August 3, 2007
EDWARD WALKER, APPELLANT,
NEW JERSEY DEPARTMENT OF CORRECTIONS, RESPONDENT.
On appeal from a Final Agency Decision of the New Jersey Department of Corrections.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted February 6, 2007
Before Judges Graves and Lihotz.
In this pro se prisoner appeal, Edward Walker, an inmate at the Adult Diagnostic and Treatment Center (ADTC) in Avenel, challenges a decision by Grace Rogers, Administrator of ADTC, to modify the facility's inmate possession list. Walker is serving a thirty-year sentence with a fifteen-year mandatory minimum term for two counts of aggravated sexual assault and one count of sexual assault. To sentence a defendant to ADTC, a judge must find that the defendant's offending conduct "was characterized by a pattern of repetitive, compulsive behavior," and the defendant "is amenable to sex offender treatment." N.J.S.A. 2C:47-3. Walker contends the Department of Corrections's (DOC) decision to amend the possessions list constitutes an infringement of his constitutional rights. We disagree and affirm.
On appeal, Walker presents the following arguments:
STATE'S FAILURE TO COMPLY WITH COURT ORDER TO SETTLE RECORD ENTITLES APPELLANT TO SPOLIATION INFERENCE AGAINST RESPONDENT.
POSSESSIONS LIST BAN ON HARDCOVER BOOKS, COMPACT DISKS, CD PLAYERS, AND RETENTION OF STORAGE CONTAINERS FOR LEGAL MATERIALS VIOLATES THE FIRST AMENDMENT.
A. HARDCOVER BOOK BAN IS AN UNCONSTITUTIONAL RESTRICTION ON FIRST AMENDMENT RIGHTS.
1. THERE IS NO REASONABLE VALID, RATIONAL CONNECTION BETWEEN BANNING HARDCOVER BOOKS AND ANY LEGITIMATE GOVERNMENTAL INTEREST.
2. THERE IS NO ALTERNATIVE MEANS OF EXERCISING THE CONSTITUTIONAL RIGHT.
3. THE STATE HAS FAILED TO DOCUMENT ANY ADVERSE IMPACT FROM ACCOMMODATING POSSESSION OF HARDCOVER BOOKS.
4. "ABSENCE OF READY ALTERNATIVES ANALYSIS" PRECLUDED BY STATE FAILURE TO ARTICULATE BASIS FOR ITS BAN.
B. BANS ON AUDIO CDS AND AUDIO CD PLAYERS VIOLATE INMATES' RIGHT TO FREE SPEECH AND FREE EXERCISE OF RELIGION.
1. BAN ON AUDIO CDS AND AUDIO CD PLAYERS IS NOT REASONABLY RELATED TO VALID PENOLOGICAL INTEREST.
2. THERE ARE NO READY ALTERNATIVE MEANS OF EXERCISING THESE FIRST AMENDMENT RIGHTS.
3. PERMITTING RETENTION OF CDS AND CD PLAYERS WOULD HAVE NO SIGNIFICANT ADVERSE IMPACT ON THE INSTITUTION.
4. PRESENCE OF READY ALTERNATIVES TO ADVANCE STATE INTEREST DEMONSTRATES STATE BAN ON CDS IS NOT REASONABLE.
C. BAN ON RETENTION AND STORAGE OF LEGAL AND RELIGIOUS MATERIALS VIOLATES FIRST AMENDMENT PROTECTIONS.
1. THE REDUCTION IN STORAGE BINS PERMITTED TO BE USED TO STORE LEGAL AND RELIGIOUS MATERIALS IS
NOT REASONABLY RELATED TO A VALID PENOLOGICAL INTEREST.
2. THERE ARE NO READY ALTERNATIVE MEANS OF EXERCISING THESE FIRST AMENDMENT RIGHTS.
3. PERMITTING RETENTION OF SUFFICIENT STORAGE BINS TO HOLD APPELLANT'S LEGAL/RELIGIOUS MATERIAL WOULD NOT BURDEN THE FACILITY.
4. THERE IS A READY ALTERNATIVE OF WHICH STATE COULD AVAIL ITSELF.
BAN ON CD PLAYERS AND CDS NEEDED FOR TREATMENT VIOLATES INMATES' FOURTEENTH AMENDMENT RIGHT TO TREATMENT.
A. THE BAN ON CDS AND CD PLAYERS USED FOR THERAPEUTIC PURPOSES IS NOT REASONABLY RELATED TO A VALID PENOLOGICAL INTEREST.
