United States District Court, E.D. Michigan, Northern Division
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS
MOTION TO DISMISS AND DENYING PLAINTIFF'S MOTION FOR
PRELIMINARY INJUNCTION
THOMAS
L. LUDINGTON, UNITED STATES DISTRICT JUDGE
On
August 22, 2019, Plaintiff, Human Rights Defense Center,
filed a complaint against Defendants: Prison Wardens
O'Bell Winn, Bonita Hoffner, Willie Smith, and Carmen
Palmer, 30 unnamed prison employee Does, and Michigan
Department of Corrections (“MDOC”) Director Heidi
Washington. ECF No. 1. Plaintiff is a publisher of magazines
and materials, such as Prison Legal News
for inmates about “prisons, jails, and other detention
facilities, prisoners' rights, court rulings, management
of prison facilities, prison conditions, and other matters
pertaining to the rights and/or interests of incarcerated
individuals.” Id. at PageID.6. Plaintiff
alleges that Defendants have censored and withheld its
publications to prisoners in Michigan, violating the First
Amendment (Count I) and the due process clause from the
Fourteenth Amendment (Count II). Id. at
PageID.32-34. Plaintiff seeks monetary damages against all
Defendants in their individual capacities on the First
Amendment and due process claims. Plaintiff also seeks
injunctive relief against Director Washington in her official
capacity on both claims and a declaratory judgment that MDOC
violated the Constitution.
On the
same day Plaintiff filed the complaint, it also filed a
motion for preliminary injunction, seeking to enjoin
Defendants from “(1) censoring written materials mailed
by HRDC to prisoners in Defendants' prisons and (2)
denying HRDC notice and an opportunity to challenge any such
censorship decisions.” ECF No. 3. In September and
October, the parties stipulated to extend the time for
Defendants to respond to the complaint and Plaintiff's
motion for preliminary injunction. ECF Nos. 18, 21. On
October 18, 2019, Defendants jointly filed a motion to
dismiss all claims, except the First Amendment claim against
Defendant Washington in her official capacity. ECF No. 22. As
explained below, Defendants motion to dismiss will be granted
in part and denied in part. Also, Plaintiff's motion for
preliminary injunction will be denied.
I.
Plaintiff,
Human Rights Defense Center, is a 501(c)(3) not-for-profit
entity that “publishes the monthly newsprint journal
Prison Legal News, the longest-running independent
newsprint journal concerning prisons and detention centers in
the United States, along with publications focusing on
prisoner rights issues.” ECF No. 24 at PageID.212-213.
Plaintiff also publishes a Criminal Legal News
publication, sends books to prisoners, and “corresponds
regularly with prisoners on constitutional issues and
potential violations of their civil rights.”
Id. Defendant O'Bell Winn is the Warden of the
Saginaw Correctional Facility, Bonita Hoffner was the Warden
of Lakeland Correctional Facility from May 2012 to December
2017, Willie Smith was Warden of Ionia Correctional Facility
from October 2002 to May 2018, and Carmen Palmer was Warden
of Michigan Reformatory at times relevant for the case. ECF
Id. at PageID.213-214. Defendant Does 1 through 30
“are or were employed by and are or were agents of MDOC
when some or all of the challenged inmate mail policies and
practices were adopted and/or implemented.”
Id. at PageID.215. Defendant Heidi Washington
“is, and at all relevant times herein mentioned was,
the Director of MDOC, the state agency that manages the
correctional facilities within the State of Michigan.”
Id. at PageID.213.
A.
In its
amended complaint, Plaintiff explains that it
“publishes and distributes a soft-cover monthly journal
titled Prison Legal News, which contains news and
analysis about prisons, jails, and other detention
facilities, prisoners' rights, court rulings, management
of prison facilities, prison conditions, and other matters
pertaining to the rights and/or interests of incarcerated
individuals. The monthly journal is published on newsprint
and is 72-pages long.” Id. at PageID.216.
Plaintiff “also publishes and/or distributes
approximately 40 different softcover books about the criminal
justice system, legal reference books, and self-help books of
interest to prisoners.” Id. at PageID.216.
