Professional Documents
Culture Documents
2d 864
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).
2
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.").
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))).
4
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)).
6
For the reasons set forth above, the district court's denial of the defendant's
motion for summary judgment is AFFIRMED.
10
The majority concludes that the plaintiff, a prisoner, has standing to assert the
10
The majority concludes that the plaintiff, a prisoner, has standing to assert the
alleged First Amendment rights of corrections employees. Although the courts
have done much to democratize our prisons, I am not aware of any case that has
gone so far as to give a prisoner the rights sought here. I would find that the
plaintiff has no standing to base a claim on the First Amendment rights of third
persons, especially prison guards. Moreover, I would find that the Department
of Corrections' policy at issue here does not violate the First Amendment rights
of Corrections' employees because the policy regulates employment-related
speech that is not a matter of public concern. I would also find that the policy
being challenged here is reasonably related to legitimate penological objectives
and is not unconstitutional. I therefore respectfully dissent.
11
I. Standing.
12
13
[I]ndividual
employee recommendations to the Parole Board in behalf of inmates
must end. It not only violates the principal of chain of command, but may in fact
compromise individual employees. Should there ever be the occasion for
recommendation other than in the normal parole review process, employees should
forward it to the Warden for his endorsement.
14
As the majority notes, a plaintiff must establish standing in order to satisfy the
"case or controversy" requirement of Article III of the Constitution. The law of
Article III standing is "built on a single basic idea--the idea of separation of
powers." Allen v. Wright, 468 U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556
(1984). The Court stated: "The requirement of standing ... has a core component
derived directly from the constitution. A plaintiff must allege a personal injury
fairly traceable to the defendant's conduct and likely to be redressed by the
requested relief." Id. at 751, 104 S.Ct. at 3324. The Allen Court also noted that
the standing doctrine "embraces several judicially self imposed limits on the
exercise of federal jurisdiction, such as the general prohibition on a litigant's
raising another person's legal rights, the rule barring adjudication of generalized
grievances more appropriately addressed in the representative branches, and the
requirement that a plaintiff's complaint fall within the zone of interests
protected by the law invoked." Id. Thus, as the majority notes, there are two
The Allen Court recognized that standing doctrine incorporates concepts that
are not easily defined. In discussing standing, the Court noted:[T]he standing
inquiry requires careful judicial examination of a complaint's allegations to
ascertain whether the particular plaintiff is entitled to an adjudication of the
particular claim asserted.
16
Allen, 468 U.S. at 752, 104 S.Ct. at 3325. The plaintiff here is an inmate in a
Georgia prison. He is attempting to challenge a Georgia Department of
Corrections policy that regulates how DOC employees are to submit
recommendations concerning parole to the Georgia Board of Pardons and
Paroles. The plaintiff's carefully crafted complaint does not allege that this
policy affects any legally protected right of his own. He does not contend that
the DOC's policy deprives him of a liberty interest without due process of law.
Rather, his sole assertion is that the policy violates the First Amendment rights
of the employees of the Department of Corrections.
17
18
considerations is the principle that the federal courts should not become
unnecessarily involved in prison administration. In Turner v. Safley, 482 U.S.
78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), the Supreme Court carefully set
forth a standard of review designed to balance the interests of society and those
of prisoners. The Court stated:
19
[W]hen
a prison regulation impinges on inmates' constitutional rights, the regulation
is valid if it is reasonably related to legitimate penological interests. In our view,
such a standard is necessary if "prison administrators ..., and not the courts, [are] to
make the difficult judgments concerning institutional operations." Jones v. North
Carolina Prisoners' Union, 433 U.S. at 128, 53 L.Ed.2d 629, 97 S.Ct. 2532 [2539] [
(1977) ]. Subjecting the day-to-day judgments of prison officials to an inflexible
strict scrutiny analysis would seriously hamper their ability to anticipate security
problems and to adopt innovative solutions to the intractable problems of prison
administration. The rule would also distort the decisionmaking process, for every
administrative judgment would be subject to the possibility that some court
somewhere would conclude that it had a less restrictive way of solving the problem
at hand. Courts inevitably would become the primary arbiters of what constitutes the
best solution to every administrative problem, thereby "unnecessarily perpetuat[ing]
the involvement of the federal courts in affairs of prison administration." Procunier
v. Martinez, 416 U.S. at 407, 40 L.Ed.2d 224, 94 S.Ct. 1800 [1808] 71 Ohio Ops 2d
139 [ (1974) ].
