2005 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

2-25-2005

Banks v. Beard

Precedential or Non-Precedential: Precedential

Docket No. 03-1245

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1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 03-1245

___________

RONALD BANKS, for himself and on behalf of all similarly 

situated prisoners who are confined or will be confined in Long

Term Segregation Units of State Prisons located in the

Western Judicial District of Pennsylvania,

Appellant

v.

JEFFREY BEARD, in his official capacity as Secretary of the

Pennsylvania Department of Corrections

___________

On Appeal from the United States District Court 

for the Western District of Pennsylvania

District Court Judge: The Honorable Terrence F. McVerry 

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

___________

Argued on October 22, 2003

Before: ALITO, FUENTES, and ROSENN, Circuit Judges

(Opinion Filed: February 25, 2005)

JERE KRAKOFF [Argued]

PA I.D. No. 13701
2

1705 Allegheny Building

Pittsburgh, PA 15219

Counsel for Appellants

D. MICHAEL FISHER

Attorney General

KEMAL ALEXANDER MERICLI [Argued]

Senior Deputy Attorney General

CALVIN R. KOONS

Senior Deputy Attorney General

JOHN G. KNORR III

Chief Deputy Attorney General

Appellate Litigation Section

Office of Attorney General

6th Floor, Manor Complex

564 Forbes Avenue

Pittsburgh. PA 15219

Counsel for Appellee

_______________________

OPINION OF THE COURT

_______________________

FUENTES, Circuit Judge

Ronald Banks, on behalf of himself and all other Level 2

prisoners confined in the Long Term Segregation Unit (“LTSU”)

of the State Correctional Institution at Pittsburgh (“SCI

Pittsburgh”), challenges the constitutionality of the Pennsylvania

Department of Corrections’ (“DOC”) policy banning access to

newspapers, magazines and photographs for Level 2 inmates,

arguing that the policy violates the prisoners’ free speech rights

under the First Amendment.
1The maximum population in the LTSU is 40. (App. 92)

Deposition testimony in this case discloses that, during the relevant

period, the LTSU population was comprised of 36 Level 2 and

three Level 1 inmates. (App. 93)

2The relevant DOC regulations state: “Any inmate who is, has or

may be planning to engage in the following activities may be

appropriate for assignment in the LTSU: (1) inmates who fail to

complete SMU [Special Management Unit]; (2) serious escape

history; (3) assaultive behavior with the intent to cause death or

serious bodily injury; (4) injury to staff and/or inmates; (5)

engaging in facility disturbance(s); (6) recorded history of exerting

negative influence in facility activities; (7) Security Threat Group

(STG) member or other unauthorized organization(s); (8)

Perpetuated criminal activity that threatens the community; (9) a

history of being a sexual predator; and/or (10) possessing weapons

and/or implements of escape.” 6.5.1 Administration of Security

Level 5 Housing Units Procedure Manual at 1-16. 

3

The District Court granted summary judgment to the

defendant and upheld the policy as reasonably related to legitimate

penological interests. We disagree and therefore will reverse.

I. Factual and Procedural Background

The LTSU was established at SCI Pittsburgh in April 2000

as a place to confine a small population of inmates1 which the DOC

views, because of their history of behavior in prison, as too

disruptive, violent or problematic to house elsewhere.2 Inmates are

classified at “Level 2” when admitted to the Unit, must remain

there a minimum of 90 days, and may remain at Level 2

indefinitely. The length of time a prisoner may spend in the LTSU

is open-ended and subject to the discretion of prison personnel. 

Department policy prohibits Level 2 prisoners from

receiving newspapers or magazines directly from the publisher,

from the prison library, or from any other source for the duration

of their confinement at Level 2 status unless the publication is

religious or legal in nature. Individual articles clipped from

publications are prohibited, unless they relate to the inmate or his

family. Also prohibited is the possession or receipt of photographs

of spouses, other family members, or friends. 
3The photograph prohibition, however, remains unchanged.

4

Other DOC rules which govern life at LTSU Level 2

prohibit inmates from having radios or televisions, permit phone

calls only in emergencies or when related to inmates’ legal

representation, limit inmates to one visit with an immediate family

member per month, and require inmates to remain in their cells 23

hours a day, one inmate to a cell. Inmates are permitted, however,

religious or legal publications and paperback books that can be

ordered from the prison library. To review legal materials, one

LTSU inmate at a time may be let out of his cell and is escorted

from it to a “mini law library” in hand and leg irons by two

corrections officers. (App. 11)

The policy challenged here is unique in the state prison

system, even among other segregated inmates. Level 1 LTSU

inmates are permitted one subscription newspaper in their cells

which can be exchanged on a one-for-one basis and are also

permitted five subscription magazines at any given time.

3

Department policy also authorizes Special Management Unit

(“SMU”) inmates (another class of segregated inmates identified

as being among the most difficult inmates in the system) to have

various numbers of subscription newspapers, magazines and

photographs in their cells, depending on their classification level.

(App. 77) Similarly, dangerous inmates who are segregated in the

Department’s regular Restrictive Housing Unit on Administrative

Custody status for security reasons are permitted one subscription

newspaper in their cells which can be exchanged on a one-for-one

basis, as well as subscription magazines and up to 10 photographs.

