Lewis et al v. Phillips et al

Filing 237

OPINION entered by Judge Sue E. Myerscough on 9/17/2014. Defendant Brown's motions for extensions are denied, d/e 235 and 236 . The motions to voluntarily dismiss by Plaintiffs Diaz, Barrett, and Phillips are denied, d/e's 231 , 232 and 233 . Plaintiffs' motion for leave to file a supplemental summary judgment motion, d/e 157 is terminated. Defendants' supplemntal motions for summary judgment are granted, d/e 204 and 206 . All deadlines and settings on the Co urt's calendar are vacated. This case is TERMINATED, with the parties to bear their own costs. Any Plaintiff wishing to appeal this judgment must file a notice of appeal with this Court within 30 days of the entry of judgment. Fed. R. App. P. 4(a)(4). (MAS, ilcd)

E-FILED

Thursday, 18 September, 2014 10:22:56 AM
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.
Fifteen pro se Plaintiffs pursue First Amendment claims
arising from restrictions on their access to movies, video games,
video gaming systems and other electronic devices in the Rushville
Treatment and Detention Center. 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.
On March 28, 2014, the Court granted summary judgment to
Defendants on the claims arising from the restrictions on movies
and games, finding that those restrictions were rationally related to
legitimate safety, therapeutic, and staffing concerns. The Court
also concluded that no rational jury could find that those
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restrictions were implemented to retaliate for Plaintiffs’ exercise of
their First Amendment rights.
The Court left pending Plaintiffs’ challenge to the restrictions
on electronic devices, including video gaming systems, to afford
Plaintiffs more time for discovery to oppose the supplemental
information the Court had ordered from Defendants. Plaintiffs were
given an opportunity to file a supplemental response if they wished
(3/28/14 order), but they have not done so. Plaintiff Brown moves
for another extension of discovery on the grounds that Plaintiff
Michael Lewis has been appointed a guardian of his person, but the
Court cannot indefinitely delay a decision, and the guardian has not
sought an extension on behalf of Mr. Lewis. In any event, that Mr.
Lewis has been appointed a guardian does not affect the other
Plaintiffs’ ability to proceed. The Court will rely on Plaintiffs’
original response, and Plaintiffs’ relevant arguments in their
pleadings filed on November 6, 2013 (d/e’s 209, 210) and November
12, 2013 (d/e 212).
At issue is a prohibition on all video gaming systems except for
any Playstation 2 under warranty, and a prohibition on any
electronic device with a hard drive or internet capability. (Scott Aff.
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para. 16.) Gaming systems possessed when these prohibitions were
implemented are grandfathered in, provided the resident behaves.
A Playstation 2 under warranty may be sent out for repairs, but
once it breaks and is no longer under warranty, it cannot be
replaced.

(2013 Resident Handbook, p. 65.)

The Court recognized in its prior order that video games 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”). The
gaming devices are necessary in order to engage in that expression,
so a restriction on gaming devices also impinges on First
Amendment rights. Electronics with hard drives and internet
capability also touch on the First Amendment right to create and
receive expression.
For the reasons already explained in the Court’s 3/28/14
order, the Supreme Court’s Turner test applies to determine the
constitutionality of the prohibitions on electronics: Are the
prohibitions reasonably related to legitimate government interests?
Turner v. Safely, 482 U.S. 78, 89 (1987). Encompassed in that
analysis is the deference owed to Defendants in operating the
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facility. See Beard v. Banks, 548 U.S. 521, 529 (2006)(“[W]e must
distinguish between evidence of disputed facts and disputed
matters of professional judgment. In respect to the latter, our
inferences must accord deference to the views of prison
authorities.”)
Defendants assert that the prohibitions were implemented to
address valid security, therapeutic, and staffing concerns.
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."). They argue that
hard drives and internet connectivity would enable residents to
obtain, store, trade, and sell contraband such as pornography and
other counter-therapeutic materials, and to communicate
surreptitiously and improperly with other residents. According to
Defendants, gaming systems made after 2005 are akin to personal
computers, able to connect to the internet with little or no
additional equipment, able to store information, and able to
communicate with other electronic devices.

