Petition for Writ of Certiorari — Ralph Harrison Benning, Petitioner v. Tyrone Oliver, Commissioner, Georgia Department of Corrections, et al.

Supreme Court briefDec 15, 2023

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APPENDIX

TABLE OF CONTENTS

Appendix A: Eleventh Circuit Court of

Appeals Decision (June 23, 2023)............ 1a

Appendix B: District Court Order

(Apr. 30, 2021) ........................................ 34a

Appendix C: Eleventh Circuit Court of

Appeals Order Denying Rehearing En

Banc (Aug. 17, 2023) .............................. 63a

APPENDIX A

[PUBLISH]

[Dated: June 23, 2023]

In the

United States Court of Appeals

for the Eleventh Circuit

________________

No. 21-11982

________________

RALPH HARRISON BENNING,

Plaintiff-Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS MARGARET PATTERSON, Georgia

Department of Corrections, JENNIFER EDGAR,

Georgia Department of Corrections,

Defendants-Appellees,

GEORGIA DEPARTMENT OF CORRECTIONS INMATE

EMAIL CENSOR,

Defendant.

__________________________________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:18-cv-00087-TES-CHW

__________________________________________

(1a)

Before JORDAN and ROSENBAUM, Circuit Judges, and

SCHLESINGER1, District Judge.

JORDAN, Circuit Judge:

An email, as the term itself implies, is a message,

note, or letter sent by electronic means over a

computer system. See, e.g., The American Heritage

Dictionary of the English Language 582 (4th ed.

2009). The questions presented in this appeal largely

revolve around how emails generated by inmates in

the custody of the Georgia Department of

Corrections are to be treated for purposes of the First

Amendment and the Due Process Clause of the

Fourteenth Amendment.

An inmate in a Georgia Department of

Corrections facility is “allowed to send emails

through JPay kiosks . . . or through Georgia Offender

Alternative Learning (‘GOAL’) devices which are provided to [inmates].” D.E. 64-4, Exh. B at 3. JPay

Kiosks and GOAL devices are electronic devices used

for, among other things, “sending and receiving

email messages.” D.E. 64-4, Attachment B-1 at 10.

Each email costs 37 cents to send, with the GDC

receiving 15% of the fees. See D.E. 64-3, Exh. A at 38.

One of the GDC’s Standard Operating

Procedures, SOP 204.10, governs the use of JPay

Kiosks and GOAL devices. SOP 204.10, which

became effective on August 15, 2017, “explains the

rules and sanctions that can be imposed if a [GOAL]

The Honorable Harvey Schlesinger, United States

District Judge for the Middle District of Florida, sitting by

designation.

device or [JPay] Kiosk is misused.” D.E. 64-4,

Attachment B-1 at 10. It sets out, among other

things, 16 policies governing video visitations and

emails. Two of those policies are relevant here: (1)

“[o]ffenders shall not request emails to be forwarded,

sent, or mailed to others;” and (2) “[c]ustomers and

offenders shall not request or send information on

behalf of or about another offender.” Id. at 14–15.

Under SOP 204.10, “[a]ll communications sent or

received via the GOAL device or the [JPay] Kiosk are

subject to inspection and review for security reasons,

and neither the sender, nor receiver, has an

expectation

privacy

any

these

communications.” Id. at 13. Any communications

that violate SOP 204.10 “will be intercepted without

explanation and no refund will be pro-vided to the

sender.” Id. at 15. The screening and review of

inmate emails is conducted by analysts at the GDC’s

Central Intelligence Unit through an intranet

system. See D.E. 64-4, Exh. B at ¶¶ 16–19.

Ralph Harrison Benning is serving a life

sentence in Georgia and is in the custody of the GDC.

As an inmate, his communications with those on the

outside are governed by GDC policies and

regulations.

In September and October of 2017, Mr. Benning

attempted to send three emails to his sister,

Elizabeth Knott—one on September 24, 2017, and

two on October 9, 2017. Those emails were

intercepted by the GDC and never delivered to Ms.

Knott due to violations of SOP 204.10. All three

emails were about gang problems and fraud and

corruption in the GDC.

Margaret Patterson, a GDC analyst, intercepted

the September 24 email because Mr. Benning had

asked Ms. Knott to forward it to third parties. See

D.E. 64-6, Exh. D at ¶¶ 11–13. Jennifer Edgar,

another GDC analyst, intercepted the October 9

emails for the same reason. See D.E. 64-5, Exh. C at

¶¶ 10–12. Neither Ms. Patterson nor Ms. Edgar

notified Mr. Benning that his emails had been

intercepted and withheld. Nor did they give him an

opportunity to appeal their decisions to a different

GDC official. See, e.g., D.E. 80-5 at ¶ 14.

Another email Mr. Benning tried to send, this

time to the Aleph Institute on February 6, 2018, was

similarly intercepted and never sent. See D.E. 64-4,

Exh. B at ¶ 27. In this email, Mr. Benning discussed

receiving a declaration and a “Kosher Authorities

Template,” and expressed gratitude. See D.E. 64-4,

Attachment B-3 at 21. But he also asked that

another inmate’s address be “corrected to show he is

now at Wilcox State Prison.” Id. GDC analyst Romita

Keen intercepted this email because it “contained

information about another inmate.” D.E. 64-4, Exh.

B at ¶ 27. Ms. Keen did not inform Mr. Benning that

the email had been intercepted, and did not give him

the opportunity to appeal her decision to a different

GDC official.

Mr. Benning mailed Ms. Knott handwritten

copies of the emails he had tried to send her in

September and October of 2017. See D.E. 64-3, Exh.

A at 74–75. To Mr. Benning’s knowledge, his sister

received those letters. See id. at 76. Mr. Benning did

not send a handwritten version of his February 2018

email to the Aleph Institute. See D.E. 80-5 at 4.

In 2018, Mr. Benning filed a pro se civil rights

suit pursuant to 42 U.S.C. § 1983. His complaint

named the GDC Commissioner (then Gregory Dozier,

now Timothy Ward) and Ms. Patterson and Ms.

Edgar—the GDC analysts who had intercepted his

emails in September and October of 2017—as

defendants. It did not name Ms. Keen—the GDC

analyst who intercepted the email to the Aleph

Institute in February of 2018—as a defendant.

Mr. Benning alleged that the GDC, Ms.

Patterson, and Ms. Edgar unconstitutionally

censored certain emails he tried to send, and failed to

provide him notice, thereby violating his rights

under the First Amendment and the Due Process

Clause of the Fourteenth Amendment. He requested

specific declaratory and injunctive relief, as well as

compensatory, nominal, and punitive damages.

The defendants filed a motion for summary

judgment. They argued in part that Mr. Benning did

not have a constitutional right to communicate

through email and that, even if he did, the

interception and withholding of his emails was

constitutional. Ms. Patterson and Ms. Edgar also

asserted that they were entitled to qualified

immunity from Mr. Benning’s claims for damages.

The district court granted summary judgment in

favor of the defendants. Mr. Benning appealed, and

counsel thereafter appeared on his behalf.

We review questions of constitutional law de

novo. See Fort Lauderdale Food Not Bombs v. City of

Fort Lauderdale, 901 F.3d 1235, 1239 (11th Cir.

2018). The same plenary standard governs our

review of the district court’s grant of summary

judgment. See Marbury v. Warden, 936 F.3d 1227,

1232 (11th Cir. 2019). Summary judgment is

warranted “when the evidence, viewed in the light

most favorable to the nonmoving party, presents no

genuine issue of material fact and compels judgment

as a matter of law in favor of the moving party.”

Owusu-Ansah v. Coca-Cola Co., 715 F.3d 1306, 1307

(11th Cir. 2013) (citation omitted).

We first address Mr. Benning’s Fourteenth

Amendment due process claims, and then turn to the

First Amendment claims.

III

As noted, in September and October of 2017 Ms.

Patterson and Ms. Edgar censored (i.e., intercepted)

three emails which Mr. Benning sought to send to

his sister. They did so because the emails violated

SOP 204.10’s prohibition against requesting forwarding to third parties. Mr. Benning alleged that

Ms. Edgar and Ms. Patterson did not provide him

with any notice that his emails had been intercepted

and were not going to be sent, and did not provide

him with an opportunity to appeal their decisions to

a different GDC official. He alleged that these

failures violated his Fourteenth Amendment due

process rights.2

2 Mr. Benning also alleged that a fourth email, the one he

sent in February of 2018 to the Aleph Institute, was intercepted

and withheld because it violated SOP 204.10’s prohibition

against discussing another inmate’s information. The summary

judgment record indicates (and Mr. Benning does not dispute)

that this email was withheld by Ms. Keen, another GDC

The district court entered summary judgment

against Mr. Benning and in favor of Ms. Patterson

and Ms. Edgar on the due process claims. The court

concluded that Mr. Benning did not have any

protected liberty interest in the emails he generated

because emails should not be treated the same as

outgoing physical mail. And without such a liberty

interest, he was not entitled to any due process

protections when his emails were censored. See D.E.

108 at 26–27. The court also ruled that Ms. Edgar

and Ms. Patterson were, in any event, entitled to

qualified immunity on Mr. Benning’s due process

claims. Even if Mr. Benning had a liberty interest in

the emails he generated, the law to that effect was

not clearly established in September and October of

2017, when the three emails to his sister were

censored. See id. at 27–28.

We hold that Mr. Benning had a protected liberty

interest in his outgoing emails, and as a result he

was entitled to notice and other procedural

safeguards when the three emails to his sister were

intercepted and withheld. But we agree with the

district court that Ms. Edgar and Ms. Patterson are

entitled to qualified immunity on Mr. Benning’s due

process claims for damages because the law to that

effect was not clearly established in September and

October of 2017.3

analyst. See D.E. 64-4, Exh. B at ¶ 27; Br. for Appellant at 19.

Mr. Benning, however, did not name Ms. Keen as a defendant.

3 We address the merits of the due process claims because,

as explained later, Mr. Benning’s requests for declaratory relief

as to those claims are not barred by qualified immunity.

The first question is whether Mr. Benning had a

liberty interest in his emails that triggered due

process protections. See Dorman v. Aronofsky, 36

F.4th 1306, 1315 (11th Cir. 2022) (“Before addressing

what process is due, we first examine whether Mr.

Dorman has a liberty interest that triggers due

process protections.”). We conclude that he did.

The Supreme Court has held that “[t]he interest

of prisoners and their correspondents in uncensored

communication by letter, grounded as it is in the

First Amendment, is plainly a ‘liberty’ interest

within the meaning of the Fourteenth Amendment

even though qualified of necessity by the

circumstance of imprisonment. As such, it is

protected from arbitrary governmental invasion.”

Procunier v. Martinez, 416 U.S. 396, 418 (1974),

overruled on other grounds by Thornburgh v. Abbott,

490 U.S. 401, 413–414 (1989). As we have explained,

under Martinez “both prisoners and their

correspondents have a liberty interest in uncensored

communication by letter[.]” Perry v. Sec’y, Fla. Dep’t

of Corr., 664 F.3d 1359, 1367 (11th Cir. 2011). See

also Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495,

500 (1952) (“[T]he liberty of speech and of the press

which the First Amendment guarantees against

abridgment by the federal government is within the

liberty safeguarded by the Due Process Clause of the

Fourteenth Amendment from invasion by state

action.”).

