Raymond Ludwig Frost (“Frost”) appeals from the district court’s order granting the Defendants’ motion for summary judgment in Frost’s action under 42 U.S.C. § 1983 for violations of his First and Fourteenth Amendment rights and the Hook Consent Decree. Frost seeks damages from Arizona Department of Corrections (“ADOC”) officials who allegedly withheld issues of Penthouse and Gallery magazines and returned without authorization music CDs Frost ordered from BMG Music Service (“BMG”). We have jurisdiction under 28 U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
I.
In October 1973, the district court approved a consent decree in Hook v. Arizona, No. CIV-73-97 PHX-CAM (the “Hook Consent Decree”), a suit brought by eleven inmates of the ADOC over mail regulations. Under the Hook Consent Decree, inmates could not receive publications
Frost has been an inmate at the ADOC since 1989, and was not a party to the Hook Consent Decree. During the time of his confinement, Frost has subscribed to Gallery and Penthouse magazines, both of which are pornographic publications. In addition, Frost has been a member of BMG, through which he has ordered various music CDs.
In late January 1994, J. Fife Symington (“Symington”), the Governor of Arizona, said in a public speech that he planned to get tough with inmates at the ADOC. On January 31, 1994, Samuel Lewis (“Lewis”), Director of the ADOC, announced in a memorandum that all sex-based publications were to be banned from the ADOC as of February 27, 1994.
Frost claims that, pursuant to the Lewis directive, the ADOC withheld four magazines he had ordered: the January 1994 and February 1994 issues of Gallery and Penthouse. He claims that he did not receive notice that these magazines were being withheld, and that he was not told why these issues had been withheld. It appears, however, that Frost received both issues of Gallery after contacting the publisher and having the issues redelivered. It also appears that Frost’s subscription to Penthouse was extended by two months to reflect the issues that were withheld, but Frost never apparently received the two withheld issues of Penthouse. On September 5, 1995, the ADOC received the October 1995 issue of Penthouse. An unidentified mailroom officer rejected this issue for “showing penetration,” “material which, in the Warden’s opinion, pose[d] a threat to the safe, secure and orderly operation of the prison.”- On September 14, 1995, Frost appealed the rejection of the October 1995 issue by writing an inmate letter to the Deputy Superintendent of Programs pursuant to the Hook Consent Decree. Two weeks later, Deputy Warden David Bourgeous
On October 3, 1995, the November 1995 issue of Penthouse was received by the prison mailroom. An unidentified mail-room officer rejected this issue because it was “Unauthorized Property: Items not inherently illegal which are considered contraband when possessed by an inmate.” On October 5, 1995, Daniels reviewed this issue of Penthouse and noted, “Photos show penetration. Advertisements solicit sexual behavior that poses a threat to female staff working in this institution.” Then on January 2, 1996, approximately three months after the ADOC received this issue of Penthouse, Frost received a notice indicating that this issue had been rejected by the ADOC.
On December 29,1995, Frost claims that he received four magazines: the December 1995 and January 1996 issues of Gallery and Penthouse. Frost had not received notice that these magazines were being stored.
On February 6, 1996, the March 1996 issue of Penthouse was received by the mailroom. On March 14, 1996 the mail-room received the April 1996 issue of Penthouse. On both occasions an unidentified mailroom officer rejected the issues because they “contain[ed] material which, in the Warden’s opinion, pose[s] a threat to the safe, secure and orderly operation of the prison.” In addition, on separate forms, Deputy Warden Murphy rejected the issues because they showed “vaginal penetration,” and “anal penetration,” respectively. It is unclear whether Frost received notice that the March 1996 issue of Penthouse had been rejected by the ADOC. On April 3, 1996, Frost received notice that the April 1996 issue had been rejected by the ADOC.
On April 1, 1996, and again on April 30, 1996, the mailroom received the May 1996 issue of Penthouse. On both dates, an unidentified mailroom officer rejected the issues because they “contain[ed] material which, in the Warden’s opinion, pose[s] a threat to the safe, secure and orderly operation of the prison.” The record does not show, however, that this issue was re
As of August 14, 1996, Frost had not received the June 1996, July 1996, August 1996, and September 1996 issues of Penthouse, nor had Frost received notice that any of these issues had been rejected by the ADOC. However, Frost was informed by Penthouse that these issues had been sent.
