Respondents Brief — Ralph Harrison Benning, Petitioner v. Tyrone Oliver, Commissioner, Georgia Department of Corrections, et al.

No. 23-664

In The

Supreme Court of the United States

----------------------------------------------------------------------RALPH HARRISON BENNING,

Petitioner,

v.

TYRONE OLIVER, COMMISSIONER,

GEORGIA DEPARTMENT OF CORRECTIONS, et al.,

Respondents.

----------------------------------------------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The Eleventh Circuit

----------------------------------------------------------------------BRIEF IN OPPOSITION

----------------------------------------------------------------------CHRISTOPHER M. CARR

Attorney General

STEPHEN J. PETRANY

Solicitor General

Counsel of Record

ZACHARY A. MULLINAX

Asst. Attorney General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Respondents

i

QUESTION PRESENTED

Petitioner Ralph Harrison Benning is serving a

life sentence for murder. Between September 2017 and

February 2018, prison officials with Georgia’s Department of Corrections withheld four of Benning’s outgoing emails because they violated the Department’s

email policy: they requested the recipient to forward

them and/or provided information about other inmates. Benning sued various prison officials in federal

court, asserting that those withholding decisions were

unconstitutional. The Eleventh Circuit held, erroneously, that the Department’s policy of withholding certain emails without particularized notice and an

opportunity for administrative appeal violated his

right to due process. But it also held that the officials

involved are entitled to qualified immunity.

The question presented is whether the Eleventh

Circuit correctly granted qualified immunity to prison

officials who withheld outgoing emails that violated

Department policy, where the court wrongly identified

a constitutional violation in the first place.

ii

TABLE OF CONTENTS

Page

Question Presented .............................................

i

Table of Contents .................................................

ii

Table of Authorities .............................................

iii

Introduction .........................................................

1

Statement ............................................................

4

A.

Factual Background ..................................

4

B.

Proceedings Below .....................................

8

Reasons for Denying the Petition ........................ 11

I.

There is no split of authority or any other

reason to address these questions now ..... 13

II.

This case is not a vehicle to resolve

qualified immunity questions because the

Eleventh Circuit was wrong on the

antecedent liability question ..................... 16

III.

The Eleventh Circuit was correct on

qualified immunity .................................... 31

IV.

This Court should not grant review to

eliminate qualified immunity .................... 34

Conclusion............................................................ 36

iii

TABLE OF AUTHORITIES

Page

CASES

Benning v. Amideo, No. 02-cv-139 (S.D. Ga. Dec.

18, 2002) ....................................................................6

Benning v. Brady, No. 00-cv-27 (S.D. Ga. Mar. 22,

2000) ..........................................................................6

Benning v. Commissioner, No. 18-cv-87 (M.D.

Ga. Mar. 9, 2018) ....................................... 3, 4, 15, 19

Benning v. Deal, No. 17-cv-152 (M.D. Ga. Aug. 9,

2017) ..........................................................................6

Benning v. Dep’t of Corr., No. 14-cv-389 (M.D. Ga.

Sept. 26, 2014) ...........................................................6

Benning v. Garner, No. 98-cv-3690 (N.D. Ga. Dec.

28, 1998) ....................................................................6

Benning v. Georgia, No. 08-cv-435 (M.D. Ga. Dec.

12, 2008) ....................................................................6

Benning v. Hall, No. 01-cv-31 (S.D. Ga. Feb. 28,

2001) ..........................................................................6

Benning v. Jester, No. 94-cv-180 (S.D. Ga. Nov.

22, 1994) ....................................................................6

Benning v. Med. Coll. of Ga., No. 03-cv-108 (S.D.

Ga. July 14, 2003)......................................................6

Benning v. Wetherington, No. 03-cv-51 (S.D. Ga.

Apr. 30, 2003).............................................................6

Board of Regents v. Roth, 408 U.S. 564 (1972) ..... 17, 18

Bonner v. Outlaw, 552 F.3d 673 (8th Cir. 2009) .........14

iv

TABLE OF AUTHORITIES—Continued

Page

Cafeteria & Rest. Workers Union v. McElroy, 367

U.S. 886 (1961) ........................................................30

City of Tahlequah v. Bond, 595 U.S. 9 (2021) .............34

District of Columbia v. Wesby, 583 U.S. 48

(2018) ............................................................. 14, 31, 34

Goldberg v. Kelly, 397 U.S. 254 (1970) .......................18

Harlow v. Fitzgerald, 457 U.S. 800 (1982) .................31

James v. Bartelt, 142 S. Ct. 4 (2021) ..........................34

Kerry v. Din, 576 U.S. 86 (2015) ........................... 17, 26

Kimble v. Marvel Ent., LLC, 576 U.S. 446 (2015) ....... 35

Lane v. Williams, 689 F.3d 879 (7th Cir. 2012) ..........19

Lombardo v. City of St. Louis, 143 S. Ct. 2419

(2023) .......................................................................34

Mathews v. Eldridge, 424 U.S. 319 (1976) ... 4, 10, 26–30

McKune v. Lile, 536 U.S. 24 (2002) ....................... 24, 25

McLane Co. v. EEOC, 581 U.S. 72 (2017) ............... 2, 13

Meachum v. Fano, 427 U.S. 215 (1976)................. 17, 18

Morrissey v. Brewer, 408 U.S. 471 (1972) .....................4

N.S. v. Kansas City Bd. of Police Comm’rs, 143

S. Ct. 2422 (2023) ....................................................34

Ohio Adult Parole Authority v. Woodard, 523

U.S. 272 (1998) ..................................................23–25

Paul v. Davis, 424 U.S. 693 (1975) .............................17

Pearson v. Callahan, 555 U.S. 223 (2009) ....................4

v

TABLE OF AUTHORITIES—Continued

Page

Pell v. Procunier, 417 U.S. 817 (1974).........................19

Procunier v. Martinez, 416 U.S. 396 (1974) ....... 2, 3, 10,

......................................................... 12–14, 27, 30, 33

Ramirez v. Guadarrama, 142 S. Ct. 2571 (2022) .......34

Rivas-Villegas v. Cortesluna, 595 U.S. 1 (2021) .........34

Sandin v. Conner, 515 U.S. 472 (1995) ...... 3, 19, 23–26

Swarthout v. Cooke, 562 U.S. 216 (2011)....................16

Thornburgh v. Abbott, 490 U.S. 401 (1989) ... 13, 20, 21, 33

Turner v. Safley, 482 U.S. 78 (1987) ...........................21

Vitek v. Jones, 445 U.S. 480 (1980) .............................17

Washington v. Glucksberg, 521 U.S. 702 (1997) .........17

Washington v. Harper, 494 U.S. 210 (1990) ...............17

Wilkinson v. Austin, 545 U.S. 209 (2005) ... 17, 23, 25–30

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. XIV, § 1 ........................................16

STATUTES

42 U.S.C § 1983 ...........................................................35

OTHER AUTHORITIES

Danny Robbins & Carrie Teegardin, From the

Inside: Criminal Kingpins, Atlanta JournalConstitution (Dec. 28, 2023), https://www.ajc.com/

news/investigations/prisons-kingpins/ .....................32

vi

TABLE OF AUTHORITIES—Continued

Page

Danny Robbins & Carrie Teegardin, Hundreds

of GA prison employees had a lucrative side

hustle: They aided prisoners’ criminal schemes,

Atlanta Journal-Constitution (Sept. 21, 2023),

https://www.ajc.com/news/investigations/prisonsinside-job/ .................................................................32

Frank D. LoMonte & Jessica Terkovich, Orange

is the News Blackout: The First Amendment

and Media Access to Jails, 104 Marq. L. Rev.

