United States District Court, W.D. Arkansas, Fayetteville Division
MEMORANDUM OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
before the Court are two Motions and a multitude of briefs.
First, Defendants Sheriff John Montgomery, Jail Administrator
Brad Lewis, Sergeant Eric Neal, and Baxter County
(collectively, "Defendants") have filed a Motion to
Dismiss (Doc. 18) and Brief in Support (Doc. 19) asserting
that Plaintiff Human Rights Defense Center ("HRDC")
lacks standing to sue and that the individual capacity claims
against these county officials should be dismissed on
qualified immunity grounds. In addition to these two filings,
the Court has also received HRDC's Response (Doc. 25),
the Defendants' Reply (Doc. 31), and HRDC's Sur-Reply
(Doc. 35). The second motion is HRDC's First Motion for a
Preliminary Injunction and Brief in Support (Doc. 26). On
that Motion, the Court has received the Defendants'
Response (Doc. 33) and HRDC's Reply (Doc. 43).
Court heard oral argument on both motions during a case
management hearing held on November 28, 2017. As the Court
explained in its rulings from the bench and as further
explained below, the Motion to Dismiss (Doc. 18) is
GRANTED IN PART AND DENIED IN PART, and
HRDC's First Motion for a Preliminary Injunction (Doc.
26) is DENIED. To the extent anything in
this Order differs from the rulings the Court made from the
bench during that hearing, this Order shall control.
a 501(c)(3) non-profit organization with principal offices in
Lake Worth, Florida. HRDC's purpose is to "educate
prisoners and the public about the destructive natures of
racism, sexism, and the economic and social costs of prisons
to society." (Doc. 1, p. 3). HRDC communicates this
message through Prison Legal News ("PLN"), which is
the "publishing arm of the HRDC." Id.
through PLN, publishes and distributes Prison Legal News:
Dedicated to Protecting Human Rights, a monthly magazine
which contains news about prisons, prisoners' rights, and
prison facilities and conditions, among other
things. HRDC distributes its magazines to monthly
subscribers and to prisoners in 2, 600 correctional
facilities across the country, including in Arkansas. In
addition to Prison Legal News, HRDC also publishes
and distributes different books about the criminal justice
system, self-help books for prisoners, and informational
packets that contain subscription order forms and a book
named defendants in HRDC's complaint are Baxter County,
Arkansas (the "County"), which operates the Baxter
County Jail and Detention Center ("BCDC"), Baxter
County Sheriff John Montgomery, Lieutenant Brad Lewis, and
Sergeant Eric Neal. HRDC alleges that Defendants implemented
and adhered to an unconstitutional mail policy that
prohibited the delivery of HRDC's publication materials
to BCDC prisoners. Specifically, HRDC claims that Defendants
refused to deliver issues and sample issues of Prison
Legal News, The Habeas Citebook, informational packets,
legal letters, and court opinions sent by HRDC to prisoners
held in the BCDC. Since 2016, HRDC has identified at least
one hundred ten (110) items of mail sent to BCDC prisoners
that Defendants allegedly censored. This includes twenty-one
(21) issues of Prison Legal News, eleven (11) sample
issues of Prison Legal News, twenty-one (21)
informational packets, and twenty-four (24) copies of The
Habeas Citebook. Id. at 6. Defendants sent these items
back to HRDC with "Refused" or "Return to
Sender Post Cards Only" notations, id. at 7,
and allegedly failed to return other mailings. HRDC alleges
that Defendants' actions violated its constitutional
rights, limited its ability to distribute its political
message and obtain new customers, and thereby frustrated its
August 21, 2017, HRDC filed suit in this Court. Principally,
HRDC alleges that Defendants' mail policy
unconstitutionally prohibits HRDC from delivering its
materials to BCDC prisoners, thereby violating its First
Amendment rights. HRDC also alleges that Defendants'
policies violate its right to Due Process under the
Fourteenth Amendment by not giving it adequate notice of
Defendants' decisions or an opportunity to object to or
challenge those decisions. As such, HRDC seeks declaratory
and injunctive relief against all Defendants as well as
September 21, 2017, Defendants filed a Motion to Dismiss all
of HRDC's claims (Doc. 18) and a Brief in Support (Doc.
19). Specifically, Defendants' motion argues that HRDC
lacks standing to bring this suit and that the individual
capacity claims against these three officials should be
dismissed on the basis of qualified immunity. After filing a
response to Defendants' Motion to Dismiss, HRDC, on
October 9, 2017, filed its First Motion for Preliminary
Injunction (Doc. 26), where it requested that this Court
prohibit Defendants from continuing to violate its First and
Fourteenth Amendment rights. Responses and Replies, including
a Sur-Reply, were submitted to the Court, and both of these
motions are ripe for decision.
