Newsom v. Norris

• Decision Date: 19 October 1989
• Docket Number: No. 88-5071,88-5071
• Citation: 888 F.2d 371
• Parties: Ronald NEWSOM; Hasan Sharif; Eddie J. McMillan; and Donald Wolverton, Plaintiffs-Appellees, v. Steve NORRIS, Commissioner; Michael Dutton, Warden; and David Hindman, Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 371

888 F.2d 371

Ronald NEWSOM; Hasan Sharif; Eddie J. McMillan; and Donald Wolverton, Plaintiffs-Appellees, v. Steve NORRIS, Commissioner; Michael Dutton, Warden; and David Hindman, Defendants-Appellants.

No. 88-5071.

United States Court of Appeals Sixth Circuit.

Argued Dec. 1, 1988.

Decided Oct. 19, 1989.

Ronald Newsom, Nashville, Tenn., pro se.

Neal McAlpin, Jr., argued, pro bono, Nashville, Tenn., for plaintiffs-appellees.

Hasan Sharif, Nashville, Tenn., pro se.

Eddie J. McMillan, Nashville, Tenn., pro se.

Donald Wolverton, Memphis, Tenn., pro se.

W.J. Michael Cody, Atty. Gen., Will Tomlinson, Stephanie Reevers, Asst. Attys. Gen., argued, Office of the Atty. Gen. of Tenn., Nashville, Tenn., for defendants-appellants.

Before KEITH and KRUPANSKY, Circuit Judges, and ZATKOFF, District Judge. ^*

KRUPANSKY, Circuit Judge.

This is an appeal from an order issued of the United States District Court for the Middle District of Tennessee granting preliminary injunctive relief in favor of Ronald Newsom (Newsom), Hasan Sharif (Sharif), Eddie McMillan (McMillan) and Donald Wolverton (Wolverton), the named appellees in this action (referred to collectively as the appellees), ¹ ordering the named appellants ² to reinstate the appellees to their former positions as inmate advisors. The appellants have appealed from the district court's order awarding preliminary injunctive relief.

The record disclosed the following facts. On January 28, 1987, Warden Dutton (Dutton) did not reappoint the appellees as inmate advisors, when their respective terms expired on February 15, 1987, pursuant to the authority vested in him by the Policies of the Department of Corrections, ³ which states in pertinent part that:

Inmate advisors will be appointed for a six month period the first two months being probationary. The inmate advisors may be reappointed at the discretion of the Warden or Associate Warden of Treatment upon recommendation of the classification committee and with the consent and continued interest of the inmate.

Policy 502.01, Section B-2 (emphasis added).

On March 9, 1987, the appellees commenced the instant action in the United States District Court for the Middle District of Tennessee, wherein they charged First Amendment free speech infringements alleging that appellants had conspired to and had deprived them of their constitutional rights to continue to serve as inmate advisors in violation of 42 U.S.C. Secs. 1981, 1983, 1985(3), and 1986, in retaliation for complaints which they had filed with the Warden criticizing the performance of David Hindman (Hindman) who was the Chairman of the Disciplinary Board. The appellees argued that historically wardens had routinely reappointed any inmate advisor who expressed a desire to continue service in the position and that, as a consequence of existing custom and practice, the warden had vested an implied property right in the appellees to continue indefinitely in the position of inmate advisors if they so elected. Appellees requested declaratory and injunctive relief, as well as monetary and punitive damages, from the appellants.

On March 9, 1987, the trial court referred the controversy to a Magistrate for initial consideration and for submission of Recommended Findings of Fact and Conclusions of Law. On March 26, 1987, the Magistrate conducted a hearing and thereafter, on May 28, 1987, issued his Report and Recommendation in which he concluded that the appellees had been denied reappointment in retaliation for written and oral complaints which had criticized Hindman's performance as Chairman of the Disciplinary Board. Having decided that the appellees had satisfied the requirements necessary to support a preliminary injunction, the Magistrate recommended that the appellants be ordered to reinstate the four named appellees to their positions as inmate advisors pending the resolution of the action on its merits.

Although the appellees' complaint had not requested class certification, nor alleged training inadequacies of the Disciplinary Board members or inmate advisors, the Magistrate sua sponte addressed these issues which had not been joined by the pleadings and the evidence and on his own initiative recommended that "the District Court require the appellants to file a plan with the Court for a training program to be conducted by lawyers for members of the prison disciplinary board and inmate advisors at the Tennessee State Penitentiary as soon as practicable and to allow only such trained persons to serve in these administrative proceeding [sic]." Magistrate's Report and Recommendation, at 15.

The appellants timely filed objections to the magistrate's proposed findings of fact, conclusions of law and recommendations to the district court. On December 7, 1987, however, the district court adopted in toto the magistrate's report and recommendations, after a de novo review of the appellees' request for preliminary injunctive relief. The appellants thereupon filed a timely appeal from the district court's order granting preliminary injunctive relief.