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Plaintiffs do not dispute that security, therapeutic and staffing
concerns are legitimate government concerns, nor do they dispute
that allowing them to access the internet would present those
concerns. Plaintiffs primarily argue impossibility—that they cannot
use the gaming systems to access the internet or to communicate
with other residents as Defendants fear. They contend that the
gaming systems provide no internet access because residents have
no access to an internet connection or to the equipment necessary
to gain that access. Further, Plaintiffs contend that hiding illicit
data on the systems is not possible because the hard drive is easily
searched. They also argue that they would not be able to
communicate surreptitiously because headphones are not allowed.
Defendants do not need to demonstrate that their fears will
inevitably be realized if gaming systems are allowed. They need
only establish a “valid, rational connection” between the restriction
and Defendants’ legitimate goals. The logical connection cannot be
“so remote as to render the policy arbitrary or irrational.” Turner v.
Safely, 482 U.S. 78, 90 (1987); Singer v. Raemisch 593 F.3d 529,
537 (7th Cir. 2010)(Defendants need only “‘demonstrate that [they]

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could rationally have seen a connection.’”)(quoting Wolf v. Ashcroft,
297 F.3d 305, 308 (3d Cir. 2002).
Defendants have met their burden. The gaming systems can
store and reproduce information, communicate with other gaming
systems, and access the internet by connecting through Wi-Fi radio
devices, wired Ethernet ports, or Universal Serial Bus ports that are
incorporated in the gaming device. (White Aff. para. 7.) Two
residents have already accomplished this, having accessed the
internet by using a gaming system to connect to a nearby private
home’s unsecured wireless connection. (White Aff. para. 9).
Rushville employees had to personally visit those living in the
private home in order to secure the home’s wireless connection.
According to Defendants, “the likelihood of a new, unsecured
wireless connection capable of providing internet access located
near the facility remains a constant concern.” (While Aff. para. 9.)
A resident could also establish an internet connection by
persuading a friend or family member to place an unsecured
wireless networking device near the facility or “simply park his or
her vehicle in the parking lot and broadcast[] a wireless signal.”
(Clayton Aff. para. 10.) Other alternatives include smuggling in the
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small part or parts needed to establish an internet connection or
fashioning a cable on one’s own with scavenged parts. (Clayton Aff.
paras. 8-9; White Aff. paras. 10-11.) “[A]t least one resident in the
facility has demonstrated himself resourceful enough to create a
personal computer with his gaming system and other electronic
devices in his room through the use of smuggled parts and items
scavenged from around the facility.” (White Aff. para. 14.) The
small parts needed to establish an internet connection could be
easily disguised as a USB flash storage device (which residents are
permitted to have to store legal and education materials). The
disguise would make it hard to find the contraband— security staff
would have to test each storage device separately. (White Aff. para.
11.) Further, if even one gaming system was able to connect to the
internet, other gaming systems could conceivably join in that
access. (White Aff. para. 12.)
The hard drive in the gaming systems presents a security
concern as well. Already, two residents were discovered to have
“been using the hardware and software contained within their
gaming systems to make, copy and distribute pornography to other
residents within the facility. The pornography was delivered to
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other residents’ USB flash storage devices, a device which a
resident may otherwise legitimately possess for the purpose of
storing legal and educational materials.” (Clayton Aff. para 12.)
In light of the above examples, Defendants’ prohibition on
gaming systems is clearly rationally related to legitimate, neutral
government objectives of maintaining security, fostering a
therapeutic environment, and efficiently allocating staff.
Defendants’ fears are not exaggerated nor is their response.
The second Turner factor--whether Plaintiffs have an
alternative means of exercising their right—does weigh in favor of
Plaintiffs, but that does not change the Court’s conclusion.
