Not for Publication in West's Federal Reporter

United States Court of Appeals

For the First Circuit

No. 08-1095

DAVID A. JOSSELYN, ET AL.,

Plaintiffs, Appellants,

______________________

WILLIAM M. TYREE, ET AL.,

Plaintiffs,

v.

KATHLEEN DENNEHY, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]

Before

 Lynch, Chief Judge,

Torruella and Boudin, Circuit Judges.

David A. Josselyn with Prince Moses, Kevin King, Gary Emerson,

Jeffrey Doucette, Henry LaPlante, Jose Sime, Christopher Wolinski,

Nicholas R. Boccio, James Ware, and Kevin Galford on brief pro se.

Kevin A. Anahory, Legal Division, Department of Correction,

and Nancy Ankers White, Special Assistant Attorney General, on

brief for appellees.

June 9, 2009
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Per Curiam. Eleven pro se inmates appeal from the

district court's rejection of their challenge to a state regulation

banning inmates' receipt of publications that are "sexually

explicit" or feature "nudity," 103 C.M.R. § 481.15(3)(b), and to a

policy banning the display of those publications or other "seminude, scantily clad, and/or sexually suggestive material" in

inmates' cells, 103 DOC 400.03(2)(c)(1) & (2). For the reasons

given by the district court, Moses v. Dennehy, 523 F. Supp. 2d 57

(D. Mass. 2007), supplemented by the discussion below, we affirm

the district court's grant of summary judgment to the defendants.

A. Facial First Amendment Challenge to Inmate-Mail Regulation

In rejecting the plaintiffs' facial First Amendment

challenge to the inmate-mail regulation, the district court

correctly applied the four-part test set forth in Turner v. Safley,

482 U.S. 78 (1987). See Beard v. Banks, 548 U.S. 521, 528-29

(2006) (plurality opinion); Thornburgh v. Abbott, 490 U.S. 401,

413-19 (1989). The plaintiffs agree that the Turner standard

applies but challenge the district court's determination that the

inmate-mail regulation survives scrutiny under that standard. None

of the plaintiffs' objections to the district court's Turner

analysis is availing.

As to the first Turner factor--whether the regulation is

rationally related to a legitimate governmental interest, Turner,

482 U.S. at 89--the plaintiffs do not dispute that prison security
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is a legitimate governmental interest, nor could they. See

Thornburgh, 490 U.S. at 415 (finding legitimacy of that interest to

be "beyond question"). Rather, they fault the district court for

deferring to former Commissioner Bender's view, "[b]ased on [his]

experience and professional judgment, [that] the allowance of

publications into correctional institutions which contain sexually

explicit material or feature nudity is . . . detrimental to . . .

the safety and the security of the institution."

That argument fails. "[T]he judiciary[, which] is 'ill

equipped' to deal with the difficult and delicate problems of

prison management," id. at 407-08, "must accord substantial

deference to the professional judgment of prison administrators,

who bear a significant responsibility for defining the legitimate

goals of a corrections system and for determining the most

appropriate means to accomplish them," Overton v. Bazzetta, 539

U.S. 126, 132 (2003); see also Beard, 548 U.S. at 535, particularly

with respect to matters affecting prison security, Beard, 548 U.S.

at 536; Poirier v. Mass. Dep't of Correction, 558 F.3d 92, 96 (1st

Cir. 2009). Here, deference to the Commissioner's views was

particularly appropriate because those views were based on his long

and varied experience as a corrections official and buttressed by

concrete examples of how restricting prisoners' receipt of sexually

explicit materials is related to prison safety and security. Thus,

the district court appropriately relied on the Commissioner's
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affidavit to establish the requisite rational connection between

the legitimate government interests articulated there and the

chosen means of furthering them. Beard, 548 U.S. at 541-42.

The plaintiffs' contentions that the defendants were

required to provide direct evidence of the incidents cited in the

Commissioner's affidavit and to prove that the incidents were

actually caused by inmates' exposure to sexually explicit material

inverts the proper burden of proof. "The burden . . . is not on

the State to prove the validity of prison regulations but on the

prisoner to disprove it." Overton, 536 U.S. at 132. Those

arguments also reflect a misunderstanding of the nature of the

inquiry. Determining whether a challenged regulation is rationally

related to a legitimate governmental interest does not require

making factual findings that the regulation will, in fact, serve

its intended purpose. Turner, 482 U.S. at 93 n.*. 

