Filed: Aug. 12, 2004
Latest Update: Apr. 11, 2017
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-12-2004 Ramirez v. Pugh Precedential or Non-Precedential: Precedential Docket No. 02-2101 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Ramirez v. Pugh" (2004). 2004 Decisions. Paper 372. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/372 This decision is brought to you for free and open access by the Opinions of the United States
Summary: Opinions of the United 2004 Decisions States Court of Appeals for the Third Circuit 8-12-2004 Ramirez v. Pugh Precedential or Non-Precedential: Precedential Docket No. 02-2101 Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004 Recommended Citation "Ramirez v. Pugh" (2004). 2004 Decisions. Paper 372. http://digitalcommons.law.villanova.edu/thirdcircuit_2004/372 This decision is brought to you for free and open access by the Opinions of the United States ..
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Opinions of the United
2004 Decisions States Court of Appeals
for the Third Circuit
8-12-2004
Ramirez v. Pugh
Precedential or Non-Precedential: Precedential
Docket No. 02-2101
Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_2004
Recommended Citation
"Ramirez v. Pugh" (2004). 2004 Decisions. Paper 372.
http://digitalcommons.law.villanova.edu/thirdcircuit_2004/372
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PRECEDENTIAL Vijay Shanker, Esq. (Argued)
Covington & Burling
UNITED STATES COURT OF 1201 Pennsylvania Avenue, N.W.
APPEAL Washington, DC 20004
FOR THE THIRD CIRCUIT
Counsel for Appellant
No. 02-2101 Marc Ramirez, #27353-053
Allenwood LSCI
P.O. Box 1000
MARC RAMIREZ, White Deer, PA 17887
Appellant, Pro Se
Appellant
August E. Flentje, Esq. (Argued)
v. United States Department of Justice
Civil Division, Appellate Staff
MICHAEL V. PUGH, Warden, LSCI- 601 D Street, N.W.
Allenwood; JANET RENO, Attorney Washington, DC 20530
General; KATHLEEN HAW K, Dr.,
Director of the Bureau of Prisons Counsel for Appellees
On Appeal from the United States OPINION
District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 97-cv-00359)
COWEN, Circuit Judge.
District Judge:
Hon. James F. M cClure, Jr. A federal prisoner at the low-
security correctional institution in
Argued May 27, 2004 Allenwood, Pennsylvania brought this
action pursuant to 28 U.S.C. § 1331,
BEFORE: RENDELL and COWEN, challenging a Congressional ban on the
Circuit Judges and use of federal funds to distribute certain
SCHW ARZER*, District Judge sexually explicit material to prisoners,
along with its implementing regulation.
(Filed: August 12, 2004) The District Court rejected plaintiff’s
argument that the ban violates the First
*Honorable William W Schwarzer, Amendment and dismissed his complaint,
Senior United States District Judge for finding the prohibition to be reasonably
the Northern District of California, related to the legitimate penological goal
sitting by designation. of prisoner rehabilitation. Because we
find that the District Court erred in includes an exception for material that
resolving the constitutional issue without contains nudity “illustrative of medical,
an adequate factual basis, we will reverse educational, or anthropological content.”
and remand for further proceedings Id. As examples of publications that do
consistent with this opinion. not “feature nudity,” a 1996 program
statement released by the BOP cites
I.
National Geographic, Our Body, Our
The Ensign Amendment, originally Selves, the swimsuit issue of Sports
enacted as part of the Omnibus Illustrated, and the Victoria’s Secret
Consolidated Appropriations Act of 1997, catalog. Fed. Bureau of Prisons Program
prohibits the use of funds appropriated for Statement 5266.07 (Nov. 1, 1996). The
the United States Bureau of Prisons (the regulations are clearly targeted to the
“BOP”) to “distribute or make available receipt by inmates of softcore and hardcore
any commercially published information or pornography.
