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Jewell v. Gonzales

March 17, 2006


The opinion of the court was delivered by: McLAUGHLIN, Sean J., District J.,


In this Bivens action,*fn1 a class of inmates at the Federal Correctional Institution ("FCI") in McKean, Pennsylvania challenges the constitutionality of a Program Statement issued by the U.S. Bureau of Prisons ("BOP"), as well as an "Institutional Supplement" issued by FCI-McKean, which prohibit the showing of unedited "R" rated movies to prisoners. Named as Defendants are Alberto Gonzales, in his official capacity as Attorney General of the United States, Harley G. Lappin, in his official capacity as Director of the Federal Bureau of Prisons, and Bernie D. Ellis, in his official capacity as the Warden of the FCI-McKean.*fn2 We have subject matter jurisdiction over this matter pursuant to 28 U.S.C. § 1331.

Both Plaintiffs and Defendants have filed motions for summary judgment. On August 31, 2005, the United States Magistrate Judge to whom this case was referred recommended that the Plaintiff's motion for summary judgment be granted and the Defendants' motion be denied. For the reasons that follow, we decline to adopt the Magistrate Judge's Report and Recommendation and conclude, instead, that Defendants' motion should be granted and the Plaintiffs' motion denied.


Under well established principles, summary judgment shall be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). In considering a motion for summary judgment, this Court must examine the facts in a light most favorable to the party opposing the motion. International Raw Materials, Ltd. v. Stauffer Chem. Co., 898 F.2d 946, 949 (3d Cir.1990). The moving party bears the burden of demonstrating the absence of any genuine issues of material fact. United States ex rel. Quinn v. Omnicare, Inc., 382 F.3d 432, 436 (3d Cir.2004). Rule 56, however, mandates the entry of judgment against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof. Celotex Corp. v. Cattrett, 477 U.S. 317, 322 (1986).


In 1996, Congress passed the Omnibus Consolidated Rescissions and Appropriations Act of 1996, Pub. L. No. 104-134, § 611, 110 Stat. 1321 (April 26, 1996). Section 611 of that Act, commonly known as the Zimmer Amendment (after its sponsor, Representative Dick Zimmer) provided, in relevant part, that:

None of the funds made available in this Act shall be used to provide the following amenities or personal comforts in the Federal prison system -- ***

(2) the viewing of R, X, and NC-17 rated movies, through whatever medium presented; ... 110 Stat. 1321-64 (April 26, 1996). Substantially identical versions of this amendment have been enacted in annual appropriations bills since that time.*fn3

At the time the Zimmer Amendment was proposed, the BOP already had in place a regulation prohibiting the showing of X-rated movies*fn4 as well as a Program Statement, PS 5370.08 (June 13, 1994), which directed the Supervisor of Education or his/ her designee to "exercise good judgment" when selecting movie video rentals. PS 5370.08 § 7. With the Zimmer Amendment's enactment, the BOP updated its Program Statement, which now provides:

The Recreation Supervisor will exercise good judgment and follow statutory restrictions when selecting video movies rentals. No movies rated R, X, or NC-17 may be shown to inmates.

a. Institutions may show R and NC-17 movies that have been edited for general public viewing.

b. Spanish movies that are not rated may be shown if they do not include profanity, graphic violence, or nudity.

c. Not all edited movies may be appropriate for the correctional setting; each institution must use caution in selecting movies. (See Attachment A.)

PS 5370.10 (Feb. 23, 2000). FCI-McKean similarly updated its Institutional Supplement, which now provides: "Movies are shown each weekend. Only contracted movies rated PG-13, PG, G and airline edited will be shown." See IS 5370.08 (Sept. 15,1997).

