Lewis et al v. Phillips et al

Filing 220

OPINION entered by Judge Sue E. Myerscough on 3/28/2014. (MAS, ilcd)

E-FILED

Friday, 28 March, 2014 05:03:44 PM
Clerk, U.S. District Court, ILCD

IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
MICHAEL LEWIS, et al.,
Plaintiffs,
v.
LARRY PHILLIPS, et al.,
Defendants.

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No. 10-CV-3163

OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
Plaintiffs, proceeding pro se, are detained in the Rushville
Treatment and Detention Center pursuant to the Illinois Sexually
Violent Persons Act. They pursue First Amendment claims arising
from restrictions on their access to movies, video games, video
gaming systems and other electronic devices. A retaliation claim is
also pursued based on Plaintiffs' allegations that these restrictions
were put in place in order to retaliate against them for lawsuits.
Before the Court are the parties' motions for summary
judgment. At the summary judgment stage, evidence is viewed in
the light most favorable to the nonmovant, with material factual
disputes resolved in the nonmovant's favor. Anderson v. Liberty
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Lobby, Inc., 477 U.S. 242, 248 (1986). A genuine dispute of
material fact exists when a reasonable juror could find for the
nonmovant. Id.
In short, the Court concludes that the restrictions on movies
and video games are constitutional. Defendants' evidence
demonstrates that the restrictions are reasonably related to
legitimate safety, therapeutic, and staffing concerns.
As for the restrictions on video gaming systems and other
electronic devices, Plaintiffs’ request for more time to conduct
discovery on this claim will be granted. The Court had ordered
Defendants to supplement their motion regarding this claim, and
Plaintiffs should be given a chance to obtain evidence to oppose the
supplemental information provided.
ANALYSIS
Plaintiffs are detained in the Rushville Treatment and
Detention Center pursuant to the Illinois Sexually Violent Persons
Act, 725 ILCS 207/1, et seq. The Act defines a sexually violent
person as a person found to be "convicted of a sexually violent
offense, . . .and who is dangerous because he or she suffers from a
mental disorder that makes it substantially probable that the
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person will engage in acts of sexual violence." 725 ILCS 207/5(f).
Once adjudicated as a sexually violent person, that person’s
detention is indefinite until a conditional release or discharge is
granted. 725 ILCS 207/60; 725 ILCS 207/65.
Plaintiffs’ access to movies and video games is restricted,
restrictions which have evolved since the inception of this lawsuit.
The first policy was a de facto ban on all movies rated R and NC-17
movies, M-rated video games and unrated movies and video games.1
The detainees could watch movies rated G, PG, PG-13, and could
play video games rated E, E10+, or T. The policy was then revised
to allow detainees to watch R-rated movies and MA-rated video
games, except for those on a prohibited list compiled by therapists.
This policy was later further revised to ban unrated movies, rented
movies with a rating higher than PG-13, and original movies from
pay movie channels such as Showtime, HBO, Starz, and Cinemax.
According to the website for the Motion Picture Association, an R rating requires anyone
under age 17 to be accompanied by a parent or guardian. An R rating is described as
"[c]ontains some adult material. Parents are urged to learn more about the film before taking
their young children with them." An NC-17 rating means that no one under 17 is admitted:
"clearly adult." www.mpaa.org/film ratings (last visited on March 28, 2014). According to the
website for the Entertainment Software Rating Board, T stands for Teen, and is described as
"content . . . generally suitable for ages 13 and up. May contain violence, suggestive themes,
crude humor, minimal blood, simulated gambling and/or infrequent use of strong language."
M stands for mature, which is described as "intense violence, blood and gore, sexual content
and/or strong language." There is also an A rating for video games, which stands for adults
only: "content suitable only for adults ages 18 and up. May include prolonged scenes of
intense violence, graphic sexual content and/or gambling with real currency."
www.esrb.org/ratings (last visited March 28, 2014).
1

