Human Rights Defense Center v. Baxter County, Arkansas

. IN THE UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF ARKANSAS

FAYETTEVILLE DIVISION

HUMAN RIGHTS DEFENSE CENTER PLAINTIFF

V. CASE NO. 5:17-CV-3070

BAXTER COUNTY, ARKANSAS;

JOHN MONTGOMERY, Sheriff, in his individual and official capacities;

BRAD LEWIS, Jail Administrator, in his individual and official capacities;

SGT. ERIC NEAL, in his individual and official capacities;

and DOES 1-10, in their individual and official capacities

DEFENDANTS

MEMORANDUM OPINION AND ORDER

Currently before the Court are two Motions and a multitude of briefs. First,

Defendants Sheriff John Montgomery, Jail Administrator Brad Lewis, Sergeant Eric Neal,

and Baxter County (collectively, “Defendants”) have filed a Motion to Dismiss (Doc. 18)

and Brief in Support (Doc. 19) asserting that Plaintiff Human Rights Defense Center

("HRDC") Jacks standing to sue and that the individual capacity claims against these

county officials should be dismissed on qualified immunity grounds. In addition to these

two filings, the Court has also received HRDC's Response (Doc. 25), the Defendants’

Reply (Doc. 31), and HRDC's Sur-Reply (Doc. 35). The second motion is HRDC's First

Motion for a Preliminary Injunction and Brief in Support (Doc. 26). On that Motion, the

Court has received the Defendants’ Response (Doc. 33) and HRDC's Reply (Doc. 43).

The Court heard oral argument on both motions during a case management

hearing held on November 28, 2017. As the Court explained in its rulings from the bench

and as further explained below, the Motion to Dismiss (Doc. 18) is GRANTED IN PART

AND DENIED IN PART, and HRDC’s First Motion for a Preliminary Injunction (Doc. 26)

is DENIED. To the extent anything in this Order differs from the rulings the Court made

from the bench during that hearing, this Order shall control.

|. BACKGROUND

A. Factual Background

HRDC is a 501(c)(3) non-profit organization with principal offices in Lake Worth,

Florida. HRDC’s purpose is to “educate prisoners and the public about the destructive

natures of racism, sexism, and the economic and social costs of prisons to society.” (Doc.

1, p. 3). HRDC communicates this message through Prison Legal News (“PLN”), which

is the “publishing arm of the HRDC.” /d.

HRDC, through PLN, publishes and distributes Prison Legal News: Dedicated to

Protecting Human Rights, a monthly magazine which contains news about prisons,

prisoners’ rights, and prison facilities and conditions, among other things.’ HRDC

distributes its magazines to monthly subscribers and to prisoners in 2,600 correctional

facilities across the country, including in Arkansas. In addition to Prison Legal News,

HRDC also publishes and distributes different books about the criminal justice system,

self-help books for prisoners, and informational packets that contain subscription order

forms and a book list.

The named defendants in HRDC’s complaint are Baxter County, Arkansas (the

“County”), which operates the Baxter County Jail and Detention Center (‘BCDC’), Baxter

County Sheriff John Montgomery, Lieutenant Brad Lewis, and Sergeant Eric Neal. HRDC

1 According to the Complaint, Prison Legal News is a 72-page magazine. A copy of one

edition of the magazine submitted in this case shows that besides legal articles of interest

to prisoners, Prison Legal News also contains advertisements for an assortment of

products and services, including legal services and order forms by which prisoners can

request nude/semi-nude photographs of men and women. See, e.g., Doc. 26-1, p. 16.

alleges that Defendants implemented and adhered to an unconstitutional mail policy that

prohibited the delivery of HRDC’s publication materials to BCDC prisoners. Specifically,

HRDC claims that Defendants refused to deliver issues and sample issues of Prison

Legal News, The Habeas Citebook, informational packets, legal letters, and court

opinions sent by HRDC to prisoners held in the BCDC. Since 2016, HRDC has identified

at least one hundred ten (110) items of mail sent to BCDC prisoners that Defendants

allegedly censored. This includes twenty-one (21) issues of Prison Legal News, eleven

(11) sample issues of Prison Legal News, twenty-one (21) informational packets, and

twenty-four (24) copies of The Habeas Citebook. Id. at 6. Defendants sent these items

back to HRDC with “Refused” or “Return to Sender Post Cards Only” notations, id. at 7,

and allegedly failed to return other mailings. HRDC alleges that Defendants’ actions

violated its constitutional rights, limited its ability to distribute its political message and

obtain new customers, and thereby frustrated its organizational mission.

B. Procedural Background

On August 21, 2017, HRDC filed suit in this Court. Principally, HRDC alleges that

Defendants’ mail policy unconstitutionally prohibits HRDC from delivering its materials to

BCDC prisoners, thereby violating its First Amendment rights. HRDC also alleges that

Defendants’ policies violate its right to Due Process under the Fourteenth Amendment by

not giving it adequate notice of Defendants’ decisions or an opportunity to object to or

challenge those decisions. As such, HRDC seeks declaratory and injunctive relief against

all Defendants as well as damages.

On September 21, 2017, Defendants filed a Motion to Dismiss all of HRDC’s claims

(Doc. 18) and a Brief in Support (Doc. 19). Specifically, Defendants’ motion argues that

HRDC lacks standing to bring this suit and that the individual capacity claims against

these three officials should be dismissed on the basis of qualified immunity. After filing a

response to Defendants’ Motion to Dismiss, HRDC, on October 9, 2017, filed its First

Motion for Preliminary Injunction (Doc. 26), where it requested that this Court prohibit

Defendants from continuing to violate its First and Fourteenth Amendment rights.