B. THERE ARE NO READY ALTERNATIVE MEANS OF EXERCISING THIS FOURTEENTH AMENDMENT RIGHT.
C. PERMITTING INMATES TO RETAIN RELAXATION/MEDIATION CDS WOULD HAVE NO SIGNIFICANT ADVERSE IMPACT ON THE INSTITUTION[.]
D. THERE ARE READY ALTERNATIVES BY WHICH THE STATE MAY PROTECT ITS INTEREST IN BANNING PORNOGRAPHY FROM THE INSTITUTION. POINT IV
POSSESSIONS LIST BAN VIOLATES EIGHTH AMENDMENT PROHIBITION ON CRUEL AND UNUSUAL PUNISHMENT.
A. ADEQUATE MEDICAL/PSYCHOLOGICAL TREATMENT MANDATED UNDER THE EIGHTH AMENDMENT'S BAN ON CRUEL AND UNUSUAL PUNISHMENT.
B. BAN ON CONTACT LENSES VIOLATES EIGHTH AMENDMENT PROSCRIPTIONS.
C. BAN ON THERAPEUTIC CDS VIOLATES EIGHTH AMENDMENT PROSCRIPTIONS.
BAN ON RELIGIOUS CDS VIOLATES INMATES' RIGHTS TO RELIGIOUS EXPRESSION UNDER RLUIPA.
A. RESTRICTION ON POSSESSION OF RELIGIOUS CDS SUBSTANTIALLY BURDENS THE FREE EXERCISE OF RELIGION.
B. NO COMPELLING GOVERNMENTAL INTEREST SUPPORTS CD BAN.
C. ANY ASSERTED COMPELLING GOVERNMENT INTEREST CAN BE MET THROUGH LESS RESTRICTIVE MEASURES.
BAN ON CDS DISCRIMINATES AGAINST VISUALLY IMPAIRED, BLIND, ILLITERATE, OR MENTALLY ILL INMATES IN VIOLATION OF THE AMERICANS WITH DISABILITIES ACT AND THE REHABILITATION ACT OF 1973.
BAN ON CDS DISCRIMINATES AGAINST VISUALLY IMPAIRED, BLIND, ILLITERATE, RELIGIOUS OR MENTALLY ILL INMATES IN VIOLATION OF NEW JERSEY LAW AGAINST DISCRIMINATION.
MANNER IN WHICH LIST WAS IMPLEMENTED VIOLATED DUE PROCESS RIGHTS.
After reviewing the record and the applicable law in light of the contentions advanced on appeal, we conclude the decision by Administrator Rogers to amend the ADTC inmate possession list was neither arbitrary nor unreasonable, and there has been no showing that the final administrative determination violated any of Walker's constitutional rights.
On May 21, 2004, Rogers issued a revised personal possessions list "for review by the [inmate] population," and the inmates, including Walker, communicated their concerns to Rogers through the Inmate Resident Committee. Rogers made revisions to the list, and Walker requested reconsideration of specific items on the revised list, which was not yet in effect. Rogers did not address Walker's complaints prior to the release of the final version of the list on July 7, 2004. On July 7, 2004, Walker filed an administrative appeal, and on July 8, he filed an appeal with this court. Subsequently, on July 15, Rogers amended the possessions list, but because all of Walker's issues were not addressed, he proceeded with this appeal. The DOC does not contend Walker failed to exhaust his administrative remedies.
At the outset, we note limitations during post-trial detention, as opposed to pre-trial detention, are evaluated under the Eighth Amendment's "cruel and unusual punishment" clause, not the Fifth Amendment's "due process" clause. Bell v. Wolfish, 441 U.S. 520, 537 n.16, 99 S.Ct. 1861, 1873 n.16, 60 L.Ed. 2d 447, 467 n.16 (1979); Ingarham v. Wright, 430 U.S. 651, 671 n.40, 97 S.Ct. 1401, 1412 n.40, 51 L.Ed. 2d 711, 730 n.40 (1977). Therefore, regulations that are challenged by convicted inmates must "bear a rational relation to legitimate penological interests," Overton v. Bazzetta, 539 U.S. 126, 132, 123 S.Ct. 2162, 2167, 156 L.Ed. 2d 162, 170 (2003), and cannot be "cruel and unusual." Indeed, we "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." Ibid. "Prisons are dangerous places," and prison administrators must be given latitude to control their "volatile environments." Blyther v. N.J. Dept. of Corr., 322 N.J. Super. 56, 65 (App. Div.), certif. denied, 162 N.J. 196 (1999).