1093 (2021) ..............................................................29

Karen J. Hartman, Legislative Review, Prison

Walls and Firewalls: H.B. 2376, 32 Ariz. St.

L.J. 1423 (2000) .......................................................32

Neil L. Sobol, Connecting the Disconnected:

Communication Technologies for the Incarcerated, 53 Wake Forest L. Rev. 559 (2018) .................32

Titia A. Holtz, Note, Reaching Out from Behind

Bars: The Constitutionality of Laws Barring

Prisoners from the Internet, 67 Brooklyn L.

Rev. 855 (2002) ........................................................33

1

INTRODUCTION

Petitioner Ralph Benning asks this Court to fundamentally rethink or outright abolish qualified immunity. That would be an unnecessary task in any

case, but it is especially so in this case, where not only

did the Eleventh Circuit correctly apply the doctrine to

a novel issue, but the Eleventh Circuit got the underlying substantive question wrong. In other words,

there should not have been any need for qualified immunity because the Eleventh Circuit should have held

there was no constitutional violation. Inmates have no

right to particularized notice and an opportunity for an

administrative appeal where their emails are withheld

for violating a plainly reasonable prison policy.

Benning, an inmate in Georgia’s Department of

Corrections, sent many emails from prison between

2016 and 2018. The Department withheld four of those

emails because they violated policies prohibiting prisoners from sending emails with requests to forward

the message to third parties or with information about

other inmates. After Benning filed suit, the Eleventh

Circuit ultimately held that the Respondent prison officials had violated his due process rights by failing to

provide notice of, and an opportunity to appeal, every

decision to withhold a noncompliant email. That was

error, but the Eleventh Circuit correctly rejected any

damages claims, holding that nothing had clearly established Benning’s supposed entitlement.

Benning now argues that certiorari is warranted

because Respondent prison officials should have

2

known of their allegedly unconstitutional conduct, but

that argument would fundamentally transform qualified immunity—which seems to be Benning’s goal,

since he also asks this Court to abandon the doctrine

entirely. The prison officials should have known of

their supposed constitutional duties, Benning says, because of this Court’s decision in Procunier v. Martinez,

416 U.S. 396 (1974). There, the Court said prisoners are

entitled to procedural safeguards when prison officials

censor outgoing physical mail based on rules that discriminate as to content, like whether the prisoner is

complaining about the prison. But this Court has not

applied Martinez since, has overruled much of it, and

has never suggested it should be extended to new factual contexts. No part of the Eleventh Circuit’s qualified immunity determination merits review.

Even if the Court did want to act as a Court of

“first view,” McLane Co. v. EEOC, 581 U.S. 72, 85

(2017), and address the issue of qualified immunity

with respect to due process requirements and prisoner

email access, this would be a terrible case to do so. The

Court would have to decide the merits of Benning’s due

process claim to reach the qualified immunity analysis

because, of course, for a rule to be clearly established it

has to be the correct rule to begin with. But the Eleventh Circuit got the underlying merits questions

wrong. The court all but skipped over the question of

whether Benning even has a protected liberty interest

that could support a due process claim. The constitution does not create such an interest here—indeed,

Benning even acknowledges that the Department need

3

not provide him any access to email. Benning v. Commissioner, No. 18-cv-87, ECF Doc. 80 at 6 (M.D. Ga.

Mar. 9, 2018). Yet the Eleventh Circuit announced with

minimal analysis that because emails are speech and

Martinez recognized a liberty interest in communication by physical letter, Benning must have a liberty interest in uncensored email communication.

The Eleventh Circuit is wrong. Inmates lose all

manner of constitutional rights, and it is error to assume that simply because email is generally “speech,”

an inmate has a liberty interest in uncensored email

requiring due process. Likewise, the casual conflation

of physical mail with electronic mail makes no sense—

email is a fundamentally different manner of communication than physical letters, implicating a host of

security concerns that don’t apply to physical mail.

Nor has the State somehow created a liberty interest

through its email policies, as the Department’s withholding policies are the furthest thing from an “atypical and significant hardship on the inmate in relation

to the ordinary incidents of prison life.” Sandin v.

Conner, 515 U.S. 472, 484 (1995).

And even if Benning had some liberty interest, he

would not be due any additional process, as his interest

in additional procedures is virtually non-existent and

the State’s contrary interests are powerful. The Department’s policies are objective: additional process

will almost never identify any errors. Indeed, Benning

has admitted that his emails did violate the prison policies. ECF Doc. 80 at 4–5. And the additional burden

on the Department would be immense. That means no

4

additional procedures are required. Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (“Due process is flexible and calls for such procedural protections as the

particular situation demands.” (alteration accepted)

(quoting Morrissey v. Brewer, 408 U.S. 471, 481

(1972))).

Finally, Benning asks the Court to overrule its entire qualified immunity jurisprudence, without even

mentioning stare decisis. Qualified immunity is a matter of statutory interpretation, based on the understanding that Congress intended “to shield officials

from harassment, distraction, and liability when they

perform their duties reasonably.” Pearson v. Callahan,

555 U.S. 223, 231 (2009). Benning does not explain why

qualified immunity is unworkable, egregiously wrong,

or what reliance interests there are, much less explain

why this case would be a vehicle for overruling decades

of precedent.

Without a split of authority, without reason to

doubt the Eleventh Circuit’s immunity holding, and

without any reason to question qualified immunity itself, there is no reason to grant review. The Court

should deny certiorari.

STATEMENT

A. Factual Background

1. Since at least 2015, the Georgia Department

of Corrections has allowed inmates to send electronic

correspondence—email—subject to certain limitations. Benning, No. 18-cv-87, ECF Doc. 73-1 at 54.

5

Inmates can send emails through two means: (1) kiosks stationed in Department-operated facilities and

(2) mobile tablets used for educational, administrative,

entertainment,

and

correspondence

purposes.

Pet.App.2a. Kiosk and tablet use is “a privilege and not

a right,” and is subject to various limitations. ECF Doc.

64-4 at 10–17. For the timeframe relevant here, the Department articulated its email policies and limitations

in Standard Operating Procedure 204.10. Pet.App.2a–

3a. Procedure 204.10 prohibited inmates from sending

emails that, among other things, request they “be forwarded, sent, or mailed to others,” or “request or send

information on behalf of or about another offender.” Id.

at 3a. It also stated that inmates “will be advised of

these Rules and that communications which violate

this policy will be intercepted without explanation.”

ECF Doc. 64-4 at 15.

All inmate emails are filtered through the Department’s Central Intelligence Unit, where they are electronically screened for a list of key words. Id. at 5.

