Opinion
Case No. 1:04CV173DAK.
February 3, 2005
ORDER DENYING PRELIMINARY INJUNCTION
This matter is before the court on Plaintiff Prison Legal News' Motion for Temporary Restraining Order and Preliminary Injunction. Defendants were given notice of Plaintiff's motion and the parties fully briefed the motion prior to the court's hearing on January 27, 2005. At the hearing, Plaintiff was represented by Brian Barnard, and Defendants were represented by Frank Mylar. Before the hearing, the court carefully considered the memoranda and other materials submitted by the parties. Since taking the matter under advisement, the court has further considered the memoranda, exhibits, and affidavits submitted by the parties, and the law and facts relevant to the motion. Now being fully advised, the court renders the following Order.
I. BACKGROUND
Plaintiff, Prisoner's Legal News, publishes and distributes a nation-wide, monthly magazine known as Prison Legal News (" PLN") that contains news articles regarding litigation trends, recent court rulings and other matters of interest to inmates and corrections officials. Plaintiff brings this action under 42 U.S.C. § 1983 seeking equitable relief from enforcement of Defendants' policies that prevent PLN from distributing its periodical to individual inmates.
PLN is mailed to prisoners through the United States Postal Service. The Cache County Jail ("the Jail") has enacted rules and regulations governing inmates' receipt of and access to publications. Inmates at the Jail are not allowed to subscribe to magazines or newspapers on an individual basis and cannot receive magazines or newspapers through the United States mail. In October or November of 2004, an inmate at the Jail subscribed to PLN. The copy of the October 2004 edition of PLN that PLN mailed to the inmate was returned to PLN with a stamp on the front stating "RETURN TO SENDER UNAUTHORIZED MATERIAL" and hand-written words stating "CONTENT NOT ALLOWED."
Inmates at the Jail are notified when they enter the facility that they are not entitled to subscribe to periodicals. The Jail has a law library that contains periodicals, and inmates can check out periodicals from the library. A rule limits an inmate to five periodicals in his cell at one time. The Jail allows inmates to request certain subscriptions to be purchased by the Jail if they are not contrary to legitimate penological interests. The Jail also tries to monitor demand levels of the periodicals available in the law library. Prior to this lawsuit, Jail officials and administration were not aware of any inmate demand for PLN. However, the Jail now has two subscriptions to PLN available in the library. The materials in the library are the property of the Jail.
II. DISCUSSION A. PRELIMINARY INJUNCTION
Plaintiff is moving for a preliminary injunction to require Defendants to suspend its rule regarding individual periodical subscriptions during the pendency of this litigation. In order to obtain preliminary injunctive relief, the moving party must establish:
(1) a substantial likelihood that the movant will eventually prevail on the merits; (2) a showing that the movant will suffer irreparable injury unless the injunction issues; (3) proof that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause the opposing party; and (4) a showing that the injunction, if issued, would not be adverse to the public interest. SCFC ILC, Inc. v. Visa USA, Inc., 936 F.2d 1096, 1098 (10th Cir. 1991). Because a preliminary injunction is an extraordinary remedy, the "right to relief must be clear and unequivocal." Id. A preliminary injunction that alters the status quo, as in this case, is disfavored and Plaintiff must meet the heavier burden of demonstrating that the four factors weigh "heavily and compellingly" in its favor before an injunction may issue. See Kikumura v. Hurley, 242 F.3d 950 (10th Cir. 2001); Visa, 936 F.2d at 1098-99.1. Likelihood of Success on the Merits
Defendants assert several penological interests to justify its policy proscribing individual subscriptions to periodicals, and Plaintiff argues that none of those interests are sufficient to warrant the policy's intrusion on inmates' First Amendment right. The United States Supreme Court has determined that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). The Turner Court set forth a four-part test for courts to consider in determining the constitutionality of such policies: "(1) whether a valid and rational connection exists between the regulation and the asserted legitimate governmental interest; (2) whether alternative means of exercising the constitutional right remain available to inmates; (3) any effect accommodating the right would have on guards and inmates; and (4) the absence of ready alternatives." Jacklovich, 392 F.3d at 426 (citing Turner, 482 U.S. at 89-90).
