Pope v. Hightower

                    United States Court of Appeals,

                              Eleventh Circuit.

                                 No. 95-6944.

              Freddie Glenn POPE, Plaintiff-Appellee,

                                       v.

     Roy HIGHTOWER, Associate Commissioner, Alabama Dept. of
Corrections, Defendant-Appellant,

   Ronald W. Kitzinger, Deputy Warden, Ken Mayes, Institutional
Accounting Officer, MCI Telecommunications Corporation, Ronald E.
Jones, W.I. Petry Company, Inc., State of Alabama, Alabama
Department of Corrections, Defendants.

                               Dec. 26, 1996.

Appeal from the United States District Court for the Northern
District of Alabama. (No. CV-93-1432), J. Foy Guin, Jr., Judge.

Before COX and BLACK, Circuit Judges, and FAY, Senior Circuit
Judge.

     BLACK, Circuit Judge:

                        I. STATEMENT OF THE CASE

     On June 30, 1993, Freddie Glenn Pope, an inmate at the William

Donaldson Correctional Facility, instituted this § 1983 action

against   Assistant     Warden    Ronald    Kitzinger    and   the    Regional

Coordinator   for     the    Alabama   Department   of    Corrections,     Roy

Hightower.    The complaint alleged a variety of constitutional

violations,   but     only    Pope's    challenge   to   prison      telephone

restrictions survived a motion for summary judgment.              Following a

bench trial on the constitutionality of the telephone restrictions,

the district court rendered a verdict in favor of Pope. The

district court held that limiting to ten the number of people Pope

could call violated the First Amendment. Defendant Hightower filed

a timely notice of appeal.
                           II. STANDARD OF REVIEW

       The district court's findings of fact are subject to review

under a clearly erroneous standard.        Massaro v. Mainlands Section

1 & 2 Civic Ass'n, Inc., 3 F.3d 1472, 1475 (11th Cir.1993), cert.

denied, --- U.S. ----, 115 S.Ct. 56, 130 L.Ed.2d 15 (1994).             The

application of the law to the facts, however, is subject to de novo

review.   Simmons v. Conger, 86 F.3d 1080, 1084 (11th Cir.1996).

                                 III. FACTS

       Pope   has   been    incarcerated   at   the   William    Donaldson

Correctional Facility (Donaldson) for three and one half years. As

Donaldson houses the most dangerous inmates, the facility maintains

the highest security level of any state prison in Alabama.           Among

the restrictions imposed by virtue of the security classification

are those governing telephone usage.       Inmates are permitted to use

the telephones only from 10:30 a.m.        to 12:00 p.m.   and from 3:00

p.m.   to 10:30 p.m.   The Donaldson facility also limits the number

of people to whom inmates may place telephone calls.            Each inmate

may designate no more than ten individuals on their telephone

calling lists.      A computer system automatically blocks calls an

inmate attempts to place to phone numbers that do not appear on

their ten-person list. Inmates may change the individuals on their

list every six months.          After inmates furnish their proposed

telephone lists to prison officials, the prison checks to ensure

that the individuals designated do not have a record of criminal

activity.     Although the screening process is time consuming,

Hightower testified that utilization of the ten-person phone lists

helps to curtail criminal activity and harassment of judges and
jurors.

     The     district    court   credited   the     explanation   offered   by

Hightower, but concluded that use of the ten-person calling list

violated inmate Pope's First Amendment rights.            Specifically, the

court ascribed constitutional significance to the possibility that

Pope might be unable to take full advantage of his opportunities

for visitation given that his friends and family reside in Kansas.

The district court concluded that constitutional principles of

reasonableness required that Pope receive compensation in the form

of increased access to the telephone. The district court therefore

directed prison officials to expand Pope's telephone calling list

to fifteen individuals.

