The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING INJUNCTIVE RELIEF
Plaintiff, Kevin. L Hughbanks, an inmate at Mike Durfee State Prison, filed this civil rights action arguing that his mail was improperly rejected. Hughbanks now moves for several preliminary injunctions. He seeks the return of a number of suggestive photographs; an order directing defendants to allow him to utilize the administrative remedy process; an order that defendants provide Hughbanks with free legal copies for all matters relating to his case; and finally an order directing defendants to cease retaliating against him. Docket 26, 29, 31. Hughbanks also moves to withdraw his motion for an ex parte injunction (Docket 9) in part, to remove anything that could result in his relocation. Docket 27. Hughbanks also seeks the appointment of counsel. Docket 28.
"The burden of proving that a preliminary injunction should be issued rests entirely with the movant." Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1995). Whether a preliminary injunction should issue is decided by weighing four factors (the "Dataphase" factors). They are: (1) the threat of irreparable harm to the movant; (2) the state of balance between this harm and the injury that granting the injunction will inflict on the other parties; (3) the probability that the movant will succeed on the merits; and (4) the public interest. Dataphase Systems v. C L Systems, 640 F.2d 109, 114 (8th Cir. 1981). In the prison setting, a request for a preliminary injunction "must always be viewed with great caution because judicial restraint is especially called for in dealing with the complex and intractable problems of prison administration." Goff, 60 F.3d at 520.
Hughbanks argues the confiscation of a number of sexually suggestive photographs violated his constitutional rights. He asserts the photographs were not prohibited by the DOC pornography policy because they did not depict nudity and would not be considered sexually suggestive under its definitions. The DOC pornography policy defines nudity as "a pictorial or other graphic depiction where male or female genitalia or female breasts are exposed." Docket 34-8. Sexually explicit material "includes written and pictorial depiction of actual or simulated sexual acts including but not limited to sexual intercourse, oral sex, or masturbation." Id. It also "includes individual pictures, photographs, or drawings of nudity or sexually explicit conduct that are not part of a book, pamphlet, magazine, periodical or other publication." Id. Defendants have produced the rejected photographs as an exhibit. See Docket 34-4. It appears that the photographs do not fall within the pornography policy. But according to defendants, that is not why the photographs were confiscated.
Defendants argue the photographs were rejected because they were considered detrimental to Hughbanks's rehabilitation as a sex offender. Because Hughbanks was convicted of third-degree rape and possession of child pornography, he received a psychosexual evaluation upon his incarceration. Docket 34-2. It was recommended that Hughbanks receive sex offender treatment through the Special Treatment of Perpetrators Program (STOP) and the Sex Offender Management Program (SOMP). Id. Hughbanks's psychosexual evaluation states that he should not be allowed any use or exposure to pornography or erotica or access to the internet. Id. The treatment coordinator recommended that any explicit photographs in Hughbanks's possession be confiscated. Docket 34-3. Prison staff followed this recommendation, confiscating some erotic photographs and rejecting others that were mailed to him. Certain publications containing erotic photographs were also rejected. The mailroom rejection notice provides that mail may be confiscated if it is considered detrimental to an offender's rehabilitation. Docket 34-2.
Hughbanks seeks that this court issue several orders in connection with the photographs. First, Hughbanks asks this court to order defendants to return the photographs. Docket 26. Second, he seeks an injunction "restraining defendants from censoring, confiscating, or rejecting any item mailed to plaintiff in the past, present, or future that defendants allege to be detrimental to plaintiff's rehabilitation without having a qualified behavioral psychologist review each item." Id. Hughbanks also asks this court to enjoin defendants from "censoring, confiscating or rejecting any item mailed to plaintiff in the past, present, or future that defendants allege may cause plaintiff to reoffend without having a qualified behavioral psychologist review the item(s) in question, after being provided with the circumstances of plaintiff's felony convictions, what led defendants to believe the questioned items could be detrimental to plaintiff's rehabilitation, and how the Defendants believe the item could cause plaintiff to reoffend." Id. Finally, if the court grants the two injunctions relating to evaluation by a behavioral psychologist, Hughbanks also seeks a copy of the report or findings of the psychologist and a list of the psychologist's credentials. Id.
1. Threat of Irreparable Harm
In order to demonstrate irreparable harm, Hughbanks must show that the harm is "certain, great and of such imminence that there is a clear and present need for equitable relief." Packard Elevator v. Interstate Commerce Comm'n, 782 F.2d 112, 115 (8th Cir. 1986). Hughbanks argues that the confiscation and rejection of the suggestive photographs violated his First Amendment rights. If he is correct and his First Amendment rights have been violated, this constitutes irreparable harm. "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality). See Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1140-41 (8th Cir. 1996) (finding the threat of irreparable harm requirement satisfied where movants alleged their exclusion from a particular public television program violated their First Amendment rights). Thus, Hughbanks has satisfied this element of the Dataphase inquiry.