When an inmate’s outgoing correspondence is

censored, Martinez requires prison officials to

provide certain procedural safeguards to satisfy the

Due Process Clause. Here is how we have described

those safeguards: “(1) the inmate must receive notice

of the rejection of a letter written by or addressed to

him; (2) the author of the letter be given ‘reasonable

opportunity to protest that decision,’ and (3)

‘complaints be referred to a prison official other than

the person who originally disapproved the

correspondence.’” Perry, 664 F.3d at 1368 & n.2

(quoting Martinez, 416 U.S. at 418– 419).4

This case, of course, involves the censoring of

emails rather than physical letters. So, like the

district court, we must decide whether emails are the

equivalent of physical letters for purposes of a liberty

interest.

We conclude that under Martinez Mr. Benning

had a protected liberty interest, grounded in the

First Amendment, in the emails he generated and

sought to send to his sister. We do so for a number of

reasons.

First,

those

emails—which

contained

communications from Mr. Benning to his sister—

undoubtedly constituted speech under the First

Amendment. The First Amendment “protects

material disseminated over the [I]nternet as well as

by the means of communication devices used prior to

the high-tech era.” Clement v. Cal. Dep’t of Corr., 364

F.3d 1148, 1151 (9th Cir. 2000) (citing Reno v.

ACLU, 521 U.S. 844, 868 (1997)). See also Jeremy

Harris Lipschultz, Free Expression in the Age of the

Internet: Social and Legal Boundaries 202 (2000)

4 In a later case, the Supreme Court limited Martinez “to

regulations concerning outgoing correspondence.” Thornburgh

v. Abbott, 490 U.S. 401, 413 (1989). Because Mr. Benning’s

intercepted emails were outgoing communications, Martinez

governs the Fourteenth Amendment due process claims.

10a

(“Sometimes,

computer-based

communication

approximates a letter. In other situations, it is like a

business memorandum. At still other times, it is like

a telephone call.”); Brennen J. Johnson, Jail (E)Mail:

Free Speech Implications of Granting Inmates Access

to Electronic Messaging Services, 11 Wash. J.L.,

Tech. & Arts 285, 290 (2016) (“Internet

communications, such as emails, presumptively fall

within the ambit of free speech protections.”). And

the Supreme Court has told us that First

Amendment scrutiny is not more relaxed in

cyberspace. See Reno, 521 U.S. at 868 (explaining

that the justifications permitting regulations of

speech in the broadcast medium “are not present in

cyberspace”).

Second, it seems to us that the rationale of

Martinez is concerned with correspondence from

inmates, regardless of the form (or medium) the

correspondence takes. See Bonner v. Outlaw, 552

F.3d 673, 677 (8th Cir. 2009) (“Although [Martinez ]

discusses letters, that is because letters were simply

the form of correspondence at issue in that specific

case. Nothing about the reasoning of [Martinez ]

justifies treating packages differently than letters for

purposes of the notice that should be given an

inmate when correspondence addressed to that

inmate is rejected.”). As the Eighth Circuit

persuasively explained in rejecting an argument that

Martinez applies only to letters and does not govern

packages, the “reasoning of [Martinez ] applies to all

forms of correspondence ad-dressed to an inmate. It

the

inmate’s

interest

‘uncensored

communication’ that is the liberty interest protected

by the due process clause, regardless of whether that

communication occurs in the form of a letter,

11a

package, newspaper, magazine, etc.” Id. We have

applied Martinez to magazines, see Prison Legal

News v. Sec’y, Fla. Dep’t of Corr., 890 F.3d 954, 976–

77 (11th Cir. 2018), and other circuits have done the

same with similar forms of communication. See Frost

v. Symington, 197 F.3d 348, 353–54 (9th Cir. 1999)

(holding that inmate was entitled to notice that his

incoming mag-azines were being withheld by prison

authorities); Montcalm Pub. Corp. v. Beck, 80 F.3d

105, 109 (4th Cir. 1996) (applying Martinez to

magazines); Moyler v. Fannin, 2023 WL 2541131, at

*7–8 (W.D. Va. Mar. 16, 2023) (applying Martinez to

photographs).

In the 1970s, when Martinez was decided,

correspondence consisted only of physical letters (or

similar notes or messages) handwritten or typed on

paper and sent by regular mail. Today, almost 50

years later, correspondence is not so limited and

emails serve as the electronic equivalent of physical

letters (i.e., correspondence). See Johnson, Jail

(E)Mail, 11 Wash. J.L., Tech. & Arts at 288

(explaining that by 2017 the number of email

accounts was expected to rise to 4.9 billion). Thanks

to computers and the Internet, we can now

correspond with others digitally through email, and

for due process purposes it makes both doctrinal and

practical sense to treat outgoing email the same as

physical letters. See, e.g., Tory v. Davis, 2020 WL

2840163, at *4 (W.D. Va. June 1, 2020) (“[A]n inmate

has a due process right to receive notice when his

email communication has been censored.”). Just as

the Fourth Amendment protects against searches by

technology unknown in the 18th century, see Kyllo v.

United States, 533 U.S. 27, 34–38 (2001), the First

12a

Amendment protects correspondence transmitted by

means developed in the 20th or 21st centuries.

Third, GDC officials themselves treat outgoing

emails from inmates like physical letters for

screening and review. Inmate emails are not

immediately

transmitted

their

intended

recipients, but instead go to the Central Intelligence

Unit for screening and inspection by way of an

intranet system. Emails are sent on their way only

when GDC analysts at the Unit are satisfied that

they comply with SOP 204.10.

In other words, just as a physical letter is not

immediately delivered when an inmate places it in

the prison’s mail system, an email is not immediately

transmitted as soon as an inmate hits “send.” SOP

204.10 makes clear that “[b]ecause of the need” for

inspection, email “communications may not be

received by the in-tended recipient on the same day

as sent by the sender.” D.E. 64-4, Attachment B-1 at

13. From the perspective of the GDC, emails are the

functional equivalent of letters written or typed on

paper. And we can think of no persuasive reason why

prison officials should not be required to provide

notice and other procedural safe-guards when they

intercept or otherwise censor emails sent by inmates.5

In his concurring opinion, our colleague suggests that

other circuits have applied Turner v. Safley, 482 U.S. 78 (1987),

rather than Martinez, in addressing the due process claims of

inmates whose mail has been censored or intercepted, and he

argues that we should do the same. With respect, we think our

colleague is mistaken. The cases he cites involve substantive

First Amendment challenges to the actions of prison officials in

censoring or withholding mail, and not procedural due process

claims arising from the failure of such officials to provide

13a

The defendants argue that Mr. Benning did not

have a protected liberty interest because using the

email system is a privilege, and not a right, for

inmates in the custody of the GDC. See Br. for

Appellees at 39–40. This argument misses the mark,

and does so by the proverbial country mile. For over

50 years the Supreme Court has “fully . . . rejected

the wooden distinction between ‘rights’ and

‘privileges’ that once seemed to govern the

applicability of procedural due process rights.” Bd. of

Regents of State Colleges v. Roth, 408 U.S. 564, 571

(1972). “[T]he question,” therefore, “is not whether a

person has a right to something denied by the

government, but whether the government acted

inmates with safeguards like notice. See, e.g., Bacon v. Phelps,

961 F.3d 533, 543–44 (2d Cir. 2020) (addressing First

Amendment protection afforded to outgoing letter for which

inmate was disciplined).

As far as we can tell, no federal court has applied Turner

in the due process context. That is not surprising, for Turner

does not govern the procedural due process claims of inmates.

See Laura Rovner, On Litigating Constitutional Challenges to

the Federal Supermax: Improving Conditions and Shining a

Light, 95 Denver L. Rev. 457, 479 (2018) (explaining that

Turner does not apply to “procedural due process issues” in the

prison setting). Indeed, the Supreme Court’s more recent due

process cases involving inmates do not apply Turner. See, e.g.,

Wilkison v. Austin, 545 U.S. 209, 224–230 (2005) (applying

framework from Matthews v. Eldridge, 424 U.S. 319 (1976), to

determine the process due to inmates whom the state seeks to

place in so-called “super-max” prisons).

14a

lawfully in depriving him of it.” Thompson v.

Gallagher, 489 F.2d 443, 446 (5th Cir. 1973).6

As a result, whether Mr. Benning had a freestanding constitutional or statutory right to use the

GDC email system does not affect or resolve the

procedural due process question under Martinez. In

any event, it is the First Amendment—and not state

law—which creates a liberty interest here. See

Martinez, 416 U.S. at 418. And as we have explained,

email is a form of correspondence.

We next take up whether Ms. Patterson and Ms.

Edgar denied Mr. Benning his due process rights

under Martinez. On this summary judgment record,

a jury could reasonably find that they did.

When outgoing physical letters are intercepted or

censored by prison officials, Martinez requires that

the inmate be “notified of the rejection of [the] letter

written by . . . him,” and that he be “given a

reasonable opportunity to protest that decision,” with

his complaint being “referred to a prison official

other than the person who originally disapproved the

correspondence.” 416 U.S. at 418–19. In other words,

“any decision to censor or withhold delivery of letters

must be accompanied by procedural safeguards,”

such as notice and an opportunity to contest the

decision to a different prison official. See Perry, 664

F.3d at 1367–68 & n.2.7

6 Thompson constitutes binding precedent in the Eleventh

Circuit under Bonner v. City of Prichard, 661 F.2d 1206, 1207

(11th Cir. 1981) (en banc).

7 Our sister circuits read Martinez the same way. See Vogt

v. Wetzel, 8 F.4th 182, 187 (3d Cir. 2021); Hopkins v. Collins,

15a

Mr. Benning submitted an affidavit stating that,

when the emails to his sister were intercepted in

September and October of 2017, he was denied (a)

“any process” and (b) an “administrative remedy” to

challenge the decisions because of SOP 204.10. See

D.E. 80-5 at ¶ 14. That affidavit, based as it was on

Mr. Benning’s personal knowledge, sufficed to create

an issue of fact. See United States v. Stein, 881 F.3d

853, 857 (11th Cir. 2018) (en banc).

The evidence in the summary judgment record

also sup-ports the lack-of-notice and lack-of-remedy

assertions. SOP 204.10 expressly states that

“communications which violate [the] policy will be

intercepted without explanation.” D.E. 64-4,

Attachment B-1 at 15 (emphasis added). Richard

Wallace, a GDC supervisor, confirmed in his

declaration that SOP 204.10 provides for no

explanation when emails are intercepted for a

violation. See D.E. 64-4, Exh. B at ¶ 13. Moreover,

Ms. Patterson and Ms. Edgar stated in their

declarations that they acted pursuant to SOP 204.10,

and they did not claim that they notified Mr.

Benning of their decisions or provided him with an

administrative remedy. See D.E. 64-5, Exh. C at ¶¶

10–12; D.E. 64-6, Exh. D at ¶¶ 11–13. It is therefore

reason-able to infer that, in accordance with SOP

204.10, they did not tell Mr. Benning that his emails

were intercepted and did not provide him with an

appeal to a different GDC official.

548 F.2d 503, 504 (4th Cir. 1977); Johnson v. El Paso Cnty.

Sheriff’s Dep’t, 51 F.3d 1041, at *5 (5th Cir. 1995); Martin v.

Kelley, 803 F.2d 236, 243 (6th Cir. 1986); Miller v. Downey, 915

F.3d 460, 466 (7th Cir. 2019); Ping v. Raleigh, 205 F.3d 1347, at

*1 (8th Cir. 2000); McKinney v. De Bord, 507 F.2d 501, 505 (9th

Cir. 1974).

