Robert Bethel v. Charlotte Jenkins

RECOMMENDED FOR PUBLICATION

Pursuant to Sixth Circuit I.O.P. 32.1(b)

File Name: 21a0048p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

┐

ROBERT W. BETHEL,

│

Plaintiff-Appellant, │

> No. 19-3392

│

v. │

│

CHARLOTTE JENKINS, Warden; MICHAEL ALLEN │

EIRING, Lieutenant; TIMOTHY SHOOP, Warden, │

Defendants-Appellees. │

┘

Appeal from the United States District Court

for the Southern District of Ohio at Columbus.

No. 2:15-cv-03016—Algenon L. Marbley, District Judge.

Decided and Filed: February 25, 2021

Before: BATCHELDER, CLAY, and BUSH, Circuit Judges.

_________________

COUNSEL

ON BRIEF: Mindy Worly, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,

Ohio, for Appellees. Robert W. Bethel, Chillicothe, Ohio, pro se.

_________________

OPINION

_________________

CLAY, Circuit Judge. Plaintiff Robert W. Bethel, proceeding pro se, appeals the district

court’s grant of summary judgment to Defendants, Warden Charlotte Jenkins, Lieutenant

Michael Allen Eiring, and Warden Timothy Shoop, former and current officials at Chillicothe

Correctional Institution (“CCI”). On appeal, Bethel argues that the district court erred by

(1) finding that CCI’s policy—prohibiting inmates from receiving packages ordered by third

parties from unapproved vendors—did not violate his First Amendment right to free speech

No. 19-3392 Bethel v. Jenkins, et al. Page 2

pursuant to Turner v. Safley, 482 U.S. 78 (1987); (2) finding that he had no protected interest

under procedural due process that was violated by the policy and that Bethel received sufficient

process; and (3) determining that Defendants were entitled to qualified immunity and failing to

find that Defendants violated Bethel’s clearly established rights. For the reasons set forth below,

we AFFIRM the district court’s judgment.

BACKGROUND

Bethel is presently incarcerated at CCI in Chillicothe, Ohio, serving a capital sentence.

On February 6, 2015, pursuant to Ohio Department of Rehabilitation and Corrections (“ODRC”)

Policy 61-PRP-01, Defendants Jenkins and Eiring implemented a policy at CCI prohibiting

“orders for printed material placed by third parties through unapproved vendors.” (R. 68-5,

Jenkins Decl. at PageID # 1398; R. 67-1, Eiring Mem. at PageID # 1080–81.) An inmate’s

family or friends could only place orders on their behalf through an approved vendor, and any

orders from unapproved vendors had to “be initiated by the inmate and approved by CCI staff.”

(R. 67-1, Eiring Mem. at PageID # 1081.) And in the event that “an inmate [was] sent a package

from an unapproved source,” the inmate had “the option of returning the package to the vendor

at the inmate’s expense or having the package destroyed.” (Id.) Pursuant to this policy, between

March 2015 and June 2015, Defendants withheld four books from Bethel on the grounds that

they were not ordered by Bethel, and Bethel received notice explaining why the books were

being withheld and offering him the option of having the books mailed back or destroyed.

On multiple occasions, Bethel tried to appeal the withholding decision by requesting a

Form DRC 4147 from Eiring, who explained that the books were withheld because they were not

ordered by Bethel through his institutional account and, had they been withheld based on

content, he could receive a Form DRC 4147. Bethel also used the prison’s internal

communication system to ask Eiring and mailroom staff whether his books were withheld

because they believed the books were not from a distributor or because the books were deemed

to pose a security threat to CCI. Both Eiring and a mailroom employee responded that the books

were withheld because they were not ordered by Bethel from his institutional account. Bethel

later learned from Gary Otte and Freddie McNeill, also incarcerated at CCI, that they had both

ordered and received religious books, which were initially withheld for being ordered by a third

No. 19-3392 Bethel v. Jenkins, et al. Page 3

party but were then intercepted by the chaplain for review of their religious content. The CCI

Chaplain confirmed this occurrence, informing Bethel that Defendants were allowing violations

of the policy by permitting the chaplain to screen religious printed materials ordered by third

parties that would otherwise be withheld and then to give those materials to the inmates for

whom they were intended.

