Sperry v. Werholtz , 413 F. App'x 31 ( 2011 )

FILED
United States Court of Appeals
Tenth Circuit
February 14, 2011
UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
Clerk of Court
FOR THE TENTH CIRCUIT
JEFFREY J. SPERRY,
Plaintiff-Appellant,
No. 10-3145
v. (D.C. No. 5:04-CV-03125-CM)
(D. Kan.)
ROGER WERHOLTZ,
Defendant-Appellee.
ORDER AND JUDGMENT *
Before LUCERO, EBEL, and O’BRIEN, Circuit Judges.
Plaintiff Jeffrey J. Sperry, an inmate in the custody of the Kansas
Department of Corrections (KDOC), brought this pro se action under 42 U.S.C.
§ 1983 against defendant Roger Werholtz, Secretary of KDOC. Mr. Sperry
alleges that, in 2004, defendant Werholtz violated his First Amendment rights by:
(1) amending Kansas Administrative Regulation § 44-12-313 to prohibit the
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument. This order and judgment is
not binding precedent, except under the doctrines of law of the case, res judicata,
and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
possession of sexually explicit materials by inmates in state correctional facilities;
and (2) subsequently forcing Mr. Sperry to dispose of 10-12 adult magazines and
an engraved cup in order to comply with the amended regulation. 1 The district
court granted summary judgment in favor of defendant Werholtz on Mr. Sperry’s
First Amendment claim, concluding that defendant Werholtz’s affidavit testimony
complied with the requirements of Fed. R. Civ. P. 56(e)(1) 2 and established that
the amended regulation was reasonably related to legitimate penological interests.
Exercising jurisdiction under 28 U.S.C. § 1291, we affirm the entry of summary
judgment in favor of defendant Werholtz on Mr. Sperry’s facial constitutional
challenge to Kansas Administrative Regulation § 44-12-313.
1
In the district court proceedings, Mr. Sperry also asserted claims against
defendant Werholtz under the Fourth and Fourteenth Amendments. He has not
raised any issues pertaining to those claims in his opening brief, however, and the
claims are therefore “deemed abandoned or waived.” Coleman v. B-G Maint.
Mgmt. of Colo., Inc., 108 F.3d 1199, 1205 (10th Cir. 1997).
2
Fed. R. Civ. P. 56 was amended effective December 1, 2010. As part of the
amendments, Rule 56(e)(1) was renumbered as Rule 56(c)(4) and the language of
the rule was slightly modified, but no pertinent substantive changes were made to
the rule. In accordance with our precedent, we will apply the version of the rule
in effect at the time of the district court’s decision. See United States v. 51
Pieces of Real Property, 17 F.3d 1306, 1310 n.6 (10th Cir. 1994) (applying
procedural rule in effect at time of relevant event in district court rather than
amended version); In re Cooper Tire & Rubber Co., 568 F.3d 1180, 1186 n.4
(10th Cir. 2009) (same).
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I. Background
Defendant Werholtz has served as Secretary of the KDOC since January
2003. See R., Doc. 126, Ex. 1 at 1, ¶ 1. In his capacity as Secretary, defendant
Werholtz is the chief executive officer of the KDOC. See Kan. Stat. Ann.
§ 75-5203(a). His official duties include, among other things, enacting and
enforcing administrative regulations applicable to inmates committed to his
custody. See R., Doc. 126, Ex. 1 at 1, ¶ 2. Prior to his appointment as Secretary,
defendant Werholtz “served in a variety of positions in the KDOC, including
senior administrative posts such as Deputy Secretary for the Divisions of
Community and Field Services, Programs and Staff Development, and Facilities
Management, with a total service record of more than 27 years.” Id. at 1, ¶ 1.
During his tenure as Secretary, defendant Werholtz “promulgated a
temporary amendment of K.A.R. 44-12-313 – ‘Sexually explicit materials’
(formerly entitled ‘Obscenity’), effective March 19, 2004, followed by a
permanent amendment, effective July 2, 2004.” Id. at 1, ¶ 3. The amended
regulation provided as follows:
(a) No inmate shall have in possession or under control any
sexually explicit materials, including drawings, paintings, writing,
pictures, items, and devices.
