Marc Ramirez v. MICHAEL V. PUGH, Warden, LSCI- Allenwood

PRECEDENTIAL
UNITED STATES COURT OF
APPEAL
FOR THE THIRD CIRCUIT
No. 02-2101
MARC RAMIREZ,
Appellant
v.
MICHAEL V. PUGH, Warden, LSCI-
Allenwood; JANET RENO, Attorney
General; KATHLEEN HAW K, Dr.,
Director of the Bureau of Prisons
On Appeal from the United States
District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 97-cv-00359)
District Judge:
Hon. James F. McClure, Jr.
Argued May 27, 2004
BEFORE: RENDELL and COWEN,
Circuit Judges and
SCHW ARZER*, District Judge
(Filed: August 12, 2004)
*Honorable William W Schwarzer,
Senior United States District Judge for
the Northern District of California,
sitting by designation.
Vijay Shanker, Esq. (Argued)
Covington & Burling
1201 Pennsylvania Avenue, N.W.
Washington, DC 20004
Counsel for Appellant
Marc Ramirez, #27353-053
Allenwood LSCI
P.O. Box 1000
White Deer, PA 17887
Appellant, Pro Se
August E. Flentje, Esq. (Argued)
United States Department of Justice
Civil Division, Appellate Staff
601 D Street, N.W.
Washington, DC 20530
Counsel for Appellees
OPINION
COWEN, Circuit Judge.
A federal prisoner at the low-
security correctional institution in
Allenwood, Pennsylvania brought this
action pursuant to 28 U.S.C. § 1331,
challenging a Congressional ban on the
use of federal funds to distribute certain
sexually explicit material to prisoners,
along with its implementing regulation.
The District Court rejected plaintiff’s
argument that the ban violates the First
Amendment and dismissed his complaint,
finding the prohibition to be reasonably
related to the legitimate penological goal
of prisoner rehabilitation. Because we

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find that the District Court erred in
resolving the constitutional issue without
an adequate factual basis, we will reverse
and remand for further proceedings
consistent with this opinion.
I.
The Ensign Amendment, originally
enacted as part of the Omnibus
Consolidated Appropriations Act of 1997,
prohibits the use of funds appropriated for
the United States Bureau of Prisons (the
“BOP”) to “distribute or make available
any commercially published information or
material to a prisoner . . . [when] such
information or material is sexually explicit
or features nudity.” Pub. L. No. 104-208,
§ 614, 110 Stat. 3009-66 (1996). The
amendment has been reenacted in each
subsequent appropriations act, and is now
codified at 28 U.S.C. § 530C(b)(6). An
implementing regulation promulgated by
the BOP defines the key terms of the
amendment as follows: “sexually explicit”
means “a pictorial depiction of actual or
simulated sexual acts including sexual
intercourse, oral sex, or masturbation”;
“features” means that the publication in
question “contains depictions of nudity or
sexually explicit conduct on a routine or
regular basis or promotes itself based upon
such depictions in the case of individual
one-time issues”; and “nudity” means “a
pictorial depiction where genitalia or
female breasts are exposed.” 28 C.F.R. §
540.72(b).1 The definition of “features”
includes an exception for material that
contains nudity “illustrative of medical,
educational, or anthropological content.”
Id. As examples of publications that do
not “feature nudity,” a 1996 program
statement released by the BOP cites
National Geographic, Our Body, Our
Selves, the swimsuit issue of Sports
Illustrated, and the Victoria’s Secret
catalog. Fed. Bureau of Prisons Program
Statement 5266.07 (Nov. 1, 1996). The
regulations are clearly targeted to the
receipt by inmates of softcore and hardcore
pornography.
Plaintiff Marc Ramirez filed suit in
the Middle District of Pennsylvania in
1997, naming as defendants the United
States Attorney General, the director of the
BOP, and the warden of the Allenwood
i n s t i t u t i o n ( c o l l e c t i v e l y , t h e
“government”). Alleging that magazines
addressed to him were rejected as either
being “sexually explicit” or “featuring
nu di ty,” Ramirez challenged th e
constitutionality of the Ensign Amendment
and its implementing regulation on First
Amendment grounds. After a series of
procedural delays, the District Court
1Before the Ensign Amendment’s
passage, BOP regulations governing the
distribution of sexually explicit
publications permitted the warden of an
institution to reject material that “by its
nature or content poses a threat to the
security, good order, or discipline of the
institution, or facilitates criminal
activity.” 28 C.F.R. § 540.71(b)(7).
These regulations are still in place to the
extent that they involve material falling
outside the scope of § 540.72(b).

