Harris v. Evans, 89-8589

Decision Date10 January 1991
Docket NumberNo. 89-8589,89-8589
Citation920 F.2d 864
PartiesPhillip Wayne HARRIS, Plaintiff-Appellee, v. David EVANS, Commissioner, Lanson Newsome, Deputy Commissioner, A.G. Thomas, Warden, Defendants-Appellants.
CourtU.S. Court of Appeals — Eleventh Circuit

Terry L. Long, William B. Hill, and Daryl A. Robinson, Office of State Atty. Gen., Atlanta, Ga., for defendants-appellants.

James G. Middlebrooks, Smith, Helms, Mullis & Moore, Charlotte, N.C., for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before JOHNSON and CLARK, Circuit Judges, and BROWN *, Senior District Judge.


Plaintiff-appellee Phillip Wayne Harris filed this action pursuant to 42 U.S.C. Sec. 1983, alleging that the policy of the Georgia Department of Corrections that prohibits correctional employees from making parole recommendations directly to the Georgia State Board of Pardons and Paroles violates the First Amendment of the United States Constitution. In an order dated October 28, 1988, the district court granted Harris leave to proceed in forma pauperis and held that as an inmate in a Georgia prison subject to parole, Harris has standing to bring this action. R1-1. The defendants-appellants, the Commissioner and Deputy Commissioner of the Georgia Department of Corrections and the Warden of the Georgia State Prison at Reidsville, filed a motion for summary judgment, arguing that corrections employees do not have a First Amendment right to communicate directly with the state parole board regarding the parole of a particular inmate. The magistrate recommended that the motion for summary judgment be denied on the grounds that corrections employees do have such a First Amendment right, and the district court subsequently entered an order adopting the magistrate's recommendation. R1-10, 15. The district court subsequently certified this appeal pursuant to 28 U.S.C. Sec. 1292(b).

Although the appellants did not challenge Harris's standing to bring this action in the district court or in their initial briefs on appeal, we asked the parties to brief this threshold jurisdictional issue. Having reviewed their arguments, we are convinced that, in the context of this action, Harris does have standing to assert the First Amendment rights of corrections employees. The first hurdle in any standing inquiry is the limitation imposed by the "case or controversy" requirement of Article III of the Constitution. Secretary of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 954, 104 S.Ct. 2839, 2845, 81 L.Ed.2d 786 (1984); Singleton v. Wulff, 428 U.S. 106, 112, 96 S.Ct. 2868, 2873, 49 L.Ed.2d 826 (1976). To surmount this hurdle, the plaintiff must allege an actual or threatened injury which is fairly traceable to the challenged action and which is likely to be redressed by a favorable decision. Valley Forge Christian College v. Americans United For Separation of Church and State, Inc., 454 U.S. 464, 472, 102 S.Ct. 752, 758, 70 L.Ed.2d 700 (1982). In his pro se complaint, Harris alleges that he has asked corrections employees to write letters to the parole board on his behalf, but that the employees have told him that they are prohibited from doing so and fear termination if they violate the Department's policy. R1-2. His complaint, therefore, raises a facial allegation that he has been injured by the Department's policy because it has prevented employees from writing to the parole board on his behalf and implicitly shows that a favorable decision would redress his injury, as the employees would no longer hesitate to write on his behalf for fear of losing their jobs. We find this injury sufficiently "distinct and palpable" to satisfy the "case or controversy" requirement of Article III. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324, 82 L.Ed.2d 556 (1984); see, e.g., United States v. SCRAP, 412 U.S. 669, 689 n. 14, 93 S.Ct. 2405, 2417 n. 14, 37 L.Ed.2d 254 (1973) (Holding that an "identifiable trifle" is sufficient injury to establish standing); Saladin v. City of Milledgeville, 812 F.2d 687, 691 (11th Cir.1987) (Holding that "focus is on the qualitative nature of the injury, regardless of how small [it] may be.").

In addition to satisfying the standing limitations imposed by Article III, the plaintiff must also satisfy certain judicially created prudential limitations. One of these limitations is that plaintiffs "must generally assert [their] own legal rights and interests, and cannot rest [their] claim[s] to relief on the legal rights or interests of third parties." Warth v. Seldin, 422 U.S. 490, 499, 95 S.Ct. 2197, 2205, 45 L.Ed.2d 343 (1975). Harris's action violates this general prohibition against third-party standing, because he alleges that he has been injured not as a result of any infringement of his own rights, but as the result of the infringement of the First Amendment rights of corrections employees. However, in the context of allegations of violations of First Amendment rights, the Supreme Court has found that competing considerations may outweigh the prudential rationale against third-party standing. Munson, 467 U.S. at 956, 104 S.Ct. at 2846, 81 L.Ed.2d at 786. The Court has determined that the dangers of chilling free speech justify relaxing the prudential limitation against third-party standing. The Court explains that " '[l]itigants ... are permitted to challenge a statute not because their own rights of free expression are violated but because of a judicial prediction or assumption that the statute's very existence may cause others not before the court to refrain from constitutionally protected speech or expression.' " Virginia v. American Booksellers Ass'n., Inc., 484 U.S. 383, 392-93, 108 S.Ct. 636, 642, 98 L.Ed.2d 782 (1988) (citing Munson, 467 U.S. at 956-57, 104 S.Ct. at 2847, 81 L.Ed.2d at 786 (quoting Broadrick v. Oklahoma, 413 U.S. 601, 612, 93 S.Ct. 2908, 2916, 37 L.Ed.2d 830 (1973))).

