Kevin Singer v. Richard Raemisch ( 2010 )

In the
United States Court of Appeals
For the Seventh Circuit
No. 07-3400
K EVIN T. S INGER,
Plaintiff-Appellant,
v.
R ICHARD R AEMISCH,ΠP HILLIP K INGSTON,
B RUCE C. M URASKI, and M ARC J. M ASSIE,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 05-C-1040—J.P. Stadtmueller, Judge.
A RGUED S EPTEMBER 18, 2009—D ECIDED JANUARY 25, 2010
Before E ASTERBROOK, Chief Judge, and W ILLIAMS and
T INDER, Circuit Judges.
T INDER, Circuit Judge. After concluding that the popular
role-playing game Dungeons and Dragons (“D&D”)
Œ
Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
Richard Raemisch, the current Secretary of the Wisconsin
Department of Corrections, is automatically substituted for
former Secretary Matthew J. Frank.
2 No. 07-3400
represented a threat to prison security, officials at Wis-
consin’s Waupun Correctional Institution took action
to eradicate D&D within the prison’s walls. Inmate
Kevin T. Singer found himself on the front lines of
Waupun’s war on D&D when prison officials confiscated
a large quantity of D&D-related publications from his
cell. Singer sought relief from the prison’s new regula-
tions—and the return of his D&D materials—through the
prison’s complaint system, a pursuit which ultimately
proved fruitless. Singer then brought this action against a
variety of prison officials pursuant to 42 U.S.C. § 1983. He
alleged that Waupun’s confiscation of his D&D materials
and imposition of a ban on D&D play violated his First
Amendment right to free speech and his Fourteenth
Amendment rights to due process and equal protection.
The prison officials moved for summary judgment on all
of Singer’s claims, and the district court granted their
motion in full. Singer appeals the grant of summary
judgment with respect to his First Amendment claims,
and we affirm.
I. Background
Kevin T. Singer is an inmate at Wisconsin’s Waupun
Correctional Institution. He is also a devoted player of
D&D, a fantasy role-playing game in which players
collectively develop a story around characters whose
personae they adopt. Singer has been a D&D enthusiast
since childhood and over time has acquired numerous
D&D-related publications. His enthusiasm for D&D is such
that he has handwritten a ninety-six page manuscript
No. 07-3400 3
outlining the specific details of a “campaign setting” he
developed for use in D&D gameplay.1
Singer’s devotion to D&D was unwavering during his
incarceration at Waupun. He frequently ordered D&D
publications and game materials by mail and had them
delivered to his cell. Singer was able to order and possess
his D&D materials without incident from June 2002 until
November 2004. This all changed on or about November
14, 2004, when Waupun’s long-serving Disruptive Group
Coordinator, Captain Bruce Muraski, received an anony-
mous letter from an inmate. The letter expressed concern
that Singer and three other inmates were forming a D&D
gang and were trying to recruit others to join by passing
around their D&D publications and touting the “rush” they
got from playing the game. Muraski, Waupun’s expert on
gang activity, decided to heed the letter’s advice and
“check into this gang before it gets out of hand.”
On November 15, 2004, Muraski ordered Waupun staff
to search the cells of the inmates named in the letter. The
search of Singer’s cell turned up twenty-one books, four-
teen magazines, and Singer’s handwritten D&D manu-
1
A typical D&D game is made up of an “adventure,” or single
story that players develop as a group. A related series of games
and adventures becomes a “campaign.” The fictional locations
in which the adventures and campaigns take place—ranging
in size and complexity from cities to entire universes—are called
“campaign settings.” For more information about D&D
and D&D gameplay, see Wizards of the Coast, What is
D&D?, http://www.wizards.com/default.asp?x=dnd/whatisdnd
(last visited Jan. 20, 2010).
4 No. 07-3400
script, all of which were confiscated. Muraski examined
the confiscated materials and determined that they were
all D&D related. In a December 6, 2004 letter to Singer,
Muraski informed Singer that “inmates are not allowed to
engage in or possess written material that details rules,
codes, dogma of games/activities such as ‘Dungeons and
Dragons’ because it promotes fantasy role playing, compet-
itive hostility, violence, addictive escape behaviors, and
possible gambling.” This prohibition was later reiterated
in a daily bulletin that was posted throughout the
prison. It was also incorporated into a broader policy
prohibiting inmates from engaging in all types of fantasy
games.
