Anthony Carter v. Leo Arnone Commissioner of the Department of Corrections et al. (2013)

MEMORANDUM OF DECISION ON PLAINTIFF'S APPLICATION FOR A PRELIMINARY INJUNCTION

The plaintiff Anthony Carter has filed a civil complaint against Leo Arnone, the Commissioner of the Department of Corrections (DOC) and George Jepsen, Attorney General of the State of Connecticut, seeking to prevent the enforcement of a DOC ban of any printed material that contains a pictorial depiction of sexual activity or nudity, except where these materials, when taken as a whole are literary, artistic, educational or scientific in nature.   The plaintiff is a convicted and sentenced inmate presently incarcerated at the Cheshire Correctional Institution in Cheshire, Connecticut, and he claims that the ban, which went into effect on June 30, 2012, violates his First Amendment right to free speech and his right to due process.

Before the court at this time is the plaintiff's application for a preliminary injunction enjoining the DOC from enforcing the aforesaid ban.   An evidentiary hearing on the plaintiff's application was held before this court on January 16, 2013.   The plaintiff called three witnesses:  Brian Garnett, DOC Director of Communications, Eileen Redden, former DOC Director of Sexual Offender Programs, and James Dzurenda, Deputy Commissioner of the DOC. The plaintiff did not testify.   Appropriate briefs were filed by each party.

Injunctive relief is a drastic remedy and should not be exercised by a court unless the proponent has clearly established its right to such relief.  “It is clear that the power of equity to grant injunctive relief may be exercised only under demanding circumstances.  Leo Foundation v. Cabelus, 151 Conn. 655, 657, 201 A.2d 654 [1964] ․ ‘Restraining the action of an individual or a corporation by injunction is an extraordinary power, always to be exercised with caution, never without the most satisfactory reasons.’  Goodwin v. New York, N.H. & H.R. Co., 43 Conn. 494, 500 [1876];  Ginsberg v. Mascia, 149 Conn. 502, 505, 182 A.2d 4 [1962].”  Nicholson v. Connecticut Half–Way House, Inc., 153 Conn. 507, 511, 218 A.2d 383 (1966).

“We have repeatedly held that the issuance of an injunction rests in the sound discretion of the trial court.”  Berin v. Olson, 183 Conn. 337, 340, 439 A.2d 357 (1981).  “[I]ts action will not be disturbed unless it has abused its discretion.”  Connecticut Light & Power Co. v. Holson Co., 185 Conn. 436, 440, 440 A.2d 935 (1981).  Anderson v. Latimer Point Management Corporation, 208 Conn. 256, 362 (1988).

It is well established that the elements which must be proven in order to obtain a preliminary temporary injunction are (1) a reasonable degree of probability of success on the merits of the injunction;  (2) irreparable harm with no adequate remedy at law;  and (3) a favorable balancing of the equities involved.  Griffin Hospital v. Commission on Hospitals and Health Care, 196 Conn. 451, 457–58 (1985).

“Judicial scrutiny of prison regulations is an endeavor fraught with peril.”   Beard v. Banks, 548 U.S. 521, 536 (U.S.2006).  “Under the federal constitution, it is well settled that inmates completely forgo certain of their constitutional rights and may be restricted in their exercise of certain other rights.   See Hudson v. Palmer, 468 U.S. 517, 524, 104 S.Ct. 3194, 82 L.Ed.2d 393 (1984) (“imprisonment carries with it the circumscription or loss of many significant rights”);  Bell v. Wolfish, 441 U.S. 520, 545–46, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“[l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the considerations underlying our penal system” [internal quotation marks omitted] ).  “The curtailment of certain rights is necessary, as a practical matter, to accommodate a myriad of institutional needs and objectives of prison facilities, Wolff v. McDonnell, [418 U.S. 539, 555, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974) ], chief among which is internal security, see Pell v. Procunier, [417 U.S. 817, 823, 94 S.Ct. 2800, 41 L.Ed.2d 495 (1974) ].   Of course, these restrictions or retractions also serve, incidentally, as reminders that, under our system of justice, deterrence and retribution are factors in addition to correction.”  (Internal quotation marks omitted.)   Hudson v. Palmer, supra, 524.”  Washington v. Meachum, 238 Conn. 692 (1992).

The plaintiff's primary claim is that the ban at issue violates his First Amendment constitutional rights.   The Supreme Court has held that “when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate pernological interests ․ As our opinions ․ show, several factors are relevant in determining the reasonableness of the regulation at issue.   First there must be a valid rational connection between the prison regulation and the legitimate governmental interest put forward to justify it ․ A second factor relevant in determining the reasonableness of a prison regulation ․ is whether there are alternative means of exercising the right that remain upon to prison inmates ․ A third consideration is the impact accommodation of the assorted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally ․ Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.”   Turner v. Safley, 482 U.S. 78, 89–90 (1987).

