MONAGHAN et al v. PONTE

Filing 76

MEMORANDUM OF DECISION denying 34 Motion for Summary Judgment; denying 44 Motion for Summary Judgment. By MAGISTRATE JUDGE JOHN C. NIVISON. (CWP)

UNITED STATES DISTRICT COURT
DISTRICT OF MAINE
AMANDA MONAGHAN,

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Plaintiff,
v.
JOSEPH FITZPATRICK,
Defendant

1:13-cv-00395-JCN

MEMORANDUM OF DECISION1
In this action, Plaintiff Amanda Monaghan challenges the constitutionality of a prison
policy maintained by the Maine Department of Corrections, which policy permits the Department
to bar all communication, including correspondence, between an inmate and the inmate’s former
domestic partner, if the Department concludes that it is appropriate based on certain criteria
administered by its Director of Victim Services, subject to review by the Department’s
Commissioner.
The matter is before the Court on cross-motions for summary judgment.

(Plaintiff’s

Motion for Summary Judgment, ECF No. 34; Defendant’s Motion for Summary Judgment, ECF
No. 44.) As explained below, after consideration of the parties’ factual statements and their
arguments, the Court denies both motions.

1

Pursuant to 28 U.S.C. § 636(c), the parties have consented to have United States Magistrate Judge John C. Nivison
conduct all proceedings in this case, including trial, and to order entry of judgment. Specifically, the parties consented
to Magistrate Judge Margaret Kravchuk and her successor. (Consent to Jurisdiction, ECF No. 13.)

BACKGROUND
Plaintiff filed suit on October 24, 2013. The operative pleading is Plaintiff’s Second
Amended Complaint, filed February 6, 2014 (ECF No. 19). The parties have entered the following
stipulation:
This case is a matter of great public interest. The alleged injuries in this case are
capable of repetition, yet may consistently evade court review because the terms of
many prison sentences are often shorter than the timeframes of federal court
litigation (including appeals). The State waives any defenses related to mootness.
(Stipulation, ECF No. 16.)
The No-Contact Policy2
Under ordinary circumstances, prisoners in the custody of the Maine Department of
Corrections are permitted visits from family and friends. (Pl.’s Statement of Material Facts
(PSMF) ¶ 161, ECF No. 35.) Department staff members supervise visits with prisoners. (Id. ¶
163.) Prisoner attacks on visitors are uncommon. (Id. ¶ 165.)
On May 20, 2013, the Maine Department of Corrections adopted revised policies on prison
visits and communications. In particular, the Department implemented as policy the directive that
“a prisoner who is convicted of or otherwise known to have committed a domestic violence offense
against a person” shall not be allowed to have contact with the victim through mail, telephone, or
visits “without prior approval of the Commissioner, or designee.” This policy is referred to
hereafter as the “No-Contact Policy” or “the Policy.” (Id. ¶ 1.)

The Court’s factual statement is derived from the parties’ Local Rule 56 filings. In most instances where the
Department has offered a statement purporting to articulate the reasons the Policy was implemented, and the concerns
it is meant to address, Plaintiff responded with an objection that the statement is conclusory, speculative, illogical, or
argumentative; Plaintiff thus denied the statement. An evidentiary objection, however, is not a valid basis for denying
a factual assertion. Statements not properly controverted are deemed admitted when supported by record citation. D.
Me. Loc. R. 56(f). Although the Court does not repeat herein numerous statements offered by the parties about
domestic violence and the characteristics of those who are the perpetrators and victims of domestic violence, the Court
recognizes that the serious, challenging problem of domestic violence is a central issue in the case.
2

2

The No-Contact Policy was established at the discretion of the Department. (Id. ¶ 7.)
When applied, the Policy prevents all contact, including contact by mail and telephone, between a
prisoner and an alleged victim of domestic violence. (Id. ¶ 8.) Prisoners and their former domestic
partners may request a waiver of the Policy. (Id. ¶ 51.) From the inception of the Policy, the
Department has denied most waiver requests.3 (Id. ¶ 9.) Where the Department has granted a full
or partial waiver, both the inmate and the victim requested the waiver. (DSMF ¶ 76.) Prior to the
adoption of the No-Contact Policy, the Department would attempt to block calls and mail if a
victim requested no contact, if a court order prohibited contact. (Id. ¶¶ 128-129.) With the NoContact Policy, the victim is not required to make the request, and the Department will prevent
contact even if the victim prefers contact. (Id. ¶ 130; DOS ¶¶ 125, 130.)
Shortly after implementing the Policy, the Department determined that it would offer
domestic violence programs to prisoners particularly in connection with the review of waiver
requests, as an incentive for prisoners to participate in the programs. (DSMF ¶ 26.) Initially, the
program was an eight-week program, which consisted of an introductory domestic violence
program offered in some jails by certified community providers.