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finally reached the merits of Ramirez’s
complaint on a government motion to
dismiss. Applying the familiar test for
constitutional challenges to prison
regulations set out in Turner v. Safley, 482
U.S. 78 (1987), the District Court
determined that the amendment and
regulations passed constitutional muster
because they were rationally connected to
the government’s asserted interest in
prisoner rehabilitation, prisoners still had
access to a broad range of materials
(including materials with sexually explicit
text), accommodating the asserted right to
view explicit materials would threaten the
safety of correctional staff and other
inmates, and no ready alternative existed
that would accommodate Ramirez’s
asserted right at a de minimus cost to valid
penological interests.
On appeal, Ramirez argues that the
District Court erred in finding a rational
connection between the ban on
pornography and rehabilitation in the
absence of any factual record, and in
failing to engage in a “contextual, record-
sensitive analysis” before determining the
ban’s overall reasonableness under Turner.
The District Court had jurisdiction under
28 U.S.C. § 1331, and we exercise
jurisdiction pursuant to 28 U.S.C. § 1291.
We review de novo the District Court’s
decision to grant the government’s motion
to dismiss. Pryor v. National Collegiate
Athletic Ass’n, 288 F.3d 548, 559 (3d Cir.
2002).
II.
In Turner v. Safley, the Supreme
Court recognized an enduring tension
between two conflicting principles in
operation whenever a prisoner brings a
constitutional challenge to a law or
regulation affecting prison policy. The
first principle, that “[p]rison walls do not
form a barrier separating prison inmates
from the protections of the Constitution,”
must be balanced against the practical
reality that the judicial branch is ill-suited
for running the country’s prisons, a task
committed to the particular expertise of the
legislative and executive branches.
Turner, 482 U.S. at 84-85. To strike an
appropriate balance between prisoners’
exercise of their constitutional rights and
the institutional needs of prison
administrators, the Supreme Court held
that a prison regulation implicating an
inmate’s constitutional rights must be
“reaso nably related to legitimate
penological interests” to be valid. Id. at
89. The Court developed a four-part test
for assessing the overall reasonableness of
such a regulation. As a threshold inquiry,
“there must be a ‘valid, rational
connection’ between the prison regulation
and the legitimate governmental interest
put forward to justify it.” Id. (quoting
Block v. Rutherford, 468 U.S. 576, 586
(1984)). Courts must then determine
“whether there are alternative means of
exercising the right that remain open” to
p r i s o n e r s , a n d “ [ w h a t ] im p a c t
a c c o mm odati o n o f t h e a s s e r t e d
constitutional right will have on guards
and other inmates, and on the allocation of
prison resources generally.” Id. at 90.
Finally, a regulation’s reasonableness may
be evidenced by “the absence of ready