material to a prisoner . . . [when] such
Plaintiff Marc Ramirez filed suit in
information or material is sexually explicit
the Middle District of Pennsylvania in
or features nudity.” Pub. L. No. 104-208,
1997, naming as defendants the United
§ 614, 110 Stat. 3009-66 (1996). The
States Attorney General, the director of the
amendment has been reenacted in each
BOP, and the warden of the Allenwood
subsequent appropriations act, and is now
i n s ti t u ti o n (colle c t i v e l y , t h e
codified at 28 U.S.C. § 530C(b)(6). An
“government”). Alleging that magazines
implementing regulation promulgated by
addressed to him were rejected as either
the BOP defines the key terms of the
being “sexually explicit” or “featuring
amendment as follows: “sexually explicit”
nu di ty,” Ramirez challenged th e
means “a pictorial depiction of actual or
constitutionality of the Ensign Amendment
simulated sexual acts including sexual
and its implementing regulation on First
intercourse, oral sex, or masturbation”;
Amendment grounds. After a series of
“features” means that the publication in
procedural delays, the District Court
question “contains depictions of nudity or
sexually explicit conduct on a routine or
regular basis or promotes itself based upon
distribution of sexually explicit
such depictions in the case of individual
publications permitted the warden of an
one-time issues”; and “nudity” means “a
institution to reject material that “by its
pictorial depiction where genitalia or
nature or content poses a threat to the
female breasts are exposed.” 28 C.F.R. §
security, good order, or discipline of the
540.72(b). 1 The definition of “features”
institution, or facilitates criminal
activity.” 28 C.F.R. § 540.71(b)(7).
These regulations are still in place to the
1
Before the Ensign Amendment’s extent that they involve material falling
passage, BOP regulations governing the outside the scope of § 540.72(b).
2
finally reached the merits of Ramirez’s Court recognized an enduring tension
complaint on a government motion to between two conflicting principles in
dismiss. Applying the familiar test for operation whenever a prisoner brings a
constitutional challenges to prison constitutional challenge to a law or
regulations set out in Turner v. Safley, 482 regulation affecting prison policy. The
U.S. 78 (1987), the District Court first principle, that “[p]rison walls do not
determined that the amendment and form a barrier separating prison inmates
regulations passed constitutional muster from the protections of the Constitution,”
because they were rationally connected to must be balanced against the practical
the government’s asserted interest in reality that the judicial branch is ill-suited
prisoner rehabilitation, prisoners still had for running the country’s prisons, a task
access to a broad range of materials committed to the particular expertise of the
(including materials with sexually explicit legislative and executive branches.
text), accommodating the asserted right to Turner, 482 U.S. at 84-85. To strike an
view explicit materials would threaten the appropriate balance between prisoners’
safety of correctional staff and other exercise of their constitutional rights and
inmates, and no ready alternative existed the institutional needs of prison
that would accommodate Ramirez’s administrators, the Supreme Court held
asserted right at a de minimus cost to valid that a prison regulation implicating an
penological interests. inmate’s constitutional rights must be
“reaso nably related to legitimate
On appeal, Ramirez argues that the
penological interests” to be valid. Id. at
District Court erred in finding a rational
89. The Court developed a four-part test
connection between the ban on
for assessing the overall reasonableness of
pornography and rehabilitation in the
such a regulation. As a threshold inquiry,
absence of any factual record, and in
“there must be a ‘valid, rational
failing to engage in a “contextual, record-
connection’ between the prison regulation
sensitive analysis” before determining the
and the legitimate governmental interest
ban’s overall reasonableness under Turner.
put forward to justify it.” Id. (quoting
The District Court had jurisdiction under
Block v. Rutherford, 468 U.S. 576, 586
28 U.S.C. § 1331, and we exercise
(1984)). Courts must then determine
jurisdiction pursuant to 28 U.S.C. § 1291.
“whether there are alternative means of
We review de novo the District Court’s
exercising the right that remain open” to
decision to grant the government’s motion
p r i s o n e r s , a n d “ [ w h a t ] im p a c t
to dismiss. Pryor v. National Collegiate
a c c o mm odati o n o f t h e a s s e r t e d
Athletic Ass’n, 288 F.3d 548, 559 (3d Cir.
constitutional right will have on guards
2002).
and other inmates, and on the allocation of
II. prison resources generally.” Id. at 90.
Finally, a regulation’s reasonableness may
In Turner v. Safley, the Supreme
be evidenced by “the absence of ready
3
a l t er n a t iv e s ” t h a t w o u l d f u l l y as tending generally to thwart the character
accommodate the constitutional right “at growth of its consumers,” and that, as a
de minimus cost to valid penological matter of common sense, “prisoners are
interests.” Id. at 90-91. These more likely to develop the now-missing
requirements “serve as guides to a single self-control and respect for others if
reasonableness standard,” but the first prevented from poring over pictures that
“‘looms especially large’ because it ‘tends a r e t h e m s e l v e s d e g ra d i n g a n d
to encompass the remaining factors, and disrespectful.” Id. at 199.