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Video games and movies are forms of expression protected by
the First Amendment. See Brown v. Entertainment Merchants
Ass’n, 131 S.Ct. 2729, 2733 (2011)(“video games qualify for First
Amendment protection”); Young v. American Mini Theatres, Inc.,
427 U.S. 50, 59 (1976)(recognizing that ordinance affecting adult
movie theater affected First Amendment communication rights).
Plaintiffs’ receipt of that expression is also a First Amendment right.
Bd. of Educ., Island Trees Union Free School Dist. No. 26 v. Pico,
457 U.S. 853, 867 ([T]he right to receive ideas is a necessary
predicate to the recipient's meaningful exercise of his own" First
Amendment rights)(emphasis in original). However, as with all First
Amendment rights, Plaintiffs’ First Amendment rights must be
balanced against legitimate governmental concerns.
I. The applicable legal standard to the restrictions on movies
and video games is the Turner test: Are the restrictions
reasonably related to legitimate government interests?
Individuals detained under the Illinois Sexually Violent
Persons Act are treated like pretrial detainees for the purpose of
analyzing constitutional claims. See Brown v. Budz, 398 F.3d 904
(7th Cir. 2005)(failure to protect claim by sexually violent person);
Sain v. Wood, 512 F.3d 886, 893 (7th Cir. 2009)(conditions of
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confinement claim by sexually violent person). Like pretrial
detainees, the conditions of confinement for sexually violent
detainees cannot amount to punishment. Lane v. Williams, 689
F.3d 897 (7th Cir. 2012)("Commitment under the Act is civil and so
may be for purposes such as incapacitation and treatment, but not
punishment.").
Plaintiffs argue that they are different than pretrial detainees
because Plaintiffs’ detention is generally much longer than the
detention of the average pretrial detainee. See Bell v. Wolfish, 441
U.S. 520 (1979)(noting that nearly all the detainees in that case
were released within 60 days). True, the detention of a person
under the Illinois Sexually Violent Persons Act can be indefinite,
and this Court has cases filed by sexually violent detainees who
have been detained under the Act for more than a decade. See
Smego v. Aramark, 10-CV-3334 (C.D. Ill., 5/13/13 order, p. 4.)
However, while the length of the detention may be a relevant
factor in determining whether a restriction or condition is
constitutional, a legal test different from that applicable to pretrial
detainees does not need to be created.

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For example, in Smego v. Aramark, et al., 10-CV-3334, this
Court recently considered sexually violent detainees' lengthy
detention within the framework of a pretrial detainee analysis.
Plaintiffs in that case, all detained in the Rushville Treatment and
Detention Center, essentially allege that the food is so bad that they
cannot eat it. The pretrial detainee analysis was flexible enough in
that case to address the fact that Plaintiffs' detention had continued
long past the detention of most pretrial detainees. In other words,
the Court rejects Plaintiffs' argument that the legal analysis for
pretrial detainees does not apply to Plaintiffs' claims.
This Court has, in past cases dealing with First Amendment
rights of detainees at the Rushville Treatment and Detention
Center, applied Turner v. Safely, 482 U.S. 78, 89 (1987). See, e.g.,
Schloss v. Ashby, 11-CV-3337 (C.D. Ill); Lingle v. Ashby, 13-3017
(C.D. Ill).

Turner held that restrictions on a prisoner’s First

Amendment rights are constitutional if those restrictions are
"reasonably related to legitimate penological interest[s]." 482 U.S.
at 89. Turner addresses prisoners’ rights to marry and to
correspond with other inmates.

