2005 D e c i sion s O p inion s of the U nit e d S t at e s C our t of Appe al s for the Thir d C ir c uit

2-25-2005 

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P r e c e de n t i al or N on-P r e c e de n t i al : P r e c e de n t i al
D ocke t N o . 03-1245

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w . v i l l a no va . e du/thir dc ir c uit_2005/14921 PRECE DENTI AL
UNITED STATES COURT OF APPEALS FO R T HE TH IRD CIR CU IT

___________ No. 03-1245

___________

R O N A LD B A N K S, fo r h im se lf a nd on be ha lf o f a ll s im ila rly situated pri soners who are c onfined or wil l be confi ned in Long Term Segregati on Units of St ate Pri sons located in t he Western Judi cial Distri ct of Pennsy lvania , Appellant

v.
JEFFREY BEAR D, in his offici al capaci ty as Secret ary of the

Pennsyl vania Department of Corrections

___________

On Ap peal f rom the U nited S tates D istrict Co urt for the We stern D istrict of P enns ylvania

D ist ric t C ou rt J ud ge : T he H on or ab le T er re nc e F . M cV er ry

(D.C. No. 01-cv- 1956)

___________ Argued on October 22, 2003

Be for e: A LIT O, F UE NT ES , and RO SE NN , Circuit Judges (Opinion Fi led: Febr

uary 25, 2005)

JERE KR AKO FF [Argued] PA I.D. No. 137012 1705 AlleghenyBuilding Pitt sburgh, PA 15219
Co unse l for Ap pellan ts
D. MICHAEL FIS HER AttorneyGeneral

KEM AL A LEXA NDE R M ERICLI [Argued] Senior DeputyAttorneyGeneral
CALVI N R. KOONS Senior DeputyAttorneyGeneral
JOH N G . KN OR R III Chief Deputy AttorneyGeneral Appellat e Liti gation Sec tion Office of Attorney General 6th Floor , Manor Complex 564 Forbes Avenue Pitt sburgh. PA 15219 Counsel for

Appellee

_______________________

OPINI ON OF THE COURT

_______________________

FU EN TE S, Circuit

Judge

Ro nald Banks, on beha l f of h imself and a ll other L evel 2 prisoners confined i n the Long Term Segregati on Unit (“LTSU”) of th e St at e Cor

re ct io nalIn stit

ut io n at Pi tt sbu rg h ( “SCI Pittsburgh”), challenges the constit utionalit y of the Pennsy lv ania Department of C orrectio ns’ (“D OC ”) po licy bann ing ac cess to newspaper s, ma gazines and photographs for Level 2 inmates, arguing that t

he polic y vi olate s the p rison ers’ fre e spe ech rig hts und er the F irst Am endm ent.1 The maximum populati on i n the L TSU is 40. (App. 92) Depositi on testi mony in this case discl oses that, during the relevant period, th e LT SU p opulati on was comprised of 36 Level2 and three Level1 inmates. (App. 93)

2 The re le van t DOC reg ulati ons state: “Any i nmate who is, has or may be planni ng to engage i n the fol lowing a ctiviti es may be appr opriate for ass ignm ent in th e LT SU : (1) inm ates w ho f ail to
com plete SMU [S p ecialManagement Unit]; ( 2) seri ous escape hi sto ry; (3) assaulti ve behavior with the intent to cause deat h or seri ous bodily

injury; (4) i njuryto st aff and /o r i nma tes; (5) engaging in fac ility disturbance(s); (6) reco rded history of exerting negati ve influe nce in fac ility acti viti es; ( 7) Securi ty Threat Group (S TG) m ember or othe r unauthorized orga nization(s) ; (8) Perpetuated crimina l activit y that threatens t

he commun ity; (9 ) a history of

being a sexual pr edator; and/or ( 10) posses sing weapons
an d/or im plem ents o f esca pe.” 6 .5.1 A dm inistration of S ecurity Le vel 5 Ho usin g U nits P roc edu re M anu al at 1 -16

. 3 The Dis tric t Co ur t g ra nt ed s ummar y ju dgme nt t o the defendantand u pheld the po licy as reaso nably rela ted to le gitima te penologic al interest s. We disagree and ther efore wil l rever se.

I. Fac tual and Procedur al Backgr ound
The LTSU w as est ablis hed at SCI Pit tsburgh i n April 2000
as a place t o confine a s mall popul ation of inmates 1 whi ch th e DOC views, because of their history of b ehavior i n prison, as too disrupt ive, violent

or probl ematic to house els ewhere. 2 Inmates are class ifie d at “Level 2” when admitted to the Uni t, mu st rem ain there a minimum of 90 days , an d mayre ma in at L evel 2 in de fin ite ly. The length of t ime a pri soner may spend in t he LTSU is op en- end ed a nd s ubj ect to the d iscre tion of p rison per son nel. Departme nt p olicy

prohibi ts Level 2 prisone rs from recei ving newspapers or magazi nes dir ectl y fr om the publ isher, from the pri son li brary , or fr om any othe r source for the dur at i on of their confinement at Level 2 s tatus unless t he publica tion is reli gious or legalin nature. Indi vidual arti cles cl ipped from publications are prohibi ted, unles s they relate to the in mate or his fa m ily. Also proh ibited is the possessi on or receipt of photogr aphs of s pou ses, o ther fam ily me mb ers, o r frie nds

.3 The photograph pr ohibition, however, remains unchanged. 4 Other DOC r ul es w hich g over n life a t LT SU Lev el 2 proh ibit inmates f

rom having radi os or te l evi sions, permit phone calls onl y in eme rg en ci es orwh en re late d to inmat es’ l egal repres entation, limi t inmat es to one vi sit with an imm ediate fam ily member per month, and requ ire inm ates to re main in their c ells 23 hours a day, one inm ate to a cell. Inmates are p ermitted, how ever, reli gious or legalpublications and paperback books that c an be ordered from the pris on l ibrary. To review legalmateri als, one LTSU inmate at

a t ime may be l et out of his cel l and is escort ed from it to a “m ini law lib rary” in ha nd and l eg ir ons by two correct ions offi cers. (App. 11)
The pol icy chall enged here i s unique i n the st ate pri son sy st em, eve n am ong oth er se gre gate d in ma tes. Lev el 1 LTSU inmates are pe rmitted one s ubsc ription n ew spap er in th ei r cells which can be exchanged on a o ne-for-one basis and are also permitted fiv e sub sc ri pt io n mag azi nes atanygi ven ti me
. 3 Departmentpolicy al so authorizes S pecia l M anag eme nt U nit (“SMU”) inmates ( another c lass of segregated inmates identi fied
as being among the m ost difficult inmates i n the sys tem) to ha ve various n umbe rs of subs cription newspapers , magazine s and photographs in their cell s, dependi ng on their clas sificatio n leve l. (App. 77) Simil arly , dangerous inmates w ho are segregated in the Dep artment’s regular

Restri ctive Housing Unit on Administr ative Custody stat

us for se curity reasons are permit ted one subs cription newspaper in their cell s which can be exchanged on a one-for- one basis, as we ll as subscripti on magazines and up to 10 photographs.

