Jones v. Caruso , 569 F.3d 258 ( 2009 )

McKEAGUE, Circuit Judge,

dissenting.

In my opinion, the majority misses the forest for the trees. Despite concluding (1) that the district court erred when it granted preliminary injunctive relief based on application of an erroneous legal standard; and (2) that Rule 23 is supported by a legitimate penological interest; and (3) that Rule 23’s restriction of Jones’s access to UCC materials leaves other alternative means of access readily available to him, the majority today upholds “extraordinary” preliminary injunctive interference with Michigan Department of Corrections officials’ management of a “very serious problem,” even in the absence of any showing by Jones of irreparable injury. This anomalous result stems from misapplication of the four-part standard set forth in Turner v. Safley, 482 U.S. 78, 89-91, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987). I therefore respectfully dissent,

At the outset, it bears emphasis that our application of the Turner standard comes in the context of a motion for preliminary injunction. Jones has the burden of establishing entitlement to such relief, by showing, inter alia, a substantial likelihood of success on the merits and that, absent relief, he will suffer irreparable injury. To establish a substantial likelihood of success on the merits, Jones must show that application of the Turner standard weighs in favor of finding that Rule 23 is an unreasonable regulation.

The Turner 'standard is designed, in recognition of the special needs of the prison setting and in deference to prison officials’ expertise and administrative judgment, to uphold prison regulations as valid, despite their impingement on inmates’ constitutional rights, if they are reasonably related to legitimate penological interests. Id. at 89, 107 S.Ct. 2254. The Supreme Court recognized that such a deferential, low-hurdle standard of review “is necessary if ‘prison administrators ...,. and not the courts [are] to make the difficult judgments concerning institutional operations.’ ” Id. (quoting Jones v. North Carolina Prisoners’ Union, 433 U.S. 119, 128, 97 S.Ct. 2532, 53 L.Ed.2d 629 (1977)).

The majority readily acknowledges that the first factor in the Turner standard is satisfied by Rule 23. That is, there is a rational connection between Rule 23’s restriction of prisoners’ access to UCC materials and the government’s legitimate interest in combating the serious problem of UCC-related fraud perpetrated by prisoners.

Consideration of the second factor, whether Jones has alternative means of access to UCC materials, is also deemed by the majority to favor upholding Rule 23. In other words, although Rule 23 impinges on Jones’s right to receive UCC materials in the mail, he retains access to UCC materials in the prison law library and even retains the right to receive them in the mail by using the grievance procedure to show he has a legitimate purpose (as opposed to a fraudulent or harassing purpose) for receiving them. Thus, two alternative means of access are available and neither has been shown to be burdensome. Because Jones has readily available alternative means of exercising his rights, the burden on his rights is minimal, even trivial, and we are required to “be particularly conscious of the measure of judicial deference owed to corrections officials ... in gauging the validity of the regulation.” Turner, 482 U.S. at 90, 107 S.Ct. 2254. Yet, this admonition is ignored by the majority as it considers the remaining Turner factors.

The third and fourth factors relate to the availability of still other alternative means of access. If other possible accommodations of Jones’s desire to receive UCC materials in the mail would have an adverse “ripple effect” on guards, other inmates or allocation of prison resources generally, then, the Supreme Court again admonishes, we are obliged to be “particularly deferential to the informed discretion of corrections officials.” Id. If, on the other hand, Jones identifies an easy alternative that would not pose a significant ripple effect, this could represent evidence that Rule 23 is not reasonable, but is an “exaggerated response” to prison concerns. Id. at 90-91, 107 S.Ct. 2254. Yet, the Turner Court hastened to point out that this is not a “least restrictive alternative” test: “prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant’s constitutional complaint.” Id.