16a

Given this evidence, the district court should not

have granted summary judgment in favor of Ms.

Patterson and Ms. Edgar on whether they violated

Mr. Benning’s due process rights. Mr. Benning had a

protected First Amendment liberty interest in his

outgoing emails, and a reasonable jury could find

that he was not provided any notice of the

interceptions or of his right to challenge the

decisions. See Martinez, 416 U.S. at 418–19; Perry,

664 F.3d at 1367–68 & n.2.

But that does not end the matter, for Ms. Edgar

and Ms. Patterson asserted qualified immunity as to

Mr. Benning’s claims for damages for the alleged

procedural due process violations. We therefore turn

to qualified immunity.

Government officials sued in their individual

capacities for money damages “are entitled to

qualified immunity with respect to ‘discretionary

functions’ [they have] performed[.]” Ziglar v. Abbasi,

582 U.S. 120, 150 (2017). In intercepting and

withholding Mr. Benning’s three emails pursuant to

SOP 204.10, Ms. Patterson and Ms. Edgar were

carrying out discretionary tasks. As a result, Mr.

Benning has the burden of showing that qualified

immunity is in-appropriate. See Terrell v. Smith, 668

F.3d 1244, 1250 (11th Cir. 2012).

In this case qualified immunity “turns on the

‘objective legal reasonableness’” of the actions of Ms.

Patterson and Ms. Edgar. See Ziglar, 582 U.S. at 151

(citation omitted). The Supreme Court recently

summarized this aspect of the qualified immunity

inquiry:

17a

Qualified immunity attaches when an

official’s con-duct does not violate clearly

established statutory or constitutional rights

of which a reasonable person would have

known. A right is clearly established when it

is sufficiently clear that every reasonable

official would have understood that what he

is doing violates that right. Although this

Court’s case law does not require a case

directly on point for a right to be clearly

established, existing precedent must have

placed the statutory or constitutional

question be-yond debate. This inquiry must

be undertaken in light of the specific context

of the case, not as a broad general

proposition.

Rivas-Villegas v. Cortesluna, 142 S. Ct. 4, 7–8 (2021)

(internal quotation marks and citations omitted). For

purposes of qualified immunity, decisions of the

Supreme Court, the Eleventh Circuit, or the

appropriate state supreme court can announce

clearly established law. See Gaines v. Wardynski, 871

F.3d 1203, 1208 (11th Cir. 2017).

It is true, as Mr. Benning says, that by

September and October of 2017—when his emails

were withheld—some courts had ap-plied Martinez

to correspondence other than letters. See, e.g.,

Bonner, 552 F.3d at 677 (holding that Martinez

applied to packages). This case, however, involves

email correspondence, and “courts must not define

clearly established law at a high level of generality,

since doing so avoids the crucial question whether

the official acted reasonably in the particular

circumstances that he or she faced.” District of

18a

Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)

(internal quotations marks omitted).

Email is created and transmitted in a different

medium than physical mail. Although we have

concluded that the Martinez due process

requirements apply to email correspondence in the

prison setting, before today there were no Supreme

Court, Eleventh Circuit, or Georgia Supreme Court

decisions on point. As far as we can tell, only two

district courts have specifically ruled that the

Martinez due process framework governs emails

generated by in-mates, and those courts issued their

decisions in June of 2020 and November of 2018, well

after Ms. Patterson and Ms. Edgar intercepted Mr.

Benning’s emails. See, e.g., Tory, 2020 WL 2840163,

at *4; Emery v. Kelley, 2018 WL 5779593, at *2 (E.D.

Ark. Oct. 3, 2018), report and recommendation

adopted, 2018 WL 5779505 (E. D. Ark. Nov. 2, 2018).

So even if district court decisions from other

jurisdictions could create clearly established law—

they cannot and do not—those two cases do not help

Mr. Benning overcome qualified immunity because

they post-dated the events in this case. See Wesby,

138 S. Ct. at 589.

In sum, at the time Ms. Patterson and Ms. Edgar

acted there was no governing and materially similar

precedent concerning the due process implications of

confiscating, intercepting, or censoring outgoing

emails generated by inmates. We recognize that a

prior case on all fours (or nearly all fours) is not

always necessary to give an official fair notice that

his conduct is wrongful. See, e.g., Taylor v. Rojas, 141

S. Ct. 52, 53–54 (2020) (reversing grant of qualified

immunity to officers who violated the Eighth

Amendment by placing inmate in a “shockingly

19a

unsanitary” cells for six days). Although the issue is

close, we conclude that this is not one of those cases

where the lack of notice and procedural safeguards

“so obviously violates [the] [C]onstitution that prior

case law is unnecessary.” Corbitt v. Vickers, 929 F.3d

1304, 1312 (11th Cir. 2019). The law, as it existed in

September and October of 2017, did not place the

constitutionality of the conduct at issue “beyond

debate.” Wesby, 138 S. Ct. at 590. See also Crosby v.

Paulk, 187 F.3d 1339, 1344–45 (11th Cir. 1999)

(explaining

that

qualified

immunity

gives

government officials “the benefit of the doubt,

provided that the conduct was not so obviously illegal

in the light of then-existing law”) (internal quotation

marks omitted).

In addition to seeking damages against Ms.

Patterson and Ms. Edgar, Mr. Benning requested

declaratory relief with respect to his due process

claims. He asked that the district court issue a

judgment which declared (a) that he “has a right to

be notified when email correspondence is censored,”

(b) that he “has a right to [the] written reasons for

any decision to censor” his email correspondence, and

censor [his] email correspondence before the decision

is finalized.” See D.E. 28 at 6.8

8 Mr. Benning also requested that the district court issue a

judgment which declared “inmate email correspondence” to be

the same as “written/paper correspondence.” See D.E. 28 at 6.

Because Mr. Benning has not claimed that any particular policy

within SOP 204.10 is unconstitutional in its differential

treatment of email correspondence and written/paper

correspondence, we do not consider this claim.

20a

As we have explained, qualified immunity “is

only a defense to personal liability for monetary

awards resulting from government officials

performing discretionary functions,” and “may not be

effectively asserted as a defense to a claim for

declaratory or in-junctive relief.” Ratliff v. DeKalb

County, 62 F.3d 338, 340 n.4 (11th Cir. 1995). See

also D’Aguanno v. Gallagher, 50 F.3d 877, 879 (11th

Cir. 1995) (“[B]ecause qualified immunity is a

defense only to claims for monetary relief, the

district court erred in granting summary judgment

on plaintiffs’ claims for injunctive and declaratory

relief.”). So the entitlement of Ms. Patterson and Ms.

Edgar to qualified immunity with respect to damages

does not resolve the requests for declaratory relief.

The district court, having rejected Mr. Benning’s

due process claims on the merits, did not have to

confront the issue of declaratory relief. But we have

held that a reasonable jury could find that Ms.

Patterson and Ms. Edgar violated Mr. Benning’s due

process rights by intercepting his emails and by

failing to provide him notice and an opportunity to

appeal to a different GDC official. Those due process

claims will have to be put to a jury so that the

district court can address the propriety (and scope) of

declaratory relief should Mr. Benning prevail. Cf.

Flagner v. Wilkinson, 241 F.3d 475, 483 (6th Cir.

2001) (explaining that the grant of qualified

immunity to individual prison officials did not

preclude an inmate “from going forward with his asapplied challenge to the Ohio prison grooming

regulation insofar as he seeks declaratory and injunctive relief” to “prevent the defendants from

forcibly cutting his beard and sidelocks in the

future”); 1 Sheldon H. Nahmood, Civil Rights and

21a

Civil Liberties Litigation § 5:3 (2021-22 edition) (by

“the terms of” the Declaratory Judgment Act,

“neither injunctive relief nor damages need be

sought as a condition precedent to obtaining a

declaratory judgment”).

We note that Mr. Benning asserted his due

process claims against all of the defendants,

including the Commissioner of the GDC. See D.E. 28

at 11–12. Insofar as he is being sued in his official

capacity for declaratory relief, and due to his

implementation of SOP 204.10, the Commissioner

may not assert qualified immunity as a defense. See

Kentucky v. Graham, 473 U.S. 159, 167 (1985) (“The

only immunities that can be claimed in an officialcapacity action are forms of sovereign immunity that

the entity, qua entity, may possess, such as the

Eleventh Amendment.”); Universal Amusement Co.

v. Hofheinz, 646 F.2d 996, 997 (5th Cir. 1981)

(“Government officials sued in their official capacity

may not . . . assert [qualified] immunity as a

defense.”).

Although a prayer for declaratory relief generally

seeks a declaration of both past and future conduct,

the Supreme Court has explained that such relief is

permitted in an official-capacity suit against a state

official for prospective relief under Ex parte Young,

209 U.S. 123 (1908), because “[i]nsofar as the

exposure of the State is concerned,” it adds “nothing

to the prayer for [an] injunction.” Verizon Md., Inc. v.

Pub. Serv. Com’n of Md., 535 U.S. 635, 646 (2002).

Mr. Benning did not seek injunctive relief as to his

due process claims, but his requests for declaratory

relief as to those claims are worded in the present

tense, and do not simply seek a declaration of past

wrongdoing. We therefore cannot say on this record

22a

that declaratory relief against the Commissioner is

barred should Mr. Benning prevail on his due

process claims. See S&M Brands, Inc. v. Georgia ex

rel. Carr, 925 F.3d 1198, 1204 (11th Cir. 2019)

(“Some suits requesting injunctive or declaratory

relief against state officials are not considered suits

against the state and thus are not barred by

sovereign immunity.”) (citing Ex parte Young and

Verizon Md.). Should Mr. Benning prevail on his due

process claims against Ms. Patterson, Ms. Edgar,

and the Commissioner on remand, the district court

will need to address the requests for declaratory

relief.

We now pivot to Mr. Benning’s First Amendment

claims. Mr. Benning alleged that two of the policies

set out in SOP 204.10—the prohibition on requesting

forwarding to third parties and the prohibition on

sending information about other inmates—violated

his First Amendment rights. The parties, as they did

below, debate which of two Supreme Court cases

provides the proper standard for addressing the

censorship of inmates’ outgoing emails.

Martinez, which has been limited to outgoing

correspondence, see Thornburg, 490 U.S. at 413,

holds that “censorship of prisoner mail is justified” if

“the regulation or practice . . . further[s] an

important or substantial governmental interest

unrelated to the suppression of expression” and if

“the limitation of First Amendment freedoms [are]

. . . no greater than is necessary or essential to the

protection of the particular governmental interest

involved.” Martinez, 416 U.S. at 413. On the other

hand, Turner v. Safley, 482 U.S. 78, 89 (1987), holds

23a

that “when a prison regulation impinges on inmates’

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests.” Mr. Benning argues that Martinez

provides the governing standard, while the

defendants assert that Turner governs.

Mr. Benning alleged that two policies set out in

SOP 204.10 violated his First Amendment rights

under Martinez. As stated, these were the policy

prohibiting inmates from asking recipients to

forward their outgoing emails (the forwarding policy)

and the policy prohibiting inmates from discussing

other inmates in their out-going emails (the inmateinformation policy). Mr. Benning did not argue that

he had an “independent, stand alone, right to

electronic correspondence if . . . no email service of

any sort was offered by the defendants.” D.E. 80 at 6.