(b) The material shall be considered sexually explicit if the
purpose of the material is sexual arousal or gratification and the
material meets either of the following conditions:
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(1) Contains nudity, which shall be defined as the depiction or
display of any state of undress in which the human genitals, pubic
region, buttock, or female breast at a point below the top of the
aerola is less than completely and opaquely covered; or
(2) contains any display, actual or simulated, or description of
any of the following:
(A) Sexual intercourse or sodomy, including genital-genital,
oral-genital, anal-genital, and anal-oral contact, whether between
persons of the same or differing gender;
(B) masturbation;
(C) bestiality; or
(D) sadomasochistic abuse.
Kan. Admin. Regs. § 44-12-313(a) and (b) (2004).
In the affidavit that he submitted to the district court in support of his
motion for summary judgment, defendant Werholtz set forth the reasons for why
he promulgated the amended regulation. See R., Doc. 126, Ex. 1 at 2-3, ¶¶ 5-12.
As summarized by the district court, those reasons were as follows:
Defendant decided to prohibit sexually explicit publications
and items from correctional facilities to help with institutional
security, facilitate rehabilitation of sex offenders, and prevent sexual
harassment. Through his affidavit, defendant testified that he made
the decision for the following reasons: Sexually explicit materials are
a general impediment to the preservation of security at KDOC
facilities. They can reasonably be expected to lead to the open
performance of lewd acts, which disrupts overall security and order.
The possession of sexually explicit materials can openly identify an
inmate as homosexual and create an immediate security concern, as
such inmates are often targeted for exploitation or violent attack.
Sexually explicit materials disrupt and interfere with the treatment
and management of sex offenders. The blanket ban prevents sex
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offenders from having access to such materials directly or by illicit
dealing and trading of sexually explicit materials with non-sex
offenders. The materials may also be used to sexually harass staff
members. There was a potential for staff to file sexual harassment
complaints due to exposure to the materials in the workplace
environment. Prior to the amendments to Kan. Admin. Regs.
§ 44-12-313, KDOC had received complaints from prison staff about
being required to view these materials while performing their duties.
Inmates had also made comments referencing comparisons between
prison staff and individuals in the publications or other materials.
....
Defendant also testified that prior to the amendments to Kan.
Admin. Regs. § 44-12-313, KDOC staff spent excessive amounts of
time: (1) reviewing publications to determine what was allowable
and what was not; (2) processing and deciding appeals from the
initial decision; and (3) processing notifications and other
information related to ordering, receiving, or failing to receive such
materials. Defendant further testified that (1) there was not an easier
alternative in dealing with sexually explicit materials; (2) redacting
the prohibited material was not a workable alternative because
KDOC receives mail for thousands of inmates; and (3) it would be
costly and cumbersome for staff members to redact the sexually
explicit material from each publication.
R., Doc. 134 at 9-10.
On March 22, 2004, KDOC inmates were provided notice of the
amendment to Kansas Administrative. Regulation § 44-12-313, and they were
informed that they had until May 1, 2004, to dispose of all property containing
sexually explicit material. See R., Doc. 126, Ex. 1 at 4, ¶ 13. The inmates were
permitted to either mail such property to a person of their choosing or they could
destroy the property. Id. On April 29, 2005, in order to comply with the
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amended regulation, Mr. Sperry mailed “a box of adult magazines and an
engraved cup” to the district court “to be entered into evidence.” Id., Doc. 6.
II. Analysis
A. Motion to Strike Defendant Werholtz’s Affidavit.
After defendant Werholtz filed his motion for summary judgment and his
supporting affidavit, Mr. Sperry filed a motion to strike the affidavit on the
ground that it did not comply with the requirements of Fed. R. Civ. P. 56(e)(1).
After thoroughly reviewing all of the material statements in defendant Werholtz’s
affidavit, the district court found that the affidavit complied with Rule 56(e)(1),
and the court therefore denied the motion to strike. See R., Doc. 134 at 1-7. On
appeal, Mr. Sperry argues that the district court erred in failing to strike defendant
Werholtz’s affidavit because: “(1) [it] contained nothing but conclusory
allegations that were not supported by any facts or evidence; (2) [it] contained
conclusory allegations on expert matters for which defendant was not qualified to
make; [and] (3) [it] contained falsehoods that were conclusory and self serving in
order to make a sham fact issue.” Aplt. Opening Br. at 3.