Emails not containing any key words are automatically released to the recipient, while emails with key

words are flagged for review. Id. An analyst reviews

every flagged email for compliance with Procedure

204.10. Id. The analyst then releases compliant emails

to the recipient and withholds noncompliant emails.

Id.; ECF Doc. 64-5 at 3; ECF Doc. 64-6 at 3; Pet.App.3a.

Before an inmate can send emails, either through

a kiosk or a tablet, they must agree to Procedure

204.10’s restrictions. Pet.App.2a–3a; ECF Doc. 64-4 at

15. Inmates can access kiosks only after clicking a

6

terms and conditions button, ECF Doc. 64-3 at 42, and

they can access tablets only after signing a form describing applicable restrictions and stating that “[a]ll

communications sent or received via the [tablet] or

[kiosk] are subject to inspection and review by [the

Department].” Pet.App.3a; ECF Doc. 64-4 at 17; ECF

Doc. 64-3 at 47. Though it is unclear exactly how often

inmates must check the kiosk acknowledgement, it is

required “quite frequently.” ECF Doc. 64-3 at 45.

2. Petitioner Ralph Harrison Benning is serving

a life sentence for murder. Pet.App.3a; ECF Doc. 64-3

at 19, 22. He briefly served in the Navy but was removed from the service after, in his own words, “seeking revenge on the people that killed [his] family.” ECF

Doc. 64-3 at 21. Shortly after being forced out of the

Navy, Benning was arrested and convicted for murdering an eight-year-old boy. He has been incarcerated

since 1986, and in that time he has personally prepared and filed at least ten civil lawsuits against various defendants. Id. at 19, 23. See Benning v. Jester, No.

94-cv-180 (S.D. Ga. Nov. 22, 1994); Benning v. Garner,

No. 98-cv-3690 (N.D. Ga. Dec. 28, 1998); Benning v.

Brady, No. 00-cv-27 (S.D. Ga. Mar. 22, 2000); Benning

v. Hall, No. 01-cv-31 (S.D. Ga. Feb. 28, 2001); Benning

v. Amideo, No. 02-cv-139 (S.D. Ga. Dec. 18, 2002); Benning v. Med. Coll. of Ga., No. 03-cv-108 (S.D. Ga. July

14, 2003); Benning v. Wetherington, No. 03-cv-51 (S.D.

Ga. Apr. 30, 2003); Benning v. Georgia, No. 08-cv-435

(M.D. Ga. Dec. 12, 2008); Benning v. Dep’t of Corr., No.

14-cv-389 (M.D. Ga. Sept. 26, 2014); Benning v. Deal,

No. 17-cv-152 (M.D. Ga. Aug. 9, 2017).

7

In 2016, Benning was incarcerated at Wilcox State

Prison. ECF Doc. 64-3 at 36. Benning arrived at Wilcox

with a Department-issued tablet assigned at Autry

State Prison, id. at 40, where he received the device

upon signing an acknowledgment form noting applicable policies and stating that tablet use is a privilege

rather than a right, id. at 47; ECF Doc. 64-4 at 19. Kiosks present a similar message and require users to

agree to the terms and conditions of use. ECF Doc. 643 at 45. Benning read and agreed to those terms and

conditions, both when he first accessed a kiosk and several times after. Id. at 45–46. Procedure 204.10 took

effect on August 15, 2017. Pet.App.2a.

On September 24, 2017, Benning sent an email to

his sister that requested she forward it to two of his

other sisters and a prisoner advocacy organization. Id.

at 3a; ECF Doc. 64-6 at 7. Department officials intercepted the email for noncompliance with Procedure

204.10. Pet.App.4a. On October 9, 2017, Benning sent

two more emails to his sister that were intercepted because Benning requested they be forwarded to federal

legislators. Id. at 3a–4a; ECF Doc. 64-5 at 11. Finally,

on February 6, 2018, Benning attempted to email a

nonprofit organization, but the message was intercepted and withheld because it contained information

about another inmate. Pet.App.4a. Benning contacted

the email system’s internet provider on October 12,

2017, and learned that three of his emails to his sister

had been withheld. ECF Doc. 7 at 4–5. Benning sent

handwritten copies of the withheld 2017 emails to his

8

sister—by traditional mail—which she received.

Pet.App.4a.

B. Proceedings Below

Benning then filed suit against the Department

Commissioner and two Department analysts who

withheld his noncompliant emails. Pet.App.5a. He alleged that Procedure 204.10 infringed his claimed

right to free expression and his claimed right to notice

for each withheld email, a written explanation for the

decision to withhold the email, and an opportunity to

challenge each withholding determination. Id. Benning asked the district court for (among other things):

(1) a declaration that the Department must treat inmate email correspondence the same as written correspondence; (2) a declaration that the Department must

notify inmates each time an email is withheld for violating Procedure 204.10; (3) a declaration that the Department must provide inmates the ability to respond

to each decision to withhold a noncompliant email; (4)

a declaration that the Department provide inmates

with a written explanation each time a noncompliant

email is withheld; (5) an order requiring the Commissioner to adopt a new email policy; and for (6) compensatory, nominal, and punitive damages for his alleged

injuries. Id. at 36a–37a.

The magistrate judge screened Benning’s claims

for frivolity and allowed his First Amendment official

capacity claim against the Commissioner to proceed.

Id. at 36a; ECF Doc. 7 at 7. Benning filed no objections,

and the district court adopted the magistrate judge’s

9

recommendation. ECF Doc. 15. Respondent prison officials then moved for summary judgment. Benning responded, and for the first time mentioned due process

concerns. ECF Doc. 80 at 17. He alleged the Respondents unconstitutionally denied him “any due process,”

id. at 17, 23, but otherwise focused on alleged First

Amendment violations, id. at 1–16, 17–22. The magistrate judge recommended the Respondents’ motion be

granted and noted that Benning’s due process argument was not properly before the court because he did

not object to the magistrate judge’s first recommendation and did not raise due process violations until his

response to the summary judgment motion. ECF Doc.

84.

Nonetheless, after Benning objected to the second

recommendation, the district court recommitted the

matter to the magistrate judge to consider Benning’s

new due process arguments. Pet.App.38a. The magistrate judge then issued a final recommendation, advising that the Respondents’ motion for summary

judgment be granted. Id.

Ultimately, the district court adopted the final recommendation and granted summary judgment to the

Respondents. Id. at 61a. The court began by rejecting

his substantive First Amendment claim because the

prison email policy was “reasonably related to legitimate penological interests.” Id. at 56a. The court also

concluded that Benning fell short on his threadbare

due process argument, holding that Benning had no

liberty interest in sending uncensored emails with forwarding requests or inmate information. Id. at 59a.

10

The court held as well that, even if it were wrong about

the absence of a constitutional violation, Benning’s

case was the first of its kind, entitling the prison officials to qualified immunity anyway. Id. at 60a–61a.

Benning appealed and a panel of the Eleventh Circuit affirmed in part and reversed in part. Id. at 31a.