De puty Superint endent JoelDickson, who supervi ses the LTSU, testified in his deposition that the prohi biti on serves s everal penologic al purposes, which were reiterate d by the defe ndan t in its briefs. First , and emphasi ze d by Dick son a s mo st imp ortant, is behavior modi fication and rehabili tati on. Dickson expl ained that in Level 2, i nmates are deprived of certa in p rivi leges t o creat e an incentive to com ply with prison rules a nd th ereby be remo ved to Level 1 and eventual ly to the ge neral popul ation. Among Lev el 1 inmates, the pros pectof having the privi leges deni ed discour ages backsl idin g. Also , Dick son e xplain ed tha t as inm ates im prov e their5 behavior to earn privileges, they beco me be tter integrated mem bers of prison s ociety or , if release d, bettermem bers of free soci etyand “more producti ve citizen[s] .” (App. 111) Second, the less material Level 2 priso ners h ave in their cell s, the easi er it is for correct ional offices to dete ct co nce aled con trab and and pro vid e se cur ity. Third,
new spapers and magazines can be roll ed up and used as bl ow guns or spea rs, can f uel ce ll fir es , or can be us ed as crud e tools to catapult feces at t

he guards.
Plaintiff Ronald Banks fil ed the Complaint in thi s acti on on October 18, 20 01. See king equit able and decl aratory r elie f, the Complaintchall enged the consti tuti onalit y of t he DOC policy

that denies Level 2 inmates access to new spapers, magazines and photog raphs of f amily mem bers and friends. The inmates argued that, under Turner v. Saf ley , 482 U.S. 78 ( 1987), t he policy offends their right to free spee ch either beca use it bears no rat ional connecti on to anylegit

imate penol ogical interest or because i t is an exaggerat ed response to such an interest . A motion f o r class certi fication wa s file d an d gr ante d on M arch 22, 2 002

. Aft er discov er y was completed, the part ies fi led cros s-moti ons for
sum ma ry judg me nt in Sep tem ber of 2 002

. On November 15, 200 2, M agistrate Judg e Ro bert M itchell
re comm ended g ranti ng summary j udgment to the DOC . The
r ecommendation reasoned t hat the Turner factor s weighed in th e DO C’s favor and that the policy was rati onally

related to, a n d furthered th e l egi ti ma te penologic al interest s of, i nsti tuti onal
secu rity and prisone r rehabil itat ion. Despi te Banks’ obj ecti ons, on January 10, 2003 the magistr ate’s recommendationand reasoni ng we re ad opt ed b y orde r ofthe D istrict Co urt.
The Distri ct Court reasoned fi rst t hat the policy

is not an i m perm issible First A men dm ent vio lation b ecau se it is ration ally related to the l egiti mate and interrel ated penol ogica l i nteres ts in
re ha bi lita tio n a nd se cu rity. It enco urag es co mp liance with prison rules and deprive s especi ally incorrigibl e pris oners of mate rial fro m w hich they c an f ash ion cru de w eap ons or f eed cell f ires. Second, the Dist

rict Court held thatthe poli cy i s not an exaggerat ed response to the stat ed penological concerns. The co urt a gree d with the DOC that i nmates can meani ngfully exerci se the burdened First Amen dment right s by qua lifying with good4 Here, the DO C as serts the ex istence of the “ripple effe ct,” cited in Turner , as a magn ifi er of c ostin the pri son env iro nment. 482 U.S. at 90. 6 behavior for prom otion to Lev el 1 or b y corresp ond ing w ith fam ily and friends . Furthermore, given the parti cular i ntract abili ty of Level 2 inmates, any furth er acc om mo dation of the ir rights w ould impose co sts that ca nn ot be ch ar ac ter ize d a s o nl y de minimus. 4 Banks timel y appea led the Distri ct Cou rt’s grant of su mm ary jud gm ent.
II. Juri sdicti on and Standard of Review
The Distri ct Court ha d origi nal jurisdi ction over the a ction pursuant to 28 U.S.C. §1343 because the clai m assert s a viol ation of the F ir st Amend ment to the U.S. Consti tuti on. This Court has appe llate juri sdiction over t he order of

the Distri ct Court gr anting
summ ary ju dgm en t p ur su an t to 28 U. S. C. § 12 91. We r ev ie w de
novo the Dist

rict Court’s de cisi on to grant the DOC’s motion for
summ ary judg men t. See Sutton v. Rasheed , 323 F.3d 236, 248 ( 3d Cir. 2003). I n reviewing t he record, we view the evidenc e and any infere nces theref

rom in the light m ost fav orab le to the non- moving pa rty, and resol ve all factu al con flicts in its favor. We rever se the Distri ct Cou rt’s decision w here there are genuine issues of materi al factprecludi ng judgmentas a ma tter o f law

. See Suders v. Easton , 325 F.3 d 43 2, 44 0 (3 d C ir. 20 03)

. III. Discussi on
A. The Turner Standard

We have repe atedl y echoed the S uprem e Cou rt’s adm oniti on that “ prison wal ls do not form a barri er separ atin g prison inmates f

rom the pro tectio ns o f the Co nstitu tion .” Ramirez
v. Pugh , 379 F.3d 122, 126 (3d Cir. 200 4); Fraise v. Terhune , 283 F.3d 506, 515 (3d Cir . 2002) ( quoting Turner , 482 U .S. at 84). In Turner , the Supreme C ourt acknowledged, how ever, that i nmates’ consti tuti onal right s may i n some cases be lim ited, and held that a pr ison re gulatio n that im ping es on inma tes’ co nstitution al rights “ is5 Neither party contest s that

inmates ha ve a Firs t Amendment right to recei ve magazines and ne wspapers thr ough the ma il. See Allen
v. Cau ghlin , 64 F.3d 77, 79 (2d C ir. 1995 ); Sizemo re v. Williford , 829 F .2d 608, 61 0 (7th C ir.1987).

6 As the Dist

rict Cou rt c orre ctly po inted out , Fraise also as sert ed that particular

deference to priso n autho rities is esp ecially appr opriate when a regulat ion impl icat es pri son securi ty . 283 F.3d at 516. 7 valid if it is re asonablyrelated to leg itima te pe nol ogi cal in teres ts.” 482 U.S. at 89. 5

The Sup reme Co urt artic ulat ed an an alytical framewo rk with in which the re asonablene ss of such a regulation is ass essed by weighi ng f our fact ors. First , the re must be a “ valid, rati onal connecti on betw een th e priso n reg ulation and th e legitim ate governmentalinterest put forward to j usti fy i t.” Turner , 482 U. S. at 89 (quotations omitted ). Se con d, the court must determi ne “whetherthere are alternati ve means of ex ercis ing the right t hat
rema in ope n to priso n in ma tes.” I d . at 90. Third, the court must
ass ess “the im pact a ccom mo dation of the asserte d con stitutio na l right will have on guards and other i nmates” and prison re sources ge ne ra lly. Id . Finally, the c ourt m ust c ons ider wh ether there are “readyalterna tives” to the reg ulation that “f ully acco mm odate the prisoners’ rights a t de minimus cost to valid pen olo gica l inte rests .” Id

