Free Order on Motion to Alter Judgment - District Court of Arizona - Arizona

1 2 3 4 5 6 7 8 9 10 11 12 Dora B. Schriro, et al., 13 Defendants. 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
Case 2:03-cv-00916-EHC-JRI Document 123 Filed 08/19/2005 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

Earl F. Crago, Jr., Plaintiff, vs.

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No. CIV 03-0916-PHX-EHC (JRI) ORDER

Pending before the Court is Plaintiff's Motion to Alter or Amend Judgment ("Motion for Reconsideration") and Request for Appointment of Counsel ("Motion for Counsel"). [Dkt. 78]. Plaintiff seeks reconsideration of the Court's November 18, 2004 Order ("November Order") denying his Motion for Order to Show Cause and Temporary and Permanent Injunction ("Show Cause Motion"). [Dkt. 74]. Plaintiff's Motion for Reconsideration An interlocutory appeal of Plaintiff's June 30, 2004 Show Cause Motion was pending at the time the Court issued the November Order. Plaintiff's Show Cause Motion was denied for lack of jurisdiction: Once a notice of appeal has been filed, the district court is divested of jurisdiction over the matters being appealed. [citations omitted]. Accordingly, the June 30, 2004 Motion for Order to Show Cause and Temporary and Permanent Injunction (Doc. No. 23) must be denied without prejudice for lack of jurisdiction. [Dkt. 74, p.2].

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Plaintiff argues that the Court's November Order was in error. Plaintiff argues that he did not file the interlocutory appeal and that the Court filed the notice of appeal "on its own initiative . . ."1 [Dkt. 78, p.1]. Plaintiff further argues that the Ninth Circuit dismissed the appeal as untimely and that this Court now has jurisdiction to address the Show Cause Motion. The record reflects that the interlocutory appeal was dismissed as untimely. [See Dkt. 82]. The Court will grant Plaintiff's Motion for Reconsideration and will address the merits of the Show Cause Motion that was denied in the November Order. Plaintiff's Show Cause Motion Background Plaintiff is an inmate currently being held at the Arizona State Prison Complex in Buckeye, Arizona. Plaintiff requests injunctive relief from Defendants' policies and practices under Department Order 902.11 ("D.O."), which governs the handling of inmate mail. Under the D.O., inmate mail is categorized as "legal mail" or regular mail. Legal mail is defined in the D.O. as, "[a]ny letters to or from an inmate's attorney of record, or to or from a judge or to or from a court of law." [Dkt. 62, Attach. p.18] [Dkt. 63, Exh. C, p.18]. All other mail is classified as regular mail. The D.O. provides that an inmate's legal mail may be checked for contraband, but may not be read or censored. The D.O. requires that all legal mail be delivered, regardless of the inmate's ability to pay postage. Regular mail is read and censored, and an inmate must pay the required postage unless he or she is deemed indigent. Plaintiff attempted to send mail to the United States Attorney General, the Arizona Attorney General, the Arizona Department of Administration-Risk Management Division, the Pinal County Sheriff, and the United States Marshal's Service as legal mail. Defendants informed Plaintiff that the mail did not qualify as "legal mail" under the D.O. and would not Plaintiff filed a request for directions on how to file an appeal of the Court's July 30, 2004 Order. The Court processed this request as a Notice of Appeal to the Ninth Circuit. [See Dkts. 53, 59]. -2Document 123 Filed 08/19/2005 Page 2 of 9
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be sent. Defendants allege that Plaintiff was given the opportunity to have the mail sent as "legal mail" following paralegal review, but that Plaintiff declined the offer. Plaintiff alleges that he was not given this opportunity and further alleges that the D.O. does not provide for paralegal verification of legal mail. Plaintiff was informed that he could send the mail as regular mail if he could pay the required postage.2 Plaintiff alleges that he could not afford the postage to send the mail. Plaintiff alleges that the D.O. violates his First Amendment right to petition the government for redress of grievances. Legal Standard for Preliminary Injunction A preliminary injunction is appropriate where plaintiffs demonstrate "either: (1) a likelihood of success on the merits and the possibility of irreparable injury; or (2) that serious questions going to the merits were raised and the balance of hardships tips sharply in [their] favor." Clear Channel Outdoor Inc. v. City of Los Angeles,340 F.3d 810, 813 (9th Cir. 2003) (quoting Walczak v. EPL Prolong, Inc., 198 F.3d725, 731 (9th Cir. 1999)). "These two formulations represent two points on a sliding scale in which the required degree of irreparable harm increases as the probability of success decreases." Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990). "The district court is not required to make any binding findings of fact; it need only find probabilities that the necessary facts can be proved." Sierra On-Line, Inc. v. Phoenix Software, Inc., 739 F.2d 1415, 1423 (9th Cir. 1984). "The district court must also consider whether the public interest favors issuance of the injunction." Southwest Voter Registration v. Shelley, 344 F.3d 914 (9th Cir. 2003), citing Fund for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992). Discussion The Ninth Circuit addressed this issue in O'Keefe v. Van Boening, WSP, 82 F.3d 322 (1996). The plaintiff in O'Keefe was a state prisoner who filed a lawsuit against several