Well, if Turner does not impose a “least restrictive alternative” requirement, and if, as the majority has found, Rule 23 allows at least two available and adequate alternatives, then why should it matter whether other alternatives might also be available, even if they might be less restrictive? And if Jones has failed to demonstrate that the existing accommodations are either burdensome or ineffective, then why should the existence of other possible accommodations that are not “shot down” by prison officials be deemed to suggest that the existing accommodations are unreasonable?

The majority does not purport to answer these questions, but sidesteps them. Its determination that the third and fourth factors demonstrate the unreasonableness of Rule 23 is not based on evidence that other accommodations have been unreasonably denied. Rather, instead of focusing on evidence of other means of access to UCC materials, the majority turns the factors around and focuses on evidence of other means of denying access. Finding that prison officials have employed various other ways of denying access without resorting to Rule 23, the majority concludes that Rule 23 is unnecessary.

In other words, instead of deferring to prison officials’ discretionary authority and upholding Rule 23 because Jones has not shown that it unreasonably restricts access, the majority has usurped their authority by barring enforcement of Rule 23 because prison officials have failed to show that Rule 23 is needed, inasmuch as restriction of UCC materials is or can be effected through other means. Or, even more plainly, the federal judicial power is invoked to intrude upon matters of state prison management not because Jones has shown that his rights are substantially abridged, but because the court, in its wisdom, has determined that it “knows better” than the prison officials — i.e., that a regulation promulgated by prison officials shall not be enforced because the work done by the regulation is also accomplished by other regulations.

In my opinion, the majority’s analysis and decision run directly contrary to Turney’s clear and insistent teaching to let prison administrators make the difficult judgments concerning institutional operations. Id. at 89, 107 S.Ct. 2254. See Beard v. Banks, 548 U.S. 521, 531-33, 126 S.Ct. 2572, 165 L.Ed.2d 697 (2006) (reversing Third Circuit and upholding prison regulation imposing outright deprivation of newspapers, magazines and photographs even though no alternative means of access was provided, because the real task is not to “balance” Turner factors, but to determine whether the regulation is a reasonable one). The fact that Rule 23 may represent an additional mechanism (i.e., in addition to other regulations used to address the same evil) through which prison officials limit prisoners’ access to potentially harmful materials does not render it an “exaggerated response.” The mischief caused by fraudulent and harassing lien filings can and should be addressed in multiple and diverse ways. That the ways chosen by prison officials may turn out to be cumulative or even inefficient does not justify judicial interference. Only if a person’s constitutional rights are shown to be unreasonably impinged is injunctive relief warranted. Jones has not made this showing in this case. Nor has he demonstrated a substantial likelihood of success on the merits of his claim.

Moreover, Jones’s showing of irreparable injury in support of preliminary injunctive relief is nonexistent. The majority is content to rely on oft-quoted language from the plurality opinion in Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976), to the effect that “the loss of First Amendment freedoms, even for minimal periods of time, unquestionably constitutes irreparable injury.” Well, there are First Amendment freedoms and there are First Amendment freedoms. In Elrod, the Supreme Court held that public employees had a First Amendment right not to be fired solely because of then-affiliation with a political party. That is quite a different matter than the inconvenience here visited upon Jones by Rule 23, requiring him to either visit the prison law library or demonstrate legitimate purpose in an administrative hearing to obtain desired UCC materials. Jones has not shown that obtaining UCC materials in one of these alternative ways poses such a burden on his First Amendment rights as to constitute irreparable harm. This inconvenience is at worst a temporary, incidental inhibition of First Amendment freedoms, not an irreparable injury of sufficient magnitude to justify extraordinary preliminary injunctive relief. See City of Los Angeles v. Lyons, 461 U.S. 95, 111-12, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (recognizing that principles of comity and federalism counsel against issuing injunctions against state law enforcement authorities absent showing of substantial and immediate irreparable injury).

Thus finding that Jones has shown neither substantial likelihood of success nor irreparable injury, I believe the law clearly requires us to vacate the preliminary injunction issued by the district court as an abuse of discretion. I therefore respectfully dissent.