Instead, he asserted that “[t]he standard to be

applied for review of the censorship of outgoing

electronic correspondence is the same as that for

outgoing physical correspondence set out in

[Martinez].” Id. at 16. His position before the district

court was that the policies did not pass muster under

Martinez, and that summary judgment in favor of

the defendants was not appropriate because the

record did not establish that the restrictions were “no

greater than necessary or essential to protect

important or substantial interests.” Id. at 17.

The defendants responded that Mr. Benning did

not have a constitutional right to communicate

through email. And they asserted that even if he had

such a right, the challenged policies would survive

constitutional scrutiny under Turner. That is, they

24a

argued that the two policies are “rationally related to

[the] GDC’s security interest”—“[b]oth policies exist

to curb criminal activity and ensure security and are

therefore ‘rationally connected to [GDC’s] security

and safety interests.’” D.E. 64-1 at 11–12. See also

D.E. 64-4, Exh. B at 7. Specifically, the forwarding

policy “prevents [inmates] from communicating with

those who have not been cleared by GDC’s security

personnel and who may have a record of criminal

activity,” and the inmate-information policy

“prevents [inmates] from including information that

could endanger the safety and security of anyone

related or connected to the inmate named in [the]

email.” Id. at 11. The defendants further asserted

that Mr. Benning had other means of communicating

besides email (i.e., physical letters), that

accommodating Mr. Benning’s forwarding request

would require the GDC to invest more resources “to

do background checks on the limitless number of

possible recipients that [inmates’] emails could be

forwarded to,” and that the prohibitions set forth by

the policies “are not exaggerated responses to GDC’s

security concerns.” Id. at 12–13.

Ms. Edgar and Ms. Patterson additionally argued

that they were entitled to qualified immunity. In

their view, “there [was] no clearly established law

that would have put them on notice that performing

their job responsibilities of withholding emails that

did not comply with the email [policies] was clearly

unlawful.” Id. at 15.

The district court decided to apply the standard

set out in Turner and ruled that the challenged

policies were constitutional under that standard. The

district court alternatively concluded that Ms.

Patterson and Ms. Edgar were entitled to qualified

25a

immunity such that Mr. Benning would not be

entitled to damages from them. See D.E. 108 at 10–

29.

On appeal, the parties essentially restate the

positions they took in the district court.

Mr. Benning makes three principal arguments.

First, he maintains that Martinez—rather than

Turner—provides the appropriate standard for

reviewing restrictions on outgoing emails and that

under Martinez issues of material fact preclude

summary judgment. See Br. for Appellant at 28–42.

Second, he contends that even if Turner applies

material issues of fact exist as to whether the

forwarding policy and the inmate-information policy

are constitutional. See id. at 43–51. Third, he asserts

that Ms. Patterson and Ms. Edgar are not entitled to

qualified immunity. See id. at 59–60.

The defendants argue that “straightforward

application of the Turner standard confirms that

[the] GDC’s modest email regulations are reasonably

related to security and safety for inmates, security

guards, and members of the public.” Br. for Appellees

at 13–14. They also contend that the district court

correctly found that Ms. Edgar and Ms. Patterson

were entitled to qualified immunity. See id. at 41–45.

As set out earlier, the Supreme Court’s cases

provide that qualified immunity “attaches when an

official’s conduct does not violate clearly established

statutory or constitutional rights of which a

reasonable person would have known,” and explain

that for a right to be clearly established “existing

precedent must have placed the statutory or

26a

constitutional question beyond debate. This inquiry

must be undertaken in light of the specific context of

the case, not as a broad general proposition.” RivasVillegas, 142 S. Ct. at 7–8 (internal quotation marks

and citations omitted).

We conclude that qualified immunity applies

with respect to Mr. Benning’s claims for damages

against Ms. Patterson and Ms. Edgard. In September

and October of 2017, when Ms. Patterson and Ms.

Edgar intercepted Mr. Benning’s emails, there was

no clearly established law (in the Supreme Court, the

Eleventh Circuit, or the Georgia Supreme Court)

holding or indicating that the forwarding policy or

the inmate-information policy (or similar policies)

violated the First Amendment when applied to

outgoing emails from inmates. There was also no

clearly established law addressing which First

Amendment standard—the one in Martinez or the

one in Turner—governs prison regulations like the

ones at is-sue here.

Mr. Benning cannot point to any materially

similar cases—and we have not found any

ourselves—but he argues that a reasonable prison

official would have understood that emails are a form

of outgoing correspondence under Martinez. See Br.

for Appellant at 56. But we have already rejected Mr.

Benning’s similar argument against qualified

immunity with respect to the due process claims.

And the recognition that emails constitute

correspondence for due process purposes says little

about the constitutionality of the forwarding and

inmate-information policies under the First

Amendment. Under the circumstances, the

unconstitutionality of those policies was not “beyond

debate.” Wesby, 138 S. Ct. at 590. See also Rodriguez

27a

v. Burnside, 38 F.4th 1324, 1334 (11th Cir. 2022)

(granting qualified immunity, in a First Amendment

free exercise case, to prison officials implementing

policies that limited and governed showers for

inmates housed in a special management unit, and

explaining that Turner drew no “bright lines”

between lawful and unlawful policies).

Thus, because the law was not clearly

established, we affirm the district court’s ruling that

Ms. Edgar and Ms. Patterson are entitled to

qualified immunity on Mr. Benning’s First

Amendment claims for damages. In light of our

decision, we need not and do not address the

constitutionality of the forwarding and inmateinformation policies.

That leaves the First Amendment claims against

the Commissioner in his official capacity. Mr.

Benning did not seek declaratory relief on those

claims, but he did seek certain injunctive relief. See

Whole Woman’s Health v. Jackson, 142 S. Ct. 522,

532 (2021) (explaining that Ex parte Young “allows

certain private parties to seek judicial orders in

federal court preventing state executive officials from

enforcing state laws that are contrary to federal

law”).

As relevant here, Mr. Benning requested that the

district court (1) “order the defendants to not limit

the length of outgoing emails,” (2) “order the

defendants to allow [him] to email anyone except for

persons who have specifically requested to be

restricted to [him],” and (3) “order the defendants to

not impose restrictions on the use of [his] electronic

28a

communications by non-incarcerated persons.” D.E.

28 at 13.

The district court denied Mr. Benning’s claims

for injunctive relief because they were moot or

because they did not comply with the Prison

Litigation Reform Act, 18 U.S.C. § 3626(a)(1)

(requiring, among other things, that injunctive relief

as to prison conditions “extend no further than

necessary to correct the violation of the Federal right

of a particular plaintiff” and be “narrowly drawn”).

See D.E. 108 at 7–8. Mr. Benning contends that the

district court erred, but we disagree.

While the case was pending in the district court,

the GDC rescinded the policy in SOP 204.10

preventing inmates from emailing anyone not

cleared to physically visit them at their facility. See

D.E. 80-5 at 1. The district court concluded that, as

to this aspect of SOP 204.10, Mr. Benning’s request

for injunctive relief was moot. See D.E. 108 at 7. Mr.

Benning does not challenge that conclusion on

appeal, so we address only his other two requests,

unrelated to monetary damages, for injunctive

relief—ordering the GDC not to limit the length of

outgoing emails and not to impose restrictions on the

use of his communications by non-incarcerated

persons.

Mr. Benning argues that the district court acted

prematurely in rejecting his claims for injunctive

relief, and asserts that it should have waited to see if

he prevailed on any of his First Amendment claims.

See Br. for Appellant at 58–60. If a preliminary

injunction is not sought, it generally makes sense for

a district court to leave the matter of equitable

remedies until the end of the case. At that point the

29a

court will know what claims, if any, the plaintiff has

prevailed on and will be able to determine the

propriety and scope of injunctive relief. See United

States v. Baxter, Int’l, Inc., 345 F.3d 866, 909 (11th

Cir. 2003).

Under Rule 54(c) of the Federal Rules of Civil

Procedure, the “demand for relief in the pleadings

does not limit, except in cases of default, the relief a

court may grant when entering judgment.” Sapp v.

Renfroe, 511 F.2d 172, 176 n.3 (5th Cir. 1975). But

“Rule 54(c) creates no entitlement to relief based on

issues not squarely presented” in the pleadings.

Cioffe v. Morris, 676 F.2d 539, 541 (11th Cir. 1982).

The problem for Mr. Benning is that his requested

injunctive relief bore no relationship to the First

Amendment claims he asserted. As a result, even if

he prevailed on the merits of those claims he would

not have been entitled to the injunctive relief he

sought.

“[T]he scope of injunctive relief is dictated by the

extent of the violation established.” Califano v.

Yamasaki, 442 U.S. 682, 702 (1979). And that

remains the case under the PLRA. See 18 U.S.C.

§ 3626(a)(1)(A) (“Prospective relief in any civil action

with respect to prison conditions shall extend no

further than necessary to correct the violation of the

Federal right of a particular plaintiff or plaintiffs.”).

See also Thomas v. Bryant, 614 F.3d 1288, 1323

(11th Cir. 2010) (PLRA case: “[T]he case law has long

established that the scope of an injunction should not

exceed the identified violation.”). With respect to his

First Amendment claims, Mr. Benning requested an

order prohibiting the GDC from limiting the length

of outgoing emails and an order prohibiting the GDC

from restricting in any way how his emails are used

30a

by non-incarcerated persons. As to the first request,

Mr. Benning never claimed that the GDC’s limitation

on the length of outgoing emails (one of the policies

set out in SOP 204.10) was unconstitutional. As to

the second request, SOP 204.10 does not by its terms

place any limits on what recipients of inmate emails

can do with them once they are received—the

restriction is on the inmate asking recipients of

emails to forward the communications—and in any

event there was no allegation in the complaint that

any such restriction was unconstitutional.

Although we review pro se filings liberally, we

cannot “rewrite [a] . . . pleading” to request a

different form of relief. See Campbell v. Air Jamaica

Ltd., 760 F.3d 1165, 1168–69 (11th Cir. 2014). Given

the complete lack of connection between the claims

pled and the injunctive relief requested, the district

court did not err in ruling that such relief was

overbroad and inappropriate. See § 3626(a)(1)(A);

Thomas, 614 F.3d at 1323. As with Ms. Patterson

and Ms. Edgar, we do not address the

constitutionality of the forwarding and inmateinformation policies under the First Amendment.

On Mr. Benning’s due process claims, we affirm

in part and reverse in part. Mr. Benning had a First

Amendment liberty interest in his outgoing emails.

As a result, he was entitled to procedural safeguards

when his emails in September and October of 2017

were intercepted. Although Ms. Patterson and Ms.

Edgar are entitled to qualified immunity on Mr.

Benning’s requests for damages on the due process

claims, those claims must be tried to a jury. The

requests for declaratory relief on the due process

31a

claims are not barred by qualified or sovereign

immunity, and a reasonable jury could find that the

defendants—in promulgating and following SOP

204.10—violated Mr. Benning’s due process rights.

With respect to Mr. Benning’s First Amendment

claims relating to the forwarding and inmateinformation policies, we affirm. Ms. Patterson and

Ms. Edgar are entitled to qualified immunity, and

the requested injunctive relief against the

Commissioner was not connected to the policies that

Mr. Benning challenged.

AFFIRMED IN PART, REVERSED IN PART,

AND REMANDED.

Schlesinger, J., Concurring

SCHLESINGER, District Judge, Concurring:

I concur in the result and agree with much in the

majority opinion. But I write separately because I

would affirm the district court’s determination that

Turner rather than Martinez controls. Turner v.