. at 90-91. The exist ence of such alternati ves is e vidence that the regulat ion is an “e xagg erated respo nse to priso n co nce rns.” Id . at 90 (quo tations omitted). Although the Supreme Court emphasized that

the judiciary is often “ill equ ipped to deal with t he i ncr eas in gl y ur gen t p ro bl ems of prison administration and reform,” and sh ou ld therefore gi ve signi fi cant deference to prison of fici als i n inter

preti ng and implementi ng regulations, 6 the Court was not relinquish ing the p olici ng of p rison pol icy to p rison adm inistr ator s. Id . at 8 4 (quoti ng Procunier

v. Marti nez , 416 U.S. 396, 405 (19 74) ). To the
co nt ra ry, in Turner , while the Supreme Court uphel d a rule barri ng inmate- to -inma te corres pon denc e as rea sona bly related to legitima te secu rity interests, it al so st ru ckdow n an inmate marr iage restriction as an “exagger ated re sponse to pe t itioners’ rehab ilitatio n and securi ty concerns. ” Turner , 482 U .S. at 91 . The Co urt held7 In Waterman v. Farmer , for example, t his Court

upheld a p riso n regu lati on, j usti fied as rehabil itat ive, which rest

ricted sex offenders’ access to p orn ogr aph ic m ateri als. 183 F. 3d 208, 215 (3 d Cir. 1999) . Pri son authoriti es submitted af fi da vi ts fr om t wo psycho logists who testi fied that po rnog raph ic ma terials threatened to thwart t

he effecti veness of

the treatment gi ven to sex offenders, and t herefore tha t limiting a ccess to suc h m aterial w as a se nsible reh abili tatio n stra tegy. 8 that the rule “sweeps much more broadly ” than can be e xplaine d by the stat ed objectives and t h erefo re failed the rea sona ble relat ion ship test. Turner , 482 U.S. at 98.
As the E leve nth Cir cuit h as a ptly no ted, “ tradit ional deference does not mean that co urts have abdic ated th eir duty to protect those cons titutional rig hts that a prisone r ret ains. ” Fortner
v. Thomas , 983 F.2d 1024, 1029 (11th Cir . 19 93) (ci tati ons omitted). If Turner is t o be a meaningful limi t on the di scretion of prison administ

rator s, i ts four

factor s must be di ligently weighed by rev iew ing cou rts.
B. FactorOne : Rati ona l relation ship to legitima te penological interes t
Banks argues that the connecti on between the pol icyand the valid penologic al obje ctive s cit ed as it s justific a tion is t oo atten uate d to be r ation al.

1. Rehabili tati on
Un l ike the government ’s interest in security , the rehabil itat

ion objective has neve r been defi ned by t he Su pr eme Co urt, and its contours remain “qui te amorphous andill-de fine d.” Ram irez , 379 F.3d at 128 ( citi ng Amatel v. Reno , 156 F. 3d 192 , 209 (D.C. Cir. 1998) (Wal d, J., dissenting)). Clearly, how ever, restrictive prison pol ic ies can be designed t o target parti cular behav iors for which pri soners were incarcerated, or t hose that arose and presented securi ty risks during i ncarcer ation. 7 Id

. The Distric t Cou rt essen ti ally determi ned that (1) withholdi ng privi leges t o get com plianc e is a sensi ble poli cy, and9 (2) denyi ng all ot

her pri vilege s short

of access to publications and photographs had p rove n in the past n ot to be a suffici ent inc entive for beha vior m odific ation b ecau se, if it h ad be en, inm ates w ould not have been tr ansferr ed to LTSU Level 2. Therefor e, the Dist rict Cou rt found that denying publicati ons and photographs was a ratio nal n ext s tep.
C er tai nl y, “deterrence of future i nfractions of prison rules” is a legi timat e penol ogica l inter est. See Gregory v. Auger , 768 F.2d 28 7, 290 (8th C ir. 1985 ); Da igre v. M aggio , 719 F.2d 1310, 1313 (5th Cir . 1983). In the Fifth and E ighth Circuits, tempo rary r estricti ons on prisone rs’ r eceipt of cert ain mailand subscr iptio n publications in di sc ip lin ar y seg regatio n hav e bee n up held following exactl y the logic advanced by t he DO C here. Those
cour ts held that such restrictions made d isciplinary segregation less end urab le and th erefo re disc oura ged in mate s from the rule infrac tions that would l ead to su ch s egr ega tion

. See also Guajardo
v. Estelle , 568 F. Su pp. 1354 , 1366 (D .C. Tex. 19 83) (perm itti ng inmates in sol itar

y confi nement access to books, mag azin es and
new spapers may“wa te r d own the condi tions in sol itar y and wo uld make the threat of sol itar y confi nement meaning l ess”) ( internal quotations o mitted). Although we ag re e th at det errence of future i nfractions of prison rules can be an approp riat e justifica tion fo r temp orarily restricting the ri ghts of i nmates, we cannot saythat t he DOC has shown how the regu lations in t hi s c as e s erve su ch a p urpo se
. We recogniz e how such a rule could be reaso na bl y r elat ed to a penologic al interest in rehabilitation in “disciplinary segregation” whe re inmates are plac ed for “speci fic rule i nfracti on[s]” and for limi ted and specifi c periods , but t his i s not sucha ca se. Spellman v. Hopper , 95 F . Su pp. 2 d 12 67, 1 281 (M .D. A la. 19 99)

. Although the DOC asserts t hat LTSU is a “dis cip lin ar y” status, the LTSU Level 2 is a uni qu e kind of se greg ation w ith charact eris tics of both dis cipli nary and administ rati ve segregat

ion. Inmates co me to L TS U b ecau se of “una ccep table b ehav iors” in otherinstitu tion s, b ut th ey h av e n ot all be en adju di ca ted by a hearing officer to ha ve violated the DO C’s rule s. (App. 95) The LTSU is not a pla ce where inmate s are sent for a dis crete period of pun is hm ent, pursuant

to a speci fic i nfraction, but is a pl ace fo r8 In fact, disciplinary segre gation is usua lly quite sho rt in durati on. In Daigre , after addressi ng a guard profanely, Daigre was p u t in “administ

rati ve and p uniti ve lockdown” for “a maxi mum of 10 days’ isol at ion” purs uant to a finding of

“defiance. ” 719 F.2d at 1311. In Grego ry , the chall enged poli cy was i n place for inmates
on Disciplinary Deten tion Status, wh ich carri ed w it h it a 60- day
ma xim um dur ation