20
Turner, 482 U.S. at 89, 107 S.Ct. at 2261. The Court recognized that federal
courts must take cognizance of claims affecting the fundamental rights of
prisoners, but the Court cautioned that "[a] second principle identified in
Martinez ... is that 'courts are ill equipped to deal with the increasingly urgent
problems of prison administration and reform." Id. at 84, 107 S.Ct. at 2259. Cf.
Washington v. Harper, --- U.S. ----, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990)
("We made quite clear that the standard of review we adopted in Turner applies
to all circumstances in which the needs of prison administration implicate
constitutional rights.")
21
The courts have particular reason to be cautious when the claim before the
court involves a challenge affecting the administration of a state's parole review
process. In Greenholtz v. Inmates of the Nebraska Penal and Correctional
Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979), the Supreme
Court rejected an argument that the Due Process Clause applied to all parole
determinations. The Court stated:
22
There
is no constitutional or inherent right of a convicted person to be conditionally
released before the expiration of a valid sentence. The natural desire of an individual
24
25
These decisions concerning prisons and parole are relevant to the issue of
standing for several reasons. First, the plaintiff's claim that he has suffered a
"distinct and palpable injury" is called into question by the decisions
concerning inmate challenges to parole procedures. Greenholtz and its progeny
must be the foundation for determining what interest, if any, an inmate has in
the procedures adopted by a state for making parole determinations. Those
decisions define the extent of an inmate's constitutionally protected interest in
his parole determination. I do not think an inmate can claim to be "injured" by
restrictions on direct parole recommendations if he has no right to have such
recommendations made to the parole board. Yet it is far from clear whether the
plaintiff in this case has such a right. See footnote 1, supra. He clearly has not
demonstrated that he has a liberty interest in parole. If the state is in fact
depriving the plaintiff of a liberty interest without due process of law by
restricting direct parole recommendations, the plaintiff can assert his own rights
A second reason for not finding standing here is that we should be hesitant to
interfere in the administrative functions of the executive branch when the
plaintiff does not seek to redress his own rights but seeks to challenge
regulations on behalf of others not before the court. See Allen v. Wright, 468
U.S. 737, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984) ("When transported into the
Art. III context, that principle, grounded as it is in the idea of separation of
powers, counsels against recognizing standing in a case brought, not to enforce
specific legal obligations whose violation works a direct harm, but to seek a
restructuring of the apparatus established by the Executive Branch to fulfill its
legal duties. The Constitution, after all, assigns to the Executive Branch, and
not to the Judicial Branch, the duty to 'take Care that the Laws be faithfully
executed.' "). Clearly, the administration of a prison and the regulation of
corrections employees are matters entrusted to the executive and legislative
branches. A proper respect for these functions dictates that we not allow a
prisoner to challenge the regulation of a prison when there is no allegation that
the prisoner's rights are being impinged upon. Cf. Turner v. Safley, 482 U.S.
78, 85, 107 S.Ct. 2254, 2259, 96 L.Ed.2d 64 (1987) ("Prison administration is
... a task that has been committed to the responsibility of [the legislative and
executive] branches, and separation of powers concerns counsel a policy of
judicial restraint.") See also Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827,
36 L.Ed.2d 439 (1973) ("It is difficult to imagine an activity in which a State
has a stronger interest, or one that is more intricately bound up with state laws,
regulations, and procedures, than the administration of its prisons.").
27
A third factor to consider here is that the plaintiff's claimed interest in the free
speech rights of the prison guards is attenuated and speculative. In his
Supplemental Brief on Standing, the plaintiff stated that his "chances for early
release from prison are directly affected by the policies at issue," id. at 5, but
such a belief is sheer speculation in light of the authority of the Parole Board.
Cf. Leeke v. Timmerman, 454 U.S. 83, 86-87, 102 S.Ct. 69, 70-71, 70 L.Ed.2d
65 (1981). Moreover, the plaintiff's claimed injury is not tethered to any
specific parole hearing or determination. In the absence of a particular parole
hearing or determination on the plaintiff's suitability for parole, the plaintiff's
interest in parole procedures is that of an unaffected bystander. Cf. Whitmore v.