There are three publications relevant to this suit-Prison
Legal News, Criminal Legal News, and various
books that HRDC publishes. Plaintiff has “46
subscribers to its monthly publication [Prison Legal News]
within the MDOC” as of July 2019 with one to six
subscribers at each of the following prisons: Baraga
Correctional Facility, Bellamy Creek Correctional Facility,
Carson City Correctional Facility, Central Michigan
Correctional Facility, Chippewa Correctional Facility, Cooper
Street Correctional Facility, Earnest C. Brooks Correctional
Facility, G. Robert Cotton Correctional Facility, Richard A.
Handlon Correctional Facility, Gus Harrison Correctional
Facility, Ionia Correctional Facility, Lakeland Correctional
Facility, Macomb Correctional Facility, Marquette Branch
Prison, Michigan Reformatory, Muskegon Correctional Facility,
Oaks Correctional Facility, Saginaw Correctional Facility,
and the Women's Huron Valley Correctional Facility.
Id. at PageID.217-218.
B.
Michigan
Department of Corrections Policy Directive 05.03.118 governs
the distribution of mail to prisoners. The relevant part of
the 13-page policy states “Mail shall not be prohibited
solely because its content is religious,
philosophical, political, social, sexual, unpopular, or
repugnant.” Para. D. Books, magazines, and other
similar publications are allowed only if ordered from an
approved vendor or directly from the publisher, if it is
mailed directly to the prisoner, or if it is from a
correspondence school. Para. Z. The policy outlines
prohibited mail, including “mail that may pose a threat
to the security, good order, or discipline of the facility,
facilitate or encourage criminal activity, or interfere with
the rehabilitation of the prisoner.” Para. NN.
If mail
is received that violates the policy, it will be rejected.
Para RR. If a prisoner has mail that has been rejected, a
notice of rejection is sent to the prisoner and there is a
multi-stage appeals process, including review by a hearings
officer, the warden, and CFA Deputy Director. Paras. VV-DDD.
The sender of the rejected mail also will be sent a copy of
the rejection notice. Para. VV.
C.
In its
complaint, Plaintiff alleges “Defendants have adopted
and implemented mail policies and practices prohibiting
delivery of written speech from HRDC while failing to provide
due process notice of and an opportunity to challenge that
censorship.” ECF No. 1 at PageID.1. Plaintiff alleges
it “engages in core protected speech and expressive
conduct on matters of public concern, such as the operation
of prison facilities, prison conditions, prisoner health and
safety, and prisoners' rights.” Id. at
PageID.5. It “distribute[s] its monthly publication to
prisoners and law librarians in more than 3, 000 correctional
facilities located across all 50 states, including the
Federal Bureau of Prisons and MDOC.” Id. at
PageID.7. Plaintiff alleges “certain prisons within the
state of Michigan have withheld all or part of issues of
[HRDC publications] . . . . [and] believes that at least one
officer at each prison . . . had direct knowledge of and were
directly involved in each and every instance of
censorship.” Id. at PageDI.9. Plaintiff claims
“prison officials erroneously rejected issues of
Prison Legal News and Criminal Legal News,
on the grounds that content of the magazines' articles
posed a threat to the security, good order, or discipline of
the facility, facilitated or encouraged criminal activity, or
interfered with the rehabilitation of prisoners” even
though the publications “pose no threat to any
legitimate penological interests.” Id. at
PageID.9. Plaintiff alleges 29 of 36 issues of Prison
Legal News “were censored by at least one MDOC
facility” and some books HRDC sent to prisoners were
also rejected because “HRDC was not the publisher or
authorized vendor.” Id. Additionally, despite
MDOC's policy stating otherwise, Plaintiff alleges
“a majority of MDOC facilities have a custom and
practice of failing to send the required notice” of
rejection to the sender. Id. at PageID.10. Even if
MDOC gives notice, it “does not provide a process to
challenge censorship decisions” and “[i]n many
cases [when HRDC appealed the rejection], the facility that
censored the materials ignored the appeal.”
