Robert Bethel v. Charlotte Jenkins

RECOMMENDED FOR PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 21a0048p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
┐
ROBERT W. BETHEL,
│
Plaintiff-Appellant, │
> No. 19-3392
│
v. │
│
CHARLOTTE JENKINS, Warden; MICHAEL ALLEN │
EIRING, Lieutenant; TIMOTHY SHOOP, Warden, │
Defendants-Appellees. │
┘
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 2:15-cv-03016—Algenon L. Marbley, District Judge.
Decided and Filed: February 25, 2021
Before: BATCHELDER, CLAY, and BUSH, Circuit Judges.
_________________
COUNSEL
ON BRIEF: Mindy Worly, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellees. Robert W. Bethel, Chillicothe, Ohio, pro se.
_________________
OPINION
_________________
CLAY, Circuit Judge. Plaintiff Robert W. Bethel, proceeding pro se, appeals the district
court’s grant of summary judgment to Defendants, Warden Charlotte Jenkins, Lieutenant
Michael Allen Eiring, and Warden Timothy Shoop, former and current officials at Chillicothe
Correctional Institution (“CCI”). On appeal, Bethel argues that the district court erred by
(1) finding that CCI’s policy—prohibiting inmates from receiving packages ordered by third
parties from unapproved vendors—did not violate his First Amendment right to free speech
No. 19-3392 Bethel v. Jenkins, et al. Page 2
pursuant to Turner v. Safley, 482 U.S. 78 (1987); (2) finding that he had no protected interest
under procedural due process that was violated by the policy and that Bethel received sufficient
process; and (3) determining that Defendants were entitled to qualified immunity and failing to
find that Defendants violated Bethel’s clearly established rights. For the reasons set forth below,
we AFFIRM the district court’s judgment.
BACKGROUND
Bethel is presently incarcerated at CCI in Chillicothe, Ohio, serving a capital sentence.
On February 6, 2015, pursuant to Ohio Department of Rehabilitation and Corrections (“ODRC”)
Policy 61-PRP-01, Defendants Jenkins and Eiring implemented a policy at CCI prohibiting
“orders for printed material placed by third parties through unapproved vendors.” (R. 68-5,
Jenkins Decl. at PageID # 1398; R. 67-1, Eiring Mem. at PageID # 1080–81.) An inmate’s
family or friends could only place orders on their behalf through an approved vendor, and any
orders from unapproved vendors had to “be initiated by the inmate and approved by CCI staff.”
(R. 67-1, Eiring Mem. at PageID # 1081.) And in the event that “an inmate [was] sent a package
from an unapproved source,” the inmate had “the option of returning the package to the vendor
at the inmate’s expense or having the package destroyed.” (Id.) Pursuant to this policy, between
March 2015 and June 2015, Defendants withheld four books from Bethel on the grounds that
they were not ordered by Bethel, and Bethel received notice explaining why the books were
being withheld and offering him the option of having the books mailed back or destroyed.
On multiple occasions, Bethel tried to appeal the withholding decision by requesting a
Form DRC 4147 from Eiring, who explained that the books were withheld because they were not
ordered by Bethel through his institutional account and, had they been withheld based on
content, he could receive a Form DRC 4147. Bethel also used the prison’s internal
communication system to ask Eiring and mailroom staff whether his books were withheld
because they believed the books were not from a distributor or because the books were deemed
to pose a security threat to CCI. Both Eiring and a mailroom employee responded that the books
were withheld because they were not ordered by Bethel from his institutional account. Bethel
later learned from Gary Otte and Freddie McNeill, also incarcerated at CCI, that they had both
ordered and received religious books, which were initially withheld for being ordered by a third
No. 19-3392 Bethel v. Jenkins, et al. Page 3
party but were then intercepted by the chaplain for review of their religious content. The CCI
Chaplain confirmed this occurrence, informing Bethel that Defendants were allowing violations
of the policy by permitting the chaplain to screen religious printed materials ordered by third
parties that would otherwise be withheld and then to give those materials to the inmates for
whom they were intended.