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a l t er n a t iv e s ” t h a t w o u l d f u l l y
accommodate the constitutional right “at
de minimus cost to valid penological
interests.” Id. at 90-91. These
requirements “serve as guides to a single
reasonableness standard,” but the first
“‘looms especially large’ because it ‘tends
to encompass the remaining factors, and
some of its criteria are apparently
necessary conditions.’” Waterman v.
Farmer, 183 F.3d 208, 213-14 (3d Cir.
1999) (quoting Amatel v. Reno, 156 F.3d
192, 196 (D.C. Cir. 1998)).
To date, the United States Court of
Appeals for the D.C. Circuit is the only
federal appellate court to have considered
the merits of a First Amendment challenge
to the Ensign Amendment and its
implementing regulation. In Amatel v.
Reno, 156 F.3d 192 (D.C. Cir. 1998), that
court rejected the challenge, finding the
restriction on the distribution of sexually
explicit material to be reasonably related to
the asserted penological interest of
prisoner rehabilitation. See 156 F.3d at
202-03. After identifying prisoner
rehabilitation as the legitimate penological
interest advanced by the government, the
court defined that interest broadly. It
reasoned that the government’s power to
inculcate values in contexts such as public
education transferred readily to the context
of prison administration, implicitly
identifying the promotion of “respect for
authority and traditional values” as a
legitimate rehabilitative purpose in and of
itself. Id. (internal citation omitted).
Having done this, it found that “Congress
might well [have] perceive[d] pornography
as tending generally to thwart the character
growth of its consumers,” and that, as a
matter of common sense, “prisoners are
more likely to develop the now-missing
self-control and respect for others if
prevented from poring over pictures that
a r e t h e m s e l v e s d e g ra d i n g a n d
disrespectful.” Id. at 199.
The Amatel court did not see the
need for an evidentiary record, holding
that its own common sense was sufficient
to verify the rational connection between
the Ensign Amendment’s proscriptions and
the asserted rehabilitative goal. Id. It did,
however, cite a body of scholarly research
to support the reasonableness of the
proposition that pornography leads to male
objectification of women, and that certain
types of pornography can lead to male
aggression and desensitize viewers to
violence and rape. See id. at 199-200.
The court determined that none of the
three other Turner factors undermined the
overall reasonableness of the Ensign
Amendment and its im plem enting
regulation.
Our own court has considered the
constitutionality of a restriction similar to
the Ensign Amendment, albeit in a
different context than the one here. In
Waterman v. Farmer, 183 F.3d 208 (3d
Cir. 1999), we upheld a New Jersey statute
that restricted prisoners’ access to
pornographic materials at a facility for sex
offenders who exhibited “repetitive and
compulsive” behavior. After identifying
the legitimate penological interest at stake
as the rehabilitation of the state’s “most
dangerous and compulsive sex offenders,”

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we evaluated the connection between the
statute and that interest in light of an
evidentiary record that included two expert
affidavits from the facility itself. Those
experts testified that sex offenders’
exposure to pornography would thwart
specific rehabilitative strategies and
treatments administered by prison staff.
Id. at 215-16. In reversing a district court
that had found the prisoners’ experts
“more reasonable” than the government’s,
we cited Amatel for the basic proposition
that “as long as [a] statute is rational, it
clears [Turner]’s first hurdle.” Id. at 217.
At least within the specific context of the
rehabilitation of recidivist sex offenders,
we also approved the Amatel court’s use
of common sense with regard to whether a
ban on pornography might encourage the
development of self-control and respect
for others. See id. After examining the
other Turner factors, we upheld the New
Jersey statute as being reasonably related
to the legitimate penological interest of
sex-offender rehabilitation.
A.
We addressed whether the requisite
rational connection between a prison
restriction and a legitimate penological
interest can be found on the basis of
“common sense” alone in Wolf v.
Ashcroft, 297 F.3d 305 (3d Cir. 2002). In
Wolf, we reversed a district court’s
decision upholding a restriction on the
showing of R-rated and NC-17-rated
movies in federal prisons. The district
court in that case found that no evidentiary
record was necessary because we had
endorsed Amatel’s “common sense”
approach in Waterman, and summarily
concluded that the restriction was “neutral
and reasonable” under Turner. We found
the district court’s opinion deficient
because it never stated or described the
relevant peno logica l interest (the
government had asserted three distinct
interests: prison se curity, crime
deterrence, and rehabilitation). Id. at 308.
We also noted that while a court “need not
nece ssarily enga ge in a detailed
discussion” of the connection between a
prison policy and that interest, a “brief,
conclusory statement” is insufficient for
evaluating the application of Turner’s first
prong. Id. Finally, we rejected the
government’s contention that such a
connection could always be found without
an evidentiary hearing:
While the connection may be a
matter of common sense in certain
instances, such that a ruling on this
issue based only on the pleadings
may be appropriate, there may be
situations in which the connection
is not so apparent and does require
s o me factu al dev elo p m e n t .
Whether the requisite connection
may be found solely on the basis of
“common sense” will depend on
the nature of the right, the nature of
the interest asserted, the nature of
t h e p r o h i b i t i o n , a n d t h e
obviousness of its connection to the
proferred interest. The showing
required will vary depending on
how close the court perceives the
connection to be.