Before even getting to the Turner test, Defendants contend that the court must determine the property and expressive rights prisoners retain as part of their normal incidents of incarceration and how these rights affect a publisher's rights to free expression. Many of the liberties and privileges enjoyed by other citizens must be surrendered by the prisoner. In Sandin v. Conner, 515 U.S. 472 (1995), the Supreme Court mandated that courts must review property and liberty interest claims arising from prison conditions by asking whether the prison condition complained of presents "the type of atypical, significant deprivation in which a State might conceivably create a liberty [or property] interest." Defendants argue that the loss of magazine subscriptions is not an "atypical, significant deprivation," but an inherent consequence of incarceration.
However, the Tenth Circuit's recent decision in Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004), acknowledges that "[i]nmates have a First Amendment right to receive information while in prison to the extent the right is not inconsistent with prisoner status or the legitimate penological objectives of the prison." Id. at 426. The court reasoned that "resolution of the inmates' claims requires balancing between the constitutional rights retained by inmates and those who send them publications against the deference owed to prison authorities when it comes to prison administration." Id. Therefore, the court implicitly recognized that there are certain First Amendment rights to information that do survive incarceration and those rights apply equally to those who send inmates publications. See also Thomas v. Leslie, 176 F.3d 489 (10th Cir. 1999) (unpublished decision) (finding total ban on newspapers in a Kansas county jail unconstitutional).
Although not binding because it was not decided by the Tenth Circuit, in Brooks v. Seiter, 779 F.2d 1177 (6th Cir. 1985), the court equated personal subscriptions to personal correspondence. The court stated that "[t]he sender's interest in communicating the ideas in the publication corresponds to the recipient's interest in reading what the sender has to say. These interests are not undercut by the fact that a subscription also represents a commercial transaction. . . . We can perceive no principled basis for distinguishing publications specifically ordered by a prison inmate from letters written to that inmate for purposes of first amendment protection."
The Jacklovich court further explained that "[i]n weighing the First Amendment interests against the deference afforded corrections officials, the reasonableness of the regulations and policies matter." Id. "Although the Court has continually recognized (1) the difficulty of running a prison, (2) the separation of powers concerns when a federal court assumes a function (prison administration) entrusted to the legislative and executive branches, and (3) the need for federal courts to accord deference to state prison authorities, those factors do not mean that every prison regulation is insulated from review no matter what the facts may be." Id. (citation omitted). Therefore, as in Jacklovich, the court concludes it may properly proceed to analyze the issue using the Turner factors.
Plaintiff argues that access to a jail library is not an adequate substitute for individual subscriptions to magazines and newspapers. Plaintiff complains that there are too few periodicals in the Jail's law library for the number of inmates housed at the Jail. However, Plaintiff does not provide any evidence of the allegation. Moreover, the Jail has provided an Affidavit stating that it monitors the demand for publications in the library and it allows inmates to request publications. There is no evidence in the record that the Jail's system does not fulfill inmates' demands for periodicals.
In addition, Plaintiff contends that there are reasonable and ready alternatives available to Defendants short of a total ban on individual subscriptions to periodicals. Plaintiff points to the Salt Lake County Jail as an example of a jail that allows individual inmates to subscribe to periodicals and regulates its policy through additional rules. The Salt Lake County Jail allows inmates to have only one edition of the newspaper in his possession at any time and mandates that the newspaper not be cut up or torn. In this case, Plaintiff argues that Defendants already have in place various rules dealing with content, security, and volume of mail that may be received and kept by an inmate. Those rules, Plaintiff asserts, deal with any real or perceived problem that may occur as a result of inmates receiving personal pre-paid periodical subscriptions.
In response, Defendants argue that it is entitled to make its own policies and rather than look to the policies of other jails, this court must focus on the policies of the Cache County Jail. In addition to safety concerns, Defendants cite concerns with the administrative burdens individual subscriptions would place on jail officials, especially given the short stay of most inmates at the Jail. The court recognizes that there are inherent differences in jail populations and circumstances. And, this court must accord deference to the professional judgment of corrections administrators in reviewing regulations. Overton v. Bezzetta, 539 U.S. 126, 132 (2003). Furthermore, alternatives "need not be ideal; however, they need only be available." Overton, 539 U.S. at 135.