Safley, 482 U.S. 78, 89 (1987); Procunier v. Martinez,

416 U.S. 396, 418 (1974), overruled on other grounds

by Thornburgh v. Abbott, 490 U.S. 401, 413–414

(1989).

This case presents an opportunity to address how

prison officials should treat First Amendment issues.

The majority concludes, “under Martinez Mr.

Benning had a protected liberty interest grounded in

the First Amendment, in the emails he generated

and sought to send to his sister.” Maj. Op. at 10. But

the issue is not so plain. Other Circuits have recently

32a

addressed similar instances and have followed

Turner. See Murdock v. Thompson, No. 20-6278,

2022 WL 17352171, at *1 (4th Cir. Dec. 1, 2022)

(relying on Turner to affirm the denial of an inmate’s

claim his right of access to the court was violated

when he was prohibited from sending a “Motion for a

Speedy Trial” by certified mail); White v. True, 833 F.

App’x 15, 18 (7th Cir. 2020) (considering a First

Amendment claim, in a Bivens action, of an inmate

barred from sending mail to his daughter, but the

court, citing Turner, determined “the restriction on

outgoing mail” served “a legitimate penological

interest”); Sebolt v. Samuels, 749 F. App’x 458, 459

(7th Cir. 2018) (citing Turner when addressing an

inmate’s contention his First Amendment rights

were violated because he was denied access to the

institution’s email program because of his criminal

history and concluding inmates do not have an

unrestricted First or Sixth Amendment right to

receive publications or consult counsel by electronic

mail); Aguiar v. Recktenwald, 649 F. App’x 293, 295

(3d Cir. 2016) (applying Turner to decide whether an

inmate had “a constitutionally protected interest in

the use and maintenance of his Facebook account”).

While others have followed Martinez. See Stow v.

Davis, No. 22-1264, 2023 WL 2944991, at *1 (1st Cir.

Jan. 4, 2023) (applying Martinez standard when

addressing a possible outgoing mail censorship

question); Bacon v. Phelps, 961 F.3d 533, 543-44 (2d

Cir. 2020) (concluding Martinez applied to a prison

policy that allowed an inmate to be disciplined for a

letter sent to his sister.).

It is for this reason, and to provide sharper

guidance to district courts, I suggest we should have

more fully developed whether Turner applies to Mr.

33a

Benning’s claim. In my view the challenged email

policies survive constitutional scrutiny under Turner.

APPENDIX B

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF GEORGIA

MACON DIVISION

RALPH HARRISON BENNING,

Plaintiff,

COMMISSIONER GREGORY C.

DOZIER, et al.,

[FILED April 30,

2021]

CIVIL ACTION NO.

5:18-cv-00087TES-CHW

Defendants.

ORDER ADOPTING THE UNITED STATES

MAGISTRATE JUDGE’S REPORT AND

RECOMMENDATIONS

Should censorship of prisoner email be treated

the same as censorship of traditional prisoner mail

when deciding whether that censorship violates the

First Amendment or the Fourteenth Amendment’s

guarantee of procedural due process? This case

requires the Court to grapple with that question.

And it’s a much tougher question than it appears at

first blush. After considerable research, the Court

agrees with the Magistrate Judge that email is just

different. Accordingly, the Court ADOPTS the

Magistrate Judge’s Report & Recommendation

(“R&R”) that the Defendants’ Motion for Summary

(34a)

35a

Judgment be

dismissed.1

granted

and

Benning’s

case

BACKGROUND

Ralph Harrison Benning (“Benning”), an inmate

at Wilcox State Prison, complains that the Georgia

Department of Corrections (“GDC”) censored the

following four emails he sent through the inmate

email service, known as “JPay,” to persons outside of

the prison:

•

a September 24, 2017, email Benning sent to his

sister, Ms. Elizabeth Anne Knott, intercepted by

Defendant Patterson,

•

two emails Benning sent on October 9, 2017, to

his sister, Ms. Elizabeth Anne Knott, intercepted

by Defendant Edgar, and

•

February 6, 2018, email Benning sent to the

Aleph Institute, intercepted by Defendant

Patterson. [Doc. 28, p. 5].

Benning filed suit, claiming that none of the four

emails reached their intended recipient because the

GDC withheld them because their content violated

GDC policy, and the Commissioner implemented this

At the outset, the Court finds it necessary to address

Benning’s Motion for Investigation of Harassment and

Intimidation [Doc. 107] filed on April 22, 2021. Benning’s

allegations, if true, should concern the Defendants, Georgia’s

Governor and Attorney General, and this district’s Acting

United States Attorney as much as it disturbed the Court.

While the Court DENIES Plaintiff’s “motion” [Doc. 107]

because district courts don’t investigate, the Court will ensure

that Benning’s allegations are forwarded to the Acting United

States Attorney for the Middle District of Georgia and Georgia’s

Attorney General.

36a

policy. [Doc. 1, p. 11]; [Doc. 28, pp. 5, 11–12]. The

particular policy—SOP 204.10—is intended to curb

criminal activity and ensure security by preventing

prisoner threats to citizens and prison personnel.

[Doc. 64-1, pp. 11–12]; [Doc. 64-4, ¶ 28]. Relevant

here, SOP 204.10 prohibits inmates from requesting

that emails be sent, forwarded, or mailed to persons

other than the original recipient. [Doc. 64-4, pp. 14–

15]. SOP 204.10 also prohibits inmates from

requesting information about another offender. [Id.].

The parties do not dispute that Benning’s four

withheld emails violated this policy. [Doc. 80, pp. 4–

5].

The magistrate judge screened Benning’s claims

pursuant to 28 U.S.C. § 1915A(a). [Doc. 7]. The

magistrate judge found that Benning sought relief

under 42 U.S.C. § 1983 and could “proceed with his

claims against Defendant Dozier in his official

capacity.” [Id. at pp. 1, 7]. Later, the court allowed

Benning to add Patterson and Edgar as defendants

via an amended complaint. [Doc. 28].

Benning claimed compensatory damages of $0.35

per censored email, $10 in nominal damages from

each defendant, $1,000 in punitive damages from

each defendant, and litigation costs. [Doc. 28, p. 13].

Benning also sought declaratory and injunctive

relief. [Id. at pp. 6, 13]. Specifically, Benning asked

the Court to:

1. Declare that email correspondence be

considered the same as written/paper

correspondence.

2. Declare that Plaintiff has a right to be notified

when email correspondence is censored.

37a

3. Declare that Plaintiff has a right to respond to

any decision to censor email correspondence

before the decision is finalized.

4. Declare that Plaintiff has a right to written

reason(s) for any decision to censor email

correspondence.

...

11. Order the defendants to not limit the length

of outgoing emails.

12. Order the defendants to allow Plaintiff to

email anyone except for persons who have

specifically requested to be restricted to

Plaintiff.

13. Order the defendants to not impose

restrictions on the use of Plaintiff’s electronic

communications by non-incarcerated

persons.

[Doc. 28, pp. 6, 13].

Defendants filed a Motion for Summary

Judgment [Doc. 64], arguing that Benning has no

constitutional right to communicate via email, that

his use of the prison email system is a privilege and

not a right, and the GDC preventing Benning from

using his email on three occasions is not a

constitutional violation. [Doc. 64-1, pp. 6–9].

Defendants also argue that even if Benning has a

constitutional right to communicate via email, the

abridging of that right passes the applicable level of

constitutional scrutiny, and that Defendants Edgar

and Patterson are entitled to qualified immunity for

the suits against them in their individual capacities.

[Id. at pp. 9–17]. Lastly, Defendants argue that

38a

Benning is only entitled to nominal damages and is

not entitled to injunctive relief. [Id. at 17–19].

Benning responded to Defendants’ Motion for

Summary Judgment, arguing that electronic and

paper correspondence should not be treated

differently for the purposes of a First Amendment

analysis, that due process should be provided when a

prisoner’s email correspondence is restricted, that

limiting the length of email correspondence is

unconstitutional, that it is unconstitutional for the

Defendants to restrict the speech of non-incarcerated

persons, and that the applicable law is clearly

established for the purposes of qualified immunity.

[Doc. 80]; [Doc. 80-1].

The Magistrate Judge recommended that

Defendants’ Motion for Summary Judgment be

granted. [Doc. 84]. After initially reviewing

Benning’s objections [Doc. 87] to the Magistrate

Judge’s R&R, the Court recommitted the matter to

the Magistrate Judge “to consider Benning’s

Procedural Due Process claim in the manner he sees

fit.” [Doc. 89, p. 6]. The Magistrate Judge then issued

another R&R [Doc. 90] considering Benning’s

procedural due process claim and elaborating on his

First Amendment analysis. After granting Benning a

request for extension of time to file objections, the

Court did not timely receive objections from Benning

and adopted the R&R after reviewing for clear error

pursuant to 28 U.S.C. § 636(b). [Doc. 92]; [Doc. 93].

Judgment was entered against Benning. [Doc. 94].

Benning again requested more time to file objections

and the Magistrate Judge denied this request. [Doc.

95]; [Doc. 96]. Benning then moved for relief from the

judgment pursuant to Rule 60(b). [Doc. 97]. The

Court granted this motion and ordered the judgment

39a

entered against Benning to be set aside. [Doc. 98].

Benning moved to exceed the page limit for his

objections (and filed objections exceeding the page

limit), and the Court denied that request and

ordered him to submit objections conforming with

the twenty-page limit. [Doc. 100]; [Doc. 101]; [Doc.

102].

Defendants then filed a response [Doc. 103] to

Benning’s (now-stricken and over-the-page-limit)

objections [Doc. 101]. Benning then re-filed his

objections [Doc. 104] and arguments [Doc. 105]

within the applicable page limit.2 Benning also filed

a reply [Doc. 106] to the Defendants’ response.

DISCUSSION

A. Benning’s Claims for Injunctive Relief

Benning seeks injunctive relief against the

Defendants. See [Doc. 28, pp. 6, 13 (Asking the Court

to order Defendants to not limit length of emails, to

not limit who Benning may email, and to not place

restrictions on what the email recipients do with

Benning’s emails)]. The Magistrate Judge allowed

Benning’s claim against the Commissioner of the

GDC to proceed under the doctrine of Ex Parte Young

because he asked for injunctive relief for ongoing

violations of his federal rights against the

Commissioner in his official capacity. [Doc. 7]. When

the Magistrate Judge allowed the claim for

injunctive

relief

proceed

against

the

Commissioner, he did so because Benning alleged the

2 Benning filed a list of objections [Doc. 104], and then a

“brief in support” of objections [Doc. 105]. The brief contains the

objections and supporting arguments and is within the twentypage limit (not counting attached exhibits).

40a

violation was done pursuant to a “formal policy” or

“custom.” [Id.]. In other words, the Magistrate Judge

determined that Benning requested injunctive relief

to address a continuing constitutional violation.

Ex parte Young, 209 U.S. 123 (1908), provides an

exception to the Eleventh Amendment for “suits

against state officers seeking prospective equitable

relief to end continuing violations of federal law.”

Florida Ass’n of Rehab. Facilities, Inc. v. State of Fla.

Dep’t of Health & Rehab. Servs., 225 F.3d 1208, 1219

(11th Cir. 2000) (citation omitted). Ex parte Young’s

doctrine is only available when the plaintiff seeks

prospective injunctive relief. Id. It does not apply,

however, when a federal law has been violated at one

time or over a period of time in the past. Id. A

plaintiff may not use the doctrine to adjudicate the

legality of past conduct. Summit Med. Assocs., P.C. v.

