Evans v. Vare, No. 3:05-CV-3CR-RAM.

• Court: U.S. Court of Appeals — Third Circuit
• Writing for the Court: Reed
• Citation: Evans v. Vare, 402 F.Supp.2d 1188 (D. Nev. 2005)
• Decision Date: 18 November 2005
• Docket Number: No. 3:05-CV-3CR-RAM.
• Parties: Donald York EVANS and John Witherow, Plaintiffs, v. Lenard VARE, Rosemary Seals, Kelly Balenger, and Does 1-X, Defendants.

402 F.Supp.2d 1188

Donald York EVANS and John Witherow, Plaintiffs, v. Lenard VARE, Rosemary Seals, Kelly Balenger, and Does 1-X, Defendants.

No. 3:05-CV-3CR-RAM.

United States District Court, D. Nevada.

November 18, 2005.

COPYRIGHT MATERIAL OMITTED

Donald Evans and John Witherow: Robert R. Hager, Hager & Hearne, Reno, NV, for Plaintiffs.

Lenard Vare, Rosemary Seals, Kelly Balenger: Daniel Wong , Nevada Attorney General's Office, Carson City, NV, for Defendants.

ORDER

REED, District Judge.

I. Procedural Background

On June 2, 2005, Plaintiffs Donald York Evans and John Witherow ("Plaintiffs") filed a Complaint (# 2) alleging violations of their First and Fourteenth Amendment rights by Defendant Prison Officials Lenard Vare, Rosemary Seals, and Kelly Balenger ("Defendants"). On June 15, 2005, Plaintiffs filed a First Amended Complaint (# 8) and a First Amended Motion for Preliminary Injunction (# 9). Defendants opposed (# 14) on July 18, 2005, and Plaintiffs replied (# 16) to the opposition on August 10, 2005. An evidentiary hearing was held on October 27, 2005, and we now rule on the motion (# 9).

For the reasons stated below, Plaintiffs' motion will be granted on the basis set forth in this order.

II. Factual Background

Plaintiff Witherow is incarcerated in the State of Nevada. Plaintiff Evans is Witherow's attorney and friend. Witherow has engaged in compensated paralegal work for Evans and other attorneys in the past, but claims he has not done so since 1997. The two plaintiffs have a long relationship of correspondence regarding civil rights issues pertaining to Witherow's own case and to greater prisoner civil rights issues in general.

In 1999, Evans wrote a letter to Witherow stating he wanted to employ him for some paralegal work. (Def.Opp.Ex. J.) Witherow applied for permission to operate a business pursuant to a newly adopted statute in Nevada, N.R.S. 209.4615. The warden at that time, who is not a party to this lawsuit, denied the request without explanation. (Def.Opp.Ex. L.) The two plaintiffs then continued their correspondence regarding civil rights.

At the hearing, evidence was presented that from 2001 until 2004, Evans deposited $413 into Witherow's account. In April of 2004, Evans attempted to deposit $100 into Witherow's prison account. (Def. Opp. Ex. O & P.) Defendants believed the money was compensation for business activities, and prevented its deposit in Witherows' account. Witherow claims that the money sent to him from Evans is similar to that sent from other friends and family, and is not compensation for business activities. (Def.Opp.Ex. S.)

In May of 2004, Defendants began censoring various public record documents sent by Evans to Witherow. (Pl.Mot.Ex. B.) On November 23, 2004, Defendant Vare sent a letter to Witherow stating he would be prohibiting future correspondence between Witherow and Evans "involving legal work and cases, other than [Witherow's] own personal legal matters." The stated reasons for his decision were:

1. [Witherow has] admitted ... that Mr. Evans and [he] have engaged in a business enterprise in the past.

2. [Witherow was] denied permission to engage in a business relationship with Mr. Evans in 1999 by then director, Bob Bayer.

3. [Witherow is] presently being sent documents related to civil rights cases as well as other legal documents for [his] review and opinion by Mr. Evans.

4. Mr. Evans, by [Witherow's] own admission, sends money to [Witherow's] prison account.

(Def. Opp. Ex. T. (formatting altered).)

According to prison policy, all mail stamped "privileged correspondence" is opened by the law librarian and scanned for contraband, but not read, in the presence of the inmate recipient.¹ Pursuant to the policy delineated by Vare in the above letter, documents involving legal work and cases other than Witherow's own personal legal matters are treated by the law librarian as contraband. Since at least November of 2004, Defendants have repeatedly denied Witherow access to correspondence from Evans when that correspondence contained court orders with the names of parties other than Witherow's.

