Eugene Brown v. Larry J. Phillips

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3325
EUGENE BROWN,
Plaintiff-Appellant,
v.
LARRY J. P HILLIPS, et al.,
Defendants-Appellees.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 10-cv-3163 — Sue E. Myerscough, Judge.
____________________
SUBMITTED SEPTEMBER 2, 2015* — DECIDED SEPTEMBER 14, 2015
____________________
Before WOOD, Chief Judge, and P OSNER and R OVNER ,
Circuit Judges.
R OVNER , Circuit Judge. Eugene Brown is civilly committed
to the Rushville Treatment and Detention Center under Illi-
nois’s Sexually Violent Persons Commitment Act. The Act
* After examining the briefs and the record, we have concluded that oral
argument is unnecessary. Thus the appeal is submitted on the briefs and
the record. See F ED . R. A PP. P. 34(a)(2)(C).

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2 No. 14-3325
authorizes detention of persons who are determined
through a civil proceeding to be a “sexually violent person.”
See 725 ILCS 207/40. Brown and 17 others confined at
Rushville sued the facility’s officials and clinical staff under
42 U.S.C. § 1983. They allege that policies restricting their
access to movies, video games, and video game consoles vio-
late the First Amendment. The district court entered sum-
mary judgment for the defendants, and only Brown ap-
pealed. Because the record does not contain a sufficient basis
to conclude that the ban on movies and video games is rea-
sonably related to the state’s interests in security and reha-
bilitation, we vacate the judgment in part.
A “sexually violent person” includes someone who has
been convicted of a sexually violent offense and “suffers
from a mental disorder that makes it substantially probable
that the person will engage in acts of sexual violence.” 725
ILCS 207/5(f). Brown was convicted of five counts of aggra-
vated sexual assault for raping adult women. See In re Com-
mitment of Brown, No. 1-11-0732, 2012 WL 6962055, *1, *3–4
(Ill. App. Ct. Oct. 30, 2012). He was diagnosed with paraphil-
ia (specifically, sexual attraction to non-consenting women)
and personality disorder with antisocial and narcissistic
traits. Id. at *4–5. If, as in Brown’s case, a court or jury finds
beyond a reasonable doubt that the person is sexually vio-
lent, he is committed to the custody of the Illinois Depart-
ment of Human Services “for control, care and treatment un-
til such time as the person is no longer a sexually violent
person.” 725 ILCS 207/5(a), 207/35(f), 207/40(a).
Before this lawsuit began, Rushville prohibited its resi-
dents from watching all R-rated movies and playing any M-
rated video game. (The rating “M” for “mature” is defined

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No. 14-3325 3
by the Entertainment Software Rating Board as denoting ma-
terial that is “generally suitable for ages 17 and up” and may
“contain intense violence, blood and gore, sexual content
and/or strong language.” See ESRB Ratings Guide,
ENTERTAINMENT SOFTWARE R ATING BOARD ,
http://www.esrb.org/ratings/ratings_guide.jsp (last visited
Sept. 3, 2015).) After Brown sued to contend that these pro-
hibitions violated the First Amendment, Rushville replaced
its complete ban on all R and M-rated media with a list of
banned movies and video games. In addition, after this suit
began, Rushville discovered that two residents were using a
video game console to access the internet to view forbidden
material. So Rushville also banned residents from possessing
video game consoles capable of accessing the internet. These
new restrictions led Brown to contend that Rushville had re-
taliated against him for suing.
The most recent list of censored content bans 353 movies
and 232 video games. Rushville says that this list includes
only movies “with sexual and/or graphic violent themes
deemed especially counter-therapeutic.” Therapists at Rush-
ville apparently review a movie or video game upon a resi-
dent’s request for the media. For example, one movie titled
Immortals, an action film about the Greek demi-god Theseus,
was banned because, according to a therapist’s review, the
movie depicts a “[n]ude woman–seen from back and side,
sex scenes (nothing is actually seen, but it is simulated), bare
breasts[,] and implied sex” and “[s]trong bloody violence
and [s]exuality.”
The parties cross-moved for summary judgment. Relying
on Turner v. Safley, 482 U.S. 78 (1987), the defendants main-
tained that dual policies banning media content and game

