judgment, motion Bounds, (quoting resources. Id. prisoners asserted prisons’ current 1496) (“the 97 S.Ct. at protecting cost of ready measures are alternatives to a constitutional justify cannot its total policy. point Prisoners denial”). (1) evidence that attorney, officials search the contrary comes conclu- prisoner, and the prior visitation room sion, primarily erroneously it allo- (including visits), all visits the noncontact cates to disproving burden of visit, well; search the each after government’s justifications: (2) prisoners are escorted to and from the The district court found that contact vis- visitation rooms with their hands chained to its would significantly affect other in- waists; can officials observe the mates, staff, or re- contact visits. so, doing sources. In the court resolved a response, nothing offer disputed regard issue of fact with to the to establish that these measures would not impact of accommodation SMU. Even fully accommodate their interests. Their re- worse, the court ruled in the in- favor of sponse summary judgment motion on though they mates produced no evidence comprises sentences, this issue two devoid of concerning impact accommodation any citation-to evidence or reference on by policy. the other areas affected suggested by prisoners: the alternatives added). Opinion (emphasis at 1522 proof clearly allocation of burden attorney- reasonable on restrictions controls the outcome factor. Because client visitation at reception the Alhambra passing, majority adopts 12. In weight a rule assign of them. Of course the we to each the Fifth Circuit to the effect that we need not necessarily vary depending factors will consider each of the four factors identified as case, the factual specific context of and the each Opinion "relevant” court. Turner at 1522 showing made as to each factor. Corrections, (citing Mississippi Dept. Scott v. majority’s As a result I take (5th Cir.1992) issue with the ("Neither Turner O’Lone, however, findings conclusion that require in favor of weigh nor a court to consider, evenly, second and third would "not even each factors alter our of these fac tors.”)). However, conclusion,” legal Opinion ultimate because Turner identifies "relevant,” each weigh heavily of these factors analysis.” it is incum "would not in our every Opinion bent on the court to consider each one prison adminis- expertise presumed units with SMU, lockdown center, and the CB-6 point. tration, asserted even have not response due exaggerated not an are facili- in these housed of inmate the class also final factor should Clearly, this necessary to are restrictions ties. prisoners. favor of weighed in been could arise which problems future prevent allowed. was visitation if contact VI for Summ.J. Pis.’ Mot. Resp. to Defs.’ OF SUMMARY ORDER SPONTE SUA clearly insuffi assertion This bare 12:1-7. OF IN FAVOR JUDGMENT of demon satisfy burden defendants’ cient OFFICIALS PRISON visits ban on blanket strating that court concluding that the district After units is not in certain prisoners housed for fa- in summary judgment entering in erred prison concerns. response” “exaggerated claim, on this prisoners vor of 419, 109 at 1885 Abbott, sua and then the district reverses to demon (“when are able prison officials in favor of summary judgment sponte orders restric rejected a less they have that strate However, assuming even prison officials. reasonably found tive alternative burden of of the majority’s allocation that harm, greater lead to that it will fears ed summary judg- proper, prisoners is proof demonstrating that the alter they succeed precluded because for defendants ment ‘exag not an selected was they in fact native as to issue a triable have raised Turner”). under response’ gerated were security interests the asserted noncontact measures, prison’s for the blanket to these the actual bases In addition noncontact governing regulations policy. remaining fully their interests serve would

visitation occasion, has this court than one more On offi- example, prison security. For prison favor judgment or affirm to direct refused for visitation suspend contact can cials adduce substan where of officials rule, a visitation violates prisoner who asserted that the interest evidence tial contraband, positive for or tests with found challenged regula justify a prison officials to 5.1.1, §§ DMP 89-21-B drug use. ADOC basis for the actual practice is not or tion addition, could prison officials 5.1.4, In 5.1.5. example, Trib practice. For attorneys under with contact visits suspend the denial ble, affirmed we now regulations conditions the same as immunity where qualified parale- prisoner contact visits suspend digital “security” basis concerns as serted is so “behavior prisoner’s gals: where evi search, prisoner submitted but rectal hostility is so extreme the inmate’s bizarre con procedures were to establish dence pose a threat would personal contact unrelated purposes punitive ducted involved.” or inmates safety of officers Walker, we Similarly, in security concerns. Policy, 302.11 Management Internal ADOC summary judgment where reversed (1992). policies These individualized § 6.1.10 no evidence substan submitted authorities security con- address the sufficient to are involuntary AIDS their assertion tiate and consistent prison, cerns interests, safety” and “health served tests Correc- by the American set the standards pointed to evidence Correction- See American Association. tional simply to implemented testing program C2-4206, § Association, supra, al care workers. state health train favor majority, speculating summary judgment, their motion “[wjhile pro- [plaintiffs’] officials, holds that create two documents point to of contra- flow to stem the may suffice posal fact of material genuine issue po- band, adequately to address it fails policy: noncontact basis for injury actual hostage-taking and problems of tential Lewis, Director of déposition Samuel attorneys.” Opinion at visiting to staff Corrections, Department sup- Arizona nothing in the record 1523. However Keeney. Director officials, from Assistant letter conclusion, ports this participated Lewis at the final review A ago, level few implementation months of a approved policies the noncontact at Cell- Death Row System Classification in CB-6 Special Management block 6 and the Unit. resulted in additional contact visits for Dep. Lewis at 61:1-8. When asked at his qualifying Death Row inmates. Limited deposition to state his approving reasons for space, visitation anticipated increase in attorney policy, visits, visit Lewis said: attorney obligation and our to meet requests visit were which service, I feel that the United mail States factors predicated the change decision to the sta- telephone system and non-contact vis- tus to attorney non-contact all provide visits adequate