Bethel proceeded to file a grievance against Eiring and multiple informal complaint
resolutions, requesting that CCI stop implementing this policy and that he be reimbursed for the
postage he purchased to return the books that were withheld. His grievance was denied on the
ground that the book was ordered by a third party from an unapproved vendor, in violation of
ODRC policy, on which Bethel had received a memorandum. Bethel continued to file
grievances on the same grounds, which were similarly denied and affirmed on appeal to the
Chief Inspector.
Bethel filed suit under 42 U.S.C. § 1983 against Defendants Jenkins and Eiring for
violating his constitutional rights under the Free Speech and Establishment Clauses of the First
Amendment as well as the Due Process and Equal Protection Clauses of the Fourteenth
Amendment in implementing and enforcing this policy. He sued Defendants in their individual
and official capacities and sought declaratory and injunctive relief, as well as compensatory and
nominal damages. Defendants moved for judgment on the pleadings, which, upon the
recommendation of a magistrate judge, was granted by the district court. We affirmed the
dismissal of the Establishment Clause claim but reversed the dismissal of the Free Speech and
Procedural Due Process claims, finding that Bethel had sufficiently alleged these claims.1 Bethel
v. Jenkins, No. 16-4185, 2017 WL 4863118, at *4 (6th Cir. Sept. 22, 2017).
On remand, Bethel filed an amended complaint, seeking declaratory and injunctive relief
as well as compensatory, nominal, and punitive damages against Defendants for free speech and
due process violations. He alleged that (1) Defendants violated his right to free speech by
preventing him from receiving printed materials ordered by third parties pursuant to CCI policy
and by allowing for violation of the policy for religious materials; and (2) Defendants violated
1Bethel failed to raise the dismissal of his Equal Protection claim on appeal, so we deemed it waived.
Bethel, 2017 WL 4863118, at *1.
No. 19-3392 Bethel v. Jenkins, et al. Page 4
his right to procedural due process by withholding these books and denying his requests to
appeal the withholding decisions as well as to receive pre-approval exemption from the policy.
Notably, before the first appeal was filed and decided, on March 1, 2017, CCI rescinded the
policy and replaced it with one allowing orders for printed materials by a third party from a
publisher or distributor.2
Defendants and Bethel both moved for summary judgment on all claims. Defendants
argued that they were entitled to judgment as a matter of law because (1) the policy of banning
third-party book orders from unapproved vendors was reasonably related to the legitimate
penological interest of preventing contraband from entering the prison and preserving prison
security; (2) the policy was a reasonable regulation on any interest Bethel had in receiving the
books and Bethel failed to allege insufficient post-deprivation remedies; and (3) Bethel had not
demonstrated that he had a clearly established right to obtain the books withheld.
In his motion for summary judgment, Bethel argued that (1) Ohio law provided him the
right to receive publications that do not pose a security threat to the prison and come from a
publisher or distributor, and Defendants’ failure to give him notice of the reason for withholding
the books and to provide him review of the withholding decisions violated his due process;
(2) the policy did not reasonably relate to the legitimate penological interest of preventing
contraband from entering the prison; and (3) Defendants were not entitled to qualified immunity
because they violated clearly established state law requiring them to provide Bethel with notice
and an opportunity to be heard regarding the withheld publications and giving him a right to
receive publications that do not pose a security threat.
2Defendants filed a motion to dismiss the original complaint for mootness based on the rescinding of the
old policy, but the district court deemed the motion to dismiss moot based on Bethel’s filing of the amended
complaint. Defendants then filed a motion to dismiss the amended complaint for mootness, but the district court
denied this motion, based on the magistrate judge’s recommendation. The magistrate judge found that the claims for
declaratory and injunctive relief were not moot because Defendants had failed to show that they could not be
reasonably expected to reinstate the policy, and that his claims for damages could not be mooted by voluntary
cessation of the policy or dismissed on the grounds that it was “his own mother, not Defendants, who prevented him
from ordering the printed materials he wanted.” (R. 63, Order and R & R at PageID # 1002.) The magistrate judge
did say that “the Undersigned expresses no opinion on the validity of Plaintiff’s claims if additional evidence is
submitted at the summary judgment stage.” (Id.)
