Judges: Per Curiam
Filed: May 21, 2018
Latest Update: Mar. 03, 2020
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 21, 2018* Decided May 21, 2018 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-3345 SHANE T. ROBBINS, Appeal from the United States District Plaintiff-Appellant, Court for the Eastern District of Wisconsin. v. No. 16-CV-1528 BRIAN FOSTER, et al., Lynn Adelman, Defe
Summary: NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 United States Court of Appeals For the Seventh Circuit Chicago, Illinois 60604 Submitted May 21, 2018* Decided May 21, 2018 Before JOEL M. FLAUM, Circuit Judge MICHAEL S. KANNE, Circuit Judge DIANE S. SYKES, Circuit Judge No. 17-3345 SHANE T. ROBBINS, Appeal from the United States District Plaintiff-Appellant, Court for the Eastern District of Wisconsin. v. No. 16-CV-1528 BRIAN FOSTER, et al., Lynn Adelman, Defen..
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NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted May 21, 2018*
Decided May 21, 2018
Before
JOEL M. FLAUM, Circuit Judge
MICHAEL S. KANNE, Circuit Judge
DIANE S. SYKES, Circuit Judge
No. 17‐3345
SHANE T. ROBBINS, Appeal from the United States District
Plaintiff‐Appellant, Court for the Eastern District of Wisconsin.
v. No. 16‐CV‐1528
BRIAN FOSTER, et al., Lynn Adelman,
Defendants‐Appellees. Judge.
O R D E R
Shane Robbins, an inmate at Waupun Correctional Institution, mail‐ordered a
gynecology study guide, which prison officials confiscated before it reached him.
Robbins claims that those officials violated the First Amendment by withholding his
book. The district court entered summary judgment for the defendants. Because the
* We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 17‐3345 Page 2
book contains images detrimental to prison security and Robbins’s rehabilitation, and
alternative textbooks are available, we affirm the judgment.
Robbins was convicted of several counts of child enticement and sexually
assaulting two minor girls. He ordered the Williams Gynecology Study Guide, he says, to
“educate [him]self on female sex organs” to assist his litigation of a postconviction
petition. The book contains images of uncovered female breasts and genitalia and at
least “one full‐length photograph of a naked prepubescent girl, and several images of
girls’ genitals,” so prison officials confiscated it. They told Robbins that the book was
“injurious” contraband because, under Department of Corrections policy, it included
“pornography” and was inconsistent with or threatened prison security and inmate
safety. See WIS. ADMIN. CODE DOC § 309.04(4)(c)(8). Robbins unsuccessfully grieved and
then appealed that decision.
Robbins then claimed under 42 U.S.C. § 1983 that prohibiting the Williams guide
violated his First Amendment rights. The judge entered summary judgment in the
officials’ favor primarily based on affidavits by the prison’s psychologist, security
director, and librarian. Robbins, the judge determined, had not countered the evidence
that the Williams guide might impede the rehabilitation of Robbins and other inmates or
that it likely would cause fights or theft. Therefore, the judge concluded, the officials
adequately had justified their decision to prohibit the book as “reasonably related to
legitimate penological interests,” Turner v. Safley, 482 U.S. 78, 89 (1987), and that
Robbins had not overcome the presumption that the officials had “acted within their
‘broad discretion,’” Shaw v. Murphy, 532 U.S. 223, 232 (2001) (quoting Thornburgh v.
Abbott, 490 U.S. 401, 713 (1989)). And there was no effective alternative to prohibiting
the book, the judge said, because there were too many pictures to redact and
Department policy bars officials from removing disallowed pages, see WISC. DIV. OF
ADULT INST. POLICY § 309.20.03(I)(C)(5)(b).