Plaintiff cites to cases in which individual subscriptions were allowed when the jail also had a law library. But, in those case, the court was addressing the validity of a "publishers only" restriction on those individual subscriptions, not whether prisoners were constitutionally entitled to individual subscriptions. See Bell v. Wolfish, 441 U.S. 520, 552 (1979). Whether a right exists to individual subscriptions is necessarily a different issue than the appropriate regulation of the right after such right has been granted by the jail. Nevertheless, the court does agree that it is persuasive these cases appear to implicitly recognize that there is an underlying right to individual subscriptions.
Defendants claim that jail libraries like the Cache County Jail's library have been upheld as a constitutional alternative when inmates were denied subscriptions. See Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993); Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993); Johnson v. Hunter, 192 U.S. App. LEXIS 34743; Manning v. Abramajtys, 1992 U.S. App. LEXIS 5059. In Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993) an inmate challenged a detention center's policy based on cases such as Bell that have upheld a publishers-only rule as constitutional. The Hause court found that "[n]either the Supreme Court nor this court, however, has ever held that a publishers-only rule is a minimum constitutional standard. We decline to do so here." Id. at 1083. Noting that the inmate failed to consider "a central principle implicit in the Turner analysis," the court reasoned that Bell and Turner "emphasize the deference owed to prison administrators in their management of penal facilities." Because of the inmates short stays at the detention center, the court concluded that "a publishers-only rule would not constitute an alternative to the Detention Center's ban on publications because such a rule would not have meaningfully enhanced the inmates access to information and ideas."
Plaintiff concedes that it would be reasonable for the Jail to have a ban on individual subscriptions for inmates who will not be at the Jail for longer than thirty days. Plaintiff also argues that the jail can shift much of the burden onto the inmate with respect to canceling or forwarding the subscription. Plaintiff noted at the hearing on this matter that the focus of its motion is for long-term inmates. Therefore, Hause may be inapplicable to Plaintiff's more limited request tailored to only long-term inmates.
Defendants' response at the hearing was that there is no evidence in the record as to inmate stays, except for the statistic that the average length of stay is 30 days. Given the short average stay, a monthly periodical may not be administratively possible. In any event, there is not adequate evidence before the court as to the nature of inmate stays that would allow the court to properly apply the Turner factors to the case before it.
In another case cited by Defendants for the proposition that law libraries have been deemed adequate, Dawson v. Scurr, 986 F.2d 257 (8th Cir. 1993), the issue was whether a ban on sexually explicit materials in an individual inmate's cell was constitutional. The court concluded that access to such materials in a reading room was constitutionally adequate. Id. at 261. Although the court in that case found access to a reading room adequate, the court recognizes that access to sexually explicit materials and prisoner litigation summaries involves a different analysis based on the content of the materials.
In reversing the district court's granting of summary judgment in favor of the state corrections officials, the Jacklovich court found that there were questions of fact as to each of the four Turner factors. 392 F.2d at 428-29. Similarly, in this case, the parties present competing facts and arguments that raise questions of fact as to the four Turner factors. The court finds Plaintiff's arguments persuasive. However, Plaintiffs' case suffers from a lack of evidence at this stage. Furthermore, because of the parties' competing facts and arguments, as well as the balancing required between Plaintiff's rights and the Jail's penological interests, the court cannot conclude that Plaintiff has established a likelihood of success on the merits under the "heavily and compelling" standard required for a preliminary injunction in this case.
B. Other Elements
In support of its motion for a preliminary injunction, Plaintiffs also argue that inmates' First Amendment rights will continue to be irreparably harmed without injunctive relief, such harm to their constitutional rights outweighs any minimal injury Defendants could face, and the vindication of constitutional freedoms and the protection of First Amendment rights are in the public interest.
However, because the court has concluded that there is a question of fact as to whether the Jail's policy infringes Plaintiff's First Amendment rights, the court cannot conclude that the potential harm to those rights outweighs the harm to Defendant's interests in maintaining a safe and secure jail. In addition, both competing interests-Plaintiff's First Amendment rights and the Jail's maintenance of a safe and secure jail-impact the public interest. Therefore, the court must conclude that Plaintiff has not met the heavy and compelling standard required under the remaining elements for injunctive relief. Accordingly, Plaintiff's motion for preliminary injunction is denied.
III. CONCLUSION
For the foregoing reasons, Plaintiff's motion for a preliminary injunction is DENIED.