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Turner identified the following factors relevant to determining
whether a restriction is reasonably related to a legitimate
government interest: 1) whether the restrictions are rationally
connected to achieving the stated legitimate and neutral
governmental interests; 2) whether the detainees have alternate
ways to exercise their First Amendment rights; 3) whether and to
what extent accommodating Plaintiffs would adversely impact staff
and other detainees; and, 4) whether the restrictions are an
"exaggerated response," for example if “ready alternatives” for
achieving the same interests exist. Turner, 482 U.S. at 78-79;
Beard v. Banks, 548 U.S. 521, 529 (2006); Shaw v. Murphy, 532
U.S. 223 (2001)("Turner provides the test for evaluating prisoners'
First Amendment challenges, . . . ."). Restrictions that are
reasonably related to legitimate government concerns are
necessarily not considered punishment under the Due Process
Clause. See, e.g., Lingle v. Kibby, WL (7th Cir. 2013) (unpublished)
(“[A] condition of confinement may be imposed on a pretrial detainee
without violating the Due Process Clause if it is reasonably related
to a legitimate and non-punitive governmental goal.’” (quoting

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Antonelli v. Sheahan, 81 F.3d 1422, 1427-28 (7th Cir.
1996)(emphasis in Lingle)2.
The Seventh Circuit has not, in any published precedent of
which the Court is aware, directly ruled on whether Turner applies
to a First Amendment challenge by a person detained pursuant to
the Illinois Sexually Violent Persons Act. However, the Seventh
Circuit in Lane v. Williams, 689 F.3d 879, 884 (7th Cir. 2012), did
remark in dicta that "[b]ecause Turner tells courts to consider the
challenged regulation in relation to the government's legitimate
interests, it would not be too difficult to adapt its standard for
claims by civil detainees. To do so, courts would only have to
recognize the different legitimate interests that governments have
with regard to prisoners as compared with civil detainees." Lane
involved a First Amendment challenge regarding communication
between detainees at the Rushville Treatment and Detention
Facility. The Seventh Circuit Court of Appeals did not have to
decide whether Turner applied because the plaintiffs in Lane had

In Lingle, the Seventh Circuit reversed as premature this Court’s dismissal for failure to state
a claim of a challenge to the same video gaming ban at issue in this case. The video gaming
system and electronic device restrictions will be addressed in a separate order after Plaintiffs
are given additional discovery.
2