Responses and Replies, including a Sur-Reply, were submitted to the Court, and both of

these motions are ripe for decision.

li. DISCUSSION

A. Motion to Dismiss

1. Standing

Because standing goes to the heart of the Court's jurisdiction to hear a case,

Tarsney v. O’Keefe, 225 F.3d 929, 934 (8th Cir. 2000), the Court will first take up

Defendants’ argument that the Complaint should be dismissed because HRDC lacks

standing to sue over these alleged violations. Article III standing requires an “injury in

fact’ to the plaintiff that is ‘fairly traceable to the challenged act of the defendant,’ and

‘likely [to] be redressed by a favorable decision.” Braden v. Wal-Mart Stores, Inc., 588

F.3d 585, 591 (8th Cir. 2009) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-

61 (1992)). An injury in fact occurs when there “is an invasion of a legally cognizable right”

and it “generally requires injury to the plaintiff's personal legal interests. /d. (citing Vt.

Agency of Natural Res. v. United States ex rel. Stevens, 529 U.S. 765, 771-72 (2000)).

The Supreme Court has recognized that “publishers who wish to communicate

[with prisoners], through subscriptions . . . have a legitimate First Amendment interest in

access to prisoners.” Thornburgh v. Abbott, 490 U.S. 401, 408 (1989) (discussing the

standard to use when reviewing prison regulations that limit access to prisoners). Thus,

even though that First Amendment right is “qualified of necessity by the circumstance of

imprisonment,” Procunier v. Martinez, 416 U.S. 396, 418 (1974), overruled on other

grounds by Thornburgh v. Abbott, 490 U.S. 401 (1989), “the decision to censor or withhold

delivery of a particular letter must be accompanied by minimum procedural safeguards.”

ld. at 417. Therefore, HRDC’s allegations that it did not receive these minimum procedural

safeguards, in violation of its First and Fourteenth Amendment rights, is sufficient to allege

an injury that could be redressed were this Court to ultimately rule for it on the merits. .

Defendants argue that HRDC lacks standing because some of its injuries may

occur in the future and because it has no First Amendment right to distribute unsolicited

materials to prisoners. See Doc. 19, pp. 7-8. Defendants’ arguments impermissibly seek

to graft merits-based considerations into the requirements for standing. See, e.g., Prison

Legal News v. Livingston, 683 F.3d 201, 212 (5th Cir. 2012) (“[A] plaintiff need not prevail

on the merits before he can establish his standing to sue.”).

Here, HRDC alleges First and Fourteenth Amendment violations that flow directly

from the BCDC’s postcard-only policy, and it alleges that this policy damaged HRDC and

will continue to cause damage unless enjoined. (Doc. 19, p. 9). Thus, even if the Court

ultimately finds in favor of Defendants on the merits of this case, HRDC still has standing

to bring this suit. To the extent Defendants’ Motion to Dismiss is premised upon an

argument that HRDC lacks standing, it will be DENIED.

2. Qualified Immunity

Defendants next argue that even if the entire lawsuit is not dismissed, the individual

capacity damage claims against these three named officials should be dismissed

because they are entitled to qualified immunity. See Doc. 19, p. 3. “Qualified immunity

shields government officials from civil damages liability unless the official violated a

statutory or constitutional right that was clearly established at the time of the challenged

conduct.” Reichle v. Howards, 566 U.S. 658, 664 (2012) (citing Ashcroft v. al-Kidd, 563

U.S. 731, 735 (2011)). Government officials sued in their individual capacity are “entitled

to qualified immunity unless the right asserted by [the plaintiff] was established ‘beyond

debate.” Scott v. Tempelmeyer, 867 F.3d 1067, 1070 (8th Cir. 2017) (quoting Ashcroft,

563 U.S. at 741). In short, qualified immunity “gives ample room for mistaken judgment

by protecting all but the plainly incompetent or those who knowingly violate the law.”

Hunter v. Bryant, 502 U.S. 224, 228 (1991) (internal quotation marks and citation omitted);

see also Durham v. Horner, 690 F.3d 183, 190 (4th Cir. 2012) (“[Q]ualified immunity

protects public officials from bad guesses in gray areas.”) (internal quotation marks and

citation omitted).

Qualified immunity, however, does not serve as a defense to an equitable claim,

such as a claim for injunctive relief. Williams v. Delo, 49 F.3d 442, 445 (8th Cir. 1995)

(citation omitted); Grantham v. Trickey, 21 F.3d 289, 295-96 (8th Cir. 1994) (citations

omitted) (“There is no dispute that qualified immunity does not apply to claims for

equitable relief . . . and that state officials may be sued in their official capacity for

equitable relief[.]”). Therefore, the individually named officials may be compelled to act if

the Court grants HRDC’s request for a preliminary injunction. Thus, at the outset, it is

important for the Court to note that the official capacity claims against these individuals

will remain regardless of the Court’s decision below on whether the individual capacity

claims should be dismissed.

Turning to the qualified immunity analysis, “[t]he first step . . . is to determine

‘whether the plaintiff has alleged a deprivation of a constitutional right at all.” Cox v. Sugg,

484 F.3d 1062, 1065 (8th Cir. 2007) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818

(1982)). HRDC sufficiently alleges that the individual Defendants violated its First and

Fourteenth Amendment rights by limiting its ability to communicate with BCDC prisoners,

so the first step is satisfied.