In December of 1997, three inmates at FCI-McKean commenced this action*fn5 on behalf of themselves and all other current and future FCI-McKean inmates asserting that their First Amendment rights are abridged by the prison's policy of categorically banning the showing of unedited R-rated movies.*fn6 (See Complaint [Doc. # 1] at ¶¶ 30-36.) Plaintiffs seek a judgment declaring the policy unconstitutional and enjoining its future enforcement.*fn7

On April 14, 2000, following the resolution of various preliminary procedural issues, the Defendants moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). (See Def.s' Mot. for Judg. on the Pleadings and Mem. in Supp. [Doc. # 34].) Defendants' motion was premised upon their interpretation of Plaintiffs' complaint as challenging both the Zimmer Amendment and the implementing policies issued by the BOP and FCI-McKean. (Id. at p. 7.)

Defendants began their Rule 12(c) analysis by acknowledging that restrictions on the First Amendment rights of prisoners are evaluated using the test set forth in Turner v. Safley, 482 U.S. 78 (1987). That test involves consideration of four factors to determine whether the restriction in question is constitutional, to wit: whether the regulation has a "'valid, rational connection'" to a legitimate governmental interest; whether alternative means are open to inmates to exercise the asserted right; what impact an accommodation of the right would have on guards and inmates and prison resources; and whether there are "ready alternatives" to the regulation. 482 U.S. at 89-91.

Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

Applying this test, Defendants first asserted that deterrence, good order, discipline, and rehabilitation are among the penological interests rationally furthered by the Zimmer Amendment's proscription of R-rated films. (See Mot. for Judg. on Pleadings, supra, at pp. 10-11.) The Defendants further argued: that the Plaintiffs had adequate alternative means by which to exercise their First Amendment rights inasmuch as a broad range of movies (including those rated G, PG or airline edited) remain available to them (id. at pp. 13-14); that the restricted category of movies could be potentially detrimental to the safety of guards and other inmates (id. at p. 15); and that Plaintiffs had failed to identify a ready alternative that would fully accommodate their rights at de minimis cost to the government's valid penological interests (Id. at p. 15).

Defendants' Rule 12(c) motion was initially reviewed by the United States Magistrate Judge. Like the Defendants, she assumed the Plaintiffs' claims encompassed challenges to the Zimmer Amendment itself as well as the Policy Statement and Institutional Statement implementing the Amendment.*fn8 The Magistrate Judge recommended that the Defendants' motion be granted insofar as Plaintiffs were challenging the Zimmer Amendment on its face; as to this point, she reasoned that the statute facially invoked only Congress' spending powers and therefore did not implicate any First Amendment issues because prisoners are not entitled to have the legislature fund their exercise of fundamental constitutional rights. (See Report and Recommendation (12/1/00 [Doc. # 37]) at pp. 8-10.) On the other hand, the Magistrate Judge recommended that the Rule 12(c) motion be denied insofar as the Plaintiffs were lodging a facial challenge to the administrative policies implementing the Zimmer Amendment. Recognizing that these restrictions do implicate First Amendment rights, as they facially impose an outright ban on the viewing of R-rated movies, the Magistrate Judge concluded that an evidentiary record would be required in order for the Court to perform a complete Turner analysis. The Magistrate Judge further recommended that a record be developed for purposes of assessing the Plaintiffs' "as applied" challenges, since these would involve a fact-intensive analysis. (See id. at pp.11-17.)

On March 15, 2001, this Court entered a Memorandum Order granting Defendants' Rule 12(c) motion in its entirety. (See Mem. Order (3/15/01 [Doc. # 41].) Unlike the Magistrate Judge, this Court concluded that Plaintiffs' facial challenge to the statute did implicate First Amendment rights, thus necessitating a Turner analysis. Nevertheless, we endorsed a "common sense" application of Turner relative to both the Zimmer Amendment and its implementing regulations, finding that the development of an evidentiary record was unnecessary in this case. We reasoned that such a "common sense" approach was consistent with the analysis undertaken by the District of Columbia Court of Appeals in Amatel v. Reno, 156 F.3d 192 (D.C. Cir. 1998) (addressing a challenge to the constitutionality of the Ensign Amendment), and the Third Circuit Court of Appeals in Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999) (upholding a New Jersey statute similar to Ensign Amendment). We concluded that

"[a]pplying the Turner factors here, and for the reasons set forth in Amatel, 156 F.3d at 196-99, and Waterman, 183 F.3d at 214-18, ... the Ensign and Zimmer Amendments and their implementing regulations [are] neutral and reasonable, and rationally related to legitimate penological interests." (Id. at p. 4.)

