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.