After several months of

discussions with community providers, Tessa Mosher, the Director of Victim Services, arranged
for the implementation of the program at two facilities in late 2013. (DSMF ¶ 67.) In October
2013, Ms. Mosher sent an individual invitation to every prisoner who had applied for, but had not
received a waiver, including Robert Hart. (Id. ¶ 68.) In the letters of invitation, Ms. Mosher
informed the prisoners that upon completion of the program, the Department would reconsider,

3

As of May of 2014, less than one-quarter of all Department prisoners identified following the implementation of the
policy revision as domestic violence offenders had applied for and been denied waivers. (303 identified, 103 applied,
and 75 denied.) 75 prisoners were denied waivers from all six facilities out of approximately 2000 prisoners total
incarcerated with the DOC. (DSMF ¶ 58; see also DSMF ¶ 75.)

3

but not necessarily grant, a waiver request. 4 (Id. ¶¶ 68, 73.) The current program is a 26-week
program. 5 (Id. ¶¶ 70, 78.) The Department considers renewed waiver requests by prisoners who
have participated in 13 sessions. (Id. ¶ 78.)
When the Department was implementing the program, the Department’s Commissioner
(Joseph Ponte) received an e-mail from a unit manager within the Maine Department of
Corrections (Luke Monaghan), in which e-mail the unit manager who oversees a unit with 250
prisoners expressed the following concerns about the No-Contact Policy: how to identify victims,
how to know which telephone numbers to “block,” how to “track” related mail, whether to “grandfather” certain inmates, and how best to address certain “ethical and operational implications.”
(PSMF ¶¶ 23, 71-81, 172.)
The Department does not maintain written guidelines or standards that govern the
Department’s consideration of a waiver request. (PSMF ¶ 10.) However, Ms. Mosher developed
a set of criteria that she applies, some of which she communicates to waiver applicants. (DOS ¶
10.)
The primary criteria include the nature of the domestic violence and related crimes,
looking at the seriousness, whether they are repeated and/or recent, and whether
children were present; compliance with any court-ordered conditions of no-contact
and participation in a certified batterer intervention program; the “health” of the
relationship between the prisoner and the victim; compliance with the policy while
awaiting the waiver decision; prisoner disciplinary and behavioral issues;
participation in programming, including, if applicable, participation in a facility
domestic violence program (not applicable in Hart’s case at the time as these
programs had not yet been instituted); length of incarceration; and content of the
request letters. Other factors might be considered depending on the specifics of the
individual case.

4

In fact, completion of the program has not resulted in a waiver for many of the program participants. (DSMF ¶ 77.)

5

The program is currently called the Family Violence Education Program and has been implemented in all of the
Department’s adult facilities. (DSMF ¶ 72.) Inmates who have been denied waivers are given priority access to the
program. (Id. ¶ 71.)
4

(DSMF ¶ 111.)
Robert James Hart
Plaintiff is a former domestic partner of Robert James Hart.6 (PSMF ¶ 12.) Plaintiff is not
incarcerated. (Id. ¶ 23.) Mr. Hart has been incarcerated at the Maine State Prison in Warren,
Maine. (Id. ¶ 15.) Mr. Hart’s incarceration is the result of an August 1, 2013, order revoking his
probation and directing that he serve 18 months of a suspended sentence. (ECF No. 47-1, PageID
# 717.)
Plaintiff has a child with Mr. Hart, and another child whom she considers to be Mr. Hart’s
step-child. (PSMF ¶¶ 13-14.) The Department refuses to permit Plaintiff to visit Mr. Hart at the
prison and has denied visitation between the two from the beginning of Mr. Hart’s term of
incarceration. (Id. ¶¶ 18-19.) With the exception of a brief call at the start of Mr. Hart’s
incarceration, the Department has refused all communication as well, including any contact by
mail or telephone. (Id. ¶ 20.) Although the Department asserts that another ground has arisen to
justify the no-contact decision, the No-Contact Policy is an independent ground upon which the
Department has denied all contact between Plaintiff and Mr. Hart. (Id. ¶¶ 21, 46; Def.’s Opposing
Statement (DOS) ¶¶ 21, 46, ECF No. 46.)
Mr. Hart has never been convicted of any offense involving domestic violence against
Plaintiff. (PSMF ¶ 41.) Mr. Hart’s release from prison will not be conditioned on any restrictions
regarding visitation or contact with Plaintiff. (Id. ¶ 42.) Mr. Hart is not incarcerated for a domestic
violence conviction. (Id. ¶ 43.) Mr. Hart has no outstanding or pending charges against him for

