1997 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

7-10-1997

Yeskey v. PA Dept Corrections

Precedential or Non-Precedential:

Docket 96-7292

Follow this and additional works at: http://digitalcommons.law.villanova.edu/thirdcircuit_1997

This decision is brought to you for free and open access by the Opinions of the United States Court of Appeals for the Third Circuit at Villanova

University School of Law Digital Repository. It has been accepted for inclusion in 1997 Decisions by an authorized administrator of Villanova

University School of Law Digital Repository. For more information, please contact Benjamin.Carlson@law.villanova.edu.

Recommended Citation

"Yeskey v. PA Dept Corrections" (1997). 1997 Decisions. Paper 155.

http://digitalcommons.law.villanova.edu/thirdcircuit_1997/155
Filed July 10, 1997 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 96-7292 

RONALD R. YESKEY, 

APPELLANT

v. 

COMMONWEALTH OF PENNSYLVANIA DEPARTMENT OF 

CORRECTIONS; JOSEPH D. LEHMAN; JEFFREY A. 

BEARD, PH.D.; JEFFREY K. DITTY; DOES NUMBER 1 

THROUGH 20, INCLUSIVE, 

APPELLEES

On Appeal From the United States District Court 

For the Middle District of Pennsylvania 

(D.C. Civ. No. 95-cv-02125) 

Argued: January 31, 1997 

Before: BECKER, ROTH, Circuit Judges, and 

BARRY, District Judge.* 

(Filed July 10, 1997) 

L. ABRAHAM SMITH, ESQUIRE 

 (ARGUED) 

P.O. Box 1644 

Greensburg, PA 15601 

Attorney for Appellant

_________________________________________________________________ 

*Honorable Maryanne Trump Barry, United States District Judge for 

the District of New Jersey, sitting by designation.
THOMAS W. CORBETT, JR. 

Attorney General 

R. DOUGLAS SHERMAN (ARGUED) 

Deputy Attorney General 

CALVIN R. KOONS 

Senior Deputy Attorney General 

JOHN G. KNORR, III 

Chief Deputy Attorney General 

Office of Attorney General 

15th Floor, Strawberry Square 

Harrisburg, PA 17120 

Attorneys for Appellees

OPINION OF THE COURT 

BECKER, Circuit Judge. 

Ronald R. Yeskey is a Pennsylvania prison inmate who 

was denied admission to the Pennsylvania Department of 

Correction's Motivational Boot Camp program because of a 

history of hypertension, despite the recommendation of the 

sentencing judge that he be placed therein.1 Yeskey brought 

suit in the district court under the Americans With

Disabilities Act (ADA), 42 U.S.C. § 12101 et seq., alleging 

that his exclusion from the program violated that enactment.2 

The district court dismissed Yeskey's complaint, Fed. R. 

_________________________________________________________________ 

1. The Motivational Boot Camp Act, 61 P.S. §1121 et seq., established a 

"motivational boot camp" to which certain inmates may be assigned by 

the Department of Corrections to serve their sentences for a period of six 

months. The boot camp provides rigorous physical activity, intensive 

regimentation and discipline, work on public projects, and other 

treatment. Id. §1123. Pursuant to statute, placement of inmates in the 

boot camp is discretionary, and, as such, no inmate has a right to such 

placement. Id. §1126(d). Upon successful completion of the six months 

incarceration, the inmate is released on parole for intensive supervision 

as determined by the Pennsylvania Board of Probation and Parole. Id.

§1127. 

2. Yeskey also asserted claims under 42 U.S.C. § 1983 and state law. 

 2 
Civ. P. 12(b)(6), holding that the ADA is inapplicable to 

state prisons. The question of the applicability of the ADA 

to prisons is an important one, especially in view of the 

increased number of inmates, including many older, 

hearing-impaired, and HIV-positive inmates, in the nation's 

jails. See generally Ira P. Robbins, George Bush's America

Meets Dante's Inferno: The Americans with Disabilities Act in

Prison, 15 Yale L. & Pol'y Rev. 49, 56-63 (1996). For the

reasons that follow, we reverse.3 

I. 

