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Brittain v. Beard

July 20, 2009


Appeal from the Order of the Commonwealth Court dated September 6, 2007, at 83 MD 2007, denying Cross-: Motions for Summary Relief 932 A.2d 324 (Pa. Cmwlth. 2007).

The opinion of the court was delivered by: Mr. Justice Baer


SUBMITTED: October 22, 2008


This is an interlocutory appeal by permission from an order of the Commonwealth Court, which denied cross-motions for summary relief filed by the Pennsylvania Department of Corrections ("the Department") and Shannon Brittain ("Brittain"), an inmate of the Pennsylvania penal system.*fn1 Our inquiry is limited to determining whether the Commonwealth Court erred by denying the Department's motion for summary relief on the basis that it failed to justify sufficiently its adoption of administrative directive 803-1 ("DCADM 803-1"), which prohibits inmates from possessing pornography. For the reasons set forth herein, we hold that the burden was not on the Department to prove the validity of its administrative directive, but rather on Brittain, as the inmate, to raise a genuine issue of material fact regarding the alleged invalidity of the pornography ban. As Brittain did not satisfy his burden in this regard, summary relief should have been granted in favor of the Department. Accordingly, we reverse that portion of the Commonwealth Court's order that denied the Department summary relief.

The record reveals that on November 29, 2005, the Department adopted DC-ADM 803-1, which is an amendment to DC-ADM 803, entitled "Inmate Mail and Incoming Publications."*fn2 DC-ADM 803-1 provides that "[i]n order to assist with rehabilitation and treatment objectives, reduce sexual harassment and prevent a hostile work environment, inmates will not be permitted to receive or possess pornography...." It further states:

The following categories of material are considered "pornographic:"

(1) materials in which the purpose is sexual arousal or gratification; or

(2) the material contains nudity which means showing the human male or female genitals, pubic area or buttocks with less than a fully opaque covering, or showing the female breast with less than a fully opaque covering of any portion thereof below the top of the nipple (exposure through "see through" materials is considered nudity for purposes of this definition).

DC-ADM 803-1.

Additionally, DC-ADM 803-1 directed inmates to either turn in their pornographic materials or mail them out of the institution by January 1, 2007, after which date such materials would be considered contraband and would be confiscated, subjecting the inmate to a charge of misconduct. On April 5, 2006, the Department adopted DC-ADM 803-2 to clarify the pornography prohibition in DC-ADM 803-1. This amendment states, inter alia, that "[i]f the publication or material has significant literary or educational value it may be approved on a case by case basis, taking into consideration educational programs the inmate is involved in, and the type of his/her offense (i.e., sexual offender)."

Ten months later, on February 12, 2007, Brittain, a convicted rapist, filed a pro se petition for review in Commonwealth Court's original jurisdiction, alleging that DC-ADM 803-1 violated the First and Fourteenth Amendments to the United States Constitution and Article I, Sections 1 and 25 of the Pennsylvania Constitution. He maintained that DC-ADM 803-1 improperly prohibited inmates from possessing materials depicting mere nudity, including artwork, drawings, photographs, and Playboy Magazine, without any legitimate penological purpose. Brittain sought an order enjoining the Department from confiscating and destroying materials in his possession pursuant to the policy. Brittain attached what he characterizes as affidavits, signed by him and six other inmates, which assert that mere nudity does not adversely affect their personal rehabilitation or treatment, does not cause them to sexually harass others, and does not cause them to create a hostile work environment for prison employees.

The Department filed an answer with new matter, in which it asserted that DC-ADM 803-1 was promulgated to address the following legitimate penological interests: (1) it is consistent with the goal of rehabilitating inmates; (2) it is consistent with inmate treatment objectives; (3) it prevents a hostile working environment for the Department's employees; (4) it prevents employees and inmates from being "objectified," rather than being regarded as persons; (5) it prevents materials that are counterproductive to the goal of sex offender therapy, which is to teach inmates to view people as people; (6) it prevents materials that will foster inappropriate sexual desires among inmates; and, (7) it prevents materials that are often a precursor to sexually offending behavior. The Department attached to its new matter the "verifications" of a licensed psychologist and a unit manager of a state prison, which state that those individuals have reviewed the factual averments set forth in the Department's answer and new matter, and concluded, under the penalty of perjury, that they are true and correct.

Rather than explaining why the Department's enumerated justifications for DC-ADM 803-1 were unreasonable, in his response to the new matter, Brittain demanded from the Department "strict peer-review scientific-evidence" establishing the validity of the pornography ban. At the close of the pleadings, both the Department and Brittain filed cross-motions for summary relief.

In its motion, the Department alleged that it was entitled to summary relief because Brittain had failed to raise a genuine issue of material fact, and erroneously asserted that the Department had the burden of proving, through competent evidence, that DC-ADM 803-1 is related to the various legitimate penological interests it had set forth in its answer and new matter. The Department emphasized that it was not required, in response to Brittain's lawsuit, to present "peer-review scientific-evidence" to demonstrate that its policy is reasonable. Finally, the Department asserted that it satisfied the requisites for determining the constitutionality of a prison regulation set forth in the ...

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