Am. Civil Liberties Union Fund of Mich. v. Livingston Cnty.

• Citation: 796 F.3d 636
• Decision Date: 11 August 2015
• Docket Number: No. 14–1617.,14–1617.
• Parties: AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Plaintiff–Appellee, v. LIVINGSTON COUNTY; Bob Bezotte, in his official capacity as Livingston County's Sheriff; Tom Cremonte, in his individual capacity and in his official capacity as Livingston County's Jail Administrator, Defendants–Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

796 F.3d 636

AMERICAN CIVIL LIBERTIES UNION FUND OF MICHIGAN, Plaintiff–Appellee

v.LIVINGSTON COUNTY; Bob Bezotte, in his official capacity as Livingston County's Sheriff; Tom Cremonte, in his individual capacity and in his official capacity as Livingston County's Jail Administrator, Defendants–Appellants.

No. 14–1617.

United States Court of Appeals, Sixth Circuit.

Argued: April 21, 2015.

Decided and Filed: Aug. 11, 2015.

Rehearing En Banc Denied Sept. 29, 2015.

ARGUED:T. Joseph Seward, Cummings, McClorey, Davis & Acho, Livonia, Michigan, for Appellants. Daniel S. Korobkin, American Civil Liberties Union Fund Of Michigan, Detroit, Michigan, for Appellee. ON BRIEF:T. Joseph Seward, Lindsey A. Kaczmarek, Cummings, McClorey, Davis & Acho, Livonia, Michigan, for Appellants. Daniel S. Korobkin, Michael J. Steinberg, American Civil Liberties Union Fund of Michigan, Detroit, Michigan, Tara E. Mahoney, John J. Rolecki, Honigman Miller Schwartz and Cohn LLP, Detroit, Michigan, for Appellee.

Before: SILER, MOORE, and STRANCH, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Plaintiff American Civil Liberties Union Fund of Michigan sent letters enclosed in sealed envelopes to twenty-five inmates at the Livingston County Jail that were marked “Legal Mail,” included the name and bar number of a Michigan attorney, and offered legal assistance regarding the Jail's mail policy. The Jail's written mail policy requires that all mail except “bona-fide legal mail” must be on 4x6 inch postcards; “legal mail,” on the other hand, may be sent in a sealed envelope and is generally not opened outside the inmate's presence. The Jail did not deliver the ACLU's letters to the inmates, nor did the Jail inform the ACLU or the inmates that the mail was not delivered. In response, the ACLU filed this action arguing that the Jail's policies violated the First and Fourteenth Amendments of the U.S. Constitution by failing to deliver the letters and by failing to notify the ACLU or the inmates about the non-delivery. The ACLU then moved for a preliminary injunction, which the district court granted and, in doing so, ordered the Defendants to deliver the letters. On appeal of that interlocutory order, the Jail argues that the injunction was improper because the Jail believes that legal mail does not include mail from an attorney if the mail neither contains privileged content nor implicates an attorney-client relationship. We disagree, and for the following reasons, AFFIRM the district court's preliminary injunction.

I. FACTS AND PROCEDURE

A. Factual Background

The Livingston County Jail has adopted a “postcard policy” for mail coming in and out of the Jail. The Jail's mail policy requires that “[a]ll mail, except bona-fide legal mail, will be by standard plain 4x6 postcards no images.” R. 29–3 (Inmate Rules and Regulations at 3) (Page ID # 597); see also R. 1–3 (Comp. Ex. A, Jail Website at 2) (Page ID # 19). This is true “for both incoming and out-going mail.” R. 29–3 (Inmate Rules and Regulations at 3) (Page ID # 597). The Jail's policy further states that “[m]ail from attorneys, courts, and public officials may be opened in front of the inmate,” establishing that mail from these sources is not subject to the 4x6 inch postcard policy. Id.; see also R. 1–3 (Comp. Ex. A, Jail Website at 2) (Page ID # 19) (“Correspondence from Attorneys, as well as court and public officials may be opened in the presence of an inmate.”). The Jail's written policies do not otherwise define “bona-fide legal mail” or “mail from attorneys.” R. 1–9 (Cremonte Dep. at 100) (Page ID # 89).