Plaintiffs now move for a preliminary injunction "enjoining, restraining and prohibiting Defendants ... from restricting, prohibiting, or refusing to deliver Plaintiff Evans' communications to and from [Plaintiff] Witherow regarding various civil right[s] issues, court actions, legal work in progress, or any criminal or civil cases." (Pl. Mot. at 1.)

III. Discussion

A party seeking a preliminary injunction must meet one of two tests in the Ninth Circuit. Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1319 (9th Cir.1994). The traditional test requires a plaintiff to show that:

1. [he] will suffer irreparable injury if injunctive relief is not granted;

2. [he] will probably prevail on the merits;

3. in balancing the equities, the [defendant] will not be harmed more than the [plaintiff] is helped by the injunction; and

4. granting the injunction is in the public interest.

Id. (formatting altered).

In the alternative, a court may issue a preliminary injunction if the plaintiff shows either:

1. "a combination of probable success on the merits and the possibility of irreparable injury;" or

2. "that serious questions are raised, and the balance of hardships tips sharply in his favor."

Id. (formatting altered).

Although phrased as such, the alternative test is less an either/or formulation as it is a type of sliding scale. Its two prongs represent "`extremes of a single continuum,' rather than two separate tests." Sun Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir.1999) (quoting Benda v. Grand Lodge of Int'l Ass'n of Machinists & Aerospace Workers, 584 F.2d 308, 315 (9th Cir.1978)). That is, the more the balance of hardships tips in favor of the plaintiff, the less probability of success must be demonstrated. Walczak v. EPL Prolong, Inc., 198 F.3d 725, 731 (9th Cir.1999).

Whichever test is applied, a preliminary injunction should only be granted if the movant does not have an adequate remedy at law. Stanley, 13 F.3d at 1320 (citing Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 506-07, n. 8, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959)). A preliminary injunction is an "extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Mazurek v. Armstrong, 520 U.S. 968, 972, 117 S.Ct. 1865, 138 L.Ed.2d 162 (1997) (quoting 11A Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2948 (2d ed.1995)). "The cases best suited to preliminary relief are those in which the important facts are undisputed, and the parties simply disagree about what the legal consequences are of those facts." Remlinger v. State of Nev., 896 F.Supp. 1012, 1015 (D.Nev.1995).

A. Irreparable Injury

Plaintiffs allege irreparable injury to their First Amendment rights resulting from Defendants' blanket prohibition of all legal mail perceived by Defendants as not directly pertaining to Witherow's case. The First Amendment rights of both the writer and the intended reader are impinged when correspondence is censored by prison officials. Procunier v. Martinez, 416 U.S. 396, 408-409, 94 S.Ct. 1800, 40 L.Ed.2d 224, (1974), overruled on other grounds in Thornburgh v. Abbott, 490 U.S. 401, 109 S.Ct. 1874, 104 L.Ed.2d 459 (1989). Furthermore, the federal courts have "heightened concern" for protecting "legal mail," such as that between a prisoner and his attorney, and the prisoner's attendant right of access to the courts. Sallier v. Brooks, 343 F.3d 868, 874 (6th Cir.2003) (citing, e.g., Davis v. Goord, 320 F.3d 346, 351 (2nd Cir.2003)); Taylor v. Sterrett, 532 F.2d 462, 470-72 (5th Cir.1976). "The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (also finding "threatened" First Amendment rights to constitute irreparable injury). Thus, because Plaintiffs have alleged injury to their First Amendment and other constitutional rights, Plaintiffs have demonstrated the irreparable injury prong of the alternative preliminary injunction test.

B. Probable Success on the Merits

In order to justify the "extraordinary remedy" of a preliminary injunction, Plaintiffs must also demonstrate their probable success on the merits of their claims. The Ninth Circuit has held that prison policies may infringe Plaintiffs' First Amendment and Due Process rights to receive mail in general, if those policies are "reasonably related to legitimate penological interests." Prison Legal News v. Lehman, 397 F.3d 692, 699 (quoting Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987)). The Supreme Court, established the following four-factor "Turner" inquiry to determine whether a policy is reasonably related to a legitimate penological interest:

(1) whether the regulation is rationally related to a legitimate and neutral governmental objective,

(2) whether there are alternative avenues that remain open to the inmates to exercise the right,

(3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and

(4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.

Id. (formatting altered).

However, the Ninth Circuit has not addressed what impact, if any, that the heightened concern accorded to the protection of legal mail should have on this test. See, e.g., Taylor, 532 F.2d at 470 ("the right of access to the courts is afforded special protection"). Thus, in order to address this problem, we look to the reasoning of other circuits and district courts.

In 1971, finding that it would not "unnecessarily hamper prison administration to forbid prison authorities to delete material from, withhold, or refuse to...