Ahlers v. Rabinowitz

10-1193-CV
Ahlers v. Rabinowitz
UNITED STATES COURT OF APPEALS 1
2
FOR THE SECOND CIRCUIT 3
4
August Term, 2011 5
6
7
(Argued: December 7, 2011 Decided: April 6, 2012) 8
9
Docket No. 10-1193 10
11
- - - - - - - - - - - - - - - - - - - -x 12
13
KARL AHLERS, 14
15
Plaintiff-Appellant, 16
17
- v.- 18
19
STEVEN RABINOWITZ, Director, Manhattan Psychiatric Center, 20
DORA DEATRAS, Ward D-9-B Treatment Team Leader, Manhattan 21
Psychiatric Center, IMOGINE THOMPSON, Ward D-9-B, Staff 22
Member, Manhattan Psychiatric Center, FELICITY MOE, Ward D- 23
9-B, Staff Member, Manhattan Psychiatric Center, 24
25
Defendants-Appelles. 26
27
- - - - - - - - - - - - - - - - - - - -x 28
29
Before: JACOBS, Chief Judge, CABRANES and WESLEY, 30
Circuit Judges. 31
32
Plaintiff appeals from a judgment entered in the 33
Southern District of New York (Crotty, J.) dismissing his 42 34
U.S.C. § 1983 claims. We agree with the district court’s 35
analysis; but we undertake to clarify some applicable 36
principles and affirm on the ground of qualified immunity. 37
38

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2
THOMAS H. DUPREE, JR. (Frederick 1
Liu, Erik R. Zimmerman, on the 2
brief), Gibson, Dunn & Crutcher 3
LLP, Washington, D.C., for 4
Appellant. 5
6
DAVID LAWRENCE III, Assistant 7
Solicitor General (Barbara D. 8
Underwood, Solicitor General, 9
Michael S. Belohlavek, Senior 10
Counsel, on the brief), for Eric 11
T. Schneiderman, Attorney 12
General of the State of New 13
York, New York, N.Y., for 14
Appellees. 15
16
DENNIS JACOBS, Chief Judge: 17
18
Karl Ahlers appeals from a judgment entered in the 19
United States District Court for the Southern District of 20
New York (Crotty, J.) dismissing his claims under 42 U.S.C. 21
§ 1983. Ahlers is a convicted sex-offender who has been 22
civilly committed post-release from prison. He alleges that 23
when he was confined in the Manhattan Psychiatric Center 24
(the “Center”), staff seized and withheld his personal DVDs 25
and CDs and his incoming non-legal mail in violation of the 26
First and Fourth Amendments and his procedural due process 27
rights. The district court did not err in concluding that 28
the complaint fails to state any claim for which relief can 29
be granted. See Fed. R. Civ. P. 12(b)(6). This opinion 30

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3
undertakes to clarify some applicable principles. We affirm 1
the judgment of the district court because, in any event, it 2
was objectively reasonable for the Center staff to believe 3
that their acts did not violate Ahlers’s rights. They are 4
therefore entitled to qualified immunity. 5
6
BACKGROUND 7
In August 1982, Ahlers was convicted of sex offenses 8
involving children aged seven to sixteen: specifically, two 9
counts of sodomy in the first degree, one count of sodomy in 10
the second degree, one count of sodomy in the third degree, 11
three counts of sexual abuse in the first degree, and two 12
counts of endangering the welfare of a child. People v. 13
Ahlers, 470 N.Y.S.2d 483, 483 (3d Dep’t 1983). After 14
release from prison in 2005, Ahlers was involuntarily placed 15
in civil custody, first in the Kirby Forensic Center and 16
then, in August 2007, in the Sex Offender Treatment Program 17
at the Center. In December 2008, Ahlers filed a pro se 18
complaint against the Center’s Director, Steven Rabinowitz, 19
and three Center employees--Dora Deatras, Imogine Thompson, 20
and Felicity Moe -- (collectively, the “Defendants”) alleging 21
that they withheld from him certain CDs and DVDs, and his 22