No. 19-3392 Bethel v. Jenkins, et al. Page 5
Based on the recommendation of the magistrate judge, the district court granted summary
judgment to Defendants and denied summary judgment to Bethel.3 The district court found that
the magistrate judge correctly determined that the “publisher only” policy was neutral and
supported by the legitimate penological interest of preventing the entry of contraband into the
prison, and there were reasonable alternative means for Bethel to acquire these books. The
district court also found that the magistrate judge correctly determined that Bethel received
sufficient process following the withholding of his books through written notice, the prison
grievance procedure, and the ability to send back the book to the third party. Finally, the district
court agreed with the magistrate judge that Defendants were entitled to qualified immunity in
their individual capacities because they did not violate Bethel’s clearly established rights under
the First and Fourteenth Amendments. This timely appeal followed.
DISCUSSION
Standard of Review
“This Court reviews a district court’s grant of summary judgment de novo.” Moran v.
Al Basit LLC, 788 F.3d 201, 204 (6th Cir. 2015). This includes a district court’s determination of
qualified immunity. See Daugherty v. Campbell, 935 F.2d 780, 783 (6th Cir. 1991) (“Whether
qualified immunity is applicable to an official’s actions is a question of law.”). Summary
judgment will be granted “if the movant shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A material
fact is one “that might affect the outcome of the suit,” and a genuine dispute exists “if the
evidence is such that a reasonable jury could return a verdict for the nonmoving party.”
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
“The moving party bears the burden of showing that no genuine issues of material fact
exist.” Rafferty v. Trumbull County, 915 F.3d 1087, 1093 (6th Cir. 2019). Once the moving
party has met their burden, the burden then shifts to the non-moving party to demonstrate
“specific facts showing that there is a genuine issue for trial,” although the evidence need not be
3The district court, pursuant to the magistrate judge’s recommendation, also granted Bethel’s motion for
leave to amend the complaint naming Timothy Shoop, the current Warden of CCI, as a defendant because Jenkins
no longer served as Warden and could not provide the requested injunctive relief.
No. 19-3392 Bethel v. Jenkins, et al. Page 6
“in a form that would be admissible at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)
(internal quotations omitted). All reasonable inferences will be drawn in favor of the non-
moving party. Mutchler v. Dunlap Mem’l Hosp., 485 F.3d 854, 857 (6th Cir. 2007). “[A]t the
summary judgment stage the judge’s function is not himself to weigh the evidence and determine
the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249; Moran, 788 F.3d at 204 (noting that the district court cannot make credibility
judgments or weigh the evidence at summary judgment).
I. Violation of Bethel’s First Amendment Right to Information and Ideas
Bethel argues that the district court erred in granting summary judgment to Defendants
on his First Amendment claim based on an improper application of the Turner factors. The First
Amendment protects “the right to receive information and ideas,” which, as applicable in the
prison context, extends to the right to receive mail and to access reading material. Kleindienst v.
Mandel, 408 U.S. 753, 762 (1972); see also Parrish v. Johnson, 800 F.2d 600, 603 (6th Cir.
1986) (noting that “prisoners have some First Amendment rights in receiving mail”);
Thornburgh v. Abbott, 490 U.S. 401, 407–08 (1989) (describing publishers’ “legitimate First
Amendment interest in access to prisoners” in the context of analyzing a prisoner’s right to
receive publications). As recognized by the Supreme Court, individuals retain some
constitutional protections while incarcerated, including rights provided by the First Amendment.
Turner v. Safley, 482 U.S. 78, 84 (1987) (“[F]ederal courts must take cognizance of the valid
constitutional claims of prison inmates.”). Because lawful incarceration necessarily limits an
individual’s constitutional rights while in prison, “a prison inmate retains those First Amendment
rights that are not inconsistent with his status as a prisoner or with the legitimate penological
objectives of the corrections system.” Pell v. Procunier, 417 U.S. 817, 822 (1974). And given
that “the realities of running a penal institution are complex and difficult,” prison officials are
afforded “wide-ranging deference” in their decisions regarding prison administration and
regulation as courts are generally ill-equipped to deal with these problems. Jones v. N.C.