In 1991, Frost became a member of BMG, through which he purchased music CDs that were delivered to the prison and distributed to Frost between July, 1991, and July, 1992. In December, 1992, and again in January, 1993, Frost received from BMG notices indicating that CDs that had been sent to Frost had been returned to BMG. ADOC officials explained to Frost that the CDs had never been received by the ADOC. In February 1993, Frost canceled his BMG membership. In April 1995, Frost received a letter from BMG inviting him once again to become a member of BMG. Under the terms of the letter, Frost was invited to choose eight free CDs for which he would be obligated to pay a per-item shipping and handling fee. In return for the eight free CDs, Frost would be obligated to purchase at full price one CD through BMG any time within the next year. In June 1995, Frost accepted the offer, and BMG mailed to Frost the eight CDs that he had chosen. Shortly thereafter, BMG determined that Frost was institutionalized and requested that ADOC officials return the CDs to BMG. The record indicates that BMG’s policy at the time prohibited residents of institutions from becoming BMG members. The ADOC officials concluded that the CDs were still BMG’s property because Frost had not paid for them, and returned the CDs to BMG. Frost alleges that ADOC officials never informed him that the CDs had been returned to BMG.
Frost filed suit under 42 U.S.C. §§ 1983 and 1985 for violations of the Hook Consent Decree and his First and Fourteenth Amendment rights. Frost sought compensatory damages in the amount of $1000 “for each magazine withheld, delayed, or stored in violation of Hook. To date in the amount of $12,000.” Frost also sought compensatory damages in the amount of $1408 for the unauthorized return of his CDs. In addition, Frost sought punitive damages in the amount of $10,000 for the ADOC’s “continued unlawful planned scheme to knowingly and deliberately] violation of [sic] this Court’s Orders and the Hook Consent Decree, as well as the pattern of coverup of Defendants!’] actions.” Finally, Frost sought “other relief as may be just and proper.” In his motion for summary judgment, Frost requested (pursuant to the prayer in his complaint for “other relief’) that the court hold the Defendants in contempt for their violations of the Hook Consent Decree. Frost named as defendants Symington, Lewis, Barrows, Ryan, Upchurch,
Construing the claims liberally, as must be done because of Frost’s pro se prisoner status, see Franklin v. Murphy,
Analyzing the cross motions for summary judgment, the district court determined that Frost’s claim was basically one seeking enforcement of the Hook Consent Decree, and that Frost was therefore required to proceed through Hook class counsel. However, the court also decided that Frost could proceed outside of the Hook class action to the extent that he was seeking damages, as opposed to equitable relief. To that end, the court characterized Frost’s claim as one alleging violations of his First Amendment rights instead of one alleging breach of the Hook Consent Decree. The court then addressed separately the ADOC’s conduct with respect to the CDs and the magazines. The district court rejected Frost’s claim with respect to the CDs because the court decided that the CDs had been returned to BMG at the request of BMG, and that BMG was entitled to the return of the discs because Frost had not paid for them. Admitting that the ADOC’s confiscation of Frost’s magazines raised First Amendment concerns, the district court applied the Turner reasonableness test to the ADOC’s policy to reject publications “that dictate sexual penetration.” The district court decided that Frost’s First Amendment rights had not been violated, and that the Defendants were entitled to qualified immunity. The district court then granted the Defendants’ motion for summary judgment, and denied Frost’s motion for summary judgment. Frost timely appealed the district court’s order.
II.
We review de novo the district court’s order granting the Defendants’ motion for summary judgment to determine whether there are any genuine issues of material fact and whether the district court properly applied the relevant substantive law. See Margolis v. Ryan,
III.
Frost contends, that the district court improperly granted summary judgment on his claims that the Defendants violated his Fourteenth Amendment due process rights by withholding magazines without notice, delivering notices of withholding after unreasonable delays, and storing the magazines for unreasonable amounts of time before delivering them to him. The district court did not consider whether the Defendants had violated Frost’s Fourteenth Amendment rights, and instead considered only whether the Defendants had violated his First Amendment rights.
Frost has a Fourteenth Amendment due process liberty interest in receiving notice that his incoming mail is being withheld by prison authorities. See Miniken v. Walter,
IV.
Frost next contends that, with respect to the sexually explicit magazines, the district court erred by granting the Defendants’ motion for summary judgment on alternate grounds: (1) that the Defendants did not violate his First Amendment rights by withholding issues of Gallery and Penthouse magazines, and (2) that the Defendants were entitled to qualified immunity for their actions.
Frost’s First Amendment claim prompts us to reconcile our recent en banc opinion in Mauro v. Arpaio, 188 F.3d 1054 (9th Cir.1999) with our earlier decision in Walker v. Sumner,
Under Turner v. Safley, a regulation that impinges upon a prisoner’s constitutional rights is valid if the regulation “is reasonably related to legitimate peno-logical interests.”
