Opinion
No. 12–P–740.
2013-09-17
Tony P. GASKINS v. Kathleen DENNEHY & another.
By the Court (WOLOHOJIAN, HANLON & AGNES, JJ.).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The plaintiff is an inmate serving a lawful sentence at MCI–Cedar Junction. The defendant Dennehy is the now former Commissioner of Correction, and defendant John Marshall is the now former superintendent of MCI–Cedar Junction. The complaint, filed in 2006, alleges that an inmate mail regulation adopted by the Department of Correction (DOC) in 2002, see 103 Code Mass. Regs. § 481.15(2)(1) (2002), which prohibits the receipt of sexually explicit material and material that features nudity within nonprivileged mail and publications, violates the plaintiff's rights under the First Amendment to the United States Constitution and art. 16 of the Massachusetts Declaration of Rights. In particular, the plaintiff alleges that it was unconstitutional for the defendants, acting under this regulation, to deny him the right to receive nude photographs of his spouse and others, and publications depicting nude photographs of women such as Hustler magazine, High Society magazine, Playboy magazine, and the like. On October 17, 2006, the defendants filed a motion to dismiss, or in the alternative, a motion for summary judgment that relied on an affidavit submitted by James Bender, then Commissioner of Correction, explaining the process followed by the DOC to develop and adopt the inmate mail regulations, which included a review of inmate mail procedures in all correctional facilities and an exhaustive review of all reports of a sexual nature within the DOC during the previous two years. Following a hearing, a judge of the Superior Court allowed the defendants' motion to dismiss and filed an accompanying written memorandum of decision.
Two other plaintiffs, Derek Wright and Sean Thomas, are not before us on appeal, as they did not join Gaskins's motion to docket his appeal late or separately seek to docket their appeals.
In Moses v. Dennehy, 523 F.Supp.2d 57 (D.Mass.2007), a judge of the United States District Court for the District of Massachusetts considered the contention that under the First Amendment, a ban on sexually explicit publications and items within Massachusetts correctional institutions violated inmates' rights to free expression. The United States District Court judge applied the test developed in Turner v. Safley, 482 U.S. 78, 84 (1987). In Turner, the United States Supreme Court found that the traditional test for governmental regulations that affect fundamental constitutional rights, such as the right of free expression, was not appropriate to use in the setting of a correctional institution. Id. at 89. The Supreme Court replaced the traditional strict scrutiny analysis with an alternative based on a recognition that courts are ill-equipped to administer and regulate the day-to-day activities of prisons, and proper management of such facilities requires courts to give a high degree of deference to decisions made by prison officials. Ibid. Thus in Turner, the Supreme Court held that when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests. Ibid. Applying this test and the four factors that the Supreme Court stated must be considered, the United States District Court judge concluded that the defendants had demonstrated a logical link between sexually explicit materials and the break-down of security in the prisons. Moses, 523 F.Supp.2d at 62. The United States District Court judge also noted that the challenged regulation allowed for a broad range of alternative publications to be sent, received, and read by inmates, and that the regulation in question served to protect the rights of other inmates to a safe and secure environment. Accordingly, the judge determined as a matter of law that the inmate mail regulation is a constitutionally valid prison regulation. Id. at 63. As for the plaintiffs' as applied challenge to the regulation, the judge determined that there were no facts in dispute of a material nature, see note 4, supra, and that the plaintiffs had not established that a jury could conclude that the regulation as applied was wholly irrational or arbitrary. Accordingly, the United States District Court judge allowed the defendants' motion for summary judgment. Id. at 65.
In Moses, the United States District Court judge also considered the plaintiffs' claim that the actual application of the regulation violated their rights. Although this issue involved a factual component, the judge found that the publications set forth in the complaint that had been banned by prison authorities under the regulation in question invariably contain nude or semi-nude depictions, or sexually explicit content, Moses, 523 F.Supp.2d at 64, and that other publications that cannot be classified in such generic terms received an individual review by authorities who found that the materials contained banned content. Id. at 65. On this basis, the judge determined that there was no dispute as to the material facts. Applying the Turner test, the judge reasoned that the plaintiffs had not met their burden of demonstrating that the application of the regulation in question was without support in reason. Ibid. It should be noted that there are no specific publications in the record before us that the plaintiff maintains were banned even though they do not fall within the scope of the regulation in question.
The plaintiffs in Moses appealed the decision to the United States Court of Appeals for the First Circuit. In Josselyn v. Dennehy, 333 Fed. Appx. 581, 584 (1st Cir.2009), the court affirmed the ruling made by the United States District Court judge and confirmed that he had correctly applied the Turner test in assessing the constitutionality of the DOC's regulation. Importantly, the First Circuit explained that even though the plaintiffs had submitted affidavits and exhibits that complied with Fed.R.Civ.P. 56(e), they had not succeeded in creating a dispute over material facts because the United States District Court judge was required to defer to the views of prison authorities, not to the plaintiffs' views as to whether the regulation serves its stated purpose. Josselyn, 333 Fed. Appx. at 585.
The First Circuit added that the plaintiffs' as-applied challenge to the ban on certain publications failed because copies of individual publications that had been banned were not included in the record. Josselyn, 333 Fed. Appx. at 586. The First Circuit also addressed the claim that there was evidence of inconsistent application of the regulation by noting that there was nothing arbitrary or capricious about applying the regulation more strictly at some correctional institutions than others. Ibid.
The thrust of the plaintiff's State law claim in the case before us is that his right of free expression entitles him to receive, read, and use sexually explicit material so long as it does not meet the definition of unlawful obscenity. We agree with the analysis of the First Amendment claims undertaken by the Federal District Court judge in Moses v. Dennehy, supra, and affirmed by the First Circuit in Josselyn v. Dennehy, supra, and conclude that the judge here did not err in relying on these cases to dismiss the plaintiff's Federal claims. We reach the same conclusion with respect to the plaintiff's State law claims. Acknowledging the difficulty that prison officials face in the operation of prisons, we have expressly adopted Turner's deferential standard of review for constitutional challenges to prison regulations and policies. Massachusetts Prisoners Assn. Political Action Comm. v. Acting Governor, 435 Mass. 811, 819–820 (2002). Insofar as the plaintiff relies on Lovell v. Superintendent, North Cent. Correctional Inst., 26 Mass.App.Ct. 35, 40 (1988), where we determined that the justification for an internal rule at one correctional facility that banned nude photos in housing units and common areas was lacking, we agree with the defendants that Lovell was decided twelve years before the DOC conducted its 2000 review of the effect of sexually explicit material on inmates and staff which led it to conclude that such material impairs the security of the prison. Moses, 523 F.Supp.2d at 62.
Judgment affirmed.