Pryor, 180 F.3d 1326, 1337 (11th Cir. 1999).

Benning concedes that at least some of the

violations he seeks injunctive relief to address are

not ongoing. Benning states in his latest objections

that the Defendants have removed the limit on who

Benning may email, and have removed the

requirement that those Benning emails have

undergone background checks. See [Doc. 105, p. 19].

This makes moot Benning’s request that the Court

“Order the defendants to allow Plaintiff to email

anyone except for persons who have specifically

requested to be restricted to Plaintiff,” [Doc. 28, p.

13], and that claim is therefore DENIED.

Further, to the extent Benning’s concessions do

not moot his other two requests for injunctive

relief—that the Court “Order the defendants to not

limit the length of outgoing emails,” and “Order the

41a

defendants to not impose restrictions on the use of

Plaintiff’s electronic communications by nonincarcerated persons”—do not conform with the

limits on injunctive relief imposed by the Prison

Litigation Reform Act.

Prospective relief in any civil action with

respect to prison conditions shall extend no

further than necessary to correct the

violation of the Federal right of a particular

plaintiff or plaintiffs. The court shall not

grant or approve any prospective relief

unless the court finds that such relief is

narrowly drawn, extends no further than

necessary to correct the violation of the

Federal right, and is the least intrusive

means necessary to correct the violation of

the Federal right. The court shall give

substantial weight to any adverse impact on

public safety or the operation of a criminal

justice system caused by the relief.

18 U.S.C. § 3626(a)(1). As explained below, and as

Benning himself concedes, he has no stand-alone

right to email. Nor does Benning point to any law

that would require him to have access to emails over

a certain length. Because Benning can point to no

federal right to send an email over the page limit,

this claim for injunctive relief is due to be DENIED.

Further, Benning’s request that the Court order

Defendants to remove any “restrictions on the use of

Plaintiff’s electronic communications by nonincarcerated persons” is extremely sweeping and

broad, and does not conform to the “narrowly drawn”

or “least intrusive means” requirements of

§ 3626(a)(1). That claim is therefore DENIED.

42a

Therefore, since any possible claim for injunctive

relief related to ongoing conduct against the

Commissioner is denied as either moot or as a

violation of § 3626(a)(1), all claims against the

Commissioner fail. See Ex parte Young, 209 U.S. 123

(1908).

Further, the claims for injunctive relief against

Defendants Patterson and Edgar also fail for the

same mootness and § 3626(a)(1) reasons explained

above. Therefore, only Benning’s claims for nominal

damages, compensatory damages, and punitive

damages against these remaining defendants are

left.3

B. Remaining Claims Against Defendants

Patterson and Edgar

Because

the

remaining

claims

against

Defendants Patterson and Edgar are for damages,

the doctrine of qualified immunity may shield them

from any liability to Benning. Qualified immunity

will protect Patterson and Edgar if they were acting

within the scope of their discretionary authority, and

if Benning can demonstrate that they violated one of

his clearly established constitutional rights. See

Smith v. Ford, 488 F. Supp. 1314, 1323 (M.D. Ga.

Sept. 22, 2020). It is not disputed—and plainly

obvious—that Patterson and Edgar were acting

within the scope of their discretionary authority.

Therefore, whether Benning’s claims against

Patterson and Edgar prevail will hinge on whether

they violated (1) one of his constitutional rights that

3 Benning’s requests for declaratory relief are all questions

that must be answered as the Court considers the merits of

Benning’s claims against Defendants Patterson and Edgar.

43a

was (2) clearly established. Id. The Court will first

consider whether Benning has established that

Edgar or Patterson violated his rights guaranteed by

the First Amendment or the Due Process Clause.

Then, the Court will consider whether either of those

rights were clearly established.

1. First Amendment Claim

The Magistrate Judge recommends that the

Court grant Defendants’ Motion for Summary

Judgment as to Benning’s First Amendment claim

because the First Amendment doesn’t protect

prisoners from having their email censored. [Doc. 84,

pp. 4–10]; [Doc. 90, pp. 7–13].4 Benning objects,

arguing that (1) the Martinez standard should apply

to the censorship of outgoing emails—not Turner; (2)

his claims survive under the Martinez standard; and

(3) even if Turner is the right standard, Benning’s

4 To tidy things up a bit, the Court notes that the first R&R

[Doc. 84] analyzed Benning’s First Amendment claim and found

that it should be dismissed. Benning filed objections [Doc. 87] to

this R&R and attacked in detail the Magistrate Judge’s

analysis. The Court recommitted the R&R to the Magistrate

Judge because it disagreed with the Magistrate Judge’s finding

that Benning did not raise a due process claim until his

Response to Defendants’ Motion for Summary Judgment. See

[Doc. 89]. In the Magistrate Judge’s latest R&R [Doc. 90], he

defends and elaborates upon his original First Amendment

analysis in [Doc. 84]. See [Doc. 90, pp. 7–13]. In the interest of

being as fair to Benning as possible given the admittedly

confusing procedural posture of this case, the Court will

perform a “de novo determination of those portions of the report

. . . or recommendations to which objection is made,” regardless

of whether Benning makes the objection in his initial objections

[Doc. 87] or in his latest objections [Doc. 105]. 28 U.S.C.

§ 636(b)(1).

44a

First Amendment claim nonetheless survives. See

[Doc. 87-2, pp. 4–16]; [Doc. 105, pp. 9–20].

Is prisoner access to

constitutional

right

administrative privilege?

email a

The Court must first decide whether prisoner

access to email is a privilege or a constitutional right

protected by the First Amendment. The answer to

this critical question is important because if no

constitutional right is implicated, then the Court will

not have to apply either Turner or Martinez, because

those standards only apply when prisoners’

constitutional rights are impinged. See Turner v.

Safley, 482 U.S. 78, 89 (1987). And, if no

constitutional rights are at play, then the remaining

Defendants will be protected by qualified immunity.

When finding that Turner is the correct standard

for censorship of outgoing email, the Magistrate

Judge concluded that “[a]ccess to email, like access to

telephone or other advanced technologies, is a

privilege that is above and beyond the ordinary right

to correspondence.” [Doc. 90, p. 8]. The Court agrees

that prisoner access to email is a privilege. So does

Benning. [Doc. 80, p. 6 (“Plaintiff does not have an

independent, stand-alone right to electronic

correspondence.”)]. But the analysis doesn’t end

there.

Prisoners, of course, have First Amendment

rights. See Pesci v. Budz, 935 F.3d 1159, 1165 (11th

Cir. 2019) (“[P]rison walls ‘do not form a barrier

separating prison inmates from the protections of the

Constitution.’” (citing Turner, 482 U.S. at 84)). And,

a prisoner’s First Amendment rights include having

access to incoming and outgoing communication. In

45a

other words, prisoners have a right to

communication; they do not have a right to a specific

form of communication, such as telephone or email,

but those forms of communication can be a way an

inmate exercises his First Amendment right to

communicate. See e.g., Solan v. Zickefoose, 530 F.

App’x 109, 110 (3d Cir. 2013) (recognizing that “email can be a means of exercising” the First

Amendment right of communicating with noninmates); Bonner v. Outlaw, 552 F.3d 673, 677 (8th

Cir. 2009) (“[T]he reasoning of [Martinez] applies to

all forms of correspondence addressed to an inmate.

It is the inmate's interest in ‘uncensored

communication’ that is the liberty interest protected

by the due process clause, regardless of whether that

communication occurs in the form of a letter,

package, newspaper, magazine, etc.” (citing

Martinez, 416 U.S. at 407)). Benning’s claim does not

hinge on his desire to be able to access email and the

prison’s refusal to provide him with that access.

Benning’s claim focuses on whether Defendants

violated his First Amendment rights by censoring

four of his emails sent using the email system made

available to eligible inmates. Therefore, since the

privilege-versus-right distinction does not resolve

this question, the Court must still decide whether to

apply the Turner or Martinez standard before it can

determine the constitutionality of the censorship of

Benning’s four emails.

ii. What is the correct standard of review to

apply to regulations of outgoing

prisoner email?

The Court begins by considering Benning’s

argument that the less-deferential standard from

Procunier v. Martinez, 416 U.S. 396 (1974) is the

46a

governing standard for restrictions of purely

outgoing prisoner emails. In Martinez, the Supreme

Court determined the appropriate standard of review

for prison regulations restricting freedom of speech—

specifically censorship of prisoner mail. 416 U.S. at

406–08. It held that a prison could censor prisoner

mail if it met two criteria: (1) “the regulation or

practice in question must further an important or

substantial government interest unrelated to the

suppression of expression;” and (2) “the limitation on

First Amendment freedoms must be no greater than

is necessary or essential to the protection of the

particular government interest involved.” Id. at 413.

The Martinez decision was not intended to resolve

“broad questions of prisoners’ rights,” but was

specific to regulation of “personal correspondence

between inmates and those who have a

particularized interest in communicating with them.”

Id. at 408.

Then, in Turner, the Supreme Court articulated

the standard to be used when scrutinizing

regulations of prisoners’ rights in general. 482 U.S.

at 89. The two practices at issue in Turner were

prohibitions on inmate-to-inmate correspondence

and restrictions on inmate marriage. Id. at 81–82.

The Supreme Court held that the same test should

applied

both

the

inmate-to-inmate

correspondence regulation and the inmate marriage

regulation: “when a prison regulation impinges on

inmates’ constitutional rights, the regulation is valid

if it is reasonably related to legitimate penological

interests.” Id. at 89.

After Turner, it appeared that Martinez was

superseded and courts now had one test to apply to

all prison regulations infringing on prisoners’

47a

constitutional rights—including those related to

prisoner mail. After all, Turner uses all-inclusive,

sweeping language like “when a prison regulation

impinges on inmates’ constitutional rights.” Id. But,

the Supreme Court then decided the case of

Thornburgh v. Abbott, which considered the validity

of a regulation that allowed prison officials to block

prisoners’ receipt of incoming published material,

like books, if the material was found to be a security

risk. 490 U.S. 401, 403 (1989). The Court of Appeals

had applied the Martinez test. Id. The Supreme

Court disagreed with the Court of Appeals and held

that the Turner test was the proper inquiry for

regulation of incoming published materials to

inmates. Id. at 404. When explaining why Turner

was to be applied instead of Martinez, the Supreme

Court reasoned: “the logic of our analyses in

Martinez and Turner requires that Martinez be

limited

regulations

concerning

outgoing

correspondence.” Id. at 413 (emphasis added).

Therefore, we know that Martinez is still alive, and it

applies to “regulations concerning outgoing

correspondence.” 490 U.S. at 413. What is not clear is

whether “outgoing correspondence” includes outgoing

prisoner email, or instead only includes traditional

hard-copy mail—the kind with envelopes, stamps,

etc. 490 U.S. at 413. The Magistrate Judge concludes

that Martinez is limited to traditional outgoing

prisoner mail and not outgoing prisoner email. See

[Doc. 90, p. 7 (“[Martinez] has been limited to its

facts, specifically to regulation of outgoing written

communication by mail.”]. Benning objects, arguing

that “outgoing correspondence” includes outgoing

prisoner email. See [Doc. 105].

