297 F.3d 305 | 3rd Cir. | 2002
RENDELL, Circuit Judge:(cid:13) A class of federal prisoners challenges a prison policy(cid:13) that prevents them from viewing movies rated R or NC-17.(cid:13) The District Court granted the government’s motion for(cid:13) judgment on the pleadings, reasoning that the prison policy(cid:13) met the requirement that restrictions on First Amendment(cid:13) rights of inmates be "reasonably related to legitimate(cid:13) penological interests." Turner v. Safley, 482 U.S. 78, 89(cid:13) (1987). However, we conclude that the District Court did(cid:13) not conduct a proper, thorough analysis under Turner in(cid:13) that it did not articulate the relevant penological interest or(cid:13) the prohibition’s relationship to it, and, further, it(cid:13) considered only Turner’s first prong. Also, the Court found(cid:13) that it could rely on "common sense" in determining(cid:13) whether Turner’s first prong had been satisfied, but we(cid:13) conclude that this approach may not always "fit" and an(cid:13) evidentiary showing may be required in certain situations.(cid:13) Accordingly, we will reverse and remand for further(cid:13) consideration in accordance with this opinion.(cid:13) 2(cid:13) We have jurisdiction under 28 U.S.C. S 1291 and our(cid:13) review of a dismissal under Rule 12(c) is plenary. We will(cid:13) view the facts in the complaint and any reasonable(cid:13) inferences that can be drawn from them in favor of the(cid:13) non-moving party, here the class of prisoners, and will(cid:13) affirm the dismissal only if no relief could be granted under(cid:13) any set of facts that could be proved. E.g., Allah v. Al-(cid:13) Hafeez, 226 F.3d 247, 249-50 (3d Cir. 2000).(cid:13) At issue here is a prison policy that provides that"[n]o(cid:13) movies rated R, X, or NC-17 may be shown to inmates."(cid:13) Program Statement 5370. Only the ban on movies rated R(cid:13) and NC-17 represented a recent change in policy; X-rated(cid:13) movies have long been banned. See 28 C.F.R.S 544.33. The(cid:13) policy was designed to implement the Zimmer Amendment,(cid:13) which prevents the expenditure of funds for the viewing of(cid:13) movies rated R, X, or NC-17 in prison. See Omnibus(cid:13) Consolidated Appropriations Act of 1997, Pub. L. No. 104-(cid:13) 208, S 611, 110 Stat. 3009 (1996). Although the Complaint(cid:13) attacks the underlying legislation, on appeal the prisoners(cid:13) attack only the policy. In their Complaint, the prisoners(cid:13) also challenged the Ensign Amendment, which bars the(cid:13) expenditure of federal funds to distribute or make available(cid:13) to prisoners any commercially published material that is(cid:13) sexually explicit or features nudity. See id. at S 614. The(cid:13) District Court granted the government’s motion for(cid:13) judgment on the pleadings regarding plaintiffs’ attack on(cid:13) the Ensign Amendment. The inmates’ Ensign Amendment(cid:13) claims are not part of this appeal.(cid:13) Whether the policy restricting R-rated and NC-17-rated(cid:13) movies imposes permissible limitations on the inmates’(cid:13) First Amendment rights depends on the four factors set(cid:13) forth in Turner.1 There, the Supreme Court directed courts(cid:13) first to assess whether there is a " ‘valid, rational(cid:13) connection’ between the prison regulation and the(cid:13) legitimate governmental interest put forward to justify it."(cid:13) Turner, 482 U.S. at 89. If the interest is legitimate and(cid:13) neutral, and the connection is valid and rational, then(cid:13) courts should engage in the inquiries under the succeeding(cid:13) _________________________________________________________________(cid:13) 1. The government has conceded the First Amendment implications of(cid:13) this prohibition.(cid:13) 3(cid:13) three prongs: whether "alternative means of exercising the(cid:13) right . . . remain open to prison inmates," "the impact(cid:13) accommodation of the asserted constitutional right will(cid:13) have on guards and other inmates, and on the allocation of(cid:13) prison resources generally," and, finally, whether there are(cid:13) "ready alternatives" to the rule that would accommodate(cid:13) prisoners’ rights at de minimus cost to penological interests.(cid:13) Id. at 90-91.(cid:13) It is our view that, while the District Court acknowledged(cid:13) that Turner established the applicable standard and recited(cid:13) all four Turner factors, it did not perform the necessary(cid:13) analysis. The Court’s four-page order discussed the facial(cid:13) challenges to the Ensign Amendment, to the Zimmer(cid:13) Amendment, and to the Amendments’ implementing(cid:13) regulations and policies, as well as the as-applied(cid:13) challenges to all of these. Focusing on Turner ’s first factor(cid:13) and on Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999),(cid:13) in which we cited Amatel v. Reno, 156 F.3d 192 (D.C. Cir.(cid:13) 1998), cert. denied, 527 U.S. 1035 (1999), with approval,(cid:13) the District Court concluded that no evidentiary record was(cid:13) required because we endorsed a "common sense" approach(cid:13) in Waterman. It then proceeded to rule in conclusory(cid:13) fashion that the Amendments and their implementing(cid:13) regulations were "neutral and reasonable, and rationally(cid:13) related to legitimate penological interests."