Arkansas, 495 U.S. ----, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990) (To have
standing, the plaintiff's alleged injury must be "concrete in both a qualitative
and temporal sense."). There is no indication in the record of what parole
procedures are available to the plaintiff or whether he has made an attempt to
bring this issue to the attention of the Parole Board. Nor is there a clear
indication in the record concerning what information the Parole Board requests
from the DOC or how the DOC gathers that information.3
28
I think the exercise of jurisdiction in this case is flatly inconsistent with the
principle of separation of powers and the notion that we should exercise the
judicial power only when necessary. The majority concludes that because the
allegations here concern the First Amendment, society's interests in free speech
override all prudential limitations on standing. The mere invocation of the First
Amendment, however, does not mean we should disregard prudential concerns.
In Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97 S.Ct. 2532, 53
L.Ed.2d 629 (1977), the Court stated:
31
Prisons,
it is obvious, differ in numerous respects from free society. They, to begin
with, are populated, involuntarily, by people who have been found to have violated
one or more of the criminal laws established by society for its orderly governance. In
seeking a "mutual accommodation between institutional needs and objectives [of
prisons] and the provisions of the Constitution that are of general application," this
Court has repeatedly recognized the need for major restrictions on a prisoner's rights.
These restrictions have applied as well where First Amendment values were
implicated.
32
Jones, 433 U.S. at 129-30, 97 S.Ct. at 2539-40 [citations omitted]; see also id.
at 132, 97 S.Ct. at 2541 ("First Amendment associational rights ... likewise
The Supreme Court has been careful to set a standard for the protection of
prisoners' constitutional rights. The standard is designed to protect those rights
not incompatible with a prisoner's status--including the right to petition the
government for redress of grievances, protection against racial discrimination,
the protection of due process of law, and to a limited extent, the right to
exercise the prisoner's own First Amendment rights. When prison regulations
encroach upon the rights of a prisoner, the prisoner may bring an action and
assert his own rights under 42 U.S.C. Sec. 1983 or 28 U.S.C. Sec. 2254. But I
find no authority for extending to a prisoner the right to assert the First
Amendment rights of those whose duty it is to restrain and confine him, and, by
asserting those rights, mount a challenge to the administration of a prison. I
would dismiss the case for lack of standing.
34
35
an employee. See Kurtz, 855 F.2d at 727. I think this factor is significant in the
instant case, because the evaluation of an inmate's suitability for parole is
intrinsically one of the duties of a prison guard. The guard naturally is assigned
the task of monitoring the inmate's behavior and evaluating and reporting the
inmate's comportment with regard to institutional regulations. As such, I do not
see how any evaluation of an inmate that a guard makes can be one other than
in the course of the guard's official duties. This is not speech on a matter of
public concern; it is speech that is a part of the employee's job performance.
When the speech itself is part of the employee's duties, it reflects on the
employee's competence to perform his or her job. Cf. Koch v. City of
Hutchinson, 847 F.2d 1436, 1442 (10th Cir.1988). Considered in context, this
speech cannot be divorced from the performance of the employee's duties, and
is therefore concerned with internal office functions rather than public
concerns. I would dismiss the case because the speech involved in this case is
not a matter of public concern.
36
37
Even if the speech at issue here is on a matter of public concern, I would find
that the DOC's policy is reasonably related to legitimate penological interests
and outweighs any right of the guards to make direct recommendations to the
Parole Board. Although the defendants did not raise the issue in their motion to
dismiss,4 the magistrate concluded that the DOC's policy "is not justified by
important security interests." Mag.Rep. at 6. The magistrate found that the
defendants had made no showing that the recommendations could cause
disrespect for authority among staff or inmates, or that the recommendations
contained confidential information, or that they would be publicized outside of
the parole hearing. Id.