The fine line between legitimate penological goals and violation of an inmate's rights, in light of the deference due to prison administrators, was addressed in Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed. 2d 64 (1987). The Turner analysis was recently reaffirmed in Beard v. Banks, ____ U.S. ____, 126 S.Ct. 2572, 165 L.Ed. 2d 697 (2006). The four-factored Turner test asks:
First, is there a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it? Second, are there alternative means of exercising the right that remain open to prison inmates? Third, what impact will accommodation of the asserted constitutional right . . . have on guards and other inmates, and on the allocation of prison resources generally? And, fourth, are ready alternatives for furthering the governmental interest available? [Beard, supra, ____ U.S. at ____ , 126 S.Ct. at 2578, 165 L.Ed. 2d at 705 (citations and quotation marks omitted) (quoting Turner, supra, 482 U.S. at 89-91, 107 S.Ct. at 2262, 96 L.Ed. 2d 79-80).]
The burden of persuasion rests with the inmate. Overton, supra, 539 U.S. at 132, 123 S.Ct. at 2168, 156 L.Ed. 2d at 170.
New Jersey adopted the Turner framework in In re Rules Adoption Regarding Inmate Mail, 120 N.J. 137, 147 (1990). Applying each of the Turner factors to the restrictions Walker contests, we conclude the amendments to the inmate possession list were legitimately related to valid penological interests and, therefore, were not arbitrary or unreasonable.
Turner's first prong asks "whether the governmental objective underlying the regulations at issue is legitimate and neutral." Thornburgh v. Abbott, 490 U.S. 401, 414, 109 S.Ct. 1874, 1882, 104 L.Ed. 2d 459, 473 (1989). Here, Walker challenges the outright ban of hard-cover books, compact discs (CDs), CD players, and contact lenses, as well as the limitation on the amount of storage bins each inmate may maintain.
In Rogers's affidavit, she states: "Hard cover books are prohibited for inmate personal possession due to security reasons, based on the weight and hard cover serving as a potential weapon, as well as the fact that the structure of a hard cover book allows for it to be hollowed out to hide contraband"; "The Department has . . . promulgated a State-wide policy prohibiting inmate possession of [CDs and CD players,]" but "ADTC inmates are permitted to have up to forty-eight cassette tapes. I currently continue to approve orders for religious cassettes with great frequency, approximately twice a week"; "Contact lenses are restricted because the contracted vendor does not provide them but does provide eyeglasses." And an "inmate can seek a waiver to obtain contact lenses where the contact lenses do not change the color of his eyes and the contracted medical provide[r] has determined that contact lenses are medically necessary to treat a visual impairment that cannot be corrected with glasses"; "Inmate housing assignments can be changed for a multitude of reasons, so that an ADTC general population inmate in a dormitory setting could be reassigned to a cell and vice versa." And "[i]n amending the possessions list, I wanted the amount of possessions to be standard for all inmates, regardless of the space afforded by their current housing assignment, so that all inmates would be treated consistently. I determined that a reasonable, consistent standard was to limit possessions so that an inmate can have only as many permitted items as can be stored in his bed area, and not be a health or safety hazard," "because some inmates are housed in a single, large room while other of the inmates are housed in single occupancy cells."
In its brief, the DOC further explains the ban on CDs is necessary because "a pornographic DVD was, in fact, smuggled into ADTC," and detecting such paraphernalia is difficult because it "look[s] identical to CDs." The DOC also elaborated on the new storage policy, stating "dormitory settings may not afford as much storage space as do the cells," and, "[t]herefore, uniformity ensuring that the smallest storage space for the prison's general population applies to all inmates, regardless of housing assignment, is reasonable." Walker does not dispute the amendments' facial neutrality.