In the context of a motion for summary judgment, we review a district
court’s rulings on the admissibility of statements in an affidavit for an abuse of
discretion. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1122 (10th Cir. 2005).
“Under this standard, a trial court’s decision will not be reversed unless the
appellate court has a definite and firm conviction that the lower court made a
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clear error of judgment or exceeded the bounds of permissible choice in the
circumstances.” Id. (quotation omitted).
“Fed. R. Civ. P. 56(e) . . . governs the admissibility of affidavits at the
summary judgment stage[.]” Id. The rule provides that an affidavit submitted in
support of or in opposition to a motion for summary judgment “must be made on
personal knowledge, set out facts that would be admissible in evidence, and show
that the affiant is competent to testify on the matters stated.” Fed. R. Civ. P.
56(e)(1). With regard to the second requirement, we must determine whether the
district court abused its discretion in determining that the material statements in
defendant Werholtz’s affidavit are admissible under the Federal Rules of
Evidence, and two specific rules govern that inquiry. First, Fed. R. Evid. 602
provides that “[a] witness may not testify to a matter unless evidence is
introduced sufficient to support a finding that the witness has personal knowledge
of the matter.” Second, Fed. R. Evid. 701 governs opinion testimony by lay
witnesses such as defendant Werholtz, and the rule provides as follows:
If the witness is not testifying as an expert, the witness’ testimony in
the form of opinions or inferences is limited to those opinions or
inferences which are (a) rationally based on the perception of the
witness, (b) helpful to a clear understanding of the witness’
testimony or the determination of a fact in issue, and (c) not based on
scientific, technical, or other specialized knowledge within the scope
of [Fed. R. Evid.] 702.
Fed. R. Evid. 701.
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As noted by the district court, defendant Werholtz’s affidavit “relies on his
years of experience with KDOC.” R., Doc. 134 at 2. In refusing to strike
defendant Werholtz’s affidavit, the district court also relied on “[t]he
qualifications, responsibilities, and duties of the Secretary of KDOC [as] set forth
in the Kansas statutes.” Id. As the district court explained:
[The Secretary’s] responsibilities include providing general
supervision and management of the correctional institutions within
Kansas. Kan. Stat. Ann. § 75-5205. He has the power, and duty, to:
(1) examine and inquire into all matters connected with the
government and discipline of the correctional institutions; (2) require
reports from the warden or other officers of any Kansas correctional
institution in relation to any or all correctional matters; and (3) have
free access to the correctional institutions at all times, and all the
books, papers, accounts and writings pertaining to the correctional
institutions, or to the business, government, discipline or
management of the correctional institutions. Kan. Stat. Ann.
§ 75-5251.
Id. at 3.
Given defendant Werholtz’s extensive experience and responsibilities as a
senior administrator in the KDOC, we conclude that the district court did not
abuse its discretion in “find[ing] that the following statements were made with
personal knowledge, that the statements [were] admissible facts, and that
defendant [was] competent to testify as to them.” Id.
1. Sexually explicit materials, in any form, tend to disrupt the overall
security of a correctional facility.
Mr. Sperry argues that “[t]his assertion is strictly conclusory and
unsupported by any evidence whatsoever, not even by an explanation as to how it
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is a security threat. Moreover, KDOC has permitted sexually explicit material for
decades without incident[.]” Aplt. Opening Br. at 3. We reject Mr. Sperry’s
challenge to this statement and adopt the following reasoning of the district court:
Plaintiff argues this statement has to be false because sexually
explicit materials were permitted in KDOC facilities for decades
“without any security issues whatsoever.” Plaintiff’s only support
for his allegation is that he has never heard of any incident in which
sexually explicit material created a security threat. Plaintiff is an
inmate within a KDOC facility. Nothing in the record suggests that
he would be knowledgeable about the security threats throughout the
entire KDOC. Defendant, on the other hand, has personal knowledge
of the potential security issues pertaining to each of the correctional
facilities within KDOC. He has served the KDOC for more than 27
years in a variety of positions. As Secretary, he has access to
information regarding security threats throughout KDOC. Plaintiff’s
limited experience at KDOC does not establish that defendant is
making false statements about the effects sexually explicit materials
have on the security of correctional facilities. The court finds that
defendant’s statement complies with Rule 56(e).