On direct appeal of our March 15, 2001 order, the Third Circuit Court of Appeals reversed and remanded the case for further proceedings. See Wolf v. Ashcroft, 297 F.3d 305 (3d Cir. 2002). The court of appeals found that, in granting the Rule 12(c) motion, this Court did not conduct a proper, thorough Turner analysis in that we "did not articulate the relevant penological interest or the prohibition's relationship to it, and, further, [we] considered only Turner's first prong." Id. at 307. The appellate court explained that:

[i]n relation to the first factor, the [District] Court's opinion was deficient in that it never stated or described the interest purportedly served by the prison policy, nor did it determine whether the interest was neutral and legitimate. The government offered several theories in general terms at different times, but the District Court opinion did not mention or discuss any such theories or interests. We cannot tell, for instance, whether the Court credited the government's assertion that the movies posed security risks, or that the absence of such movies deterred people from committing crimes, or that denial of such movies fosters rehabilitation. Moreover, the District Court did not discuss how any of the particular interests offered by the government were "rationally connected to "the restrictions on movies rated R or NC-17.

Id. at 308.

The court of appeals concluded that a "common sense" approach may not always "fit" for purposes of analyzing Turner's first prong, and "an evidentiary showing may be required in certain situations." Id. In so concluding, the court declined to take any "categorical approaches" to a Turner analysis: while the connection may be a matter of common sense in certain instances, such that a ruling on this issue based only on the pleadings may be appropriate, there may be situations in which the connection is not so apparent and does require factual development. Whether the requisite connection may be found solely on the basis of "common sense" will depend on the nature of the right, the nature of the interest asserted, the nature of the prohibition, and the obviousness of its connection to the proffered interest. The showing required will vary depending on how close the court perceives the connection to be. ... [T]he connection between the goal of rehabilitation and a ban on distributing sexually explicit magazines to "repetitive and compulsive" sexual offenders may well be, as we stated in Waterman, sufficiently obvious to be evaluated as a matter of common sense. But is it a matter of common sense, as was argued here, that prohibiting movies rated R or NC-17 deters the general public from committing crimes, lest they be sent to prison where they are not permitted to watch R-rated movies? We are not so sure. ...

Id. at 308-09. The appellate court directed us on remand to (1) describe the penological interest served by the restriction; (2) consider whether the connection between the policy and the interest is obvious or attenuated -- and, thus, the extent to which some foundation or evidentiary showing is necessary; and (3) in light of this determination, evaluate what the government has offered. Id. at 309.

Finally, the court of appeals directed that, even if the restriction at issue passed muster under the first Turner prong, we would need to consider the remaining prongs in order to fully evaluate the policy's overall reasonableness. Id. at 310. As to the latter three Turner factors, the court of appeals noted that "we have historically viewed these inquiries as being fact-intensive," requiring a "'contextual, record-sensitive analysis.'"

Id. (citation omitted).

Following the appellate court's remand of this matter, Defendants filed a motion to dismiss the case for lack of subject matter jurisdiction. (See Def.'s Mot. to Dismiss for Lack of Juris. [Doc. # 49].) The Defendants' motion was premised on the fact that, at some point during the appeal of our March 15, 2001 order, Plaintiffs abandoned their challenge to the Zimmer Amendment itself, focusing their attack instead on the administrative policies implementing the Amendment. (See n. 9, supra; Wolf v. Ashcroft, 297 F.3d at 307.) Defendants argued that Plaintiffs' claims now lacked redressability, their theory being that, even if we were to enjoin enforcement of the administrative ban on R-rated movies, the Zimmer Amendment would still stand as an independent prohibition. Thus, Defendants reasoned, Plaintiffs' claims ultimately could afford them no relief and Plaintiffs therefore lacked standing to pursue them. (Def.s' Mot. to Dismiss, supra, at pp. 6-8.)