. 768 F.2d at 290. In Guajardo , the court was evaluating a public ation ban in plac e in sol itary co nfin em ent, a ty pe of puniti ve segregat ion used a s a sa nction f or viol ation of Texas Department of C orrections rul es and regulations. An inma te could be confined i n soli taryfor a maximum of 1 5 da ys, a nd an interval of

at le as t t hr ee da y s wa s requ ired be twee n term s in
so lit ar y, during which time the i nmate could have access t o any publications withheld during the term. 568 F. Supp. at 1366. 10 “Long Term ” segrega tion of the m ost incorri gib le and diffic ult priso ner s fo r as lo ng a s the y fall u nde r tha t um bre lla.
All LT SU inma tes mu st s pend 90 d ays at Level 2 s tatus when they first arriv e, and althou gh th eir behav ior will be reviewed
eve ry 30 d ays to dete rmine wh ether th ey deserv e pro mo tion to Level 1, that dete rminati on is entirelywithin t he discr etion of prison administ

rator s and is not

linked to any particul ar infr acti on or co mpliance. While discipli nary segregati on ordinarilyhas a spec ifie d durati on, inmat es may r emain in Level2 and under the publication ba n i nd ef in ite ly. 8 In fac t, s everal inmates ha ve remained in Level 2 s ince the LTS U’s in ce pt io n t wo y ea rs ag o. As administered, it i s unclear how the policy

would achieve t

he deterrence it seeks. No t o nl y i s the r ehabil itat ion jus tifi cati on ill ogical given the nature of LTSU confinement, but LTSU Level 2 is a far

cry from the di scipl inarycontext s in which suc h ban s have been deem ed co nstitution al.
Furthermore, the DOC has offered no evidenc e that t he rule achieves or could ac hieve its stated rehab ilitati ve purp ose. In Waterman , th e DOC submitted affidavi ts fr om two psycho logists who testifie d that pornographic mat erial s thre atened to thwart the effec tiveness of the treatment given to s ex offenders and who agreed that limitin g acc ess to su ch m ateria l was a sen sible rehabil itat

ion strategy . 183 F. 3d at 215. In Guajardo , the defe ndan ts offered evi dence as to the f requencyand percent age of9 Rehab ili tat ive goals ar e “furthered byefforts to inform and educ ate inmates, and foster their involvement

in the world out side the prison g ates. ” Ab dul W ali v. C oug hlin , 754 F.2d 1015, 1034 (2d Cir. 1985) . In Spell man v. Hopper , ther e was testimony that deprivation of reading material s in segregation can cause “psy chologic al deterio ratio n” whi ch in turn can cause i nmates eithe r to be “v er y w ithdr awn and curl up i n infancy , or [to] bec ome acti ng out and aggre ssive peopl e.” 95 F. Supp. 2d at 1281;
see also Morrison v. Hal l , 261 F.3d 896, 904 n. 7 (9th Cir . 2001) (citing studi es and article s noti ng the “correl ation between readi ng, writing and inmate reha bilitation”). 11 solitary confinem ents in the Te xas D epart men t of Correc tions (“TDC”) which s how ed that the neg ative perception of solitary confinementhad a deterre nt effect . 568 F. Supp. at 1368 (“a signi fican t majorit

y of TDC inmates have never experienced soli taryconfinement a nd less t han half of t

hose who are confine d in soli taryreturn a second ti me”). Here, there are no such suppo r ting affidavi ts. The Distri ct Court presumablyreli ed on Superint endentDickson’s testi mony that the proh ibition in quest ion “ gives us a

means or method t o say you comply , y ou modify your behavior, and y ou can obtain these things, t hese priv ilege s,” and h is exp lanatio n that “ we ’re ver y limited . . . in what we can and cannot denyor give t o an inmate, and these a re som e of the i tems that we feel are l egiti mate as i ncenti ves fo r inma te grow th.” (A pp. 11 0) Th e D istrict Co urt did n ot e x amine the fi t between the polic y and its rehabil itat ive goal s, whether

the b an was implemented i n a way that could modi fy beh avio r, o r inquire in to w he th er th e D O C ’s d ep riv ati on th eo ry o f beha vior modi ficatio n had any ba sis i n real human psy chology , or had proven effecti ve with LTSU inmates. At oral argumen t, c ou nsel for the DO C said it was a “hope.” In fact, Banks argues t ha t contrary to the a ssertions of the pris on authori ties and the Dist rict Co urt, isolating prison ers fro m the goin gs-on in the o utside w orld tends to undercut

any genu in e rehabi lit ation. There is, again, no evidence in the record on thi s point , but Banks c ites to lang uage in severalcases to support t his ass erti on. 9 It

certa in lyse ems releva nt10 Our dissen ting co lleagu e con tends that w e mis apply the fi rst Turn er factor

by r equiri ng the DOC to show some evidence t o support its conte ntion th at t he rule ac hieve s or co uld ac hieve its st ated rehabil itat

ive purpos e. However, our insi stence t

ha t th e DOC of fe r s ome ev id en ce is not , i n ou r v ie w, at odds with Turner but rather a com plem entary pa rt of the analy sis i n determi ning whether an assert ed goa l is logica lly connected t o the pri son regulat ion. See Turner , 482 U.S. at 89 (r equiri ng prison authori ties to put fo rwa rd a leg itimate g over nm ental i n teres t jus tifying the regulation). Indeed, i n Turner , the S upreme Court eval uated the eviden ce in d etermi ning whether t he pris on rules in question served

- in theor y or in pract ice - t he all eged pen olo gica l go als. See id. at 91-93, 98-99. In our view, t he paucity of any

such evidenc e in this matter reinforces the c onclusi on that t here is no va lid, rati onal connecti on between the DOC rule and i ts stat ed rehabi lit ative purpose. 12 to th e a bo ve in qu iry, as w ell a s li kely , that the ban may produce less rather

than more compliance in at least some inmates. 10

2. Secu rity
Wit h re spect to security, the District Cou rt held that there
was a vali d rati onal connection between the ban on periodi cals and photographs in LTSU Level 2 an d the c onste llation o f secu rity
conce rns put fo rt

h by th e DOC . We cannot concl ude from the
reco rd th at su ch a con nec tion exis ts. T his is so f or tw o re aso ns. First, there i s no e vid ence in the record of t he misuse of period icals or photogr aphs in anyof the ways des cr ibed bythe DOC. In fact , matches are not a llowed in t he L TS U. See also Grego ry , 768 F.2d at 289 (“cellb lock f ires ha ve be en eli mina te d entirely

. . . by new regulations prohibiting inmates from possessi ng matche s”). There was no testimony as to the f requency of fires in the LTSU, nortestimony about any particul ar fires , in or out of L TS U se greg ation, an d ho w a nd w ith w hat m aterials the y11 Superint endentDickson tes tifi ed on ly t hat w ithin the last six months there were “no more than two or three” c ell f ires in the entir ety of the LTSU, and “paper pr oducts gener ally are the way it’s firs t igni ted. ” He also te sti fied that he did not know of any inst ance where a LTSU L evel 1 i nmate use d a newspaper or magazine to s tart

or fuel afire. (App. 112)

13 were set and fue led. 11 The sa me is t rue for t he materi als’ potenti al use as weapons.
Furthermore, there was no testi mony as t o the effect such a ban has had on the frequency of fires, be it i n the LTSU or elsewhere. In fac t, Ban ks po in ts out th at in mates on D ea th Row, in A dm in ist ra tiv e C us to dy, and in the S pecia l M anag eme nt U nit
are routi nelypermitted to have these i tems, a nd the DOC presented
no evidence that the security or operations o f these un its are nega tively affectedto anypalpabl e degree bythe presence of these item s.
The Distric t Cou rt dism issed th is argu men t, agree ing w ith the DO C tha t a com pariso n to other forms of segregation withi n the Pen nsylvan ia DOC i s i rr el ev an t b ec au se LTSU in mates are the “worst of the w orst.” How ever, there is no ev idence be fore us to indic ate tha t wh at sets the se inm ates ap art from the res t is their misuse of n on- lega l or n on- relig iou s pe riod icals

