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Pesci v. Budz

United States Court of Appeals, Eleventh Circuit

August 21, 2019

JAMES R. PESCI, Plaintiff-Appellant,

          Appeal from the United States District Court for the Middle District of Florida No. 2:10-cv-00428-PAM-MRM

          Before JORDAN, GRANT, and HULL, Circuit Judges.


         James Pesci is a detainee at the Florida Civil Commitment Center (FCCC), a for-profit facility that houses sex offenders involuntarily committed under Florida's Involuntary Civil Commitment of Sexually Violent Predators Act. Pesci is not a prisoner; like the other roughly 600 residents of FCCC, he has already served out his prison sentence. Instead, he is involuntarily committed because the State has determined that he is a "sexually violent predator" likely to engage in future "acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment." Fla. Stat. §§ 394.912(10)(b); 394.915.

         Pesci devotes his time to investigative reporting, and during his commitment he has published two monthly newsletters-publications that are highly critical of FCCC. Citing rising tensions between residents and staff, the facility director deemed one of Pesci's publications a security threat and issued a policy banning its possession or distribution. Pesci now circulates a successor newsletter, but he is constrained by a second, facility-wide policy that limits the number of pages that each inmate can print in the FCCC computer lab. Pesci filed a civil rights action under 42 U.S.C. § 1983, claiming that FCCC's policies violate his expressive freedoms under the First and Fourteenth Amendments. Applying this Court's four-part test for evaluating a civil detainee's constitutional claims, the district court granted summary judgment in favor of FCCC. After a searching review of the record, and with the benefit of oral argument, we too conclude that the two policies at issue do not violate the First Amendment because they are reasonably related to FCCC's legitimate interests in facility security and conserving resources. We therefore affirm.



         For many years, Pesci published a monthly newsletter, Duck Soup, which frequently excoriated FCCC's staff, sex offender treatment program, and conditions of confinement. Pesci envisioned Duck Soup as "the uncensored pulse of the compound," dedicated to exposing "corruption at FCCC." He called GEO Group, Inc., the for-profit corporation then in charge of FCCC, a "criminal organization that has a chronic history of cover-ups, medical neglect and psychological abuse." He accused GEO of cost-cutting the residents' nutrition and medical care to increase profits. In one issue, Pesci called the residents of FCCC "coward[s]" for failing to hold "collective protests" and "demonstrations." Pesci also leveled accusations against FCCC staff members by name. He reported that a particular captain had sexually harassed his female subordinates, accused one lieutenant of racism and excessive force against inmates, suggested that another lieutenant liked to watch residents shower, and insinuated that multiple staff members used illegal drugs-to take just a few examples.

         Pesci was originally permitted to upload Duck Soup to an online blog. And inmates could also print hard copies in the FCCC computer lab, so long as they complied with FCCC's general policy on the use of the facility's printers. Under that policy, which had been on the books since 2006, each inmate was allowed to print 20 pages in the computer lab every other day-or 40 pages every other day if the inmate supplied his own paper. In April 2009, however, Timothy Budz-then the facility director of FCCC-issued a policy prohibiting residents from printing hard copies of Duck Soup unless they supplied their own paper. The policy was supposed "to limit resident access to Duck Soup" on grounds that the newsletter was creating "tensions" between residents and staff, undermining staff authority, and disrupting treatment.

         According to Budz, Duck Soup "became increasingly inflammatory" even after the 2009 policy was enacted. In the June/July 2010 issue, for instance, Pesci accused a nurse named Margaret Ferrell of intercepting, reading, and stealing an inmate's outgoing mail. Shortly after the June/July issue, "multiple residents" angrily confronted Nurse Ferrell, making her fear for her safety. She attributed the hostile interaction to Pesci's reporting. Budz testified that other staff members lodged complaints as well, and that he "was afraid that violence was going to break out in the facility." In November 2010, Budz issued a new policy, which declared "that Duck Soup was now contraband and prohibited its distribution or possession." Budz testified that after "the banning of Duck Soup, the tensions and hostility around FCCC . . . decreased."

         Some years later, a changing of the guard took place at FCCC. Dr. Donald Sawyer replaced Budz as facility director, and Correct Care Solutions replaced GEO as the contractor for the facility. After Sawyer took over, Pesci started a successor publication to Duck Soup called The Instigator. According to Pesci, The Instigator's stated mission is to "bring interesting news to the FCCC population and their families," to "edify the community of what life in FCCC is really like," and to "advocate the elimination" of sex offender commitment centers. True to that mission, The Instigator has featured articles on Supreme Court cases relating to inmates' rights, encouraged residents to read Florida Law Weekly and join a legal discussion group, and interviewed residents about their faith and perspectives. Sawyer concedes that The Instigator is "less inflammatory" than Duck Soup and that this "toned down newsletter has raised relatively few security concerns."