some of its criteria are apparently
The Amatel court did not see the
necessary conditions.’” Waterman v.
need for an evidentiary record, holding
Farmer, 183 F.3d 208, 213-14 (3d Cir.
that its own common sense was sufficient
1999) (quoting Amatel v. Reno, 156 F.3d
to verify the rational connection between
192, 196 (D.C. Cir. 1998)).
the Ensign Amendment’s proscriptions and
To date, the United States Court of the asserted rehabilitative goal. Id. It did,
Appeals for the D.C. Circuit is the only however, cite a body of scholarly research
federal appellate court to have considered to support the reasonableness of the
the merits of a First Amendment challenge proposition that pornography leads to male
to the Ensign Amendment and its objectification of women, and that certain
implementing regulation. In Amatel v. types of pornography can lead to male
Reno, 156 F.3d 192 (D.C. Cir. 1998), that aggression and desensitize viewers to
court rejected the challenge, finding the violence and rape. See id. at 199-200.
restriction on the distribution of sexually The court determined that none of the
explicit material to be reasonably related to three other Turner factors undermined the
the asserted penological interest of overall reasonableness of the Ensign
prisoner rehabilitation. See 156 F.3d at Amendment and its im plem enting
202-03. After identifying prisoner regulation.
rehabilitation as the legitimate penological
Our own court has considered the
interest advanced by the government, the
constitutionality of a restriction similar to
court defined that interest broadly. It
the Ensign Amendment, albeit in a
reasoned that the government’s power to
different context than the one here. In
inculcate values in contexts such as public
Waterman v. Farmer, 183 F.3d 208 (3d
education transferred readily to the context
Cir. 1999), we upheld a New Jersey statute
of prison administration, implicitly
that restricted prisoners’ access to
identifying the promotion of “respect for
pornographic materials at a facility for sex
authority and traditional values” as a
offenders who exhibited “repetitive and
legitimate rehabilitative purpose in and of
compulsive” behavior. After identifying
itself. Id. (internal citation omitted).
the legitimate penological interest at stake
Having done this, it found that “Congress
as the rehabilitation of the state’s “most
might well [have] perceive[d] pornography
dangerous and compulsive sex offenders,”
4
we evaluated the connection between the approach in Waterman, and summarily
statute and that interest in light of an concluded that the restriction was “neutral
evidentiary record that included two expert and reasonable” under Turner. We found
affidavits from the facility itself. Those the district court’s opinion deficient
experts testified that sex offenders’ because it never stated or described the
exposure to pornography would thwart relevant peno logica l interest (the
specific rehabilitative strategies and government had asserted three distinct
treatments administered by prison staff. interests: prison se curity, crime
Id. at 215-16. In reversing a district court deterrence, and rehabilitation). Id. at 308.
that had found the prisoners’ experts We also noted that while a court “need not
“more reasonable” than the government’s, nece ssarily enga ge in a detailed
we cited Amatel for the basic proposition discussion” of the connection between a
that “as long as [a] statute is rational, it prison policy and that interest, a “brief,
clears [Turner]’s first hurdle.” Id. at 217. conclusory statement” is insufficient for
At least within the specific context of the evaluating the application of Turner’s first
rehabilitation of recidivist sex offenders, prong. Id. Finally, we rejected the
we also approved the Amatel court’s use government’s contention that such a
of common sense with regard to whether a connection could always be found without
ban on pornography might encourage the an evidentiary hearing:
development of self-control and respect
While the connection may be a
for others. See id. After examining the
matter of common sense in certain
other Turner factors, we upheld the New
instances, such that a ruling on this
Jersey statute as being reasonably related
issue based only on the pleadings
to the legitimate penological interest of
may be appropriate, there may be
sex-offender rehabilitation.
situations in which the connection
A. is not so apparent and does require
s o me factu al dev elo p m e n t .