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Plaintiff's indigent status was suspended on April 22, 2004. [Dkt. 24, Exh. 1, p.1]. -3Document 123 Filed 08/19/2005 Page 3 of 9

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prison officials alleging that the prison's mail policy violated his First Amendment right to seek redress for grievances. The Ninth Circuit held that, "[e]ven assuming that the prison's mail policy infringes on the prisoner's First Amendment right, . . . legitimate penological interests justify the infringement." Id. at 323. The O'Keefe Court reversed the district court's grant of summary judgment in favor of the plaintiff, noting that summary judgment should have been granted in favor of the defendants. See id. The prison mail policy at issue in O'Keefe is broader than the policy involved in the present case. The prison mail policy in O'Keefe provides, in relevant part: [Legal Mail includes] [c]orrespondence to or from courts and court staff, attorneys, established groups of attorneys involved in the representation of offenders in judicial proceedings (i.e. American Civil Liberties Union, legal services groups, etc.), the President or Vice-President of the United States, members of the United States Congress, embassies, and consulates, the United States Department of Justice, state attorneys general, governors, members of the state legislature, and law enforcement officers in their official capacity. Id. The prison mail policy at issue in this litigation provides, in part: 902.11 LEGAL MAIL ... 1.4.2.2 All outgoing letters to an inmate's attorney of record or to a judge or court shall be brought to the mail room by the inmate, where the letter shall not be read or censored but shall be inspected for contraband and sealed in the presence of the inmate. All outgoing legal documents to an inmate's attorney of record or to a judge or to a court (other than letters to an inmate's attorney of record or to a judge or court, such as pleadings, briefs and motions) shall not be censored, but staff are not prohibited from reading such documents to the extent necessary to establish the presence of contraband. [Dkt. 62, Attachment to Affidavit, p.14]. The O'Keefe Court did not take the broad definition of legal mail into account in reversing the district court's ruling:

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We need not decide whether the district court erred when it ruled that the DOC Mail Policy, despite its fairly expansive definition of legal mail, has a chilling effect on [Plaintiff's] First Amendment right to petition the government for redress of grievances. Even assuming that the DOC Mail Policy does have such a chilling effect, the State Officials have established that legitimate penological interests justify the policy. O'Keefe, 82 F.3d at 325. Accordingly, the Court must determine whether Defendants have shown that penological interests justify the mail policy at issue in this dispute. "A prison may adopt regulations which infringe on an inmate's constitutional rights if those regulations are reasonably related to legitimate penological interests." Id. (internal citations omitted). A court must consider the following four factors in determining whether a regulation is reasonable: (1) [W]hether 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 accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally; and (4) whether there exists an obvious, easy alternative to the regulation that fully accommodates the prisoner's rights at de minimis cost to valid penological interests. Id. (internal citations omitted). The O'Keefe Court utilized the foregoing factors in upholding the DOC mail policy as constitutional. The O'Keefe Court found a reasonable relationship between the policy and legitimate penological interests. Factor One: Rational Connection Between Regulation and Legitimate Governmental Interest The O'Keefe Court found that "the prevention of criminal activity and the maintenance of prison security are legitimate penological interests which justify the regulation of both