Next, the Court must decide whether HRDC's First and Fourteenth Amendment

rights were clearly established when the BCDC rejected its attempts to communicate with

prisoners. See Serna v. Goodno, 567 F.3d 944, 952 (8th Cir. 2009). As the Court noted

above, for a right to have been clearly established, “existing precedent must have placed

the statutory or constitutional question beyond debate.” Smith v. City of Minneapolis, 754

F.3d 541, 546 (8th Cir. 2014) (quoting Ashcroft, 563 U.S. at 741). Because Defendants

assert that they should be protected by qualified immunity on both HRDC’s First and

Fourteenth Amendment claims, the Court will consider each claim in turn.

a. First Amendment

Regarding the First Amendment claim, the Court finds that the individually named

defendants, Sheriff Montgomery, Jail Administrator Lewis, and Sergeant Neal, are entitled

to qualified immunity. The law was not clearly established in August 2016 to the point that

these officials knew or should have known that enforcing BCDC’s postcard-only policy

violated HRDC’s First Amendment rights. As an initial matter, the Court has previously

considered a nearly-identical policy that came to it on a Report and Recommendation of

Judge Ford in Brown v. Hickman. In his Report and Recommendation, Judge Ford

undertook a careful and thorough search for cases within the Eighth Circuit that

addressed the constitutionality of a postcard-only policy, finding none. 2015 WL 1097392,

at *9 (W.D. Ark. Mar. 11, 2015). In addition, he noted that district courts outside of the

Eighth Circuit had come to divergent opinions on the constitutionality of such a policy. /d.

(collecting cases). This Court reviewed Judge Ford’s opinion carefully, adopting it in its

entirety and concluding that the officials were entitled to qualified immunity. /d. at *1.

As the Court stated during oral argument, this fact alone is sufficient in the Court's

opinion to find that these officials are entitled to qualified immunity on HRDC’s First

Amendment claim. Nevertheless, the Court would additionally note that despite the fact

that HRDC cherry-picked cases that had ruled against such policies, it ignored other

cases from around the country that had been decided the other way. In short, HRDC has

not demonstrated that it was clearly established at the time of the alleged rejections of

HRDC’s mailings that such a postcard-only policy violated HRDC’s First Amendment

rights.

As the Court noted previously, qualified immunity is meant to protect all but the

plainly incompetent, Hunter, 502 U.S. at 228, and serves as a shield for officials who

make “bad guesses in gray areas,” Durham, 690 F.3d at 190. Given the Court’s review of

case law in this area, the constitutionality of this type of policy is certainly, at best, a gray

area. Therefore, these individual defendants are entitled to qualified immunity on the First

Amendment claim, and the individual capacity damage claims asserted against them on

this basis are DISMISSED.

b. Fourteenth Amendment—Due Process

These officials are also entitled to qualified immunity on HRDC’s Fourteenth

Amendment Due Process claim. A due process violation requires the denial of a protected

liberty or property interest. See Senty-Haugen v. Goodno, 462 F.3d 876, 885-86 (8th Cir.

2006). In its landmark decision in Procunier v. Martinez, the Supreme Court held that “the

addressee as well as the sender of direct personal correspondence derives from the First

and Fourteenth Amendments a protection against unjustified governmental interference

with the intended communication.” 416 U.S. 396, 408-09 (1974) (emphasis added). Since

that opinion, appellate courts around the country have concluded that a certain level of

due process “must accompany various decisions to exclude prison mailings.” Prisoner

Legal News v. Livingston, 683 F.3d 201, 222-23 (5th Cir. 2012) (noting that the Fourth,

Ninth, Tenth, and Eleventh Circuits had extended Martinez’s logic to other types of

publications). However, the Fifth Circuit’s decision in Livingston, which ultimately held that

initial but not subsequent denials of identical publications required notice and an

opportunity to appeal, suggested in dicta the precise problem the Court has with HRDC’s

argument here. Namely, neither Livingston nor any of these other cases answered the

question of what type (if any) of process is due to publishers when jails reject a publication

pursuant to routine enforcement of a content-neutral rule with general applicability.

In holding that these subsequent denials of identical publications did not require

notice or an opportunity to appeal, the Court in Livingston stated that once a determination

was made that a particular publication's contents violated prison policy, the routine

enforcement of a rule with general applicability (subsequent denials for identical reasons),

which was non-individualized (neither reconsidering the book’s content nor deciding

whether to accept or reject based upon the sender) did not even clearly implicate due

process concerns. 683 F.3d at 223. These subsequent denials differed from the initial

denial, which did require notice and an opportunity to appeal, according to the Court,

because “at the time of the initial denial, an individualized decision (with respect to the

book's contents) must be made [and thus the prison’s policies] . . . [a]t least arguably .. .

fall short of the traditional requirements of due process because they do not give the

appellant, whether the prisoner or the outsider, the right to participate in . . . consideration

of the appeal.” /d. at 223-24 (citation omitted). At the end of its discussion on due process,

the Fifth Circuit noted that:

The right to receive notice exists only to effectuate the right to be heard,

and therefore is inapplicable where a party has no right to participate in the

decision-making process. Giving notice to a sender that his communication

has been rejected may be a reasonable courtesy, but such notice is not a

requirement of due process. °

Id. at 224 (holding that Prison Legal News was not entitled to notice of every denial of its

publications).