Because this appeal turns on statutory construction, we 

begin with the text of the relevant statute, or more 

precisely, statutes. Although Yeskey only invoked the ADA, 

our discussion necessarily involves Section 504 of the 

Rehabilitation Act, 29 U.S.C. § 794(a). Section 504, the first 

federal statute to provide broad prohibitions against 

discrimination on the basis of disability, applies only to 

programs and activities receiving federal financial

assistance. Title II of the ADA, the broader statute, enacted 

in 1990, extends these protections and prohibitions to all 

state and local government programs and activities,

regardless of whether they receive federal financial 

assistance. Congress has directed that Title II of the ADA be 

interpreted in a manner consistent with Section 504, 42 

U.S.C. § 12134(b), 12201(a),4 and all the leading cases take 

up the statutes together, as will we. 

The substantive provisions of the statutes are similar. 

Section 504 provides in pertinent part: 

_________________________________________________________________ 

3. By the time this case was listed for submission in this Court, only a 

short time remained on Yeskey's sentence, and we have unfortunately 

been unable to dispose of it until now. He may have been released (the 

parties have not informed us on this point). However, Yeskey's complaint 

included a claim for damages, and hence the case is not moot. We also 

note that, since boot camp placement commences contemporaneous with 

the execution of sentence, it would probably be nigh impossible to test 

improper exclusion from the boot camp program in federal court before 

the six month placement expires, likely creating a situation capable of 

repetition yet evading review, which excuses mootness. 

4. See generally Robbins, supra, at 73-76. 

 3 
 No otherwise qualified individual with a disability in 

the United States . . . shall, solely by reason of her or 

his disability, be excluded from the participation in, be 

denied the benefits of, or be subjected to 

discrimination under any program or activity receiving 

Federal financial assistance or under any program or 

activity conducted by any Executive agency[.] 

29 U.S.C. § 794(a). 

Title II of the ADA provides in pertinent part: 

no qualified individual with a disability shall, by reason 

of such disability, be excluded from participation in or 

be denied the benefits of the Services, programs, or 

activities of a public entity, or be subjected to 

discrimination by any such entity. 

42 U.S.C. § 12132. 

The statutory definition of "[p]rogram or activity" in 

Section 504 indicates that the terms were intended to be 

all-encompassing. They include "all of the operations of -- 

(1)(A) a department, agency, special purpose district, or 

other instrumentality of a State or of a local government 

. . . any part of which is extended Federal financial 

assistance." 29 U.S.C. §794(b) (emphasis added). It is hard 

to imagine how state correctional programs would not fall 

within this broad definition. 

Moreover, a word in a statute "must be given its `ordinary 

or natural' meaning," see Bailey v. United States, 116 S. Ct. 

501, 506 (1995), and the ordinary meanings of "activity" 

and "program" clearly encompass those that take place in 

prisons. "Activity" means, inter alia, "natural or normal 

function or operation," and includes the "duties or

function" of "an organizational unit for performing a specific 

function." Webster's Third New International Dictionary 22 

(1986). "Program" is defined as "a plan of procedure: a 

schedule or system under which action may be taken 

toward a desired goal." Id. at 1812. Certainly, operating a 

prison facility falls within the "duties or functions" of local 

government authorities. Moreover, Title II's definition of a 

"public entity" clearly encompasses a state or local 

correctional facility or authority: "any department, agency, 

 4 
. . . or other instrumentality of a State or States or local 

government[.]" 42 U.S.C. § 12131(1)(B) (emphasis added). 

This conclusion is bolstered by the Department of Justice 

(DOJ) regulations implementing both Section 504 and Title 

II of the ADA. These regulations were expressly authorized 

by Congress, 29 U.S.C. § 794(a); 42 U.S.C. §§ 12134(a), 

12206, and, in view of Congress' delegation, the DOJ's 

regulations should be accorded "controlling weight unless 

[they are] `arbitrary, capricious, or manifestly contrary to 

the statute,' " Babbitt v. Sweet Home Chapter of

Communities for a Great Oregon, 115 S. Ct. 2407, 2418 

(1995). The same is true of the preamble or commentary 

accompanying the regulations since both are part of the 

DOJ's official interpretation of the legislation. Thomas

Jefferson Univ. v. Shalala, 114 S. Ct. 2381, 2386 (1994). 

DOJ interprets both Section 504 and Title II of the ADA to 

apply to correctional facilities. 