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incoming and outgoing prisoner mail." Id. The O'Keefe Court further found a rational connection between these interests and the DOC [Department of Corrections] mail policy. See id. ("The district court mistakenly concluded, however, that there is no rational connection between the DOC Mail Policy and these interests. Regulating correspondence between prisoners and government agencies can serve to prevent criminal activity and maintain prison security."). Factor Two: Alternative Means Available to the Prisoner for Exercising the Right The O'Keefe Court noted that, "[w]here other avenues remain available for the exercise of the asserted right, courts should be particularly conscious of the measure of judicial deference owed to corrections officials." Id. (internal citations omitted). The O'Keefe Court

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further noted that "[w]here, as here, a state penal institution is involved, federal courts have a further reason for deference to the appropriate prison authorities." Id. (internal citations omitted). The O'Keefe Court held that the plaintiff had reasonable alternative means for exercising his right to petition the government for redress of grievances. The O'Keefe Court

emphasized that grievances which could not be sent as legal mail, could still be sent as regular mail. The O'Keefe Court further acknowledged that the broad definition of "legal mail" in the DOC policy afforded the plaintiff the right to "petition the state attorney general, governor, members of the state legislature and law enforcement officers, among others, for redress of grievances." Id.

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The O'Keefe Court found the impact of the requested accommodation to be significantly burdensome: Treating grievance mail as legal mail would increase the administrative cost of processing prisoner mail. Rather than immediately reading the grievance mail, prison employees would have to retrieve the prisoner and inspect the mail in his presence, or visit the prisoner and inspect the mail in his cell. The increased administrative cost that would result supports the conclusion that the State Officials are not obligated to treat [Plaintiff's] grievances as legal mail, when sent to recipients other than those authorized in the DOC Mail Policy. Id. (internal citations omitted). Factor Four: Easy Alternative for the Prison "The existence of easy alternatives to a prison policy restricting constitutional rights may be evidence that the policy is not reasonable, but rather is an exaggerated response to prison concerns." Id. at 326-27 (internal citations omitted). "When, however, prison officials are able to demonstrate that they have rejected a less restrictive alternative because of reasonably founded fears that it will lead to greater harm, they succeed in demonstrating that the alternative they in fact selected was not an 'exaggerated response' . . ." Id. at 327 (internal citations omitted). The plaintiff in O'Keefe proposed that the prison could treat all grievance mail as legal mail. The court rejected this proposed alternative: While this proposal may suffice to stem the flow of some contraband, such a broad definition of legal mail fails to address adequately the need to maintain prison security and to prevent escape attempts and other criminal activity. It is incumbent upon [Plaintiff] to point to an alternative that accommodates his rights at a de minimis cost to security interests. [Plaintiff] has failed to make this showing. The prison is not required to adopt the least restrictive alternative. Id.

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The Court will deny Plaintiff's Show Cause Motion. The Ninth Circuit has, in a similar case, addressed the issue raised by Plaintiff in the Motion and has found the prison's mail policy to be constitutional. Plaintiff has failed to demonstrate either a likelihood of success on the merits and the possibility of irreparable injury, or that serious questions going to the merits have been raised and the balance of hardships tips sharply in his favor. Plaintiff's Motion for Counsel "The decision to appoint [counsel for indigent pro se plaintiffs in civil matters] is within the sound discretion of the trial court and is granted only in exceptional circumstances." Agyeman v. Corrections Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004) (citations omitted). A finding of exceptional circumstances "requires at least an evaluation of the

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likelihood of the plaintiff's success on the merits and an evaluation of the plaintiff's ability to articulate his claims in light of the complexity of the legal issues involved." Id. (citations omitted). The Court will deny Plaintiff's Motion for Counsel. The Court has found, based on Ninth Circuit precedent, that Plaintiff does not have a likelihood of success on the merits of his claim. Accordingly, IT IS ORDERED that Plaintiff's Motion to Alter or Amend Judgment ("Motion for Reconsideration") and for Appointment of Counsel ("Motion for Counsel") is GRANTED IN PART and DENIED IN PART. [Dkt. 78]. ///

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IT IS FURTHER ORDERED that Plaintiff's Motion to Alter or Amend Judgment ("Motion for Reconsideration") is GRANTED. [Dkt. 78-1]. IT IS FURTHER ORDERED that Plaintiff's Motion for Appointment of Counsel ("Motion for Counsel") is DENIED. [Dkt. 78-2]. IT IS FURTHER ORDERED that Plaintiff's Motion for Order to Show Cause and for Temporary and Permanent Injunction ("Show Cause Motion") is DENIED. [Dkt. 74]. DATED this 18th day of August, 2005.

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