On December 14, 2004, Singer and the three other
inmates fingered in the anonymous letter to Muraski filed
a complaint under Waupun’s Inmate Complaint Review
System. The complaint concerned the seizure of D&D
materials from the inmates’ cells. Waupun’s inmate
complaint examiner investigated the complaint and on
December 23, 2004, issued a report recommending its
dismissal. The complaint was dismissed shortly thereafter.
After the prison dismissed the internal complaint he had
spearheaded, Singer lodged a pro se civil rights complaint
in federal court pursuant to 42 U.S.C. § 1983. (He was
eventually provided with counsel pursuant to 28 U.S.C.
§ 1915(e)(1).) He alleged that his free speech and due
process rights were violated when Waupun officials
confiscated his D&D materials and enacted a categorical
ban against D&D. Singer named Muraski, several other
Waupun officials, and the Secretary of the Wisconsin
No. 07-3400 5
Department of Corrections as defendants (collectively
“prison officials”). Singer sought a panoply of relief from
the court, including a declaratory judgment that his
constitutional rights were violated and an injunction
ordering the prison officials to return his confiscated
publications.
Singer collected fifteen affidavits—from other inmates,
his brother, and three role-playing game experts. He
contends that the affidavits demonstrate that there is no
connection between D&D and gang activity. Several of
Singer’s affiants indeed asserted the opposite: that
D&D helps rehabilitate inmates and prevents them
from joining gangs and engaging in other undesirable
activities. The prison officials countered Singer’s affidavit
evidence by submitting an affidavit from Captain Bruce
Muraski, who has spent nearly twenty years as Waupun’s
Disruptive Group Coordinator and Security Supervisor
and belongs to both the Midwest Gang Investigators
Association and the Great Lakes International Gang
Investigators Coalition. Muraski also has extensive
training in illicit groups ranging from nationwide street
and prison gangs to small occult groups and has been
certified as a gang specialist by the National Gang Crime
Research Center. Muraski testified that it is his responsi-
bility to “prevent the grouping of inmates into new gangs
or other groups that are not organized to promote educa-
tional, social, cultural, religious, recreational, or other
lawful leisure activities.” He further testified that fantasy
role-playing games like D&D have “been found to
promote competitive hostility, violence, and addictive
escape behavior, which can compromise not only the
6 No. 07-3400
inmate’s rehabilitation and effects of positive program-
ming, but endanger the public and jeopardize the safety
and security of the institution.”
The prison officials moved for summary judgment on
all of Singer’s claims. The district court granted the
motion in full, but Singer limits his appeal to the foreclo-
sure of his First Amendment claims. In its evaluation of
those claims, the district court applied the four-factor test
announced in Turner v. Safley, 482 U.S. 78 (1987). It con-
cluded that Singer failed to demonstrate that there was a
genuine issue of material fact as to whether the D&D
policy was reasonably related to Waupun’s legitimate
penological interests of maintaining safety and security
and curbing gang activity.
II. Discussion
We review a district court’s grant of summary judgment
de novo. E.g., Chaklos v. Stevens, 560 F.3d 705, 710 (7th Cir.
2009). In doing so, we construe all facts and reasonable
inferences in favor of the nonmoving party. Samuelson v.
LaPorte Cmty. Sch. Corp., 526 F.3d 1046, 1051 (7th Cir. 2008).