Here, the plaintiffs attempted to meet their burden by

submitting affidavits and exhibits purportedly demonstrating the

irrationality of the regulation or the existence of disputed facts,

as was their prerogative under Rule 56(e) of the Federal Rules of

Civil Procedure. See Beard, 548 U.S. at 534. Although, with

respect to issues of fact, the district court was required to "draw

'all justifiable inferences' in [the plaintiffs'] 'favor,'" id. at

529 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255

(1986)), no such requirement applies to matters of professional
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judgment. Id. at 530. In such matters, the district court was

required to "accord deference to the views of prison authorities,"

id., not to the plaintiffs' views as to whether the regulation

serves its stated purposes. To the extent that the plaintiffs'

submissions focused on the effect of the regulation on their

rights, those submissions were irrelevant to the first Turner

factor, the regulation's rational connection to a legitimate

purpose. "'Rational basis review does not permit consideration of

the strength of the individual's interest or the extent of the

intrusion on that interest caused by the [regulation]; the focus is

entirely on the rationality of the state's reason for enacting the

[regulation].'" Poirier, 558 F.3d at 96 (quoting Cook v. Gates,

528 F.3d 42, 55 (1st Cir.), petition for cert. filed, 77 U.S.L.W.

3400 (U.S. Dec. 23, 2008)).

Thus, the district court correctly concluded that the

crucial first Turner factor weighs in the defendants' favor.

Moses, 523 F. Supp. 2d at 62. The remaining factors serve only as

further checks on the regulation's reasonableness. Beard, 548 U.S.

at 523.

As to the second Turner factor--whether there are

"alternative means of exercising the right that remain open to

prison inmates," Turner, 482 U.S. at 90--the plaintiffs argue that

they do not have alternative means of receiving sexually explicit

materials. That argument defines the "right" in question too
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narrowly. Thornburgh, 490 U.S. at 417 (requiring that "'the right'

in question be viewed sensibly and expansively"). Where, as here,

"the [inmate-mail] regulation permit[s] a broad range of

publications to be sent, received, and read, th[e] [second Turner]

factor is clearly satisfied." Id. at 418. Moreover, even if no

alternative means of receiving publications existed, that "would

not be conclusive . . . [but] would [only] be some evidence that

the regulation[] w[as] unreasonable." Overton, 539 U.S. at 135.

As to the third Turner factor--"the impact [that]

accommodation of the asserted constitutional right w[ould] have on

guards and other inmates, and on the allocation of prison resources

generally," Turner, 482 U.S. at 78--the plaintiffs rely on extrarecord material attached to their appellate brief to argue that

allowing unrestricted access to sexually explicit publications

would have no adverse impact. Assuming that we may consider the

cited materials as evidence of "legislative," as opposed to

"adjudicative," facts, see Daggett v. Comm'n on Governmental Ethics

and Election Practices, 172 F.3d 104, 112 (1st Cir. 1999), we

nevertheless give greater weight to "'the informed discretion of

corrections officials,'" Thornburgh, 490 U.S. at 418 (quoting

Turner, 490 U.S. at 90), who are most familiar with the

difficulties of managing their own institutions, than to the more

general views expressed in the cited materials as to other means of

addressing sexual violence in prison.
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As to the fourth and final Turner factor--"the absence of

ready alternatives," Turner, 482 U.S. at 90--the plaintiffs do not

argue for the alternative considered and rejected by the

defendants, i.e., allowing receipt of sexually explicit materials

on a case-by-case basis. Instead, they argue that allowing inmates

to receive all publications as long as they are not "obscene" as

defined by state law is a readily available alternative. But, as

discussed above, that alternative would have more than a de minimus

adverse effect on legitimate penological interests and therefore is

neither an "obvious" nor an "easy" alternative solution,

Thornburgh, 490 U.S. at 418, to the problems that the regulation

was intended to address. Therefore, the district court correctly

concluded that plaintiffs had not met their burden of satisfying

the "high standard" for demonstrating the existence of a "ready

alternative." Overton, 539 U.S. at 136.

B. As-Applied Challenge to the Inmate-Mail Regulation

The plaintiffs make two arguments with respect to the

district court's upholding of the inmate-mail regulation as

applied. First, they challenge the exclusion of portions of a

National Geographic article as being unrelated to the governmental

interest in rehabilitation. However, without copies of the

excluded material or even specific descriptions of it, it was

impossible for the district court (and is equally impossible for

this court) to determine whether the regulation is invalid as
Another state-law issue that plaintiffs advert to is whether 1

some of the publications on the "prohibited publications list" in

fact contain "nudity" or "sexually explicit" material within the

meaning of the regulation. Although the district court's method of

making that finding--i.e., taking "judicial notice" that many of

the listed publications "invariably contain" such material, Moses,

523 F. Supp. 2d at 64--is dubious, the correctness of its finding

on that state-law issue is not before us.

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applied to that material. To the extent that plaintiffs argue that

the National Geographic materials fell within the regulation's

exception for "material illustrative of . . . anthropological

content," 103 C.M.R. § 481.15((3)(d), that is a state-law issue,

which the district court appropriately declined to address once it

disposed of plaintiffs' federal claims. Cao v. Puerto Rico, 525

F.3d 112, 116 (1st Cir. 2008).1

The second issue raised under the as-applied rubric is

that the regulation is not applied even-handedly. As evidence, the

plaintiffs point to a memorandum indicating that at another

institution inmates are permitted to receive material containing

pictures of exposed buttocks, while at Cedar Junction, where most

of the plaintiffs are incarcerated, they are not. The short answer

to that argument is that the two institutions may not be similarly

situated. There is therefore nothing arbitrary or capricious about

applying the regulation more strictly at Cedar Junction than at the

other institution. As the Supreme Court stated in upholding a

similar regulation against a similar challenge, "The exercise of

discretion called for by th[is] regulation may produce seeming
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'inconsistencies,' but what may appear to be inconsistent results

are not necessarily signs of arbitrariness or irrationality[,]

[g]iven the likely variability . . . between institutions . . . ."