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failed to establish any infringement on their First Amendment
rights. 689 F.3d at 884.
This Court agrees with Lane's observation. The Turner factors
are broad enough to readily adapt from the prison setting to the
civil detainee setting. The Supreme Court and the Seventh Circuit
have already applied Turner, or an analysis similar to Turner, to
First Amendment challenges by pretrial detainees. See, e.g., Bell v.
Wolfish, 441 U.S. 520 (1979)(limiting pretrial detainees' access to
hardcover books was rationally related to security concerns;
alternative means existed for pretrial detainees to obtain books);
Block v. Rutherford, 468 U.S. 576 (1984)(restrictions on pretrial
detainees' contact visits was reasonably related to legitimate
governmental interest in security); Ortiz v. Downey, 561 F.3d 664,
669 (7th Cir. 2009)(applying Turner to religious practice challenge
by federal pretrial detainee); Antonelli v. Sheahan, 81 F.3d 1422 (7th
Cir. 1996)(remanding for determination whether pretrial detainee's
restrictions on reading material were justified); Jackson v. Elrod,
881 F.2d 441 (1989)(analyzing pretrial detainee's First Amendment
claim arising from hardcover book ban under Wolfish); Martin v.
Tyson, 845 F.2d 1451 (7th Cir. 1988)(upholding inspection of
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pretrial detainees’ personal mail outside presence because practice
served a legitimate purpose).
Some of these cases were decided before Turner, but the
analysis was substantively identical: Did the restrictions logically
serve a legitimate government interest? This same test has already
been applied to determine whether the treatment of a sexually
violent detainee amounts to punishment under the Due Process
Clause. See, e.g., Allison v. Snyder, 332 F.3d 1076, 1079 (7th Cir.
2003)(placing persons civilly detained under the Illinois Sexually
Dangerous Persons Act in prisons subject to prison rules is not
“punitive” if the restrictions advance legitimate goals such as
security, safety, and rehabilitation).
Plaintiffs argue that a “more considerate” standard than
Turner should apply to them, citing Youngberg v. Romeo, 457 U.S.
307, 322 (1982). Youngberg involved a mentally challenged
individual who had been involuntarily committed to the State’s
care. The Supreme Court in Youngberg recognized that "[p]ersons
who have been involuntarily committed are entitled to more
considerate treatment and conditions of confinement than criminals
whose conditions of confinement are designed to punish." 457 U.S.
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at 322. While Plaintiffs are not mentally challenged, Youngberg
applies to them as involuntarily committed civil detainees. Lane,
689 F.3d at 881. "Commitment under the [Sexually Violent Persons
Commitment] Act is civil and so may be for purposes such as
incapacitation and treatment, but not punishment." Id.
Plaintiffs are incorrect that Youngberg gives them more First
Amendment rights than Turner. Whether or not Youngberg applies,
the question is still whether the restrictions on Plaintiffs' First
Amendment rights are reasonably related to a legitimate
government interest. Youngberg is relevant to that analysis to the
extent the restrictions reflect a mental health treatment decision.
In Lane v. Williams, 689 F.3d 879 (7th Cir. 2012), the detainees
at the Rushville Treatment and Detention Center challenged
restrictions on the ability of detainees living on different units to
interact. The facility had justified the restriction on security
grounds; the therapists had taken no part in crafting the
restrictions. The detainees argued that the restrictions affected
their mental health, and, therefore, the restrictions could not be
implemented without the exercise of professional judgment by the
therapists. The Seventh Circuit rejected that argument, holding
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that Youngberg's professional judgment rule applied only to
treatment decisions, and that the decision to keep the units
separate had been a security decision.
Unlike Lane, in this case Youngberg is relevant because the
restrictions in this case are justified on therapeutic grounds as well
as on security grounds. Youngberg requires the therapists to
exercise their judgment within professionally acceptable bounds
when crafting the restrictions on movies and video games.
"[L]iability may be imposed only when the decision by the
professional is such a substantial departure from accepted
professional judgment, practice, or standards as to demonstrate
that the person responsible actually did not base the decision on
such a judgment." Youngberg, 457 U.S. at 323; Kansas v.
Hendricks, 521 U.S. 346 n.4 (1997)(We have explained that the
States enjoy wide latitude in developing treatment regimes [for
civilly committed persons].")(citing Youngberg).
To the extent the restrictions on movies and video games
reflect treatment decisions by clinical professionals, the Court must
keep Youngberg's deference in mind in determining whether the
restrictions are reasonably related to legitimate treatment goals and
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the therapeutic impact on other detainees that might result from
removing the restrictions. A similar deference is afforded the nonclinical administrators' decisions made based on security, safety,
and logistical concerns. See Beard v. Banks, 548 U.S. 521, 528
(2006)(“[C]ourts owe ‘substantial deference to the professional
judgment of prison administrators.’”)
II. The restrictions on movies and video games were and are
rationally related to legitimate safety, therapeutic, and staffing
concerns.
The first step in applying the Turner standard is to identify the
legitimate government interests at stake. Safety and security are
legitimate government interests in this setting. Thielman v. Leean,
282 F.3d 478, 483 (7th Cir. 2002)("facilities dealing with those who
have been involuntarily committed for sexual disorders are ‘volatile'
environments whose day-to-day operations cannot be managed
from on high."). Treating the detainees’ mental disorders and
maintaining a therapeutic environment for all detainees are also
legitimate government interests. Detainees at the facility are
constitutionally entitled to treatment for their mental disorder.
Lane, 689 F.3d at 882; Washington v. Harper, 494 U.S. 210, 225-26
(1990)("Where an inmate's mental disability is the root cause of the
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threat he poses to the inmate population, the State's interest in
decreasing the danger to others necessarily encompasses an
interest in providing him with medical treatment for his illness.")
Another legitimate governmental interest advanced by
Defendants is the efficient allocation of resources and staff.
Defendants' decision that therapists' time is better spent providing
treatment than watching movies and playing video games is a
decision on how to best allocate limited staff resources. See Beard
v. Banks, 548 U.S. 521, 529 (2006)("impact" factor of Turner
analysis includes impact on the ""allocation of prison resources
generally'")(citing Turner).
Having identified the legitimate government interests at stake,
the next step is to determine whether the restrictions are rationally
connected to achieving those interests. To that end, Defendants
offer the affidavits of Defendant Shan Jumper, the clinical director
at the Rushville Treatment and Detention Center, and Greg Scott,
the current Director of the facility.
In a similar case challenging the movie and video game
restrictions at the Rushville Treatment and Detention Center,
Smego v. Payne, 09-3244 (C.D. Ill.), Judge Harold A. Baker
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concluded in that case that the ban on R-rated movies and M-rated
video games was constitutional:
the decision to limit access based on ratings was
reasonably related to the facility’s interest in
rehabilitation and in limiting the financial and time
burden in processing media requests. An individual
approach, like the plaintiffs seek, was not a ready
alternative. The policy may have case a wide net, but
that does not make it unconstitutional. The fact that the
policy has since changed to allow R movies and games
except for those on a prohibited list, does not make the
prior policy unconstitutional. The court’s deference to
the administrators running the facility is broad enough to
encompass both approaches.
Id., 6/9/11 order. The Smego case was transferred to this Court in
September 2011, and this Court agreed with Judge Baker’s
conclusions. (8/21/12 order.) However, this Court granted a
motion to reconsider filed by three of the plaintiffs in the Smego
case because the plaintiffs had argued that they had not had a
sufficient opportunity to engage in discovery on the claim. Id.
Discovery was reopened, but then, the case was dismissed on
January 17, 2014, pursuant to the parties’ stipulation. Arguably,
then, this Court did not conclusively rule in the Smego case
whether the restrictions on movies and video games were