Therefore, when a plaintiff challenges a statute on First Amendment grounds as being overly broad, the Court will allow a party "to assert the rights of another without regard to the ability of the other to assert his own claims...." Munson, 467 U.S. at 957, 104 S.Ct. at 2847, 81 L.Ed.2d at 786. Instead, the Court concerns itself only with whether the plaintiff satisfies the Article III limitation by alleging an injury-in-fact and whether the plaintiff "can be expected satisfactorily to frame the issues in the case." Id. at 958, 104 S.Ct. at 2847, 81 L.Ed.2d at 786. We find that Harris's personal interest in having favorable recommendations made to the parole board on his behalf gives him a strong interest in the outcome of this action such that he can be expected to pursue the issues in this case with an adversarial zeal equal to that which the corrections employees themselves would likely exhibit. We conclude, therefore, that there are no constitutional or prudential standing limitations that preclude Harris from bringing this action.

In the context of restrictions placed on the speech of government employees by their employers, the threshold question is whether the prohibited speech can fairly be characterized as constituting speech on a matter of public concern. Rankin v. McPherson, 483 U.S. 378, 384, 107 S.Ct. 2891, 2896-97, 97 L.Ed.2d 315 (1987); Connick v. Myers, 461 U.S. 138, 146, 103 S.Ct. 1684, 1690, 75 L.Ed.2d 708 (1983). "When employee expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community, government officials should enjoy wide latitude in managing their offices...." Connick, 461 U.S. at 146, 103 S.Ct. at 1690, 75 L.Ed.2d at 708. When a government employer seeks to regulate employee speech regarding matters of public concern, the courts' task is "to seek 'a balance between the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees.' " Connick, 461 U.S. at 142, 103 S.Ct. at 1687, 75 L.Ed.2d at 708 (quoting Pickering v. Board of Education, 391 U.S. 563, 568, 88 S.Ct. 1731, 1734-35, 20 L.Ed.2d 811 (1968)).

The Department of Corrections policy at issue prohibits corrections employees from communicating directly with the parole board. Employees may submit written communications to the warden "for his endorsement," after which they are forwarded to the parole board. R1-7-Exh. 1. The magistrate and the district court found that this policy suppresses employee speech on matters of public concern. On appeal the defendants argue that an employee's interest in making a recommendation to the parole board regarding a particular inmate is purely a personal matter. We disagree. As the magistrate noted, decisions made by parole boards regarding the release of convicted criminals into society are of great public concern. Citizens who comment on individual parole decisions are offering input on the working of the state's criminal justice system. The fact that the comments are directed to the merits of one particular inmate's case rather than to general policies of the parole board does not change their nature as comments on matters regarding what types of prisoners should, or should not, be paroled.

Because the restricted speech involves matters of public concern, Pickering requires us to balance the employee's interest in commenting on such matters against the government employer's interest efficient operation. Connick, 461 U.S. at 142, 103 S.Ct. at 1687, 75 L.Ed.2d at 708. The magistrate found that the defendants failed to present any evidence in support of their motion for summary judgment regarding their need, for reasons of security or otherwise, to restrict their employees from communicating directly with the parole board. The defendants do not appeal this finding, nor do they argue on appeal that their interests in...

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2 cases
  • Harris v. Evans
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • May 17, 1994
    ...but may in fact compromise individual employees.... Strict adherence to this policy is a requirement." See R1-7-Ex. 1.3 Harris v. Evans, 920 F.2d 864 (11th Cir.1991), vacated and reh'g en banc granted, 999 F.2d 1424 (11th Cir.1993).4 We note at the outset that standing cannot be waived and ......
  • Harris v. Evans, 89-8589
    • United States
    • U.S. Court of Appeals — Eleventh Circuit
    • August 23, 1993
1 books & journal articles
  • Constitutional Civil Law - Albert Sidney Johnson
    • United States
    • Mercer University School of Law Mercer Law Reviews No. 46-4, June 1995
    • Invalid date
    ...art. III. 88. Saladin v. City of Milledgeville, 812 F.2d 687, 690 (11th Cir. 1987). 89. Warth v. Seldin, 422 U.S. 490, 498 (1975). 90. 920 F.2d 864 (11th Cir. 1991), vacated and reh'g en banc granted, 999 F.2d 1424 (11th Cir. 1993). See Albert Sidney Johnson & Susan Cole Mullis, Constitutio......

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