In short, the reason why a publisher was entitled to notice and an opportunity to

appeal to a different decision-maker within the prison system in Livingston had nothing to

do with general due process protections afforded to senders of mail as of right; rather, it

had everything to do with the fact that in that particular case, a decision was made to

reject a publication because it qualified under one of the six enumerated reasons for

rejection,” all of which required a prison official to make an individualized determination

2 As the Fifth Circuit explained, the Texas Department of Criminal Justice allowed books

to be rejected for the following reasons:

1) It contains contraband that cannot be removed;

2) It contains information regarding the manufacture of explosives, weapons, or

drugs;

3) It contains material a reasonable person would construe as written solely for the

purpose of communicating information designed to achieve the breakdown of

prisons through offender disruption such as strikes, riots, or [security threat group]

activity;

4) A specific determination has been made the publication is detrimental to offenders’

rehabilitation because it would encourage deviant criminal sexual behavior;

10

about the contents of the publication itself and whether these contents violated prison

policies. This is exactly why a neutral, second prison official had to be available to hear

an appeal of that initial censorship decision.

HRDC’s citations to other cases where .courts have required notice and an

opportunity to appeal confirm the Court’s concern that HRDC has glossed over certain

key distinctions between those cases and the present case. For instance, in support of

its position that notice and an opportunity to appeal to a second official are required, it

cites the following cases: Procunier v. Martinez, 416 U.S. 396 (1974); Murphy v. Mo. Dept.

of Corr., 814 F.2d 1252 (8th Cir. 1987); Trudeau v. Wyrick, 713 F.2d 1360 (8th Cir. 1983);

and Martin v. Kelley, 803 F.2d 236 (6th Cir. 1986). A review of these decisions confirms

that they do not sweep as broadly as HRDC contends.

While all of these cited cases did require notice and some form of opportunity to

appeal a rejection decision, they also all dealt precisely with the situation noted above

where the specific pieces of challenged mail had been rejected pursuant to prison policies

after an individualized, content-specific determination as to whether the publication was

acceptable. For instance, in the Supreme Court's decision in Procunier, prison policies

prohibited inmates from sending or receiving letters that pertained to criminal activity,

were lewd, obscene or defamatory, or were otherwise inappropriate. 416 U.S. at 399. In

Murphy, the policy censored mailings from “any organization that espoused the

supremacy, purity or separation of the white race,” 814 F.2d at 1254. In Trudeau, jail

5) It contains material on the setting up and operating of criminal schemes. . . .;

6) It contains sexually explicit images.

Livingston, 683 F.3d at 208.

11

officials determined that a specific item of personal correspondence, which contained

money that was thought to be a part of a prisoner's fraudulent scheme to extort money

from good-hearted Samaritans, should be withheld. 713 F.2d at 1362-63. Finally, in

Kelley, a letter was censored because Sgt. Kelley had determined that the letter, which

was written on KKK letterhead and apparently mentioned the possibility of a KKK rally at

the prison, was inflammatory. 803 F.2d at 237 (6th Cir. 1986).

Here, it is undisputed that no individualized determination has to be made of any

of the content of the numerous unsolicited publications that HRDC sought to send to

prisoners at the BCDC. The postcard-only policy applies in a neutral fashion, across the

board, and without regard to content or the sender of the mailing. It does not take an

individualized determination based upon the contents of the mailings to determine that

books and 72-page editions of Prison Legal News are not postcards. This case is, at

bottom, simply not analogous to the true censorship cases noted above where stringent

due process protections have been afforded to publishers.

In the wake of these cases, the Court is left with a number of general postulates

several unanswered legal questions. First, it is clear that the Supreme Court has

required a certain amount of minimal procedural safeguards that must accompany a

decision to censor incoming mail. In addition, courts of appeals around the country have

extended this decision to a number of different factual scenarios and types of mail, some

dependent upon whether the prison regulation triggered an individualized review (i.e.

based on its content) and others dependent upon whether the publication was subscribed

to as opposed to bulk mail. For instance, where the specific government regulation

concerned censorship because of the content of the publication, courts have generally

12

required a level of due process typical of other governmental decisions (i.e. notice and an

opportunity to be heard). See, e.g., Montcalm Pub. Corp. v. Beck, 80 F.3d 105, 109 (4th

Cir. 1996) (finding that publishers were entitled to notice and an opportunity to be heard

where the prison regulation banned inmate access to publications that had been deemed

by prison officials to be obscene). Courts have also required notice and an opportunity to

be heard where the publication was subscribed to by prisoners. See, e.g., Prison Legal

News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001) (finding that subscription-based

mail must be afforded the same procedural protections as other types of allowed mail).

But, neither in any of these cases nor in any other set of cases has the Court found

a consensus position as to whether and how much process is due before a jail or prison

may reject incoming unsolicited publications based on content-neutral, generally

applicable regulations like a postcard-only policy. A short sampling of additional cases

illustrates that there is no clearly established law on this precise legal question. See, e.g.,

Prison Legal News v. Jones, 2015 WL 12911752, at *25 (N.D. Fla. Oct. 5, 2015) (finding

that a publisher must know the grounds upon which its publication has been rejected and

must have a reasonable opportunity to protest); Van Den Bosch v. Raemisch, 2009 WL

4663134, at *3-*5 (W.D. Wis. Dec. 1, 2009) (questioning whether due process protections

even apply, but nevertheless finding that receiving 35 notices of non-delivery out of 250

total rejected copies was not a due process violation); Cox v. Denning, 2014 WL 4843951,

at *13 (D. Kan. Sept. 29, 2014) (finding no clearly established law on the constitutionality

of a postcard-only mail policy as it applies to non-pre-approved, non-privileged mail);

Simpson v. Cnty. of Cape Girardeau, 202 F. Supp. 3d 1062, 1071 (E.D. Mo. 2016) (finding

13

that a jail’s postcard-only policy did not violate either the First or Fourteenth

. Amendments).?