The panel held that Benning had sufficiently alleged a

due-process-based constitutional violation but that

qualified immunity barred the damages claims. Id. at

30a. The court began with Benning’s due process claim,

first considering whether he had a liberty interest that

could trigger due process protections. Id. at 8a. The

panel held that because “email is a form of correspondence”—and because the Supreme Court had held in

Martinez that inmates retain a First Amendment interest in sending physical correspondence free from

policies that discriminate based on subjective standards like whether the inmate complains about the

prison—Benning also retained a liberty interest,

“grounded . . . in the First Amendment” in sending

emails, as a general matter. Id. at 9a, 14a. The panel

then held that Benning was entitled to particularized

notice of each withheld email, “a reasonable opportunity to protest that decision,” and referral to a

“prison official other than the [one] who originally disapproved” the email. Id. at 14a–16a. The panel did not

apply Mathews v. Eldridge, 424 U.S. 319 (1976), or any

other analysis for determining the process due—it

simply ported over the requirements this Court had

noted in Martinez. Pet.App.16a. Nevertheless, the

panel affirmed qualified immunity on Benning’s

11

damages claims because “no governing and materially

similar precedent” existed at the time of the disputed

conduct. Id. at 18a.

The panel did not address Benning’s First Amendment claims on the merits because, whether or not Procedure 204.10 violated the First Amendment, “[no]

materially similar cases” put the prison officials on notice of any potential constitutional violation. Id. at 26a.

The court remanded the case to the district court for

further proceedings. Id. at 30a–31a.

REASONS FOR DENYING THE PETITION

This case does not warrant this Court’s review, for

numerous reasons. First, no other court of appeals

has addressed the issues in this case, including

whether inmates have a liberty interest in email communications (much less communications that violate

objective, reasonable prison policies); if so, whether inmates are entitled to certain procedures; what those

procedures should be; what violates those procedures;

and whether prison officials are entitled to qualified

immunity if responsible for such supposed violations.

To create a supposed split in authority, Benning points

to an Eighth Circuit decision that has little in common

with this case: it involved incoming, physical mail—

packages, no less—from an inmate’s attorney. Pet. at

9–10. That decision does not conflict with the decision

below.

Second, this case is a bad vehicle to resolve any of

the questions Benning posits. Benning disputes the

court’s holding that the prison officials were entitled to

12

qualified immunity, but the Eleventh Circuit was

wrong on the underlying merits so this Court would

have no need to reach the qualified immunity question.

Even if the merits question were debatable, it is beyond debate that the Court would have to address it

before addressing qualified immunity, so there is a

strong possibility this Court could not even reach the

question presented.

Third, the Eleventh Circuit was also correct as to

qualified immunity, the only aspect of the case that

Benning now challenges. Prison officials had no way of

knowing that withholding emails that violate prison

policy would somehow violate Benning’s constitutional

rights. Benning points to Procunier v. Martinez, but

that case has been partially overruled; it has never

been applied by this Court since it was decided; it

applied to physical mail, not electronic communication

(a fundamentally different medium); and it addressed

a prison policy that censored on the basis of subjective

and questionable rules, like a prohibition on letters

that “unduly complain” or “magnify grievances.” 416

U.S. at 399. That decision does not come close to clearly

establishing the result in this case.

Finally, the Court should not grant this case to

consider overruling dozens of cases and eliminating

qualified immunity entirely. Benning provides virtually no reason to do so and does not even mention stare

decisis, which is at its apex where this Court is interpreting a statute rather than the Constitution. There

is no reason to reconsider qualified immunity, and

there is certainly no reason to do so here.

13

I.

There is no split of authority or any other

reason to address these questions now.

Until the Eleventh Circuit’s decision here, no circuit court had addressed any of the issues in this case,

such as whether an inmate has the sort of protected

liberty interest Benning asserts, what standard governs that alleged interest, whether that interest merits

procedural protections (and what kinds), or whether

qualified immunity applies to any supposed violation

of that supposed right. If this Court were to dive into

the case right now, it would be a paradigm case of “first

view” rather than “review.” McLane Co., 581 U.S. at 85

(quotation omitted).

Benning stakes his request for review on the argument that qualified immunity is improper because this

Court’s rulings in Procunier v. Martinez, 416 U.S. 396

(1974), and Thornburgh v. Abbott, 490 U.S. 401 (1989),

clearly establish that a prisoner is entitled to due process protections every time a prison official intercepts

an outgoing email that violates email use policies. Pet.

at 7. That is wrong. Indeed, it is doubly wrong—not

only is there no clearly established law on that question, but the correct outcome should be that Benning

loses on the merits. See infra Part II. Benning has no

constitutional right to additional procedural protections when prison officials block outgoing emails that

violate objective, plainly reasonable prohibitions.

But whatever one thinks of those underlying merits questions, the Eleventh Circuit is the only court of

appeals to address this issue. Hunting for a split of

14

authority, Benning can point only to an inapposite

Eighth Circuit ruling in Bonner v. Outlaw, 552 F.3d

673 (8th Cir. 2009). See Pet. at 9–10. According to Benning, Bonner departs from the decision here because

the court denied qualified immunity to prison officials

in a case involving prisons and mail. Id. at 9. But the

similarities end there; Bonner does not conflict with or

even address the issues the Eleventh Circuit addressed here. In Bonner, the court addressed due process requirements for withholding physical packages

from an attorney, sent to their incarcerated client. 552

F.3d at 675. It denied qualified immunity on the basis

that withholding a physical package and withholding

a physical letter are so similar that Martinez—which

ostensibly required due process protections for the latter—clearly established the law in this area. Id. at 680.

That is a highly contestable ruling on its own—the

qualified immunity analysis should not proceed at

such a high level of generality, District of Columbia v.

Wesby, 583 U.S. 48, 63 (2018)—but it also has nothing

to do with the case here, where the Eleventh Circuit

analyzed email communication, from the inmate (who

was also able to and did communicate by physical letter), as opposed to a physical package sent by an attorney (which of course raises a host of additional issues,

given the separate rights regarding attorney access

that might be at play). Indeed, the fact that Benning

can send physical letters makes this case fundamentally distinct, as email is simply an additional outlet

not required by the Constitution in the first place.

There is nothing inconsistent about Bonner and the

decision here.

15

And as a practical matter, there is nothing particularly important about Benning’s case, specifically.

The handful of email interceptions Benning challenges

are hardly egregious even if one believes there was

some constitutional violation. The emails did violate

policy, so they would be withheld even if he had additional procedural rights. Benning agrees, “admit[ting]

that he requested that [the recipient] forward his September 24, 2017 and October 9, 2017 emails.” Benning,

No. 18-cv-87, ECF Doc. 80 at 4. And he impliedly admits that the final email violated policy, claiming that

“information [about another inmate] contained in

[Benning’s] February 6, 2018 email was open public information available to anyone.” Id. at 5. He wants review to obtain damages for officials failing to impose

significantly more burdensome procedures that would

have led to the exact same result.

Moreover, Benning still had general access to

other forms of communication: telephones, video calls,

physical mail, in-person visits, and email subject to certain constraints. ECF Doc. 64-3 at 37, 54, 60; ECF Doc.