Motion to Dismiss
standing goes to the heart of the Court's jurisdiction to
hear a case, Tarsney v. O'Keefe, 225 F.3d 929,
934 (8th Cir. 2000), the Court will first take up
Defendants' argument that the Complaint should be
dismissed because HRDC lacks standing to sue over these
alleged violations. Article III standing requires an
"'injury in fact' to the plaintiff that is
'fairly traceable to the challenged act of the defendant,
' and 'likely [to] be redressed by a favorable
decision.'" Braden v. Wal-Mart Stores,
Inc., 588 F.3d 585, 591 (8th Cir. 2009) (quoting
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61
(1992)). An injury in fact occurs when there "is an
invasion of a legally cognizable right" and it
"generally requires injury to the plaintiff's
personal legal interests. Id. (citing Vt. Agency
of Natural Res. v. United States ex rel. Stevens, 529
U.S. 765, 771-72 (2000)).
Supreme Court has recognized that "publishers who wish
to communicate [with prisoners], through subscriptions . . .
have a legitimate First Amendment interest in access to
prisoners." Thornburgh v. Abbott, 490 U.S. 401,
408 (1989) (discussing the standard to use when reviewing
prison regulations that limit access to prisoners). Thus,
even though that First Amendment right is "qualified of
necessity by the circumstance of imprisonment, "
Procunier v. Martinez, 416 U.S. 396, 418 (1974),
overruled on other grounds by Thornburgh v. Abbott,
490 U.S. 401 (1989), "the decision to censororwithhold
delivery of a particular letter must be accompanied by
minimum procedural safeguards." Id. at 417.
Therefore, HRDC's allegations that it did not receive
these minimum procedural safeguards, in violation of its
First and Fourteenth Amendment rights, is sufficient to
allege an injury that could be redressed were this Court to
ultimately rule for it on the merits.
argue that HRDC lacks standing because some of its injuries
may occur in the future and because it has no First Amendment
right to distribute unsolicited materials to prisoners.
See Doc. 19, pp. 7-8. Defendants' arguments
impermissibly seek to graft merits-based considerations into
the requirements for standing. See, e.g., Prison Legal
News v. Livingston, 683 F.3d 201, 212 (5th Cir. 2012)
("[A] plaintiff need not prevail on the merits before he
can establish his standing to sue.").
HRDC alleges First and Fourteenth Amendment violations that
flow directly from the BCDC's postcard-only policy, and
it alleges that this policy damaged HRDC and will continue to
cause damage unless enjoined. (Doc. 19, p. 9). Thus, even if
the Court ultimately finds in favor of Defendants on the
merits of this case, HRDC still has standing to bring this
suit. To the extent Defendants' Motion to Dismiss is
premised upon an argument that HRDC lacks standing, it will
next argue that even if the entire lawsuit is not dismissed,
the individual capacity damage claims against these three
named officials should be dismissed because they are entitled
to qualified immunity. See Doc. 19, p. 3.
"Qualified immunity shields government officials from
civil damages liability unless the official violated a
statutory or constitutional right that was clearly
established at the time of the challenged conduct."
Reichle v. Howards, 566 U.S. 658, 664 (2012) (citing
Ashcroft v. al-Kidd, 563 U.S. 731, 735 (2011)).
Government officials sued in their individual capacity are
"entitled to qualified immunity unless the right
asserted by [the plaintiff] was established 'beyond
debate.'" Scott v. Tempelmeyer, 867 F.3d
1067, 1070 (8th Cir. 2017) (quoting Ashcroft, 563
U.S. at 741). In short, qualified immunity "gives ample
room for mistaken judgment by protecting all but the plainly
incompetent or those who knowingly violate the law."
Hunter v. Bryant, 502 U.S. 224, 228 (1991) (internal
quotation marks and citation omitted); see also Durham v.
Horner, 690 F.3d 183, 190 (4th Cir. 2012)
("[Qualified immunity protects public officials from bad
guesses in gray areas.") (internal quotation marks and
immunity, however, does not serve as a defense to an
equitable claim, such as a claim for injunctive relief.