We review the grant of summary judgment de novo. See Jackson v. Frank, 509 F.3d
389, 391 (7th Cir. 2007). Although the First Amendment protects an inmate’s access to
reading material, prisons may have “valid penological reasons” for restricting certain
books. Munson v. Gaetz, 673 F.3d 630, 633 (7th Cir. 2012); see also King v. Fed. Bureau of
Prisons, 415 F.3d 634, 638–39 (7th Cir. 2005) (observing prison might reasonably bar
book that encourages recidivism). We consider four factors to determine whether such a
restriction is reasonably related to penological interests: “(1) the validity and rationality
of the connection between a government objective and the restriction; (2) whether the
prison leaves open ‘alternative means of exercising’ the restricted right; (3) the
restriction’s bearing on the guards, other inmates, and the allocation of prison
No. 17‐3345 Page 3
resources; and (4) the existence of alternatives suggesting that the prison exaggerates its
concerns.” Munson, 673 F.3d at 633 (quoting Turner, 482 U.S. at 89–91). It is Robbins’s
burden to show that the prison’s regulation is unreasonable. Jackson, 509 F.3d at 391.
As to the first factor, the officials’ decision to prohibit the Williams guide is
legitimately connected to their interest in promoting Robbins’s rehabilitation and
maintaining prison security. See WIS. ADMIN. CODE DOC § § 309.04(4)(c)(8)(c). The
prison psychologist explained that Robbins still is waiting for sex‐offender treatment
and that, based on his specific offense history, “unfettered access to the book” and its
images “could potentially feed his offense‐related sexual fantasies and encourage
deviant sexual behavior.” Robbins responds by questioning the officials’ interest in
restricting nude images, citing a psychologist’s statement in an unrelated case that
suppressing all “sexually oriented materials does not mean that sex offenders will not
have deviant urges.” See Waterman v. Verniero, 12 F.Supp.2d 364, 371 (D. N.J. 1998),
reversed by Waterman v. Farmer, 183 F.3d 208 (3d Cir. 1999). But this general observation
is not evidence, nor does it rebut the psychologist’s specific finding in this case that the
images of children in the Williams guide will impede Robbins’s rehabilitation. See Fed.
R. Civ. P. 56(c)(1); Carroll v. Lynch, 698 F.3d 561, 566 (7th Cir. 2012) (no genuine dispute
of material fact where opposing party offered “no evidence of specific facts
contradicting or undermining” defendants’ evidence). The assessment, therefore, is
undisputed.
The prison’s interest in promoting a safe environment also supports prohibiting
the Williams guide. The security director observed that the book likely would cause
“theft, bartering, strong‐arming, and fights” because of its images. Robbins’s (dubious)
assertion that that he “has never heard of such of thing” is not evidence and is
irrelevant; the security risk can exist without him knowing about it. See Thornburgh,
490 U.S. at 412–13 (noting that publications intended for a general audience “reasonably
may be expected to circulate among prisoners” and potentially cause disruption).
Further, Robbins presents no other opposing evidence. Indeed his assertion that “hard‐
core” pornography is “very easy” to obtain in the prison “at a very low price” only
underlines the officials’ concern that there is a market for illicit images among inmates
and explains their desire to keep images from the Williams guide from also circulating.
See Payton v. Cannon, 806 F.3d 1109, 1110 (7th Cir. 2015) (inmate must provide evidence
opposing prison’s security concerns). Robbins also argues that the images are not
“pornography.” But the officials now disclaim that designation and rely solely on the
images’ effect on rehabilitation and security.
No. 17‐3345 Page 4
With regard to the second factor, Robbins has alternative means of exercising his
rights. The prison librarian attested that the library contains anatomy textbooks with
sections on female reproductive organs, and Robbins could order books that do not
include prohibited images—which he does not contest, though he does not want to pay
for them. He also does not explain his protestation that he needs more detailed
information about female genitalia than an “anatomy” textbook can provide. Nor does
he answer the regulation that restricts the prison from redacting the “disallowed
content” from contraband publications, foreclosing that alternative measure. The third
factor—the restriction’s effect on other inmates, guards, and resources—also weighs in
the officials’ favor. The prison psychologist attested that disseminating these photos
jeopardizes the rehabilitation of other prisoners as well, and Robbins does not dispute
that there are no practicable means of redacting the book. And theft, fighting, or other
disruptions resulting from Robbins’ possession of the book would divert resources,
including guards’ time and attention, from other prison security matters. As for the
fourth factor—whether the existence of alternatives undermines the officials’ concern
about the Williams guide—Robbins submitted no evidence that the prison’s anatomy
textbooks contain the same types of images that he is barred from possessing.
Accordingly, we AFFIRM summary judgment for the defendants.