However, our favor toward the nonmoving party does not
extend to drawing “[i]nferences that are supported by only
speculation or conjecture.” See Fischer v. Avanade, Inc., 519
F.3d 393, 401 (7th Cir. 2008) (quoting McDonald v. Vill. of
Winnetka, 371 F.3d 992, 1001 (7th Cir. 2004)). Thus, to
succeed on appeal, Singer “must do more than raise
some metaphysical doubt as to the material facts; [he] must
come forward with specific facts showing that there is a
No. 07-3400 7
genuine issue for trial.” Keri v. Bd. of Trs. of Purdue Univ.,
458 F.3d 620, 628 (7th Cir. 2006) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).
Singer argues that his First Amendment claim should
have survived summary judgment for what he character-
izes as two independent reasons. First, he contends that
his fifteen affidavits undermined the prison officials’
assertion that D&D promotes gang-related activity, thereby
raising a critical fact issue rendering summary judgment
inappropriate. Second, he argues that the prison officials
are not entitled to summary judgment because the D&D
ban does not satisfy the standard set out in Turner, 482
U.S. at 89, which requires prison regulations that
impinge on inmates’ constitutional rights to be “reason-
ably related” to the prison’s penological interests. We
will examine both of Singer’s arguments, but we will do
so in a single discussion of Turner because his first argu-
ment speaks directly to one Turner factor and his
second comprises his challenges to the remaining three.
A good place to start is with a review of the test that lies
at the heart of the district court’s ruling. In Turner, the
Supreme Court determined that prison regulations that
restrict inmates’ constitutional rights are nevertheless
valid if they are reasonably related to legitimate peno-
logical interests. Id. It then enumerated four factors
courts should consider when assessing the reason-
ableness of restrictive prison regulations:
(1) whether there is a rational relationship between
the regulation and the legitimate government
interest advanced;
8 No. 07-3400
(2) whether the inmates have alternative means of
exercising the restricted right;
(3) whether and the extent to which accommoda-
tion of the asserted right will impact prison staff,
inmates’ liberty, and the allocation of limited
prison resources; and
(4) whether the contested regulation is an “exag-
gerated response” to prison concerns and if there
is a “ready alternative” that would accommodate
inmates’ rights.
See id. at 89-91. The four factors are all important, but
the first one can act as a threshold factor regardless
which way it cuts. See id. at 89-90 (“[A] regulation cannot
be sustained where the logical connection between the
regulation and the asserted goal is so remote as to render
the policy arbitrary or irrational.”); Mays v. Springborn, 575
F.3d 643, 648 (7th Cir. 2009) (“Where . . . there is only
minimal evidence suggesting that a prison’s regulation is
irrational, running through each factor at length is unnec-
essary.”). Inmates like Singer who challenge the reason-
ableness of a prison regulation bear the burden of proving
its invalidity. Overton v. Bazzetta, 539 U.S. 126, 132 (2003);
Jackson v. Frank, 509 F.3d 389, 391 (7th Cir. 2007). The
burden is a weighty one: “We must accord substantial
deference to the professional judgment of prison adminis-
trators, who bear a significant responsibility for defining
the legitimate goals of a corrections system and for deter-
mining the most appropriate means to accomplish them.”
Overton, 539 U.S. at 132.
No. 07-3400 9
Singer’s burden is not significantly lightened by the
procedural strictures of summary judgment, which require
us to draw “all justifiable inferences” in his favor, Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986), because we
must distinguish between inferences relating to disputed
facts and those relating to disputed matters of professional
judgment, Beard v. Banks, 548 U.S. 521, 530 (2006). Our
inferences as to disputed matters of professional judg-
ment are governed by Overton, which mandates deference
to the views of prison authorities. See id. (citing Overton,
539 U.S. at 132). “Unless [Singer] can point to sufficient
evidence regarding such issues of judgment to allow him
to prevail on the merits, he cannot prevail at the sum-
mary judgment stage.” Id.With these standards in mind, we turn now to Singer’s
claims. Singer first asserts that his collection of affidavit
testimony about the lack of a relationship between D&D
and gangs undermines Muraski’s testimony that the D&D
ban was implemented in part to quell concerns about
gang formation. He thus attacks the district court’s con-
clusion that the D&D ban bears a rational relationship to
a legitimate governmental interest, or that the first Turner
factor favors the prison officials.