. The Distri ct Co urt’s c onclusi on that “ the fact that ot her segr egated i nmates have
n ot creat ed the same se curity conce rns while in posses sion o f
new spapers and magazines i s one reaso n they are in those uni ts and not in the LTSU” is an inference that f inds no support i n the rec ord. In fact, there i s no indi cati on in the record that anyLTSU inmates
were transferred there because theyhad c reated a secu rity risk with period icals or photogr aphs. The LTSU inm ates ar e cert ainly and unq uestion ably incorrigibl e, but whether their

incorrigibi lit

y t akes the form d escribed by the D istrict Court is an open questi on which cannotbe r es ol ved atth e s ummar y ju dgme nt s tage bymaking infere nces in favor of

the DOC and without support i n the rec ord. Second, we agree with Banks that given the materi als Level 2 inma te s are p ermitte d in the ir cells, pro hibiting a sing le newspaper or magazine has no signi ficant relat ionshi p to the s tate d
secu rity objectives. Th ere are many other non- prohibi ted means12 In his deposi tion, Superint endent Dickson testified not o nly that under the chal lenged polic y there have st illbeen cellfires and rashes of feces-f

lingi ng in LTSU level 2, but als o that i nmates can and do use other

permitted materials t o create these dist urbances:

“ Often times it’s with t

he cups that they’ re given for their dri nks, things like t hat . . . a piec e of pap er o r w hate ver
. . . that t hey ca n use to gi ve a li ttl e lever age and fli ng the materials .” (App. 112)

13 See Spellman , 95 F . Sup p. 2d a t 1 278 ; Jackson v. Elrod , 671 F. Supp. 1508, 151 1 (N.D . Ill. 1987) aff’d , 881 F .2d 44 1 (7th Cir. 1989) (admission th at hardcov er book s are no gre ater a ri sk to conceal contraband than, for example, clothing, paperbacks, mattre sses and light

fixtures, “di sproves defend ant’s assert ion of a rati onal conn ection betw een th eir h ardcover book ba n and a 14 for the inmat es to fuelfires , hurlwaste, conc eal cont raband and create we apo ns. Under current regulations, each inmate is gi ven a jump suit, a b lan ket, two bedsheets , a pi llow case, a rollof toil et paper, a cop y of a pris on h andb ook , te n sheet s of w riting paper,
sever al envelop es, carbon p aper, three pairs of socks, thre e undershorts and three undershirts , and may at anypoint al so have relig ious newspapers, legal periodi cals, a pris on libr ary book, Bib les, and a lunch tray with a plate and a cup. M any of these items are fl ammab le, co uld be used for the above purposes as effe ctively as a newspaper, magazine or phot ograph, andhave been
so used by LTSU Level 2 inmates. 12 T he D istrict Co urt aga in agreed with the DOC that t he prohibi tion maynot elimin ate but certain ly redu ces the secu rit y r isks w ith w hich th e D OC is concerned, and th at it is irreleva nt that t he po lic y does not absolut el y prevent t

he harms it

addresse s because Turner is not a “least -rest

rictive-al ternat

ive” test. Fraise , 283 F.3 d at 520; Waterman , 183 F.3 d at 2 19. Although th e D ist

rict Court is correct

that t he polic y need not be narrow ly tail ored to the h arm it addre ss es to pass consti tuti onal muster, its conclusi on here has some flaw s. Eve n if the policy ne ed no t be “n arrow ly tailored” to the state d intere sts, if the prohibi tion of n ews papers, magazines and phot ographs has only a minimal e ffect on se curity i n the LTSU because of the other mate rials th atth ey ar e pe rmi tt ed in th e cells, the relation ship between the poli cy and the pen ologica l interest may be t oo atte nuated t o be reasonabl e. 13 It is impo rtant to note here that t hegovernmentalinterest” ); M ann v . Smith , 796 F.2 d 79 , 82-83 (5 th Cir. 1986) (ban on newspa pers and m agaz ines re prese nts exaggerat ed respo nse to legitima te nee d to preserve disci pline and main tain secu rity); Kincaid v. Rus k , 670 F. 2d 737 , 744 (7th C ir. 1982) (tot al ban on newspaper s unjustifiable when hazards of newspaper possessi on could as wellbe caused by r eading material detai nees we re perm itted to h ave); Payne v. W hitmore , 325 F. Supp. 11 91, 11 93 (N .D. C al. 197 1) (“Ja il cells are a lready fille d with an abundance of materials quite s uitabl e for fire startin g . . .; yet no one suggest s that

cell s ought t o be s tri pped of bedding, clothing, toilet paper, w riting materials, and so o n.”).

14 In a me mo dated Feb ruary 8, 20 01, an d distr ibu ted to LTSU inmates, Superint endent Dickson s tate d that t he pub lica tion Graterfr iends is a newsl ette r, not legal mail, and there fore deni ed to Le vel 2 inm ates

. Graterfr iends is a Pennsylvania- base d newsletter p ub lished u nder the au spices of T he P enns ylvania Prison Society

to which prison ers co ntribute and w hich is dist ribut ed to pr is one rs and ot her me mbe rs of the correc tions
com mu nity. 15 inmates are not requesting unlimited access to i nnu mera ble period icals bu t for the ability to have one newspaperor magazine and som e sm all num ber o f ph otog raph s in th eir cell s at one time. We fa ilto se e h ow the DOC could have reaso nably thought t hat the chall enged policy, which pe rm its a n inmate to have in hi s cell10 sheets of writi ng paper and one recor ds center box full of

legal or reli gious periodi cals or

texts , would meaningful ly improve pri son sec urity by for

bidding hi m one copy of the Graterfr iends prison
new sletter. 14

The Distri ct Court a sserted that the prohibi ted materials are “more likely” to be used to crea te a securi ty concern and are “most easily and c om mo nly used as w eapo ns or to set fires and fli ng feces” than re li giou s or leg al ma terials , and therefore t he link b etween the policyand the stated interest is more than tenuous. (App. 125) However, nowhere in Dic kson’s affi davi t does he descri be spec ific incid ents w here th e pro hibited mate r ials were used in any manner

posing a se curity risk byLTS U inm ates before
or after theywere transferred to LTSU . He articulat es his b elie f that period icals are mo re w ell-suited to crea te particular weapons, but adm its that the items a lready in in mate s’ ce lls certain ly could15 Alth ough thi s inqui ry depends in par t on how the scope of

the
co nsti tuti onal right is defi ned, neither the parties nor the Distric t Cou rt define the right

in question, nor

does the Distri ct Cou rt’s analysis depend on a particular underst anding of the r ights in questi on. 16 and have been used t o fuel fi res, hide contraband, f ling fe ces and creat e weapons. (App. 112)
C. Factortwo : Means for exerci sing the burdened ri ght
Under this factor, we are asked to “focus on the burden that the regulat

ion imposes on an inmate’ s ability to eng age in
cons titutionally protected acti vity .” DeH art v. Horn , 227 F.3d 47, 53 (3d C ir . 2000) ( en banc). If other avenues are open for the inma te to exerc ise t

he right in question, t

he court s houl d ex hibit deference to the judgment of corrections official s, while if no other
avenues are available, the inm ate’s right is g iven g reater w eight in the T urn er b alan cing pro ces s. Id