On January 13, 2004, the Magistrate Judge issued a Report and Recommendation [Doc. # 52] in which she relied heavily on Amatel v. Reno, supra, in recommending that the Defendants' motion be denied:

The reasoning advanced by Defendants necessarily assumes that the statute itself would be applied directly to the Plaintiffs to bar the viewing of R-rated movies in the absence of the implementing policy from which Plaintiffs seek relief. Such an assumption, however, was soundly rejected by the D.C. Circuit Court in Amatel, 156 F.3d at 194. In Amatel, federal prisoners brought a class action challenging the constitutionality of the Ensign Amendment and its implementing regulations. The D.C. district court directed its analysis primarily toward the statute in finding that the Ensign Amendment violated the First Amendment. On appeal, the D.C. Circuit Court rejected the district court's analysis, stating, "[t]he district court seemed to assume that the statute has been and will be applied to these plaintiffs; ...[b]ut there is no suggestion that any warden does or will apply the statute directly; so far as appears, all enforcement is mediated through the regulations ... In the statutory borderland beyond the implementing regulations... the prospect of enforcement appears completely insubstantial." 156 F.3d at 194. Thus, the D.C. Circuit Court focused its analysis on "the substantive prohibitions of the regulations."

Id. Consistent with the D.C. Circuit Court's decision in Amatel, Plaintiffs have focused their constitutional challenge on the Zimmer Amendment's implementing policy, P.S. 5370.10, rather than the statute itself. This policy specifically prohibits inmates from viewing R, X, and NC-17 movies and is directly applicable to them. Although it is true that the Zimmer Amendment would remain in effect if Plaintiffs are successful in having the policy struck down as unconstitutional, the statute does not, by its terms, have any direct application to federal prisoners. Instead, the Zimmer Amendment prohibits the BOP from using appropriated federal funds to provide federal prisoners with the means to view R, X, or NC-17 movies. In Amatel, the D.C. Circuit Court held "[i]nsofar as plaintiffs attack the proscriptions of the statute not embodied in the regulations, they effectively pursue a pre-enforcement challenge. Even in the First Amendment context, such a challenge presents a justiciable controversy only if the probability of enforcement is real and substantial." 156 F.3d at 194. ...In this case, there is no evidence of record to suggest that the Zimmer Amendment has been or will be applied directly to Plaintiffs to prohibit them from viewing R-rated movies in the same manner as P.S. 5370.10. Thus, a challenge to the constitutionality of the Zimmer Amendment by the Plaintiffs would be an impermissible pre-enforcement challenge. For standing purposes, a challenge to the BOP's implementing policy embodied in P.S. 5370.10 is the only means currently available to Plaintiffs to seek redress from the constitutional injuries they claim to have suffered. [ ] As a result, Defendants' motion to dismiss based on their assertion that Plaintiffs lack Article III standing to challenge only the constitutionality of P.S. 5370.10 should be denied. (Id. at pp. 6-8 (internal footnote omitted).)

By order dated October 8, 2004, this Court adopted Magistrate Judge's Report and Recommendation and denied the Defendants' motion to dismiss on jurisdictional grounds. (See Order dated 10/8/04 [Doc. # 60].) Thereafter, a case management schedule was established and the parties conducted their discovery.

Defendants filed their motion for summary judgment on July 1, 2005 and Plaintiffs filed their cross-motion for summary judgment on August 1, 2005. On August 31, 2005 the Magistrate Judge entered a Report and Recommendation concluding that the Plaintiffs' motion should be granted and the Defendants' motion should be denied. Defendants' objections to the Report and Recommendation have been briefed and the matter is ripe for review.


In support of their motion for summary judgment, Defendants assert two arguments. First, they have renewed their jurisdictional challenge, claiming that the Plaintiffs lack standing to pursue this lawsuit because the litigation cannot provide any redress for their injuries. Second, and assuming this Court has jurisdiction to address Plaintiffs' claims, Defendants argue that the policies being challenged pass constitutional muster under Turner. We will address each argument in order.