Prisoners’ Lab. Union, Inc., 433 U.S. 119, 126 (1977).
Taking into account prison officials’ need for flexibility in making day-to-day decisions
on prison operations, the Supreme Court held in Turner that “when a prison regulation impinges
No. 19-3392 Bethel v. Jenkins, et al. Page 7
on inmates’ constitutional rights, the regulation is valid if it is reasonably related to legitimate
penological interests.” 482 U.S. at 89. In that case, the Supreme Court laid out four factors
“relevant in determining the reasonableness of the [prison] regulation at issue” as follows:
(1) whether there is a “‘valid rational connection’ between the prison regulation and the
legitimate governmental interest put forward to justify it;” (2) “whether there are alternative
means of exercising the right that remain open to prison inmates;” (3) “the impact [that]
accommodation of the asserted constitutional right will have on guards and other inmates, and on
the allocation of prison resources generally;” and (4) “the absence of ready alternatives” to the
regulation for prison officials. Id. at 89–90 (internal citation omitted).
Regarding the first factor, the “logical connection between the regulation and the asserted
goal” cannot be “so remote as to render the policy arbitrary or irrational.” Turner, 482 U.S. at89–90. Additionally, “the governmental objective must be a legitimate and neutral one,” and
neutrality in the First Amendment context means that it must be applied “without regard to the
content of expression.” Id. at 90. But see Hanrahan v. Mohr, 905 F.3d 947, 956–57 (6th Cir.
2018) (“Determining that specific speech, based on its content, carries a security risk while other
speech does not and then drawing a distinction based on this legitimate penological objective
satisfies Turner’s neutrality requirement.”). If there is no rational connection between the
regulation and the state justification, then “the regulation is unconstitutional, and the other
factors do not matter.” Spies v. Voinovich, 173 F.3d 398, 403 (6th Cir. 1999).
In the present case, as noted by the magistrate judge, Defendants argue that “the policy
was implemented to eliminate security threats posed by contraband clandestinely transferred into
the prison through gift publications.” (R. 78, R. & R. at PageID # 1673.) In support of this
justification,4 Defendants offer the declaration of current CCI Warden Timothy Shoop, who
explained that “[t]he problem with third-party book purchases is that after a book is purchased,
4In the Report and Recommendation, the magistrate judge describes the reason for the policy offered by the
Defendants as a post hoc justification and proceeds to discuss whether Turner allows for the regulations in question
to be justified by post hoc justifications, noting a circuit split on this issue. However, Defendants have maintained
that the policy was animated by a concern for prison security, initially framing the justification for the policy as it
being a “cost-effective protection against contraband” and providing more explanation as to the justification in the
motion for summary judgment. (R. 23, R. & R. at PageID # 231); see also Bethel, 2017 WL 4863118, at *2 (“The
defendants contend that this policy was enacted ‘to cost-effectively eliminate the risk that a third party could
surreptitiously repackage books in an attempt to flood the institution with hidden contraband.’”).
No. 19-3392 Bethel v. Jenkins, et al. Page 8
contraband can be secreted in the binding and/or between pages.” (R. 68-4, Shoop Decl. at
PageID # 1394.) He further noted that the third party could repackage and ship the book to the
prison with a label to make the book “look like it is coming directly from a publisher or
distributor,” and these books had no tracking numbers to determine whether they were “being
shipped directly from a publisher or distributor.” (Id.) And he provided two examples from July
2018, following the rescinding of the original policy, in which cell phones were hidden in books
made to look as if they were sent from Barnes & Noble. (Id.)
Based on this undisputed evidence, the district court did not err in finding that the
regulation bore a rational connection to the legitimate interest in preventing contraband from
entering the prison and threatening security. The regulation is akin to “publisher only policies”
that only allow prisoners to receive publications from approved publishers and vendors, which
have been previously upheld. Bell v. Wolfish, 441 U.S. 520, 550 (1979) (holding that a
“prohibition against receipt of hardback books unless mailed directly from publishers, book
clubs, or bookstores does not violate the First Amendment rights of MCC inmates”); Ward v.