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4 No. 14-3325
consoles are constitutional because they are reasonably re-
lated to the state’s interests in rehabilitation and security. To
support the ban on movies and video games, the defendants
supplied two affidavits, one from Dr. Shan Jumper, a psy-
chologist and the clinical director at Rushville (and a de-
fendant), and Gregg Scott, the program director at Rushville
(also a defendant). Dr. Jumper swears that the ban promotes
“a safe and healthy environment,” but he does not explain
why. Scott repeats Dr. Jumper’s conclusion, but also omits
the basis for it. Scott states only that it “would be contrary”
to treatment and security goals “to permit a resident to have
uncontrolled access to movies and video games of his pref-
erence containing graphic depictions of violence, sex, drug
use, and criminal culture when he is being detained and
treated for a mental disorder related to a prior act(s) of sexu-
al violence.” Brown criticized these opinions for two reasons:
the clinical staff has never evaluated any detainee to assess
whether watching sex and violence adversely affects them,
and the affiants relied on common sense rather than any
empirical data or research to support their conclusions. The
defendants candidly acknowledged their lack of data, ex-
plaining that “[t]he analysis to determine if policies are rea-
sonably related to the facility’s interest does not focus on an
individual assessment and do not need to be supported by
empirical evidence.”
The defendants also offered evidence to justify, on both
therapeutic and security grounds, the ban on game consoles.
Scott asserted in his affidavit that the policy prevents “resi-
dents from frustrating their treatment by having unrestricted
access to counter-therapeutic information, contacting the vic-
tims of their sexually violent offenses, or engaging in further
crime.” The ban, he added, also prevents residents from us-

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No. 14-3325 5
ing the console’s hard drive to smuggle “contraband” into
the facility (like child pornography) and eliminates consoles
as an “unregulated currency.” In response to Brown’s argu-
ment that the policy is overbroad because it need ban only
Wi-Fi-enabled consoles, the defendants submitted an affida-
vit from Jason White, an information systems analyst at the
facility. White stated that even if consoles could be pur-
chased without Wi-Fi hardware, the consoles still could
wirelessly connect to the internet by plugging into the con-
sole’s Ethernet or USB port a device that would convert the
cable-only device to a wireless device. A resident could then
connect to the internet in several ways, including simply
asking outsiders to emit a wireless signal from a cell phone
in the parking lot.
The district court granted the defendants’ motions for
summary judgment. First, it ruled that Turner’s reasonable-
relationship standard, rather than the more exacting scrutiny
that Brown preferred, applied to civil detainees. Then it as-
sessed the restriction on movies and video games. It con-
cluded that the affidavits of Dr. Jumper and Scott articulated
“legitimate security, safety, and therapeutic goals which the
restrictions are logically designed to achieve.” The court
added that their conclusions are “rational based on the na-
ture of the facility and the nature of the range of mental dis-
orders from which the detainees suffer.” The court also ap-
plied Turner to conclude that the policy prohibiting most
consoles is reasonably related to the facility’s interests in
preventing residents from obtaining, storing, and trading
pornography and “other counter-therapeutic materials.” Fi-
nally, because the policies do not violate the residents’ First
Amendment rights, the court concluded that the retaliation
claims also fail.