73-3 at 54; ECF Doc. 73-4 at 33. Benning was able to

send physical letters containing the same communications to his sister. ECF Doc. 64-3 at 74. Even if the

prison officials erred (and they did not), and even if the

Eleventh Circuit erred in granting qualified immunity

(and it did not), this case hardly cries out for Supreme

Court intervention.

16

II.

This case is not a vehicle to resolve qualified immunity questions because the Eleventh Circuit was wrong on the antecedent

liability question.

There is a critical problem with Benning’s petition: not only was the Eleventh Circuit correct to grant

qualified immunity, it was wrong to hold there was constitutional liability. Were the Court to grant review, the

primary issue would not be whether an officer should

have known his actions violated the Constitution, it

would be whether those actions violate the Constitution, and the answer to that question is no, they don’t.

The Eleventh Circuit erred both in holding there

was a liberty interest at all (there can be no due process violation without a liberty interest) and then in

improperly foisting a burdensome administrative appeal regime on state prisons (just because there is a

liberty interest doesn’t mean the state must engage in

all manner of procedure). Even if there is some question on the underlying merits, that would be the primary question for the Court to answer, making it

unlikely or at least uncertain that the Court could even

reach the questions Benning proposes.

1. To show a Fourteenth Amendment Due Process Clause violation a plaintiff must first show that

“there exists a liberty or property interest of which

[they have] been deprived.” Swarthout v. Cooke, 562

U.S. 216, 219 (2011). That is necessary because no one

is entitled to due process unless they are deprived of

“life, liberty, or property.” U.S. Const. amend. XIV, § 1;

17

Meachum v. Fano, 427 U.S. 215, 223–24 (1976). A liberty interest can “arise from the Constitution itself, by

reason of guarantees implicit in the word ‘liberty,’ ” or

it can “arise from an expectation or interest created by

state laws or policies.” Wilkinson v. Austin, 545 U.S.

209, 221 (2005).

Constitutional liberty interests are typically limited to those contained in the Bill of Rights, Paul v.

Davis, 424 U.S. 693, 710 n.5 (1975), or those “careful[ly]

descri[bed]” interests that are “objectively, deeply

rooted in this Nation’s history and tradition, and implicit in the concept of ordered liberty, such that neither liberty nor justice would exist if it was sacrificed,”

Kerry v. Din, 576 U.S. 86, 93 (2015) (lead op.) (alteration accepted) (quoting Washington v. Glucksberg, 521

U.S. 702, 720–21 (1997)). The Court defines those interests narrowly. See, e.g., Vitek v. Jones, 445 U.S. 480,

493 (1980) (holding prisoner entitled to due process

protections before “involuntary commitment to a mental hospital”); Washington v. Harper, 494 U.S. 210, 221–

22 (1990) (recognizing a prisoner’s liberty interest in

“avoiding the unwanted administration of antipsychotic drugs”); Board of Regents v. Roth, 408 U.S. 564,

572 (1972) (describing protected liberty interests as

those “long recognized as essential to the orderly pursuit of happiness by free men” (alteration accepted)

(quotation omitted)).

State-created interests are generally “a right or

status . . . recognized and protected by state law.” Paul,

424 U.S. at 710–11. They are often property interests,

which are “not created by the Constitution” but by

18

state “rules or understandings . . . that secure certain

benefits and that support claims of entitlement to

those benefits.” Roth, 408 U.S. at 577. The interests,

like continued receipt of welfare benefits, are typically

“a matter of statutory entitlement for persons qualified

to receive them.” Goldberg v. Kelly, 397 U.S. 254, 262

(1970). Those laws or policies create protected interests

when the benefit recipient “[has] a legitimate claim of

entitlement to” that benefit, rather than an “abstract

need,” “desire,” or “unilateral expectation of it.” Roth,

408 U.S. at 577.

Of course, things are different in prison. Convicted

criminals receive due process in their criminal proceedings, and after those proceedings result in conviction, inmates lose many of their prior liberties.

Meachum, 427 U.S. at 224 (“[G]iven a valid conviction,

the criminal defendant has been constitutionally deprived of his liberty to the extent that the State may

confine him and subject him to the rules of its prison

system.”). Prisoners cannot, for instance, attempt to

leave prison and demand procedural rights when

prison guards deny them that opportunity. They cannot petition to carry firearms and then demand procedural rights when prison administrators flatly refuse.

In the prison context, then, state-created liberty interests are “generally limited to freedom from restraint

which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the

Due Process Clause of its own force, . . . nonetheless

imposes atypical and significant hardship on the

19

inmate in relation to the ordinary incidents of prison

life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).

Benning has neither a constitutional nor a statecreated liberty interest in sending uncensored emails.

As to the Constitution, Benning even conceded as

much below, admitting he has no “independent, stand

alone, right to electronic correspondence.” Benning, No.

18-cv-87, ECF Doc. 80 at 6. That was a wise concession,

as prisoners do not have a First Amendment right to

access any particular form of communication. See Pell

v. Procunier, 417 U.S. 817, 823 (1974) (upholding ban

on media interviews with some inmates when it

merely “restrict[ed] one manner of communication between prison inmates and members of the general public beyond the prison walls”); Lane v. Williams, 689 F.3d

879, 884 (7th Cir. 2012) (“As maligned as the United

States Postal Service may be, there is no First Amendment right to a means of sending letters superior to the

one it provides.”). And nothing this Court has said, in

Martinez or elsewhere, identifies any constitutional

provision endowing prisoners with an independent liberty interest in access to uncensored email communication.

The Eleventh Circuit held that inmates have a

liberty interest in uncensored email communication,

“grounded in the First Amendment,” Pet.App.9a, but

its minimal reasoning leaves much to be desired. It

first declared that emails are “speech.” Id. No doubt—

but prisoners lose many First Amendment rights (not

to mention Second Amendment rights, Fourth Amendment rights, and so on) by virtue of their crimes.

20

Simply identifying something as speech does nothing

to establish a prisoner has a protected liberty interest

in engaging in that speech.

Next, the court asserted that “the rationale of Martinez is concerned with correspondence from inmates,

regardless of the form (or medium) the correspondence

takes.” Id. at 10a. The court’s analysis boils down to

the notion that emails serve as the “electronic equivalent” of physical mail. Id. at 11a. But that is wrong

thrice over. As a practical matter, email is the “equivalent” of physical mail in the same way an airplane

flight from Illinois to Oregon is the “equivalent” of the

Lewis and Clark expedition. Emails are fundamentally

different from physical mail, especially in their immediacy (instantaneous versus multi-day lags), their ease

of use (and hence ability to submit high volumes), and

the ease of forwarding.

