The opinion of the court was delivered by: Karen E. Schreier Chief Judge
ORDER DENYING PRELIMINARY INJUNCTION AND DENYING APPOINTED
Plaintiff, Kevin L. Hughbanks, is incarcerated at Mike Durfee State Prison in Springfield, South Dakota. He filed a pro se civil rights action under 42 U.S.C. § 1983 alleging, in addition to several other claims, that the South Dakota Department of Corrections' (DOC's) correspondence policy prohibiting the delivery of bulk-rate mail, in particular as applied to catalogs, is unconstitutional. He now moves for preliminary relief and asks the court to invalidate portions of the DOC's correspondence policy. Specifically, Hughbanks seeks an order directing defendants to "stop using the rate/cost of postage on [an] item being received as a means of determining whether item is allowed or not." Docket 56 at 1. Hughbanks also asks this court to order prison officials to notify the sender or publisher "whenever correspondence, catalogs, or publications are confiscated/rejected as well as the reason for confiscation/rejection, giving the sender/publisher an opportunity to appeal as well as the intended recipient." Id. Thus, Hughbanks's motion asserts violations of his First Amendment rights and his procedural due process rights under the Fourteenth Amendment. Hughbanks also moves for the appointment of counsel to represent him in this action. Defendants oppose his motions.
A preliminary injunction is an "extraordinary and drastic remedy." Munaf v. Geren, 553 U.S. 674, 689-90 (2008). Therefore, the party seeking preliminary relief bears the burden of establishingthe elementsnecessary for relief. Watkins, Inc. v. Lewis, 346 F.3d 841, 833 (8th Cir. 2003). 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 Sys. v. C L Sys., 640 F.2d 109, 114 (8th Cir. 1981). No single factor is dispositive; rather, all of the factors must be considered to determine whether, on the balance, they weigh in favor of granting the injunction. Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987). The Eighth Circuit has held, however, that "the two most critical factors for a district court to consider in determining whether to grant a preliminary injunction are: (1) the probability that plaintiff will succeed on the merits and (2) whether the plaintiff will suffer irreparable harm if an injunction is not granted." Chicago Stadium Corp. v. Scallen, 530 F.2d 204, 206 (8th Cir. 1976). Moreover, 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 v. Harper, 60 F.3d 518, 520 (8th Cir. 1995).
I. First Amendment Claim: Bulk-Rate Mail
A. Threat of Irreparable Harm
The "threshold inquiry" in determining whether a party is entitled to a preliminary injunction is "whether the movant has shown the threat of irreparable injury." Glenwood Bridge Inc. v. City of Minneapolis, 940 F.2d 367, 371 (8th Cir. 1991).While the court must consider all of the Dataphase factors, "[p]erhaps the single most important prerequisite for the issuance of a preliminary injunction is a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a decision on the merits can be rendered[.]" 11A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, & Richard L. Marcus, Federal Practice and Procedure § 2948.1 (2d ed. 1995). Irreparable injury is harm that 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).
"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). Defendants concede that Hughbanks's mere allegation that his First Amendment rights have been violated by the denial of bulk-rate mail establishes the threat of irreparable harm. Thus, Hughbanks has established this element.
B. 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 the other litigants. Dataphase, 640 F.2d at 113. Defendants argue that any harm to Hughbanks is outweighed by the need to accord deference to prison officials regarding the day-to-day operations of the prison. Defendants also assert that the safety, security, and order of the prison would be compromised by granting the relief Hughbanks seeks. Hughbanks's primary argument is that classifying mail based on the postage rate is arbitrary. He also states that the rejected catalogs are "not standard rate mail, my name and customer number are specifically on the catalog and it specifies 'change service requested' instead of 'or current resident.' " Docket 56 at 3. Hughbanks argues that at one time, bulk-rate mail such as catalogs were handed out "randomly to anyone requesting a catalog." Docket 75 at ¶ 6. Hughbanks also points out that DOC policy already limits the amount of property an inmate may possess in his cell. Id. at ¶ 12. According to Hughbanks, these facts invalidate defendants' safety and security concerns.
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 micro-manage state prisons. Klinger v. Dep't of Corr., 31 F.3d 727, 733 (8th Cir. 1994), cert. denied, 513 U.S. 1185 (1995). Furthermore, "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). Because the policy Hughbanks seeks to invalidate is a state-wide DOC policy, the court would be required to suspend it for all inmates in South Dakota at every single corrections facility in the state, not just at the Mike Durfee State Prison. This would compromise the safety and security of not just one institution, but of every institution in the state. Thus, the balance of the harm weighs in favor of defendants.
C. 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). To show a likelihood of success on the merits, a movant need not show "a greater than fifty percent likelihood that he will prevail on the merits." Dataphase, 640 F.2d at 113. Rather, "where the balance of other factors tips decidedly toward plaintiff a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation." Id.