In the present case, HRDC alleges that a number of its unsolicited mailings to

prisoners at the BCDC were rejected or withheld by prison officials pursuant to the

postcard-only policy. HRDC alleges that, since 2016, some 110 mailings have been

returned to HRDC, “many with notations such as ‘Refused’ or ‘Return to Sender Post

Cards Only.” (Doc. 1, p. 7). HRDC contends that still other mailings were not returned at

all. Id. Although the Court was initially concerned by what appeared to be a haphazard

way of notifying the sender of the reason for the rejection, the Defendants’ counsel

explained that the varied responses to the unsolicited mail were a function of the fact that

some of these mailings were sent to prisoners who were no longer inmates at the jail at

the time the mailings were received.

For the aforementioned reasons, the Court finds that these officials did not violate

clearly established law at the time they refused to deliver unsolicited mailings that, by

their very nature and irrespective of their content, were in contravention of the jail’s

postcard-only policy. It is undisputed that the BCDC put HRDC on notice of its postcard

3 Adding to the legal uncertainty here is the fact that several decisions from the Eighth

Circuit suggest that this circuit would take an even narrower view of the obligations that

prison officials owe to individuals who have mail rejected pursuant to a neutral, generally

applicable, officially-sanctioned policy. See, e.g., Holloway v. Pigman, 884 F.2d 365, 367

(8th Cir. 1989) (upholding against constitutional challenge a regulation that allowed prison

officials to return mail that violated prison regulations without allowing inmates an

opportunity to protest); Harris v. Bolin, 950 F.2d 547, 550 (8th Cir. 1991) (holding that the

failure to notify prisoner of withheld mail did not rise to deprivation of due process); Knight

v. Lombardi, 952 F.2d 177, 179 (8th Cir. 1991) (finding that delayed notice of rejected

mail was insufficient to make out a due process violation); Kaden v. Slykhuis, 651 F.3d

966, 968 (8th Cir. 2011) (holding that “prison officials may lawfully censor prison mail that

is detrimental to the security, good order and discipline of the institution” if it advances a

legitimate penological interest).

14

policy through the rejections it sent. As an additional matter, although it is not at all clear

what—if any—type of objection or appeal process might be required, it is beyond dispute

given HRDC’s statements during oral argument that they did not inquire as to any

available avenues to challenge the policy. As Defendants point out, Arkansas law also

provides a mechanism by which any person having a demand against any county can

present it to the county court. A.C.A. § 14-23-101. Whether this statutory section is

sufficient to satisfy whatever challenge/appeal process the law may require is unclear.

What is clear is that HRDC did nothing to pursue this option nor did it inquire as to any

opportunities to appeal the rejections of its publications that it has been on notice of for

over a year.

Thus, given all of the above, the Court finds that the only matter clearly established

in this area of law is that no matter has been clearly established. The cases cited by both

HRDC and Defendants provide little clarity as to the extent of the County's obligations

under the law, are readily distinguishable based upon the facts of this case, and would

not therefore have put these officers on reasonable notice that they were violating clearly

established law. Moreover, it is particularly telling to the Court that even in circuits, like

the Ninth, where cases have required more stringent notice and appeal procedures,

courts frequently find individual officers entitled to qualified immunity even if in the same

opinion they strike down the jail’s policy. See, e.g., Prison Legal News v. Cook, 238 F.3d

1145, 1152 (9th Cir. 2001).

15

For the foregoing reasons, the Court finds that these officials are also entitled to

qualified immunity on the Fourteenth Amendment Due Process claim.* These claims

asserted against these officials in their individual capacities will be DISMISSED.

B. Motion for a Preliminary Injunction

Turning now to HRDC’s Motion for a Preliminary Injunction, it is well established

that “a preliminary injunction is an extraordinary and drastic remedy, one that should not

be granted unless the movant, by a clear showing, carries the burden of persuasion.”

Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (citing 11A C. Wright, A. Miller, & M.

Kane, Federal Practice and Procedure § 2948, pp. 129-30 (2d ed. 1995)) (emphasis in

original).

Although the factors to be considered when deciding whether this burden has been

met are similar nationwide, in the Eighth Circuit, district courts should consider: (1) the

threat of irreparable harm to the movant; (2) the balance between the harm and the injury

that granting the injunction will inflict on the other party; (3) the movant's likelihood of

4 HRDC argued at the case management hearing that it was too soon to make the

determination as to whether these officials were entitled to qualified immunity, especially

given the chance that discovery might reveal that Baxter County adopted this policy to

frustrate HRDC’s interest in sending mail to prisoners. This is, both legally and factually,

incorrect. As a legal matter, the Eighth Circuit considered a similar challenge to a prison’s

withholding of mail in Payne v. Britten, 749 F.3d 697 (8th Cir. 2014), concluding that,

notwithstanding certain outstanding factual questions, “[w]hen an official properly and

timely files a motion for dismissal or for summary judgment asserting qualified immunity

... the district court must issue a reviewable ruling—either granting or denying qualified

immunity—before requiring the officials to progress further in litigation at the district court.”