Deputy Superintendent Joel Dickson, who supervises the

LTSU, testified in his deposition that the prohibition serves several

penological purposes, which were reiterated by the defendant in its

briefs. First, and emphasized by Dickson as most important, is

behavior modification and rehabilitation. Dickson explained that

in Level 2, inmates are deprived of certain privileges to create an

incentive to comply with prison rules and thereby be removed to

Level 1 and eventually to the general population. Among Level 1

inmates, the prospect of having the privileges denied discourages

backsliding. Also, Dickson explained that as inmates improve their
5

behavior to earn privileges, they become better integrated members

of prison society or, if released, better members of free society and

“more productive citizen[s].” (App. 111) Second, the less material

Level 2 prisoners have in their cells, the easier it is for correctional

offices to detect concealed contraband and provide security. Third,

newspapers and magazines can be rolled up and used as blow guns

or spears, can fuel cell fires, or can be used as crude tools to

catapult feces at the guards.

Plaintiff Ronald Banks filed the Complaint in this action on

October 18, 2001. Seeking equitable and declaratory relief, the

Complaint challenged the constitutionality of the DOC policy that

denies Level 2 inmates access to newspapers, magazines and

photographs of family members and friends. The inmates argued

that, under Turner v. Safley, 482 U.S. 78 (1987), the policy offends

their right to free speech either because it bears no rational

connection to any legitimate penological interest or because it is an

exaggerated response to such an interest. A motion for class

certification was filed and granted on March 22, 2002. After

discovery was completed, the parties filed cross-motions for

summary judgment in September of 2002. 

On November 15, 2002, Magistrate Judge Robert Mitchell

recommended granting summary judgment to the DOC. The

recommendation reasoned that the Turner factors weighed in the

DOC’s favor and that the policy was rationally related to, and

furthered the legitimate penological interests of, institutional

security and prisoner rehabilitation. Despite Banks’ objections, on

January 10, 2003 the magistrate’s recommendation and reasoning

were adopted by order of the District Court. 

The District Court reasoned first that the policy is not an

impermissible First Amendment violation because it is rationally

related to the legitimate and interrelated penological interests in

rehabilitation and security. It encourages compliance with prison

rules and deprives especially incorrigible prisoners of material

from which they can fashion crude weapons or feed cell fires. 

Second, the District Court held that the policy is not an

exaggerated response to the stated penological concerns. The court

agreed with the DOC that inmates can meaningfully exercise the

burdened First Amendment rights by qualifying with good
4Here, the DOC asserts the existence of the “ripple effect,” cited in

Turner, as a magnifier of cost in the prison environment. 482 U.S.

at 90.

6

behavior for promotion to Level 1 or by corresponding with family

and friends. Furthermore, given the particular intractability of

Level 2 inmates, any further accommodation of their rights would

impose costs that cannot be characterized as only de minimus.4

Banks timely appealed the District Court’s grant of summary

judgment. 

II. Jurisdiction and Standard of Review

The District Court had original jurisdiction over the action

pursuant to 28 U.S.C. §1343 because the claim asserts a violation

of the First Amendment to the U.S. Constitution. This Court has

appellate jurisdiction over the order of the District Court granting

summary judgment pursuant to 28 U.S.C. § 1291. We review de

novo the District Court’s decision to grant the DOC’s motion for

summary judgment. See Sutton v. Rasheed, 323 F.3d 236, 248 (3d

Cir. 2003). In reviewing the record, we view the evidence and any

inferences therefrom in the light most favorable to the non-moving

party, and resolve all factual conflicts in its favor. We reverse the

District Court’s decision where there are genuine issues of material

fact precluding judgment as a matter of law. See Suders v. Easton,

325 F.3d 432, 440 (3d Cir. 2003). 

III. Discussion

A. The Turner Standard

We have repeatedly echoed the Supreme Court’s

admonition that “prison walls do not form a barrier separating

prison inmates from the protections of the Constitution.” Ramirez

v. Pugh, 379 F.3d 122, 126 (3d Cir. 2004); Fraise v. Terhune, 283

F.3d 506, 515 (3d Cir. 2002) (quoting Turner, 482 U.S. at 84). In

Turner, the Supreme Court acknowledged, however, that inmates’

constitutional rights may in some cases be limited, and held that a

prison regulation that impinges on inmates’ constitutional rights “is
5Neither party contests that inmates have a First Amendment right

to receive magazines and newspapers through the mail. See Allen

v. Caughlin, 64 F.3d 77, 79 (2d Cir. 1995); Sizemore v. Williford,

829 F.2d 608, 610 (7th Cir.1987).

6As the District Court correctly pointed out, Fraise also asserted

that particular deference to prison authorities is especially

appropriate when a regulation implicates prison security. 283 F.3d

at 516.

7

valid if it is reasonably related to legitimate penological interests.”

482 U.S. at 89.5 

The Supreme Court articulated an analytical framework

within which the reasonableness of such a regulation is assessed by

weighing four factors. First, there must be a “valid, rational

connection between the prison regulation and the legitimate

governmental interest put forward to justify it.” Turner, 482 U.S.

at 89 (quotations omitted). Second, the court must determine

“whether there are alternative means of exercising the right that

remain open to prison inmates.” Id. at 90. Third, the court must

assess “the impact accommodation of the asserted constitutional

right will have on guards and other inmates” and prison resources

generally. Id. Finally, the court must consider whether there are

“ready alternatives” to the regulation that “fully accommodate the

prisoners’ rights at de minimus cost to valid penological interests.”

Id. at 90-91. The existence of such alternatives is evidence that the

regulation is an “exaggerated response to prison concerns.” Id. at

90 (quotations omitted).