Moreover, applying Martinez as a matter of substantive law to create a First Amendment liberty interest in uncensored prison email is, at best, highly

questionable. This Court all but walked away from

Martinez in Thornburgh, explicitly rejecting “Martinez’

less deferential approach” as “not appropriate for consideration of regulations that are centrally concerned

with the maintenance of order and security within

prisons.” 490 U.S. at 409–10. Martinez itself is the only

time the Court has applied its more stringent substantive standard—in the limited context of a physical letter “written by or addressed to” a prisoner. Martinez,

416 U.S. at 418. And Martinez bears no factual resemblance to this case, because the former dealt with a

21

regulatory scheme that permitted prison employees to

censor prisoners’ letters if they “unduly complain[ed]”

or “magnif[ied] grievances.” Id. at 399. Worse still,

“[n]o further criteria were provided to help members of

the mailroom staff decide whether a particular letter

contravened any prison rule or policy.” Id. at 400. The

Court was understandably concerned about such “extraordinary latitude” to apply “personal prejudices and

opinions.” Id. at 415. That is not a concern here. Procedure 204.10’s objective standards, like barring emails

with forwarding requests, share nothing with the subjective censorship “standards” the Court analyzed in

Martinez.

The Court has not applied Martinez’s substantive

standard in any other context or any other case, Thornburgh, 490 U.S. at 413, instead “resolv[ing]” that the

standard for a prisoner’s alleged substantive constitutional violation is whether the challenged regulation is

“reasonably related to legitimate penological interests,” Turner v. Safley, 482 U.S. 78, 89 (1987). Uncritically relying on Martinez to find some previously

undiscovered First Amendment liberty interest—without even mentioning Thornburgh or Turner—is a sufficient reason to reject the Eleventh Circuit’s opinion.1

Martinez itself is non-committal about where the supposed

liberty interests lie. The Court based its holding that prisoners

are entitled to send physical letters free of arbitrary censorship

not on a prisoner’s supposed liberty interest but on the “First . . .

Amendment rights of those who are not prisoners,” 416 U.S. at 409

(emphasis added), that is, the people outside prison wanting to

communicate with those inside. It is not clear why that would

1

22

And the Eleventh Circuit did not even consider

that prisoners (including Benning) have numerous

means of communicating with the outside world. Uncensored email access would be a different consideration if it were the only means of communication, but it

is nowhere close.

The Eleventh Circuit’s final argument was its

weakest: it asserted that the Department itself views

emails as “functional[ly] equivalent” to physical letters. Pet.App.12a. That is both objectively false and

completely irrelevant. Emails are, as a general matter,

instantaneously transmitted. Only if the Department’s

automated system detects certain words do prison officials review them for compliance before releasing

them—so by definition, the Department does not treat

them the same as physical correspondence. More importantly, how the Department treats emails as compared to another medium has no bearing on whether

the Constitution provides some independent liberty interest to inmates, nor did the Eleventh Circuit explain

why it would. Maybe it could have relevance to

whether the State created a relevant liberty interest

(although even there it is not obvious how), but it is not

clear why anything the Department or its officials do

affects whether Benning or other inmates have a

preexisting constitutional liberty interest in uncensored email communications.

support due process rights for inmates, which is probably another

reason this Court has not applied Martinez since Martinez.

23

And there is no state-created liberty interest here,

either, nor does Benning really suggest there is. In the

context of prisons, this Court evaluates state-created

liberty interests under Sandin, which requires a prisoner to show they were subject to an “atypical and significant hardship . . . in relation to the ordinary

incidents of prison life.” 515 U.S. at 484. That hardship

must “present a dramatic departure from the basic

conditions of the inmate’s sentence.” Wilkinson, 545

U.S. at 223 (alteration accepted) (quoting Sandin, 515

U.S. at 484). Because the Due Process Clause “confers

no liberty interest in freedom from state action taken

within the sentence imposed,” procedural protections

do not attach to state policies unless the “nature of the

deprivation” amounts to “grievous loss of liberty retained even after sentences to terms of imprisonment.”

Sandin, 515 U.S. at 480–81 (emphasis added) (quotations omitted).

A few cases decided since Sandin illustrate the

analysis. The first, Ohio Adult Parole Authority v.

Woodard, 523 U.S. 272 (1998), concerned a death-row

inmate’s claimed due process interest in state clemency proceedings. Id. at 279–80 (lead op.). Applying

Sandin, Justice Rehnquist said that “the availability

of clemency, or the manner in which the State conducts

clemency proceedings, does not impose atypical and

significant hardship on the inmate[.] . . . A denial of

clemency merely means that the inmate must serve

the sentence originally imposed.” Id. at 283 (quotation

omitted). Because the inmate was not entitled to clemency in the first place, his interest in the clemency

24

proceedings themselves was nothing more than a “unilateral hope.” Id. at 282.

The second, McKune v. Lile, 536 U.S. 24 (2002), addressed an inmate’s claim that participation in a sex

abuse rehabilitation program being conditioned on an

admission of guilt for all of the inmate’s sexual misconduct violated his privilege against self-incrimination.

Id. at 29–32 (lead op.). Failure to participate in the program meant the inmate’s “visitation rights, earnings,

work opportunities, ability to send money to family,

canteen expenditures, access to a personal television,

and other privileges automatically would be curtailed”

and he “would be transferred to a maximum-security

unit, where his movement would be more limited, he

would be moved from a two-person to a four-person

cell, and he would be in a potentially more dangerous

environment.” Id. at 30–31. Justice Kennedy analogized an inmate’s privilege against self-incrimination

to the liberty interests protected—or not protected—by

the Sandin test. Id. at 37–38. Though considering the

self-incrimination privilege, the plurality referenced

its procedural due process precedents to explain why it

rejected the inmate’s claim. Id. at 39. In both contexts,

the plurality said, the expectation of continued receipt

of discretionary benefits is “too ephemeral and insubstantial to trigger procedural due process protections.”

Id. (quotation omitted).

Woodard and McKune illustrate that the “unilateral hope” in continued receipt of most discretionary

benefits does not support a due process claim because

the loss of those benefits can almost never constitute

25

an “atypical and significant hardship.” Sandin, 515

U.S. at 484. In certain rare instances, it might. In Wilkinson, for example, the Court held that being sent to

a supermax facility “synonymous with extreme isolation . . . for an indefinite period of time” satisfied

Sandin’s test. 545 U.S. at 214–15. But as Wilkinson

makes clear, those sorts of hardships must be extreme

and atypical for prison life.

The inability to send uncensored email messages

that violate prison policy is neither atypical nor significant. The Department’s sensible email restrictions are

nothing more than a condition attached to receipt of a

discretionary benefit. Pet.App.2a–3a. Benning was

neither denied a reward nor subject to a penalty. He

was not required to accept the email use conditions,

and unlike the prisoner in McKune, he lost no privileges even for failure to comply with those conditions.

At all times Benning was free to access email and send

messages compliant with Department policy. And he

remains free to access traditional means of communication without losing any other privileges. Like the

prisoner in Woodard, who had no claim to clemency

and thus no liberty interest in clemency proceedings,

Benning has no claim to email access per se and thus

no liberty interest in any procedure regulating that access. Things might be different if email were the only

form of communication a state allowed. But where the

Department allows multitudinous forms of communication with the outside world, Benning cannot seriously maintain that he has a state-created liberty

interest in uncensored email communication, where he

26

agreed that the State is not compelled to provide him

email at all. ECF Doc. 80 at 6.