We addressed whether the requisite
Whether the requisite connection
rational connection between a prison
may be found solely on the basis of
restriction and a legitimate penological
“common sense” will depend on
interest can be found on the basis of
the nature of the right, the nature of
“common sense” alone in Wolf v.
the interest asserted, the nature of
Ashcroft, 297 F.3d 305 (3d Cir. 2002). In
the proh ibition, and the
Wolf, we reversed a district court’s
obviousness of its connection to the
decision upholding a restriction on the
proferred interest. The showing
showing of R-rated and NC-17-rated
required will vary depending on
movies in federal prisons. The district
how close the court perceives the
court in that case found that no evidentiary
connection to be.
record was necessary because we had
endorsed Amatel’s “common sense”
5
Id. at 308-09. On remand, we directed the issue, and then give the parties the
district court to “describe the interest opportunity to adduce evidence sufficient
served, consider whether the connection to enable a determination as to whether the
between the policy and interest is obvious connection between these goals and the
or attenuated--and, thus, to what extent restriction is rational under Turner.
some foundation or evidentiary showing is
While the obvious end of
n e cessary--and, in light of this
rehabilitation is the prevention of further
determination, evaluate w hat th e
lawbreaking once offenders are released
government has offered.” Id. at 309.
from prison, the scope of the interest itself
Turning to the appeal before us, we has never been defined by the Supreme
find that the District Court erred in Court. See Amatel, 156 F.3d at 209
evaluating the Ensign Amendment and its (“Unlike its interest in institutional
implementing regulation under Turner’s security, the contours of the government’s
first prong on a motion to dismiss, without interest in rehabilitation are quite
any analysis or inquiry into the interests amorphous and ill-defined.”) (Wald, J.,
involved and the connection between those dissenting). Certainly falling within the
interests and the restriction at issue. First, legitimate bounds of the interest are prison
although the District Court correctly policies designed to target the specific
identified rehabilitation as a legitimate behavioral patterns that led to a prisoner’s
penological interest, see O’Lone v. Estate incarceration in the first place, or
of Shabazz, 482 U.S. 342, 348 (1987), it behavioral patterns emerging during
did so without adequately describing the incarceration that present a threat of
specific rehabilitative goal or goals lawbreaking activity other than that for
furthered by the restriction on sexually which the prisoner was confined. To say,
explicit materials. Second, even though however, that rehabilitation legitimately
the connection between the amendment includes the promotion of “values,”
and the rehabilitation of federal sex broadly defined, with no particularized
offend ers may be obvious under identification of an existing harm towards
Waterman, that connection becomes which the rehabilitative efforts are
attenuated upon consideration of the entire addressed, would essentially be to
population of BOP inmates, such that a acknowledge that pris oner s’ First
factual record becomes necessary for Amendment rights are subject to the
determining the rationality of the pleasure of their custodians. See, e.g., id.
amendment’s overall connection to at 210 (arguing that under such a broad
rehabilitative interests. On remand, definition of rehabilitation, lawmakers
therefore, the District Court must first could constitutionally engage in viewpoint
identify with particularity the specific discrimination by proscribing texts
rehabilitative goals advanced by the expressing disfavored positions) (Wald, J.,
government to justify the restriction at dissenting). To the extent that the Amatel
6
majority defines rehabilitation in this way, (“[Turner’s] reasonableness standard is not
we disagree with its reasoning. See id., toothless.”) (internal quotation omitted);
156 F.3d at 209 (“[T]o proceed on some Amatel, 156 F.3d at 206, 211 (“[M]ore
vague assertion of an interest in precisely, [the standard] is not a license for
‘rehabilitation’ without the need to define lawmakers, any more than prison wardens,
the term or to show a connection between to shortchange the constitutional rights that
the proscribed activity and the chosen the Supreme Court has insisted prisoners
definition . . . runs an overwhelming risk continue to possess. . . . If rehabilitation is
of overregulation.”) (Wald, J., dissenting). to be deemed a legitimate penological
While the actual right to view materials interest, the term must be given some
subject to the Ensign Amendment’s shape, at least when it collides with
proscriptions might be significantly narrow fundamental liberties.”) (W ald, J.,
in this case, courts may not abdicate their dissenting). As a preliminary step in
responsibility to scrutinize carefully the determining the extent to which evidence
government’s reasons for infringing that is required under Wolf where the
right. 2 See Thornburgh, 490 U.S. at 414 penological interest advanced by the
government is rehabilitation, therefore, a
district court must describe with
2 particularity the specific rehabilitative goal
Inmates have no right to receive
or goals relied upon by the government to
materials that constitute obscenity.
justify the chall enged regulation.