6

Plaintiff states that she is engaged to be married to Mr. Hart and that they are in a loving and mutually-supportive
relationship. (See, e.g., PSMF ¶¶ 12, 24.) Defendant denies such statements and supports its denials with information
related to the nature of communications Plaintiff and Mr. Hart had prior to the Department’s application of the NoContact Policy to prevent any further communication. The Court concludes that the nature and quality of Plaintiff’s
relationship with Mr. Hart cannot be characterized as undisputed facts. Similarly, the Court concludes that it cannot
characterize the desires of Plaintiff’s children as undisputed facts based on Defendant’s denials and qualifications.
5

domestic violence. (Id. ¶ 44.) No court order, condition of probation, or protective order currently
precludes Mr. Hart from visiting or having contact with Plaintiff. (Id. ¶ 45.)
The Policy As-Applied to Plaintiff and Mr. Hart
By letter dated August 19, 2013, Mr. Hart requested a waiver of the policy in order to
communicate with his “fiancé, Amanda Monaghan.” (PSMF ¶ 63; Aug. 19, 2013, Letter of Robert
Hart to Tessa Mosher; ECF No. 35-3, PageID # 320.) In his waiver request, Mr. Hart stated that
he had never been convicted of domestic crimes against Ms. Monaghan, had no domestic violence
charges involving Ms. Monaghan pending, and was not subject to a court order that prohibited
contact. (PSMF ¶ 64.) Mr. Hart also wrote: “I would like to inform you that Ms. Monaghan and
I have a son together and he turns two next month. Amanda has fought vigorously to maintain
contact with me and hopes to continue to do so. . . . I would also stress the fact that Amanda is the
only person capable of bringing our children into the facility to see me.” (Id. ¶ 65.)
On or about August 22, 2013, Plaintiff wrote to the Department and requested that she and
her children be given permission to contact her fiancée, Mr. Hart. (Id. ¶¶ 47-48; Aug. 22, 2013,
Letter of Amanda Monaghan to Tessa Mosher, ECF No. 19-1.) On August 23, 2013, the
Department, through its Director of Victim Services, Tessa Mosher, denied Plaintiff’s request.
Ms. Mosher explained that the Department’s decision was based on the fact that Mr. Hart
committed a domestic violence crime against her, although he was not convicted of the offense.
Ms. Mosher otherwise stated that Plaintiff’s children could visit Mr. Hart in the company of
another adult, provided such contact was not prohibited by court order.7 (PSMF ¶¶ 49-50; DOS ¶
49; Aug. 23, 2013, Letter of Tessa Mosher to Amanda Monaghan, ECF No. 19-2.) Ms. Mosher,

7

The Department will allow a victim to bring a child to the facility, but another adult must accompany the child into
the facility for a visit. (DSMF ¶ 90.)
6

therefore, sent Mr. Hart a letter denying his request for a waiver.8 (PSMF ¶¶ 66-67; Aug. 23, 2013,
Letter of Tessa Mosher to Robert Hart, ECF No. 35-4, PageID # 325.)
At approximately the same time that she wrote to Ms. Mosher, Plaintiff wrote to former
Commissioner Joseph Ponte requesting contact. (PSMF ¶¶ 57-58; Aug. 22, 2013, Letter of
Amanda Monaghan to Joseph Ponte, ECF No. 19-3.) Additionally, on September 30, 2013,
counsel for Plaintiff wrote to counsel for the Commissioner, requesting that Plaintiff be granted a
waiver under the No-Contact Policy. (PSMF ¶¶ 60-61; Sept. 30, 2013, Letter of David Soley to
Diane Sleek, ECF No. 19-4.) On December 7, 2013, Mr. Hart sent a letter to Commissioner Ponte
complaining of Ms. Mosher’s decisions to deny contact, and reasserting his request for a waiver.
(PSMF ¶ 68; Dec. 7, 2013, Letter of Robert Hart to Joseph Ponte, ECF No. 35-4, PageID # 377.)
Mr. Ponte denied the request for waiver by letter dated December 11, 2013. (PSMF ¶ 69; Dec. 11,
2013, Letter of Joseph Ponte to Robert Hart, ECF No. 35-4, PageID # 358.) Following a review
of the file, Commissioner Ponte also upheld Ms. Mosher’s decision. (DSMF ¶ 129.) Mr. Hart
declined the offer to participate in either the initial, eight-week domestic violence program, or the
subsequent, 26-week program offered at the beginning of 2014. (Id. ¶ 135.)
In late 2013, on suspicion that Plaintiff was involved in drug trafficking within the prison,
the Department began to monitor actively Mr. Hart’s phone calls. (DSMF ¶ 153.) Some recorded
calls involved contact with Plaintiff. The Department maintains that some of the calls reflect that
Plaintiff was involved in Mr. Hart’s attempt to secure drugs while in prison.9 (Id. ¶¶ 154-170.)