Handed down just a few years after Turner, Walker v. Sumner was one of our earlier efforts to give greater content to the Turner test. Walker involved a civil rights action brought by a prison inmate who alleged that prison officials had forcibly taken a blood sample from him without his consent and had threatened to shoot
Prison authorities cannot rely on general or conclusory assertions to support their policies. Rather, they must first identify the specific penological interests involved and then demonstrate both that those specific interests are the actual bases for their policies and that the policies are reasonably related to the furtherance of the identified interests. An evidentiary showing is required as to each point.
Id. at 386. Thus, the court brushed aside the government’s stated justification for the policy — preserving the health, safety, and welfare of the inmates — in the absence of any evidence that the policy actually was implemented to further this objective.
Without citing Walker, Mauro appears to have implicitly called its underpinnings into question. In very clear and broad language, Mauro dramatically diminishes the level of scrutiny that courts ordinarily are to apply to the decisions of prison administrators:
To show a rational relationship between a regulation and a legitimate penological interest, prison officials need not prove that the banned material actually caused problems in the past, or that the materials are “likely” to cause problems in the future. See Thornburgh,490 U.S. at 417 ,109 S.Ct. 1874 ; Casey,4 F.3d at 1521 . Moreover, it “does not matter whether we agree with” the defendants or whether the policy “in fact advances” the jail’s legitimate interests. See Ama-tel,156 F.3d at 199 . The only question that ive must answer is whether the defendants’ judgment was “rational,’’ that is, whether the defendants might reasonably have thought that the policy would advance its interests. See id.
Mauro,
Indeed, it was the lack of a trial record that could have shed light on the prison’s actual (as opposed to possible) motivations for the policy that sparked a strong dissent by Judge Kleinfeld. See id. at 1066, 1068 (Kleinfeld, J., dissenting). Thus, whereas the Walker court found fatal the defendant’s failure to offer evidence concerning its actual motivation for implementing the regulation at issue, the Mauro court did not inquire into the prison’s actual motivation, and ruled that as a matter of law the prison’s purported motivations were legitimate and rationally furthered by the prison’s ban on sexually explicit materials. See id. at 1060.
Mauro’s favorable citations to Amatel are also quite relevant. In Amatel v. Reno,
There is, of course, no “record evidence,” and certainly no sophisticated multiple regression analyses or other social science data, to support this belief— a fact our dissenting colleague finds fatal. We do not think, however, that common sense must be the mere handmaiden of social science data or expert testimonials in evaluating congressional judgments. Quite the opposite: scientific studies can have a corrective effect by establishing an apparently implausible connection or refuting an apparently obvious one, but, subject to such corrections, conformity to commonsensical intuitive judgments is a standard element of both reasonableness and rationality.... Here, the regulations restrict prison consumption of publications that implicitly elevate the value of the viewer’s immediate sexual gratification over the values of respect and consideration for others. Common sense tells us that prisoners are more likely to develop the now-missing self-control and respect for others if prevented from poring over pictures that are themselves degrading and disrespectful.
Id. at 199 (citations omitted). The opinion then discusses the evidence that exposure to sexually explicit materials makes inmates more likely to commit sex crimes after release, more aggressive, more tolerant of violence against women, and more susceptible to myths about rape. Id. at 200. While admitting that there is an impressive quantum of evidence taking issue with these studies, the court concluded that this scientific uncertainty unquestionably placed the “legislative judgment within the realm of reason under the standards applicable to the political branches’ management of prisons.” Id.
A careful reading of the passage excerpted swpra helps shed light on the apparent tension between Mauro and Walker. The D.C. Circuit noted that the government could use scientific studies or record evidence to establish a rational connection between a policy and objective that do not appear intuitively connected. Id. at 199. If it failed to do so, the inmate would prevail on Turner’s first prong. Conversely, an inmate could marshal scientific studies or record evidence to “refute an apparently obvious” connection between a prison policy and a legitimate objective. Id. If he failed to do so, the government would prevail on prong one.