48a

To reach its conclusion that Martinez is

inapplicable to regulations of outgoing prisoner

emails, the Magistrate Judge relied principally on

two Eleventh Circuit cases. First, the Magistrate

Judge relied on Perry v. Secretary of the Department

of Corrections, 664 F.3d 1359, 1365 (11th Cir. 2011),

for the proposition that the Eleventh Circuit has

limited Martinez to its facts: regulation of outgoing

written communication by mail. [Doc. 90, p. 7]. Perry

did not involve a First Amendment claim by a

prisoner based on a restriction of outgoing

correspondence, but was a claim by someone outside

of prison who challenged a restriction on their ability

to correspond with a prisoner. Perry, 664 F.3d at

1362. The Eleventh Circuit stated that the Supreme

Court in Thornburgh “limited Martinez to

regulations involving only outgoing mail.” Perry, 664

F.3d at 1365 (emphasis added). The Eleventh Circuit

then quoted the language from Thornburgh in a

footnote—language discussed earlier in this order—

that uses the term “outgoing correspondence” instead

of “outgoing mail.” Id. at 1365 n. 1 (quoting

Thornburgh, 490 U.S. at 413–14). Perry, albeit in

dicta, shows us that the Eleventh Circuit believed

the “outgoing correspondence” referred to in

Thornburgh actually means “outgoing mail” and

would not include email.

Second, the Magistrate Judge found that the

restrictions here are comparable to the ones in Pope

v. Hightower, 101 F.3d 1382 (11th Cir. 1996), and the

Turner standard should be used here just as it was

used there. [Doc. 90, p. 8]. The regulation at issue in

Pope was a 10-person limit on the number of persons

a prisoner could call. 101 F.3d at 1383. The Eleventh

Circuit applied the Turner standard. Id. at 1384–85.

49a

The Magistrate Judge reasoned that email presents

an even greater risk than telephone, and so if Turner

applied in Pope, it should certainly apply to the

withholding of Benning’s four emails. [Doc. 90, p. 8].

Benning objects to the Magistrate Judge’s

reliance on Perry and Pope and points to out-ofcircuit district courts that have applied the Martinez

standard to regulations of prisoner emails. [Doc. 105,

p. 11]. In Doe v. Ortiz, a prisoner challenged the

prison’s policy of excluding convicted sex-offenders

from accessing email. No. 18-2958 (RMB), 2019 WL

3432228, at *1. (D.N.J. July 30, 2019). The court

applied Martinez and found that the regulation

survived constitutional scrutiny. Id. at 4–6. Familetti

v. Ortiz is like Doe v. Ortiz in that it also involves a

prisoner’s challenge to his denial of access to the

prisoner email system, and the court also applied

Martinez to find the denial constitutional. No. 19-cv7433 (NLH) (AMD), 2020 WL 5036198, at *3–4

(D.N.J. Aug. 26, 2020). These cases show that some

courts apply Martinez even when the restriction at

issue implicates email instead of traditional mail.

But these two cases are different from Benning’s

case since Benning does not challenge a denial from

access to the JPay system, but instead challenges the

prison’s withholding of certain emails sent through

JPay. However, during the Court’s de novo review, it

discovered another case that is factually similar to

Benning’s that he did not cite. In Sutton v. Sinclair,

a prisoner challenged the prison’s rejection of several

pieces of his outgoing mail and email, and the

magistrate judge applied Martinez to the

withholding of his traditional mail and email alike.

No. C19-1119-BJR-MLP, 2020 WL 7248463, at *5–7

(W.D. Wash. Sept. 28, 2020) (Peterson, Mag. J.),

50a

adopted No. C19-1119-BJR, 2020 WL 7241363, at *1

(Dec. 9, 2020). However, even applying Martinez, the

court found the withholding of the prisoner’s email

was constitutional.

The Court recognizes that whether the Martinez

standard governs regulations of outgoing email is a

close call. As shown above, judges have examined the

applicable precedent and found that outgoing email

is “outgoing correspondence” to which the Supreme

Court tells us Martinez applies. Thornburgh, 490

U.S. at 413; see Doe v. Ortiz, No. 18-2958 (RMB),

2019 WL 3432228, at *1. (D.N.J. July 30, 2019);

Familetti v. Ortiz, No. 19-cv-7433 (NLH) (AMD),

2020 WL 5036198, at *3–4 (D.N.J. Aug. 26, 2020);

Sutton v. Sinclair, No. C19-1119-BJR-MLP, 2020 WL

7248463, at *5–7 (W.D. Wash. Sept. 28, 2020)

(Peterson, Mag. J.). Further, when considering the

liberty interest protected by the Due Process Clause,

the Eighth Circuit found that whether the prisoner’s

communication is made by written mail or by email

makes no difference and Martinez would apply to

both. Bonner v. Outlaw, 552 F.3d 673, 677 (8th Cir.

2009).

On the other hand, there is no Eleventh Circuit

or Supreme Court precedent that has considered

whether outgoing email should be treated the same

as outgoing traditional mail for the purpose of

knowing whether to apply Turner or Martinez in the

First Amendment context. And, as the Magistrate

Judge pointed out, the Eleventh Circuit has

suggested, in dicta, that Martinez is limited to

51a

“regulations involving only outgoing mail.” Perry,

664 F.3d at 1365 (emphasis added).5

Forced to answer a question that is likely an

issue of first impression, the Court holds that Turner

is the proper standard to apply when reviewing the

constitutionality of restrictions of outgoing prisoner

email. The Court is hesitant to begin applying the

more-exacting Martinez standard to a new set of

facts that could have unanticipated and unknown

implications to the administration of our prisons. See

Bell v. Wolfish, 441 U.S. 520, 547 (1979) (“Prison

administrators . . . should be accorded wide-ranging

deference in the adoption and execution of policies

and practices that in their judgment are needed to

preserve internal order and discipline and to

maintain institutional security.”).

iii. Applying the Turner standard

Turner requires that the infringement of a

prisoner’s constitutional right must be “reasonably

related to legitimate penological interests.” Turner,

482 U.S. at 89. The Magistrate Judge found that the

Defendants’ censorship of Benning’s four emails

pursuant to SOP 204.10 satisfies this test.

Benning objects, arguing that “the entire

analysis is based upon a false fact, perjured

5 The Court also notes that Pesci v. Budz, 935 F.3d 1159,

1165 (11th Cir. 2019) (Grant, J.) is not dispositive of this

question. It is factually distinct because it does not concern

pure outgoing prisoner correspondence, but distribution of a

publication to both other civil detainees and the nonincarcerated public alike. Id. Therefore, because the regulation

was not one of purely outgoing prisoner correspondence,

applying the Turner standard was appropriate there and Pesci

does not change the outcome of the analysis in this case.

52a

testimony, and a policy that does not exist, and never

existed at any time relevant to the gravamen of the

complaint.” [Doc. 105, p. 17]. Further, Benning also

states that the Defendants have “expanded” his

ability to communicate with the outside world via

email, and that Defendants have “granted Plaintiff

the relief that he requested,” and he “has prevailed

on this issue.” [Id. at p. 19].

To start, Benning argues that summary

judgment is inappropriate because there is a dispute

of material fact as to whether SOP 204.10 was in

effect at the time his emails were withheld. [Doc. 80,

p. 3]; [Doc. 105, p. 18]. However, the Magistrate

Judge correctly concluded that Benning does not

sufficiently contradict the Defendants’ evidence that

the policy was in effect when Benning’s emails were

withheld. [Doc. 90, p. 10 n. 4]. The Defendants

introduce SOP 204.10 into evidence and it shows an

effective date of “8/15/2017.” [Doc. 64-4]. Benning’s

emails that the GDC withheld were sent from

September 24, 2017, to February 6, 2018. [Doc. 28, p.

5]. Benning argues that his affidavit [Doc. 80-5]

contradicts the fact that SOP 204.10 was in effect

during the withholding of Benning’s four emails.

[Doc. 80, p. 3]. However, Benning’s affidavit merely

states that “SOP 204.10 was not in effect prior to

August 15, 2017.” [Doc. 80-5, p. 2]. Since Benning’s

first email was not withheld until September 24,

2017, Benning’s assertion in his affidavit creates no

dispute of fact relevant to this analysis.6

The point Benning seems to be trying to make in his

Response to the Defendants’ Motion for Summary Judgment,

and the fact he attempts to establish in his affidavit, is that

SOP 204.10 was not in effect at the time he signed the

53a

The analysis now turns on whether the

regulation is reasonably related to a legitimate

penological interest. The reasonableness inquiry is

guided by four factors:

(1) whether there is a ‘valid, rational

connection’ between the regulation and a

legitimate governmental interest put forward

to justify it; (2) whether there are alternative

means

exercising

the

asserted

constitutional right that remain open to the

inmates; (3) whether and the extent to which

accommodation of the asserted right will

have an impact on prison staff, inmates, and

the allocation of prison resources generally;

and (4) whether the regulation represents an

‘exaggerated response’ to prison concerns.

Pesci v. Budz, 935 F.3d 1159, 1166 (11th Cir.

2019) (quoting Pope, 101 F.3d at 1348). The

Magistrate Judge applied these four factors and

concluded that the censorship of Benning’s emails

survives scrutiny under the Turner standard and

that summary judgment is appropriate. [Doc. 90, pp.

9–13]. The Court agrees.

Regarding the first factor, Benning’s emails were

withheld pursuant to a legitimate penological

interest. Benning’s emails were withheld pursuant to

Acknowledgement Form. [Doc. 80-5, p. 2]. Benning signing the

Acknowledgement Form in order to access the JPay email

system is irrelevant to this analysis, which requires that the

infringement of Benning’s rights be “reasonably related to

legitimate penological interests.” Turner, 482 U.S. at 89. As

explained earlier in this Order, the fact that prisoner access to

email is a privilege, even one that requires signing an

acknowledgement form, does not resolve this dispute.

54a

SOP 204.10 [Doc. 64-4, pp. 14–15]. SOP 204.10,

which prevents inmates from requesting their emails

be forwarded to another, or from requesting

information about other offenders, furthers a

legitimate penological interest. SOP 204.10 is meant

to protect citizens and prison officials from

intimidation and threats and to ensure prison

security and safety. [Doc. 64-1, pp. 11–12]; [Doc. 644, ¶ 28]. Protecting the public, prison officials, and

offenders are legitimate penological interests. See

Pope, 101 F.3d at 1385. And the email restrictions in

SOP 204.10 are reasonably related to those

legitimate penological interests. See id. (providing

that a connection between a legitimate penological

interest and a restriction is valid and rational so long

as it “is not so remote” as to render the restriction

“arbitrary or irrational”).

Regarding the second Turner factor, Benning has

“alternative means of exercising the asserted

constitutional right” by means of his unhindered

access to USPS and can freely send mail to noninmates. Pesci, 935 F.3d at 1166; [Doc. 28, p. 12];

[Doc. 64-3, pp. 73, 78, 80]; [Doc. 80, pp. 4, 16, 19].

Benning objects, pointing to arguments he raised in

his Response to the Defendants’ Motion for Summary

Judgment. [Doc. 105, p. 19]. Benning argues that

electronic correspondence is the preferred method of

communication in the modern age. [Doc. 80, p. 14].

He also argues that there are some things that he

can only send electronically and not through USPS.

[Id. at p. 15]. The Court finds these arguments

unpersuasive. The essence of the right at issue here

is outgoing communication, and Benning can

communicate with the outside world via USPS. See

Pope, 101 F.3d at 1385 (“[T]he Supreme Court has

55a

instructed that the right must be viewed sensibly

and expansively.” (citing Thornburgh, 490 U.S. at

417)).