The sole evidence the prison officials have submitted on
this point is the affidavit of Captain Muraski, the gang
specialist. Muraski testified that Waupun’s prohibition
on role-playing and fantasy games was intended to serve
two purposes. The first aim Muraski cited was the mainte-
nance of prison security. He explained that the policy
was intended to promote prison security because co-
10 No. 07-3400
operative games can mimic the organization of gangs
and lead to the actual development thereof. Muraski
elaborated that during D&D games, one player is denoted
the “Dungeon Master.” The Dungeon Master is tasked with
giving directions to other players, which Muraski
testified mimics the organization of a gang. At bottom, his
testimony about this policy aim highlighted Waupun’s
worries about cooperative activity among inmates, particu-
larly that carried out in an organized, hierarchical fash-
ion. Muraski’s second asserted governmental interest in the
D&D ban was inmate rehabilitation. He testified that D&D
can “foster an inmate’s obsession with escaping from the
real life, correctional environment, fostering hostility,
violence and escape behavior,” which in turn “can compro-
mise not only the inmate’s rehabilitation and effects of
positive programming but also endanger the public and
jeopardize the safety and security of the institution.”
It is beyond dispute that gangs are “incompatib[le] . . .
with any penological system” and that they serve to
undermine prison security. Westefer v. Snyder, 422 F.3d 570,
575 (7th Cir. 2005) (citing and quoting at length Wilkinson
v. Austin, 545 U.S. 209, 227 (2005)); see also Kaufman v.
McCaughtry, 419 F.3d 678, 683 (7th Cir. 2005) (“Prison
officials unquestionably have a legitimate interest in
maintaining institutional security. . . .”); Rios v. Lane, 812
F.2d 1032, 1037 (7th Cir. 1987) (“[I]t is difficult to
conceive of a single factor more detrimental to penological
objectives than organized gang activity.”). Likewise,
“[t]here is no question that the rehabilitation of inmates
is a legitimate interest of penal institutions,” Koutnik v.
Brown, 456 F.3d 777, 784 (7th Cir. 2006); see also Burr v.
No. 07-3400 11
Pollard, 546 F.3d 828, 832 (7th Cir. 2008) (noting that
rehabilitation is one of the “traditional penological inter-
ests”), cert. denied, 129 S. Ct. 1382 (2009); indeed, the
provision of a “just, humane and efficient program of
rehabilitation of offenders” is an express statutory goal in
Wisconsin, W IS. S TAT. § 301.001. We note that Wisconsin,
like all other states, is permitted to pursue its chosen
penological goals and objectives so long as its actions in
doing so remain within the bounds of the Constitution. See
Ewing v. California, 538 U.S. 11, 24-25 (2003) (“[O]ur tradi-
tion of deferring to state legislatures in making and
implementing such important [penological] policy deci-
sions is longstanding. Our traditional deference to legisla-
tive policy choices finds a corollary in the principle that
the Constitution does not mandate adoption of any one
penological theory.”(quotations and citations omitted));
Peterkin v. Jeffes, 855 F.3d 1021, 1032-33 (3d Cir. 1988)
(“[N]or is it our role to express our agreement or disagree-
ment with their overall policies or theories of prison
administration, as long as we find no constitutional
violation.”)
Singer does not dispute the legitimacy of the penological
interests Muraski identified. Nor does he question the
legitimacy of unspoken penological interests arguably
present here but not cited by Muraski, such as the prison’s
interest in “[h]olding offenders accountable for their
actions through sanctions . . . .” Wis. Dep’t of Corr.,
Mission Statement, http://www.wi-doc.com/vision.htm
(last visited Jan. 20, 2010). After all, punishment is a
fundamental aspect of imprisonment, and prisons may
choose to punish inmates by preventing them from partici-
12 No. 07-3400
pating in some of their favorite recreations. See Sandin v.
Conner, 515 U.S. 472, 485 (1995) (“[L]awful incarceration
brings about the necessary withdrawal or limitation of
many privileges and rights, a retraction justified by the
considerations underlying our penal system.”(quotation
omitted)). Instead, the genuine issue of material fact
that Singer purports to raise regards the existence of a
rational relationship between the indisputably legitimate
penological interests cited by Muraski and Waupun’s
policy banning D&D. Singer maintains that his fifteen
affiants delivered compelling testimony challenging
Muraski’s assertion that D&D could promote gang-related
activity. His eleven inmate affiants—who collectively
served over 100 years in prison—all testified that they
had never heard of any gang-related or other violent
activity associated with D&D gameplay or paraphernalia.