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4
mail, in violation of the Constitution and federal law. The 1
allegations are set out below. 2
CDs and DVDs. Ahlers alleges that because of his 3
hearing loss, he was granted permission to have a personal 4
DVD player, DVDs, and CDs, so that he could listen through 5
headphones. Other patients received similar accommodations. 6
Over time, with the Center’s permission, Ahlers acquired a 7
collection of 163 DVDs and 86 CDs (collectively, the 8
“discs”). According to Ahlers, the DVDs contain content 9
similar to what is broadcast on the Center’s televisions, 10
and the CDs contain classical music. 11
On April 21, 2008, staff entered Ahlers’s room without 12
warning, seized his DVD player and all his discs, and 13
informed him that the discs would be reviewed and returned. 14
On May 6, Ahlers met with his parole officer and members of 15
his treatment team--defendants Deatras, Thompson, and Moe-- 16
and he was assured that they would review his DVDs. On May 17
19, at a meeting of all the patients in Ahlers’s ward, 18
Deatras announced that the staff was screening for sexually 19
explicit material. 20
On May 28, Ahlers met to discuss the seizure with the 21
Center’s Deputy Director, Charles Herrmann, who said he 22

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1 This adds up to 161 DVDs. Ahlers alleges that 163
were seized. The complaint is confusing in this respect,
and others.
5
would look into the matter, but did not get back to Ahlers. 1
Ahlers followed up with a letter, but got no reply. 2
On May 30, Deatras returned 16 DVDs and the DVD player 3
to Ahlers and presented him with a receipt, which indicated 4
that 14 DVDs had been permanently confiscated for containing 5
sexually explicit material and that 131 had yet to be 6
reviewed.1
7
On June 18, Ahlers discussed the seizure with Don 8
Graham, a lawyer in “Mental Health Services,” who later met 9
with the ward psychologist and Deatras. Two days later, 10
Ahlers asked when he would get back the remaining discs, and 11
was told by Deatras that just one person was available to 12
screen DVDs, but that she would talk to that individual. 13
Later that day, Deatras returned 15 DVDs, and told Ahlers 14
that the remaining DVDs had not yet been reviewed. 15
Toward the end of June, Deatras gave Ahlers a list of 16
the 14 permanently confiscated DVDs and a memo from 17
defendant Steven Rabinowitz, Director of the Center, 18
responding to a letter Ahlers had written. Rabinowitz 19
advised that it was clinically inappropriate for Ahlers to 20

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6
have sexually explicit material and sexual material 1
involving children, and that the permanently confiscated 2
DVDs had been deemed clinically inappropriate. 3
On July 28, the Center returned ten more DVDs to 4
Ahlers. On August 8, twenty more were returned. 5
Mail. On March 20, 2008, a United States Government 6
Printing Office (“GPO”) catalog arrived in the mail for 7
Ahlers. Thompson withheld it to submit it to Deatras for 8
review. On April 28, Ahlers asked Moe about it and was told 9
a decision had not yet been made. On May 3, Deatras 10
returned the catalog; with Ahlers’s permission, the cover 11
was removed. 12
On March 21, 2008, Thompson intercepted a piece of mail 13
and turned it over to Deatras, who told Ahlers that it had 14
been given to his social worker. Ahlers never received the 15
item. 16
On April 28, Moe withheld an issue of Smithsonian 17
magazine and a mail-order catalog. In response to Ahlers’s 18
inquiry about the magazine in early May, Deatras told Ahlers 19
she had not yet had time to review it. On May 12, Moe 20
returned the magazine. 21
22

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7
Also on April 28, another patient informed Ahlers that 1
he had seen a package addressed to Ahlers. Ahlers went to 2
pick it up, but the package was not available. The next 3
day, Ahlers received the package and was told by Deatras 4
that she was holding pending review five catalogs and one 5
magazine. 6
On May 5, defendant Thompson withheld a Heartland mail- 7
order catalog and a catalog of DVDs. The Heartland catalog 8
had a photograph of a replica revolver, and the DVD catalog 9
had a photograph of Civil War soldiers with flintlock 10
rifles. When Ahlers objected, Thompson gave him the DVD 11
catalog, but withheld the Heartland catalog for review by a 12
parole officer. 13
On June 24, Center staff withheld several brochures 14
from the Chamber of Commerce of Klamath Falls, Oregon, which 15
contained pictures of children in bathing suits. The 16
brochures were not returned. 17
On July 11, an attendant told Ahlers that some of his 18
mail was being withheld for review; Ahlers never got it. On 19
July 21, two books were held for review. On July 22, 20
Thompson withheld brochures from the Medford, Oregon Chamber 21
of Commerce. Ahlers never received them. 22