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6 No. 14-3325
Brown maintains on appeal that the district court erred in
upholding Rushville’s bans. As a preliminary matter, we
address what legal standard governs civil detainees’ First
Amendment claims. Other circuits have applied Turner to
evaluate civil detainees’ civil-rights claims. See Pesci v. Budz,
730 F.3d 1291, 1298 (11th Cir. 2013); Beaulieu v. Ludeman,
690 F.3d 1017, 1039 (8th Cir. 2012); Ahlers v. Rabinowitz,
684 F.3d 53, 65–66 (2d Cir. 2012). We too have said that “it
would not be too difficult to adopt [Turner’s reasonable-
relationship] standard for claims by civil detainees,” so long
as the standard is modified to recognize “the different legit-
imate interests that governments have with regard to pris-
oners as compared with civil detainees.” Lane v. Williams,
689 F.3d 879, 884 (7th Cir. 2012). One recognized difference
is that “[p]ersons who have been involuntarily committed
are entitled to more considerate treatment and conditions of
confinement than criminals whose conditions of confine-
ment are designed to punish.” Youngberg v. Romeo, 457 U.S.
307, 321–22 (1982). We also have recognized as legitimate the
state’s interests in the security of the facility and the incapac-
itation and treatment of civil detainees. Lane, 689 F.3d at 884;
Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir. 2003).
Keeping in mind the detainee’s and state’s interests when
the state detains sexually violent persons, we think that
Turner’s rational-relationship test provides the appropriate
structure to analyze Brown’s claims. Turner requires that, for
the state to restrain a civil detainee’s First Amendment
rights, the restraint must be rationally connected to the
state’s interests—here, security and the rehabilitation and
treatment of sexually violent persons. To demonstrate the
rational relationship, the state must “show more than a for-
malistic logical connection between a regulation and

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No. 14-3325 7
[its institutional] objective.” Beard v. Banks, 548 U.S. 521, 535
(2006). Rather, it must present “some evidence to show that
the restriction is justified.” King v. Fed. Bureau of Prisons,
415 F.3d 634, 639 (7th Cir. 2005).
Applying this standard, we conclude that the defendants’
evidence at summary judgment is too feeble to justify the
ban on movies and video games. Defendants argue that
“common sense” justifies prohibiting sex offenders from
viewing sexually explicit materials. See Waterman v. Farmer,
183 F.3d 208, 214–15 (3d Cir. 1999) (although expert testimo-
ny and research showed an adequate connection between
keeping pornography from incarcerated sex offenders and
rehabilitating them, “common sense” also supports the ban).
But, as we’ve recently said in other contexts, some data is
needed to connect the goal of reducing the recidivism of sex
offenders with a ban on their possessing legal adult pornog-
raphy. See United States v. Taylor, No. 14-3790, 2015 WL
4653148, *4 (7th Cir. Aug. 6, 2015) (overturning a condition
of supervised release that prohibited a person convicted of
trafficking child pornography from possessing legal adult
pornography; no evidence suggested that the legal material
contributed to the illegal activity); United States v. Siegel,
753 F.3d 705, 709 (7th Cir. 2014) (observing that allowing a
rapist of adult women access to legal pornography can de-
crease likelihood of recidivism because research shows that
viewing legal pornography can be a safe outlet for sexual
behavior).
The record at this point does not contain a basis for link-
ing the ban on media content to Rushville’s therapeutic or
security goals. The defendants, through Dr. Jumper and
Scott, have offered a conclusion that eliminating “counter-