8

Ms. Mosher found that Mr. Hart engaged in one or more acts of domestic violence against Plaintiff even though he
was not convicted on a charge of domestic violence, and she denied the waiver request on that basis. (PSMF ¶ 159;
DSMF ¶¶ 99.) She based her decision primarily on dismissed charges in an indictment and probable cause statements
offered by officers in support of probation revocation proceedings and domestic violence investigations, some of
which proceedings and investigation involved another woman. (E.g., DSMF ¶¶ 100, 104-105, 123.) Ms. Mosher’s
letter decision denying a waiver does not explain the reason for the denial. (PSMF ¶ 160.)
9

The Department has filed a disk that contains the recordings of the call.
7

The Department has prohibited any visit to the Prison by Plaintiff on this independent basis. (Id.
¶ 171.) The Department also cites certain statements made by Plaintiff and Mr. Hart as evidence
that the relationship between Plaintiff and Mr. Hart is abusive and unhealthy and that Mr. Hart has
no interest in the welfare of the children. (Id. ¶¶ 176-182.)
Purpose of the Policy
In the Department’s view, the No-Contact Policy is designed to address the problem of
domestic violence. (PSMF ¶¶ 131-133.) The Department considers preventing domestic violence
to be a penological objective.10 (DOS ¶ 132.) The Policy is also designed to protect victims.
(PSMF ¶ 134.) The Department believes that the Policy, in combination with in-facility services
including domestic violence counseling, helps to remediate domestic violence.11 (DOS ¶ 137.)
The primary purpose of the Policy is not prison security. (PSMF ¶ 138.) The Policy is applied to
prisoners who have been convicted of domestic violence and to those who have not been so
convicted.12 (Id. ¶ 140.) Without a waiver, a prisoner can have no contact even for children and
financial matters. (Id. ¶¶ 141, 146-147.)

10

If this matter proceeds to trial, Mr. Ponte can be expected to testify as follows:
There are many objectives to be achieved by a correctional system, some of them overlapping. One is
to protect the security of the institutions. Another is to not let prisoners continue in the behaviors that
led to their incarceration. Another is to protect the safety of the public, including the victims of crimes.
Another is to rehabilitate prisoners. While these are all social objectives in the sense that they benefit
society as whole, they are also penological objectives.
(DSMF ¶ 8.) Also, Ms. Mosher can be expected to testify that the Policy was an effort to obtain consistency, to assist
victims in breaking free from controlling relationships, to protect children, and to help rehabilitate offenders. (Id. ¶
46.)
Mr. Ponte states that there is a security connection insofar as “prisoners who are domestic violence offenders [and]
are able to continue their abusive and controlling behavior in the prison setting” are not engaged in “pro-social
behavior” and “pro-social behavior … leads to fewer conflicts among prisoners and between prisoners.” (DSMF ¶
16.) Also, according to Ponte, victims of domestic violence sometimes are easily manipulated by their abuser and
“are more likely to be involved with rules violations, [such as] the bringing of contraband into the facilities.” (Id. ¶
17.)
11

12

Mr. Ponte states that he did not think the No-Contact Policy should be limited to cases involving domestic violence
convictions because many other victims, due to the controlling nature of their partner, are not in a good position to
make a contact decision and still want contact. (Id. ¶ 20.)

8

Typically, inmates do not enter into the Department’s facilities unless they will be
remaining for at least nine months and a day. (Id. ¶ 148.) The Policy imposes administrative
burdens associated with identification of and management of communications involving victims.
(Id. ¶¶ 150-151.) Defendant, however, contends that monitoring of mail, phone calls, and visits is
not a practical alternative, and that during visits, guards cannot listen to each conversation given
that they must supervise many visits at the same time.13 (DSMF ¶ 18.)
Plaintiff offers expert opinion testimony from Julia Colpitts, a social worker with
significant experience assessing and addressing domestic violence, in Plaintiff’s effort to establish
that the Policy does not effectively address the issue of domestic violence. In summary, Ms.
Colpitts opines that the Policy does not serve the interests of the victim, the prisoner, the
Department, or the State of Maine. She also maintains that the Policy constitutes an inappropriate
blanket prohibition on communication that only makes sense in dangerous situations or where a
court order prohibits contact. (Id. ¶¶ 84-112.)
Defendant offers the opinions of former Commissioner Ponte14 and Ms. Mosher15 to
explain the justification for, and programmatic purpose behind, the No-Contact Policy.
Commissioner Joseph Ponte enacted the No-Contact Policy. (Id. ¶ 119.) Ms. Mosher brought the
idea to Commissioner Ponte (DSMF ¶ 42) and explained why she wanted a new policy.16 Before

