ANTHONY GASKINS, Plaintiff, v. HAROLD W. CLARKE, 1 Commissioner of Correction, Defendant.


1 In November 2007, Harold W. Clarke became the Commissioner of Correction. Pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, Harold W. Clarke is substituted for Commissioner Kathleen Dennehy as Defendant in this suit.

CIVIL ACTION NO. 07-10084-PBS

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS

January 16, 2008, Decided

MEMORANDUM AND ORDER

Saris, U.S.D.J.

Pro se Plaintiff Anthony Gaskins, an inmate at MCI-Cedar Junction, challenges the blanket policy of the Massachusetts Department of Correction ("DOC") prohibiting the showing to inmates of movies rated R and NC-17. Gaskins brings this action pursuant to 42 U.S.C. § 1983 contending that this policy violates his First, Fifth, and Fourteenth Amendment rights. Defendant moves for summary judgment. Plaintiff opposes, cross-moves for summary judgment, and requests a hearing. After a review of the submissions, the Court ALLOWS Defendant's motion for summary judgment and DENIES Plaintiff's cross-motion for summary judgment and motion for a hearing.

I. STATEMENT OF FACTS

The following facts are treated as undisputed for purposes of this motion. At MCI-Cedar Junction, movies are directly broadcast to cell blocks via a central television system. Until 2006, inmates could typically watch R and NC-17 rated movies on television [*2] sets in their cells. These sets receive the prison's internal cable system, which carries publicly broadcast VHF and UHF channels, as well as a movie channel and a religious channel operated by the institution.

On September 26, 2006, former Commissioner of Correction Kathleen Dennehy issued a memorandum promulgating a new uniform agency-wide policy for showing films to Massachusetts state prisoners in all facilities. ("Dennehy Memo," Ex. A to the Affidavit of James R. Bender 2 ("Bender Aff.")) 3 The Dennehy Memo states that "no recreational activity movies rated R, NC-17 or X shall be shown to inmates" since "[r]ecreational activities are an important component to effecting pro-social change. Therefore, movies that are selected for our population must not be contrary to this goal." (Dennehy Memo at 2-3.)

FOOTNOTES

2 Bender was Acting Commissioner of Correction at the time he submitted his affidavit.

3 In particular, the Dennehy Memo informed Department Superintendents that 103 DOC 472, the Inmate Recreation and Leisure Policy, "was being amended to ensure that there is a standardized, uniform agency-wide process for the selection by Superintendents of all movies that will be shown in all facilities." [*3] (Bender Aff. P 2).


Defendant maintains that limiting the types of movies shown to inmates "serves to protect several penological interests." ("Bender Aff." P 5.) The Affidavit of James Bender identifies three such interests. First, "the showing of R-rated movies to inmates hinders the internal order and security of the institutions" because "exposure to this material may desensitize certain inmates and result in an increased risk of violence or sexual assault." Further, "depictions of substance abuse in some of these films may trigger cravings amongst the segment of the inmate population with substance abuse issues, which may also lead to disorder within the institutions." (Id. P 6.)

Second, Defendant maintains that "showing R-rated films interferes with inmate rehabilitation." For inmates who are sex offenders, "the showing of R-rated movies that are sexually explicit is contrary to the rehabilitation efforts regarding them." Likewise, exposure to violence in movies "may lead certain inmates to regress from the rehabilitative gains made through incarceration." (Bender Aff. P 7.)

Third, "any limited allowance [of R-rated movies] would require a movie by movie staff review" for which "[t]he [*4] Department is not staffed sufficiently." (Bender Aff. P 8.)

Defendant also points to other states with similar policies. According to Defendant, New Hampshire fails to provide inmates with the opportunity to watch any movies. Moreover, Connecticut has a general policy not to air R-rated movies, while Rhode Island allows for the showing of PG-rated movies, and "on rare occasions shows R-rated movies, but only if the R rated movie is void of excessive violence, nudity, explicit sex or negative or disparaging themes on law enforcement." (Bender Aff. P 9). Also, since 1996, the Federal Bureau of Prisons has not shown inmates any movie rated R, NC-17 or X. (Id.)

Gaskins objected to the policy, alleging that the ban infringed upon his free speech rights and amounted to racial discrimination. He pursued an administrative remedy by filing repeated grievances with DOC. His administrative avenues for relief exhausted, Gaskins now challenges the policy in this court.