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Id. at 308-09. On remand, we directed the
district court to “describe the interest
served, consider whether the connection
between the policy and interest is obvious
or attenuated--and, thus, to what extent
some foundation or evidentiary showing is
necessary--and, in light of this
determination, evaluate w hat th e
government has offered.” Id. at 309.
Turning to the appeal before us, we
find that the District Court erred in
evaluating the Ensign Amendment and its
implementing regulation under Turner’s
first prong on a motion to dismiss, without
any analysis or inquiry into the interests
involved and the connection between those
interests and the restriction at issue. First,
although the District Court correctly
identified rehabilitation as a legitimate
penological interest, see O’Lone v. Estate
of Shabazz, 482 U.S. 342, 348 (1987), it
did so without adequately describing the
specific rehabilitative goal or goals
furthered by the restriction on sexually
explicit materials. Second, even though
the connection between the amendment
and the rehabilitation of federal sex
offend ers may be obvious under
Waterman, that connection becomes
attenuated upon consideration of the entire
population of BOP inmates, such that a
factual record becomes necessary for
determining the rationality of the
amendment’s overall connection to
rehabilitative interests. On remand,
therefore, the District Court must first
identify with particularity the specific
rehabilitative goals advanced by the
government to justify the restriction at
issue, and then give the parties the
opportunity to adduce evidence sufficient
to enable a determination as to whether the
connection between these goals and the
restriction is rational under Turner.
While the obvious end of
rehabilitation is the prevention of further
lawbreaking once offenders are released
from prison, the scope of the interest itself
has never been defined by the Supreme
Court. See Amatel, 156 F.3d at 209
(“Unlike its interest in institutional
security, the contours of the government’s
interest in rehabilitation are quite
amorphous and ill-defined.”) (Wald, J.,
dissenting). Certainly falling within the
legitimate bounds of the interest are prison
policies designed to target the specific
behavioral patterns that led to a prisoner’s
incarceration in the first place, or
behavioral patterns emerging during
incarceration that present a threat of
lawbreaking activity other than that for
which the prisoner was confined. To say,
however, that rehabilitation legitimately
includes the promotion of “values,”
broadly defined, with no particularized
identification of an existing harm towards
which the rehabilitative efforts are
addressed, would essentially be to
acknowledge that pris oner s’ First
Amendment rights are subject to the
pleasure of their custodians. See, e.g., id.
at 210 (arguing that under such a broad
definition of rehabilitation, lawmakers
could constitutionally engage in viewpoint
discrimination by proscribing texts
expressing disfavored positions) (Wald, J.,
dissenting). To the extent that the Amatel

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majority defines rehabilitation in this way,
we disagree with its reasoning. See id.,
156 F.3d at 209 (“[T]o proceed on some
vague assertion of an interest in
‘rehabilitation’ without the need to define
the term or to show a connection between
the proscribed activity and the chosen
definition . . . runs an overwhelming risk
of overregulation.”) (Wald, J., dissenting).
While the actual right to view materials
subject to the Ensign Amendment’s
proscriptions might be significantly narrow
in this case, courts may not abdicate their
responsibility to scrutinize carefully the
government’s reasons for infringing that
right.2 See Thornburgh, 490 U.S. at 414
(“[Turner’s] reasonableness standard is not
toothless.”) (internal quotation omitted);
Amatel, 156 F.3d at 206, 211 (“[M]ore
precisely, [the standard] is not a license for
lawmakers, any more than prison wardens,
to shortchange the constitutional rights that
the Supreme Court has insisted prisoners
continue to possess. . . . If rehabilitation is
to be deemed a legitimate penological
interest, the term must be given some
shape, at least when it collides with
fundamental liberties.”) (W ald, J.,
dissenting). As a preliminary step in
determining the extent to which evidence
is required under Wolf where the
penological interest advanced by the
government is rehabilitation, therefore, a
district court must describe with
particularity the specific rehabilitative goal
or goals relied upon by the government to
justify the chall enged regulation.
See Wolf, 297 F.3d at 308 (rejecting
“conclusory” statements that make it
difficult to determine what connection a
court sees between the advanced
penological interest and a prison
restriction).
We may gather from the District
Court’s reliance upon the scholarly works
discussed in Amatel that, at the very least,
it believed the government’s specific
rehabilitative goals to include the
prevention of sex crimes and violence
against women. See Amatel, 156 F.3d at
2Inmates have no right to receive
materials that constitute obscenity.
Miller v. California, 413 U.S. 15, 23
(1973) (“[O]bscene material is
unprotected under the First
Amendment.”). However, materials that
constitute indecent sexual expression not
rising to the level of obscenity are
constitutionally protected. Reno v.
American Civil Liberties Union, 521
U.S. 844, 874-75 (1997). To the extent
that the Ensign Amendment and its
implementing regulation target non-
obscene material, therefore, its
proscriptions must satisfy the
requirements of Turner. In considering
the evidence on remand, the District
Court should be sensitive to arguments
that draw legitimate distinctions between
prohibited materials that are
constitutionally protected. See, e.g.,
Amatel, 156 F.3d at 207-08 (maintaining
that the government had provided no
evidence that non-pornographic nudity
has any effect on long-term rehabilitative
interests) (Wald, J., dissenting).