Bethel proceeded to file a grievance against Eiring and multiple informal complaint

resolutions, requesting that CCI stop implementing this policy and that he be reimbursed for the

postage he purchased to return the books that were withheld. His grievance was denied on the

ground that the book was ordered by a third party from an unapproved vendor, in violation of

ODRC policy, on which Bethel had received a memorandum. Bethel continued to file

grievances on the same grounds, which were similarly denied and affirmed on appeal to the

Chief Inspector.

Bethel filed suit under 42 U.S.C. § 1983 against Defendants Jenkins and Eiring for

violating his constitutional rights under the Free Speech and Establishment Clauses of the First

Amendment as well as the Due Process and Equal Protection Clauses of the Fourteenth

Amendment in implementing and enforcing this policy. He sued Defendants in their individual

and official capacities and sought declaratory and injunctive relief, as well as compensatory and

nominal damages. Defendants moved for judgment on the pleadings, which, upon the

recommendation of a magistrate judge, was granted by the district court. We affirmed the

dismissal of the Establishment Clause claim but reversed the dismissal of the Free Speech and

Procedural Due Process claims, finding that Bethel had sufficiently alleged these claims.1 Bethel

v. Jenkins, No. 16-4185, 2017 WL 4863118, at *4 (6th Cir. Sept. 22, 2017).

On remand, Bethel filed an amended complaint, seeking declaratory and injunctive relief

as well as compensatory, nominal, and punitive damages against Defendants for free speech and

due process violations. He alleged that (1) Defendants violated his right to free speech by

preventing him from receiving printed materials ordered by third parties pursuant to CCI policy

and by allowing for violation of the policy for religious materials; and (2) Defendants violated

1Bethel failed to raise the dismissal of his Equal Protection claim on appeal, so we deemed it waived.

Bethel, 2017 WL 4863118, at *1.

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his right to procedural due process by withholding these books and denying his requests to

appeal the withholding decisions as well as to receive pre-approval exemption from the policy.

Notably, before the first appeal was filed and decided, on March 1, 2017, CCI rescinded the

policy and replaced it with one allowing orders for printed materials by a third party from a

publisher or distributor.2

Defendants and Bethel both moved for summary judgment on all claims. Defendants

argued that they were entitled to judgment as a matter of law because (1) the policy of banning

third-party book orders from unapproved vendors was reasonably related to the legitimate

penological interest of preventing contraband from entering the prison and preserving prison

security; (2) the policy was a reasonable regulation on any interest Bethel had in receiving the

books and Bethel failed to allege insufficient post-deprivation remedies; and (3) Bethel had not

demonstrated that he had a clearly established right to obtain the books withheld.

In his motion for summary judgment, Bethel argued that (1) Ohio law provided him the

right to receive publications that do not pose a security threat to the prison and come from a

publisher or distributor, and Defendants’ failure to give him notice of the reason for withholding

the books and to provide him review of the withholding decisions violated his due process;

(2) the policy did not reasonably relate to the legitimate penological interest of preventing

contraband from entering the prison; and (3) Defendants were not entitled to qualified immunity

because they violated clearly established state law requiring them to provide Bethel with notice

and an opportunity to be heard regarding the withheld publications and giving him a right to

receive publications that do not pose a security threat.

2Defendants filed a motion to dismiss the original complaint for mootness based on the rescinding of the

old policy, but the district court deemed the motion to dismiss moot based on Bethel’s filing of the amended

complaint. Defendants then filed a motion to dismiss the amended complaint for mootness, but the district court

denied this motion, based on the magistrate judge’s recommendation. The magistrate judge found that the claims for

declaratory and injunctive relief were not moot because Defendants had failed to show that they could not be

reasonably expected to reinstate the policy, and that his claims for damages could not be mooted by voluntary

cessation of the policy or dismissed on the grounds that it was “his own mother, not Defendants, who prevented him

from ordering the printed materials he wanted.” (R. 63, Order and R & R at PageID # 1002.) The magistrate judge

did say that “the Undersigned expresses no opinion on the validity of Plaintiff’s claims if additional evidence is

submitted at the summary judgment stage.” (Id.)