13

Defendant admits it would not impose a hardship on prison guards to permit Plaintiff and Mr. Hart to write or call
each other. (Id. ¶ 169.)
14

Defendant offers former Commissioner Ponte as an expert witness in the area of corrections, not domestic violence.
(DSMF ¶¶ 1-5.)
15

Ms. Mosher has significant professional experience working on behalf of victims of domestic violence. (DSMF ¶¶
32-36.)
According to Ms. Mosher, one of the issues that generated the need for change within the Department was “a failure
on the part of the facilities to enter probation conditions into the Department’s data base.” (DSMF ¶ 43.) Additionally,
different facilities were approaching the issue in different ways, including where there were no probation conditions
but victims or staff had requested that contact be prevented. (Id. ¶ 44.)
16

9

he adopted the Policy, other than meeting with Ms. Mosher and Assistant Attorney General Diane
Sleek, Commissioner Ponte did not speak with anyone, or conduct any research.17 (PSMF ¶ 120.)
Ms. Mosher did not review the policy before it was implemented. (Id. ¶ 121.)
According to Commissioner Ponte and Ms. Mosher, the Policy is necessary to prevent
prisoners who have a history of domestic violence from calling and harassing their victims, or
sending abusive letters to them. The Policy is also a response to the desire of victims not to have
contact, and complaints of probation officers that the Department was not enforcing no-contact
terms of probation with respect to some prisoners. (Id. ¶¶ 114-116.) Indeed, the record reflects
that in some instances, facilities have failed to enforce no-contact provisions set forth in court
orders. (Id. ¶ 118.)
Pursuant to the Policy, Ms. Mosher has preliminary authority to determine whether a
prisoner is “known” to have committed an act or acts of domestic violence. (PSMF ¶ 156.) The
Commissioner reviews the decisions when they are challenged. (DOS ¶ 156.) The Policy does
not provide for judicial review. (PSMF ¶ 154.) Occasionally, the Department will condition a
waiver on a prisoner’s participation in a domestic violence program, although participation in such
a program is not a guarantee of a waiver. (Id. ¶ 157.) The fact that the victim wants contact with
someone found to be a perpetrator of domestic violence is not controlling. According to Ms.

17

Defendant states:
Although Ponte does not remember who brought him the idea, he discussed with Tessa Mosher, as well
as AAG Diane Sleek, the idea of revising the Department’s mail, phone, and visit policies to prohibit
contact between prisoners who are domestic violence offenders and their victims unless they were
granted a waiver. He discussed it with Ms. Mosher because of her expertise in the area of victim
services, and he discussed it with AAG Sleek because he wanted to be sure such a policy would be
legal.
….
[Ponte] saw the policy revision as a way to prevent prisoners who are domestic violence offenders from
engaging in the abusive and controlling behaviors that had led to their incarceration and as a way to
protect the safety of victims and others in the community.
(DSMF ¶¶ 13, 15.)

10

Mosher, the Policy never contemplated that she would grant a waiver request simply because a
victim requested the contact. (DSMF ¶ 48.)
CROSS-MOTIONS FOR SUMMARY JUDGMENT
A.

Summary Judgment Standard
The parties seek a resolution to their dispute through cross-motions for summary judgment.

To succeed on a motion for summary judgment, a party must establish “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R.
Civ. P. 56(a). “Cross-motions for summary judgment do not alter the basic Rule 56 standard, but
rather simply require [the Court] to determine whether either of the parties deserves judgment as
a matter of law on facts that are not disputed.” Adria Int'l Grp., Inc. v. Ferre Dev., Inc., 241 F.3d
103, 107 (1st Cir. 2001).
The Court reviews the factual record in the light most favorable to the non-moving party,
resolving evidentiary conflicts and drawing reasonable inferences in the non-movant’s favor.
Hannon v. Beard, 645 F.3d 45, 47-48 (1st Cir. 2011). If the Court’s review of the record reveals
evidence sufficient to support findings in favor of the non-moving party on one or more of his
claims, then there is a trial-worthy controversy and summary judgment must be denied to the extent
there are supported claims. Unsupported claims are properly dismissed. Celotex Corp. v. Catrett,
477 U.S. 317, 323-24 (1986) (“One of the principal purposes of the summary judgment rule is to
isolate and dispose of factually unsupported claims or defenses.”).
B.