its means for communi- extenuating unless circumstances dictate attorney cation and his or her between otherwise____ client, and that there no is. need .to contact visits. Because no one has demon- Facts, Pls.’ Statement of (emphasis Ex.' 5 strated to me the value or need. added). any When asked whether he specif- reviewed Both deposition Keeney’s let- Lewis.’s reports problems ic arising attorney- ter are direct evidence noncontact (cid:127) visits, prisoner contact Lewis stated that policy was motivated by non-penological con- time, “there reports have been from time to cerns: personal preferences of the i.ev verbal, problems attorneys with coming director of space corrections or limitations. Dep. into CB-6.” Lewis at 61:20-22. He documents, These conjunction considered say: went on to arbitrary nature of the blanket con- my But I think upon good decision is based tact visit ban housing assignment, based on practice. correctional There’s no constitu- support would a finding the actual basis requirement tional contact visits. And challenged for the policy simply adminis- don’t, simply I I you don’t believe that trative say, convenience. Needless ‘to admin- need contact your visits in order to do istrative “legitimate convenience is not a pe- attorney. business as an nological interest” jus- and therefore cannot ’ Dep. Lewis at 61:26-62:4. When asked to , tify an injury constitutional specific problems elaborate on what he had rights of access to the courts. attorney-pris- heard about connection with Even assuming correctly visits, oner contact Lewis said: allocated the disproving burden of defen- I go would have to my back refresh justifications dants’ asserted for the noncon- memory.... guess simply But I I would policy, prisoners tact have identified evidence repeat just that I think attorneys genuine that creates a issue of material fact other citizen something to do wants only by can be finding resolved of fact. doesn’t mean necessarily- that I have to (that disputed And because the issue accommodate what their wants are. actual basis for policy the noncontact be a Thus, Dep. Lewis at 62:5-17. Lewis is the interest”) “legitimate penological is a critical only personal knowledge witness whose defense, element of the majority’s see Walk- the actual basis of the noncontact er, entitled, 917 F.2d at established affirmatively the record. And least, very hearing to a before a factfin- did not prevention escapes Lewis mention purpose der to determine the actual assaults, control, or contraband as the policy. policy. basis for the deposition, addition to the plain- Lewis' VII tiffs submitted a private letter written to a attorney by Keeney, J.C. Assistant Director CONCLUSION. of the Arizona Department of Corrections. part

In relevant the letter states: above, For the reasons set I forth cannot Regarding your inquiry join about contact majority’s opinion, ver- my which in view visits, sus non-contact I offer the sets back our jurisprudence constitutional following years. information. McFADDEN OF JAMES AFFIDAVIT

APPENDIX ARIZONA OF STATE KEENEY OF J.C. AFFIDAVIT Maricopa County of ARIZONA OF STATE testify McFadden, hereby as I, do James Maricopa County of follows: Special for the Deputy Warden 1. I am testify fol- hereby I,J.C. Keeney, do (SMU). Florence Management Unit