Id. at PageID.10. The rationale provided in the
rejection notices HRDC did receive cited concerns about
“the security, good order, or discipline of the
facility” or concerns the material “may
facilitate or encourage criminal activity, or may interfere
with the rehabilitation of the prisoner.” Id.
at PageID.11, 12, 15, 25. Books were also rejected because
“the sender is not the publisher[] and is not an
authorized vendor.” Id. at PageID.12, 23.
II.
A
pleading fails to state a claim under Rule 12(b)(6) if it
does not contain allegations that support recovery under any
recognizable legal theory. Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009). In considering a Rule 12(b)(6) motion,
the Court construes the pleading in the non-movant's
favor and accepts the allegations of facts therein as true.
See Lambert v. Hartman, 517 F.3d 433, 439 (6th Cir.
2008). The pleader need not provide “detailed factual
allegations” to survive dismissal, but the
“obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 555 (2007). In essence,
the pleading “must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face” and “the tenet that a
court must accept as true all of the allegations contained in
a complaint is inapplicable to legal conclusions.”
Iqbal, 556 U.S. at 678-79 (quotations and citation
omitted). The Sixth Circuit has held that “a conclusory
legal interest” in forfeited property is insufficient
to be successful against a motion to dismiss. United
States v. Fabian, 764 F.3d 636, 638 (6th Cir. 2014);
United States v. Akhtar, 2018 WL 5883930 at *2 (6th
Cir. Sept. 19, 2018).
III.
Defendants
seek to dismiss Plaintiff's alleged violations of the
First Amendment and the due process clause against the four
named wardens, Winn, Hoffner, Smith, and Palmer, 30 prison
employee Does, and MDOC Director Washington in their
individual capacities under Fed. R. Civ. Pro. 12(b)(6) on the
basis of qualified immunity. ECF No. 22 at PageID.140-142.
Defendants further seek to dismiss the due process claim
against Defendant Washington in her official capacity under
12(b)(6) because, at most, her behavior was negligent
“which is not actionable under the Due Process
Clause” or because the due process claim is moot.
Id. at PageID.141, PageID.157.
A.
The
caption of the original complaint stated that Defendant Winn
was sued in his official capacity (ECF No. 1 at PageID.1),
but the body of complaint indicated Defendant Winn was
actually being sued in his individual capacity for monetary
damages. ECF No. 1 at PageID.3 (“As to all claims
presented herein against him, Defendant Winn is being sued in
his individual capacity for damages.”). An individual
sued in their individual capacity is being sued “for
actions he takes under color of law, ” i.e., for
actions Defendant Winn took during his job. Baar v.
Jefferson Cty. Bd. Of Educ., 476 Fed.Appx. 621, 634 (6th
Cir. 2012) (quoting Kentucky v. Graham, 473 U.S.
159, 165 (1985)). In comparison, “[o]fficial capacity
suits . . . ‘generally represent . . . another way of
pleading an action against an entity of which an officer is
an agent, '” i.e., MDOC. Baar v. Jefferson Cty.
Bd. Of Educ., 476 Fed.Appx. 621, 634 (6th Cir. 2012)
(quoting Kentucky v. Graham, 473 U.S. 159, 165
(1985)). Damages for individual capacity suits are recouped
from the defendant, but in an official capacity suit, any
relief must come from the entity itself. Kentucky v.
Graham, 473 U.S. 159, 166 (1985).
Defendants
argue any potential suit against Defendant Winn in his
official capacity is barred by the Eleventh Amendment. ECF
No. 22 at PageID.155-157. Plaintiff does not address the
issue in its response, but filed an amended complaint
changing the caption of the complaint to clarify that
Defendant Winn is being sued in his individual capacity. ECF
No. 24 at PageID.211. Defendants included a footnote in their
reply explaining the history of confusion over the suit
against Defendant Winn and state “[i]t is agreed
Def.'s motion to dismiss shall relate to the Pl.'s
amended complaint and Def. Winn also seeks dismissal for all
claims against him in his individual capacity.” ECF No.
30 at PageID.303. As such, Defendants argument that the suit
against Defendant Winn is barred by the Eleventh Amendment
will be disregarded and Defendant Winn will be considered as
a Defendant who seeks to dismiss the First Amendment and due
process claims based on qualified immunity in III.B.
B.