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constitutional because the case was ultimately dismissed by
stipulation.
In sum, the Court concludes, for the same reasons that Judge
Baker found the movie and video game restrictions constitutional in
Smego v. Payne, that the movie and video game restrictions at issue
in this case are constitutional.
Plaintiffs are correct that Judge Baker’s opinion does not bind
this Court, but his reasoning is persuasive. As already noted,
federal courts must afford “substantial deference” to those in charge
of running the Rushville facility and treating the detainees’ mental
disorders. See Beard v. Banks, 548 U.S. 521, 528 (2006)(“[C]ourts
owe ‘substantial deference to the professional judgment of prison
administrators.’”); Youngberg v. Romeo, 457 U.S. 307, 323
(1982)(decisions by professionals about mental health facility’s
operations afforded deference and violate the Constitution only if
professional judgment not exercised). The affidavits from Jumper
and Scott articulate legitimate security, safety, and therapeutic
goals which the restrictions are logically designed to achieve.
Defendant Jumper submits the same affidavit in this case that
he submitted in Judge Baker’s Smego v. Payne case, along with a
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supplementary affidavit addressing the changes in the policy over
time. According to Defendant Jumper, “access to media must not
be considered only as to the individual requesting it, but how the
request may affect the population of individuals who would come in
contact and trade such media with other residents.” (Jumper Aff.
para. 16.) Greg Scott, the current Director of the facility, echoes
this concern, averring that “prior incidents in this facility have
repeatedly shown that where one resident has access to contraband
or inappropriate materials, other residents will have access to the
material almost immediately.” (Scott Aff. para. 10.)
The restrictions were put in place, according to Jumper,
because of the “potentially harmful” content in “movies of higher
ratings (R and MA) . . . [which] tend to include more violence, illegal
activities, drug use, sexual deviance, sexual degradation, torture,
stalking, non-consensual sex, sexual fantasies, and the like.”
(Jumper Aff. para. 18.) Similarly, Jumper avers that “[v]ideo games
such as Fear 2, Resident Evil, and Metal Gear appear on their faces
to contain graphic violence which is not appropriate in a clinical
setting.” Director Greg Scott avers that “[i]t would be contrary to
the security goals of the facility to permit a resident to have
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uncontrolled access to movies and video games of his preference
containing graphic depictions of violence, sex, drug use, and
criminal culture when he is being detained and treated in an effort
to prevent and remediate the desire to engage in future criminal
conduct.” (Scott Aff. para. 12.) Defendants also contend that “the
primary treatment goal facilitated by the media policy is the
fostering of a therapeutic environment by limiting access to graphic
depictions of violence, sex, drug use, and criminal culture.”
Jumper acknowledges that some T-rated games and PG-13
rated movies also contain potentially harmful material, but he avers
that the restrictions were a practical compromise which allowed
some access to movies and games while attempting to limit at least
some harmful material. The simplicity of the restriction made it
easy to implement by the security staff and saved time for the
therapists, who had been deluged with requests for exceptions.
Jumper avers that he lacks the clinical staff necessary to conduct a
more individual determination of each movie and game requested
by detainees: “There is no one who is available to watch movies on
demand (in light of the numerous requests) to identify all of the
specific information and material that may or may not be harmful
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to a particular individual or individuals at the Rushville TDF.”
(Jumper Aff. paras. 19-20.) Jumper avers that in order to make an
individualized assessment of the content of video games, the clinical
staff would have to play the game through all of its levels, and even
then would not know the game’s entire content. (Jumper Aff. para.
45.) Similarly, Director Scott avers that the facility “lacks the
necessary resources . . . to implement individualized media policies
for individual detainees or groups of detainees. (Scott Aff. para. 9.)
Jumper canvassed other states’ approaches to this issue and
found a wide range of approaches, some more restrictive and some
less restrictive than the approach by the Rushville Treatment and