Although the Supreme Court emphasized that the judiciary

is often “ill equipped to deal with the increasingly urgent problems

of prison administration and reform,” and should therefore give

significant deference to prison officials in interpreting and

implementing regulations,6 the Court was not relinquishing the

policing of prison policy to prison administrators. Id. at 84

(quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974)). To the

contrary, in Turner, while the Supreme Court upheld a rule barring

inmate-to-inmate correspondence as reasonably related to

legitimate security interests, it also struck down an inmate marriage

restriction as an “exaggerated response to petitioners’rehabilitation

and security concerns.” Turner, 482 U.S. at 91. The Court held
7

In Waterman v. Farmer, for example, this Court upheld a prison

regulation, justified as rehabilitative, which restricted sex

offenders’ access to pornographic materials. 183 F.3d 208, 215

(3d Cir. 1999). Prison authorities submitted affidavits from two

psychologists who testified that pornographic materials threatened

to thwart the effectiveness of the treatment given to sex offenders,

and therefore that limiting access to such material was a sensible

rehabilitation strategy. 

8

that the rule “sweeps much more broadly” than can be explained by

the stated objectives and therefore failed the reasonable

relationship test. Turner, 482 U.S. at 98.

As the Eleventh Circuit has aptly noted, “traditional

deference does not mean that courts have abdicated their duty to

protect those constitutional rights that a prisoner retains.” Fortner

v. Thomas, 983 F.2d 1024, 1029 (11th Cir. 1993) (citations

omitted). If Turner is to be a meaningful limit on the discretion of

prison administrators, its four factors must be diligently weighed

by reviewing courts. 

B. Factor One: Rational relationship to legitimate

penological interest

Banks argues that the connection between the policy and the

valid penological objectives cited as its justification is too

attenuated to be rational. 

1. Rehabilitation

Unlike the government’s interest in security, the

rehabilitation objective has never been defined by the Supreme

Court, and its contours remain “quite amorphous and ill-defined.”

Ramirez, 379 F.3d at 128 (citing Amatel v. Reno, 156 F.3d 192,

209 (D.C. Cir. 1998) (Wald, J., dissenting)). Clearly, however,

restrictive prison policies can be designed to target particular

behaviors for which prisoners were incarcerated, or those that arose

and presented security risks during incarceration.7 Id.

The District Court essentially determined that (1)

withholding privileges to get compliance is a sensible policy, and
9

(2) denying all other privileges short of access to publications and

photographs had proven in the past not to be a sufficient incentive

for behavior modification because, if it had been, inmates would

not have been transferred to LTSU Level 2. Therefore, the District

Court found that denying publications and photographs was a

rational next step. 

Certainly, “deterrence of future infractions of prison rules”

is a legitimate penological interest. See Gregory v. Auger, 768

F.2d 287, 290 (8th Cir. 1985); Daigre v. Maggio, 719 F.2d 1310,

1313 (5th Cir. 1983). In the Fifth and Eighth Circuits, temporary

restrictions on prisoners’ receipt of certain mail and subscription

publications in disciplinary segregation have been upheld

following exactly the logic advanced by the DOC here. Those

courts held that such restrictions made disciplinary segregation less

endurable and therefore discouraged inmates from the rule

infractions that would lead to such segregation. See also Guajardo

v. Estelle, 568 F. Supp. 1354, 1366 (D.C. Tex. 1983) (permitting

inmates in solitary confinement access to books, magazines and

newspapers may “water down the conditions in solitary and would

make the threat of solitary confinement meaningless”) (internal

quotations omitted).

Although we agree that deterrence of future infractions of

prison rules can be an appropriate justification for temporarily

restricting the rights of inmates, we cannot say that the DOC has

shown how the regulations in this case serve such a purpose. We

recognize how such a rule could be reasonably related to a

penological interest in rehabilitation in “disciplinary segregation”

where inmates are placed for “specific rule infraction[s]” and for

limited and specific periods, but this is not such a case. Spellman

v. Hopper, 95 F. Supp. 2d 1267, 1281 (M.D. Ala. 1999). 

Although the DOC asserts that LTSU is a “disciplinary”

status, the LTSU Level 2 is a unique kind of segregation with

characteristics of both disciplinary and administrative segregation.

Inmates come to LTSU because of “unacceptable behaviors” in

other institutions, but they have not all been adjudicated by a

hearing officer to have violated the DOC’s rules. (App. 95) The

LTSU is not a place where inmates are sent for a discrete period of

punishment, pursuant to a specific infraction, but is a place for
8

In fact, disciplinary segregation is usually quite short in duration.

In Daigre, after addressing a guard profanely, Daigre was put in

“administrative and punitive lockdown” for “a maximum of 10

days’ isolation” pursuant to a finding of “defiance.” 719 F.2d at

1311. In Gregory, the challenged policy was in place for inmates

on Disciplinary Detention Status, which carried with it a 60-day

maximum duration. 768 F.2d at 290. In Guajardo, the court was

evaluating a publication ban in place in solitary confinement, a

type of punitive segregation used as a sanction for violation of

Texas Department of Corrections rules and regulations. An inmate

could be confined in solitary for a maximum of 15 days, and an

interval of at least three days was required between terms in

solitary, during which time the inmate could have access to any

publications withheld during the term. 568 F. Supp. at 1366.

10

“Long Term” segregation of the most incorrigible and difficult

prisoners for as long as they fall under that umbrella. 