The second part of Turner's first prong states: Regulations bear a "valid, rational connection" to "legitimate penological objectives" if the administrator's reasoning shows they "serve the function identified." Beard, supra, ____ U.S. at ____, 126 S.Ct. at 2579, 165 L.Ed. 2d at 707. Here, the record on appeal offers reasonable explanations linking each new limitation with a valid penological goal. The ban on hard-cover books addresses legitimate safety concerns; the prohibition of CDs addresses the problematic exclusion of masked pornographic DVDs from ADTC----"a correctional facility geared towards treating sex offenders"; the proscription of contact lenses addresses the need to have inmates maintain their identifying eye color, and it allows the DOC to provide cost-effective medical care; and the limitation on the volume of inmate possessions addresses fire and health concerns in addition to the ADTC's interest in moving inmates between "dormitory" and "cell" living. Because the revised limitations meet Turner's first prong, there is a "valid, rational connection between the prison regulation and the legitimate governmental interest." Beard, supra, ____ U.S. at ____, 126 S.Ct. at 2578, 165 L.Ed. 2d at 705.
Under prong two of Turner, if an inmate has alternative means of exercising his or her right, then the restriction is reasonable. Overton, 539 U.S. at 135, 123 S.Ct. at 2169, 156 L.Ed. 2d at 172. Here, Walker does not contend he is without alternative means to exercise his rights to read; listen to music, religious, or therapeutic material; receive medical treatment to correct his vision; or maintain personal possessions. Indeed, Walker can read any material not in a hard-cover format, e.g., newspapers, magazines, and paperback books. He can enjoy music on audiotape, as well as the therapeutic and religious recordings. The reduction of storage space from five to three currently owned, fourteen-gallon storage bins, or three eleven-gallon replacement bins, plus a secure footlocker, allows him to exercise his right to possess property. Because each restriction of Walker's rights leaves an available alternative, the limitations are reasonable. See Overton, supra, 539 U.S. at 131, 123 S.Ct. at 2167, 156 L.Ed. 2d at 169-70 (stating rights enjoyed by citizens must be surrendered by prisoners when "inconsistent with proper incarceration").
Turner's third prong focuses on the impact the accommodation of the asserted constitutional right will have on the prison's administration, including the safety of inmates, guards, and visitors, as well as the efficiency of the budget. While hard-cover books can have their covers removed to minimize their use as a weapon, Jackson v. Elrod, 881 F.2d 441, 445 (7th Cir. 1989), this precaution puts a significant burden on the ADTC mailroom, which services about 700 inmates and must already screen the mail for weapons, drugs, pornography, illicit mainstream images, and other forms of contraband. Moreover, as Rogers noted in her affidavit, removing the hard covers on books would not mitigate the risk that books could be "hollowed out to hide contraband."
Accommodating the use of CDs and their players would also be time consuming because it would require both the initial inspection of a CD to confirm it was not a DVD, and prison staff would have the ongoing responsibility to review CDs to assess whether a DVD had surreptiously been recorded onto the CD or replaced the CD. Likewise, prison personnel would have to check each CD player for DVD playing capability and continue to monitor the CD player's condition to prevent modification of the device to a DVD player. Audio tapes do not present similar modification issues because their appearance is dissimilar to audio-visual media.
The availability of contact lenses places a financial and logistical burden on the DOC because their vendor has stopped providing contact lenses, and contact acquisition has become problematic. Nevertheless, if inmates require contacts because their conditions are uncorrectable with glasses, then they may apply for waivers from this policy.
Lastly, allowing inmates to have only three fourteen-gallon storage bins, or three eleven-gallon replacement bins, as opposed to five fourteen-gallon bins, significantly reduces the burden on ADTC's guards to monitor inmates possessions. Two fewer bins for each of the almost 700 inmates results in approximately 1,400 fewer bins for the guards to inspect for contraband. Additionally, the reduction of bins minimizes the fire-safety threat in the dormitory living setting. Because accommodation of each of Walker's contested issues places a substantial burden on prison officials, personnel, or the budget, limiting those rights is reasonable.
Prong four of Turner asks "whether the presence of ready alternatives undermines the reasonableness of the regulation." Overton, supra, 539 U.S. at 136, 123 S.Ct. at 2169, 156 L.Ed. 2d at 172. But "Turner does not impose a least-restrictive-alternative test." Ibid. Instead, the question turns on "whether the prisoner has pointed to some obvious regulatory alternative that fully accommodates the asserted rights while not imposing more than a de minimis cost to the valid penological goal." Ibid. (first emphasis added). Walker does not offer an alternative for any of the limitations, but instead states the policies should return to their pre-amendment status. Accordingly, Walker fails to carry his burden on prong four.
Because the amendments to ADTC's inmate personal possessions list meet the Turner standard of validity and rational connection to a penological interest, they survive Walker's constitutional challenges. Walker's remaining arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).
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