749 F.3d at 699. Additionally, as the Court’s above discussion indicated, the law is far

from clearly established on either of the two claims that HRDC asserts, entitling these

officials to dismissal on qualified immunity grounds. Finally, as a factual matter, the Court

would note that it would be impossible for a policy instituted in 2011 by Baxter County to

have been designed to deliberately frustrate HRDC’s mission when the Complaint alleges

that rejections of its publications by BCDC did not begin until five years later.

16

success on the merits; and (4) whether the injunction is in the public interest. Dataphase

Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 114 (8th Cir. 1981). The Court will discuss each

factor in turn, noting along the way where the analysis differs for HRDC’s First and

Fourteenth Amendment claims.

1. Threat of Irreparable Harm to the Movant

It is well established that “[t]he loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable [harm].” Elrod v. Burns, 427 U.S.

347, 373-74 (1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971));

see also Marcus v. lowa Pub. Television, 97 F.3d 1137, 1130 (8th Cir. 1996) (“If [the

movants] are correct and their First Amendment rights have been violated, this constitutes

an irreparable harm.”). In the instant case, the alleged deprivation of HRDC’s right to

communicate with BCDC prisoners might otherwise constitute irreparable harm.

However, the Court notes that the allegations in the Complaint detail that some 110 pieces

of HRDC materials have been rejected by Defendants since August of 2016. Despite

these 110 different notices of rejection, HRDC waited an entire year before seeking some

type of redress for rejections which it claims irreparably harmed it..

Thus, the Court discounts HRDC’s assertions that it will be irreparably harmed in

the absence of preliminary injunctive relief. See, e.g., Prison Legal News v. Cnty. of Cook,

2016 WL 6833977, at *11 (N.D. Ill. Nov. 21, 2016) (denying preliminary injunctive relief

and finding that Prison Legal News’ argument that-its publications must be delivered

quickly to prisoners lest the content become irrelevant was “severely undermined” by the

fact that it waited over a year to file its complaint following the first notice of rejection it

17

received). As a result, the Court finds that this factor weighs against preliminary injunctive

relief given HRDC’s year-long delay in seeking redress.

2. Balance Between Harm to Movant and Non-Movant

The Court finds that this factor favors neither party. If this Court enjoined

Defendants’ postcard-only policy, the County would likely have to devote significant time,

energy, money, and personnel to crafting and implementing a new mail policy when it has

not even been decided that its current policy violates either HRDC’s First or Fourteenth

Amendment rights. HRDC argued during the case management hearing that the County

could simply do what it did before it switched to the postcard-only policy in 2011. That

argument severely underestimates the burden that preliminary injunctive relief would

impose on the County and overestimates the judiciary's ability to craft regulations given

the “difficult and delicate problems of prison management.” Thornburgh v. Abbott, 490

U.S. 401, 407-08 (1989). Moreover, given the Court’s concerns about just how unclear

the law is both as to whether this type of policy violates the First Amendment and/or what

kind and how much notice/opportunity, if any, must be given to a publisher, it feels

compelled to decline HRDC’s invitation to enjoin the County's practices, at least until a

full decision on the merits, aided by a fulsome evidentiary retort can be made.

3. Likelihood of Success on the Merits

In the preliminary injunction context, strong consideration should be given to the

probability of sepa the merits. Notwithstanding this, the Court’s approach should

be flexible and consider the particular circumstances of each case, and no single factor

is determinative. Dataphase, 640 F.2d at 113 (“In every case, [the likelihood of movant’s

success] must be examined in the context of the relative injuries to the parties and the

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public.”). Unlike the other factors, the Court must parse out its analysis on the likelihood -

of success prong into a First and Fourteenth Amendment section, as the analysis differs

for the two claims. As an initial matter, however, the Court would reiterate the concern it

expressed when it ruled from the bench on this motion that the fact that the law is so

divergent on both of these issues weighs against a conclusion based on this record that

HRDC is likely to succeed on the merits of either claim.

a. First Amendment Claim

It is established law that “[p]rison walls do not form a barrier separating prison

inmates from the protections of the Constitution,’ . . . nor do they bar free citizens from

exercising their own constitutional rights by reaching out to those on the ‘inside[.]’””

Thornburgh, 490 U.S. at 407 (citing Turner v. Safley, 482 U.S. 78, 84, 94-99 (1987)) (other

citations omitted). But, “these rights must be exercised with due regard for the

‘inordinately difficult undertaking” of operating a modern prison. /d. (citing Turner, 482

U.S. at 85). Put another way, publishers seeking to communicate with prisoners on the

inside “enjoy the protections of the First Amendment except to the extent that prison

regulations curtailing those protections are ‘reasonably related to legitimate penological

interests.” Livingston, 683 F.3d at 213 (quoting Turner, 482 U.S. at 89).°

When assessing the reasonableness of Baxter County's current policy under

Turner, the Court must consider (1) whether the regulation is rationally related to a

legitimate penological goal; (2) whether alternative means of exercising First Amendment

5 Defendants argued in their briefs and during the case management hearing that Turner

does not apply to a case like this one where the publisher seeks to challenge a prison’s

mail policy. While there is language in the opinion supportive of that view, the Court notes

that every decision it has found since that point has applied Turner to claims asserted by

publishers. This Court sees no good reason to deviate from that trend.