                                 IV. ANALYSIS

        Prison walls do not form a barrier separating prison inmates

from the protections of the Constitution.             Turner v. Safley, 482

U.S. 78, 84, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987).              At the

same time, the Supreme Court has recognized that "courts are ill

equipped to deal with the increasingly urgent problems of prison

administration and reform."          Procunier v. Martinez, 416 U.S. 396,

405, 94 S.Ct. 1800, 1807, 40 L.Ed.2d 224 (1974).            Accordingly, in

Turner the Supreme Court formulated a standard of review for

prisoners' constitutional claims that strikes a balance between the

policy of judicial restraint regarding prisoner complaints and the

need to protect constitutional rights.            482 U.S. at 85, 107 S.Ct.

at 2259.     The    Turner Court held that when a prison regulation

impinges upon on inmate's constitutional rights, the regulation is

valid   if   it    is   reasonably   related   to   legitimate    penological
interests.     Id. at 89, 107 S.Ct. at 2261.1             The Supreme Court

considered     this    deferential       standard   necessary        if   "prison

administrators ... and not the courts, [are] to make the difficult

judgments concerning institutional operations." Id. (quoting Jones

v. North Carolina Prisoners' Union, Inc., 433 U.S. 119, 128, 97

S.Ct. 2532, 2539, 53 L.Ed.2d 629 (1977)).

     The Turner Court identified several factors that serve to

channel the reasonableness inquiry: (1) whether there is a "valid,

rational    connection"      between   the   regulation   and    a    legitimate

government interest put forward to justify it;            (2) whether there

are alternative means of exercising the asserted constitutional

right that remain open to the inmates;          (3) whether and the extent

to which accommodation of the asserted right will have an impact on

prison staff, inmates, and the allocation of prison resources

generally;       and   (4)     whether    the   regulation      represents    an

"exaggerated response" to prison concerns. Turner, 482 U.S. at 89-

91, 107 S.Ct. at 2261-63;        Harris v. Thigpen, 941 F.2d 1495, 1516

(11th Cir.1991).

         In considering the constitutionality of the prison telephone

list, the district court did not follow the analysis prescribed by

Turner.      After recognizing that the telephone restriction was


     1
      Contrary to the position urged by Pope, the Turner
reasonableness inquiry involves application of law to facts and,
as a result, must be reviewed de novo. See, e.g., Mosier v.
Maynard, 937 F.2d 1521, 1525 (10th Cir.1991); Friedman v.
Arizona, 912 F.2d 328, 331 (9th Cir.1990) (holding de novo review
was required because "the application of law to fact will require
the consideration of legal concepts and involve the exercise of
judgment about the values underlying legal principles"), cert.
denied, 498 U.S. 1100, 111 S.Ct. 996, 112 L.Ed.2d 1079 (1991);
Iron Eyes v. Henry, 907 F.2d 810, 813 (8th Cir. 1990).
rationally related to a legitimate penological interest, the court

declared      it    unconstitutional        on   the       basis    of    inmate   Pope's

particular circumstances. The approach taken by the district court

does not comport with Turner.               By considering whether Pope could

take advantage of alternate means of exercising his First Amendment

rights to the same extent as other Donaldson inmates, the district

court expanded the scope of its inquiry beyond permissible bounds.2

When considering a constitutional challenge to a prison regulation,

courts      are    obliged   to    ensure    that      the       restriction   bears    a

reasonable relation to a legitimate penological objective. If such

a   relation       exists,   the   inquiry       is   at    an     end.     Whether   the

restriction seems reasonable in any more general sense presents a

question outside the purview of the federal judiciary.

          The challenged telephone restriction, when analyzed under the

Turner framework, does not violate inmate Pope's First Amendment

rights.      First, a valid, rational connection exists between the

telephone restriction and the legitimate governmental interest put

forward      to    justify   it.     Reduction         of    criminal      activity   and

harassment qualifies as a legitimate governmental objective.                          The