In Walker, the plaintiff presented evidence, and the government did not contest, that “the prison officials knew that no prisoners had AIDS at the time the disputed samples were taken.” Walker,
In Mauro, on the other hand, the plaintiffs presented no evidence casting doubt on the obvious connection “between the possession of sexually explicit materials and the problems sought to be addressed by the policy — sexual harassment of female officers, jail security and rehabilitation of inmates.... ”
This analysis helps demonstrate that Walker and Mauro do not conflict;
In this instance Arizona’s government has put forward three justifications for the challenged regulations: (1) They are necessary “to insure the safety of inmates and prison officers”; (2) they “protect female officers from abuse and harassment”; and (3) the publications depicting sexual penetration “are likely to cause inmates who come in contact with the material to harass and/or abuse other individuals”. Appellees’ Brief at 16. These objectives and their connection to a ban on possession of materials depicting sexual penetration clearly pass the “common sense” standard of Mauro and Amatel
Turner’s second prong prompts us to examine whether there are alternative means of exercising the right in question. See Turner,
The third prong of Turner requires us to assess the consequences of accommodating the asserted constitutional right for “prison personnel, other inmates, and the allocation of prison resources.” Id. Again, we follow the Mauro court’s analysis of the more restrictive regulation at issue there. As our prior analysis indicates, Frost has not met his burden of refuting the prison’s claim that allowing inmates to have unrestricted access to materials depicting sexual penetration would threaten the security of inmates and of guards who might be subjected to sexual harassment as a result. The district court’s conclusion that allowing images depicting sexual penetration could create a “ripple effect” within the institution because of the likelihood that such materials would prompt bartering among inmates, disputes over possession, and contribute to the sexual harassment of female detention officers was not erroneous. “When accommodation of an asserted right will have a significant ‘ripple effect’ on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.” Turner,
The final prong of Turner charges us to explore whether the inmate can articulate alternatives to the regulation at issue that would “fully accommodate the prisoner’s rights at de minimis cost to valid penological interests.... ” Id. at 91,
Because the Defendants did not violate Frost’s First Amendment rights, it is unnecessary for us to reach the district court’s alternative grounds for summary judgment — that the Defendants were entitled to qualified immunity on the First Amendment claims.
V.
Frost also contends that, with respect to the CDs, the district court erred by granting the Defendants’ motion for summary judgment on the ground that the Defendants returned the CDs pursuant to BMG’s request. The Defendants point out that they returned the CDs only at BMG’s behest and that they determined that Frost had not paid for the CDs before doing so. On this record, there is no evidence that the ADOC officials violated Frost’s clearly established rights by returning the CDs. Leaving questions of notice aside, the dispute over the CDs’ return is between Frost and BMG. Therefore, the district judge’s decision to grant the Defendants’ motion for summary judgment on this claim was not erroneous.
VI.
We cannot decide on the record before us whether the district court correctly ruled that Frost must enforce his rights
VII.
Finally, we decide that the district court properly granted summary judgment with respect to Larry Barrows (“Barrows”). Frost incorrectly identified Barrows as the individual who interviewed him when Frost appealed the withholding of the October 1995 issue of Penthouse. However, the record shows that the person who conducted the interview was Deputy Warden David Bourgeous, who is not named as a defendant in Frost’s complaint. Because Barrows’ only connection to Frost’s action is in his capacity as the incorrectly identified interviewer, the district court’s grant of summary judgment is affirmed with respect to Barrows.
Based on the foregoing, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this decision. Each party will pay its own costs.
Notes
. The Hook Consent Decree defined "publication” as "[r]eproduced written and/or pictorial matter released for public use including books, periodicals, newspapers, pamphlets, photographs, etc.”
. It appears, however, that in August 1994 a class may have been certified with respect to a limited issue. See Hook v. Arizona,
.Although Frost claims that Symington directed Lewis to issue this memorandum, Lewis testified in a prior proceeding that he had acted alone in circulating the memorandum, and that Symington did not direct him to issue the memorandum. See Hook v. Arizona,
. Thomas is not named as a defendant in Frost’s complaint.
. In his complaint, Frost states that he was interviewed by "Defendant Barrows.” However, Frost’s identification of his interviewer appears to be incorrect because Bourgeous’ name appears on the Inmate Letter with the written explanation for the rejection of the magazine.
. Upchurch ended his job as Warden on October 10, 1995, before most of the actions alleged in Frost’s complaint took place.
. Furthermore, Frost alleges that ADOC officials never notified him that his CDs had been returned to BMG. Frost has the same due process interest in receiving notice of ADOC’s actions regardless of whether the item being withheld or returned is a magazine or a CD.
. The Mauro court implicitly rejected the sug-gestión that its ruling directly conflicted with
The majority’s apparent conclusion that the government bears no responsibility for compiling evidence to support the breadth of its ban — in other words, that the courts may simply hypothesize a rational connection — runs counter to the wisdom of several other circuit courts. See, e.g., ... Walker v. Sumner,917 F.2d 382 , 386 (9th Cir.1990).
Amatel,
. The Mauro court held that the "relationship between the possession of sexually explicit materials and the ... sexual harassment of female officers [and] jail security ... is clear.”