No. 19-3392 Bethel v. Jenkins, et al. Page 5

Based on the recommendation of the magistrate judge, the district court granted summary

judgment to Defendants and denied summary judgment to Bethel.3 The district court found that

the magistrate judge correctly determined that the “publisher only” policy was neutral and

supported by the legitimate penological interest of preventing the entry of contraband into the

prison, and there were reasonable alternative means for Bethel to acquire these books. The

district court also found that the magistrate judge correctly determined that Bethel received

sufficient process following the withholding of his books through written notice, the prison

grievance procedure, and the ability to send back the book to the third party. Finally, the district

court agreed with the magistrate judge that Defendants were entitled to qualified immunity in

their individual capacities because they did not violate Bethel’s clearly established rights under

the First and Fourteenth Amendments. This timely appeal followed.

DISCUSSION

Standard of Review

“This Court reviews a district court’s grant of summary judgment de novo.” Moran v.

Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015). This includes a district court’s determination of

qualified immunity. See Daugherty v. Campbell, 935 F.2d 780, 783 (6th Cir. 1991) (“Whether

qualified immunity is applicable to an official’s actions is a question of law.”). Summary

judgment will be granted “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). A material

fact is one “that might affect the outcome of the suit,” and a genuine dispute exists “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.”

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

“The moving party bears the burden of showing that no genuine issues of material fact

exist.” Rafferty v. Trumbull County, 915 F.3d 1087, 1093 (6th Cir. 2019). Once the moving

party has met their burden, the burden then shifts to the non-moving party to demonstrate

“specific facts showing that there is a genuine issue for trial,” although the evidence need not be

3The district court, pursuant to the magistrate judge’s recommendation, also granted Bethel’s motion for

leave to amend the complaint naming Timothy Shoop, the current Warden of CCI, as a defendant because Jenkins

no longer served as Warden and could not provide the requested injunctive relief.

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“in a form that would be admissible at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)

(internal quotations omitted). All reasonable inferences will be drawn in favor of the non-

moving party. Mutchler v. Dunlap Mem’l Hosp., 485 F.3d 854, 857 (6th Cir. 2007). “[A]t the

summary judgment stage the judge’s function is not himself to weigh the evidence and determine

the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson,

477 U.S. at 249; Moran, 788 F.3d at 204 (noting that the district court cannot make credibility

judgments or weigh the evidence at summary judgment).

I. Violation of Bethel’s First Amendment Right to Information and Ideas

Bethel argues that the district court erred in granting summary judgment to Defendants

on his First Amendment claim based on an improper application of the Turner factors. The First

Amendment protects “the right to receive information and ideas,” which, as applicable in the

prison context, extends to the right to receive mail and to access reading material. Kleindienst v.

Mandel, 408 U.S. 753, 762 (1972); see also Parrish v. Johnson, 800 F.2d 600, 603 (6th Cir.

1986) (noting that “prisoners have some First Amendment rights in receiving mail”);

Thornburgh v. Abbott, 490 U.S. 401, 407–08 (1989) (describing publishers’ “legitimate First

Amendment interest in access to prisoners” in the context of analyzing a prisoner’s right to

receive publications). As recognized by the Supreme Court, individuals retain some

constitutional protections while incarcerated, including rights provided by the First Amendment.

Turner v. Safley, 482 U.S. 78, 84 (1987) (“[F]ederal courts must take cognizance of the valid

constitutional claims of prison inmates.”). Because lawful incarceration necessarily limits an

individual’s constitutional rights while in prison, “a prison 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.” Pell v. Procunier, 417 U.S. 817, 822 (1974). And given

that “the realities of running a penal institution are complex and difficult,” prison officials are

afforded “wide-ranging deference” in their decisions regarding prison administration and

regulation as courts are generally ill-equipped to deal with these problems. Jones v. N.C.