Defendant Tom Cremonte, the Livingston County Jail Administrator, is in charge of determining whether incoming mail qualifies as “legal mail” under the Jail's policies. Id. at 2829 (Page ID # 86). Cremonte testified in a related case, Prison Legal News v. Bezotte et al., No. 11–cv–13460 (E.D.Mich.2011), about the Jail's postcard policy. In that case, Cremonte defined “bona-fide legal mail” under the Jail's policies as “[m]ail from an attorney to a client ... [o]r mail that's on a legitimate legal matter that involves the [inmate]” and “mail from the court.” R. 1–9 (Cremonte Dep. at 29, 103) (Page ID # 86, 90). According to Cremonte, all other mail—including mail from an attorney who does not have a pre-established attorney-client relationship with an inmate—must be on white 4x6 inch postcards. In determining whether an attorney represents an inmate in a legal matter, Cremonte testified that, if he does not know the attorney, he or one of his sergeants will “investigate it” by asking the inmate about the sender or by calling the “circuit court” or a “Judicial Aide who keeps track of all the attorneys.” Id. at 30–32 (Page ID # 87). It is unclear from the record what “circuit court” Cremonte was referring to, although Cremonte testified that the Jail's “investigation” did not include calls to any Michigan Court of Appeals, the Michigan Supreme Court, or the federal court systems in Michigan. Id. at 32–33 (Page ID # 87). Further, Cremonte interprets “mass mailings” as “a solicitation as opposed to a bona fide legal matter.” Id. at 112 (Page ID # 92). He also explained that “[i]f it is an attorney from out of the county, if it's an attorney where you get four, five pieces of mail, ‘legal mail,’ and there are four or five inmates getting them, those I would say are not legal mail” under the Jail's policies.¹ Id. at 30 (Page ID # 87). Nothing in the Jail's written policies state that “legal mail” to an inmate must be from an attorney of record in pending litigation; instead, this is a practice established by Cremonte. Id. at 101–103 (Page ID # 89–90). Nor do the Jail's written policies suggest that mail from an out-of-county attorney to “four or five” inmates cannot be “bona-fide legal mail.”

The Jail's postcard policy is the subject of the Prison Legal News v. Bezotte et al., litigation. In that case, the plaintiff argues that the Jail's postcard policy unconstitutionally restricts correspondence to prisoners and provides inadequate due-process protections to senders of mail. Prison Legal News v. Bezotte et al., No. 11–cv–13460, R. 1 (Comp. at 1–2) (Page ID # 1–2). The district court in that case granted the ACLU leave to file an amicus curiae brief relating to the constitutionality of the Jail's postcard policy.

Because of the Jail's postcard policy, the ACLU also mailed twenty-five letters in envelopes to individually named inmates at the Jail. R. 1 (Comp. at 9) (Page ID # 9). The envelopes were conspicuously marked “legal mail,” and the outside of the envelopes included an attorney's name, the attorney's Michigan bar number, and the ACLU's logo and address. Id. The letters inside the envelope were again marked “legal mail,” included ACLU letterhead, and were signed by the attorney whose name was on the envelope. Id. The letters expressed concern with the constitutionality of the Jail's postcard policy and offered to meet with inmates, upon request, to provide legal assistance regarding the issue. Id. Specifically, the letter stated:

The American Civil Liberties Union of Michigan (ACLU) is investigating the Livingston County Jail's troubling “postcard only” policy for inmate mail, which we believe to be unconstitutional.

In order to learn more about this policy and its effects on inmates and their families, we wish to meet with individuals who may be interested in challenging this policy in court.The purpose of this letter is to find out if you are interested in meeting with an ACLU attorney, or someone who works under the supervision of an ACLU attorney, for the purpose of obtaining legal advice or assistance regarding the Livingston County Jail's postcard-only mail policy. If you are, please fill out the enclosed form and return it to me in the enclosed envelope as soon as possible.

Unfortunately, it is extremely unlikely that we will be able to help you with any other legal issues you may have. Furthermore, it may turn out that we are ultimately unable to represent you in this matter. By filling out the form below, you would be requesting a meeting with an ACLU attorney in order to seek legal advice or discuss the possibility of legal representation.

R. 1–8 (Comp. Ex. F, Feb. 19, 2014 Letter) (Page ID # 81) (emphasis in original). The letters included a form for inmates to fill out and return to the ACLU if they wished a meeting with an ACLU attorney. R. 1 (Comp. at 9) (Page ID # 9).

Although the Jail received the letters, the ACLU did not receive responses from the inmates or notification from the Jail that the letters were not delivered to the inmates. Id. at 10 (Page ID # 10). After sending the letters, the ACLU learned of Cremonte's testimony in the Prison Legal News case noted above, in which Cremonte testified that the Jail does not deliver mail unless the mail was sent by an inmate's “attorney of record” in an ongoing case; the Jail does not deliver legal mail from an attorney from outside the county who writes to four or five inmates; and the Jail does not deliver legal mail if Jail officials determine that the letter is a “mass mailing.” Id. Based on this testimony, the ACLU believes that the letters were not delivered. Id. at 11 (Page ID # 11). The ACLU also learned that one of the letters was addressed to an inmate who no longer resides at the Jail, but the Jail did not return the mail to the ACLU; instead, the Jail opened the letter and read its contents, sent a copy to the Jail's attorneys, and published the letter on PACER in the Prison Legal News case. Id. at 12 (Page ID # 12).

B. Procedural Background

Based on this, the ACLU filed a verified complaint initiating this case against Defendants Livingston County, Livingston County Sheriff Bob Bezotte (official capacity), and Livingston County Jail Administrator Tom Cremonte (official and individual capacities). The ACLU alleges that the Defendants violated the First Amendment by blocking delivery of the letters and by reading the...