All LTSU inmates must spend 90 days at Level 2 status

when they first arrive, and although their behavior will be reviewed

every 30 days to determine whether they deserve promotion to

Level 1, that determination is entirely within the discretion of

prison administrators and is not linked to any particular infraction

or compliance. While disciplinary segregation ordinarily has a

specified duration, inmates may remain in Level 2 and under the

publication ban indefinitely.8 In fact, several inmates have

remained in Level 2 since the LTSU’s inception two years ago. As

administered, it is unclear how the policy would achieve the

deterrence it seeks. Not only is the rehabilitation justification

illogical given the nature of LTSU confinement, but LTSU Level

2 is a far cry from the disciplinary contexts in which such bans

have been deemed constitutional.

Furthermore, the DOC has offered no evidence that the rule

achieves or could achieve its stated rehabilitative purpose. In

Waterman, the DOC submitted affidavits from two psychologists

who testified that pornographic materials threatened to thwart the

effectiveness of the treatment given to sex offenders and who

agreed that limiting access to such material was a sensible

rehabilitation strategy. 183 F.3d at 215. In Guajardo, the

defendants offered evidence as to the frequency and percentage of
9Rehabilitative goals are “furthered by efforts to inform and

educate inmates, and foster their involvement in the world outside

the prison gates.” Abdul Wali v. Coughlin, 754 F.2d 1015, 1034

(2d Cir. 1985). In Spellman v. Hopper, there was testimony

that deprivation of reading materials in segregation can cause

“psychological deterioration” which in turn can cause inmates

either to be “very withdrawn and curl up in infancy, or [to]

become acting out and aggressive people.” 95 F. Supp. 2d at 1281;

see also Morrison v. Hall, 261 F.3d 896, 904 n.7 (9th Cir. 2001)

(citing studies and articles noting the “correlation between reading,

writing and inmate rehabilitation”).

11

solitary confinements in the Texas Department of Corrections

(“TDC”) which showed that the negative perception of solitary

confinement had a deterrent effect. 568 F. Supp. at 1368 (“a

significant majority of TDC inmates have never experienced

solitary confinement and less than half of those who are confined

in solitary return a second time”). Here, there are no such

supporting affidavits. The District Court presumably relied on

Superintendent Dickson’s testimony that the prohibition in

question “gives us a means or method to say you comply, you

modify your behavior, and you can obtain these things, these

privileges,” and his explanation that “we’re very limited . . . in

what we can and cannot deny or give to an inmate, and these are

some of the items that we feel are legitimate as incentives for

inmate growth.” (App. 110) The District Court did not examine

the fit between the policy and its rehabilitative goals, whether the

ban was implemented in a way that could modify behavior, or

inquire into whether the DOC’s deprivation theory of behavior

modification had any basis in real human psychology, or had

proven effective with LTSU inmates. At oral argument, counsel

for the DOC said it was a “hope.” In fact, Banks argues that

contrary to the assertions of the prison authorities and the District

Court, isolating prisoners from the goings-on in the outside world

tends to undercut any genuine rehabilitation. There is, again, no

evidence in the record on this point, but Banks cites to language in

several cases to support this assertion.9 It certainly seems relevant
10Our dissenting colleague contends that we misapply the first

Turner factor by requiring the DOC to show some evidence to

support its contention that the rule achieves or could achieve its

stated rehabilitative purpose. However, our insistence that the

DOC offer some evidence is not, in our view, at odds with Turner

but rather a complementary part of the analysis in determining

whether an asserted goal is logically connected to the prison

regulation. See Turner, 482 U.S. at 89 (requiring prison authorities

to put forward a legitimate governmental interest justifying the

regulation). Indeed, in Turner, the Supreme Court evaluated the

evidence in determining whether the prison rules in question served

- in theory or in practice - the alleged penological goals. See id. at

91-93, 98-99. In our view, the paucity of any such evidence in this

matter reinforces the conclusion that there is no valid, rational

connection between the DOC rule and its stated rehabilitative

purpose.

12

to the above inquiry, as well as likely, that the ban may produce

less rather than more compliance in at least some inmates.10

2. Security

With respect to security, the District Court held that there

was a valid rational connection between the ban on periodicals and

photographs in LTSU Level 2 and the constellation of security

concerns put forth by the DOC. We cannot conclude from the

record that such a connection exists. This is so for two reasons. 

First, there is no evidence in the record of the misuse of

periodicals or photographs in any of the ways described by the

DOC. In fact, matches are not allowed in the LTSU. See also

Gregory, 768 F.2d at 289 (“cellblock fires have been eliminated

entirely . . . by new regulations prohibiting inmates from

possessing matches”). There was no testimony as to the frequency

of fires in the LTSU, nor testimony about any particular fires, in or

out of LTSU segregation, and how and with what materials they
11Superintendent Dickson testified only that within the last six

months there were “no more than two or three” cell fires in the

entirety of the LTSU, and “paper products generally are the way

it’s first ignited.” He also testified that he did not know of any

instance where a LTSU Level 1 inmate used a newspaper or

magazine to start or fuel a fire. (App. 112)

13

were set and fueled.11 The same is true for the materials’ potential

use as weapons.

Furthermore, there was no testimony as to the effect such a

ban has had on the frequency of fires, be it in the LTSU or

elsewhere. In fact, Banks points out that inmates on Death Row,

in Administrative Custody, and in the Special Management Unit

are routinely permitted to have these items, and the DOC presented

no evidence that the security or operations of these units are

negatively affected to any palpable degree by the presence of these

items. 