Prisoners’ Lab. Union, Inc., 433 U.S. 119, 126 (1977).

Taking into account prison officials’ need for flexibility in making day-to-day decisions

on prison operations, the Supreme Court held in Turner that “when a prison regulation impinges

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on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate

penological interests.” 482 U.S. at 89. In that case, the Supreme Court laid out four factors

“relevant in determining the reasonableness of the [prison] regulation at issue” as follows:

(1) whether there is a “‘valid rational connection’ between the prison regulation and the

legitimate governmental interest put forward to justify it;” (2) “whether there are alternative

means of exercising the right that remain open to prison inmates;” (3) “the impact [that]

accommodation of the asserted constitutional right will have on guards and other inmates, and on

the allocation of prison resources generally;” and (4) “the absence of ready alternatives” to the

regulation for prison officials. Id. at 89–90 (internal citation omitted).

Regarding the first factor, the “logical connection between the regulation and the asserted

goal” cannot be “so remote as to render the policy arbitrary or irrational.” Turner, 482 U.S. at

89–90. Additionally, “the governmental objective must be a legitimate and neutral one,” and

neutrality in the First Amendment context means that it must be applied “without regard to the

content of expression.” Id. at 90. But see Hanrahan v. Mohr, 905 F.3d 947, 956–57 (6th Cir.

2018) (“Determining that specific speech, based on its content, carries a security risk while other

speech does not and then drawing a distinction based on this legitimate penological objective

satisfies Turner’s neutrality requirement.”). If there is no rational connection between the

regulation and the state justification, then “the regulation is unconstitutional, and the other

factors do not matter.” Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999).

In the present case, as noted by the magistrate judge, Defendants argue that “the policy

was implemented to eliminate security threats posed by contraband clandestinely transferred into

the prison through gift publications.” (R. 78, R. & R. at PageID # 1673.) In support of this

justification,4 Defendants offer the declaration of current CCI Warden Timothy Shoop, who

explained that “[t]he problem with third-party book purchases is that after a book is purchased,

4In the Report and Recommendation, the magistrate judge describes the reason for the policy offered by the

Defendants as a post hoc justification and proceeds to discuss whether Turner allows for the regulations in question

to be justified by post hoc justifications, noting a circuit split on this issue. However, Defendants have maintained

that the policy was animated by a concern for prison security, initially framing the justification for the policy as it

being a “cost-effective protection against contraband” and providing more explanation as to the justification in the

motion for summary judgment. (R. 23, R. & R. at PageID # 231); see also Bethel, 2017 WL 4863118, at *2 (“The

defendants contend that this policy was enacted ‘to cost-effectively eliminate the risk that a third party could

surreptitiously repackage books in an attempt to flood the institution with hidden contraband.’”).

No. 19-3392 Bethel v. Jenkins, et al. Page 8

contraband can be secreted in the binding and/or between pages.” (R. 68-4, Shoop Decl. at

PageID # 1394.) He further noted that the third party could repackage and ship the book to the

prison with a label to make the book “look like it is coming directly from a publisher or

distributor,” and these books had no tracking numbers to determine whether they were “being

shipped directly from a publisher or distributor.” (Id.) And he provided two examples from July

2018, following the rescinding of the original policy, in which cell phones were hidden in books

made to look as if they were sent from Barnes & Noble. (Id.)

Based on this undisputed evidence, the district court did not err in finding that the

regulation bore a rational connection to the legitimate interest in preventing contraband from

entering the prison and threatening security. The regulation is akin to “publisher only policies”

that only allow prisoners to receive publications from approved publishers and vendors, which

have been previously upheld. Bell v. Wolfish, 441 U.S. 520, 550 (1979) (holding that a

“prohibition against receipt of hardback books unless mailed directly from publishers, book

clubs, or bookstores does not violate the First Amendment rights of MCC inmates”); Ward v.