. 15

Banks ar gue s tha t wh i le Level 2 in mates can read leisure books, they hav e no m eanin gfu l acces s to cu rr en t n ews accounts or publis hed information about c urrent political , soci al , or other pub lic events and a ctivi ties occurri ng outsi de the pri son walls, and theyhave no way t o look at i mages of loved ones and frie nds apart from the possibili ty of infreque nt vis its . The Distric t Cou rt, how ever, disag reeing with Ban ks, fo und th at inmates h ad suffici ent means to engage in the constitutionall y-prot ected activities.
The Distri ct Court c haract erize d the peri odical s ban as “not
a blank et proh ibition” beca use L evel 2 inmates c an quali fy bygood conductto b e promot ed to LT SU Level 1 . The D istrict Court’s justifica tion fo r this determi nation is i ts expl anati on that “ each of these prisone rs has the opti on of modify ing his behavior a nd being promoted to a less restric ted en viron men t wh ere ac cess to new spapers magazines and phot ographs may be enjoy ed.” (App. 126) As th e DOC elabo rated in its brief, “ there is n o reas on to suppose that a

prison a dminist

rati on wo uld not res pon d fav orab ly t o a p risone r’s i niti ative to quali fy for reli ef from the ban on per iod icals or p hot os th rou gh e xhi bitin g go od b eha vio r.”17 The Dis tric t Co ur t a nd the DOC are correct in noti ng that inmates can be prom oted f rom Lev el 2 to Level 1 and, if the y ar e, theywill gain access to the prohibited material s. However, that does not change the fact th at the p rohib ition is ind eed a “blan ket” one, and th at as lon g as a n inm ate is at Le vel 2 s tatus an d is subject to the poli cy i n ques tion , h e has no alternative means to exercise his First A men dm ent righ t of ac cess t o a reasonabl e amount of
new spa per s, m aga zine s, an d ph oto gra phs

. Mo reover, th e re is no reason t o infer t hat the process of “promotion” from Level 2 to Level 1 i s as much under t he inmates’ controlas the DOC and the District Co urt cha racteriz e it. As noted above, segregation in Level2 i s not l inked to a parti cular infrac tion, an d i s of p otentia lly unlimited dura tion. A ny inma te who enters LT SU will rem ain at L evel 2 for 90 days no matter how he mo difies h is behavior. Furthermore, the onlyinformation in the record as to how the pr ocess works i s the fol lowing e xplan ation from Dickson’s de position:

You kn ow , you ha ve th e a bi lity t hr ou gh yo ur own acti ons to be p rom oted, if you w ill , fro m a le vel 2 inma te to a le ve l 1 in m ate , an d w e d o t ha t ev er y da y. We have a sy stem where the unit management team re vi ews each inmate’s progress everythirty day s. The unit management

team is ma de up of the unit
mana ger, custodystaff, psyc h staff, nursing s taff. An d we try to give a nd p rovid e eve ry inmate ever y opp ortun ity to progress throu gh th is system a nd to be able t o obtain t

hese pri vilege s. ( App. 110)
There are no affi davits in the record from anyof those decision-m akers mentioned byDickson, nor is there any documentati on of the re view process . Altho ugh at Dickso n’s deposition, Banks’ att orney appa rent ly examined and reque sted
som e docu men ts which i ndic ated , wit h res pect to cu rre nt LTSU inmates, how long theyhad been atthe faci lit y and how long t

hey had been at Le vel 2, th ose d ocum ents ar e also n ot i n the rec ord. Again, unlike the po licies in solitary and disciplinary confinement examined in Daigre , Grego ry , and Guajarde , the LTSU prohibition cannotbe c har acter iz ed a s me re ly a “time, place or m anner” restriction. See, e. g. , Grego ry , 768 F.2d at 290 ( “[the pol icyis] not16 A Security Threat Group (“STG”) is a grou p of inm ates, designated by t he Co mmi ssioner , which “poses a threat to t he safety of staff, other inm ates, the comm unity, and/or d amages to, or de str uc tio n o f p ro pe rty, and/orinter rupti ng the safesecure and orde rly operati on of

the correcti onal faci lit

y( ies) .” Fraise , 283 F.3d at 50 9. 18 directed at wh at ma il an inm ate could rec eive, but only at when he
cou ld re ceiv e it”)

. D. Factors T hree and Four : Accommodation

We now cons ider the Distric t Court ’s anal ysi s of Turner ’s third and fou rth fa ct or s. Unde r thes e fa ct or s, we mu st determi ne whether the ri ght in ques tion can be accommodated without signi ficant

negat ive consequences i n terms of ef fici ency a nd
se cu rity, DeH art , 227 F.3d at 58, and “whether the pris on can easily serve its interests with alternati ve means without i nfringi ng upon the r ights o f pris oners, ” Crofton v. Roe , 170 F.3d 957, 959 (9th Cir . 1 999 ). The S upr eme Court has sugge sted t hat the “existence of obvious, easy alte rnati ves may be e vidence that the regulat ion is not re ason able, b ut is an e xagg erated respo nse to prison concerns. ” Thornburgh v. Ab bott , 490 U.S. 401, 418 (1989) (cita tion and quo tatio ns o mitte d).

In Fraise , inmat es chall enged a poli cy which authori zed prison aut horities t o designate and tra nsfer cor e members of “Sec urity Thr ea t Gr oup s” as vi ol ativ e o f the Fi rs t Am endm ent’s Fr ee Ex ercis e Clause, as well as the Equal Pr otection and Due Process Clauses. 16 The Court determined that the third prong weighed in favor of t

he DO C and, quoti ng Turner , st ated that “[w]hen accommodation of an asserted right will have a signi ficant ‘ri pple effect’ on fellow inmates or on prison staff, court s s houl d be parti cularl y deferentia l to t he informed di scretion of correct ions officials. ” Fraise , 283 F.3d at 520 (quoti ng Turner , 482 U.S. at 90). It is ce rta in ly s upport ed by the record, as the District Cou rt repea tedly asserte d, that th e LT SU Lev el 2 in mat es ar e s ome of the most “int ractable” i n the Pennsy lvania prison sy stem
. We cannot agr ee, how ever, o n the re cord befo re us, tha t acco mm odatio n o f those prison ers’ righ ts by giv ing the m reasonable access t o a limi ted number of peri odical s and photogr aphs would have such a “rip ple e ffe ct.”17 Vol ume control is a w ell-r e cognized al ternat ive to t he blanket exclusi on of i te ms protect ed b y the F irst A me ndm ent. See Clement v. Ca lifornia Dept. of Corre ctions , 220 F. Supp. 2d 1098, 111 3 (N .D. C al. 200 2); Spellman , 95 F. Supp. 2d at 1286. 19 At no point does Banks propose that Le vel 2 inmates be allowed unmitigated and unregulated access to all periodicals. Rather, Banks pr opo se s, an d the Dis tric t C our t d is cu ss ed , two alte rnati ve polici es which woul d accomm odate the prisoners’ rights. First , the DOC could est ablis h a specif ic rea ding peri od, or severaldiffere nt readi ng periods , in whic h guards delive r a sing le newspape r or magazine t o an inmate’ s cell , if requested, and retrieve it at th e clo se o f the per iod