Detention Center. (Jumper Aff. paras. 27-36.) In Jumper’s opinion,
“the policies and procedures at the Rushville TDF in Illinois are very
similar to those in other states and are consistent with the goal of
achieving a safe environment from a therapeutic and security
standpoint.” (Jumper Aff. para. 36.)
Plaintiffs argue that no evidence supports Jumper’s
conclusion that higher rated movies and games contain more
objectionable material from a therapeutic-environment standpoint.
Plaintiffs assert that there is “no causative link between video
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games and violence or video games and rape or sexual attitudes . . .
.” (Pls.’ Resp. para. 45.) They challenge Defendants to point out
any research proving a connection between the banned media and
adverse therapeutic outcomes or security problems. They assert
that Defendant Jumper is not an expert and has not personally
treated any of them.
Defendants do not need to cite research studies to support
their conclusion that higher-rated media is likely to contain, in
general, more anti-therapeutic content than lower-rated media.
Turner held that restrictions on a prisoner’s First Amendment
rights are constitutional if those restrictions are "reasonably related
to legitimate penological interest[s]." 482 U.S. at 89. Defendants
also do not need research studies proving that their approach will
achieve a measurable improvement in the therapeutic environment.
Articulating some rational connection is enough. In Beard v.
Banks, 548 U.S. 521 (2006), the Supreme Court upheld restrictions
on newspaper and magazines to a certain prison population based
on the prison superintendent's affidavit and deposition; no outside
research studies were mentioned. The prison superintendent there
expressed in his affidavit his view that the restrictions served as
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incentives to encourage good behavior. The Supreme Court held
that the superintendent's views were sufficient to demonstrate a
rational connection between the restrictions and the legitimate goal
of encouraging good behavior. 548 U.S. at 531-32.
Like Beard, the Defendants here offer a rational explanation
for their restrictions: unfettered access to all movies and video
games would cause substantial security, safety, and therapeutic
problems. Their conclusion is rational based on the nature of the
facility and the nature of the range of mental disorders from which
the detainees suffer.
The Court does not doubt, nor do Defendants dispute, that
many approved movies and games contain the same kind of
objectionable material as the prohibited media. That does not make
the restrictions irrational. Mays v. Springborn, 575 F.3d 643, 649
(7th Cir.2009)( it "takes no great leap to understand the prison's
reasons for wanting an article about a prison riot and images of
gang signs" barred even though the prisoner "had access to other
writings and to television shows about prison riots").
Defendants admit that the restrictions are a practical attempt
to accommodate the detainees while limiting potentially harmful
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media in a way that is readily implemented. Reviewing each movie
and game is not possible given staffing limitations. Relying on the
ratings system is a bright-line, easy to enforce rule that logically
strives towards achieving a more therapeutic environment for all
detainees. Efficient use of limited resources is also a legitimate
government interest. Lane v. Williams, 689 F.3d 879 (7th Cir.
2012)(Many policies and practices at a facility like Rushville reflect
what the state can afford, what the site will allow, and what
security requires; . . . .")
Plaintiffs offer no readily available alternative to the
restrictions except to remove the restrictions entirely or to make an
individualized assessment of whether certain games and movies are
anti-therapeutic for a given detainee. Plaintiffs assert that no
problems existed before the restrictions were implemented, but they
offer no competent evidence to support that conclusion. In any
event, Defendants are not required to maintain the status quo.
Experimenting with changes designed to improve security and the
therapeutic environment fall within the deference afforded to those
running the facility. Lastly, Plaintiffs have alternatives to exercising
their First Amendment rights. Many movies and video games are
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still approved. See Singer v. Raemisch, 593 F.3d 529, 539 (7th Cir.
2010)(banning of fantasy role playing games was rationally related
to legitimate penological interests and prisoner had alternative
means of exercising right, such as possessing other reading
materials or playing allowable games).