Defendant
Wardens Winn, [1] Hoffner, Smith, and Palmer, Director
Washington, and 30 Does have been sued in their individual
capacity for monetary damages on both the First Amendment and
due process claims. ECF No. 24 at PageID.242-244. Defendants
argue they are eligible for qualified immunity on both
claims.
Qualified
immunity is “an immunity from suit rather than a mere
defense to liability.” Mitchell v. Forsyth,
472 U.S. 511, 526 (1985). The doctrine protects government
officials “from liability for civil damages insofar as
their conduct does not violate clearly established statutory
or constitutional rights of which a reasonable person would
have known.” Harlow v. Fitzgerald, 457 U.S.
800, 818 (1982). This is an objective standard. Ohio
Civil Service Employees Association v. Seiter, 858 F.2d
1171, 1173 (6th Cir. 1988). “Qualified immunity
balances two important interests-the need to hold public
officials accountable when they exercise power irresponsibly
and the need to shield officials from harassment,
distraction, and liability when they perform their duties
reasonably.” Pearson v. Callahan, 555 U.S.
223, 231 (2009). Qualified immunity protects “all but
the plainly incompetent or those who knowingly violate the
law.” Malley v. Briggs, 475 U.S. 335, 341
(1986).
The
existence of qualified immunity turns on the question of
whether a defendant's action violated clearly established
law. Id. at 243-44. “This inquiry turns on the
‘objective legal reasonableness of the action, assessed
in light of the legal rules that were clearly established at
the time it was taken.'” Id. at 244
(quoting Wilson v. Layne, 526 U.S. 603, 614, (1999).
“To be clearly established, a right must be
sufficiently clear ‘that every reasonable official
would [have understood] that what he is doing violates that
right.'” Reichle v. Howards, 132 S.Ct.
2088, 2093 (2012). “[E]xisting precedent must have
placed the statutory or constitutional question beyond
debate.” Ashcroft v. al-Kidd, 563 U.S. 731,
741 (2011). The Court has discretion regarding the sequence
with which to conduct the analysis. Pearson, 555
U.S. at 236. Thus, the Court may hold that a right is not
clearly established law without first analyzing whether the
relevant facts actually establish a constitutional violation.
Id. The Sixth Circuit has emphasized the proper
order to analyze a qualified immunity claim is to determine
if “the facts viewed in the light most favorable to the
plaintiffs show that a constitutional violation has occurred,
” second, if the violation was of “a clearly
established constitutional right of which a reasonable person
would have known, ” and third, if “plaintiff has
offered sufficient evidence ‘to indicate that what the
official allegedly did was objectively unreasonable in light
of the clearly established constitutional right.'”
Merriweather v. Zamora, 569 F.3d 307, 315 (6th
Circuit 2009). However, the Supreme Court has held this order
is not mandatory. Id.
“Once
the qualified immunity defense is raised, the burden is on
the plaintiff to demonstrate that the officials are not
entitled to qualified immunity.” Silberstein v.
City of Dayton, 440 F.3d 306, 311 (6th Cir. 2006). The
relevant inquiry is whether “it would be clear to a
reasonable officer that his conduct was unlawful in the
situation he confronted.” Saucier v. Katz, 533
U.S. 194, 202 (2001).
In
Lyons v. City of Xenia, the Sixth Circuit explains
that for a constitutional right to be clearly established,
the officers must be on notice of conduct that would violate
a plaintiff's rights. There are two ways a plaintiff can
demonstrate an officer was on notice of the constitutional
right-“the violation was sufficiently
‘obvious' under the general standards of
constitutional care that the plaintiff need not show ‘a
body' of ‘materially similar' case law”
or “where the violation is shown by the failure to
adhere to a ‘particularized' body of precedent that
‘squarely govern[s] the case.” Lyons v. City
of Xenia, 417 F.3d 565, 579 (6th Cir. 2005) (quoting
Brosseau v. Haugen, 543 U.S. 194, 599-600 (2004)).
i.
Defendants
first allege entitlement to qualified immunity on the First
Amendment claim. Whether there is a clearly established
constitutional right will be addressed first. Second, the
facts will be evaluated to determine if there ...