II. STANDARD OF REVIEW

"Summary judgment is appropriate when 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material [*5] fact and that the moving party is entitled to judgment as a matter of law.'" Barbour v. Dynamics Research Corp., 63 F.3d 32, 36-37 (1st Cir. 1995) (quoting Fed. R. Civ. P. 56(c)). "To succeed [in a motion for summary judgment], the moving party must show that there is an absence of evidence to support the nonmoving party's position." Rogers v. Fair, 902 F.2d 140, 143 (1st Cir. 1990); see also Celotex Corp. v. Catrett, 477 U.S. 317, 325, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986).

"Once the moving party has properly supported its motion for summary judgment, the burden shifts to the non-moving party, who `may not rest on mere allegations or denials of his pleading, but must set forth specific facts showing there is a genuine issue for trial.'" Barbour, 63 F.3d at 37 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986)). "There must be `sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted.'" Rogers, 902 F.2d at 143 (quoting Anderson, 477 U.S. at 249-50).

III. DISCUSSION

As a general matter, the right to watch movies is protected by the First Amendment. See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65, 101 S. Ct. 2176, 68 L. Ed. 2d 671 (1981) ("[M]otion [*6] pictures, programs broadcast by radio and television, and live entertainment, such as musical and dramatic works fall within the First Amendment guarantee," citing cases); Stanley v. Georgia, 394 U.S. 557, 564, 89 S. Ct. 1243, 22 L. Ed. 2d 542 (1969) ("It is now well established that the Constitution protects the right to receive information and ideas."). Plaintiff contends that the DOC's movie policy violates this First Amendment right. 4

FOOTNOTES

4 Plaintiff also contends that the policy also violates his due process rights under the Fifth Amendment and his due process and equal protection rights under the Fourteenth Amendment. Because Plaintiff only brings a facial challenge to the movie policy, and because the movie policy on its face is not discriminatory or impinges on any due process right, the Court focuses solely on Plaintiff's First Amendment claim.


In a prison setting, First Amendment rights must be balanced against legitimate penological interests. In Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), the Supreme Court set forth a four-pronged test for evaluating constitutional challenges to prison regulations. The Court must examine: (1) whether there exists a "'valid, rational connection' between the regulation and the legitimate [*7] penological interest put forth to justify it," (2) whether alternative means to exercise the right exist, (3) whether accommodation of the right will have an adverse impact on guards, other inmates and prison resources, and (4) whether "ready alternatives" to the regulation exist. See id. at 89-91. The regulation must be aimed at fostering a "legitimate and neutral" governmental objective, "without regard to the content of the expression." Id. at 89.

Plaintiff bears the burden of disproving a rational relation between the prison regulations and a legitimate interest, either with common sense or evidence from the record. See Overton v. Bazzetta, 539 U.S. 126, 132, 123 S. Ct. 2162, 156 L. Ed. 2d 162 (2003) (stating "[t]he burden . . . is not on the State to prove the validity of prison regulations but on the prisoner to disprove it."). In the First Amendment context, the Supreme Court has confirmed, "Prison officials are to remain the primary arbiters of the problems that arise in prison management." Shaw v. Murphy, 532 U.S. 223, 230, 121 S. Ct. 1475, 149 L. Ed. 2d 420 (2001). "Where burdens are laid upon the exercise of constitutional rights by prisoners, the Supreme Court's current approach is to give very substantial latitude to the state's judgment." Beauchamp v. Murphy, 37 F.3d 700, 704 (1st Cir. 1994).

Plaintiff [*8] fails to meet his burden in launching a facial challenge to the DOC's movie policy under the Turner factors. In this case, DOC has articulated several grounds underlying its policy, including keeping order in prisons, rehabilitating inmates by preventing them from viewing violent and sexually explicit conduct, and preserving prison resources. There is no dispute that these objectives of prison order, rehabilitation and economy are legitimate and content-neutral. The record also shows that a ban on certain categories of movies has been a solution used by the federal government and other states including Connecticut, New Hampshire and Rhode Island.

In addition, at least one federal district court found constitutional a federal prison's ban of R-rated movies for the same grounds asserted in this case. Jewell v. Gonzales, 420 F. Supp. 2d 406 (W.D. Pa. 2006) (attacking only the ban on R-rated movies, not the ban on movies rated NC-17). In finding a rational connection between the federal prison's policy and its objectives, the Jewell court relied extensively on expert testimony on how the policy promotes prison order, rehabilitation, and economy. As to prison order and rehabilitation, the [*9] expert in Jewell opined that factors exist which increase the likelihood that an individual will be involved in criminal behavior (termed "criminogenic risk factors") and that "it is desirable to minimize inmates' exposure to stimuli which feed into these criminogenic factors." Id. at 433. More specifically, the expert opined that:

Showing R-rated movies negatively affects security and order in a prison in a number of specific ways. First, repeated exposure to violence can lead to desensitization to aspects of violent behavior which would otherwise be unpleasant or abhorrent. As persons become more desensitized to violent behavior, inhibitions to violence are more readily overcome. Stated differently, exposure to violent behavior increases the risk of impulsive violence toward others. . . . Second, for persons who have engaged in repetitive violent acts over time, viewing depictions of violence can lead to mental and emotional rehearsal of their violent histories. Prison populations contain a higher incidence of persons with histories of violence than normally found in society at large. For this population repeated exposure to graphic violence, criminal behavior, victimization, and [*10] devaluation of others, entrenches mental rehearsal of past violence, criminal acts and victimization. Third, for persons who have histories of substance abuse, research has shown simply viewing depictions of others using drugs can trigger heightened activity in pleasure centers in the brain and associated cravings for substances.

Id. at 431. Moreover, the expert opined that under the policy "[s]taff no longer pre-screen R-rated movie titles and contents, nor view videos sent by mail; tasks which were time-consuming and staff intensive." Id. at 428 (citations omitted). Finding this expert testimony persuasive, the District Court held, "[T]he challenged prohibition on R-rated films is a rational and reasonable means of advancing the government's legitimate interests in ensuring the efficient allocation of prison resources, promoting rehabilitation of federal inmates, and promoting institutional security and order." Id. at 441.

Turning to the first Turner factor, Plaintiff contends that the ratings are an irrational basis for an across-the-board ban on R-rated movies because many PG-13 films are just as violent. He cites, for example, The Bourne Identity, which is rated PG-13. Moreover, [*11] he protests that there is no evidence that viewing violent movies has any relationship to increased violence at Walpole. According to one inmate, there was a long history of showing R-rated films at Walpole without any evidence of violence resulting from a movie. (Affidavit of Kevin Sullivan P 3). Indeed, another inmate suggested that there was actually more violence after R-rated movies were barred because of inmate boredom. (See Affidavit of William M. Tyree P 14).

It is true that the DOC presented only an ipse dixit affidavit to explain a rational connection between a valid penological interest and the movie policy and that no expert testimony was submitted as in Jewell. Still, the burden is on Plaintiff to show a lack of connection. According to the Motion Picture Association of America, a film with an R-rating "may include adult themes, adult activity, hard language, intense or persistent violence, sexually-oriented nudity, drug abuse or other elements." See Motion Picture Association of America, What Do The Ratings Mean?, http://www.mpaa.org/F1mRat_Ratings.asp. While this rating system may be a crude tool for screening, the Court defers to the DOC's rational conclusion that using [*12] the rating system will cull out the movies most likely to have an adverse impact on security and rehabilitation. Moreover, it is telling that other jurisdictions found a policy based on ratings useful and effective. And a ratings-based policy not only saves prison resources, but makes it less likely that prison officials will violate the First Amendment's neutrality mandate because it provides less opportunities for censorship based on content. Thus, Plaintiff has not demonstrated that a bar on movies rated R and NC-17 is not rationally connected to the valid penological goals of promoting prison security, rehabilitation and economy.

With respect to the second Turner factor, Defendant has submitted evidence that the inmates have alternate means to gain information, by watching films with permitted ratings (like PG-13), and watching cable television. Some of the affidavits of inmates contend that prison officials are choosing children's cartoons instead of adult movies, and excluding movies that depict African-Americans. If these allegations are true, Plaintiff might challenge the regulation as applied in a particular institution as violating the First Amendment. However, Plaintiff has [*13] not demonstrated that this particular as-applied challenge has been fairly presented through a grievance process, and an as-applied challenge has not been adequately briefed. The challenge before the Court is a facial challenge to a policy that relies on movie ratings.

Under the third and fourth Turner factors, Defendant contends there is an absence of ready alternatives to fulfill the DOC's objectives and that changing the policy would negatively impact prison resources. Plaintiff principally contends that the canteen money fully pays for the movies and thus disputes the DOC's claim that its resources would be impacted if R-rated movies were shown. Even if the actual cost of purchasing the movie is covered by canteen money, Defendant has offered evidence that it is staff-intensive and time consuming to screen movies one by one. (Bender Aff. 8). Similarly, reviewing the characteristics of each inmate to see if he is an appropriate person to review violent or sexually explicit material also would be staff-intensive.

In conclusion, Plaintiff has not met his burden of demonstrating that the DOC's movie policy impermissibly impinges on his constitutional rights.

ORDER

For the reasons stated [*14] above, Defendant's motion for summary judgment (Docket No. 31) is ALLOWED. Plaintiff's cross-motion (Docket No. 33) and motion for hearing (Docket No. 35) are DENIED.

S/ PATTI B. SARIS

United States District Judge