Plaintiff’s Pleadings
Plaintiff asserts three counts in her Second Amended Complaint. In Count I, Plaintiff

claims that the Policy deprives her and her children of their First Amendment right of
communication. (Second Am. Compl. ¶ 39.) In Count II, Plaintiff asserts that the Policy deprives

11

her and her children of their First Amendment right of association. (Id. ¶ 43.) In Count III, Plaintiff
alleges that the Policy deprives her and her children of both “substantive due process and equal
protection.” (Id. ¶ 47.) Plaintiff asserts that the Policy’s restrictions lack a “valid, rational
connection” to a legitimate penological interest. (Id. ¶¶ 38, 44, 48.)
Plaintiff requests declaratory relief, injunctive relief, damages, fees and costs. Plaintiff’s
pleas for declaratory and injunctive relief are directed to the application of the Policy to her and to
her children.

She does not request a declaration that the No-Contact Policy is facially

unconstitutional, nor does she request injunctive relief beyond the particular circumstances of her
own situation.18 (Id. p. 7, ¶¶ 1-6.)
C.

The Parties’ Cross-Motions
In support of her Motion for Summary Judgment, Plaintiff argues that the Department “has

reached out to exercise jurisdiction over women and children over whom it has no lawful authority,
and it is exercising this power to interfere with one of their most fundamental rights: the right to
form and maintain a family.” (Pl.’s Motion for Summary Judgment (“Pl.’s Motion”) at 15, ECF
No. 34.)

Plaintiff in essence asserts that the Department cannot vitiate a non-prisoner’s

fundamental rights of freedom of association and freedom of communication through
implementation of the Policy.
Defendant opposes Plaintiff’s motion and requests an entry of summary judgment in his
favor on all counts. (Def.’s Motion for Summary Judgment and Opposition to Plaintiff’s Motion
for Summary Judgment (“Def.’s Motion”), ECF No. 44.) In summary, Defendant contends that

18

The Court makes this point to address a preliminary concern whether Plaintiff seeks to mount a facial challenge to
the Department’s No-Contact Policy. See Showtime Entm't, LLC v. Town of Mendon, 769 F.3d 61, 70 (1st Cir. 2014).
Based on her Second Amended Complaint, she does not. Additionally, the Court notes that Plaintiff does not assert a
procedural due process claim.

12

the Policy does not violate the First Amendment because it is prisoner-focused, is supported by a
legitimate penological purpose, and, based on permissible factfinding performed by Department
personnel, was reasonably applied in the particular context of the underlying waiver requests made
by Plaintiff and Mr. Hart.19
D.

Analysis
In Turner v. Safley, 482 U.S. 78 (1987), the Supreme Court considered whether a

correspondence regulation and a marriage restriction imposed on prisoners detained by the
Missouri Department of Corrections violated the prisoners’ constitutional rights. Although the
correspondence regulation applied exclusively to communications among prisoners, id. at 92, the
marriage restriction applied, in many instances, to both prisoners and non-prisoners, id. at 97.
Because one of the regulations affected the rights of both prisoners and non-prisoners, the Court
considered whether the standard of review should be drawn from Procunier v. Martinez, 416 U.S.
396 (1974), which the Court decided based on the rights of non-prisoners, 20 or drawn from a series
of “prisoners’ rights” cases, 21 all of which described a “reasonableness” standard. Turner, 482
U.S. at 85-89. Rejecting a “hierarchy of standards of review,” the Turner Court held: “when a
prison regulation impinges on inmates’ constitutional rights, the regulation is valid if it is
reasonably related to legitimate penological interests.” Id. at 89. Following Turner, the Supreme

Referring to Count III, Defendant states that Plaintiff’s motion does not explain “how the policy could possibly
violate” equal protection or substantive due process standards and that it is “not obvious” how it would. (Def.’s
Motion at 4.) Plaintiff, of course, was not required to seek summary judgment on Count III. In the absence of any
developed argument by Defendant regarding Count III, it is difficult to construe his motion as a request for summary
judgment on Count III. However, the parties’ respective presentations reflect that they agree that this case should be
decided based on the Supreme Court precedent discussed herein.
19

20

Regardless of whether Martinez expressed a heightened scrutiny standard, the opinion was construed by some courts
as imposing such a standard whenever a prison restriction impinged upon the fundamental rights of non-prisoners.
Thornburgh v. Abbot, 490 U.S. 401, 409-410 (1989) (citing Turner, 482 U.S. at 81, 87, 89).
Block v. Rutherford, 468 U.S. 576 (1984); Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. N.C. Prisoners’ Union,
433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817 (1974).
21