Williams v. Delo, 49 F.3d 442, 445 (8th Cir. 1995)
(citation omitted); Grantham v. Trickey, 21 F.3d
289, 295-96 (8th Cir. 1994) (citations omitted) ("There
is no dispute that qualified immunity does not apply to
claims for equitable relief . . . and that state officials
may be sued in their official capacity for equitable
relief[.]"). Therefore, the individually named officials
may be compelled to act if the Court grants HRDC's
request for a preliminary injunction. Thus, at the outset, it
is important for the Court to note that the official capacity
claims against these individuals will remain regardless of
the Court's decision below on whether the individual
capacity claims should be dismissed.
to the qualified immunity analysis, "[t]he first step
... is to determine 'whether the plaintiff has alleged a
deprivation of a constitutional right at all.'"
Cox v. Sugg, 484 F.3d 1062, 1065 (8th Cir. 2007)
(quoting Harlow v. Fitzgerald, 457 U.S. 800, 818
(1982)). HRDC sufficiently alleges that the individual
Defendants violated its First and Fourteenth Amendment rights
by limiting its ability to communicate with BCDC prisoners,
so the first step is satisfied.
the Court must decide whether HRDC's First and Fourteenth
Amendment rights were clearly established when the BCDC
rejected its attempts to communicate with prisoners. See
Serna v. Goodno, 567 F.3d 944, 952 (8th Cir. 2009). As
the Court noted above, for a right to have been clearly
established, "existing precedent must have placed the
statutory or constitutional question beyond debate."
Smith v. City of Minneapolis, 754 F.3d 541, 546 (8th
Cir. 2014) (quoting Ashcroft, 563 U.S. at 741).
Because Defendants assert that they should be protected by
qualified immunity on both HRDC's First and Fourteenth
Amendment claims, the Court will consider each claim in turn.
the First Amendment claim, the Court finds that the
individually named defendants, Sheriff Montgomery, Jail
Administrator Lewis, and Sergeant Neal, are entitled to
qualified immunity. The law was not clearly established in
August 2016 to the point that these officials knew or should
have known that enforcing BCDC's postcard-only policy
violated HRDC's First Amendment rights. As an initial
matter, the Court has previously considered a
nearly-identical policy that came to it on a Report and
Recommendation of Judge Ford in Brown v. Hickman. In
his Report and Recommendation, Judge Ford undertook a careful
and thorough search for cases within the Eighth Circuit that
addressed the constitutionality of a postcard-only policy,
finding none. 2015 WL 1097392, at *9 (W.D. Ark. Mar. 11,
2015). In addition, he noted that district courts outside of
the Eighth Circuit had come to divergent opinions on the
constitutionality of such a policy. Id. (collecting
cases). This Court reviewed Judge Ford's opinion
carefully, adopting it in its entirety and concluding that
the officials were entitled to qualified immunity.
Id. at *1.
Court stated during oral argument, this fact alone is
sufficient in the Court's opinion to find that these
officials are entitled to qualified immunity on HRDC's
First Amendment claim. Nevertheless, the Court would
additionally note that despite the fact that HRDC
cherry-picked cases that had ruled against such policies, it
ignored other cases from around the country that had been
decided the other way. In short, HRDC has not demonstrated
that it was clearly established at the time of the alleged
rejections of HRDC's mailings that such a postcard-only
policy violated HRDC's First Amendment rights.
Court noted previously, qualified immunity is meant to
protect all but the plainly incompetent, Hunter, 502
U.S. at 228, and serves as a shield for officials who make
"bad guesses in gray areas, " Durham, 690
F.3d at 190. Given the Court's review of case law in this
area, the constitutionality of this type of policy is
certainly, at best, a gray area. Therefore, these individual
defendants are entitled to qualified immunity on the First
Amendment claim, and the individual capacity damage claims
asserted against them on this basis are
Fourteenth Amendment-Due Process
officials are also entitled to qualified immunity on
HRDC's Fourteenth Amendment Due Process claim. A due
process violation requires the denial of a protected liberty
or property interest. See Senty-Haugen v. Goodno,462 F.3d 876, 885-86 (8th Cir. 2006). In its landmark
decision in Procunier v. Martinez, the Supreme Court
held that "the addressee as well as the sender of direct
personal correspondence derives from the First and
Fourteenth Amendments a protection against
unjustified governmental interference with the
intended communication." 416 U.S. 396, 408-09 (1974)
(emphasis added). Since that opinion, appellate courts around
the country have concluded that a certain level of due
process "must accompany various decisions to exclude
prison mailings." Prisoner Legal News v.
Livingston,683 F.3d 201, 222-23 (5th Cir. 2012) (noting
that the Fourth, Ninth, Tenth, and Eleventh Circuits had
extended Martinez's logic to other types of
publications). However, the Fifth Circuit's decision in
Livingston, which ultimately held that
initial but not subsequent denials of
identical publications required notice and an opportunity to
appeal, suggested in dicta the precise problem the Court ...