The regulations promulgated by DOJ to enforce Section 

504 define the kinds of programs and benefits that should 

be afforded to individuals with disabilities on a 

nondiscriminatory basis. The regulations define "program" 

to mean "the operations of the agency or organizational unit 

of government receiving or substantially benefiting from the 

Federal assistance awarded, e.g., a police department or 

department of corrections." 28 C.F.R. § 42.540(h) (1996) 

(emphasis added). The term "[b]enefit" includes "provision 

of services, financial aid or disposition (i.e., treatment, 

handling, decision, sentencing, confinement, or other 

prescription of conduct)." Id. § 42.540(j) (emphasis added). 

The appendix to the regulations, attached to the Final Rule 

(45 Fed. Reg. 37620, 37630 (1980)), makes clear that 

services and programs provided by detention and 

correctional agencies and facilities are covered by Section 

504. This coverage is broad, and includes "jails, prisons, 

reformatories and training schools, work camps, reception 

and diagnostic centers, pre-release and work release 

facilities, and community-based facilities." Id.

The appendix further provides that those facilities

designated for use by persons with disabilities are "required 

to make structural modifications to accommodate detainees 

or prisoners in wheelchairs." Id. The DOJ regulations 

 5 
applicable to federally conducted programs also make it 

clear that institutions administered by the Federal Bureau 

of Prisons are subject to Section 504. See 28 C.F.R. 

§ 39.170(d)(1)(ii) (Section 504 complaint procedure for 

inmates of federal penal institutions); id. pt. 39, Editorial 

Note, at 675 (Section 504 regulations requiring 

nondiscrimination in programs or activities of the 

Department of Justice apply to the Federal Bureau of 

Prisons); id. at 676 (federally conducted program is 

"anything a Federal agency does"). 

The regulations promulgated under Title II of the ADA 

afford similar protections to persons with disabilities who 

are incarcerated in prisons, or otherwise institutionalized 

by the state or its instrumentalities, regardless of the public 

institution's receipt of federal financial assistance. The 

regulations state that the statute's coverage extends to "all 

services, programs, and activities provided or made

available by public entities." Id. § 35.102(a). This broad 

language is intended to "appl[y] to anything a public entity 

does." Id. pt. 35, app. A, subpt. A at 456. As part of its 

regulatory obligations under Title II, the DOJ is designated 

as the agency responsible for coordinating the compliance 

activities of public entities that administer "[a]ll programs, 

services, and regulatory activities relating to law

enforcement, public safety, and the administration of 

justice, including courts and correctional institutions." Id.

§ 35.190(b)(6). The preamble to the ADA regulations also 

refers explicitly to prisons, stating that, where an individual 

with disabilities "is an inmate of a custodial or correctional 

institution," the entity is required to provide"assistance in 

toileting, eating, or dressing to [that] individual[ ]." Id. pt. 

35, app. A at 468.5 

_________________________________________________________________ 

5. Moreover, the DOJ Title II Technical Assistance Manual specifically 

lists "jails and prisons" as types of facilities that, if constructed or 

altered after the effective date of the ADA (January 26, 1992), must be 

designed and constructed so that they are readily accessible to and 

usable by individuals with disabilities. Title II Technical Assistance

Manual II-6.0000, II-6.3300(6). The design standards applicable to 

facilities covered by Section 504 and Title II also include specific 

provisions relating to correctional facilities. The DOJ Section 504 

regulations adopt the Uniform Federal Accessibility Standards (UFAS), 

 6 
In sum, Section 504 of the Rehabilitation Act, Title II of 

the ADA, and the specific provisions in the DOJ's 

regulations listing correctional facilities or departments as 

covered entities confirm that the Rehabilitation Act and the 

ADA apply to state and locally-operated correctional 

facilities. 

II. 

The weight of judicial authority also supports our 

conclusion that the ADA applies to prison programs. In 

Crawford v. Indiana Department of Corrections, ___ F.3d ___, 

1997 WL 289101 (7th Cir. June 2, 1997), the Seventh

Circuit held that Title II of the ADA applied to state prisons 

in the case of a blind, former state prisoner who sought 

damages resulting from his exclusion from a variety of 

programs, activities, and facilities at the prison that were 

routinely available to the prison's population, including 

educational programs, the library, and the dining hall. 

Accord Duffy v. Riveland, 98 F.3d 447, 455 (9th Cir. 1996); 

Harris v. Thigpen, 941 F.2d 1495, 1522 n.41 (11th Cir. 