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8
Dismissal of the Complaint. The district court 1
construed the complaint to raise allegations under the 2
Americans with Disabilities Act of 1990, 42 U.S.C. §§ 12112- 3
12117 (“ADA”), and 42 U.S.C. § § 1983, 1985, and 1986 for 4
violations of the First and Fourth Amendments. The court 5
concluded that Ahlers failed to state an ADA claim because 6
he had not alleged an impairment that “substantially limits 7
one or more major life activities,” 42 U.S.C. § 12102(1)(A); 8
that he failed to state claims under § 1985 and § 1986 9
because he had not alleged that he was deprived of rights on 10
account of his membership in a protected class; that he 11
failed to state a Fourth Amendment claim because the 12
“Defendants seized [his] property to promote the safety and 13
welfare of the [Center’s] staff and patients”; and that he 14
failed to state a First Amendment claim because “the 15
Defendants had a legitimate penological interest in 16
monitoring, screening, and withholding [his] property.” 17
Ahlers v. Rabinowitz, No. 08 Civ. 11091 (PAC)(KNF), 2010 WL 18
808773 (S.D.N.Y. Mar. 9, 2010). 19
Ahlers appeals the dismissal of his § 1983 claims for 20
First and Fourth Amendment violations and argues that the 21
22

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2 Ahlers does not appeal the district court’s
dismissal of his ADA, § 1985, and § 1986 claims. Issues
related to Ahlers’s civil commitment were litigated in
several separate actions, and we do not revisit them here.
See, e.g., Ahlers v. Spitzer, No. 09 Civ. 10006(SAS), 2010
WL 2545962 (S.D.N.Y. June 24, 2010), aff’d, 432 F. App’x 42
(2d Cir. Sept. 27, 2011); Ahlers v. Boruch, No. 04 CV 1747
(JG), 2007 WL 2042794 (E.D.N.Y. July 16, 2007).
9
district court failed to consider his procedural due process 1
claim.2
2
DISCUSSION 3
“We review de novo a district court’s dismissal of a 4
complaint pursuant to Rule 12(b)(6), construing the 5
complaint liberally, accepting all factual allegations in 6
the complaint as true, and drawing all reasonable inferences 7
in the plaintiff’s favor.” Chambers v. Time Warner, Inc., 8
282 F.3d 147, 152 (2d Cir. 2002). 9
“To survive a motion to dismiss, a complaint must 10
contain sufficient factual matter, accepted as true, to 11
‘state a claim to relief that is plausible on its 12
face.’ . . . The plausibility standard is not akin to a 13
‘probability requirement,’ but it asks for more than a sheer 14
possibility that a defendant has acted unlawfully.” 15
Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 16
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 17
556, 570 (2007)). 18

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3 Ahlers litigated this case pro se. When Ahlers
appealed the judgment of the district court, he petitioned
this Court to appoint counsel, which we did on October 13,
2010. We thank appointed counsel for their dedicated and
skillful advocacy in this matter.
10
“A document filed pro se is ‘to be liberally 1
construed,’ and ‘a pro se complaint, however inartfully 2
pleaded, must be held to less stringent standards than 3
formal pleadings drafted by lawyers.’” Erickson v. Pardus, 4
551 U.S. 89, 94 (2007) (citation omitted) (quoting Estelle 5
v. Gamble, 429 U.S. 97, 106 (1976)). “This is particularly 6
so when the pro se plaintiff alleges that h[is] civil rights 7
have been violated.” Sealed Plaintiff v. Sealed Defendant, 8
537 F.3d 185, 191 (2d Cir. 2008). 3
9
“In order to state a cause of action under 42 U.S.C. 10
§ 1983, a plaintiff must allege that some person acting 11
under color of state law deprived him of a federal right.” 12
Washington v. James, 782 F.2d 1134, 1138 (2d Cir. 1986). In 13
sum, Ahlers has not pleaded sufficient facts to support a 14
claim that the seizure and withholding of his CDs, DVDs and 15
mail deprived him of First and Fourth Amendment rights, as 16
incorporated through the Fourteenth Amendment, or of his 17
right under the Fourteenth Amendment to procedural due 18
process. 19