         Pesci is allowed to write, print, and copy The Instigator, but he cannot distribute it as freely as he did Duck Soup. Under Sawyer's leadership, FCCC residents face stricter computer policies. They can no longer access the internet, and they are not allowed to save files-any files-to library computers for other residents to read or print. FCCC also continues to enforce the 2006 page-limit policy, under which each resident can print only 20 pages every other day using FCCC paper. Accordingly, The Instigator-and, to be fair, every other inmate publication except those distributed by staff-sponsored social clubs-is subject to a page limit. The funding for the paper and ink does not come out of FCCC's pocket; it is paid for by a Resident Welfare Fund, which holds money donated to the residents as well as proceeds from the resident commissary. FCCC maintains, and Pesci does not dispute, that the policy is "applied uniformly" to every individual resident.


         In July 2010-a few months before Duck Soup was banned-Pesci filed a pro se § 1983 complaint against Budz alleging that the 2009 printing restrictions on Duck Soup violated his First and Fourteenth Amendment rights. The district court concluded that the 2009 policy did not violate Pesci's constitutional rights and granted summary judgment in favor of Budz. The district court did not have occasion to address 2010's all-out ban on Duck Soup. On appeal, this Court clarified the legal standard that should apply to a civil detainee's constitutional claims-a variant of the test articulated by the Supreme Court for evaluating a prisoner's constitutional claims, modified to reflect the non-punitive nature of civil detention-and remanded for the district court to develop the record as to the 2010 ban and evaluate both policies under the appropriate standard. See Pesci v. Budz (Pesci I), 730 F.3d 1291, 1295-97 (11th Cir. 2013). On remand, Pesci (this time represented by appointed counsel) initially filed an amended complaint providing more detail on the 2010 Duck Soup ban. He later requested and was granted leave to supplement his complaint with new claims relating to The Instigator as well.

         In June 2015, Pesci filed his second amended complaint-the operative complaint in this appeal-against Budz, Sawyer, and various other FCCC affiliates. The second amended complaint brought First and Fourteenth Amendment challenges against three policies: the 2009 printing restrictions on Duck Soup, the subsequent 2010 ban on Duck Soup, and the 2006 page-limit policy as enforced against The Instigator.[1] Applying the legal standard set out by this Court in Pesci's first appeal, the district court determined that all three policies were constitutional and once again granted summary judgment in favor of the FCCC defendants.

         Pesci has appealed. At oral argument, the parties agreed that the 2010 total ban on Duck Soup mooted Pesci's claim regarding the less-stringent 2009 printing restrictions on Duck Soup. As a result, we consider only the constitutionality of the 2010 Duck Soup ban and of the 2006 page-limit policy.


         We review the grant of summary judgment de novo, viewing all evidence and drawing all reasonable inferences in favor of the nonmoving party. Ave. CLO Fund, Ltd. v. Bank of Am., N.A., 723 F.3d 1287, 1293-94 (11th Cir. 2013). Summary judgment is appropriate "if the movant shows 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).

         "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248.



         The first time we considered an appeal in Pesci's case, we decided that the appropriate standard against which to measure a civil detainee's constitutional claims was a variant of the standard established by the Supreme Court in Turner v. Safley for reviewing the constitutional claims of prisoners. 482 U.S. 78, 89-90 (1987). Today we apply, but do not revisit, that standard.

         As the Supreme Court established in Turner, prison walls "do not form a barrier separating prison inmates from the protections of the Constitution." Id. at 84. This Court has also said that a "prisoner does not surrender his constitutional rights at the prison gates," United States v. Mills, 704 F.2d 1553, 1560 (11th Cir. 1983), and that every "inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system," Lawson v. Singletary, 85 F.3d 502, 509 (11th Cir. 1996) (per curiam) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). At the same time, the Supreme Court has acknowledged that running a prison "is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government." Turner, 482 U.S. at 85. The "formidable task of running a prison" falls to those other two branches, and "separation of powers concerns counsel a policy of judicial restraint" and "deference to the appropriate prison authorities." O'Lone v. Estate of Shabazz, 482 U.S. 342, 353 (1987); Turner, 482 U.S. at 85. Principles of federalism bolster that deference when "a state penal system is involved." Turner, 482 U.S. at 85.

         In an effort to vindicate both "the need to protect constitutional rights" and the need for "judicial restraint regarding prisoner complaints," Turner set out the ground rules for evaluating prisoners' constitutional claims: When a prison regulation or policy "impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Id. at 85, 89 (internal citation and quotation marks omitted). The Court then identified four "factors that are relevant to, and that serve to channel, the reasonableness inquiry." Thornburgh v. Abbott, 490 U.S. 401, 414 (1989) (applying Turner). They are:

(1) whether there is a "valid, rational connection" between the regulation and a legitimate governmental interest put forward to justify it;
(2) whether there are alternative means of exercising the asserted constitutional right that remain open to the inmates;
(3) whether and the extent to which accommodation of the asserted right will have an impact on prison staff, inmates, and the allocation ...

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