The District Court dismissed this argument, agreeing with

the DOC that a comparison to other forms of segregation within the

Pennsylvania DOC is irrelevant because LTSU inmates are the

“worst of the worst.” However, there is no evidence before us to

indicate that what sets these inmates apart from the rest is their

misuse of non-legal or non-religious periodicals. The District

Court’s conclusion that “the fact that other segregated inmates have

not created the same security concerns while in possession of

newspapers and magazines is one reason they are in those units and

not in the LTSU” is an inference that finds no support in the record.

In fact, there is no indication in the record that any LTSU inmates

were transferred there because they had created a security risk with

periodicals or photographs. The LTSU inmates are certainly and

unquestionably incorrigible, but whether their incorrigibility takes

the form described by the District Court is an open question which

cannot be resolved at the summary judgment stage by making

inferences in favor of the DOC and without support in the record.

Second, we agree with Banks that given the materials Level

2 inmates are permitted in their cells, prohibiting a single

newspaper or magazine has no significant relationship to the stated

security objectives. There are many other non-prohibited means
12In his deposition, Superintendent Dickson testified not only that

under the challenged policy there have still been cell fires and

rashes of feces-flinging in LTSU level 2, but also that inmates can

and do use other permitted materials to create these disturbances:

“Oftentimes it’s with the cups that they’re given for their drinks,

things like that . . . a piece of paper or whatever . . . that they can

use to give a little leverage and fling the materials.” (App. 112)

13See Spellman, 95 F. Supp. 2d at 1278; Jackson v. Elrod, 671 F.

Supp. 1508, 1511 (N.D. Ill. 1987) aff’d, 881 F.2d 441 (7th Cir.

1989) (admission that hardcover books are no greater a risk to

conceal contraband than, for example, clothing, paperbacks,

mattresses and light fixtures, “disproves defendant’s assertion of a

rational connection between their hardcover book ban and a

14

for the inmates to fuel fires, hurl waste, conceal contraband and

create weapons. Under current regulations, each inmate is given a

jumpsuit, a blanket, two bedsheets, a pillow case, a roll of toilet

paper, a copy of a prison handbook, ten sheets of writing paper,

several envelopes, carbon paper, three pairs of socks, three

undershorts and three undershirts, and may at any point also have

religious newspapers, legal periodicals, a prison library book,

Bibles, and a lunch tray with a plate and a cup. Many of these

items are flammable, could be used for the above purposes as

effectively as a newspaper, magazine or photograph, and have been

so used by LTSU Level 2 inmates.12 The District Court again

agreed with the DOC that the prohibition may not eliminate but

certainly reduces the security risks with which the DOC is

concerned, and that it is irrelevant that the policy does not

absolutely prevent the harms it addresses because Turner is not a

“least-restrictive-alternative” test. Fraise, 283 F.3d at 520;

Waterman, 183 F.3d at 219. 

Although the District Court is correct that the policy need

not be narrowly tailored to the harm it addresses to pass

constitutional muster, its conclusion here has some flaws. Even if

the policy need not be “narrowly tailored” to the stated interests, if

the prohibition of newspapers, magazines and photographs has

only a minimal effect on security in the LTSU because of the other

materials that they are permitted in the cells, the relationship

between the policy and the penological interest may be too

attenuated to be reasonable.13 It is important to note here that the
governmental interest”); Mann v. Smith, 796 F.2d 79, 82-83 (5th

Cir. 1986) (ban on newspapers and magazines represents

exaggerated response to legitimate need to preserve discipline and

maintain security); Kincaid v. Rusk, 670 F.2d 737, 744 (7th Cir.

1982) (total ban on newspapers unjustifiable when hazards of

newspaper possession could as well be caused by reading material

detainees were permitted to have); Payne v. Whitmore, 325 F.

Supp. 1191, 1193 (N.D. Cal. 1971) (“Jail cells are already filled

with an abundance of materials quite suitable for fire starting . . .;

yet no one suggests that cells ought to be stripped of bedding,

clothing, toilet paper, writing materials, and so on.”).

14In a memo dated February 8, 2001, and distributed to LTSU

inmates, Superintendent Dickson stated that the publication

Graterfriends is a newsletter, not legal mail, and therefore denied

to Level 2 inmates. Graterfriends is a Pennsylvania-based

newsletter published under the auspices of The Pennsylvania

Prison Society to which prisoners contribute and which is

distributed to prisoners and other members of the corrections

community. 

15

inmates are not requesting unlimited access to innumerable

periodicals but for the ability to have one newspaper or magazine

and some small number of photographs in their cells at one time.

We fail to see how the DOC could have reasonably thought that the

challenged policy, which permits an inmate to have in his cell 10

sheets of writing paper and one records center box full of legal or

religious periodicals or texts, would meaningfully improve prison

security by forbidding him one copy of the Graterfriends prison

newsletter.14

The District Court asserted that the prohibited materials are

“more likely” to be used to create a security concern and are “most

easily and commonly used as weapons or to set fires and fling

feces” than religious or legal materials, and therefore the link

between the policy and the stated interest is more than tenuous.

(App. 125) However, nowhere in Dickson’s affidavit does he

describe specific incidents where the prohibited materials were

used in any manner posing a security risk by LTSU inmates before

or after they were transferred to LTSU. He articulates his belief

that periodicals are more well-suited to create particular weapons,

but admits that the items already in inmates’ cells certainly could
15Although this inquiry depends in part on how the scope of the

constitutional right is defined, neither the parties nor the District

Court define the right in question, nor does the District Court’s

analysis depend on a particular understanding of the rights in

question.