Defendants acknowledge that eventually the allowed gaming
systems (Playstation 2) will break down or be confiscated for various
reasons. (Clayton, para. 17.) At that point, no alternative means of
playing video games will exist. But while “[t]he absence of any
alternative . . . provides ‘some evidence that the regulations [a]re
unreasonable,’ . . . it is not ‘conclusive’ of the reasonableness of the
policy.” Beard, 548 U.S. at 532 (upholding ban on newspapers,
magazines, and photographs in restrictive prison unit, even though
prisoners in that unit had no alternative means of exercising
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right)(quoted cite omitted). Defendants are not required to “sacrifice
legitimate penological objectives” solely because no alternative
means exists to play video games. See O’Lone v. Estate of Shabass,
482 U.S. 342, 352 (1987)(inability of prisoners to exercise religion in
specific way did not render prison regulation unreasonable).
Plaintiffs have many other recreational opportunities---television,
radio, movies, books, and gym.
The remaining Turner factors weigh in Defendants’ favor.
Accommodating Plaintiffs’ desires for video gaming systems would
negatively impact the security of the Detention Center and the
efficient use of staff—the third Turner factor to consider. Security
staff would have to continually check the hard drive of each gaming
system for illicit material, conduct exhaustive searches for very
small computer parts and cables, and constantly monitor whether
any unsecured wireless networks were in the area. Even if the hard
drives were removed, the internet capabilities would remain. (White
Aff., para. 14.) As to the fourth and final Turner factor, Plaintiffs do
not identify any ready alternative that would address Defendants’
concerns while still allowing the gaming systems, nor does the
Court see any ready alternative. See Overton v. Bazzetta, 539 U.S.
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126, 136 (2003)( “Turner does not impose a least-restrictivealternative test, but asks instead whether the prisoner has pointed
to some obvious regulatory alternative that fully accommodates the
asserted right while not imposing more than a de minimis cost to
the valid penological goal.).
In short, Defendants’ restrictions on electronics is reasonably
related to legitimate government interests. Therefore, summary
judgment is mandated for Defendants on the electronics claim.
Summary judgment is also mandated for Defendants on the
retaliation claim. A rational juror could not conclude that the
restrictions were implemented to retaliate against residents for
exercising their First Amendment rights. In any event, as the Court
concluded in its prior order, the retaliation claim cannot succeed as
a matter of law 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 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).
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IT IS THEREFORE ORDERED:
1. Defendant Brown’s motions for extensions are denied (235,
236).
2. The motions to voluntarily dismiss by Plaintiffs Diaz, Barrett,
and Phillips are denied (231, 232, 233.) As the Court ruled in
its 6/6/14 text order, Defendants are entitled to ruling on the
merits of Plaintiffs’ claims.
3. Plaintiffs’ motion for leave to file a supplemental summary
judgment motion (157) was granted on 5/16/13 to the extent
Plaintiffs sought to have the motion considered. Motion 157
was implicitly denied in the Court’s 3/28/14 order as to the
claims regarding video games and movies. This order denies
motion 157 as to the remainder of Plaintiff’s claims. The clerk
is directed to terminate motion 157.
4. Defendants’ supplemental motions for summary judgment are
granted (204, 206).1 The clerk of the court is directed to enter
judgment in favor of Defendants and against Plaintiffs. This
case is terminated, with the parties to bear their own costs.
All deadlines and settings on the Court’s calendar are vacated.
1

Motion 204 does not show as pending on the docket, but the motion in fact is pending.

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5. Any Plaintiff wishing to appeal this judgment must file a
notice of appeal with this Court within 30 days of the entry of
judgment. Fed. R. App. P. 4(a)(4). A motion for leave to appeal
in forma pauperis should identify the issues Plaintiff will
present on appeal. See Fed. R. App. P. 24(a)(1)(c).
ENTER:

September 17, 2014

FOR THE COURT:

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

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