In connection with the application of the four Turner factors to the evidence in this case the defendants have called to the court's attention a decision of the United States District Court, District of Connecticut in the case of Akov Ortiz v. Leo C. Arnone, Case No.:  3–11 CV 1793 (September 11, 2012) (Underhill, J.).   In that case the plaintiff, an incarcerated inmate, challenged the same ban that is at issue in the instant case and alleged that the ban violated his First Amendment rights.

The plaintiff sought preliminary injunctive relief to prevent implementation of the ban on pictorial sexual activity or nudity.   Judge Underhill applied the four Turner factors and found that Ortiz had failed to prove that he had a likelihood of success when the case was heard on the merits.

Judge Underhill found that “the policy was implemented to promote institutional safety and security, avoid detrimental effects on rehabilitation, prevent inappropriate behavior and create a less-offensive and non-hostile work environment.   He has provided affidavits from several correctional officials who have studied the issue and concluded that the ban is an appropriate and rational way to achieve these results ․

“Regarding the second factor, Ortiz has alternative ways of expressing his constitutional right.   The defendant notes that Ortiz may receive a wide range of publications that do not depict nudity or pornography as well as sexually explicit materials of a literary, artistic, educational or scientific nature.   See Doc. # 22, Garnett Affidavit, ¶¶ 12, 20.   These alternatives provide Ortiz a means of exercising his constitutional rights.

“The court considers together the last two Turner factors, the impact that accommodating Ortiz' constitutional right would have on correctional staff and the allocation of prison resources and any alternatives to the prison regulation.   The defendant states that a committee was formed to evaluate these two factors before the policy was implemented.   The committee evaluated the possibility of a partial ban of sexually explicit materials, one that would permit inmates to receive magazines like Playboy and Penthouse.   The committee concluded that a partial ban would require an ongoing monitoring system that would result in subjective determinations regarding what materials would be permitted.   Such a system would be difficult to codify, financially costly and labor intensive.   See Doc. # 22, Garnett Affidavit, ¶¶ 14, 16.   The committee also considered having a different standard for sex offenders.   They rejected this option because there is no easy way to restrict the flow of materials through the prison and prevent sex offenders from seeing materials in the possession of other inmates.   See id. ¶ 17.   In addition, restricting possession of sexually explicit materials to only some inmates would not address the problem of creating a non-hostile work environment for staff who find such materials objectionable or prevent inmates from engaging in sexual acts or aggressive behavior after viewing the materials.   See id. ¶¶ 18, 21.   Further, a partial ban would not address the fact that many correctional employees are uncomfortable handling inmates' sexually explicit materials, resulting in their hiding contraband in such materials.   See Doc. # 22, Dzurenda Affidavit, ¶¶ 6–8.   The defendant has presented evidence establishing the third and fourth Turner factors.”   Akov Ortiz v. Leo C. Arnone, pgs 3–5.

Judge Underhill supported his findings with several references to the affidavits of Brian Garnett and James Dzurenda.   These two affidavits, and the affidavit of Eileen Redden, were offered in both Ortiz and the instant case.   Judge Underhill decided the plaintiff's motion for a preliminary injunction and temporary restraining order without hearing additional evidence, while the plaintiff in the instant case cross examined the three affiants and had an opportunity to offer additional evidence.   The three witnesses testified substantially in accordance with their affidavits.   This court agrees with and adopts in this case the reasoning of Judge Underhill in Ortiz in his denial of the plaintiff's application alleging a violation of his First Amendment rights because Ortiz had not established a likelihood of success on the merits of his claim.

The plaintiff also claims that the ban is “unconstitutionally vague in that it fails to provide those charged with enforcing it with an explicit and ascertainable standard to prevent its enforcement in an arbitrary manner.”   The plaintiff offers no evidence in support of this claim.   The court notes that the ban has been in effect for over a year and there is no evidence that the DOC has had difficulty in applying it or that it has been applied in an arbitrary manner.   The court finds that the plaintiff has failed to show that the ban is unconstitutionally vague.

The plaintiff also claims that he has been deprived of his property in violation of his procedural due process rights.   There is no evidence that he has been deprived of any of his property.   In any event the plaintiff was given notice of the proposed ban and had adequate notice and opportunity to cancel any magazine subscriptions and to send any material that would violate the ban home.   He has failed to establish that his constitutional right to due process has been violated.   Should the plaintiff claim a future loss of any property he has a remedy provided by Connecticut General Statutes Section 4–141 through 4–165b, which would allow him to submit such a claim to the Claims Commission.

The court finds the plaintiff has failed to prove that he has a likelihood of success on the merits of his claim of a violation of the First Amendment in that he has failed to satisfy the four requirements of the Turner case, and that he has failed to prove that the ban violates his due process constitutional rights or that it is unconstitutionally vague.

The plaintiff's application for a preliminary injunction is denied.

William L. Hadden, Jr.

Judge Trial Referee

Hadden, William L., J.T.R.