Washtenaw Cnty. Sheriff’s Dep’t, 881 F.2d 325, 329–30 (6th Cir. 1989) (extending Bell to a
“publisher only” policy for soft cover materials). And Defendants provided specific facts and
evidence demonstrating the connection between prohibiting third-party orders from unapproved
vendors and the entry of contraband into the prison. The regulation is supported by a legitimate
justification in “protecting prison security,” especially given the particular “security risk
presented by incoming publications,” as recognized by this Court and the Supreme Court.
Thornburgh, 490 U.S. at 415–16; Parrish, 800 F.2d at 603. Additionally, the regulation was
neutrally applied because the regulation prohibited printed materials based on how they were
ordered (i.e., by a third party from an unapproved vendor) as opposed to their content. See
Thornburgh, 490 U.S. at 415.
Bethel contends that Defendants failed to establish a nexus between the policy and the
proffered penological interest in preventing contraband from entering the prison through forged
packages because CCI does not use tracking numbers for inmate orders. However, as the
magistrate judge correctly noted, this fact does not place Defendants’ evidence of contraband
entering the prison through third party packages in dispute. Additionally, regardless of whether
No. 19-3392 Bethel v. Jenkins, et al. Page 9
an inmate’s order includes tracking numbers, CCI can look to the Inmate Demand Statement for
an inmate account to ascertain the amount of the transaction, an inmate’s adjusted account
balance, the purchase date, and the recipient of the funds. Bethel also argues that the connection
between the policy and the justification was undermined by Defendants’ disregard of the policy
in screening and providing religious materials sent from third parties to inmates, despite their
posing the same threat to security as non-religious materials. But, as we noted in Bethel’s first
appeal as to his Establishment Clause claim, Defendants were allowed to accommodate inmates’
religious practices by essentially exempting religious materials from the policy in order to meet
their obligations under the Free Exercise Clause.5 Bethel, 2017 WL 4863118, at *3 (finding that
“[a] reasonable person would not view the exception as an endorsement of religion but as an
accommodation of inmate religious practices”); see also Hobbie v. Unemployment Appeals
Comm’n of Fla., 480 U.S. 136, 144–45 (1987) (noting that the Supreme Court “has long
recognized that the government may (and sometimes must) accommodate religious practices and
that it may do so without violating the Establishment Clause”).
As for the second, third, and fourth factors from Turner, we have noted that “[t]he final
three Turner factors should be balanced together.” Flagner v. Wilkinson, 241 F.3d 475, 484 (6th
Cir. 2001). Regarding alternative means of exercising the right at issue, the Supreme Court has
indicated that “‘the right’ in question must be viewed sensibly and expansively,” finding that this
factor is satisfied if other means of expression related to the right are available. Thornburgh,
490 U.S. at 417–18. On the impact on guards, other inmates, and prison resources generally, in
considering this factor, courts should generally defer “to the informed discretion of corrections
officials,” in particular “[w]hen accommodation of an asserted right will have a significant
‘ripple effect’ on fellow inmates or on prison staff.” Turner, 482 U.S. at 90. As to the absence
of ready alternatives to the prison regulation, “the existence of obvious, easy alternatives may be
evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison
concerns.” Id. at 90; Thornburgh, 490 U.S. at 418. But this factor does not require prison
5Even if this exception undermined the nexus between the policy and proffered penological interest, it was
not clearly established that the policy, when enacted with the exception, was a First Amendment violation, given
Supreme Court precedent upholding “publisher only” policies and allowing for accommodation of religious practice.
See Bell, 441 U.S. at 550; see also Hobbie, 480 U.S. at 144–45.
No. 19-3392 Bethel v. Jenkins, et al. Page 10
officials to pick the “least restrictive alternative;” rather, evidence of an “alternative that fully
accommodates the prisoner’s rights [at] a de minimis cost to valid penological interests” can
demonstrate that the regulation does not bear a reasonable relationship to the proffered
justification. Turner, 482 U.S. at 90–91.