In Singer’s view, this testimony adequately rebuts
Muraski’s testimony that D&D gameplay mimics the
organization of a gang and as a consequence could lead
to gang behavior. In our view, it does not.
It is true that Singer procured an impressive trove of
affidavit testimony, including some from role-playing
game experts, but none of his affiants’ testimony
addressed the inquiry at issue here. The question is not
whether D&D has led to gang behavior in the past; the
prison officials concede that it has not. The question is
whether the prison officials are rational in their belief
that, if left unchecked, D&D could lead to gang behavior
among inmates and undermine prison security in the
future. Singer’s affiants demonstrate significant personal
knowledge about D&D’s rules and gameplay, and offer
No. 07-3400 13
their own assessments that D&D does not lead to gang
behavior, but they lack the qualifications necessary to
determine whether the relationship between the D&D
ban and the maintenance of prison security is “so
remote as to render the policy arbitrary or irrational.”
Turner, 482 U.S. at 89-90. In other words, none of them
is sufficiently versed in prison security concerns to raise
a genuine issue of material fact about their relationship
to D&D. (Of course, many of Singer’s affiants are
present or former inmates, but their experiential “exper-
tise” in prison security is from the wrong side of the bars
and fails to match Muraski’s perspective.) The expertise
critical here is that relating to prisons, their security, and
the prevention of prison gang activity. Singer’s affiants
conspicuously lack such expertise.
Once the prison officials provided the court with a
plausible explanation for the D&D policy, that the game’s
structure (especially its control by the Dungeon Master)
mimicked that of gangs, cf. United States v. Johnson, 584
F.3d 731, 734 (7th Cir. 2009) (citing testimony that a
“Prince” in the Black P-Stone Nation gang “established and
enforced rules”); United States v. White, 582 F.3d 787, 794
(7th Cir. 2009) (“The Black Disciples embraced a rigid
hierarchical leadership structure. A ‘king’ served as the
leader of the Black Disciples and was responsible for
developing gang policy and directing the gang’s drug-
trafficking operations.”), and could consequently
promote gang development and undermine prison secu-
rity, the burden shifted to Singer to present evidence to
call that explanation into question, see Jackson, 509 F.3d at
391. Even with the assistance of all justifiable inferences
14 No. 07-3400
in his favor, see Anderson, 477 U.S. at 255, Singer cannot
carry that burden. His affiants’ testimony does little,
if anything, to lighten his load. Indeed, his affiants seem
to be talking past Muraski. They fail to respond di-
rectly—or even obliquely—to Muraski’s concern about
D&D players looking to Dungeon Masters, rather than
to the prison’s own carefully constructed hierarchy of
authority, for guidance and dispute resolution. Instead,
Singer’s affiants simply assert that D&D has not to their
knowledge incited prison violence or motivated devotees
to form a stereotypical street or prison gang.
Singer also claims that his evidence raises doubt as
to whether the D&D ban furthers the government’s
legitimate goal of rehabilitating inmates by limiting their
opportunities to engage in escapist behaviors. Again, he
proffers purportedly compelling testimony, this time
supporting the notion that D&D has a positive rehabilita-
tive effect on prisoners. Singer’s affiants are more knowl-
edgeable on this issue. For instance, he offers testimony
from Paul Cardwell, chair and archivist of the Committee
for the Advancement of Role-Playing Games, an “interna-
tional network of researchers into all aspects of
role-playing games.” Comm. for the Advancement of Role-
Playing Games, http://www.car-pga.org (last visited
Jan. 20, 2010). Cardwell testified that there are numerous
scholarly works establishing that role-playing games
can have positive rehabilitative effects on prisoners.