Washtenaw Cnty. Sheriff’s Dep’t, 881 F.2d 325, 329–30 (6th Cir. 1989) (extending Bell to a

“publisher only” policy for soft cover materials). And Defendants provided specific facts and

evidence demonstrating the connection between prohibiting third-party orders from unapproved

vendors and the entry of contraband into the prison. The regulation is supported by a legitimate

justification in “protecting prison security,” especially given the particular “security risk

presented by incoming publications,” as recognized by this Court and the Supreme Court.

Thornburgh, 490 U.S. at 415–16; Parrish, 800 F.2d at 603. Additionally, the regulation was

neutrally applied because the regulation prohibited printed materials based on how they were

ordered (i.e., by a third party from an unapproved vendor) as opposed to their content. See

Thornburgh, 490 U.S. at 415.

Bethel contends that Defendants failed to establish a nexus between the policy and the

proffered penological interest in preventing contraband from entering the prison through forged

packages because CCI does not use tracking numbers for inmate orders. However, as the

magistrate judge correctly noted, this fact does not place Defendants’ evidence of contraband

entering the prison through third party packages in dispute. Additionally, regardless of whether

No. 19-3392 Bethel v. Jenkins, et al. Page 9

an inmate’s order includes tracking numbers, CCI can look to the Inmate Demand Statement for

an inmate account to ascertain the amount of the transaction, an inmate’s adjusted account

balance, the purchase date, and the recipient of the funds. Bethel also argues that the connection

between the policy and the justification was undermined by Defendants’ disregard of the policy

in screening and providing religious materials sent from third parties to inmates, despite their

posing the same threat to security as non-religious materials. But, as we noted in Bethel’s first

appeal as to his Establishment Clause claim, Defendants were allowed to accommodate inmates’

religious practices by essentially exempting religious materials from the policy in order to meet

their obligations under the Free Exercise Clause.5 Bethel, 2017 WL 4863118, at *3 (finding that

“[a] reasonable person would not view the exception as an endorsement of religion but as an

accommodation of inmate religious practices”); see also Hobbie v. Unemployment Appeals

Comm’n of Fla., 480 U.S. 136, 144–45 (1987) (noting that the Supreme Court “has long

recognized that the government may (and sometimes must) accommodate religious practices and

that it may do so without violating the Establishment Clause”).

As for the second, third, and fourth factors from Turner, we have noted that “[t]he final

three Turner factors should be balanced together.” Flagner v. Wilkinson, 241 F.3d 475, 484 (6th

Cir. 2001). Regarding alternative means of exercising the right at issue, the Supreme Court has

indicated that “‘the right’ in question must be viewed sensibly and expansively,” finding that this

factor is satisfied if other means of expression related to the right are available. Thornburgh,

490 U.S. at 417–18. On the impact on guards, other inmates, and prison resources generally, in

considering this factor, courts should generally defer “to the informed discretion of corrections

officials,” in particular “[w]hen accommodation of an asserted right will have a significant

‘ripple effect’ on fellow inmates or on prison staff.” Turner, 482 U.S. at 90. As to the absence

of ready alternatives to the prison regulation, “the existence of obvious, easy alternatives may be

evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison

concerns.” Id. at 90; Thornburgh, 490 U.S. at 418. But this factor does not require prison

5Even if this exception undermined the nexus between the policy and proffered penological interest, it was

not clearly established that the policy, when enacted with the exception, was a First Amendment violation, given

Supreme Court precedent upholding “publisher only” policies and allowing for accommodation of religious practice.

See Bell, 441 U.S. at 550; see also Hobbie, 480 U.S. at 144–45.

No. 19-3392 Bethel v. Jenkins, et al. Page 10

officials to pick the “least restrictive alternative;” rather, evidence of an “alternative that fully

accommodates the prisoner’s rights [at] a de minimis cost to valid penological interests” can

demonstrate that the regulation does not bear a reasonable relationship to the proffered

justification. Turner, 482 U.S. at 90–91.