13

Court in Thornburgh v. Abbott, 490 U.S. 401 (1989), determined that prison restrictions on
publications or materials sent into the prison from the outside “must be analyzed under the Turner
reasonableness standard.” Id. at 413. The Abbott Court, however, did not entirely abandon the
analysis set forth in Martinez. Rather, the Abbott Court noted “that the logic of our analyses in
Martinez and Turner requires that Martinez be limited to regulations concerning outgoing
correspondence,” id. at 413 (emphasis supplied), and that there is no reason to treat incoming
correspondence from non-prisoners differently than incoming correspondence from prisoners, id.
at 413-414, where the material in question is “targeted to a general audience,” can be “expected to
circulate among prisoners,” and is of a kind that is likely to lead to “disruptive conduct,” id. at 412.
Here, as in Turner, the regulation (i.e., the Policy) potentially affects the rights of prisoners
and non-prisoners, at least where the non-prisoner wants contact. Additionally, as in Martinez, the
regulation affects both incoming and outgoing correspondence. Moreover, unlike in Abbott, the
incoming communication is not addressed to a general audience. The impact of Martinez on this
case is thus uncertain. Consistent with the Supreme Court’s approach in Turner, in which the
Supreme Court applied its reasonableness standard to a marriage regulation that impacted the
rights of prisoners and non-prisoners alike, without resolving whether Martinez called for greater
scrutiny, 482 U.S. at 97, the Court begins by assessing the Policy under the Turner reasonableness
standard.
1. Turner analysis
Under the reasonableness standard, the issue is whether the Policy is “reasonably related
to legitimate penological interests.” Turner, 482 U.S. at 89. That question is subject to a multifactor analysis. Id.

14

a.

Rational connection to a legitimate interest

For a regulation to be reasonable in the prison setting, “there must be a ‘valid rational
connection’ between the prison regulation and the legitimate governmental interest put forward to
justify it.” Turner, 482 U.S. at 89 (quoting Block v. Rutherford, 468 U.S. U.S. 576, 586 (1984)).
Additionally, restrictions on association and speech should be neutral with respect to content. Id.
at 90.
In Turner, the Supreme Court held that a bar on correspondence between prisoners held in
different facilities was rationally connected to a legitimate prison security interest. Id. at 93. The
fact that the regulation was content neutral was important to the Court’s determination. Id. In
Abbott, the Court considered the constitutionality of a policy that authorized the warden to ban
prisoners from receiving certain publications “determined detrimental to the security, good order,
or discipline of the institution or if it might facilitate criminal activity.” 490 U.S. at 404. Although
the regulation was content-specific, the Court found that it was “‘neutral’ in the technical sense”
because it was to be applied based on the potential that a particular publication would have a
negative impact on a valid security interest. Id. at 416.
Defendant argues that the Policy has a rational connection to the legitimate objective of
prisoner rehabilitation. According to Defendant, the policy is designed to foster “pro-social
change” through rehabilitative programming. (Def.’s Motion at 5, 7.) In Defendant’s words:
“What the policy is aimed at stopping in the short term and preventing in the long term is the
abusive behavior that domestic violence offenders use to exert power and control over their
victims, often through communication.” (Id. at 7.) Conversely, Plaintiff contends that the Court
should not give deference to Defendant’s stated rationale because the Policy exists only “to

15

implement broad social policy unrelated to the safe and orderly operation of a prison” (Pl.’s Motion
at 18) and neither rehabilitates prisoners nor enhances prison security (id. at 19, 22).
A review of the record reveals disputed facts that are material to the assessment of whether
the Policy has a rational connection to the rehabilitation of those who have perpetrated or are at
risk for perpetrating domestic violence. For instance, the record lacks uncontroverted evidence
that the Policy, which purports to prohibit contact regardless of the content of any communication,
in fact contributes to the rehabilitation of a prisoner such as Mr. Hart, who has allegedly perpetrated
domestic violence, but is not incarcerated as the result of a domestic violence conviction. Indeed,
the parties have offered competing evidence as to the connection between the Policy and the stated
objective.22 At a minimum, a fact finder must evaluate the conflicting evidence and determine
whether the Policy in fact serves to rehabilitate.23
b.