The revisions to the original policy served to expand the movie
and video game choices for detainees, and are supported by the
same legitimate interests as the original ban. Plaintiffs do not
dispute that now they can possess many movies and games that
they could not possess before the revision. According to the record,
the current policy allows detainees to view R-rated movies and play
M-rated video games, except for those on a list developed by the
therapists. All movies must be rated by the Motion Picture
Association of America, unless the movie was released before 1968,
when the movie rating system was created. Rented movies with a
rating higher than PG-13 and any movies from pay channels such
as “Showtime, HBO, Starz, Cinemax . . . .” are prohibited. (Jumper
Second Aff. para. 35; Scott Aff. para. 7.) Unrated video games or
video games rated AO (ADULTS Only), Demo (demonstration
purposes), or RP (Rating Pending) are also prohibited. (Scott Aff.
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para. 8.) According to Dr. Jumper, the last three revisions were
implemented in response to some detainees’ attempt to violate the
spirit of the policy by ordering unrated foreign movies and unrated
cable shows which contained “inappropriate graphic sexual
situations and/or violence.” (Jumper Second Aff. para. 31.)
In sum, all the versions of the restrictions on movies and video
games at issue here pass constitutional muster. Other district
courts have reached the same conclusion involving similar
restrictions. See, e.g., Hedgespeth v. Bartow, 2010 WL 2990897
(W.D. Wis. 2010)(applying Turner and upholding restrictions on
access to electronics, CDs, DVDs, and video games by sexually
violent civilly committed persons); Marten v. Richards, 2010 WL
2650547 (W.D. Wash. 2010)("There is no clearly established
constitutional right to view R-rated materials [by persons civilly
committed as sexually violent predators](citing Jewell v. Gonzales,
420 F.Supp.2d 406, 438 (W.D. Pa. 2006)(upholding restriction on
inmates' access to unedited R-rated movies); Waterman v. Farmer,
183 F.3d 208 (3rd 1999)(upholding restriction on inmates' access to
"'sexually oriented and obscene materials'"); Hendrickson v. Nelson,
2006 WL 2334838 (E.D. Wis. 2006); Belton v. Singer, 2011 WL
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2690595 *12 (D.N.J. 2011) (unpublished) (dismissing at pleading
stage claim by sexually violent detainee challenging confiscation of
gaming consoles and other electronics).
In any event, even if the Court were to conclude that the
restrictions were or are unconstitutional, Defendants would be
entitled to qualified immunity to the extent they are sued for
damages. No party has pointed out, nor has the Court found, an
analogous case holding similar restrictions unconstitutional.
Plaintiffs’ challenge, therefore, could only survive with respect to
injunctive relief.
III. No rational jury could find that the restrictions on movies
and video games were implemented to retaliate against the
detainees for pursuing lawsuits or filing grievances.
Plaintiffs contend that the movie and game restrictions were
first put in place by Defendant Jumper’s predecessor, Raymond
Wood, and then continued by Defendant Jumper in retaliation for
various lawsuits. Even if Defendants were motivated in part by
retaliation, the retaliation claim cannot succeed because the
restrictions are reasonably related to legitimate government
interests. See Lingle v. Kibby, 2013 WL 1558545 (7th Cir. 2013)("We
have observed, albeit in dicta, that the question whether a ban on
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speech is rationally related to legitimate institutional goals is an
objective inquiry; the subjective motives of those who implement the
ban should not matter.")(citing Hammer v. Ashcroft, 570 F.3d 798,
802–03 (7th Cir.2009) (en banc). In any event, Plaintiffs present no
evidence that Defendant Jumper’s continuation of the restrictions,
or revision of restrictions, was in retaliation for lawsuits.
IT IS THEREFORE ORDERED:
1. The motions for summary judgment by Defendants’ Groot, et
al. and Kibby, et al., are granted as to the claims arising from
the restrictions on movies and video games (d/e’s 165, 182).
Said motions are denied as to the electronics policies
(including the ban on video gaming systems) in order to give
Plaintiffs an opportunity to conduct discovery on the
supplemental information provided by Defendants in response
to the Court’s order. The Court will rule on the electronic
device claims when the Court rules on the supplemental
motions for summary judgment.
2. Plaintiffs’ motion for discovery (d/e 209) is granted to the
extent Plaintiffs ask for time to conduct discovery on the