16

and have been used to fuel fires, hide contraband, fling feces and

create weapons. (App. 112)

C. Factor two: Means for exercising the burdened right

Under this factor, we are asked to “focus on the burden that

the regulation imposes on an inmate’s ability to engage in

constitutionally protected activity.” DeHart v. Horn, 227 F.3d 47,

53 (3d Cir. 2000) (en banc). If other avenues are open for the

inmate to exercise the right in question, the court should exhibit

deference to the judgment of corrections officials, while if no other

avenues are available, the inmate’s right is given greater weight in

the Turner balancing process. Id.

15

Banks argues that while Level 2 inmates can read leisure

books, they have no meaningful access to current news accounts or

published information about current political, social, or other

public events and activities occurring outside the prison walls, and

they have no way to look at images of loved ones and friends apart

from the possibility of infrequent visits. The District Court,

however, disagreeing with Banks, found that inmates had sufficient

means to engage in the constitutionally-protected activities.

The District Court characterized the periodicals ban as “not

a blanket prohibition” because Level 2 inmates can qualify by good

conduct to be promoted to LTSU Level 1. The District Court’s

justification for this determination is its explanation that “each of

these prisoners has the option of modifying his behavior and being

promoted to a less restricted environment where access to

newspapers magazines and photographs may be enjoyed.” (App.

126) As the DOC elaborated in its brief, “there is no reason to

suppose that a prison administration would not respond favorably

to a prisoner’s initiative to qualify for relief from the ban on

periodicals or photos through exhibiting good behavior.”
17

The District Court and the DOC are correct in noting that

inmates can be promoted from Level 2 to Level 1 and, if they are,

they will gain access to the prohibited materials. However, that

does not change the fact that the prohibition is indeed a “blanket”

one, and that as long as an inmate is at Level 2 status and is subject

to the policy in question, he has no alternative means to exercise

his First Amendment right of access to a reasonable amount of

newspapers, magazines, and photographs. 

Moreover, there is no reason to infer that the process of

“promotion” from Level 2 to Level 1 is as much under the inmates’

control as the DOC and the District Court characterize it. As noted

above, segregation in Level 2 is not linked to a particular

infraction, and is of potentially unlimited duration. Any inmate

who enters LTSU will remain at Level 2 for 90 days no matter how

he modifies his behavior. Furthermore, the only information in the

record as to how the process works is the following explanation

from Dickson’s deposition:

You know, you have the ability through your own

actions to be promoted, if you will, from a level 2

inmate to a level 1 inmate, and we do that every day.

We have a system where the unit management team

reviews each inmate’s progress every thirty days.

The unit management team is made up of the unit

manager, custody staff, psych staff, nursing staff.

And we try to give and provide every inmate every

opportunity to progress through this system and to be

able to obtain these privileges. (App. 110)

There are no affidavits in the record from any of those

decision-makers mentioned by Dickson, nor is there any

documentation of the review process. Although at Dickson’s

deposition, Banks’ attorney apparently examined and requested

some documents which indicated, with respect to current LTSU

inmates, how long they had been at the facility and how long they

had been at Level 2, those documents are also not in the record.

Again, unlike the policies in solitary and disciplinary confinement

examined in Daigre, Gregory, and Guajarde, the LTSU prohibition

cannot be characterized as merely a “time, place or manner”

restriction. See, e.g., Gregory, 768 F.2d at 290 (“[the policy is] not
16A Security Threat Group (“STG”) is a group of inmates,

designated by the Commissioner, which “poses a threat to the

safety of staff, other inmates, the community, and/or damages to,

or destruction of property, and/or interrupting the safe secure and

orderly operation of the correctional facility(ies).” Fraise, 283 F.3d

at 509. 

18

directed at what mail an inmate could receive, but only at when he

could receive it”). 

D. Factors Three and Four : Accommodation

We now consider the District Court’s analysis of Turner’s

third and fourth factors. Under these factors, we must determine

whether the right in question can be accommodated without

significant negative consequences in terms of efficiency and

security, DeHart, 227 F.3d at 58, and “whether the prison can

easily serve its interests with alternative means without infringing

upon the rights of prisoners,” Crofton v. Roe, 170 F.3d 957, 959

(9th Cir. 1999). The Supreme Court has suggested that the

“existence of obvious, easy alternatives may be evidence that the

regulation is not reasonable, but is an exaggerated response to

prison concerns.” Thornburgh v. Abbott, 490 U.S. 401, 418 (1989)

(citation and quotations omitted). 

In Fraise, inmates challenged a policy which authorized

prison authorities to designate and transfer core members of

“Security Threat Groups” as violative of the First Amendment’s

Free Exercise Clause, as well as the Equal Protection and Due

Process Clauses.16 The Court determined that the third prong

weighed in favor of the DOC and, quoting Turner, stated that

“[w]hen accommodation of an asserted right will have a significant

‘ripple effect’ on fellow inmates or on prison staff, courts should

be particularly deferential to the informed discretion of corrections

officials.” Fraise, 283 F.3d at 520 (quoting Turner, 482 U.S. at

90). It is certainly supported by the record, as the District Court

repeatedly asserted, that the LTSU Level 2 inmates are some of the

most “intractable” in the Pennsylvania prison system. We cannot

agree, however, on the record before us, that accommodation of

those prisoners’ rights by giving them reasonable access to a

limited number of periodicals and photographs would have such a

“ripple effect.”
17Volume control is a well-recognized alternative to the blanket

exclusion of items protected by the First Amendment. See

Clement v. California Dept. of Corrections, 220 F. Supp. 2d 1098,

1113 (N.D. Cal. 2002); Spellman, 95 F. Supp. 2d at 1286.