Regarding the third Turner factor, “whether and

the extent to which accommodation of the asserted

right will have an impact on prison staff, inmates,

and the allocation of prison resources generally,” the

Magistrate Judge found that the burden on putting

an unlimited number of people on a prisoner’s

approved email list would result in prison

administrators having to do endless background

checks at great cost. [Doc. 90, p. 12]. Benning objects,

arguing that there is no longer any limit on who he

can email, which, according to Benning, proves the

burden on the prison wouldn’t be so tough after all.

[Doc. 105, p. 19]. Benning also disputes that those on

his approved email list must have undergone

background checks. Taking Benning at his word, if

there is no longer any restriction on who prisoners

can email, and no background check requirement, it

does cut against the Government’s showing on this

factor.

Finally, regarding the fourth Turner factor, the

regulations here are not an “exaggerated response”

to prison concerns. Pesci, 935 F.3d at 1166. As the

Magistrate Judge reasoned, in Pesci, the Eleventh

Circuit upheld a total ban on a monthly publication

critical of the prison system. Id. at 1171. If the total

ban was not an “exaggerated response,” then neither

was the censorship of 4 of Benning’s 112 emails sent

during 2017 and 2018.

The Court’s de novo review finds the Magistrate

Judge correctly applied Turner to find that the

censorship of Benning’s four emails passes

56a

constitutional scrutiny. The Defendants make a

strong showing on three of the four factors, with only

the third factor possibly cutting in Benning’s favor.

Therefore, since SOP 204.10 is “reasonably related to

legitimate penological interests,” the Magistrate

Judge’s recommendation dismissing Benning’s First

Amendment claim is due to be adopted.

2. Due Process Claim

In his initial R&R, the Magistrate found that

Benning attempted to add a due process claim for the

first time in his Response to the Defendants’ Motion

for Summary Judgment, which is too late. [Doc. 84,

p. 2 n. 2]. The Court disagreed because Benning

sought to state a claim based on a lack of “notice”

and “opportunity to be heard,” which are classic

procedural due process buzzwords, and, in the

Court’s opinion, is enough to count as alleging a

procedural due process claim under the liberal pro se

pleading standard. [Doc. 28, pp. 5, 11]. The Court

recommitted the R&R to the Magistrate Judge for

him to consider Benning’s procedural due process

claim. [Doc. 89]. The Magistrate Judge did so, and

now recommends that any Due Process claim

Benning alleged be dismissed because he (1)

abandoned it, and, alternatively (2) it fails on the

merits. [Doc. 90, pp. 2–7].

Benning’s first ten objections focus on this

portion of the Magistrate Judge’s R&R. [Doc. 105, pp.

1–9]. Benning argues that he alleged a due process

claim, that he did not abandon it, and that the claim

survives on the merits. [Id.]. The Court agrees with

Benning that his operative complaint stated—or at

least attempted to state—a procedural due process

57a

claim. The issue thus becomes whether Benning has

abandoned his due process claim since then.

Was Benning’s

abandoned?

due

process

claim

The Magistrate Judge recommends that

Benning’s procedural due process claim be deemed

abandoned for three overlapping reasons: (1)

Benning failed to provide adequate notice of this

claim to the Defendants or to the Court; (2) the

litigants did not have adequate opportunity to

examine this claim through discovery; and (3)

Benning did not diligently pursue this claim. [Doc.

90, p. 3].

First, as the Court has already explained in its

recommit order and in this Order, Benning did raise

a procedural due process claim in his complaint even

though he did not use the term “due process” or refer

explicitly to the Fourteenth Amendment. See [Doc.

89]. Under the pro se pleading standard, it is

appropriate for the Court to construe Benning’s

complaint of lack of “notice” and “opportunity to be

heard” as a Fourteenth Amendment procedural due

process claim. See Erickson v. Pardus, 551 U.S. 89,

94 (2007) (“A document filed pro se is ‘to be liberally

construed,’ and ‘a pro se complaint, however

inartfully pleaded, must be held to less stringent

standards than formal pleadings drafted by

lawyers.’” (quoting Estelle v. Gamble, 429 U.S. 97

(1976))); Fed. R. Civ. P. 8(e) (“Pleadings must be

construed so as to do justice.”). See also Mathews v.

Eldridge, 424 U.S. 319, 333 (1976) (“The

fundamental requirement of due process is the

opportunity to be heard at a meaningful time and in

a meaningful manner.”) (cleaned up). Therefore, the

58a

Magistrate Judge’s first basis for abandonment—

that the Court and the Defendants lacked notice of

the claim—falls short.

The Magistrate Judge also recommends that

Benning’s procedural due process claim should be

deemed abandoned because he violated Federal Rule

of Civil Procedure 41(b) and the Court’s screening

order by not diligently prosecuting this claim.

Specifically, the Magistrate Judge reasoned that

discovery in this case was extensive and contested,

and that Benning had ample opportunity to perform

discovery related to his procedural due process claim

but did not. [Doc. 90, p. 4]. The Magistrate Judge

cited Benning’s Motion to Compel [Doc. 39] and

Motion for Contempt [Doc. 61] as examples of

opportunities to request discovery on the procedural

due process claim that Benning did not take

advantage of. [Doc. 90, p. 4]. Benning objects, and

cites to his Motion to Compel where he does request

discovery directly relevant to his procedural due

process claim. [Doc. 105, p. 6]. Specifically, Benning

requested the following in his Motion to Compel:

4. All documents that relate to, refer to,

describe or are any notice Plaintiff was or

was not given that Plaintiff’s emails had

been censored/intercepted.

5. All documents that relate to, refer to,

describe all persons involved in decisions

that relate to, refer to or describe Plaintiff’s

emails during the request period.

7. All documents that relate to, refer to,

describe the processes and procedures used

for handling offender emails.

59a

[Doc. 39, p. 4]. The Court finds that these requests—

especially the one specific to “notice”—counts as a

discovery request directly relevant to Benning’s due

process claim. Therefore, the Magistrate Judge’s

recommendation that Benning’s procedural due

process claim should be deemed abandoned because

of his failure to prosecute falls short. Accordingly,

the Court must consider the merits of Benning’s

procedural due process claim.

ii. Does Benning’s due process claim have

merit?

On the merits, the Magistrate Judge

recommends that Benning had no liberty interest in

his outgoing emails so that any deprivation of them

triggered the requirements of due process. [Doc. 90,

p. 5]. Benning objects, returning to the argument

that Procunier v. Martinez establishes there is a

protected liberty interest in purely outgoing

communications. [Doc. 105, p. 8]. For the same

reason the Court decides that email should not be

treated the same as outgoing physical mail for the

purposes of determining which standard to use in a

First Amendment analysis, the Court likewise holds

that the liberty interest in “communication by letter”

identified by the Supreme Court in Martinez should

not be interpreted to include Benning’s outgoing

emails. 416 U.S. at 417. Further, the Court is unable

to identify any claim or objection by Benning, in

[Doc. 87-2] or [Doc. 105], that argues he has a

protected interest on a basis other than a liberty

interest based on a Martinez theory. In sum,

Benning’s due process claim fails on the merits

because he does not have a protected liberty interest

in his outgoing emails that would trigger the

Fourteenth Amendment’s guarantee of due process.

60a

3. Clearly Established

As explained above, the Court finds that Benning

has failed to show a violation of either his First

Amendment or procedural due process rights. But,

even if the Court wrongly concluded that the

Defendants did not violate any of Benning’s

constitutional rights, whether Martinez actually

governs “outgoing correspondence” or supports

Benning’s theory that he has a constitutional liberty

interest in outgoing emails is far from being clearly

established.

First, the Eleventh Circuit has never issued an

opinion directly on point. “The usual way of

establishing that a constitutional violation was

clearly established law is by pointing to a case, in

existence at the time, in which the Supreme Court or

[the Eleventh Circuit] found a violation based on

materially similar facts.” Cantu v. City of Dothan,

974 F.3d 1217, 1232 (11th Cir. 2020) (citing Priester

c. City of Riviera Beach, 208 F.3d 919, 926 (11th Cir.

2000)). The closest the Court comes to finding a case

with similar facts that appeared to apply Martinez to

censorship of outgoing email is a district court

opinion from the Western District of Washington. See

Sutton, No. C19-1119-BJR-MLP, 2020 WL 7248463,

at *5–7, adopted No. C19-1119-BJR, 2020 WL

7241363, at *1. Here, the Court admits it is a close

call as to whether Martinez or Turner applies to

Benning’s claim and the Court has grappled with a

question of first impression. And, because it is a

question of first impression, the Court easily

concludes that these rights were not “clearly

61a

established” so that the Defendants are not entitled

to qualified immunity.7

CONCLUSION

In conclusion, the Court’s de novo review reveals

the remaining Defendants are entitled to qualified

immunity. The Court agrees that Benning’s First

Amendment and procedural due process claims fail

on the merits. In other words, the Court finds that

the Defendants did not violate any of Benning’s

constitutional rights. Therefore, qualified immunity

shields the Defendants. In the alternative, assuming

that Benning suffered a constitutional violation, the

Court finds that those Constitutional rights were not

clearly established at the time of the violation.

Again, the remaining Defendants would be entitled

to qualified immunity so that he is not entitled to

any form of relief. Accordingly, the Court concludes

that the Magistrate Judge was correct to recommend

that the Defendants’ Motion for Summary Judgment

be granted, albeit for somewhat different reasons.

Therefore, the Court ADOPTS the Magistrate

Judge’s Report & Recommendation [Doc. 90], and the

Defendants’ Motion for Summary Judgment [Doc.

64] is GRANTED. The Clerk of Court may enter

judgment against Benning.

A constitutional right can be clearly established even

without identifying a case with facts directly on point in

“extreme factual circumstances” where the violation goes to the

“very core” of the constitutional right at issue. See Cantu v. City

of Dothan, 974 F.3d 1217, 1232–33 (11th Cir. 2020) (cleaned

up). This is not one of those cases.

62a

SO ORDERED, this 30th day of April, 2021.

S/ Tilman E. Self, III

TILMAN E. SELF, III, JUDGE

UNITED STATES DISTRICT

COURT

APPENDIX C

[Dated: August 17, 2023]

In the

United States Court of Appeals

for the Eleventh Circuit

________________

No. 21-11982

________________

RALPH HARRISON BENNING,

Plaintiff-Appellant,

versus

COMMISSIONER, GEORGIA DEPARTMENT OF

CORRECTIONS MARGARET PATTERSON,

Georgia Department of Corrections,

JENNIFER EDGAR, Georgia Department of

Corrections,

Defendants-Appellees,

GEORGIA DEPARTMENT OF CORRECTIONS

INMATE EMAIL CENSOR,

Defendant.

__________________________________________

Appeal from the United States District Court

for the Middle District of Georgia

D.C. Docket No. 5:18-cv-00087-TES-CHW

__________________________________________

ON PETITION(S) FOR REHEARING AND PETITION(S) FOR

REHEARING EN BANC

(63a)

64a

Before JORDAN and ROSENBAUM, Circuit Judges, and

Schlesinger,* District Judge.

PER CURIAM:

The Petition for Rehearing En Banc is DENIED,

no judge in regular active service on the Court

having requested that the Court be polled on

rehearing en banc. FRAP 35. The Petition for

Rehearing En Banc is also treated as a Petition for

Rehearing before the panel and is DENIED. FRAP

35, IOP 2.

The Honorable Harvey Schlesinger, United States

District Judge for the Middle District of Florida, sitting by

designation.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.