1991) (holding Rehabilitation Act applicable). 

Two circuits have questioned the applicability of Section 

704 and Title II to prisons. See Torcasio v. Murray, 57 F.3d 

1340, 1344-46 (4th Cir. 1995) (coverage of prisons by 

Section 504 and Title II not clearly established in qualified 

immunity context), cert. denied, 116 S. Ct. 772 (1996); 

_________________________________________________________________ 

which apply to federal agencies and entities receiving federal financial 

assistance. 28 C.F.R. § 42.522(b). UFAS lists"jails, prisons, 

reformatories" and "[o]ther detention or correctional facilities" as 

institutions to which the accessibility standards apply. 41 C.F.R. subpt. 

101-19.6, app. A at 150. Under Title II, covered entities building new or 

altering existing facilities may follow either UFAS or the ADA 

Accessibility Guidelines for Buildings and Facilities (ADAAG). 28 C.F.R. 

§ 35.151(c); see id. pt. 36, app. A. Amendments to the ADAAG, adopted 

as an Interim Final Rule, effective December 20, 1994, by the 

Architectural & Transportation Barriers Compliance Board, include 

specific accessibility guidelines for "detention and correctional facilities." 

59 Fed. Reg. 31676, 31770-72 (1994). The Department of Justice has 

proposed adoption of the interim final rule. Id. at 31808. The ADAAG is 

not effective until adopted by the DOJ. 

 7 
White v. State of Colorado, 82 F.3d 364, 367 (10th Cir. 

1996) (neither ADA nor Rehabilitation Act applies to prison 

employment). In our view, these opinions are seriously 

flawed. The leading case in support of the Commonwealth's 

position is Torcasio, which was followed by the district 

court here, and so we focus our sights on that case.6 

The Fourth Circuit in Torcasio acknowledged that the 

broad language prohibiting discrimination on the basis of 

disability in both statutes "appears all-encompassing," 57 

F.3d at 1344. Nevertheless, the Torcasio court was 

reluctant to find either statute applicable to prisons 

because of the so-called "clear statement" doctrine, as set 

out in Will v. Michigan Department of State Police, 491 U.S. 

58, 65 (1989): 

if Congress intends to alter the "usual constitutional 

balance between the States and the Federal 

Government," it must make its intention to do so 

"unmistakably clear in the language of the statute." 

Atascadero State Hospital v. Scanlon, 473 U.S. 234, 

242 . . . (1985); see also, Pennhurst State School and

Hospital v. Halderman, 465 U.S. 89, 99 . . . (1984). 

Because it found the operation of prisons to be a "core state 

function," 57 F.3d at 1345, and because neither Section 

504 nor Title II includes an express statement of its 

application to correctional facilities, the Torcasio court 

expressed its doubt that Congress had "clearly" intended 

either statute to apply to state prisons. Id. at 1346. 

This extension of the clear statement rule was 

unwarranted. Will, Atascadero, and Pennhurst all involved 

instances in which there had been no express waiver or 

abrogation of the state's traditional immunity from suit, 

either by the state itself (Pennhurst), or by Congress (Will, 

Atascadero). Here, in contrast, both Section 504 and Title 

_________________________________________________________________ 

6. Torcasio did not decide whether either Section 504 or Title II of the 

ADA applies to prisons; rather, it concluded that such coverage was not 

clearly established at the time of the events at issue, and that the 

individual defendants in that case therefore were entitled to qualified 

immunity. In reaching its qualified immunity ruling, however, the 

Torcasio court discussed the reach of the two statutes at length, and 

expressed its doubt that either applied to prisons.

 8 
II of the ADA contain an "unequivocal expression of

congressional intent to overturn the constitutionally 

guaranteed immunity of the several states." Pennhurst, 465 

U.S. at 99 (internal quotation marks and citation omitted); 

see 42 U.S.C. § 2000d-7(a)(1) ("A State shall not be immune 

under the Eleventh Amendment . . . from suit in Federal 

court for a violation of section 504 of the Rehabilitation 

Act."); id. § 12202 ("A State shall not be immune under the 

eleventh amendment . . . from an action in Federal or State 

court of competent jurisdiction for a violation of[the 

ADA]."). 