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rights remain available; (3) the effect that the asserted right will have on prison employees

and other prisoners; and (4) whether there are obvious alternative means of

accommodating the asserted right. Turner, 482 U.S. at 89-91.

i. Legitimate Penological Goal

While federal courts have often given deference to prison officials concerning their

administrative decisions and policies, see Bell v. Wolfish, 441 U.S. 520, 547 (1979), there

must still be a legitimate government objective underlying the policy, Beard v. Banks, 548

U.S. 521, 535 (2006) (“Turner requires prison authorities to show more than a formalistic

logical connection between a regulation and a penological objective.”).

Defendants here argue that the jail’s policy is constitutional and related to

legitimate penological goals. The County's website states that the policy was

implemented in 2011 with two goals in mind: 1) as a security precaution as a proactive

measure to decrease the amount of contraband coming into the Detention Center, and 2)

as a cost-saving measure to the County, which has to supply postage for indigent

inmates.® Based on the current evidence provided to the Court, it appears that the policy

itself is applied neutrally to all incoming communications. However, HRDC alleges that

the policy goes too far and is not rationally related to any underlying objective. Defendants

argue that the policy furthers a legitimate penological interest, but their briefing does

nothing to further prove that interest.

It is important for the Court to reiterate here that the burden is not on the

Defendants to prove the rationality of the policy, but on HRDC to persuade the Court that

6 Baxter County Sheriff, New Rules for Jail Inmate Mail Starting January 2nd (Dec. 7,

2011), https://www.baxtercountysheriff.com/press_view.php?id=827 (last visited on

December 2, 2017).

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injunctive relief is appropriate and that “the logical connection between the regulation and

the asserted goal is so remote as to render the policy arbitrary or irrational.” Turner, 482

U.S. at 89-90. In fact, “case law does not require defendant to introduce ‘actual proof that

a legitimate interest will be furthered by the challenged policy. The connection between

the two need be only objectively rational.’”” Simpson v. Cnty. of Cape Girardeau, 202 F.

Supp. 3d 1062, 1069 (E.D. Mo. 2016) (quoting Herlein v. Higgins, 172 F.3d 1089, 1091

(8th Cir. 1999)). In Herfein, the Eighth Circuit held that a ban on music cassettes bearing

a warning for explicit lyrics survived scrutiny under the Turner test despite the fact that at

trial the Defendants had not put forward any evidence connecting prison security with

banning these tapes. 172 F.3d at 1090-92.

Surely then, the Court is not in a position at this point, notwithstanding the expert

affidavit submitted by HRDC, to conclude that the connection between the Defendants’

postcard-only policy is so remotely connected to the County’s asserted interests in

efficiency and security as to be arbitrary or irrational. This is especially the case given

HRDC’s acknowledgement during oral argument that several other counties in Arkansas

maintain similar postcard-only policies and in light of the fact that the State of Arkansas

in August of 2017 implemented a new restrictive mail policy of its own due to increasing

levels of contraband coming into facilities through prison mail.’

ii, Alternative Means of Exercising the Right

The next Turner factor considers whether there are available alternative means to

exercise the asserted right. Here, although the Defendants do not address it in their

7 Arkansas Department of Correction, Mail & Money, http://adc.arkansas.gov/mail-

money (last visited December 2, 2017). .

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briefing, there are alternative means of communication available to HRDC. First, HRDC

could communicate with eta via postcards. In addition, nothing prevents HRDC

from attempting to donate its materials to BCDC free of charge in order to disseminate its

message. While these options might not be preferable to unfettered access to send its

materials into the jail, case law suggests that “if [plaintiffs] have alternative means to

exercise the asserted right, courts should be particularly conscious of the measure of

judicial deference owed to corrections officials . . . in gauging the validity of the regulation.”

Simpson, 202 F. Supp. 3d at 1070 (quoting Turner, 482 U.S. at 90) (internal citations

omitted). At this stage, this factor weighs against granting preliminary injunctive relief.

iii. The Impact of Accommodation

Next, the Court must consider the impact of accommodation, or the impact of

allowing HRDC to send its various communications to BCDC prisoners. For this factor,

the analysis focuses on “the impact . .. on guards and other inmates, and on the allocation

of prison resources generally,” Turner, 482 U.S. at 90. Where the accommodation sought

by plaintiffs would have a “significant ‘ripple effect’ on fellow inmates or on prison staff,

courts should be particularly deferential to the informed discretion of corrections officials.”

Id. □

Defendants assert that eliminating the postcard-only policy will allow limitless

communication with prisoners. While HRDC certainly is not seeking unrestricted access

to prisoners held at BCDC, enjoining the postcard-only policy while this litigation is

pending would certainly cause a ripple effect as the jail would seemingly have no limitation

on what type of mail could be sent to prisoners. HRDC argues, as it did on the balance of

harm factor, that Defendants could merely revert to the policy they had in effect back in

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2011 and that this would not lead to an onslaught of mailings. This is especially the case,

it argues, given the small population of about 100 prisoners at BCDC. But, HRDC fails to

appreciate the other side of the equation, which is that this county jail, unlike a prison,

has a constantly changing population since many of these individuals are there only until

their trials, and because it has a much smaller staff than a prison. These two factors lead

the Court to conclude that enjoining the policy during the pendency of this litigation would

potentially allow HRDC (and other publishers for that matter) to flood the jail with mailings,

mailings that this small county jail may be ill-equipped to process in time to get them

distributed to these individuals before they are moved elsewhere. HRDC on its own, for

instance, alleges that it sends around 8 different types of mailings to prisoners.® Thus, the

Court cannot conclude that preliminary injunctive relief would have the minimal burden

that HRDC alleges.

iv. Absence of Ready Alternatives

The final factor the Court considers is the absence of a ready alternative. “Ready

alternatives may suggest an exaggerated response to a problem.” Jacklovich v.