Alternative means of expression

The second factor that courts must consider is the availability of “alternative means of
exercising the right that remain open to prison inmates.” Turner, 482 U.S. at 90. In this context,
the “right” is to be “viewed sensibly and expansively.” Abbott, 490 U.S. at 418. When the Policy
is applied, a prisoner and a non-prisoner would have no contact. The right, therefore, would not
be exercised. Whether an alternative means of communication remained open to Plaintiff and Mr.
Hart requires resolution of the factual issues relevant to the relationship between the Policy and
the rehabilitation objective. Additionally, if no contact in fact furthered rehabilitation, the lack of

22

As explained above, Plaintiff has presented the opinions of Julia Colpitts, and Defendant has offered the opinions
of Commissioner Ponte and Ms. Mosher.
The Court’s reference to the factual dispute regarding the Policy’s relationship to rehabilitation is not intended to
suggest that it is the sole factual dispute of record.
23

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an alternative means of expression might be less of a concern. The Court, therefore, cannot
appropriately assess this factor without resolution of the disputed facts.
c.

Impact of accommodation on guards and other inmates

The third factor that courts must examine is “the impact accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of prison resources
generally.” Turner, 482 U.S. at 90. The law recognizes that prisons have “limited resources for
preserving institutional order” and that courts should be “particularly deferential to the informed
discretion of corrections officials” when it is apparent that accommodation “will have a significant
‘ripple effect’ on fellow inmates or on prison staff.” Id. The parties have presented conflicting
assessments regarding the burden that would result for guards and other employees if the Policy
allowed for some limited contact.
Defendant expresses concern over the possibility of “spill over” from “anti-social
behavior.” (Def.’s Motion at 8.) Defendant also suggests that a communication ban imposed
pursuant to the Policy prevents manipulation of non-prisoners to engage in conduct harmful to
prison security. (Id.) Plaintiff maintains that the Policy actually increases burdens on prison
personnel and that the burden on prison personnel would be minimal if the prison managed
Plaintiff’s contact with Mr. Hart as it managed the other relationships between prisoners and nonprisoners.
Once again, the significance of the burden depends in part on the resolution of the factual
issues that are relevant to the relationship between the Policy and the stated rehabilitation
objective. That is, if the evidence establishes that the desired rehabilitation can be achieved
without an absolute prohibition on contact, the Court would have to assess the potential burden in
the context of the contact that was contemplated.

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d.

Absence of ready alternatives

The fourth factor asks whether the regulation’s objectives can be obtained through ready
alternatives that do not infringe upon constitutional rights. Turner, 482 U.S. at 90. If “obvious,
easy alternatives” to the Policy exist, that “may be evidence that the regulation is not reasonable,
but is an ‘exaggerated response’ to prison concerns.” Id. Whether a realistic alternative can
achieve the rehabilitation that the Policy is allegedly designed to achieve is similarly dependent on
the resolution of the factual issues regarding the relationship between the Policy and rehabilitation.
2.

Martinez analysis

In Martinez, the Supreme Court determined that for a regulation of a prisoner’s outgoing
mail to be constitutional, “the regulation or practice in question must further an important or
substantial governmental interest unrelated to the suppression of expression” [and] “the limitation
of First Amendment freedoms must be no greater than is necessary or essential to the protection
of the particular governmental interest involved.” 416 U.S. at 413. Assuming that the reasoning
in Martinez is applicable under the facts of this case, even if the Court applied the Martinez
standard, the same factual issues would remain in dispute. That is, a fact finder would still have
to determine whether the regulation actually furthers the rehabilitation of perpetrators of domestic
violence (similar to Turner factor one) and whether the regulation, as applied to Plaintiff, limited
her rights no more than necessary to achieve the Department’s rehabilitative purpose (similar to
Turner factor 4). The Court’s analysis and conclusion at this stage of the proceedings, therefore,
would not be materially different regardless of the applicable standard.

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CONCLUSION
As explained above, because the record contains factual issues in dispute, neither party is
entitled to summary judgment. The Court, therefore, denies Plaintiff’s Motion for Summary
Judgment (ECF No. 34) and Defendant’s Motion for Summary Judgment (ECF No. 44.).
The Court nevertheless questions whether the case presents a matter for trial given (1) that
Defendant has cited alternative grounds (i.e., security concerns based on purported drug activity)
for denying contact between Plaintiff and Mr. Hart, and (2) that Mr. Hart might no longer be in
custody.24 Accordingly, the Court will schedule a conference with the parties to discuss the future
course of the case.
/s/ John C. Nivison
U.S. Magistrate Judge
Dated this 20th day of February, 2015.

24

The record reflects that Mr. Hart was sentenced to a term of 18 months on August 1, 2013. (ECF No. 47-1, PageID
# 717.) Absent the imposition of any additional terms of incarceration, Mr. Hart would have completed his sentence
by this date.
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