649 F. App'x 293

Stephen AGUIAR, Appellant v. Warden M. RECKTENWALD, Warden; Jeff Butler, Associate Warden; C. Bergen, Captain; Jim Lyons, Special Investigations Supervisor (‘SIS”), Federal Bureau of Prisons; Margie Cook, “SIS” Technician, FBOP; John Doe, Facebook Incorporated.

No. 16-1236.

United States Court of Appeals, Third Circuit.

Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B) or Summary Action Under Third Circuit LAR 27.4 and I.O.P. 10.6 May 5, 2016.

Filed: May 23, 2016.

*294Kenneth Adebonojo, Office of United States Attorney, Washington, DC, Kate L. Mershimer, Esq., Melissa A. Swauger, Esq., Office of United States Attorney, Harrisburg, PA, for Appellant.

Stephen Aguiar, Petersburg, VA, pro se.

Before: CHAGARES, GREENAWAY, JR. and GARTH, Circuit Judges.

OPINION *

PER CURIAM.

Pro se appellant Stephen Aguiar appeals from an order of the United States District Court for the Middle District of Pennsylvania awarding summary judgment in his § 1983 action. As the appeal does not present a substantial question, we will summarily affirm the decision of the District Court.

I.

Aguiar initiated this action in 20131 alleging that the Defendants, prison officials at FCI Allenwood and a John Doe employee of Facebook, violated unspecified constitutional rights by deactivating, or fa*295cilitating the deactivation of, his Facebook account. Prison investigators discovered that Aguiar was using his sister to update his Facebook account and to send messages to others on his behalf — a violation of Bureau of Prisons policy and of Face-book’s terms and conditions. Investigators subsequently requested that Face-book deactivate Aguiar’s profile, and his account was promptly disabled.

In a July 28, 2015 Report and Recommendation, the Magistrate Judge recommended that the Court grant the Corrections Defendants’ motion for summary judgment, finding that they were entitled to qualified immunity because Aguiar failed to allege the deprivation of a constitutional right. On January 11, 2016, the District Court adopted this Report and Recommendation in full over Aguiar’s objections2 and directed the Clerk to close this case. This timely appeal ensued.

II.

We have jurisdiction -under 28 U.S.C. § 1291 and exercise plenary review over the District Court’s award of summary judgment, applying the same test the District Court should have utilized — whether the record “shows that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Giles v. Kearney, 571 F.3d 318, 322 (3d Cir.2009). In applying this test, we must accept evidence present-ad by the non-movant as true and draw all justifiable factual inferences in his favor. Id. We may summarily affirm any decision of the District Court where “it clearly appears that no substantial question is presented or that subsequent precedent or a change in circumstances warrants such action.” 3d Cir. I.O.P. 10.6 (2015).

Aguiar’s claim is premised on the existence of a constitutionally protected interest in the use and maintenance of his Facebook account. Even if he enjoys such an interest, we have no doubt that Defendants’ decision to exclude Aguiar from this activity — when his specific use violated BOP policies — was “reasonably related to legitimate penological interests,” and thus constitutionally permissible. Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987).

Turner requires the consideration of four factors in determining the reasonableness of a prison regulation: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;”3 (2) “whether there are alternative means of exercising the right that remain open to prison inmates;” (3) “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally;” (4) the avail*296ability of other alternatives to effectuate the objective. Id. at 89-90, 107 S.Ct. 2254 (internal quotations omitted).

As to the first factor, prison officials facilitated the deactivation of Aguiar’s account to prevent him from communicating, through his sister, with unmonitored contacts — a legitimate interest related to the security and order of the facility.4 Secondly, despite the deactivation of his account, Aguiar still retained traditional methods of communication, including phone calls, postal mail, and prison visitation. As to the third factor, permitting inmates to maintain Facebook accounts through their agents, and to send unmonitored messages through these accounts, would impose a massive burden on prison administrators to keep themselves apprised of inmate communications. Finally, no other feasible less restrictive alternative exists — aside from continuously monitoring Aguiar’s account — that would allow prison administrators to maintain the security of inmate communications while allowing Aguiar to maintain his account.

Accordingly, we will summarily affirm the decision of the District Court. Agu-iar’s motion for appointment of counsel is denied.

Aguiar v. Recktenwald
649 F. App'x 293

Case Details

Name
Aguiar v. Recktenwald
Decision Date
May 23, 2016
Citations

649 F. App'x 293

Jurisdiction
United States

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