The district court correctly found that based on the undisputed evidence the last three
Turner factors weighed in favor of Defendants. Bethel does not dispute that he had alternative
means of acquiring books—namely, using his own funds to purchase books, acquiring books
through the interlibrary loan program, and asking family and friends to provide funds directly
into his account or to send him subscription cards so that he could himself purchase these books.
He only argues that these alternatives are inadequate because his family or friends will not put
money in his institutional account for publications, CCI’s interlibrary loan program did not have
most of his requested publications available, and his institutional pay was insufficient to cover
the materials he wanted. However, none of these facts dispute that Bethel had these alternate
means of obtaining publications available to him, and Turner does not require that the alternate
means fulfill Bethel’s exact request. See 482 U.S. at 92 (noting that the prison offered adequate
alternate means of communication as it “bar[red] communication only with a limited class of
other people . . . inmates at other institutions within the Missouri prison system”); Thornburgh,
490 U.S. at 417–18 (finding that a prison regulation that restricted publications whose content
was deemed to be a security risk met the second Turner factor by “permit[ting] a broad range of
publications to be sent, received, and read”).
On the third factor, the magistrate judge correctly noted that allowing gift publications
from unapproved vendors placed significant costs on Defendants, which became evident when
they rescinded the policy. In Defendant Shoop’s declaration, he indicated that allowing third
party orders from unapproved vendors has slowed down the processing of mail, required CCI to
“pull additional staff” and “purchase[] an x-ray machine for $20,957 in an effort to lessen the
burden on staff,” and led to incidences of contraband entering the prison, none of which Bethel
disputes. (R. 68-4, Shoop Decl. at PageID # 1394.) As to the fourth factor, the magistrate judge
correctly found that none of Bethel’s proposed alternatives of confirmation emails and volume
control could be implemented at a de minimis cost to the interest in prison security. (R. 78, R.
No. 19-3392 Bethel v. Jenkins, et al. Page 11
& R. at PageID # 1677–78.) Confirmation emails would pose a similar concern of forgery, and
any limit to the number of gift publications an inmate could receive would likely limit Bethel’s
and other inmates’ ability to receive books, placing Defendants at risk for further litigation.
Accordingly, the prison policy of banning third party orders from unapproved vendors is not an
“exaggerated response” to the concern of contraband entering the prison. See Thornburgh,
490 U.S. at 419 (finding that it was proper for prison official to reject a “less restrictive
alternative because of reasonably founded fears that it will lead to greater harm” and “the
administrative inconvenience of this proposed alternative”). Ultimately, there is no genuine
dispute of material fact that CCI’s policy did not violate Bethel’s First Amendment right to
receive information and ideas because, under Turner, the regulation bore a reasonable
relationship to the legitimate penological interest in preventing contraband from entering the
prison and threatening security.
II. Violation of Bethel’s Right to Procedural Due Process
Bethel contends that Defendants violated his right to procedural due process because they
infringed on his protected property interest under Ohio Rev. Code § 5120.4276 and Ohio Admin.
Code § 5120-9-197 to receive nonthreatening publications. He also argues that Defendants did
not provide him sufficient process inasmuch as they failed to conduct security threat
determinations of the books and to allow him to have the withholding decisions reviewed.
In accordance with the Supreme Court’s decision in Wolff v. McDonnell, prisoners retain
rights under the Due Process Clause and cannot be “deprived of life, liberty, or property without
due process of law,” but these rights are “subject to restrictions imposed by the nature of the
regime to which they have been lawfully committed.” 418 U.S. 539, 556 (1974). The Supreme
6Ohio Revised Code § 5120.427 provides that “[e]ach prisoner confined in a state correctional institution
may receive a reasonable number of materials directly from the publishers or other distributors of those materials,”
and “[i]f the warden or the warden’s designee determines that an incoming material is not a prohibited inflammatory
material, the warden or the warden’s designee shall cause the material to be promptly forwarded to the prisoner who
is its intended recipient.” Ohio Rev. Code § 5120.427(A), (B)(2).