2. Balance between Harm and Injury to Other Parties
The second factor to consider is the balance of the threat of harm against the harm that will occur to other litigants. Dataphase, 640 F.2d at 113. There is a tension between the need to protect constitutional rights and the longstanding policy of judicial restraint regarding issues of prison administration. "Traditionally, federal courts have adopted a broad hands-off attitude towards problems of prison administration." Hosna v. Groose, 80 F.3d 298, 304 (8th Cir. 1996). It is not the role of federal courts to micromanage state prisons. Klinger v. Dep't of Corr., 31 F.3d 727, 733 (8th Cir. 1994), cert. denied, 513 U.S. 1185 (1995). Conversely, "federal courts ought to afford appropriate deference and flexibility to state officials trying to manage a volatile environment . . . such flexibility is especially warranted in the fine-tuning of the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 483 (1995). If the injunctions Hughbanks seeks were issued, the prison would be required to employ a behavioral psychologist to evaluate any rejected photographs with Hughbanks's unique characteristics in mind. Every time Hughbanks orders or is mailed photographs that are rejected, the psychologist would be required to provide him with a report describing how the photographs would undermine his rehabilitation. Such relief would be unduly burdensome on prison officials. Hughbanks seeks special treatment, which, as defendants point out, is always a concern for prison officials tasked with the "unenviable task of keeping dangerous men in safe custody[.]" Farmer v. Brennan, 511 U.S. 825, 844 (1994). These concerns outweigh any injury Hughbanks will suffer if the court fails to issue an injunction.
3. Likelihood of Success on the Merits
"In a First Amendment case . . . the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should issue." Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008).
If Hughbanks were in his home, rather than incarcerated as a sex offender in Mike Durfee State Prison, he would have an undisputed First Amendment right to the possession of the photographs. See Stanley v. Georgia, 394 U.S. 557 (1969) (holding that the First Amendment protects the possession of obscene material in the home). But his incarceration alters the analysis.
"In the First Amendment context . . . 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." Leonard v. Nix, 55 F.3d 370, 374 (8th Cir. 1995). These limitations "arise both from the fact of incarceration and from valid penological objectives--including deterrence of crime, rehabilitation of prisoners, and institutional security." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987). At least one court has found a sex offender has no First Amendment right to possess sexually suggestive materials that could be detrimental to his rehabilitation. See Frazier v. Ortiz, No. 07-cv-02131, 2010 WL 924254 at *12 (D. Colo. March 10, 2010).
Rehabilitating offenders is a "paramount objective of the corrections system." Pell v. Procunier, 417 U.S. 817, 823 (1974). Evaluating an offender's rehabilitation, and what may be detrimental to it, is "committed to the considered judgment of prison administrators[.]" Fegans v. Norris, 537 F.3d 897, 902 (8th Cir. 2008) (internal citations omitted). Thus, courts apply a deferential rational relationship test to prison officials' application of a policy to an inmate. A prison official's action that "impinges on inmates' constitutional rights is valid if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). The four factors of the Turner test examine (1) whether a valid, rational connection exists between the prison action and the government interest it protects; (2) whether prisoners have an alternative means of exercising the protected right; (3) the impact of accommodating the right on other inmates, guards, and the allocation of prisoner resources generally; and (4) whether alternatives exist that fully accommodate the prisoner's rights at de minimis cost to valid penological interests. Id. at 89-90.
First, this court evaluates whether a valid, rational connection exists between prison officials' action and the government interest it protects. Id. Here, Hughbanks underwent a psychosexual evaluation upon his incarceration. His evaluation recommended that he not be permitted to access pornography, erotica, or the internet. In accordance with that recommendation, prison officials confiscated sexually suggestive, erotic photographs of women that Hughbanks had in his possession. They also rejected similar photographs that Hughbanks ordered, noting on the mailroom rejection notice that they were rejected because they were "detrimental [to Hughbanks's] rehabilitation." Docket 34-4. Hughbanks disputes this finding. Hughbanks asserts that the confiscation of sexually suggestive photographs of adults actually hinders his rehabilitation as a sex offender. He argues:
[T]he logic of denying a person from viewing photos of adults that could stimulate and arouse that person when said person has problematic attractions toward children seems counterproductive and in itself detrimental to rehabilitation because the institution is applying negative consequences for trying to view pictures of adults. In a sense, the logical conclusion that one would come to is that Defendants do not want me to have sexual fantasies of adults.
Docket 41 at 12. The conclusion that the photographs would be detrimental to Hughbanks's rehabilitation is "committed to the considered judgment of prison administrators[.]" Fegan, 537 F.3d at ...