Singer’s evidence again misses the mark, however. While
Cardwell and his other affiants, including a literacy tutor
and a role-playing game analyst, testified to a positive
No. 07-3400 15
relationship between D&D and rehabilitation, none
disputed or even acknowledged the prison officials’
assertions that there are valid reasons to fear a relation-
ship running in the opposite direction. The prison
officials pointed to a few published circuit court cases to
give traction to their views. We view these cases as persua-
sive evidence that for some individuals, games like D&D
can impede rehabilitation, lead to escapist tendencies, or
result in more dire consequences. See Meyer v. Branker, 506
F.3d 358, 370 (4th Cir. 2007) (noting that defendant Meyer
“was obsessed with Dungeons and Dragons,” and that
“this obsession caused ‘[him] to retreat into a fantasy
world of Ninja warriors’ ”); Thompson v. Dixon, 987 F.2d
1038, 1039 (4th Cir. 1993) (affirming the conviction of one
of two men who brought a D&D adventure to life by
entering the home of an elderly couple and assassinating
them); cf. Sellers v. Ward, 135 F.3d 1333, 1335 (10th Cir.
1998) (defense counsel argued that Sellers’s addiction
to D&D dictated his actions and disconnected him from
any consciousness of wrongdoing or responsibility for
three murders); Watters v. TSR, Inc., 904 F.2d 378, 380 (6th
Cir. 1990) (describing a teenager who committed suicide
as “a ‘devoted’ Dungeons and Dragons player who
became absorbed by the game to the point of losing
touch with reality”).
We recognize that the D&D ban at issue here extends
beyond D&D gameplay to encompass D&D-related
publications. However, the record before us makes clear
that even this aspect of the ban was properly upheld in
the district court’s grant of summary judgment.
Muraski’s affidavit expressed concerns not only about
16 No. 07-3400
gang behavior but also about potential inmate obsession
with escape, both figurative and literal. He testified that
D&D “could foster an inmate’s obsession with escaping
from the real life, correctional environment,” placing both
the legitimate penological goals of prison security and
inmate rehabilitation in peril. The prison officials have
thus proffered evidence that the policy prohibiting posses-
sion of D&D manuals, strategy guides, character
novellas, and other related materials is rationally related
to the goal of preventing susceptible inmates from em-
barking upon a dangerous escapist path; they have
“demonstrate[d] that [they] could rationally have seen a
connection between the policy” and their ultimate peno-
logical goals. Wolf v. Ashcroft, 297 F.3d 305, 308 (3d Cir.
2002) (quotations omitted). Singer’s affidavits and briefs
were unresponsive to this evidence, and we cannot
make his arguments for him. See Vaughn v. King, 167
F.3d 347, 354 (7th Cir. 1999) (“It is not the responsibility
of this court to make arguments for the parties.”).
Singer has failed to come forward with evidence to
call into question that offered by the prison officials on
any of the grounds comprising the first prong of his
argument. He has not raised a genuine issue of material
fact regarding the first Turner factor, and we therefore
conclude that summary judgment was properly granted
to the prison officials with respect to the first Turner factor.
Singer further challenges the district court’s conclusion
that the prison officials satisfied the Turner standard as
a matter of law by making what can best be described as
a halfhearted effort to find error with the district court’s
No. 07-3400 17
thorough analysis of the other three factors. As to the
second factor (alternative means of exercising the right
foreclosed by the regulation at issue), Singer asserts
that the D&D prohibition is a categorical and permanent
ban on its face. He points to the prison officials’
concession that inmates at Waupun no longer have the
opportunity to engage in D&D or other role-playing
games and baldly asserts that the severity of the D&D
policy alone suggests that summary judgment was im-
proper. As to the third and fourth factors (impact of
accommodation and the existence of “ready alternatives”
to the regulation), Singer argues that the D&D ban was
an exaggerated response to the government’s concerns
and serves little practical utility in light of the prison’s
pre-existing ban on gangs. Each of these arguments
is unavailing.
Singer relies on Supreme Court dicta to support his
first argument, that the D&D ban should be lifted
because it is permanent and categorical. See Beard, 548
U.S. at 536 (“Finally, as in Overton, we agree that ‘the
restriction is severe,’ and ‘if faced with evidence that [it
were] a de facto permanent ban . . . we might reach a
different conclusion in a challenge to a particular ap-
plication of the regulation.’ That is not, however, the
case before us.” (citation omitted)). He is correct that the
ban is a permanent one, but the second Turner factor
is predominantly concerned with whether alternate
means of expression are available to inmates, not with
the permanent or categorical nature of the ban. See Turner,
482 U.S. at 90. Moreover, the second factor is not in and
of itself dispositive; the complete denial of the right to
18 No. 07-3400
express oneself through role-playing games is merely
some evidence that the ban may be unreasonable. See
Overton, 539 U.S. at 135. If the other factors are resolved
in the prison officials’ favor, the Turner standard can
still be satisfied as a matter of law despite the categorical
nature of the ban.