. The DOC could easi ly control the nu mb er of p eriodic als in his cell at one time, the frequencyof the distribu tions, th e amo unt o f time any inm ate w ould be in possessi on of the materials , as wellas the number of inmates who would have peri odical s in their ce lls at any one t ime. 17 The DOC could also lim it the tot al num ber o f ph otog raph s a Le vel 2 in mate could have in his ce ll at one time to what they consider a
reaso nable num ber. In c onju nction with this po lic y, a ccess to period icals could be entirel y withheld from thos e i ndividual pr isoners wh o, in the ju dgm ent o f pr ison off icials , wo uld pose a parti cular

risk gi ven thei r recor ds, or those i nmat es w ho have abused their use of p eriodic als or p hoto grap hs. Th e D OC asserts that such a li mited re stri ction would not prev en t Level 2 i nmates from using the materi als t o start fires, fl ing feces a nd cr eate weapons and there fore, during the reading p eriod, extra monitori ng of cells wou ld be required , thus affecting the prison’s resourc es and pos sibly th e sa fety o f oth er in ma tes.
We fail to see, however, as di scussed above u nd er fact or one, how an inmate’s hour -long poss ession of Graterfr iends wo uld require further

monitori ng when at any time that inmate may be in possessi on of 10 sheets of writi ng paper, and as many copi es of the Watchtower , the Jew ish D aily Forw ard , and the Christian Scie nce Monitor Magazine as can fi t in arecords center box. As disc ussed abo ve, the Dist

rict Court’s a ssumpti on that prisoner s woul d b e more relu ctant

to use r eligi ous materi als for such nefari ous purposes is unsupported bythe rec ord. Furthermore, at any poin t, the entire LTSU can house no more than 40 inmate s, one- tenth of
one percent

of the st at e’s pri son pop ulation . (Ap p. 95) Eve n if limi ted dist

ribution of peri odical s were to r equire a dditi onal18 Here, the Dist rict Co urt reli es on Allah v. Al-Hafeez , 208 F. Supp. 2 d 520, 530 (E. D. Pa. 2002), in which the court foundtha t the thir d Turner facto r we ighed in the p rison a utho ritie s’ f avor because the inmat e was parti cularl y i ll- behaved an d accommodating his pre sence at reli gious servi ces wou ld require
more monitori ng of those s ervice s, the re by st raini ng prison
resourc es and affecti ng the pri son staf f and other inmates. Although the Turner factor s are eval uated i nde p ende ntly, it is important

to no te with res pect t o this decisi on that t he prison pol icy
was much narrow er and the court’s analy sis was informed by the factth atth e i nmate ha d man y me aning ful w ays to pra ctice h is reli gion withou t a ttend in g se rv ic es . He cou ld me ditat e, pray and studyhis re ligi on, as wellas discuss it wit h otherinmates out side his c ell. Id

. 20 monitori ng, such an accommodation would have a minimal i mpact on p rison reso urc es.
A lte rn ati ve ly, indivi dual prisoners could be esc orted t o the
secure mini-l aw library t o read a periodica l of the ir choos ing. Again, the Dist

rict Court found that such an ac com mo dation wo uld intens ifysecuri ty concerns byincrea sing the amoun t of inm ate movement and th ereby pla cin g a formidabl e burd en on LTSU staff. 18 Inmates are alre ady permitt ed to le ave thei r cell s under guard esco rt to use the l ibrary t o view legalmateri als, so indi vidual inma te escort

has not been de emed pr ohib iti velyburdensome or dangerous by prison a dminist rator s. Although it i s possi ble that the dema nd for mini- law libr ary sessi ons may i ncrease i f the po lic y were chan ged , the D OC has n ot sho wn how this w ould signif icantly increa se the burden on prison st aff. Superintende nt Dickson explai ned in his deposition that under currentLTSU po lic y, one in mate is all owed out of h is cel l at a time t o visi t the law library for one two-hour sessi on. A rost er of reques ts, like a
wa iting-list, is maint ained and fulfi lled on a firs t-come fi rst- serve basis. The am ount or freq uency of inm ate mov emen t is alre a dy regulated. If the i nmates’ rights to rea d o ther periodicals w ere accommodated, t hat woul d not change. We fail to s ee how the
mere additi on of non-lega l and non-r eligi ous p eriodi cals t o the mate rials alrea dy avai lable to the i nmates i n the lib rary wo uld create the “ripple effect” cit ed by t he DO C. In s hort, the DOC has not shown that a cha nge in the publication ban woul d m ean “sign ifican tly less liber ty and safety for every one else, guards and21 otherprisone rs al ike .” Abbot t , 490 U.S. at 418 (quoting Turner , 482 U.S . at 92 ).
Fi na lly, the D istric t Cou rt as sert ed that the al ternat

ives pr oposed com e at more t han a de minimus cost to the D OC ’s behavior modifi cati on goals because th e acc essibility of p eriodic als
wo uld render t

he threat of

Leve l 2 segregation toothl ess as a deterre nt. However, the Di strict Co urt ov erlook ed the exten t to which, even wit

hout t he chal leng ed res tri cti on, Lev el 2 LTSU segregation is more r estricti ve than Level 1 in significant r espects. For exam ple, Level 1 in mates are pe rmi tted two familyvisi ts and
one fifteen minute telephone call per month. They are also permitted to spend $5. 00 per week a t th e co mmis sa ryon i te ms defined by the U nit Te am. A ddition ally, while in mate s at both levels receiv e in-ce ll coun seling a nd v isits from chaplai ns, and can be employe d as Unit Janitor , only Level 1 inmat es recei ve compe ns ation as per DC-816 Inmate Compensation Sy stem, a nd only Level 1 inmat es are permitt ed GED and Special Education i ncell study . (App. 32)
IV. Conclusion

For the rea sons stated a bov e, we beli eve th at the DO C’s policy that pr oh ibits inm ates co nfine d in the LT SU at Le vel 2 stat us acc es s t o ph ot ogr aph s, and al l n ewsp ape rs and ma ga zines which are nei ther l egal nor rel igious in nature, cannot be support ed
as a m att er of law by the record i n this case. Accor dingly , the
summ ary judgment of t he District Cou rt will b e revers ed and the
case remanded for further pr oceedings c onsistent with t his opi nion.
AL ITO , Circuit