When examining the appellees' motion for preliminary injunctive relief, the district court was required to balance the following four factors:

1) Whether the plaintiff has shown a strong or substantial likelihood or probability of success on the merits;

2) Whether the plaintiff has shown irreparable injury;

3) Whether the issuance of a preliminary injunction would cause substantial harm to others;

4) Whether the public interest would be served by issuing a preliminary injunction.

Friendship Materials, Inc. v. Michigan Brick, Inc., 679 F.2d 100, 102 (6th Cir.1982). In reviewing the District Court's decision addressing appellees' request for injunctive relief, this court must determine if the district abused its discretion in acting as it did. Lowary & Wyatt v. Lexington Local Bd. of Educ., 854 F.2d 131, 134 (6th Cir.1988); Christy v. City of Ann Arbor, 824 F.2d 489, 490 (6th Cir.1987), cert. denied, 484 U.S. 1059, 108 S.Ct. 1013, 98 L.Ed.2d 978 (1988); Black Law Enforcement Officers Ass'n v. City of Akron, 824 F.2d 475, 479 (6th Cir.1987); Planned Parenthood Ass'n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1396 (6th Cir.1987). "A district court abuses its discretion when it relies on clearly erroneous findings of fact, or when it improperly applies the law or uses an erroneous legal standard." Christian Schmidt Brewing Co. v. G. Heileman Brewing Co., 753 F.2d 1354, 1356 (6th Cir.), cert. dismissed, 469 U.S. 1200, 105 S.Ct. 1155, 84 L.Ed.2d 309 (1985); accord Lowary & Wyatt, 854 F.2d at 134; Christy, 824 F.2d at 490-91; Black Law Officers Ass'n, 824 F.2d at 479. In the instant appeal, the appellants have contended that the district court erred in its factual conclusion that the appellees were likely to succeed on the merits of their claim, and in concluding that appellees would suffer irreparable harm should the injunctive relief be denied.

The appellants have urged that the appellees had no constitutionally protected property interest in continued employment as inmate advisors. The appellants are correct. Existing precedent confirms that "[t]he Constitution does not create a property or liberty interest in prison employment ... [and that] any such interest must be created by state law by 'language of an unmistakably mandatory character.' " Ingram v. Papalia, 804 F.2d 595, 596-97 (10th Cir.1986) (quoting Hewitt v. Helms, 459 U.S. 460, 471, 103 S.Ct. 864, 871, 74 L.Ed.2d 675 (1983)); see also Adams v. James, 784 F.2d 1077 (11th Cir.1986); Gibson v. McEvers, 631 F.2d 95 (7th Cir.1980); Altizer v. Paderick, 569 F.2d 812 (4th Cir.), cert. denied sub nom. Altizer v. Young, 435 U.S. 1009, 98 S.Ct. 1882, 56 L.Ed.2d 391 (1978). See generally Kentucky Dep't of Corrections v. Thompson, 490 U.S. ----, ----, 109 S.Ct. 1904, 1908, 104 L.Ed.2d 506 (1989); Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972).

In the case at bar, the appellees have failed to demonstrate that they had any cognizable property interest created under Tennessee law in continuing to serve as inmate advisors. The appellees have argued that longstanding custom and practice which provided that any prisoner who elected to continue serving as an inmate advisor would be reappointed to the position and that the expectation of reappointment constituted a property interest cognizable under the Constitution. The argument is less than persuasive.

To prove an "expectation" interest under state law, the appellees must demonstrate that there was a "mutually explicit understanding" between themselves and the appellants. Existing precedent has recognized that "prison officials' policy statements and other promulgations" can create constitutionally protected interests in favor of the prisoners. See, e.g., Kentucky Dep't of Corrections, 490 U.S. at ----, 109 S.Ct. at 1908-09; Beard v. Livesay, 798 F.2d 874, 876 (6th Cir.1986); Franklin v. Aycock, 795 F.2d 1253, 1260 (6th Cir.1986); Bills v. Henderson, 631 F.2d 1287, 1291 (6th Cir.1980). The official policy pronouncements enacted by the State of Tennessee at issue in the instant appeal clearly indicate that "inmate advisors may be reappointed at the discretion of the Warden." Policy 502.01, Section B-2 (emphasis added). Because these policy guidelines vested complete discretionary authority in the warden to appoint or reappoint inmate advisors, they did not serve to provide the appellees with a constitutionally protected interest.

The regulations at issue here, however, lack the requisite relevant mandatory language. They stop short of requiring that a particular result is to be reached upon a finding that the substantive predicates are met.... [T]he regulations are not worded in such a way that an inmate could reasonably expect to enforce them against the prison officials.

Kentucky Dep't of Corrections, 490 U.S. at ----, 109 S.Ct. at 1910-11 (footnotes omitted).

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