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11
I 1
To determine the substantive rights of a person 2
involuntarily committed to a state institution, the 3
interests of the individual are balanced against the 4
interests of the state. Youngberg v. Romeo, 457 U.S. 307, 5
320 (1982); see Buthy v. Comm’r of the Office of Mental 6
Health, 818 F.2d 1046, 1050 (2d Cir. 1987) (balancing to 7
determine the due process rights of persons committed after 8
acquittal by reason of insanity); United States v. Cohen, 9
796 F.2d 20, 23-24 (2d Cir. 1986) (balancing to determine 10
the Fourth Amendment rights of pretrial detainees). We have 11
not previously undertaken to perform that analysis with 12
regard to the Fourth Amendment right of civilly committed 13
persons to be free from unreasonable searches and seizures. 14
In a prison or institution housing pretrial detainees, 15
the “essential” state interests include “maintaining 16
institutional security and preserving internal order.” Bell 17
v. Wolfish, 441 U.S. 520, 546 (1979). “[O]fficials must be 18
free to take appropriate action to ensure the safety of 19
inmates and . . . personnel and to prevent escape or 20
unauthorized entry.” Id. at 547. 21
22

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12
On the other hand, “[p]ersons who have been 1
involuntarily committed are entitled to more considerate 2
treatment and conditions of confinement than criminals whose 3
conditions of confinement are designed to punish.” 4
Youngberg, 457 U.S. at 321-22. However, the state’s 5
interest in maintaining order and security is not punitive 6
in purpose or character, and remains valid in institutions 7
of civil commitment. See Aiken v. Nixon, 236 F. Supp. 2d 8
211, 232 (N.D.N.Y. 2002) (noting the “societal interest in 9
protecting the health, safety, and welfare of the patients 10
and staff” in a state psychiatric center); see also Bell, 11
441 U.S. at 540 (“The Government . . . has legitimate 12
interests that stem from its need to manage the facility in 13
which the individual is detained [pretrial].”). 14
The state also has an interest in treating the civilly 15
committed individual. “[T]he dual goals of involuntary 16
commitment [are] to provide care and treatment to those 17
unable to care for themselves and to protect the individual 18
and society from those who pose a danger to themselves and 19
others because of mental illness.” Goetz v. Crosson, 967 20
F.2d 29, 34 (2d Cir. 1992); see also McKune v. Lile, 536 21
U.S. 24, 33 (2002) (“States . . . have a vital interest in 22
rehabilitating convicted sex offenders.”). 23

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4 Ahlers does not challenge the search of his room--
only the seizure of his property--so we need not determine
whether he had a privacy interest. Cf. Hudson v. Palmer,
468 U.S. 517, 522-30 (1984) (holding prisoners do not have a
privacy interest in their cells).
13
The reasonableness of the seizure in this case depends 1
on a balance of interests: the state’s interests in order, 2
security, and treatment, and Ahlers’s property interest in 3
his discs.4 In striking the appropriate balance, decisions 4
made by the Defendants are entitled to a “‘presumption of 5
correctness.’” Buthy, 818 F.2d at 1050 (quoting Youngberg, 6
457 U.S. at 324); see also Youngberg, 457 U.S. at 323 n.30, 7
324-25 (“The administrators, and particularly professional 8
personnel [i.e., persons competent by education, training or 9
experience], should not be required to make each decision in 10
the shadow of an action for damages.”). 11
Ahlers does not claim entitlement to possess sexually 12
explicit media; his allegation is that none of the discs is 13
sexually explicit. But the Defendants are not bound to 14
accept his characterizations or assurances. It was 15
therefore not unreasonable to seize the discs to look for 16
prohibited material. The fact that the Center allowed 17
Ahlers to acquire the discs did not diminish its interest in 18
ensuring that they were appropriate. 19
20