7Ohio Administrative Code § 5120-9-19 provides that “[a]n inmate may receive a reasonable number of
printed materials subject to the following limitations,” and “[i]f the managing officer or the managing officer’s
designee, determines that the material may be permitted into the institution, then the material shall be promptly
forwarded to the inmate.” Ohio Admin. Code § 5120-9-19(B), (D)(4).
No. 19-3392 Bethel v. Jenkins, et al. Page 12
Court has provided two steps for analyzing procedural due process claims: (1) “whether there
exists a liberty or property interest which has been interfered with by the State” and (2) “whether
the procedures attendant upon that deprivation were constitutionally sufficient.” Ky. Dep’t of
Corr. v. Thompson, 490 U.S. 454, 460 (1989). In order to have a protected property interest, an
individual must “have a legitimate claim of entitlement” to the property interest. Bd. of Regents
of State Colls. v. Roth, 408 U.S. 564, 577 (1972). Additionally, property interests “are not
created by the Constitution;” rather, they are established by “an independent source such as state
law.” Id.Before the Supreme Court’s decision in Sandin v. Conner, 515 U.S. 472 (1995), prison
regulations were found to create protected liberty interests when those regulations “used
language of an unmistakably mandatory character,” such as, for example, “requiring that certain
procedures ‘shall,’ ‘will,’ or ‘must’ be employed.” Hewitt v. Helms, 459 U.S. 460, 471 (1983).
Accordingly, in Spruytte v. Walters, we found, based on Hewitt, that a Michigan prison
regulation created a protected interest to receive any book not deemed to be a security threat
because the regulation contained “specific, substantive criteria restrict[ing] officials’
discretion.”8 753 F.2d 498, 507–08 (6th Cir. 1985), abrogation recognized by Virgili v. Gilbert,
272 F.3d 391 (6th Cir. 2001). However, in Sandin, the Supreme Court explicitly rejected the
approach from Hewitt and held that liberty interests arising from state prison regulations 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 inmate in relation to the ordinary
incidents of prison life.” 515 U.S. at 484 (citations omitted).
We have not yet determined whether Sandin applies to property interests, but we have
cited Sandin to hold that an inmate does not have a protected interest in prison employment.
Pickelhaupt v. Jackson, 364 F. App’x 221, 225–26 (6th Cir. 2010) (“Both this Court and the
8We indicated in Spruytte that “Spruytte’s claim that he is entitled to receive the dictionary may be
plausibly cast as an assertion of either a property interest or a liberty interest.” 753 F.2d at 506. We found that the
claim could be characterized as Spruytte being “entitled to possess a tangible object” as well as being “entitled to
receive a book that concededly he could possess were he not incarcerated.” Id. In the present case, Bethel
characterizes his interest in receiving publications not deemed to be a security threat as a property interest.
No. 19-3392 Bethel v. Jenkins, et al. Page 13
Ninth Circuit have suggested but not directly held that Sandin does not apply to Hewitt-type
property interests.”); Dobbins v. Craycraft, 423 F. App’x 550, 552 (6th Cir. 2011) (finding that
“Dobbins’ procedural due process claim against Besteman was properly dismissed for failure to
allege a liberty or property interest” given that he had “no constitutional right to prison
employment because the loss of his position d[id] not impose an ‘atypical and significant
hardship . . . in relation to the ordinary incidents of prison life’” (quoting Sandin, 515 U.S. at
484)).
But we need not decide whether Sandin applies to property interests because, even
assuming Bethel had a protected interest, the magistrate judge correctly found in the alternative
that Bethel received sufficient process as to that interest. In determining the necessary
procedures under procedural due process, courts consider (1) “the private interest that will be
affected by the official action;” (2) “the risk of an erroneous deprivation of such interest through
the procedures used, and the probable value, if any, of additional or substitute procedural
safeguards;” and (3) “the Government’s interest, including the function involved and the fiscal
and administrative burdens that the additional or substitute procedural requirement would entail.”