Miller v. California, 413 U.S. 15, 23
See Wolf, 297 F.3d at 308 (rejecting
(1973) (“[O]bscene material is
“conclusory” statements that make it
unprotected under the First
difficult to determine what connection a
Amendment.”). However, materials that
court sees between the advanced
constitute indecent sexual expression not
penological interest and a prison
rising to the level of obscenity are
restriction).
constitutionally protected. Reno v.
American Civil Liberties Union, 521 We may gather from the District
U.S. 844, 874-75 (1997). To the extent Court’s reliance upon the scholarly works
that the Ensign Amendment and its discussed in Amatel that, at the very least,
implementing regulation target non- it believed the government’s specific
obscene material, therefore, its rehabilitative goals to include the
proscriptions must satisfy the prevention of sex crimes and violence
requirements of Turner. In considering against women. See Amatel, 156 F.3d at
the evidence on remand, the District
Court should be sensitive to arguments
that draw legitimate distinctions between that the government had provided no
prohibited materials that are evidence that non-pornographic nudity
constitutionally protected. See, e.g., has any effect on long-term rehabilitative
Amatel, 156 F.3d at 207-08 (maintaining interests) (Wald, J., dissenting).
7
199-200. Were the Ensign Amendment’s convicted federal sex offenders. We
scope limited to federal prisoners who recognize that the government has wide
have committed sex crimes or violence l a t it u d e i n p u r s u i n g l e g i ti m a te
against women, the means-end connection rehabilitative goals; courts may not
would be sufficiently obvious such that the substitute their own judgment in place of
first prong of Turner could be resolved on that of the legislative or executive
the basis of common sense. In Waterman, branches where the position advanced by
we found the prohibition against sexually the government is not “irrational or
explicit material to be clearly connected to u n r e a s o n a b l e ” b u t s i m p l y “ l e ss
the rehabilitation of recidivist sex reasonable” than that of the prisoner-
offenders whose demonstrated inability to plaintiffs. See Waterman, 183 F.3d at 216.
control their sexual impulses had led to In the absence of a factual record,
their incarceration at the facility in however, we cannot ignore the possibility
question. See Waterman, 183 F.3d at 217 that the proscription rationally applies to
(noting that restrictions on pornography such a small percentage of the BOP inmate
f o st e r t he “deferring of sexual population that its connection to the
gratification, [] sublimation of sexual government’s rehabilitative interest “is so
impulses, [and] channeling of sexual remote as to render [it] arbitary or
expression into long-term relationship of irrational.” Turner, 482 U.S. at 89-90;
caring and affection” related to the “now- Waterman, 183 F.3d at 213 (holding that
missing self-control and respect for the Turner test subsumes traditional
others”) (quoting Amatel, 156 F.3d at overbreadth and vagueness analyses).
199). However, we do not find the Determining whether there is a rational
c o n n e c t io n b e t w e e n t h e E n sig n link between sexually explicit material and
Amendment and the governmen t’s the harms toward which the government’s
rehabilitative interest to remain obvious overall rehabilitative efforts are directed
upon consideration of the entire federal requires more than a conclusory assertion
inmate population, including those that the “consumption of [sexually
prisoners not incarcerated for sex-related explicit] publications [] imp licitly
crimes. In this case, therefore, we believe elevate[s] the value of the viewer’s
Wolf necessitates the development of a immediate sexual gratification over the
factual record. See Wolf, 297 F.3d at 309 values of respect and consideration for
(requiring an evidentiary showing roughly others” and a generalized statement that
corresponding to the degree to which the sexual self-control is relevant to the
required means-end connection is rehabilitation of the entire class of federal
“attenuated”). prisoners.3 Amatel, 156 F.3d at 199.
By no means do we wish to suggest
that the only legitimate target of the
3
Ensign Amendment is the class of We further note that, “while a court
can bolster its finding of a connection by
8
B. The third and fourth Turner factors
require consideration as to whether
As to whether an evidentiary basis
accommodating the asserted right would
is required for the remaining three Turner
have an adverse impact “on guards and
prongs, we repeat our observation that “we
other inmates[] and on the allocation of
have historically viewed these inquiries as
prison resources,” as well as a
being fact-intensive . . . [requiring] ‘a
determination as to whether alternatives
contextual, record-sensitive analysis.’”
exist that can accommodate the right “at de
Wolf, 297 F.3d at 310 (quoting DeHart v.