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supplemental information provided by Defendants in response
to the Court’s order.
3. Discovery is reopened on the electronic devices claims only,
which includes the claim about the restrictions on video
gaming systems. Discovery closes on this claim on May 31,
2014.
4. Plaintiff’s supplemental response on the electronics claim is
due June 30, 2014.
5. Defendants’ motion for leave to file documents under seal is
denied (d/e 207). Some of the purportedly confidential
information in the manuals appears to already have been filed
by Plaintiffs or already discussed in the affidavits provided by
Defendants. Defendants’ alternative request to strike the
documents is granted.
6. Plaintiff’s request to strike the testimony of Jason White and
James Clayton is denied (d/e 211). To the extent the
testimony of White or Clayton can be characterized as expert
testimony, the failure to disclose the testimony or make expert
disclosures is explained by the Court’s order directing
Defendants to provide the supplemental information.
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Additionally, Plaintiffs will not be prejudiced by the admission
of the testimony because Plaintiffs are being given an
opportunity to conduct discovery on the conclusions of Jason
White and James Clayton.
7. The clerk is directed to docket # 204 as a supplemental
motion for summary judgment by Defendants Kibby and
Phillips.
8. The clerk is directed to strike the documents filed under
seal (d/e 205).
ENTER:

March 28, 2014

FOR THE COURT:

s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE

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