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199-200. Were the Ensign Amendment’s
scope limited to federal prisoners who
have committed sex crimes or violence
against women, the means-end connection
would be sufficiently obvious such that the
first prong of Turner could be resolved on
the basis of common sense. In Waterman,
we found the prohibition against sexually
explicit material to be clearly connected to
the rehabilitation of recidivist sex
offenders whose demonstrated inability to
control their sexual impulses had led to
their incarceration at the facility in
question. See Waterman, 183 F.3d at 217
(noting that restrictions on pornography
foster the “deferring of sexual
gratification, [] sublimation of sexual
impulses, [and] channeling of sexual
expression into long-term relationship of
caring and affection” related to the “now-
missing self-control and respect for
others”) (quoting Amatel, 156 F.3d at
199). However, we do not find the
c o n n e c t io n b e t w e e n t h e E n sig n
Amendment and the governmen t’s
rehabilitative interest to remain obvious
upon consideration of the entire federal
inmate population, including those
prisoners not incarcerated for sex-related
crimes. In this case, therefore, we believe
Wolf necessitates the development of a
factual record. See Wolf, 297 F.3d at 309
(requiring an evidentiary showing roughly
corresponding to the degree to which the
required means-end connection is
“attenuated”).
By no means do we wish to suggest
that the only legitimate target of the
Ensign Amendment is the class of
convicted federal sex offenders. We
recognize that the government has wide
l a t it u d e i n p u r s u i n g l e g i ti m a te
rehabilitative goals; courts may not
substitute their own judgment in place of
that of the legislative or executive
branches where the position advanced by
the government is not “irrational or
u n r e a s o n a b l e ” b u t s i m p l y “ l e ss
reasonable” than that of the prisoner-
plaintiffs. See Waterman, 183 F.3d at 216.
In the absence of a factual record,
however, we cannot ignore the possibility
that the proscription rationally applies to
such a small percentage of the BOP inmate
population that its connection to the
government’s rehabilitative interest “is so
remote as to render [it] arbitary or
irrational.” Turner, 482 U.S. at 89-90;
Waterman, 183 F.3d at 213 (holding that
the Turner test subsumes traditional
overbreadth and vagueness analyses).
Determining whether there is a rational
link between sexually explicit material and
the harms toward which the government’s
overall rehabilitative efforts are directed
requires more than a conclusory assertion
that the “consumption of [sexually
explicit] publications [] imp licitly
elevate[s] the value of the viewer’s
immediate sexual gratification over the
values of respect and consideration for
others” and a generalized statement that
sexual self-control is relevant to the
rehabilitation of the entire class of federal
prisoners.3 Amatel, 156 F.3d at 199.
3We further note that, “while a court
can bolster its finding of a connection by