A. Defendants' Jurisdictional Challenge*fn9

Our jurisdiction is limited by Article III of the Constitution to adjudicating "Cases" or "Controversies." See U.S. Const. art. III, § 2; Khodara Environmental, Inc. v. Blakey, 376 F.3d 187, 193 (3d Cir. 2004). A plaintiff possesses constitutional standing to pursue a claim only if he can establish: (1) an injury-in-fact, which is an invasion of a legally protected interest that is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical; (2) a causal connection between the injury and the conduct complained of; and (3) a likelihood, as opposed to mere speculation, that the injury will be redressed by a favorable decision. Danvers Motor Co., Inc. v. Ford Motor Co., 432 F.3d 286, 290-91 (3d Cir. 2005) (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); Khodara Environmental, Inc. supra, at 193 (collecting cases)). These requirements "ensure that plaintiffs have a 'personal stake' or 'interest' in the outcome of the proceedings, 'sufficient to warrant ... [their] invocation of federal-court jurisdiction and to justify exercise of the court's remedial powers on ... [their]) behalf.' " Khodara, 376 F.3d at 193 (alterations in the original) (citation omitted). A plaintiff bears the burden of proving standing. Danvers Motor Co. at 291 (citation omitted).

Defendants challenge only the redressability element of standing. Their argument is straightforward and goes as follows:

There are two independent prohibitions on prisoners viewing R-rated movies: (1) the Zimmer Amendment; and (2) the BOP Policy that implements the Zimmer Amendment. Currently, plaintiffs are only challenging the BOP Policy and, therefore, even if this Court were to enjoin the BOP Policy, BOP still could not show R-rated movies because the Zimmer Amendment, which this Court previously found constitutional, independently prohibits BOP employees from using federal funds to show prisoners R-rated movies. Hence, there is no longer a case or controversy because plaintiff's alleged injury is not redressable. ... In short, there is no possible outcome on remand that can give plaintiffs the ultimate relief they seek -- an order that permits BOP to show R-rated movies. ...

(Def.s' Mot. for Summ. Judg. [Doc. # 69] at pp. 8-9.) Defendants' theory thus rests on several assumptions: first, that there are two separate and legally independent proscriptions on the viewing of R-rated movies by prisoners; second, that the constitutional validity of the Zimmer Amendment has already been established for purposes of this litigation; and third, that the BOP would be required to enforce the Zimmer Amendment's proscription on R-rated movies regardless of the outcome of this litigation.

We find that the foregoing assumptions are unwarranted on this record. First -- notwithstanding the reasoning which we originally adopted in our October 8, 2004 order declining to dismiss this case on jurisdictional grounds -- we conclude, upon further considered reflection, that it makes little sense in the context of this case to view the Zimmer Amendment and the BOP's implementing policies as separate and distinct legal proscriptions on the viewing of R-rated movies. All parties agree that the administrative "policy" of banning such films, which Plaintiffs expressly challenged in their complaint, has its genesis in the Zimmer Amendment. As Defendants have consistently acknowledged throughout this litigation, the challenged prison policy does not reflect independent rule-making on the part of the BOP or FCI-McKean, but derives completely from the Zimmer Amendment and is, in effect, simply a restatement of the statute's proscription.*fn10 Thus, the prison policy at issue is nothing more than an attempt by the Defendants to implement what Defendants view as a Congressionally mandated ban on R-rated films.*fn11 It necessarily follows -- for reasons that will become more clear in our discussion applying the Turner factors -- that our analysis of the challenged prison policy requires an analysis of the constitutionality vel non of the Amendment itself. Practically speaking, irrespective of whether the Plaintiffs have directly challenged the constitutionality of the Zimmer Amendment, analysis of that statute is inherent in, and necessary to, our analysis of the derivative prison policy.*fn12

Defendants assume that the constitutionality of the Zimmer Amendment has been definitively ruled on for purposes of this case,*fn13 but we find that this assumption, too, is flawed. It is true that our order of March 15, 2001 upheld both the Zimmer Amendment and its implementing regulations as constitutionally valid under Turner. Nevertheless, while the Plaintiffs abandoned any formal challenge to the statute on direct appeal, the Third Circuit's opinion in Wolf v. Ashcroft, supra, leaves no doubt that the appellate court found our analysis (which we applied without any distinction as between the statute and the implementing policy) to be deficient, thereby implicitly -- if not expressly -- undermining the integrity of our prior ruling.