(cid:13) In relation to the first factor, the Court’s opinion was(cid:13) deficient in that it never stated or described the interest(cid:13) purportedly served by the prison policy, nor did it(cid:13) determine whether the interest was neutral and legitimate.(cid:13) The government offered several theories in general terms at(cid:13) different times, but the District Court opinion did not(cid:13) mention or discuss any such theories or interests. We(cid:13) cannot tell, for instance, whether the Court credited the(cid:13) government’s assertion that the movies posed security(cid:13) risks, or that the absence of such movies deterred people(cid:13) from committing crimes, or that denial of such movies(cid:13) fosters rehabilitation. Moreover, the District Court did not(cid:13) discuss how any of the particular interests offered by the(cid:13) government were "rationally connected to" the restrictions(cid:13) on movies rated R or NC-17.(cid:13) 4(cid:13) We have noted that the party defending the policy should(cid:13) "demonstrate" that the policy’s drafters "could rationally(cid:13) have seen a connection" between the policy and the(cid:13) interests, and that this burden, though slight, must(cid:13) "amount[ ] to more than a conclusory assertion." Waterman,(cid:13) 183 F.3d at 217, 218 n.9.2 Part of the court’s inquiry under(cid:13) Turner is whether the government has satisfied this(cid:13) requirement. While we recognize that the court need not(cid:13) necessarily engage in a detailed discussion, still the brief,(cid:13) conclusory statement set forth in the District Court’s(cid:13) opinion falls short, and makes it difficult for us to conclude(cid:13) that its approach to the first Turner prong passes muster.(cid:13) The inmates also attack the District Court’s ruling that(cid:13) the connection between the prohibition and the interests to(cid:13) be advanced was a matter of "common sense," arguing,(cid:13) instead, that evidence is necessary to support such a(cid:13) finding and the Court erred in ruling based on the(cid:13) pleadings alone. Declining to follow the Magistrate Judge’s(cid:13) recommendation that an evidentiary record should be(cid:13) developed before ruling based on Turner, the District Court(cid:13) stated, somewhat categorically, that a "common sense(cid:13) approach to the Turner reasonableness test has been(cid:13) accepted by the Third Circuit." The inmates seek a similarly(cid:13) categorical ruling that evidence must be presented to(cid:13) establish the necessary connection.(cid:13) We eschew both categorical approaches and hold,(cid:13) instead, that while the connection may be a matter of(cid:13) common sense in certain instances, such that a ruling on(cid:13) this issue based only on the pleadings may be appropriate,(cid:13) there may be situations in which the connection is not so(cid:13) apparent and does require factual development. Whether(cid:13) the requisite connection may be found solely on the basis(cid:13) of "common sense" will depend on the nature of the right,(cid:13) the nature of the interest asserted, the nature of the(cid:13) prohibition, and the obviousness of its connection to the(cid:13) _________________________________________________________________(cid:13) 2. We do not reach the issue pressed by the government in its brief as(cid:13) to how the "reasonable relationship" aspect compares to the "rational(cid:13) basis" test for equal protection, nor do we see the need to elaborate on(cid:13) the nature of the government’s burden, as our statement in Waterman(cid:13) that it must "demonstrate" the necessary relationship should suffice.(cid:13) 5(cid:13) proffered interest. The showing required will vary depending(cid:13) on how close the court perceives the connection to be.3 A(cid:13) prohibition on inmate gatherings in prison common areas(cid:13) after 11-o’clock at night might have an obvious relationship(cid:13) to security concerns, as would a prohibition on publications(cid:13) that featured escape plans, Amatel, 156 F.3d at 206 (Wald,(cid:13) J., dissenting), or instructions on assembling weapons,(cid:13) Giano v. Senkowski, 54 F.3d 1050, 1059-60 (2d Cir. 1995)(cid:13) (Calabresi, J., dissenting). Likewise, the connection between(cid:13) the goal of rehabilitation and a ban on distributing sexually(cid:13) explicit magazines to "repetitive and compulsive" sexual(cid:13) offenders may well be, as we stated in Waterman ,(cid:13) sufficiently obvious to be evaluated as a matter of common(cid:13) sense. But is it a matter of common sense, as was argued(cid:13) here, that prohibiting movies rated R or NC-17 deters the(cid:13) general public from committing crimes, lest they be sent to(cid:13) prison where they are not permitted to watch R-rated(cid:13) movies? We are not so sure. On remand, the District Court(cid:13) must describe the interest served, consider whether the(cid:13) connection between the policy and the interest is obvious or(cid:13) attenuated -- and, thus, to what extent some foundation or(cid:13) evidentiary showing is necessary -- and, in light of this(cid:13) determination, evaluate what the government has offered.