The district court correctly found that based on the undisputed evidence the last three

Turner factors weighed in favor of Defendants. Bethel does not dispute that he had alternative

means of acquiring books—namely, using his own funds to purchase books, acquiring books

through the interlibrary loan program, and asking family and friends to provide funds directly

into his account or to send him subscription cards so that he could himself purchase these books.

He only argues that these alternatives are inadequate because his family or friends will not put

money in his institutional account for publications, CCI’s interlibrary loan program did not have

most of his requested publications available, and his institutional pay was insufficient to cover

the materials he wanted. However, none of these facts dispute that Bethel had these alternate

means of obtaining publications available to him, and Turner does not require that the alternate

means fulfill Bethel’s exact request. See 482 U.S. at 92 (noting that the prison offered adequate

alternate means of communication as it “bar[red] communication only with a limited class of

other people . . . inmates at other institutions within the Missouri prison system”); Thornburgh,

490 U.S. at 417–18 (finding that a prison regulation that restricted publications whose content

was deemed to be a security risk met the second Turner factor by “permit[ting] a broad range of

publications to be sent, received, and read”).

On the third factor, the magistrate judge correctly noted that allowing gift publications

from unapproved vendors placed significant costs on Defendants, which became evident when

they rescinded the policy. In Defendant Shoop’s declaration, he indicated that allowing third

party orders from unapproved vendors has slowed down the processing of mail, required CCI to

“pull additional staff” and “purchase[] an x-ray machine for $20,957 in an effort to lessen the

burden on staff,” and led to incidences of contraband entering the prison, none of which Bethel

disputes. (R. 68-4, Shoop Decl. at PageID # 1394.) As to the fourth factor, the magistrate judge

correctly found that none of Bethel’s proposed alternatives of confirmation emails and volume

control could be implemented at a de minimis cost to the interest in prison security. (R. 78, R.

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& R. at PageID # 1677–78.) Confirmation emails would pose a similar concern of forgery, and

any limit to the number of gift publications an inmate could receive would likely limit Bethel’s

and other inmates’ ability to receive books, placing Defendants at risk for further litigation.

Accordingly, the prison policy of banning third party orders from unapproved vendors is not an

“exaggerated response” to the concern of contraband entering the prison. See Thornburgh,

490 U.S. at 419 (finding that it was proper for prison official to reject a “less restrictive

alternative because of reasonably founded fears that it will lead to greater harm” and “the

administrative inconvenience of this proposed alternative”). Ultimately, there is no genuine

dispute of material fact that CCI’s policy did not violate Bethel’s First Amendment right to

receive information and ideas because, under Turner, the regulation bore a reasonable

relationship to the legitimate penological interest in preventing contraband from entering the

prison and threatening security.

II. Violation of Bethel’s Right to Procedural Due Process

Bethel contends that Defendants violated his right to procedural due process because they

infringed on his protected property interest under Ohio Rev. Code § 5120.4276 and Ohio Admin.

Code § 5120-9-197 to receive nonthreatening publications. He also argues that Defendants did

not provide him sufficient process inasmuch as they failed to conduct security threat

determinations of the books and to allow him to have the withholding decisions reviewed.

In accordance with the Supreme Court’s decision in Wolff v. McDonnell, prisoners retain

rights under the Due Process Clause and cannot be “deprived of life, liberty, or property without

due process of law,” but these rights are “subject to restrictions imposed by the nature of the

regime to which they have been lawfully committed.” 418 U.S. 539, 556 (1974). The Supreme

6Ohio Revised Code § 5120.427 provides that “[e]ach prisoner confined in a state correctional institution

may receive a reasonable number of materials directly from the publishers or other distributors of those materials,”

and “[i]f the warden or the warden’s designee determines that an incoming material is not a prohibited inflammatory

material, the warden or the warden’s designee shall cause the material to be promptly forwarded to the prisoner who

is its intended recipient.” Ohio Rev. Code § 5120.427(A), (B)(2).