Simmons, 392 F.3d 420, 432 (10th Cir. 2004). When a plaintiff can point to an alternative

policy that fully accommodates a prisoner's or publisher's rights a court may consider that

as evidence that the currently policy is not reasonable. Livingston, 683 F.3d at 219 (citing

Turner, 482 U.S. at 90-91). HRDC points to several alternative policies that would permit

communication and would not be detrimental to BCDC’s security such as extra screening

8 HRDC alleges that its materials include the 72-page Prison Legal News magazine,

around 50 softcover books, legal reference books, self-help books, a Habeas Citebook,

informational brochure packets, copies of judicial opinions, and legal letters. See Doc. 1,

1] 17-19.

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procedures, both visual and physical and inspections, and random searches. (Doc. 26, p.

17). Because HRDC has proposed several alternatives, even if they would ultimately

prove too burdensome to actually implement, the Court finds that this factor favors HRDC.

On the whole, however, the Court cannot say that HRDC has met its burden to

show that it is likely to succeed on the merits of its First Amendment claim. This is for two

reasons. First, the case law on the First Amendment claim is too divergent for the Court

to conclude that HRDC’s First Amendment rights were likely violated. Second, at this

stage in the litigation and with the scant evidence that it has before it, it cannot conclude

that, on balance, the Turner factors favor injunctive relief at this point.°

b. Due Process Claim

As HRDC correctly stated during oral argument, courts do not generally go back

and repeat analysis of the Turner factors on the due process claim after already applying

those factors to the asserted First Amendment claim. Therefore, the Court’s starting, and

finishing, point on this factor is that the cases in this area of law are entirely unclear about

what type of process is due to a publisher like HRDC when several of its mailings to

prisoners have been rejected not because of some individualized determination that their

content violated prison regulations but rather because they did not fit on a postcard. While

recognizing that other courts have required jails to provide notice, the Court does not

have enough evidence before it on this point to conclude that Defendants’ notices to

9 See, e.g., Prison Legal News v. Babeu, 552 Fed. Appx. 747, 748 (9th Cir. 2014) (finding

- no abuse of discretion when a district court judge took “the extraordinarily cautious step

of seeking additional briefing and evidence on the motion” before making a determination

about whether to exercise equity jurisdiction). While that case concerned a permanent

injunction, it nevertheless recognized that the decision whether to grant injunctive relief

is a matter committed to the sound discretion of the district court.

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HRDC that HRDC’s publications were being rejected due to the postcard-only policy was

insufficient.

It also cannot conclude based on what has been submitted at this point that HRDC

was entitled to appeal an official’s conclusion that its magazines or books were not

postcards to another official who, presumably, would have looked at the 72-page

magazines or books and immediately confirmed that these were not 4” by 6” postcards.

The Court certainly does not mean to demean HRDC's position with its last statement,

but the futility of having a second official confirm that books and thick magazines are not

postcards highlights the Court’s conclusion that this is not, at bottom, analogous to the

censorship cases that HRDC cites where courts have required a second official to confirm

a prior determination to censor an incoming publication. Based on the current case law

and the evidence it has before it, the Court finds that HRDC has not demonstrated that it

is likely to succeed on the merits of its due process claim.

4. Public Interest

The public interest unequivocally favors protecting First Amendment liberties.

Emineth v. Jaeger, 901 F. Supp. 2d 1138, 1143 (D.N.D. 2012) (quoting /owa Right to Life

Comm. v. Williams, 187 F.3d 963, 970 (8th Cir. 1999)). Also, because the protection of a

constitutional right is always in the public interest, the grant of a preliminary injunction

generally depends on the movant's likelihood of success on the merits. Edwards v. Beck,

946 F. Supp. 2d 843, 850 (E.D. Ark. 2013) (citing Phelps-Roper v. Nixon, 509 F.3d 480,

485 (8th Cir. 2007)).

Accordingly, while protecting the public interest would favor protecting HRDC’s

assertions of its First Amendment liberties, the Court also notes that protecting the public

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interest also favors upholding reasonable prison regulations that are logically connected

either to protecting the public fisc or the people incarcerated in the County's jail from

harmful contraband. In addition, because of the Court’s previously stated concerns about

HRDC’s ability to succeed on the merits of either of its claims, it is not clear that injunctive

relief at this point would be in the public interest.

While some of the Dataphase factors favor HRDC, the Court concludes that, on

balance, HRDC has not met its burden of making a clear showing that preliminary

injunctive relief is warranted at this point. But, this should not be taken as an indication of

what HRDC ultimately may be able to establish when a decision on the merits is reached.

Thus, the Court will DENY HRDC’s First Motion for a Preliminary Injunction (Doc. 26).

lll. CONCLUSION

IT IS THEREFORE ORDERED that the Motion to Dismiss filed by Defendants

Baxter County, John Montgomery, Brad Lewis, and Eric Neal (Doc. 18) is GRANTED IN

PART AND DENIED IN PART as described above.

IT iS FURTHER ORDERED that HRDC’s First Motion for a Preliminary Injunction

(Doc. 26) is DENIED. “>

ITIS SOORDERED on this _~“ _ day of Sea 2OVTS ag

A

0 A

TIMOT , BROOk

NITED STATES DISTRICT JUDGE

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