(cid:13) We also note that while a court can bolster its finding of(cid:13) a connection by reference to decisions of other courts on(cid:13) the same issue, here the District Court referenced how(cid:13) other courts had viewed one of the two types of restriction(cid:13) -- namely, the Ensign Amendment and its prohibitions on(cid:13) _________________________________________________________________(cid:13) 3. See, e.g., Bazzetta v. McGinnis , 286 F.3d 311 (6th Cir. 2002) (striking(cid:13) down prison restrictions on visitors in absence of evidence justifying(cid:13) restriction on First Amendment rights); Beerheide v. Suthers, 286 F.3d(cid:13) 1179 (10th Cir. 2002) ("minimal showing" required to demonstrate(cid:13) relationship between restriction on special Kosher meals and prison(cid:13) budgetary and inmate relations goals); Morrison v. Hall, 261 F.3d 896(cid:13) (9th Cir. 2001) (striking down requirement that prisoners receive only(cid:13) first or second class incoming mail in absence of evidence demonstrating(cid:13) rational connection between postage rate and risk of contraband). In(cid:13) Fraise v. Terhune, 283 F.3d 506, 518 (3d Cir. 2002), we found that the(cid:13) "expert judgment" of correctional officers regarding the threat to security(cid:13) posed by the Five Percent Nation provided adequate grounds for(cid:13) purposes of the "rational connection" test.(cid:13) 6(cid:13) distributing sexually explicit publications in prison.4(cid:13) Therefore, the District Court’s conclusion that"other(cid:13) Courts have tackled the precise regulations presented here"(cid:13) and "every court facing challenges to these and similar(cid:13) enactments have upheld them" does not really support a(cid:13) finding as to the policy implementing the Zimmer(cid:13) Amendment.(cid:13) Further, although the District Court recited the final(cid:13) three Turner factors, it never applied them to the(cid:13) circumstances presented by the claims of the inmate class.(cid:13) Instead, its ruling turned exclusively on Turner ’s first(cid:13) factor. We have stated clearly that the determination that(cid:13) there is a rational relationship between the policy and the(cid:13) interest "commences rather than concludes our inquiry" as(cid:13) "not all prison regulations that are rationally related to(cid:13) such an interest pass Turner’s ‘overall reasonableness(cid:13) standard.’ " DeHart v. Horn, 227 F.3d 47, 53 (3d Cir. 2000)(cid:13) (en banc). The first factor is "foremost" in the sense that a(cid:13) rational connection is a threshold requirement -- if the(cid:13) connection is arbitrary or irrational, then "the regulation(cid:13) fails, irrespective of whether the other factors tilt in its(cid:13) favor." See Shaw v. Murphy, 532 U.S. 223, 229-30 (2001).(cid:13) But, as we made clear in DeHart, we do not view it as(cid:13) subsuming the rest of the inquiry. On remand, if the(cid:13) District Court again concludes that the first factor is(cid:13) satisfied, it must then proceed to consider the remaining(cid:13) Turner factors in order to draw a conclusion as to the(cid:13) policy’s overall reasonableness.5(cid:13) _________________________________________________________________(cid:13) 4. The one case that involved the Zimmer Amendment turned on grounds(cid:13) not at issue here. See Cuoco v. Hurley, 2000 WL 1375273 (D. Colo. Sept.(cid:13) 22, 2000).(cid:13) 5. The government’s argument that Appellants waived argument based(cid:13) on the three other Turner factors by failing to press it on appeal is(cid:13) without merit. Appellants devoted a section of their brief to the argument(cid:13) that "there is no indication that the District Court actually applied the(cid:13) Turner factors to the facts of this case." Clearly this raises -- and does(cid:13) not waive -- the issue. Appellants do not need to argue that the District(cid:13) Court misapplied the factors to their case and that, actually, they should(cid:13) be applied in some other way, when the District Court clearly did not(cid:13) apply the factors at all. Moreover, we are not weighing these factors on(cid:13) appeal, but rather remand for the District Court to do so in the first(cid:13) instance.(cid:13) 7(cid:13) As to the need for a foundation for these three prongs, it(cid:13) is worth noting that we have historically viewed these(cid:13) inquiries as being fact-intensive. We have said that(cid:13) evaluations of prison restrictions under Turner require "a(cid:13) contextual, record-sensitive analysis." DeHart, 227 F.3d at(cid:13) 59 n.8 (remanding "so that the parties may more fully(cid:13) develop the record"). We have also indicated that courts of(cid:13) appeals ordinarily remand to the trial court where the(cid:13) Turner factors cannot be assessed because of an(cid:13) undeveloped record. Doe v. Delie, 257 F.3d 309, 317 (3d(cid:13) Cir. 2001). If the District Court concludes that the Turner(cid:13) analysis cannot be undertaken on an undeveloped record,(cid:13) then the Court should treat the matter as on summary(cid:13) judgment, and rule only after considering the factual basis(cid:13) developed by affidavits or depositions.(cid:13) For the above reasons, we will REVERSE and REMAND(cid:13) for further consideration and proceedings in accordance(cid:13) with this opinion.(cid:13) A True Copy:(cid:13) Teste:(cid:13) Clerk of the United States Court of Appeals(cid:13) for the Third Circuit(cid:13) 8(cid:13)