Mathews v. Eldridge, 424 U.S. 319, 335 (1976). In the present case, the magistrate judge noted
that Bethel received written notice that the books were withheld as well as notice of the reason
why they were withheld, that he was able to use CCI’s grievance process to seek further review,
and that Defendants allowed Bethel to either have the publications destroyed or sent back to the
third party who ordered them.
Applying the balancing test under Mathews, these procedures were adequate as the
private interest in receiving the books pursuant to the third-party orders was minimal as
compared to the significant government interest in preventing contraband from entering the
prison. See Procunier v. Martinez, 416 U.S. 396, 417 (1974) (noting that the analogous
“decision to censor or withhold delivery of a particular letter must be accompanied by minimum
procedural safeguards”), overruled on other grounds by Thornburgh, 490 U.S. 401. The risk of
erroneous deprivation was small because Bethel could acquire the publications through alternate
means. The value of additional procedures was also limited given the lack of complexity in the
withholding decision, and it was outweighed by the burden on the prison of expending resources
No. 19-3392 Bethel v. Jenkins, et al. Page 14
on further proceedings. Even assuming Bethel had a protected property interest in receiving the
withheld publications, he received sufficient process from CCI regarding the deprivation.9 See
Sickles v. Campbell County, 501 F.3d 726, 731 (6th Cir. 2007) (holding that “[i]n view of the
modest private interests at stake, the small risk of error, the limited benefits of additional
safeguards and the unchallenged government interests in the policy,” the plaintiffs were not
entitled to a pre-deprivation hearing regarding a policy withholding some funds from their
canteen account).
III. Qualified Immunity
Bethel argues that, because Defendants violated clearly established Ohio statutory and
administrative laws that provide the basis of his constitutional claims, the district court erred in
finding that Defendants were entitled to qualified immunity. See Davis v. Scherer, 468 U.S. 183,
194 n.12 (1984). According to the Supreme Court’s decision in Harlow v. Fitzgerald,
“government officials performing discretionary functions generally are shielded 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.” 457 U.S. 800, 818
(1982). Qualified immunity claims are analyzed under a two-prong test: (1) whether “[t]aken in
the light most favorable to the party asserting the injury, [] the facts alleged show the officer’s
conduct violated a constitutional right,” and (2) “whether the right was clearly established . . . in
light of the specific context of the case.” Saucier v. Katz, 533 U.S. 194, 201 (2001). After
Pearson v. Callahan, which held that the two-step sequence set forth in Saucier is no longer
mandatory, district courts and courts of appeals are “permitted to exercise their sound discretion
in deciding which of the two prongs of the qualified immunity analysis should be addressed first
in light of the circumstances in the particular case at hand.” 555 U.S. 223, 236 (2009).
9Defendants also argue, in response to Bethel’s request that we take judicial notice that Bethel’s claims for
declaratory and injunctive relief are not moot, that Bethel has waived this argument on appeal because he did not
object on mootness grounds to the magistrate judge’s recommendation to dismiss those claims, despite Defendants’
evidence indicating that CCI did not intend to reinstate the policy. However, neither the magistrate judge nor the
district court addressed in their orders whether Defendants met their burden to show that they could not be
reasonably expected to reinstate the policy for purposes of determining whether Bethel’s claims for declaratory and
injunctive relief were moot, finding instead that Defendants were entitled to summary judgment on the merits.
Given that we affirm the dismissal of the claims for declaratory and injunctive relief as well as damages on the
merits, we need not address the mootness argument on appeal.
No. 19-3392 Bethel v. Jenkins, et al. Page 15
Because we find that there was no violation of Bethel’s First Amendment or procedural
due process rights, Defendants are entitled to qualified immunity as a matter of law. See
Saucier, 533 U.S. at 201 (“If no constitutional right would have been violated were the
allegations established, there is no necessity for further inquiries concerning qualified
immunity.”). And even if there was a violation of a constitutional right, Bethel cannot show that
a right to receive books withheld pursuant to a ban of third-party orders from unapproved
vendors was clearly established, especially given precedent upholding “publisher only” policies,
see Bell, 441 U.S. at 550, and the process provided following the withholding of books.
CONCLUSION
For the reasons stated above, we AFFIRM the judgment of the district court.