However, we are not convinced that the ban is as un-
yieldingly categorical as Singer makes it out to be. He
argues that the ban precludes him from playing D&D and
therefore he has no alternative means to play D&D. That
may be true, but, as the district court pointed out in
discounting this circular argument, Singer still has access
to other allowable games, reading material, and leisure
activities. See Farmer v. Dormire, No. 03-4180-CV-C-NKL,
2005 WL 2372146, at *4 (W.D. Mo. Sept. 27, 2005) (ob-
serving that strategy games like Risk, Stratego, chess, and
checkers remained available to prisoners in the wake of
a similar ban). “Where ‘other avenues’ remain available
for the exercise of the asserted right, the courts should
be particularly conscious of the measure of judicial defer-
ence owed to corrections officials in gauging the
validity of the regulation.” Turner, 482 U.S. at 90 (citations
omitted). Here, that consciousness directs us to conclude
that the regulation is not unreasonable. Singer is not
precluded from expressing himself by writing another
work of fiction, possessing other reading material, or
engaging with other inmates in allowable games. These
alternatives need not be ideal to Singer for them to ade-
quately satisfy the concerns raised by the second Turner
factor. See Overton, 539 U.S. at 135 (“Alternatives . . . need
not be ideal, however; they need only be available.”).
No. 07-3400 19
The third Turner factor requires us to consider the
impact that providing an accommodation to Singer will
have on guards, other inmates, and on the allocation of
prison resources generally. Turner, 482 U.S. at 90. In
light of Muraski’s uncontested testimony that D&D can
impede rehabilitation and perhaps even lead to violence
and gang activity, it is clear that accommodating
Singer’s or another inmate’s request for an exception to
the D&D ban could have significant detrimental effects
to inmates and guards alike. The district court concluded
that the third Turner factor cut in favor of the prison
officials because Singer did not call into question
Muraski’s testimony regarding the possible consequences
of accommodating his request to retain possession
of D&D materials. We agree that Singer’s evidentiary
showings in this area were deficient, and we likewise
agree with the district court’s holding that the third
Turner factor weighs in favor of the prison officials.
Singer’s final argument, a challenge to the fourth
Turner factor, is that the D&D prohibition is redundant in
light of Waupun’s preexisting prohibition of gang-
related activity and paraphernalia. He asserts that the
latter is a ready alternative to the former, rendering the
D&D ban an inappropriately exaggerated response to
Waupun’s security concerns. He does not provide any
evidence that the preexisting ban on gang materials
was not being enforced or that it was sufficiently broad
to cover D&D activity, nor does he argue at this stage
of the proceedings that any other reasonable alternative
to the ban exists. Singer’s reliance upon Lindell v. Frank,
377 F.3d 655, 660-61 (7th Cir. 2004), in which we con-
20 No. 07-3400
cluded that a prison violated an inmate’s First Amend-
ment rights by banning all publication clippings because
there were “less exaggerated responses” it could have
pursued, is unavailing. There, we were able to discern
reasonable alternatives to the ban. Here, because of the
two legitimate interests underlying the D&D ban, it is
quite difficult, if not impossible, to dream up a
realistically implementable alternative policy that would
serve Waupun’s interests with similar efficacy and effi-
ciency. Singer does not attempt to clear this hurdle, so
we, like the district court, conclude that the fourth
Turner factor cuts in favor of the prison officials as well.
III. Conclusion
Despite Singer’s large quantum of affidavit testimony
asserting that D&D is not associated with gangs and that
the game can improve inmate rehabilitation, he has
failed to demonstrate a genuine issue of material fact
concerning the reasonableness of the relationship
between Waupun’s D&D ban and the prison’s clearly
legitimate penological interests. The district court’s
grant of summary judgment is therefore A FFIRMED.
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