Judge , dis senti ng:
At issue i n this case are r est rictions th at the P enns ylvania Departmentof Corrections imposes as a last resort on the most disrupt ive and d ange rous .1 % of its p rison population. These restrictions apply only as long as an inmate r emains in Level2 of the LTSU, an assignment t hat may terminate aft er as litt le as 90 days. The questi on b efore us is w hethe r these temp orary, lastresort restrictions ar e facial ly unconsti tut iona l under the stan dard setout in Turner v. Saf ley , 482 U.S. 78 (198 7), a s tandard t hat instruc ts courts to exte nd consider able deference to j udgment s o f22 correct ional offici al s. Because I bel ieve that the majorit y has misappli ed Turner , I mu st res pec tfull y disse nt.
Under Turner , prison regulat ions that restrict

consti tuti onal rights must be sust ained i f theyare “ rea sona bly related to legitima te penologic al interest s.” 482 U.S. at 89. Turner noted four factors to be consi dered i n dete rminin g w hethe r the req uisite
rea son able relat

ionshi p exist s: (1) whether the re is “a ‘val id, rati onal connecti on’ between the pris on regulat ion an d the legitima te govern men tal interest put forward to j usti fy i t”; ( 2) “whetherthere are alternati ve means of exerci sing the right that
rema in open to prison i nmates”; (3) “the impact acc ommodation of the asserted consti tuti onal ri ght willhave on guards and o the r inmates” ; and (4) whether there are “rea dy al ternat ives” to t he chall enge d regu lati on.” Id . at 89-9 0 (citatio n om itted). I w ill add ress eac h fa ctor

. First fact or: Rat ionalrela tio nship b e t we en regulati on and legit ima te p eno log ical i nte res ts. I agree wit h the Dist rict Cou rt that t

his factor weighs in favor of the constitutionali ty of the chall enged regulations because there i s a “rati onal” relation ship between that

restriction and the legit

imate penol ogical objective of deterring mis con duc t. I t is “r ationa l” for c orrectio ns of ficials to think that i nmates who are not in Level 2 will be deterred from engaging in serious mis conduct becaus e theydo not want to be trans ferredto that

unit and t

hus to be subj ected t o t he restrictions that acc om pan y that a ssig nm ent. It i s also “ rati onal” for correct ions offici als t o think t

hat inmates wh o are in Lev el 2 w ill be deterre d fro m en gagin g in se rious m iscon duct w hile in that u nit because they wish to be tran sferr ed ou t and thus t o escape such restr ictio ns.
The majoritydisa gree s wi th th es e c onc lu si ons fo r two reasons. First , the majorit y apparent ly belie ves that a sancti on cannotdeter u nless a pote ntial v io la to r k nows with so me spec ificity the type m iscon duct th at will re sult in the imposition of the sancti on and the l ength of time that the sancti on will l ast. The majo rity concedes that “det errence of future infr acti ons of pri son rules can b e an a ppro priate justific ation f or temporari ly restricting the right s of inmate s” and that othe r cou rts of

appeals ha ve sustai ned rules restricting the receipt of n ewsp apers by prisoners in disciplinary se gr ega tion

. See Maj. at 9 ( citi ng Gregory v. Auger ,23 768 F.2d 28 7 , 290 (8 th Cir. 19 85); Da igre v. M aggio , 719 F.2d 1310, 1313 (5 th Cir. 1983)). The majorityfinds t he se pre cede nts inappli cabl e b ecause the “LT SU is not a place w here inm ates are sentfor a di sc re te perio d of

pun is hme nt, pur suan t to a spe cific infrac ti on, but a place for ‘Long Term’ segregation of the most incorr igible and diffi cult prisoner s for as l ong as theyfall under that umbre lla. ” Id

. The m ajority’s reas onin g is un soun d. Th e unc ertaintie s noted by the majori ty may dimi nish the deterren t eff ect of the
re gul at io ns o n so me inmates who are not yet in Level 2, but there is no reason t o think

that t hese uncert ainti es enti relyelimi nate the deterrent effect of t

he regulations on the gener al pri son populati on. Sim ilarly , it is rati onal to be lieve that t he chall enged rest

rictions provide an inc entive for tho se inm ates w ho ar e alrea dy in Level 2 to refrai n from disruptive be havior i n the hope of obt aining a trans fer out o f the u nit. Ag ain, un certain ty about w hat mu st be done to obtai n such a tr ansferor about when such a t ransfer may be availa ble may have an i mpact on the degree of the incen ti ve, but there is no re ason to suppose that the inc entive is wholl y des troy ed. Second, the majority

concludes t

hat the regulat

ions ar e not rationa lly related to the goal of deterring misconduct because “the DOC has offered no e vidence that the rule a chieves or co uld achieve its stat ed rehabi lit ative purpose. ” Maj. Op. at 10. In taki ng this approac h, the majori ty mis construes the nature of the fir st Turner factor . This fa ctor r equires us to dete rmine whe ther there is a “ logical

conn ecti on between the r egulation and the asserted goa l,” see 482 U.S . at 89 (e mp hasis a dded ), not w hethe r there is empiric al evidence t

hat the regulat

ion in fa ct serves t

hat goal . The
e ntire sys tem of pri son discipline mi ght be imperill ed if eac h sancti on for pri son miscond uc t could not be sustained without
e mpirica l evidence t

hat the sancti on provided s ome incremen ta l dete rren t.
Second factor: alternative means of exerc ising the righ t. This is the most tr oubling of t he four fact ors, but I do not t hink that it i s suff icient to s upp ort the m ajority’s con clusion that th e regulat ions are fa cially unc ons titutio nal. The regulations i mpinge upon t he right

to rece ive inf

ormation about curr ent event s and
c ommuni cati ons (in the f orm of p hoto grap hs) fro m fa mily
mem bers and friends , but t he rest rictions are not absolut e. Inmat es24 in Level 2 may stil l read books from the pri son li braryand may recei ve letters. More ove r, as the D istrict Co urt no ted, inm ates in Level 2 have the “option of modify ing their behavior and being promoted to a le ss res tri cted envi ronment

. ” Re port & Recommendation at 8 . An as-ap plied c hallen ge by an inma te subjec te d to lengt

hy confi nement in Level2 despite a recor d of reformed behavior would present di fferent considerations, but the
majority’s o pin ion is no t limit ed to suc h a c ase
. Third and fo urth fa ctors : Availabi lity and impact of accommodati on. The majority propose s mod ific ations in pri son polici es th at w ou ld alm os t ce rta in ly h ave an i mpact on pri son resources. The majorit y fi rst s uggests t

hat guards could del iver request ed newspapers and magazi nes to i nmates’ ce lls and then retrieve these m aterials after the expi rati on of a specifi ed “readi ng per iod .” Maj. Op. at 18. Providi ng this servi ce foreach of the 40 inmates in Le vel 2 would be time cons uming. “Alternativel y, ” the majo rity stat es, “i ndividualprisone rs coul d be escorted to [th e]
secure mini-la w lib rary to read a perio dical o f th eir ch oos ing .” M aj. Op. at 19. This service, however, wo uld undoubtedly impose
a signi ficant

burden, parti cularl y si nce the inmates in qu estion are those whom the Department of Corre ctions has clas sifi ed as the most violen t and d isruptiv e . It is Dep artme nt po licy that Le vel 2 inmates may not be trans ported from their cells unless they are plac ed in han d an d leg iron s an d ar e es cor ted b y two off icers

. Taking into accoun t allfour of the Turner fac tors, I conclude that t h e cha llenge d reg ulation s are n ot fac ially
unco nstitution al. On their fa ce, these regul at ions are rea sona bly related to the l egiti mate penologi cal goalof curbi ng prison misc ond uct, and I would therefore affi rm the deci sion of th e Distric t Cou rt.