Human Rights Defense Center v. Winn

          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 ...