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14
Ahlers challenges the motivations of the Defendants in 1
seizing his property and the length of the seizure. But 2
“the subjective motivations of the individual officers . . . 3
has no bearing on whether a particular seizure is 4
‘unreasonable’ under the Fourth Amendment,” Graham v. 5
Connor, 490 U.S. 386, 397 (1989), and where, as here, “an 6
initial seizure of property was reasonable, defendants’ 7
failure to return the items does not, by itself, state a 8
separate Fourth Amendment claim of unreasonable seizure,” 9
Shaul v. Cherry Valley-Springfield Cent. Sch. Dist., 363 10
F.3d 177, 187 (2d Cir. 2004) . “To the extent the 11
Constitution affords . . . any right with respect to a 12
government agency’s retention of lawfully seized property, 13
it would appear to be procedural due process.” Id. 14
15
II 16
In alleging a violation of his procedural due process 17
rights, a plaintiff must plead facts sufficient to give rise 18
to a claim that he was deprived of his property without 19
“constitutionally adequate pre- or post-deprivation 20
process.” N.Y. State Nat’l Org. for Women v. Pataki, 261 21
F.3d 156, 163 (2d Cir. 2001). A court must balance three 22

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15
factors in determining what process is due: 1
(1) “the private interest that will be affected by the 2
official action”; (2) “the risk of an erroneous 3
deprivation of such interest through the procedures 4
used, and the probable value, if any, of additional or 5
substitute procedural safeguards”; and (3) “the 6
Government’s interest, including the function involved 7
and the fiscal and administrative burdens that the 8
additional or substitute procedural requirement would 9
entail.” 10
McMenemy v. City of Rochester, 241 F.3d 279, 288 (2d Cir. 11
2001) (quoting Mathews v. Eldridge, 424 U.S. 319, 335 12
(1976)). 13
Ahlers’s allegations are insufficient to support a 14
claim that the Center’s pre-deprivation procedures were 15
constitutionally inadequate. 16
Ahlers alleges that his discs were seized without prior 17
notice. Pretrial detainees are not entitled to notice 18
before a search of their cells. See Block v. Rutherford, 19
468 U.S. 576, 590, 591 n.12 (1984). The private interest 20
may be greater for civilly committed persons, see Youngberg, 21
457 U.S. at 321-22; but the state’s interest in seizing 22

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16
contraband is no less, and the self-defeating effect of 1
advance notice would be the same. A random search “‘allows 2
. . . flexibility and prevents inmates from anticipating, 3
and thereby thwarting, a search for contraband.’” Hudson, 4
468 U.S. at 529 (quoting Marrero v. Commonwealth, 284 S.E.2d 5
809, 811 (Va. 1981)). 6
Ahlers complains that at the time of the seizure, the 7
Center staff did not tell him what they were screening for 8
and gave him no receipt. The state’s interest in quick and 9
efficient searches militates against requiring that a 10
detailed explanation or a written receipt be given at the 11
time of seizure. Cf. Block, 468 U.S. at 589-91 (holding 12
searches of pretrial detainees’ cells are constitutional 13
even when the detainees are absent during the searches). 14
After the seizure, Ahlers was given a receipt, and informed 15
of the reason for the screening. Ahlers alleges that the 16
staff used different terms to describe the prohibitions-- 17
explicit sexuality, pornography, nudity, clinically 18
inappropriate material--but each term had similar import. 19
Ahlers alleges that the seizure was unguided by any 20
“written facility policy” or “written authorization.” In 21
any context, “[a] requirement that . . . random searches be 22