R., Doc. 134 at 3-4.
2. Prior to the amendment to the regulation in question, there had been
complaints from KDOC staff about having to review sexually explicit
materials while performing their duties.
Mr. Sperry argues that “[n]ot only is this assertion completely conclusory
as it does not say who made the complaint[s], defendant specifically stated [in a
discovery response] that no such complaints exist.” Aplt. Opening Br. at 3. As
noted by the district court, however, “[d]efendant’s statement in his affidavit says
that there had been complaints, not that the complaints were written or
memorialized in writing. Defendant’s discovery response merely indicated that
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he did not possess any documents regarding the complaints; it did not say that he
never received any complaints.” R., Doc. 134 at 4. Consequently, we agree with
the district court that “[t]he record supports that defendant has personal
knowledge of these types of complaints. His experience with the KDOC would
have exposed him to such complaints and nothing in the record suggests that this
statement is false.” Id.
3. There is a potential for KDOC to suffer lawsuits from KDOC
employees due to exposure to sexually explicit materials.
Mr. Sperry claims that this statement is an impermissible legal opinion
because defendant Werholtz is not a legal expert. We agree with the district
court, however, that this statement is admissible opinion testimony by a lay
witness under Fed. R. Evid. 701. As the district court explained:
As Secretary of KDOC, defendant is responsible for the general
supervision and management of the correctional institutions. It is
within his job duties to be aware of situations that would expose
KDOC to lawsuits. In his affidavit, defendant testified that KDOC
employees had complained about being exposed to sexually explicit
materials. He is not opining on the merits of such lawsuits, he
merely states that the sexually explicit material exposes KDOC to
lawsuits. His statement regarding potential lawsuits is within his
realm of personal knowledge.
R., Doc. 134 at 4-5.
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4. Homosexual inmates are identified by receiving homosexual
publications which subjects them to exploitation and attack by other
inmates.
Mr. Sperry challenges this statement based on his assertion that
“homosexual inmates receive openly homosexual publications that are not
sexually explicit regularly without being harmed or exploited.” Aplt. Opening Br.
at 3A. But as the district court found, Mr. Sperry’s “complaint goes to the
weight, not the truth, of defendant’s statement. Defendant’s statement is not
negated by the fact inmates receive other homosexual publications.” R., Doc. 134
at 5.
5. Another concern addressed by the amended regulation is the
potential for sexually explicit materials to promote paraphilias and
sexual deviance. Best practices in current corrections management
of sex offenders includes addressing, managing, and treating
paraphilias manifested by sex offenders. The prohibition in question
directly serves that purpose.
Mr. Sperry argues that defendant Werholtz should be prohibited from
giving expert testimony regarding the treatment of sex offenders and whether
sexually explicit materials promote paraphilias and sexual deviance because he
“is not a mental health expert who would be permitted to testify to the impact of
sexually explicit material on the human mind.” Aplt. Opening Br. at 3A. As the
district court explained, however, defendant Werholtz’s “statement is not an
expert opinion, it merely says that the amendment addresses the potential for such
material to promote paraphilias and sexual deviance.” R. Doc. 134 at 7. Thus,
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we agree with the district court that “[b]ased on defendant’s years of experience
in corrections administration and dealing with sex offenders, . . . the statement is
admissible under [Fed. R. Evid. 701].” Id.
6. The regulation in question reduced the amount of resources KDOC
has to spend reviewing and censoring publications, and appeal
procedure from such censorship.
Mr. Sperry claims that this statement is false because “during discovery,
[he] received documentation revealing all of the publication censorships since
1995. It was revealed that for [the] 9 years prior to the 2004 amendment, KDOC
only censored 108 publications, whereas, in the five years after the amendment,
they censored 1,087 publications[.]” Aplt. Opening Br. at 3A. We agree with the
district court, however, that “[t]his alone does not make defendant’s statement
false.” R., Doc. 134 at 5. As the district court explained:
Defendant’s statement is based on his many years of experience in
corrections administration. He has personal knowledge of the
amount of resources KDOC spent reviewing publications, processing
and deciding appeals, processing notifications and other information,
and managing sex offenders who received such materials by illicit
dealing and trading with non-sex offenders, as opposed to the amount
of resources KDOC now spends after the amendments.