To be sure, when "Congress intends to alter the usual 

constitutional balance between the States and the Federal 

Government, it must make its intention to do so 

unmistakably clear in the language of the statute." Gregory

v. Ashcroft, 501 U.S. 452, 460, 461 (1991) (internal 

quotation marks and citations omitted). This requirement, 

however, is a "rule of statutory construction to be applied 

where statutory intent is ambiguous." Id. at 470. It is not 

a warrant to disregard clearly expressed congressional 

intent. 

Torcasio's statement that Congress must specifically 

identify state or local prisons in the statutory text, if it 

wishes to regulate them, was expressly disavowed by the 

Supreme Court in Gregory. See id. at 467 ("This does not 

mean that the Act must mention judges explicitly."). 

Congress need only make the scope of a statute "plain." Id.

And Congress has done that here. Both Section 504 and 

Title II speak unambiguously of their application to state 

and local governments and to "any" or "all" of their 

operations. In light of the clear and all-encompassing 

language of both statutes, there is no basis for requiring 

Congress to have detailed which of the many important 

components of state and local governments were to be 

included in the terms "any" and "all." 

In Crawford, supra, just as in this case, the state relied 

on the fact that prison administration was a "core" state 

function in arguing that the clear statement rule was 

triggered. Judge Posner responded most forcefully: 

Prison administration is indeed a core function of state 

government, as is education. But the state's concession 

 9 
that the Americans with Disabilities Act applies to the 

prison's relations with its employees and visitors, as 

well as to the public schools, suggests that the clearstatement rule does not carry this particular core 

function of state government outside the scope of the 

Act. We doubt, moreover, that Congress could speak 

much more clearly than it did when it made the Act 

expressly applicable to all public entities and defined 

the term "public entity" to include every possible 

agency of state or local government. Maybe there is an 

inner core of sovereign functions, such as the balance 

of power between governor and state legislature, that if 

somehow imperiled by the ADA would be protected by 

the clear-statement rule, cf. Gregory v. Ashcroft, supra, 

501 U.S. at 461-63; but the mere provision of public 

services, such as schools and prisons, is not within 

that inner core. 

Crawford, ___ F.3d ___, 1997 WL 289101, at *4. We agree. 

III. 

Despite the Commonwealth's contention to the contrary, 

moreover, prisoners (in contrast to prisons) are not excluded 

from coverage because Section 504 and Title II protect only 

"qualified individual[s] with a disability." That term is 

defined in Title II to mean: 

an individual with a disability who, with or without 

reasonable modifications . . . meets the essential 

eligibility requirements for the receipt of services or the 

participation in programs or activities provided by a 

public entity. 

42 U.S.C. § 12131(2). The terms "eligibility" and 

"participation" do not, as Torcasio stated, see 57 F.3d at 

1347, "imply voluntariness" or mandate that an individual 

seek out or request a service to be covered. To the contrary, 

the term "eligibility" simply describes those who are "fitted 

or qualified to be chosen," without regard to their own 

wishes. See Webster's Third New International Dictionary, 

supra at 736. 

Judge Posner addressed a related aspect of the case quite 

incisively: 

 10 
It might seem absurd to apply the Americans with 

Disabilities Act to prisoners. Prisoners are not a 

favored group in society; the propensity of some of

them to sue at the drop of a hat is well known; prison 

systems are strapped for funds; the practical effect of 

granting disabled prisoners rights of access that might 

require costly modifications of prison facilities might be 

the curtailment of educational, recreational, and 

rehabilitative programs for prisoners, in which event 

everyone might be worse off. But . . . there is another 

side to the issue. The Americans with Disabilities Act 

was cast in terms not of subsidizing an interest group 

but of eliminating a form of discrimination that 

Congress considered unfair and even odious. The Act

assimilates the disabled to groups that by reason of 

sex, age, race, religion, nationality, or ethnic origin are 

believed to be victims of discrimination. Rights against 

discrimination are among the few rights that prisoners 

do not park at the prison gates. Although the special 

conditions of the prison setting license a degree of 

discrimination that would not be tolerated in a free 

environment, there is no general right of prison officials 

to discriminate against prisoners on grounds of race, 

sex, religion, and so forth. If a prison may not exclude 

blacks from the prison dining hall and force them to 

eat in their cells, and if Congress thinks that 

discriminating against a blind person is like 

discriminating against a black person, it is not obvious 

that the prison may exclude the blind person from the 

dining hall, unless allowing him to use the dining hall 

would place an undue burden on prison management. 