 Thornburgh, 490 U.S. at 417 n.15; see also Savard v. Rhode Island,

338 F.3d 23, 30-31 (1st Cir. 2003).

C. Other Constitutional Challenges to the Inmate-Mail Regulation

The plaintiffs correctly point out that the district

court failed to address the other constitutional challenges to

the inmate-mail regulation that were added by their amended

complaint, all of which stem from the purported inconsistency

between the regulation and the state obscenity statute. However,

those challenges are not developed in the plaintiffs' brief,

which merely alludes to the arguments made in their summary

judgment memorandum. Consequently, those challenges are

forfeited. R.I. Dep't of Envtl. Mgmt. v. United States, 304 F.3d

31, 47 (1st Cir. 2002).

D. Challenges to the Cell-Decoration Policy

As the plaintiffs also point out, the district court

did not expressly rule on the constitutionality of the celldecoration policy. Rather, it conflated that policy with the

inmate-mail regulation, which it described as banning the receipt

(as opposed to merely the display) of semi-nude and scantily clad

images, Moses, 523 F. Supp. 2d at 58, 64, and then proceeded to

uphold the constitutionality of that ban on its face, id. at 63,
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and as applied, id. at 63-65. However, the absence of a separate

ruling on the constitutionality of the cell-decoration policy is

not fatal, since much of the district court's analysis of the

Turner factors is equally applicable to the cell-decoration

policy, and we review the district court's grant of summary

judgment de novo, In re Citigroup, Inc., 535 F.3d 45, 50 (1st

Cir. 2008), and are free to affirm it on any grounds apparent

from the record, Mulloy v. Acushnet Co., 460 F.3d 141, 145 (1st

Cir. 2006).

To the extent that the plaintiffs challenge the policy

on its face as violating the First Amendment, that challenge

fails. "'In a facial attack . . ., it is plaintiff[s'] burden to

show that the [policy] has no constitutional application.'" Del

Gallo v. Parent, 557 F.3d 58, 68 (1st Cir. 2009) (quoting Naser

Jewelers, Inc. v. City of Concord, 513 F.3d 27, 33 (2008)).

"'The fact that [it] might operate unconstitutionally under some

conceivable set of circumstances is insufficient to render it

wholly invalid.'" Dutil v. Murphy, 550 F.3d 154, 160 (1st Cir.

2008), cert. denied, 77 U.S.L.W. 3595 (U.S. Apr. 27, 2009). As

recognized by Massachusetts courts in upholding a predecessor of

the cell-decoration policy challenged here, the policy is

reasonably related to legitimate governmental interests including

prison security, Collins v. Mass. Dep't of Correction, No. 95-

0153, 1995 WL 542517 (Mass. Super. Sept. 7, 1995) (unpublished);
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Perito v. Duval, No. 91-2387 (Mass. Super. Feb. 25, 1992)

(unpublished) (Red Br. Add. at 48-50), aff'd, 34 Mass. App. Ct.

1114 (1993) (table), and therefore is susceptible of

constitutional application. Although those nonprecedential

decisions are not binding on this court, their reasoning is

persuasive and consistent with the Turner factors. The fact that

the policy might be applied to prohibit the display of relatively

innocuous pictures, such as a family outing at the beach, does

not render the regulation invalid on its face. Dutil, 550 F.3d

at 160.

In one conclusory sentence, plaintiffs also challenge

the policy as impermissibly vague. As a threshold matter, it

is doubtful that the plaintiffs here have standing to raise a

vagueness challenge since the only picture in the record whose

display was allegedly prohibited by the cell-decoration

policy--a photograph of a woman wearing lacy underwear and a

garterbelt and posing with her thighs spread apart--clearly

falls within the terms "scantily clad," "semi-nude," or

"sexually suggestive." Whiting v. Town of Westerly, 942 F.2d

18, 22 (1st Cir. 1991) (holding that "a plaintiff who engages

in conduct that is clearly proscribed by the [challenged

provision] cannot complain that the [provision] is vague on its

face nor challenge the vagueness of the law as applied to the

conduct of others"). Even if such standing exists, those terms
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are not so subjective or indeterminate that an "ordinary person

exercising ordinary common sense" would be unable to understand

and comply with them. Welch v. United States, 750 F.2d 1101,

1112 (1st Cir. 1985). Consequently, the plaintiffs' vagueness

challenge to the cell-decoration policy also fails.

Accordingly, the district court's judgment is

affirmed.