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B.
As to whether an evidentiary basis
is required for the remaining three Turner
prongs, we repeat our observation that “we
have historically viewed these inquiries as
being fact-intensive . . . [requiring] ‘a
contextual, record-sensitive analysis.’”
Wolf, 297 F.3d at 310 (quoting DeHart v.
Horn, 227 F.3d 47, 59 n.8 (3d Cir. 2000)
(en banc)). Where the link between the
regulation at issue and the legitimate
government interest is sufficiently
obvious, no evidence may be necessary to
evaluate the other Turner prongs. See,
e.g., Waterman, 183 F.3d at 217; but see
Wolf, 297 F.3d at 310 (observing that the
first prong does not subsume the rest of the
inquiry). In this case, however, we agree
with Ramirez that the third and fourth
Turner factors cannot be adequately
assessed in the absence of an evidentiary
foundation.4
The third and fourth Turner factors
require consideration as to whether
accommodating the asserted right would
have an adverse impact “on guards and
other inmates[] and on the allocation of
prison resources,” as well as a
determination as to whether alternatives
exist that can accommodate the right “at de
minimus costs to valid penological
interests.” Turner, 482 U.S. at 90-91. The
District Court’s apparent factual
conclusion that accommodation “would
increase the risks of sexual crimes and
misconduct within the prison walls,” is
speculative and unsupported. The
existence of a possible “ripple effect” on
the rehabilitation of prisoners legitimately
targeted by the Ensign Amendment could
reasonably be disputed; certainly relevant
to this inquiry is whether those prisoners
are housed separately from inmates whose
rehabilitation would not be affected. For
the same reason, it does not follow from
reference to decisions of other courts on
the same issue,” it must engage in at least
some independent analysis of whether
the connection is rational. Wolf, 297
F.3d at 309. We are unclear from its
passing reference to “the scholarly
findings detailed in Amatel” whether the
District Court actually examined and
considered the scholarship at issue, and
therefore reject the argument that its
reliance on these findings was sufficient
for establishing the requisite rational
connection.
4With regard to the “availability of
alternate means of exercising the right at
stake,” factual development does not
appear necessary because the relevant
right “must be viewed sensibly and
expansively.” Waterman, 183 F.3d at
219 (quoting Thornburgh, 490 U.S. at
417). In the context of a prison ban on
certain publications, this criterion is met
if the regulations “permit a broad range
of publications to be sent, received, and
read.” Thornburgh, 490 U.S. at 418.
Concerns that such a ban is overbroad
because it does not further the
rehabilitation of particular classes of
prisoners are appropriately addressed to
Turner’s other three prongs.

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our decision in Waterman that limited
distribution can never be conducted at
de minimus costs to valid penological
interests. See Waterman, 183 F.3d at 219
(finding the third and fourth Turner prongs
satisfied because the facility in question
was insufficiently staffed to conduct case-
by-case reviews and prisoners were “more
than likely” to pass materials among one
another); cf. Amatel, 156 F.3d at 213
(arguing that a return to the case-by-case
review embodied in the previously BOP
regulation might not constitute an
additional administrative burden because
prison officials are required under the
Ensign Amendment to examine each
publication and determine whether it is
“sexually explicit or features nudity”)
(Ward, J., dissenting). Contrary to the
decision in Amatel, we believe this to be a
case in which factual development is
necessary for evaluating the Ensign
Amendmen t and its im plem enting
regulation under Turner. See Wolf, 297
F.3d at 310 (“[C]ourts of appeals
ordinarily remand to the trial court where
the Turner factors cannot be assessed
because of an undeveloped record.”)
(citing Doe v. Delie, 257 F.3d 309, 317
(3d Cir. 2001)).
III.
For the reasons discussed above, we
find that the District Court erred in
determining that the Ensign Amendment
and its implementing regulation were
reasonably related to the legitimate
government interest of rehabilitation
without an adequate factual basis for so
doing.5 Accordingly, we will reverse the
judgment of the District Court entered on
February 28, 2002 and remand with
instructions to conduct an appropriate
proceeding before reevaluating the
amendment and regulation under Turner.
5We have not addressed the
government’s contention that the Ensign
Amendment and its implementing
regulation satisfy the Turner criteria
because they are reasonably related to the
legitimate penological interests of prison
security, deterrence, and punishment.
Although the District Court mentioned
“institutional security” as an interest to
which the ban on sexually explicit
materials was rationally connected and
stated that accommodating the right
“would increase the risks of sexual
crimes and misconduct,” its analysis
focuses on the rehabilitative interest
discussed in Amatel and Waterman.
Cf. Mauro v. Arpaio, 188 F.3d 1054 (9th
Cir. 1999) (finding a restriction on
inmates’ possession of sexually explicit
materials to be reasonably related to
institutional security under Turner).
Therefore, whether other legitimate
penological interests might justify the
Ensign Amendment’s proscriptions is not
properly before us.

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