Crawford, __ F.3d __, 1997 WL 289101, at *5 (citations 

omitted). We agree here as well. 

In sum, in enacting the ADA, Congress "invoke[d] the 

sweep of [its] authority, including the power to enforce the 

fourteenth amendment and to regulate commerce, in order 

to address the major areas of discrimination faced day-today by people with disabilities." 42 U.S.C. § 12101(b)(4). 

The "critical areas" in which "discrimination against 

individuals with disabilities persists" were set forth in the 

statute, and include "institutionalization." Id. § 12101(a)(3). 

 11 
Thus, if the plain words of a statute are to guide the courts 

in interpreting it, then both statutes must be held to apply 

to state and local correctional facilities.7 Essentially, the 

Commonwealth is asking us to amend the statute, 

something we cannot do. 

IV. 

The foregoing discussion establishes that the ADA applies 

to Yeskey's claim. His claim for injunctive relief is, 

apparently, moot in view of the impending (or actual) 

completion of his prison term. His claim for damages will 

turn, presumably, on whether he should (or would) have 

been admitted to the boot camp. Even with the ADA 

applicable, Yeskey might not have been admitted for a 

number of reasons, which will have to be explored on 

remand. 

The Commonwealth has invoked the specter of federal

court management of state prisons: 

 Application of the ADA to internal prison 

management would place nearly every aspect of prison 

management into the court's hands for scrutiny simply 

because an inmate has a disability. See Pierce v. King, 

918 F. Supp. 932, 941 (E.D.N.C. 1996). For instance, 

if the ADA applies to routine prison decisions, it is not 

unfathomable that courts will be used to reconstruct 

cells and prison space, to alter scheduling of inmate 

movements and assignments and to interfere with 

security procedures. 

Brief at 15. Although these considerations do not override 

our conclusion that the ADA applies to prisons, our holding 

does not dispose of the controversial and difficult question 

whether principles of deference to the decisions of prison 

officials in the context of constitutional law apply to 

_________________________________________________________________ 

7. We add that the legislative history does not inveigh against this 

conclusion. When the ADA was enacted in 1990, the Rehabilitation Act 

had been law for seventeen years and a number of cases had held it 

applicable to prisons and prisoners, yet Congress did not amend that Act 

or alter any language so as to extirpate those interpretations. 

 12 
statutory rights. See generally Robbins, supra, at 94-97.8 

We are not sure of the answer, and need not address that 

question now for, at all events, we doubt that it will be 

germane in this case. We do, however, "flag" it for another 

day. 

The judgment of the district court will be reversed, and 

the case remanded for further proceedings consistent with 

this opinion. 

A True Copy: 

Teste: 

Clerk of the United States Court of Appeals 

for the Third Circuit 

_________________________________________________________________ 

8. Turner v. Safley, 482 U.S. 78 (1987), establishes a four-part 

"reasonableness" test for judicial deference to prison managment 

decisions in the face of constitutional challenges (usually under the 

Eighth Amendment). The first requirement is "a valid rational 

connection" between the regulation and the alleged governmental 

interest. The second inquiry is whether alternative means exist for 

inmates to exercise the right under consideration. The third issue is the 

effect that accommodation of the asserted right will have on security, 

administrative efficiency, prison staff, and the larger inmate population. 

The final prong of the test is whether an alternative means exists for 

prison officials to accomplish their objectives without infringing on 

inmates' rights. See also O'Lone v. Estate of Shabazz, 482 U.S. 342 

(1987) (reaffirmed the Turner standard with respect to alleged 

infringement of inmates' First Amendment right to free exercise of 

religion). 

The Ninth Circuit has held that the Turner standard applies to 

statutory rights such as those created by the ADA. In Gates v. Rowland, 

39 F.3d 1439 (9th Cir. 1994), the court reversed a lower court's ruling 

that denial of food-service positions to HIV-positive inmates 

discriminated against them impermissibly. Reasoning that, where 

constitutional protections bend, statutory privileges must too, the court 

deferred to the penalogical concerns asserted by prison officials. The 

Eighth Circuit disagrees. See Pargo v. Elliott , 49 F.3d 1355 (8th Cir. 

1995)(Turner does not foreclose all heightened judicial review.) 

 13