7Ohio Administrative Code § 5120-9-19 provides that “[a]n inmate may receive a reasonable number of

printed materials subject to the following limitations,” and “[i]f the managing officer or the managing officer’s

designee, determines that the material may be permitted into the institution, then the material shall be promptly

forwarded to the inmate.” Ohio Admin. Code § 5120-9-19(B), (D)(4).

No. 19-3392 Bethel v. Jenkins, et al. Page 12

Court has provided two steps for analyzing procedural due process claims: (1) “whether there

exists a liberty or property interest which has been interfered with by the State” and (2) “whether

the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of

Corr. v. Thompson, 490 U.S. 454, 460 (1989). In order to have a protected property interest, an

individual must “have a legitimate claim of entitlement” to the property interest. Bd. of Regents

of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Additionally, property interests “are not

created by the Constitution;” rather, they are established by “an independent source such as state

law.” Id.

Before the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472 (1995), prison

regulations were found to create protected liberty interests when those regulations “used

language of an unmistakably mandatory character,” such as, for example, “requiring that certain

procedures ‘shall,’ ‘will,’ or ‘must’ be employed.” Hewitt v. Helms, 459 U.S. 460, 471 (1983).

Accordingly, in Spruytte v. Walters, we found, based on Hewitt, that a Michigan prison

regulation created a protected interest to receive any book not deemed to be a security threat

because the regulation contained “specific, substantive criteria restrict[ing] officials’

discretion.”8 753 F.2d 498, 507–08 (6th Cir. 1985), abrogation recognized by Virgili v. Gilbert,

272 F.3d 391 (6th Cir. 2001). However, in Sandin, the Supreme Court explicitly rejected the

approach from Hewitt and held that liberty interests arising from state prison regulations are

“generally limited to freedom from restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due Process Clause of its own force,

nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary

incidents of prison life.” 515 U.S. at 484 (citations omitted).

We have not yet determined whether Sandin applies to property interests, but we have

cited Sandin to hold that an inmate does not have a protected interest in prison employment.

Pickelhaupt v. Jackson, 364 F. App’x 221, 225–26 (6th Cir. 2010) (“Both this Court and the

8We indicated in Spruytte that “Spruytte’s claim that he is entitled to receive the dictionary may be

plausibly cast as an assertion of either a property interest or a liberty interest.” 753 F.2d at 506. We found that the

claim could be characterized as Spruytte being “entitled to possess a tangible object” as well as being “entitled to

receive a book that concededly he could possess were he not incarcerated.” Id. In the present case, Bethel

characterizes his interest in receiving publications not deemed to be a security threat as a property interest.

No. 19-3392 Bethel v. Jenkins, et al. Page 13

Ninth Circuit have suggested but not directly held that Sandin does not apply to Hewitt-type

property interests.”); Dobbins v. Craycraft, 423 F. App’x 550, 552 (6th Cir. 2011) (finding that

“Dobbins’ procedural due process claim against Besteman was properly dismissed for failure to

allege a liberty or property interest” given that he had “no constitutional right to prison

employment because the loss of his position d[id] not impose an ‘atypical and significant

hardship . . . in relation to the ordinary incidents of prison life’” (quoting Sandin, 515 U.S. at

484)).

But we need not decide whether Sandin applies to property interests because, even

assuming Bethel had a protected interest, the magistrate judge correctly found in the alternative

that Bethel received sufficient process as to that interest. In determining the necessary

procedures under procedural due process, courts consider (1) “the private interest that will be

affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through

the procedures used, and the probable value, if any, of additional or substitute procedural

safeguards;” and (3) “the Government’s interest, including the function involved and the fiscal

and administrative burdens that the additional or substitute procedural requirement would entail.”

Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In the present case, the magistrate judge noted

that Bethel received written notice that the books were withheld as well as notice of the reason

why they were withheld, that he was able to use CCI’s grievance process to seek further review,

and that Defendants allowed Bethel to either have the publications destroyed or sent back to the

third party who ordered them.