. . . [D]efendant’s statement is reliable and properly submitted in
support of defendant’s motion for summary judgment.
Id.-12-
7. No alternative remedy could have been implemented.
Mr. Sperry claims that this statement is false because “during discovery
defendant was asked what other options were considered before the decision to
out-right censor, in derogation of the First Amendment, was decided upon, and he
cited no other options that were considered.” Aplt. Opening Br. at 3B. But as
noted by the district court, “defendant objected to [Mr. Sperry’s] interrogatory ‘as
argumentative, assuming facts not in evidence, and assuming the truth of facts
that are in dispute in this matter,’” R., Doc. 134 at 6, and “[d]efendant did not
indicate whether he had considered alternative remedies,” id. As a result, we
agree with the district court that “[d]efendant’s discovery response [did] not
contradict [his] statement or support plaintiff’s assertion that [the] statement
[was] false.” 3 Id.3
We also reject Mr. Sperry’s claim that defendant Werholtz submitted his
affidavit to the district court in an attempt to create a “sham” fact issue. Simply
put, the statements in defendant Werholtz’s affidavit did not contradict any prior
testimony that he gave in the district court proceedings because there was no prior
testimony to contradict. See Franks v. Nimmo, 796 F.2d 1230, 1237 (10th Cir.
1986) (noting that a “sham” fact issue may exist if a party submits a summary
judgment affidavit contradicting his own prior testimony in the case). In addition,
as the district court found, defendant Werholtz’s “affidavit [did] not contradict his
statements made or the information provided during discovery.” R., Doc. 134
at 7.
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In sum, we hold that the district court did not abuse its discretion in finding
that defendant Werholtz’s affidavit complied with the requirements of Fed. R.
Civ. P. 56(e)(1). 4
B. Motion for Summary Judgment.
1. Standard of Review.
“We review the grant of summary judgment de novo, applying the same
standard as the district court pursuant to Rule 56(c) of the Federal Rules of Civil
Procedure.” Gwinn v. Awmiller, 354 F.3d 1211, 1215 (10th Cir. 2004). Under
Rule 56(c)(2), summary judgment is appropriate “if the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine
issue as to any material fact and that the movant is entitled to judgment as a
4
Although we have concluded that the district court did not abuse its
discretion in refusing to strike defendant Werholtz’s affidavit, we agree with Mr.
Sperry that paragraphs 5, 6, and 7 of the affidavit are very conclusory in terms of
showing a rational connection between the ban on sexually explicit materials and
the asserted penological interests of prison security, prevention of sexual
harassment, and treatment of sex offenders. See R., Doc. 126, Ex. 1 at 2-3. As
explained below, however, “the only question that we must answer is whether
[defendant Werholtz’s] judgment was ‘rational,’ that is, whether [he] might
reasonably have thought that the [ban] would advance [the asserted penological]
interests.” Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir. 1999). As we have
noted, this requires only a “minimal showing,” Boles v. Neet, 486 F.3d 1177,
1181 (10th Cir. 2007), and defendant Werholtz has made such a showing here.
Nonetheless, because of the important constitutional rights at issue in cases such
as this one, we urge prison officials to be more thorough and specific in future
cases.
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matter of law.” Fed. R. Civ. P. 56(c)(2). 5 “In applying this standard, we view the
evidence and draw reasonable inferences therefrom in the light most favorable to
the nonmoving party.” Burke v. Utah Transit Auth. & Local 382, 462 F.3d 1253,
1258 (10th Cir. 2006) (quotation omitted). “In addition, we must construe a pro
se appellant’s complaint liberally.” Kay v. Bemis, 500 F.3d 1214, 1218 (10th Cir.
2007) (quotation omitted).