19

At no point does Banks propose that Level 2 inmates be

allowed unmitigated and unregulated access to all periodicals.

Rather, Banks proposes, and the District Court discussed, two

alternative policies which would accommodate the prisoners’

rights. First, the DOC could establish a specific reading period, or

several different reading periods, in which guards deliver a single

newspaper or magazine to an inmate’s cell, if requested, and

retrieve it at the close of the period. The DOC could easily control

the number of periodicals in his cell at one time, the frequency of

the distributions, the amount of time any inmate would be in

possession of the materials, as well as the number of inmates who

would have periodicals in their cells at any one time.17 The DOC

could also limit the total number of photographs a Level 2 inmate

could have in his cell at one time to what they consider a

reasonable number. In conjunction with this policy, access to

periodicals could be entirely withheld from those individual

prisoners who, in the judgment of prison officials, would pose a

particular risk given their records, or those inmates who have

abused their use of periodicals or photographs. The DOC asserts

that such a limited restriction would not prevent Level 2 inmates

from using the materials to start fires, fling feces and create

weapons and therefore, during the reading period, extra monitoring

of cells would be required, thus affecting the prison’s resources and

possibly the safety of other inmates. 

We fail to see, however, as discussed above under factor

one, how an inmate’s hour-long possession of Graterfriends would

require further monitoring when at any time that inmate may be in

possession of 10 sheets of writing paper, and as many copies of the

Watchtower, the Jewish Daily Forward, and the Christian Science

Monitor Magazine as can fit in a records center box. As discussed

above, the District Court’s assumption that prisoners would be

more reluctant to use religious materials for such nefarious

purposes is unsupported by the record. Furthermore, at any point,

the entire LTSU can house no more than 40 inmates, one-tenth of

one percent of the state’s prison population. (App. 95) Even if

limited distribution of periodicals were to require additional
18Here, the District Court relies on Allah v. Al-Hafeez, 208 F.

Supp. 2d 520, 530 (E.D. Pa. 2002), in which the court found that

the third Turner factor weighed in the prison authorities’ favor

because the inmate was particularly ill-behaved and

accommodating his presence at religious services would require

more monitoring of those services, thereby straining prison

resources and affecting the prison staff and other inmates.

Although the Turner factors are evaluated independently, it is

important to note with respect to this decision that the prison policy

was much narrower and the court’s analysis was informed by the

fact that the inmate had many meaningful ways to practice his

religion without attending services. He could meditate, pray and

study his religion, as well as discuss it with other inmates outside

his cell. Id.

20

monitoring, such an accommodation would have a minimal impact

on prison resources. 

Alternatively, individual prisoners could be escorted to the

secure mini-law library to read a periodical of their choosing.

Again, the District Court found that such an accommodation would

intensify security concerns by increasing the amount of inmate

movement and thereby placing a formidable burden on LTSU

staff.18 Inmates are already permitted to leave their cells under

guard escort to use the library to view legal materials, so individual

inmate escort has not been deemed prohibitively burdensome or

dangerous by prison administrators. Although it is possible that the

demand for mini-law library sessions may increase if the policy

were changed, the DOC has not shown how this would

significantly increase the burden on prison staff. Superintendent

Dickson explained in his deposition that under current LTSU

policy, one inmate is allowed out of his cell at a time to visit the

law library for one two-hour session. A roster of requests, like a

waiting-list, is maintained and fulfilled on a first-come first-serve

basis. The amount or frequency of inmate movement is already

regulated. If the inmates’ rights to read other periodicals were

accommodated, that would not change. We fail to see how the

mere addition of non-legal and non-religious periodicals to the

materials already available to the inmates in the library would

create the “ripple effect” cited by the DOC. In short, the DOC has

not shown that a change in the publication ban would mean

“significantly less liberty and safety for everyone else, guards and
21

other prisoners alike.” Abbott, 490 U.S. at 418 (quoting Turner,

482 U.S. at 92). 

Finally, the District Court asserted that the alternatives

proposed come at more than a de minimus cost to the DOC’s

behavior modification goals because the accessibility of periodicals

would render the threat of Level 2 segregation toothless as a

deterrent. However, the District Court overlooked the extent to

which, even without the challenged restriction, Level 2 LTSU

segregation is more restrictive than Level 1 in significant respects.

For example, Level 1 inmates are permitted two family visits and

one fifteen minute telephone call per month. They are also

permitted to spend $5.00 per week at the commissary on items

defined by the Unit Team. Additionally, while inmates at both

levels receive in-cell counseling and visits from chaplains, and can

be employed as Unit Janitor, only Level 1 inmates receive

compensation as per DC-816 Inmate Compensation System, and

only Level 1 inmates are permitted GED and Special Education incell study. (App. 32)

IV. Conclusion

For the reasons stated above, we believe that the DOC’s

policy that prohibits inmates confined in the LTSU at Level 2

status access to photographs, and all newspapers and magazines

which are neither legal nor religious in nature, cannot be supported

as a matter of law by the record in this case. Accordingly, the

summary judgment of the District Court will be reversed and the

case remanded for further proceedings consistent with this opinion.

ALITO, Circuit Judge, dissenting:

At issue in this case are restrictions that the Pennsylvania

Department of Corrections imposes as a last resort on the most

disruptive and dangerous .1% of its prison population. These

restrictions apply only as long as an inmate remains in Level 2 of

the LTSU, an assignment that may terminate after as little as 90

days. The question before us is whether these temporary, lastresort restrictions are facially unconstitutional under the standard

set out in Turner v. Safley, 482 U.S. 78 (1987), a standard that

instructs courts to extend considerable deference to judgments of
22

correctional officials. Because I believe that the majority has

misapplied Turner, I must respectfully dissent. 