lows: Warden, I am familiar Deputy 2. As of Adult Director the Assistant 1. I am SMU visitation attorney-client Department of Arizona for the Institutions attorney-client visita- facility’s as the well Corrections. tion area. at the Alhambra Many unit is de- management special with attor- visits allowed facility are violent, disruptive manage most signed to in B Ward inmates include neys. These within dangerous inmates generally and workers. resident inmate as the as well Department of Corrections. Arizona contact allowed are not who 3. Inmates presently majority of inmates 4. The vast in- are attorneys at Alhambra visits assigned to be- SMU at SMU are housed arriving after being processed mates who are pursuant inability to function their cause jail. county Depart- of the regulations rules and to the processing in are of Corrections. who are ment 4. The inmates days. than ten for more not at Alhambra 1-5, are inmates are 5. These classified general longer controllable no contact not allowed inmates are 5. These security risk. a clear population are yet been classi- they not have visits because are all inmates they are classified occasion, fied. Until inmates one more 6. On than security risk. highest level considered the facili- weapons into smuggled SMU inmate a unclassified an example, To allow in- For body ty cavities. family attorney or member visit with in their shells .22 hidden caliber mates have security risk unwarranted be an later the shells only would to use body cavities practice. sound correctional inmates. members staff shoot recently stabbed Additionally, an officer was designated lock- that are in 6. Inmates inmate. an SMU De- within the other facilities units at down is in- scheme SMU operational system are also 7. The partment of Corrections emphasizes, securi- tentionally restrictive These any contact visits. allowed foremost, preventing thus disciplinary ty first and units issues placed in lockdown are activity which would illicit lock-up. portion For investigative large or for violations setting. open a more normally lock- occur are part, these inmates the most time, usu- period for a limited units down contra- Controlling introduction 8. these inmates days less. All of ally thirty maintenance in the element crucial band is attorney visits. non-contact allowed within orderly operation secure promi- most is the Contact visitation SMU. major that one It is known 7. well throughout the by inmates method used nent institutions at correctional riots causes of prison con- systems promote correctional dissatisfaction is inmate the United States introduc- prevent In order traband. services. with food contraband, at SMU visitation all tion of sayeth not. affiant FURTHER non-contact. (/signed) inmate as- were 165 IN there 9. methods. by various staff SMU saults Keeney J.C. disciplinary violations 1990, 5,645 10. % :jj s}< ^ ^[*] were issued to inmates at SMU for adverse deposition place 4. The took in the attor- ney non-contact visitation room at In- SMU. great many behavior. A of these violations Phillips represented mate was by Alice related to violence or threats of violence Bendheim. against staff inmates. The amount of and/or 5. Ms. Bendheim violations is more than double the number of met with inmate Phil- lips prior deposition to the custody violations that occur at a medium in one of the attorney non-contact unit of similar size. visitation rooms. Dur- ing meeting, I standing outside of SMU, 11. physically At it would be im- attorney non-contact visitation room. At possible to have secure contact visitation due not time did I hear of the conversation SMU, type of inmate that is housed at place with [sic] took between Ms. Bendheim physical facilities available for visitation Phillips. and Mr. and the number of staff available. During deposition Phillips, of Mr. 12. SMU inmates are not allowed in the all of the individuals participating in that attorney side of the visitation area. The deposition talking were in a normal conversa- attorney side of the non-contact visitation tional tone of voice. area is not a secure area. It would be During deposition against Phillips of Mr. I sound correctional to allow was able to Phillips’ observe inmate high custody demean- level inmates into a non-secure or, physical credibility characteristics and area such as the side of the non- without difficulty. contact visitation area. 8. Documents personnel

13. could have been DOC cannot overhear con- reviewed simultaneously by Phillips Mr. attorney versations between and inmate. his coun- sel if copies two of the document were made. personnel strictly 14. DOC follow guidelines FURTHER transferring sayeth when affiant legal docu- not.

ment. Documents are sealed front of the (/signed) attorney non-tampering protective with a seal. The document is then transferred to Daniel P. Struck breaking the inmate without the seal. my knowledge,

15. To no one has ever

complained alleged that officers eaves-

dropped during attorney an non-contact visit. sayeth

FURTHER affiant not. COMMITTEE TO PRESERVE BOOMER (/signed) PARK, unincorporated LAKE association, Plaintiff-Appellant, James McFadden v. ‡ Hs sk # Hs TRANSPORTATION, DEPARTMENT OF AFFIDAVIT DANIEL P. OF STRUCK Skinner, Secretary Samuel K. STATE OF ARIZONA Department Transpor United States County Maricopa tation; Department Oklahoma of Trans portation, Defendants-Appellees. I,Daniel Struck, hereby testify P. do follows: No. 92-6198. attorneys repre- 1. That I am one of the Appeals, United States Court of Lewis,

senting Casey the Defendants Tenth Circuit. No. 90-54 PHX CIV CAM. Sept. I familiar am with the non- contact visitation room at SMU. 22, 1991, April

3. On I went to SMU to

depose Jeffrey Phillips. inmate

Case Details

Case Name: Fletcher Casey, Jr., on Behalf of Themselves and All Others Similarly Situated v. Samuel A. Lewis, Director, Arizona Department of Corrections

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 23, 1993

Citation: 4 F.3d 1516

Docket Number: 91-16513

Court Abbreviation: 9th Cir.