2. Analysis Under Turner v. Safley.
“Inmates have a First Amendment right to receive information while in
prison to the extent the right is not inconsistent with prisoner status or the
legitimate penological objectives of the prison.” Jacklovich v. Simmons, 392 F.3d
420, 426 (10th Cir. 2004). Thus, “when a prison regulation impinges on inmates’
[First Amendment rights], the regulation is valid if it is reasonably related to
legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). In
making the latter determination, a district court must analyze the challenged
regulation under the four-part test established by the Supreme Court in Turner.
As accurately summarized by the district court, this requires an examination of
the following factors: “(1) whether a valid and rational connection exists between
5
As set forth above, Fed. R. Civ. P. 56 was amended effective December 1,
2010. As part of the amendments, the former Rule 56(c)(3) was eliminated and
replaced by the language that is now contained in Rule 56(a) and (c)(1)(A). In
accordance with our precedent, we will apply the version of the rule in effect at
the time of the district court’s decision. See 51 Pieces of Real Property, 17 F.3d
at 1310 n.6; In re Cooper Tire & Rubber Co., 568 F.3d at 1186 n.4.
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the regulation and the asserted legitimate governmental interest; (2) whether
alternative means of exercising the constitutional right remain available to
inmates; (3) any effect accommodating the right would have on guards, inmates,
and the allocation of prison resources; and (4) the absence of ready alternatives.”
R., Doc. 134 at 11 (citing Turner, 482 U.S. at 89-90); accord Jacklovich,
392 F.3d at 426; Jones v. Salt Lake County, 503 F.3d 1147, 1153-54 (10th Cir.
2007). “The burden, moreover, is not on the State to prove the validity of prison
regulations but on the prisoner to disprove it.” Overton v. Bazzetta, 539 U.S. 126,
132 (2003).
As the district court explained, “[t]he first Turner factor is multifold. The
court must determine whether the governmental objective underlying the
regulation is legitimate and neutral and whether the regulation is rationally related
to that objective.” R., Doc. 134 at 11 (citing Thornburgh v. Abbott, 490 U.S. 401,
414 (1989)). “To show a rational relationship between a regulation and a
legitimate penological interest, prison officials need not prove that the banned
materials actually caused problems in the past, or that the materials are ‘likely’ to
cause problems in the future.” Mauro v. Arpaio, 188 F.3d 1054, 1060 (9th Cir.
1999) (citing Thornburgh, 490 U.S. at 417 and Casey v. Lewis, 4 F.3d 1516, 1521
(9th Cir. 1993)). In other words, empirical evidence is not necessarily required.
Moreover, it “does not matter whether we agree with” the defendants
or whether the policy “in fact advances” the jail’s legitimate
interests. See Amatel [v. Reno, 156 F.3d 192, 199 (D.C. Cir. 1998)].
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The only question that we 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.Id.
We agree with the district court that the governmental objectives
underlying Kansas Administrative Regulation § 44-12-313 are legitimate and
neutral and that the regulation is rationally related to those objections. As the
district court carefully and thoroughly explained:
Defendant implemented the regulation for three reasons: (1) to
protect institutional security; (2) to facilitate rehabilitation of sex
offenders; (3) and to prevent sexual harassment. These rationales
serve legitimate penological interests. [Thornburgh, 490 U.S.] at 415
(finding regulations expressly aimed at protecting prison security
serve a purpose that is central to all other corrections goals); Pell v.
Procunier, 417 U.S. 817, 823 (1974) (“[A]nother paramount
objective of the corrections system is the rehabilitation of those
committed to its custody”); Mauro v. Arpaio, 188 F.3d 1054, 1059
(9th Cir. 1999) (“[T]here is no doubt that protecting the safety of
guards in general is a legitimate interest, and that reducing sexual
harassment in particular likewise is legitimate.”).
Defendant’s affidavit justifies the need for the regulation in
relation to the governmental objectives. Sexually explicit materials
can lead to the open performance of lewd acts, disrupting overall
security and order. Possession of such materials also creates a
security concern by identifying homosexual inmates, who are often
targeted for exploitation or violent attack. Defendant also explained
that sexually explicit materials interfere with the treatment and
management of sex offenders. A blanket ban prevents non-sex
offenders from trading or dealing the sexually explicit materials with
sex offenders. Finally, the materials create a potential for sexual
harassment complaints. Before the ban on sexually explicit material,
prison staff complained about being required to view these materials
while performing their duties, and inmates had made comments
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comparing prison staff to the individuals in the materials. These are
valid concerns that make the governmental objective underlying the
regulation legitimate.