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17
conducted pursuant to an established plan would seriously 1
undermine the effectiveness of this [measure].” Hudson, 468 2
U.S. at 529. In the therapeutic context, where “[a] single 3
professional may have to make decisions with respect to a 4
number of residents with widely varying needs and problems 5
in the course of a normal day,” Youngberg, 457 U.S. at 324, 6
it is particularly hard to catalog contraband. Disorders 7
differ; treatments are individual and subject to change; and 8
deviant interests will render otherwise-benign images 9
clinically inappropriate. Accordingly, the state’s interest 10
in the staff’s ability to effectively perform their jobs 11
outweighs the value of any additional protection to Ahlers’s 12
property interests that would result from a written policy 13
or formula. 14
Ahlers protests that his property was held for an 15
unreasonably long period. But vetting the CDs and DVDs 16
presumably entails real-time review, conducted by staff with 17
other responsibilities as well. Considering that nearly 250 18
discs were seized from Ahlers alone, that discs were seized 19
from other patients as well, and that the process is not 20
necessarily of the first priority within the institution, 21
the months taken to complete the work does not suggest that 22

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5 It is unclear how long Ahlers was deprived of the
discs. The complaint indicates that of the 163 DVDs and 86
CDs that were seized, 14 DVDs were permanently confiscated,
and 61 DVDs were returned. The complaint does not indicate
what happened to the CDs or to the other 88 DVDs.
18
the procedures or policies were constitutionally 1
inadequate.5
2
Ahlers alleges that the 14 DVDs that were permanently 3
confiscated are not sexually explicit. But the Center may 4
consider that there is a broader category of material that 5
is clinically inappropriate without presenting itself as 6
sexual. In any event, Ahlers’s disagreement with the 7
Defendants’ decision is insufficient to state a claim that 8
the state’s decision-making procedures were inadequate. 9
Ahlers recites a list of encounters with staff, 10
evidently to show that he was afforded inadequate post- 11
deprivation procedures. Thus he alleges that two weeks 12
after the seizure, he was “called into a meeting” with his 13
parole officer and Deatras, Thompson, and Moe; and that 14
approximately five weeks after the seizure, he “was called 15
into a meeting” with the Center’s Deputy Director. The 16
complaint does not make clear whether the meetings were 17
opportunities to challenge the deprivation, or whether they 18
were therapeutic, or both. Similarly, the complaint does 19

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6 The government has not argued for the applicability
of Hellenic Am. Neighborhood Action Comm. v. City of N.Y.,
101 F.3d 877 (2d Cir. 1996), so we need not address it.
19
not make clear whether Ahlers’s meeting with a lawyer from 1
“Mental Health Services” and the letter Ahlers sent to 2
Rabinowitz were part of a formal or informal appeals 3
procedure, or afforded that opportunity in effect. Because 4
Ahlers has not alleged whether formal post-deprivation 5
procedures were available to him, he has not stated a claim 6
that they were insufficient. See Marino v. Ameruso, 837 7
F.2d 45, 47 (2d Cir. 1988) (“Absent a showing of inadequate 8
state procedures [the plaintiff’s] claim must fail.”). 6
9
10
III 11
This Circuit has not articulated the standard by which 12
to analyze censorship of mail in the civil commitment 13
context. “Restrictions on prisoners’ mail are justified 14
only if they ‘further[] one or more of the substantial 15
governmental interests of security, order, and 16
rehabilitation . . .[and] must be no greater than is 17
necessary or essential to the protection of the particular 18
governmental interest involved.’” Davis v. Goord, 320 F.3d 19
346, 351 (2d Cir. 2003) (alterations in original) (quoting 20

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20
Washington, 782 F.2d at 1139). With regard to legal mail, 1
“an isolated incident of mail tampering is usually 2
insufficient to establish a constitutional violation. 3
Rather, the inmate must show that prison officials 4
‘regularly and unjustifiably interfered with the incoming 5
legal mail.’” Id. (citations omitted) (quoting Cancel v. 6
Goord, No. 00 CIV 2042 LMM, 2001 WL 303713, at *6 (S.D.N.Y. 7
Mar. 29, 2001)). In the context of civil commitment, this 8
formula is easily adapted. A patient must show regular and 9
unjustifiable interference with incoming legal mail; the 10
actions of facility staff in restricting civilly committed 11
individuals’ access to legal mail are justified if they 12
advance or protect the state’s interest in security, order, 13
or treatment and the restrictions imposed are no greater 14
than necessary to advance the governmental interest 15
involved. 16
Interference with non-legal mail, as Ahlers claims, is 17
more readily justifiable than interference with so-called 18
legal mail. See id. at 351 (“In balancing the competing 19
interests implicated in restrictions on prison mail, courts 20
have consistently afforded greater protection to legal mail 21
than to non-legal mail . . . .”). We need not articulate 22