Applying the balancing test under Mathews, these procedures were adequate as the

private interest in receiving the books pursuant to the third-party orders was minimal as

compared to the significant government interest in preventing contraband from entering the

prison. See Procunier v. Martinez, 416 U.S. 396, 417 (1974) (noting that the analogous

“decision to censor or withhold delivery of a particular letter must be accompanied by minimum

procedural safeguards”), overruled on other grounds by Thornburgh, 490 U.S. 401. The risk of

erroneous deprivation was small because Bethel could acquire the publications through alternate

means. The value of additional procedures was also limited given the lack of complexity in the

withholding decision, and it was outweighed by the burden on the prison of expending resources

No. 19-3392 Bethel v. Jenkins, et al. Page 14

on further proceedings. Even assuming Bethel had a protected property interest in receiving the

withheld publications, he received sufficient process from CCI regarding the deprivation.9 See

Sickles v. Campbell County, 501 F.3d 726, 731 (6th Cir. 2007) (holding that “[i]n view of the

modest private interests at stake, the small risk of error, the limited benefits of additional

safeguards and the unchallenged government interests in the policy,” the plaintiffs were not

entitled to a pre-deprivation hearing regarding a policy withholding some funds from their

canteen account).

III. Qualified Immunity

Bethel argues that, because Defendants violated clearly established Ohio statutory and

administrative laws that provide the basis of his constitutional claims, the district court erred in

finding that Defendants were entitled to qualified immunity. See Davis v. Scherer, 468 U.S. 183,

194 n.12 (1984). According to the Supreme Court’s decision in Harlow v. Fitzgerald,

“government officials performing discretionary functions generally are shielded from liability for

civil damages insofar as their conduct does not violate clearly established statutory or

constitutional rights of which a reasonable person would have known.” 457 U.S. 800, 818

(1982). Qualified immunity claims are analyzed under a two-prong test: (1) whether “[t]aken in

the light most favorable to the party asserting the injury, [] the facts alleged show the officer’s

conduct violated a constitutional right,” and (2) “whether the right was clearly established . . . in

light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001). After

Pearson v. Callahan, which held that the two-step sequence set forth in Saucier is no longer

mandatory, district courts and courts of appeals are “permitted to exercise their sound discretion

in deciding which of the two prongs of the qualified immunity analysis should be addressed first

in light of the circumstances in the particular case at hand.” 555 U.S. 223, 236 (2009).

9Defendants also argue, in response to Bethel’s request that we take judicial notice that Bethel’s claims for

declaratory and injunctive relief are not moot, that Bethel has waived this argument on appeal because he did not

object on mootness grounds to the magistrate judge’s recommendation to dismiss those claims, despite Defendants’

evidence indicating that CCI did not intend to reinstate the policy. However, neither the magistrate judge nor the

district court addressed in their orders whether Defendants met their burden to show that they could not be

reasonably expected to reinstate the policy for purposes of determining whether Bethel’s claims for declaratory and

injunctive relief were moot, finding instead that Defendants were entitled to summary judgment on the merits.

Given that we affirm the dismissal of the claims for declaratory and injunctive relief as well as damages on the

merits, we need not address the mootness argument on appeal.

No. 19-3392 Bethel v. Jenkins, et al. Page 15

Because we find that there was no violation of Bethel’s First Amendment or procedural

due process rights, Defendants are entitled to qualified immunity as a matter of law. See

Saucier, 533 U.S. at 201 (“If no constitutional right would have been violated were the

allegations established, there is no necessity for further inquiries concerning qualified

immunity.”). And even if there was a violation of a constitutional right, Bethel cannot show that

a right to receive books withheld pursuant to a ban of third-party orders from unapproved

vendors was clearly established, especially given precedent upholding “publisher only” policies,

see Bell, 441 U.S. at 550, and the process provided following the withholding of books.

CONCLUSION

For the reasons stated above, we AFFIRM the judgment of the district court.