The regulation is neutral; it bans sexually explicit material due
to its impact on prison security, regardless of gender or sexual
orientation. See Thornburgh, 490 U.S. at 415-16 (“Where, as here,
prison administrators draw distinctions between publications solely
on the basis of their potential implications for prison security, the
regulations are ‘neutral’ in the technical sense in which we meant
and used that term in Turner.”). Further, there is a rational
connection between the regulation and the governmental objectives.
The regulation banning sexually explicit material directly addresses
each of the objectives set out by defendant. See, e.g., Jones v. Salt
Lake County, 503 F.3d 1147, 1155-56 (10th Cir. 2007) (“The jail’s
ban on inmate access to ‘sexually explicit material’ and ‘technical
publications' is expressly aimed at advancing jail security and the
ban on ‘sexually explicit material’ also protects the safety of jail
personnel and other inmates.”); Mauro, 188 F.3d at 1054 (noting the
relationship between the jail’s policy of prohibiting sexually explicit
materials and the goals of preventing sexual harassment, inmate
rehabilitation, and jail security is not so “remote as to render the
policy arbitrary or irrational.”).
R., Doc. 134 at 11-13.
We also agree with the district court’s analysis of the remaining Turner
factors. As the district court succinctly explained:
The second Turner factor–whether there is an alternative
means of exercising the constitutional right–is satisfied where the
regulation permits a broad range of publications to be sent, received,
and read. See Thornburgh, 490 U.S. at 418. In this case, inmates
may continue to subscribe to periodicals, as long as the incoming
publication does not contain prohibited content, as well as access
publications in the general prison library. The second factor is
satisfied.
The third factor to be addressed under the Turner analysis is
the impact that accommodation of the asserted constitutional right
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will have on guards, inmates, and the allocation of prison resources.
Turner, 482 U.S. at 90. As discussed above, the sexually explicit
materials banned by the regulation can lead to the disruption of the
overall security and order of the prison, lead to staff complaints, and
thwart sex offender rehabilitation. According to defendant, if this
regulation were to be removed, the staff would expend additional
time and resources monitoring inmates to prevent the potential
outcomes listed above. As he testified in his affidavit, sexually
explicit materials lead to lewd acts and create the potential for
violent attacks on homosexual inmates. He also testified that it is
extremely difficult to keep sexually explicit materials away from sex
offenders because having them in the prison creates a market for the
contraband. And he explained the potential for sexual harassment
complaints. Accommodating the exercise of plaintiff’s right to
possess sexually explicit material would have a negative effect on
other prisoners, staff, and prison resources, thus the third Turner
factor is also satisfied.
The final Turner factor requires the court to consider whether
ready alternatives exist. “This is not a ‘least restrictive alternative’
test: prison officials do not have to set up and then shoot down every
conceivable alternative method of accommodating the claimant’s
constitutional complaint.” Id. at 90-91. Instead, if plaintiff can point
to an alternative that fully accommodates his rights at de minimis
cost to valid penological interests, the court may consider that as
evidence that the regulation does not satisfy the reasonable
relationship standard. Id. at 91. Here, plaintiff suggests as an
alternative that KDOC house sex-offender inmates in a single
cellhouse where it can assure that sex offenders do not have access to
the material. Plaintiff asserts that this would be less costly than
enforcing the regulation, but he does not support this allegation with
any factual support. Furthermore, plaintiff’s alternative remedy does
not address the regulation’s other governmental objectives-
institutional security and sexual harassment. Plaintiff has not raised
an issue of fact that an obvious, easy alternative exists that would
accommodate his rights at de minimis cost to valid penological
interests.
Id. at 13-14.
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The judgment of the district court is AFFIRMED. Although the district
court granted Mr. Sperry’s motion for leave to proceed on appeal without
prepayment of the appellate filing fee, we remind Mr. Sperry of his obligation to
continue making partial payments until his entire appellate filing fee has been
paid in full.
Entered for the Court
David M. Ebel
Circuit Judge
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