minimus costs to valid penological
Horn, 227 F.3d 47, 59 n.8 (3d Cir. 2000)
interests.” Turner, 482 U.S. at 90-91. The
(en banc)). Where the link between the
District Court’s apparent factual
regulation at issue and the legitimate
conclusion that accommodation “would
government interest is sufficiently
increase the risks of sexual crimes and
obvious, no evidence may be necessary to
misconduct within the prison walls,” is
evaluate the other Turner prongs. See,
speculative and unsupported. The
e.g., Waterman, 183 F.3d at 217; but see
existence of a possible “ripple effect” on
Wolf, 297 F.3d at 310 (observing that the
the rehabilitation of prisoners legitimately
first prong does not subsume the rest of the
targeted by the Ensign Amendment could
inquiry). In this case, however, we agree
reasonably be disputed; certainly relevant
with Ramirez that the third and fourth
to this inquiry is whether those prisoners
Turner factors cannot be adequately
are housed separately from inmates whose
assessed in the absence of an evidentiary
rehabilitation would not be affected. For
foundation.4
the same reason, it does not follow from
reference to decisions of other courts on
the same issue,” it must engage in at least stake,” factual development does not
some independent analysis of whether appear necessary because the relevant
the connection is rational. Wolf, 297 right “must be viewed sensibly and
F.3d at 309. We are unclear from its expansively.” Waterman, 183 F.3d at
passing reference to “the scholarly 219 (quoting Thornburgh, 490 U.S. at
findings detailed in Amatel” whether the 417). In the context of a prison ban on
District Court actually examined and certain publications, this criterion is met
considered the scholarship at issue, and if the regulations “permit a broad range
therefore reject the argument that its of publications to be sent, received, and
reliance on these findings was sufficient read.” Thornburgh, 490 U.S. at 418.
for establishing the requisite rational Concerns that such a ban is overbroad
connection. because it does not further the
rehabilitation of particular classes of
4
With regard to the “availability of prisoners are appropriately addressed to
alternate means of exercising the right at Turner’s other three prongs.
9
our decision in Waterman that limited government interest of rehabilitation
distribution can never be conducted at without an adequate factual basis for so
de minimus costs to valid penological doing.5 Accordingly, we will reverse the
interests. See Waterman, 183 F.3d at 219 judgment of the District Court entered on
(finding the third and fourth Turner prongs February 28, 2002 and remand with
satisfied because the facility in question instructions to conduct an appropriate
was insufficiently staffed to conduct case- proceeding before reevaluating the
by-case reviews and prisoners were “more amendment and regulation under Turner.
than likely” to pass materials among one
another); cf. Amatel, 156 F.3d at 213
(arguing that a return to the case-by-case
review embodied in the previously BOP
regulation might not constitute an
additional administrative burden because
prison officials are required under the
Ensign Amendment to examine each 5
We have not addressed the
publication and determine whether it is
government’s contention that the Ensign
“sexually explicit or features nudity”)
Amendment and its implementing
(Ward, J., dissenting). Contrary to the
regulation satisfy the Turner criteria
decision in Amatel, we believe this to be a
because they are reasonably related to the
case in which factual development is
legitimate penological interests of prison
necessary for evaluating the Ensign
security, deterrence, and punishment.
Amendmen t and its im plem enting
Although the District Court mentioned
regulation under Turner. See Wolf, 297
“institutional security” as an interest to
F.3d at 310 (“[C]ourts of appeals
which the ban on sexually explicit
ordinarily remand to the trial court where
materials was rationally connected and
the Turner factors cannot be assessed
stated that accommodating the right
because of an undeveloped record.”)
“would increase the risks of sexual
(citing Doe v. Delie, 257 F.3d 309, 317
crimes and misconduct,” its analysis
(3d Cir. 2001)).
focuses on the rehabilitative interest
discussed in Amatel and Waterman.
Cf. Mauro v. Arpaio, 188 F.3d 1054 (9th
III.
Cir. 1999) (finding a restriction on
inmates’ possession of sexually explicit
materials to be reasonably related to
For the reasons discussed above, we
institutional security under Turner).
find that the District Court erred in
Therefore, whether other legitimate
determining that the Ensign Amendment
penological interests might justify the
and its implementing regulation were
Ensign Amendment’s proscriptions is not
reasonably related to the legitimate
properly before us.
10