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7 This total does not include Ahlers’s allegation that
on May 5, Moe chose not to withhold a DVD catalog after
Ahlers objected.
21
the correct standard here, however, because Ahlers’s 1
complaint cannot support a claim that any alleged 2
“interference” with his non-legal mail was “regular[]” or 3
“unjustifiabl[e].” See id. 4
Broadly construed, the complaint alleges eleven 5
instances of interference, between March and July 2008. 7
6
Three times, the withheld items were returned: the GPO 7
catalog was returned within six weeks; the Smithsonian 8
magazine (after Ahlers consented to the removal of its 9
cover) was returned after two weeks; and the package 10
withheld on April 28 was returned the next day. Several 11
brief delays do not amount to a First Amendment violation. 12
See Rowe v. Shake, 196 F.3d 778, 780, 782 (7th Cir. 1999) 13
(holding an allegation that, over the course of three 14
months, eight items took more than fourteen days to reach a 15
prisoner was insufficient); Cancel v. Goord, No. 00 CIV. 16
2042 (LMM), 2002 WL 171698, at *3 (S.D.N.Y. Feb. 4, 2002) 17
(holding an allegation of seven delays, ranging from two to 18
six weeks, over the course of a year was insufficient). 19
20

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22
Ahlers alleges three instances involving mail that was 1
never returned, and an additional five instances in which he 2
leaves unspecified whether the seized mail was ever returned 3
to him. The brochures from Klamath Falls were withheld 4
because they contained images of children in bathing suits, 5
which staff deemed clinically inappropriate. Because of the 6
state’s interest in treating Ahlers’s sexual deviance, 7
Center staff had a justification for an embargo on these 8
images. See Yeldon v. Hogan, No. 9:08-CV-769 (NAM/RFT), 9
2010 WL 983819, at *9 (N.D.N.Y. Mar. 15, 2010) 10
(“Restrictions on incoming mail containing pictures of 11
minors [in an institution of civil commitment] where many 12
residents have committed sexual offenses against children is 13
a policy that is rationally related to legitimate government 14
interests.”). 15
The reasons for some of the other withholdings are 16
unclear. The complaint says very little about the 17
“publication” withheld on March 21, 2008, or the brochures 18
from Medford, or the material withheld on April 28, April 19
29, July 11 and July 21. 20
In any event, eleven instances over four months does 21
not in itself support an inference of regular interference. 22

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8 The complaint also fails to state Fourth Amendment
and procedural due process claims with regard to the
withholding of mail. Ahlers’s property interest in mail-
order catalogs and similar materials borders on de minimis.
See Buthy, 818 F.2d at 1050; see also Nickens v. White, 536
F.2d 802, 803 (8th Cir. 1976) (per curiam) (holding a
prisoner’s interest in a catalog was de minimis).
In any event, the state’s interest in preventing Ahlers
from obtaining clinically inappropriate images is strong,
and Ahlers’s interest in incoming commercial mail is
relatively weak. The Defendants’ seizure of such mail for
screening was not unreasonable. See United States v.
Felipe, 148 F.3d 101, 108 (2d Cir. 1998) (“[T]he
interception of a defendant’s prison correspondence does not
violate that individual’s First or Fourth Amendment rights
if prison officials had ‘good’ or ‘reasonable’ cause to
inspect the mail.”). Ahlers has not sufficiently alleged
that the Center’s procedures were constitutionally
inadequate because Ahlers has not alleged what (if any)
procedures were available. Cf. Procunier v. Martinez, 416
U.S. 396, 417 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401, 417 (1989) (“[T]he
decision to censor or withhold delivery of a particular
letter must be accompanied by minimum procedural
safeguards.”).
23
And the allegation that mail was withheld is insufficient to 1
support a claim that it was withheld unjustifiably.8
2
The foregoing analysis is directed to Ahlers’s 3
complaint that his mail was intercepted and withheld 4
arbitrarily, and that the Defendants’ actions were not 5
governed by any rule or policy. We therefore must proceed 6
on the assumption that no rule or policy exists. In so 7
doing, we recognize that the test for ascertaining the 8
constitutional validity of such a rule is established in 9