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8 No. 14-3325
therapeutic” images of graphic content furthers a resident’s
treatment and security. But a bare assertion that Rushville’s
ban on sexual material promotes treatment is insufficient to
justify summary judgment on a First Amendment claim.
See Ramirez v. Pugh, 379 F.3d 122, 128 (3d Cir. 2004) (revers-
ing dismissal of First Amendment challenge to keeping sex-
ually explicit magazines from all prisoners, reasoning that
mere assertion of rehabilitative effect is inadequate); Wolf v.
Ashcroft, 297 F.3d 305, 308 (3d Cir. 2002) (reversing decision
upholding restriction on R-rated and NC-17-rated movies in
federal prison where “brief, conclusory statement” drawing
connection between policy and penological interest insuffi-
cient).
The defendants’ assertions are insufficient to justify
summary judgment no matter whether they are treated as
lay or expert opinions. The defendants apparently offered
the affidavits as lay opinion testimony, since they did not
comply with the rules of civil procedure required to submit
expert affidavits. See FED. R. C IV . P. 26; Meyers v. Nat’l R.R.
Passenger Corp., 619 F.3d 729, 732 (7th Cir. 2010). But the affi-
davits do not disclose what “perceptions” the lay opinions
are based on, so they do not comply with Federal Rule of
Evidence 701 (lay opinions must be “rationally based on
witness’s perception”). The opinions would be entitled to no
more weight if we considered them from an expert because
“[a]n expert who supplies nothing but a bottom line supplies
nothing of value to the judicial process.” Wendler & Ezra,
P.C. v. Am. Int’l Group, Inc., 521 F.3d 790, 791 (7th Cir. 2008)
(internal quotation marks omitted); see also Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 146 (1997); Rowe v. Gibson, No. 14-3316,
2015 WL 4934970, *5 (7th Cir. Aug. 19, 2015); Finn v. Warren
Cnty., 768 F.3d 441, 452 (6th Cir. 2014); Guile v. United States,

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No. 14-3325 9
422 F.3d 221, 227 (5th Cir. 2005). And although a party who
is qualified may serve as an expert witness, see Braun v.
Lorillard Inc., 84 F.3d 230, 238 (7th Cir. 1996), Tagatz v.
Marquette Univ., 861 F.2d 1040, 1042 (7th Cir. 1988), we’ve
recently observed that an opinion lacking a legitimate basis,
received from a defendant who is proffered as an expert, is
insufficient to justify summary judgment. See Rowe, 2015 WL
4934970 at *9. Thus summary judgment here was premature;
further proceedings are needed to see what the defendants
based their opinions on.
The ban on video game consoles capable of accessing the
internet is another matter—the record evidence shows that
in two ways the policy bears a rational relationship to the
facility’s interest in security. First, consoles capable of access-
ing the internet allow detainees to contact victims of their
crimes; the ban on these consoles thus advances the state’s
interest in protecting the public. Second, because these con-
soles permit inmates to download, manipulate, share, and
store illegal pornography, the ban also promotes the state’s
legitimate interest in preventing crime. Because this evi-
dence went unrebutted, summary judgment on the console-
ban claim was proper.
Summary judgment for the defendants also was proper
with respect to Brown’s retaliation claims. First, Brown can-
not show that Rushville’s decision to replace its universal
ban on movies and games, and censor only listed movies
and games, was “likely to deter First Amendment activity in
the future.” Gomez v. Randle, 680 F.3d 859, 866 (7th Cir. 2012).
The modified policy, which Rushville enacted after Brown
sued, is less restrictive than the one it replaced. Second, as to
the policy prohibiting game consoles, it is irrelevant if Rush-

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10 No. 14-3325
ville may have had a retaliatory motive for enacting it if, as
we’ve concluded, the policy also is supported by a legitimate
reason. See Hammer v. Ashcroft, 570 F.3d 798, 803 (7th Cir.
2009) (en banc) (“The Supreme Court did not search for ‘pre-
text’ in Turner; it asked instead whether a rule is rationally
related to a legitimate goal); Rhodes v. Robinson, 408 F.3d 559,
567–68 (9th Cir. 2004) (prisoner’s retaliation claim fails
where action taken serves legitimate correctional goal).
Accordingly, we VACATE the judgment with respect to
Brown’s challenge to the policy restricting his access to mov-
ies and video games, and REMAND for further proceedings.
Brown has abandoned his request for monetary damages, so
the only defendant remaining on remand is Gregg Scott, the
current program director responsible for implementing poli-
cies at Rushville. In all other respects we AFFIRM the district
court’s judgment.

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