Under Turner, prison regulations that restrict constitutional

rights must be sustained if they are “reasonably related to

legitimate penological interests.” 482 U.S. at 89. Turner noted four

factors to be considered in determining whether the requisite

reasonable relationship exists: (1) whether there is “a ‘valid,

rational connection’ between the prison regulation and the

legitimate governmental interest put forward to justify it”; (2)

“whether there are alternative means of exercising the right that

remain open to prison inmates”; (3) “the impact accommodation of

the asserted constitutional right will have on guards and other

inmates”; and (4) whether there are “ready alternatives” to the

challenged regulation.” Id. at 89-90 (citation omitted). I will

address each factor. 

First factor: Rational relationship between regulation

and legitimate penological interests. I agree with the District

Court that this factor weighs in favor of the constitutionality of the

challenged regulations because there is a “rational” relationship

between that restriction and the legitimate penological objective of

deterring misconduct. It is “rational” for corrections officials to

think that inmates who are not in Level 2 will be deterred from

engaging in serious misconduct because they do not want to be

transferred to that unit and thus to be subjected to the restrictions

that accompany that assignment. It is also “rational” for

corrections officials to think that inmates who are in Level 2 will

be deterred from engaging in serious misconduct while in that unit

because they wish to be transferred out and thus to escape such

restrictions. 

The majority disagrees with these conclusions for two

reasons. First, the majority apparently believes that a sanction

cannot deter unless a potential violator knows with some

specificity the type misconduct that will result in the imposition of

the sanction and the length of time that the sanction will last. The

majority concedes that “deterrence of future infractions of prison

rules can be an appropriate justification for temporarily restricting

the rights of inmates” and that other courts of appeals have

sustained rules restricting the receipt of newspapers by prisoners in

disciplinary segregation. See Maj. at 9 (citing Gregory v. Auger,
23

768 F.2d 287, 290 (8th Cir. 1985); Daigre v. Maggio, 719 F.2d

1310, 1313 (5th Cir. 1983)). The majority finds these precedents

inapplicable because the “LTSU is not a place where inmates are

sent for a discrete period of punishment, pursuant to a specific

infraction, but a place for ‘Long Term’ segregation of the most

incorrigible and difficult prisoners for as long as they fall under

that umbrella.” Id. 

The majority’s reasoning is unsound. The uncertainties

noted by the majority may diminish the deterrent effect of the

regulations on some inmates who are not yet in Level 2, but there

is no reason to think that these uncertainties entirely eliminate the

deterrent effect of the regulations on the general prison population.

Similarly, it is rational to believe that the challenged restrictions

provide an incentive for those inmates who are already in Level 2

to refrain from disruptive behavior in the hope of obtaining a

transfer out of the unit. Again, uncertainty about what must be

done to obtain such a transfer or about when such a transfer may be

available may have an impact on the degree of the incentive, but

there is no reason to suppose that the incentive is wholly destroyed.

 

Second, the majority concludes that the regulations are not

rationally related to the goal of deterring misconduct because “the

DOC has offered no evidence that the rule achieves or could

achieve its stated rehabilitative purpose.” Maj. Op. at 10. In taking

this approach, the majority misconstrues the nature of the first

Turner factor. This factor requires us to determine whether there

is a “logical connection between the regulation and the asserted

goal,” see 482 U.S. at 89 (emphasis added), not whether there is

empirical evidence that the regulation in fact serves that goal. The

entire system of prison discipline might be imperilled if each

sanction for prison misconduct could not be sustained without

empirical evidence that the sanction provided some incremental

deterrent. 

Second factor: alternative means of exercising the right.

This is the most troubling of the four factors, but I do not think that

it is sufficient to support the majority’s conclusion that the

regulations are facially unconstitutional. The regulations impinge

upon the right to receive information about current events and

communications (in the form of photographs) from family

members and friends, but the restrictions are not absolute. Inmates
24

in Level 2 may still read books from the prison library and may

receive letters. Moreover, as the District Court noted, inmates in

Level 2 have the “option of modifying their behavior and being

promoted to a less restricted environment.” Report &

Recommendation at 8. An as-applied challenge by an inmate

subjected to lengthy confinement in Level 2 despite a record of

reformed behavior would present different considerations, but the

majority’s opinion is not limited to such a case. 

Third and fourth factors: Availability and impact of

accommodation. The majority proposes modifications in prison

policies that would almost certainly have an impact on prison

resources. The majority first suggests that guards could deliver

requested newspapers and magazines to inmates’ cells and then

retrieve these materials after the expiration of a specified “reading

period.” Maj. Op. at 18. Providing this service for each of the 40

inmates in Level 2 would be time consuming. “Alternatively,” the

majority states, “individual prisoners could be escorted to [the]

secure mini-law library to read a periodical of their choosing.”

Maj. Op. at 19. This service, however, would undoubtedly impose

a significant burden, particularly since the inmates in question are

those whom the Department of Corrections has classified as the

most violent and disruptive. It is Department policy that Level 2

inmates may not be transported from their cells unless they are

placed in hand and leg irons and are escorted by two officers. 

Taking into account all four of the Turner factors, I

conclude that the challenged regulations are not facially

unconstitutional. On their face, these regulations are reasonably

related to the legitimate penological goal of curbing prison

misconduct, and I would therefore affirm the decision of the

District Court.