Finally, unlike the Defendants, we are not convinced that the outcome of this litigation will be immaterial to the Plaintiffs' requests for relief. Defendants have professed an intention to continue to apply the Amendment's proscription on R-rated movies, regardless of how this Court may ultimately rule on the constitutionality of the challenged prison policy. However, as we have already suggested -- and as our analysis below demonstrates -- application of the Turner factors in the context of this case makes sense only to the extent that the Amendment itself and its implementing policy are examined in lock-step with one another, as effectively one proscription. At the end of the day, this Court's ruling on the prison policy banning R-rated movies must necessarily reflect our view as to the constitutionality vel non of the statute itself. In short, if this Court should enter a judgment favorable to the Plaintiffs, it would be difficult to conceive of any theory whereby the Zimmer Amendment could, consistent with our judgment, continue to be enforced against the Plaintiffs.

Defendants acknowledge that Plaintiffs need only show a "substantial likelihood" that the relief they request will remedy the alleged injury. See Vermont Agency of Natural Resources v. United States ex rel. Stevens, 529 U.S. 765, 771 (2000) (quoted in Def.s' Mot. for Summ. Judg. at p. 9.) Because we consider it likely that a judgment in their favor would ipso facto cast doubt on the constitutionality of the Zimmer Amendment itself, and because we assume that Defendants would abide by such a ruling, we conclude that Plaintiffs' claims are redressable for Article III purposes and we proceed now to address the merits of those claims.

B. Defendants' Argument Under Turner

As we have previously recognized, the test for evaluating restrictions on the First Amendment rights of prisoners is set forth in Turner v. Safley, 482 U.S. 78 (1987).*fn14 In Turner, "the Supreme Court recognized an enduring tension between two conflicting principles in operation whenever a prisoner brings a constitutional challenge to a law or regulation affecting prison policy." Ramirez v. Pugh, 379 F.3d 122, 125-26 (3d Cir. 2004). That is, the principal that "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution" must be balanced against the competing principle, rooted in practical reality, that "the judicial branch is ill-suited for running the country's prisons, a task committed to the particular expertise of the legislative and executive branches." Id. at 126 (citing Turner, 482 U.S. at 84-85) (alterations in the original).

To accommodate these competing interests, the Supreme Court in Turner held that prison regulations implicating an inmate's constitutional rights are valid so long as they are "reasonably related to legitimate penological interests." 482 U.S. at 89. The Court established a four-part test for assessing the overall reasonableness of a challenged regulation, which our circuit court of appeals has summarized thus:

As a threshold inquiry, "there must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." ... Courts must then determine "whether there are alternative means of exercising the right that remain open" to prisoners, and "[what] impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." ... Finally, a regulation's reasonableness may be evidenced by "the absence of ready alternatives" that would fully accommodate the constitutional right "at de minimis cost to valid penological interests." ...

Ramirez, 379 F.3d at 126 (internal citations omitted) (alteration in the original).

While the Turner factors "serve as guides to a single reasonableness standard," the first factor "'looms especially large' because it 'tends to encompass the remaining factors, and some of its criteria are apparently necessary conditions.'" Id. (quoting Waterman v. Farmer, 183 F.3d 208, 213-14 (3d Cir.1999)). If the connection between a prison policy and the government's asserted interests is too tenuous, the policy is "arbitrary or irrational" and "fails irrespective of whether the other factors tilt in its favor." Wolf, 297 F.3d at 309-10. Accord Asker v. California Dept. of Corrections, 350 F.3d 917, 923 (9th Cir. 2003) (holding that, if a policy fails the first Turner prong, the court need not address the other factors). The Supreme Court has made clear that the burden "is not on the State to prove the validity of prison regulations but on the prisoner to disprove it." ...

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