In Sandin itself the Court held that a thirty-day

disciplinary segregation in a single-inmate cell, accompanied by partial revocation of phone and visiting privileges, does not rise to an “atypical, significant

deprivation” implicating due process. 515 U.S. at 476 &

n.2, 486. It is hard to understand how the interception

of outgoing, noncompliant emails points to a statecreated liberty interest where 30 days of isolation does

not.

“Although the amount and quality of process that

[the Court’s] precedents have recognized as due under

the [Due Process] Clause has changed considerably

since the founding, . . . it remains the case that no process is due if one is not deprived of life, liberty, or property.” Kerry, 576 U.S. at 90 (lead op.) (citations

omitted). Benning has no liberty interest at stake, so

no process was due.

2. Even if Benning did have a protected liberty

interest of some sort, the next step would be applying

Mathews v. Eldridge to identify any required procedures. 424 U.S. 319, 334–35 (1976). As in Wilkinson,

545 U.S. at 225, applying the Mathews standard requires balancing three factors: (1) the private interest

affected; (2) the risk of erroneous deprivation under

existing procedures, including the probable value of

additional procedures; and (3) the public’s interest, including fiscal and administrative burdens. 424 U.S. at

335. The Eleventh Circuit did not bother to mention or

27

apply this test, Pet.App.14a–16a, and if it had it would

have ruled differently.

Benning characterizes his interest as “uncensored

communication by [email] . . . protected from arbitrary

governmental invasion.” Pet. at 8 (quoting Martinez,

416 U.S. at 418). That interest, Benning claims, entitles

him to notice and an opportunity to challenge each and

every withheld email. Id. at 7. But Wilkinson makes

clear that his interest, if any, would be much narrower.

There, inmates claimed due process rights preceding

placement at a supermax facility. The Court held that

the placement imposed an “atypical and significant

hardship” which created a liberty interest supported

by procedural protections. Wilkinson, 545 U.S. at 224.

Yet for the purpose of the first Mathews factor, the

Court described their interest as “avoiding erroneous

placement at [the supermax].” Id. at 225 (emphasis

added). Like the Wilkinson inmates, Benning’s real

concern is making sure that the claimed deprivation—

email interception—is not imposed erroneously. So

Benning’s interest is not in uncensored email access

generally; it is in “avoiding erroneous” interception of

outgoing emails. Id. Obviously, that interest is far less

weighty than avoiding an erroneous, near-total isolation in a supermax facility.

Next, the risk of erroneous deprivation under existing procedures is negligible. This factor considers

“the probable value, if any, of additional or substitute

procedural safeguards.” Mathews, 424 U.S. at 335.

Even without the procedures Benning seeks, the risk

of erroneous deprivation is low. Determining whether

28

emails violate Procedure 204.10 is almost entirely objective. ECF Doc. 64-4 at 14–15. The analysts had no

trouble recognizing that Benning’s withheld emails

contained prohibited requests to forward and/or information about another inmate. Id. at 21 (“Please ensure

that Jason Iran Harris’ address is corrected.”); ECF

Doc. 64-5 at 11 (“Maybe the address . . . could be used

to send this one out to US Congressmen and Senators.”); ECF Doc. 64-6 at 7 (“Please shoot a copy of this

to USPLAP and to VA and PJ and of course anyone else

you think might be interested. You can ask USPLAP to

send this out also.”). And Benning agrees the analysts

properly applied them to his emails. ECF Doc. 80 at

4–5. He “admits that he requested that [the recipient]

forward” two of his emails, id. at 4, and that another

withheld email “contained information about another

offender,” id. at 5. Benning does not argue that he suffered an erroneous deprivation in his own case.

In Wilkinson, the risk of erroneous supermax

placement was deemed low even though based on

largely subjective factors assessing an inmate’s “security risk.” 545 U.S. at 215, 216, 227. Procedure 204.10’s

criteria are far more objective, both in an absolute

sense and relative to Wilkinson. The procedural protections Benning desires might reduce the risk of erroneous deprivation by an infinitesimal amount, but that

risk is so low in the first place that additional procedures would be all but pointless.

“The third Mathews factor addresses the State’s

interest.” Id. at 227. And “[i]n the context of prison

management . . . this interest is a dominant

29

consideration.” Id. It is “[t]he State’s first [penological]

obligation . . . to ensure the safety of guards and prison

personnel, the public, and the prisoners themselves.”

Id. This factor also concerns “the function involved and

the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.” Mathews, 424 U.S. at 335. Here, that includes

serious security risks from prisoner email access and

the administrative challenges of operating a system

that deals with high volumes. Prison officials need to

be able to quickly identify harmful or noncompliant

messages to keep up with the speed of outgoing email.

They must be able to process a volume of outgoing

emails that can be orders of magnitude higher than

outgoing physical letters.

Instant, high-volume transmission makes it easier

to send coded messages, coordinate criminal enterprises inside and outside prison, and overwhelm prison

administrators with so many outgoing emails that

they cannot effectively identify harmful transmissions.

Email also presents a special risk in the child crimes

context, providing prisoners a quick and easy way to

harass their victims. Frank D. LoMonte & Jessica

Terkovich, Orange is the News Blackout: The First

Amendment and Media Access to Jails, 104 Marq. L.

Rev. 1093, 1146 (2021) (“When an inmate uses a jail

computer to send e-mail, the jail’s interests in regulating that communication are heightened; a crime victim

who receives harassing or threatening e-mails might

justifiably ask why a jail turned an inmate loose with

internet access to do harm.”). And that is not an

30

abstract concern here, as Benning tortured the eightyear-old for whose murder he is incarcerated. ECF Doc.

73-6 at 27 (“I tortured and killed an innocent.”).

Whatever Benning’s private interest (next to

none), and whatever value additional procedural safeguards might offer (none), they have to overcome “dominant” concerns about security, public safety, and

administrative and fiscal feasibility. Wilkinson, 545

U.S. at 227. Benning’s interest comes nowhere close.

The Eleventh Circuit opinion, in coming to a contrary conclusion, does not even analyze what procedures should be required. It just transfers over

Martinez’s

requirements

for

physical

mail.

Pet.App.14a–16a. But that makes no sense. There is an

analysis (Mathews) for this sort of thing, and the court

just did not do it. “The very nature of due process negates any concept of inflexible procedures universally

applicable to every imaginable situation. . . . Due process, unlike some legal rules, is not a technical conception with a fixed content unrelated to time, place and

circumstances.” Cafeteria & Rest. Workers Union v.

McElroy, 367 U.S. 886, 895 (1961) (alteration adopted

and quotation omitted). But the Eleventh Circuit held

that a prisoner is entitled to the exact same procedural

protections for any and every method of outgoing communication under any and every prison communications policy.

The Eleventh Circuit should have ruled against

Benning across the board. This Court need not address

31

qualified immunity where the lower court did not even

get the merits right.