      2
      We note that the district court proceeded to compound its
error by dictating the precise course the prison officials had to
follow to rectify the perceived constitutional violation. The
Supreme Court recently reiterated in Lewis v. Casey that "strong
considerations of comity ... require giving the States the first
opportunity to correct errors made in the internal administration
of their prisons." --- U.S. ----, ----, 116 S.Ct. 2174, 2185,
135 L.Ed.2d 606 (1996) (quoting Preiser v. Rodriguez, 411 U.S.
475, 492, 93 S.Ct. 1827, 1837-38, 36 L.Ed.2d 439 (1973)).
Federal courts must scrupulously respect the limits on their role
by not thrusting themselves into prison administration; prison
administrators must be permitted to exercise wide discretion
within the bounds of constitutional requirements. Lewis, ---
U.S. at ----, 116 S.Ct. at 2185 (citing Bounds v. Smith, 430 U.S.
817, 832, 97 S.Ct. 1491, 1500, 52 L.Ed.2d 72 (1977)).
connection between that objective and the use of a ten-person

calling list is valid and rational because it is not so remote as

to render the prison telephone policy arbitrary or irrational.

Turner, 482 U.S. at 89, 107 S.Ct. at 2262.

       Second, alternative means of exercising the First Amendment

right at stake remain open to Pope. When considering this factor,

the Supreme Court has instructed that the right must be viewed

sensibly and expansively. Thornburgh, 490 U.S. 401, 417, 109 S.Ct.

1874, 1884, 104 L.Ed.2d 459.          The right at issue in the present

case may be defined expansively as the First Amendment right to

communicate with family and friends.               The undisputed evidence

establishes that Pope had alternate means of exercising this right

because he could receive visitors and correspond with virtually

anyone he wished.         The availability of "other avenues" suggests

that   we   should   be    particularly    conscious    of   the   "measure   of

judicial deference owed to correctional officials ... in gauging

the validity of the regulation."          Turner, 482 U.S. at 90, 107 S.Ct.

at 2262.

       Third, accommodation of the asserted constitutional right

would have a significant impact on prison staff, other inmates, and

the overall allocation of prison resources.              Appellant Hightower

presented uncontradicted testimony that conducting a background

investigation    for      each   individual   on   an   inmate's   phone   list

requires a considerable expenditure of time by prison staff. Given

that Donaldson houses nearly 1,500 inmates, requiring the prison to

accommodate five additional individuals on each list, with the

possibility for wholesale changes of the individuals on the list
every     six        months,    appears      certain     to        have    far-reaching

implications.         Where, as here, accommodation of an asserted right

would have a significant "ripple effect" on fellow inmates or

prison staff, courts should be particularly deferential to the

informed discretion of corrections officials.                      Turner, 482 U.S. at

90, 107 S.Ct. at 2262.

     Fourth,         the    telephone      regulation    does      not    represent      an

"exaggerated         response"      to    prison    concerns       because    no     ready

alternatives to the challenged restriction are evident.                                  See

Turner, 482 U.S. at 90, 107 S.Ct. at 2262.                   No alternative has been

proposed that would fully accommodate Pope's claimed right at a de

minimis    cost       to    valid   penological     interests.            Although      Pope

maintains that other prisons at which he has been incarcerated do

not employ telephone calling lists, this does not indicate that

dropping the restriction at Donaldson would come at a de minimis

cost to penological interests.                Initially, the Supreme Court has

made it patently clear that the Constitution does not mandate a

lowest common denominator security standard whereby a practice

permitted       at    one   penal     institution     must    be    permitted      at   all

institutions.         Id. at 93 n. *, 107 S.Ct. at 2264 n. *.                 Moreover,

Donaldson may have a greater penological need for the telephone

restrictions than other facilities because it houses the most

dangerous prisoners.

     Consideration of the                Turner factors demonstrates that the

ten-person telephone calling list imposed at Donaldson bears a

reasonable       relation        to      legitimate     penological          objectives.

Consequently, we hold the challenged restriction does not violate
inmate Pope's First Amendment rights.

                         V. CONCLUSION

     In accordance with the foregoing, we REVERSE the district

court's denial of Appellant Hightower's motion for judgment as a

matter of law and render judgment in favor of Defendants.3

     REVERSED.




     3
      Although the caption of the order appealed from lists
Hightower, the State of Alabama, and the Alabama Department of
Corrections as Defendants, it is not clear against whom the
district court intended the judgment to run. To avoid the
specter of confusion stemming from this lack of clarity, we
specify that judgment is rendered in favor of all Defendants.