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24
Turner v. Safley, 482 U.S. 78 (1987). As we have explained: 1
In Turner, the Supreme Court instructed that 2
courts reviewing the validity of prison regulations 3
should apply several factors. First, “there must be a 4
valid, rational connection between the prison 5
regulation and the legitimate governmental interest put 6
forward to justify it.” Second, courts should assess 7
“whether there are alternative means of exercising the 8
right that remain open to prison inmates.” Third, 9
courts should consider “the impact accommodation of the 10
asserted constitutional right will have on guards and 11
other inmates, and on the allocation of prison 12
resources generally.” Finally, courts should consider 13
the challenged regulation in relation to proposed 14
alternatives. 15
Johnson v. Goord, 445 F.3d 532, 535 (2d Cir. 2006) 16
(citations omitted) (internal quotation marks omitted) 17
(quoting Turner, 482 U.S. at 89-90). These four 18
considerations amount to an overall test of reasonableness 19
that differs from the test applied here more in its 20
procedure than in its substantive outcome. See Turner, 482 21
U.S. at 89 (“[W]hen a prison regulation impinges on inmates’ 22

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25
constitutional rights, the regulation is valid if it is 1
reasonably related to legitimate penological 2
interests. . . . [S]everal factors are relevant in 3
determining the reasonableness of the regulation at 4
issue.”). 5
6
IV 7
We have for the first time undertaken a Fourth 8
Amendment balancing analysis with regard to the right of a 9
civilly committed person to be free from unreasonable 10
seizures. In other circumstances, that might justify a 11
remand for a pro se complainant to replead. See Gomez v. 12
USAA Fed. Sav. Bank, 171 F.3d 794, 795-96 (2d Cir. 1999) 13
(“[T]he court should not dismiss without granting leave to 14
amend at least once when a liberal reading of the complaint 15
gives any indication that a valid claim might be stated.”) 16
(internal quotation marks omitted). However, we are 17
satisfied that, in any event, “it was objectively reasonable 18
for [the Defendants] to believe their acts did not violate” 19
Ahlers’s Fourth Amendment rights , or his First Amendment or 20
procedural due process rights. See Weyant v. Okst, 101 F.3d 21
845, 857 (2d Cir. 1996). 22

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9 The complaint requests that the court “issue an
order, directing that defendants . . . be stayed and
prohibited from taking any action including . . . harassment
and bullying, relating to defendant[s’] actions complained
of in the instant proceeding.” Ahlers has since
relinquished this claim as moot because in 2009, he was
transferred from the Center to the Central New York
Psychiatric Center.
26
“The qualified immunity doctrine protects government 1
officials from suits seeking to impose personal liability 2
for money damages based on unsettled rights or on conduct 3
that was not objectively reasonable . . . .” Connell v. 4
Signoracci, 153 F.3d 74, 79 (2d Cir. 1998). The complaint 5
requests relief of “one thousand dollars ($1,000.00) per day 6
punitive damages” from the date Ahlers’s property was seized 7
until the date it “is returned to him intact.” This demand 8
for money damages might also be read as a prayer for 9
injunctive relief. However, Ahlers, though pro se, knew how 10
to plead a claim for injunctive relief, and did, albeit as 11
to a matter now moot. 9 More importantly, Ahlers’s brief, 12
filed by counsel, does not argue for an injunction. 13
Moreover, although the parties’ briefs argue back and forth 14
on the issue of qualified immunity, Ahlers does not contend 15
that his prayer for relief was anything but a claim for 16
money damages. “Issues not sufficiently argued in the 17
briefs are considered waived and normally will not be 18

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27
addressed on appeal.” Norton v. Sam’s Club, 145 F.3d 114, 1
117 (2d Cir. 1998). Accordingly, we construe the complaint 2
as a claim for money damages and conclude that the 3
Defendants are entitled to qualified immunity. 4
5
CONCLUSION 6
For the foregoing reasons, we affirm the judgment of 7
dismissal. 8

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