Defendants assert that Hughbanks has no First Amendment right to receive bulk-rate mail. They rely on Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 130-33 (1977). In that case, the Supreme Court upheld a prison regulation that prohibited prisoners from receiving bulk-rate mail from a prison union. Id. North Carolina prohibited inmate solicitation of other inmates, meetings between members of the union, and bulk-rate mailings concerning the union from outside sources. Id. at 122. Prison officials had determined that the existence of the union could lead to work stoppages, mutinies, riots, and chaos. Id. at 127. The union sought to send boxes of pamphlets to inmates, using bulk-rate mail, and to have the inmates distribute the pamphlets among the prison population. Id. at 130-33. Here, Hughbanks seeks to receive bulk-rate mail for his individual consumption; there is no indication that he intends to distribute the material he receives to other inmates. Thus, Jones is factually distinguishable and defendants' assertion that there is no First Amendment right to receive bulk-rate mail expands the Jones holding.
Defendants also cite Smith v. Maschner, 899 F.2d 940, 944 (10th Cir. 1990) for the position that Hughbanks has no First Amendment right to receive bulk-rate mail. The Smith court held that a "complaint about undelivered catalogs fail[ed] to raise an issue of constitutional magnitude." Id. But the Tenth Circuit Court of Appeals later distinguished the decision, noting the decision did not involve a challenge to a prison regulation or apply the Turner test. See Jones v. Salt Lake Cnty., 503 F.3d 1147, 1159-60 (10th Cir. 2007). Rather, the decision was "limited to a prison official's one-time failure to deliver catalogs to an inmate." Id. Because the instant situation is factually distinguishable from Jones and Smith, this court assumes, without deciding, that Hughbanks has a First Amendment right to receive bulk-rate mail. Thus, the court will consider whether Hughbanks has demonstrated a likelihood of success on the merits of his claim.
Assuming that Hughbanks has a First Amendment right to receive bulk-rate mail, he does not lose it merely because he is incarcerated. Procunier v. Martinez, 416 U.S. 396, 408-10 (1974). Rather, he "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). Therefore, an inmate's constitutional rights may be diminished by prison regulations that are reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987).
A number of courts have upheld bans on bulk-rate mail and catalogs in prisons, finding they were reasonably related to legitimate penological interests such as the security of the prison, allocation of resources, and preventing fire hazards. See Jones, 503 F.3d at 1159-60 (noting that plaintiff likely had not met his burden of demonstrating that a county jail's catalog ban was unconstitutional, but remanding to district court for Turner analysis); Sheets v. Moore, 97 F.3d 164, 168 (6th Cir. 1996) (upholding a ban on bulk-rate mail); Allen v. Deland, 42 F.3d 1406 (10th Cir. 1994) (upholding prison policy banning catalogs); Hrdlicka v. Cogbill, No. 04-3020, 2006 WL 2560790 at *11 (N.D. Cal. Sept. 1, 2006) (upholding prison policy banning bulk-rate mail and prison officials' decision not to deliver magazine pursuant to that policy); Dixon v. Kirby, 210 F. Supp. 2d 792, 801 (S.D. W. Va. 2002) (upholding ban on bulk-rate mail and catalogs); Allen v. Wood, 970 F. Supp. 824, 829-30 (E.D. Wash. 1997) (upholding prison policy banning catalogs); Alcala v. Calderon, No. 95-3329, 1997 WL 446234 at *6 (N.D. Cal. July 24, 1997) (upholding prison ban on bulk-rate mail); Kalasho v. Kapture, 868 F. Supp. 882, 888 (E.D. Mich. 1994) (upholding prison policy banning the delivery of bulk-rate mail to inmates).
Hughbanks relies on contrary authority, which comes primarily from the Ninth Circuit Court of Appeals. See Prison Legal News v. Lehman, 397 F.3d 692,701 (9th Cir. 2005) (holding that prison ban on bulk-rate mail and catalogs violated the First Amendment); Prison Legal News v. Cook, 238 F.3d 1145, 1149-50 (9th Cir. 2001) (holding that prison regulation banning the receipt of subscription non-profit mail based on the postal service rate was not rationally related to a legitimate penological objective); Morrison v. Hall, 261F.3d 896, 905 (9th Cir. 2001) (holding prison regulation banning bulk-rate mail was unconstitutional as applied to for-profit subscriptions publications); Allen v. Higgins, 902 F.2d 682, 684 (8th Cir. 1990) (holding prison official was not entitled to qualified immunity because he denied an inmate's request to mail a money order for a government catalog without examining the catalog); Brooks v. Seiter, 779 F.2d 1177, 1181 (6th Cir. 1985) (holding that an inmate's complaint that pamphlets, magazines, and catalogs were not delivered was not frivolous).*fn1 Because there is a split in authority and no controlling precedent from the Eighth Circuit, this court will independently analyze the constitutionality of the DOC's correspondence policy.
Four factors are relevant in determining whether a challenged regulation is reasonably related to legitimate penological interests. Turner, 482 U.S. at 89-90. The first factor examines whether the regulation is legitimate and neutral and rationally related to the underlying government objective. Id. Second, the court must examine whether the prisoners have an alternative means of exercising the right. Id. at 90. Third, the court must examine the impact accommodation will have on guards and ...