III. The Eleventh Circuit was correct on qualified immunity.

Another reason not to grant certiorari is that the

Eleventh Circuit was correct, at least as far as qualified immunity is concerned. No one has contested that

the prison officials were performing discretionary

functions in the course of their state duties. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). So to overcome

qualified immunity, Benning must show that this

Court’s precedent is so clear that “every reasonable official would interpret it to establish the particular rule

the plaintiff seeks to apply.” Wesby, 583 U.S. at 63. A

“high degree of specificity” is required. Id. (quotation

omitted). The rule must be “clearly established at the

time” the alleged violation occurs. Id. (quotation omitted). And “[a] rule is too general if the unlawfulness of

the officer’s conduct does not follow immediately from

the conclusion that the rule was firmly established.”

Id. at 64 (alteration accepted and quotation omitted).

These basic principles doom Benning’s argument.

Even assuming there was a constitutional violation—

and there was not—it was not clearly established. Benning claims the prison officials should have known

that the Constitution required them to treat emails

and physical letters exactly the same. Pet. at 11. But

email bears little resemblance to physical mail. Where

physical mail takes days or weeks, email is instant.

Even advocates for greater email access in prison

32

acknowledge that “[e]mail, unlike paper mail, is almost

immediate and requires virtually no human intervention between sending and delivery. Therefore, it is

much more difficult to monitor than paper mail.”

Karen J. Hartman, Legislative Review, Prison Walls

and Firewalls: H.B. 2376, 32 Ariz. St. L.J. 1423, 1433

(2000); see also Neil L. Sobol, Connecting the Disconnected: Communication Technologies for the Incarcerated, 53 Wake Forest L. Rev. 559, 585 (2018)

(“[E]lectronic messaging provides the potential for

instantaneous communication and avoids the delays

associated with visitation or mail services.”).

If not flagged, emails containing coded messages

or other sensitive information can reach their recipient

immediately. That message, as in the case of Nathan

Weekes, one of Georgia’s “prison kingpins,” could be instructions to assassinate someone outside the prison.

See Danny Robbins & Carrie Teegardin, From the Inside: Criminal Kingpins, Atlanta Journal-Constitution

(Dec. 28, 2023), https://www.ajc.com/news/investigations/

prisons-kingpins/ (describing Weekes’s criminal empire, which he ran while incarcerated, and the three

murders he ordered from inside a state prison); see also

Danny Robbins & Carrie Teegardin, Hundreds of GA

prison employees had a lucrative side hustle: They

aided prisoners’ criminal schemes, Atlanta JournalConstitution (Sept. 21, 2023), https://www.ajc.com/

news/investigations/prisons-inside-job/ (detailing one

inmate’s successful theft of $11 million from a Charles

Schwab account while incarcerated). And that risk is

multiplied by the fact that the non-incarcerated

33

recipient can transmit any dangerous message to an

unknown third party—also instantly.

Volume compounds that risk. Just as emails can

be transmitted instantly, they can be prepared nearly

as quickly. Where a physical letter, even a short one,

takes time to write, seal, and deposit in the mail, email

composition is limited only by a prisoner’s typing

speed. They could send dozens of emails in the time it

would take to prepare and send even a single physical

letter. And prison officials already struggle to monitor

prison mail. See, e.g., Titia A. Holtz, Note, Reaching Out

from Behind Bars: The Constitutionality of Laws Barring Prisoners from the Internet, 67 Brooklyn L. Rev.

855, 891 n.222 (2002) (at California’s Pelican Bay

prison, officials must individually screen each one of

the “two to five thousand pieces of [physical] mail”

opened every weekday).

Benning notes that Martinez and Thornburgh

were decided decades ago, Pet. at 7, which is true

enough, but they do not come close to establishing that

where a prison system voluntarily provides access to

email it must also provide particular due process protections to avoid the unlikely and relatively unimportant event of an erroneous withholding of inmate

email. Indeed, Martinez addressed a completely different prison policy, which forbade inmates from “unduly

complain[ing]” or “magnify[ing] grievances.” 416 U.S.

at 398–400. How would a prison official in 2017 know

that the far less controversial policy at issue here, focused on objective prohibitions, would be subject to the

same scrutiny? Only clairvoyant prison officials could

34

have known how the Eleventh Circuit would rule in

this case.

Close cases are mutually exclusive with “clearly

established” rules that are “beyond debate.” Wesby, 583

U.S. at 63 (quotation omitted). If anything, this case

should have been a clear winner for the prison officials.

There is no way it was a clear loser for the prison officials, and this Court need not grant review to decide as

much.

IV. This Court should not grant review to

eliminate qualified immunity.

Benning asks the Court to abolish, alter, or “clarify” qualified immunity. Pet. at 12. Qualified immunity

does not need overhaul or abolition. And even if it did,

the case to roll the doctrine back would not be a case

where courts have disagreed on the underlying constitutional violation, Pet.App.16a, 59a, and the supposed

“damages” are the failure to be noticed about emails

that obviously and concededly violated Department

policy.

The Court has repeatedly, and recently, reaffirmed

qualified immunity. See, e.g., City of Tahlequah v. Bond,

595 U.S. 9, 11 (2021); Rivas-Villegas v. Cortesluna, 595

U.S. 1, 6–7 (2021). The Court has often, and recently,

declined numerous opportunities to abolish or rework

qualified immunity or its application in lower courts.

See, e.g., N.S. v. Kansas City Bd. of Police Comm’rs, 143

S. Ct. 2422 (2023); Lombardo v. City of St. Louis, 143

S. Ct. 2419 (2023); Ramirez v. Guadarrama, 142 S. Ct.

2571 (2022); James v. Bartelt, 142 S. Ct. 4 (2021).

35

Even if one disagrees with the doctrine, stare decisis considerations would be paramount, yet remarkably, Benning does not even mention the term. And

“stare decisis carries enhanced force when a decision

. . . interprets a statute . . . unlike in a constitutional

case.” Kimble v. Marvel Ent., LLC, 576 U.S. 446, 455–

56 (2015). Being grounded in this Court’s interpretation of 42 U.S.C § 1983, qualified immunity precedents

can be altered by Congress at any time. Decades of

cases upholding and applying qualified immunity—

and the absence of legislative intervention throughout—are an exceedingly strong basis for leaving them

in place. At the very least, Benning must provide some

reason the Court should grant review here and then

overcome stare decisis considerations, and he has provided none at all.

Even if the Court wanted to reexamine qualified

immunity, this case would still be a bad vehicle. If paring back qualified immunity were ever advisable, it

would be in a case where it shielded a state actor guilty

of a constitutional violation that actually harmed

someone. But Benning’s case is nothing of the sort. The

constitutional violation he alleges—the absence of procedures that would make no difference as to the substantive outcome—is hardly egregious. Indeed, it is not

clear he suffered any harm since he conceded that his

emails did violate prison policy. And of course, correctly

understood, there was not even a constitutional violation. But if there were, it is surely one of the least

damaging in the history of the nation. That is no

springboard for undoing decades of precedent.

36

CONCLUSION

For the reasons set out above, this Court should

deny the petition.

Respectfully submitted,

MARCH 2024

CHRISTOPHER M. CARR

Attorney General

STEPHEN J. PETRANY

Solicitor General

Counsel of Record

ZACHARY A. MULLINAX

Asst. Attorney General

OFFICE OF THE GEORGIA

ATTORNEY GENERAL

40 Capitol Square, SW

Atlanta, Georgia 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Respondents