38
Given the fact that the majority finds that the plaintiff has standing, the case as
it comes before us involves a challenge by a prisoner to an administrative
regulation of a prison. As such, we should review the case under the standard
of Turner v. Safley, 482 U.S. 78, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987), which
ensures that administrative decisions of prison officials are accorded
appropriate deference by the courts. Turner stated that "when a prison
regulation impinges on inmates' constitutional rights, the regulation is valid if it
is reasonably related to legitimate penological interests." Turner, 482 U.S. at
89, 107 S.Ct. at 2261. The Supreme Court recently stated:
39 earlier determination to adopt this standard of review was based upon the need
Our
to reconcile our longstanding adherence to the principle that inmates retain at least
some constitutional rights despite incarceration with the recognition that prison
Washington v. Harper, --- U.S. ----, 110 S.Ct. 1028, 108 L.Ed.2d 178 (1990).
41
The policy being challenged by the plaintiff in this case states in part:
42
[I]ndividual
employee recommendations to the Parole Board in behalf of inmates
must end. It not only violates the chain of command, but may in fact compromise
individual employees. Should there ever be the occasion for recommendation other
than in the normal parole review process, employees should forward it to the
Warden for his endorsement....
43
The policy shows on its face that one of its purposes is to eliminate the possible
compromise of guards. A requirement that parole recommendations pass
through the chain of command certainly appears to be a reasonable measure to
avoid such a situation. There is clearly a potential for corruption in the
relationship between guard and inmate and this potential goes unchecked when
a guard is in a position to do favors for an inmate without the knowledge of
prison supervisors. Cf. Brown v. Glines, 444 U.S. 348, 356, 100 S.Ct. 594, 600,
62 L.Ed.2d 540 (1980) ("Without the opportunity to review materials before
they are dispersed throughout his base, a military commander could not avert
possible disruptions among his troops") and Jones, 433 U.S. at 134, 97 S.Ct. at
2542 ("A prison may be no more easily converted into a public forum than a
military base.") The magistrate below dismissed any such reasoning, declaring:
"Prison staff members simply have nothing to gain or lose from the parole of an
inmate, even a 'favorite' inmate...." Mag.Rep. at 4. To say the least, this
unfounded conclusion gives no deference whatsoever to the informed discretion
of prison officials, nor does it give appropriate recognition to "the peculiar and
restrictive circumstances of penal confinement." Turner, 482 U.S. at 86, 107
S.Ct. at 2260 (citing Jones v. North Carolina Prisoners' Union, 433 U.S. 119, 97
S.Ct. 2532, 53 L.Ed.2d 629 (1977)). Applying the standard of review set forth
in Turner, I would find that the magistrate erred in requiring a more extensive
showing by the defendants as to the need for the regulation of unsupervised
parole recommendations. The prison does not have to produce witnesses and
documents demonstrating that it has an interest in maintaining discipline and
preventing corruption between inmates and guards.5 Cf. Jones, 433 U.S. at 132,
97 S.Ct. at 2541. (The interest in preserving order and authority in the prisons
is self-evident; it is enough to say that the prison has not been shown to be
wrong in its regulations relating to prison security) and id. at 135, 97 S.Ct. at
2543 ("Since a prison is most emphatically not a 'public forum,' [the]
reasonable beliefs of appellants are sufficient.... The District Court's further
requirement of a demonstrable showing that [a prisoner's union] was in fact
harmful is inconsistent with the deference federal courts should pay to the
informed discretion of prison officials."). I would find that the DOC's policy,
which requires that parole recommendations be submitted to the Warden for his
endorsement, is reasonably related to legitimate security interests and is not
unconstitutional.
Honorable Wesley E. Brown, Senior U.S. District Judge for the District of
Kansas, sitting by designation
In Sultenfuss v. Snow, 894 F.2d 1277 (11th Cir.1990), this court left open the
possibility that Georgia inmates have a liberty interest in parole. The Sultenfuss
court reversed a finding that a due process challenge by Georgia inmates
concerning their parole was frivolous under 28 U.S.C. Sec. 1915(d). Id. at
1279. The court found that the plaintiffs' claim that they had a liberty interest in
parole presented an arguable question of law so as to preclude Sec. 1915(d)
dismissal. The court based its decision on regulations passed by the Georgia
Parole Board since the Slocum decision. The court expressed no opinion on the
merits of the plaintiffs' argument, but found that the legal issue should at least
be addressed by the lower court
The defendants moved to dismiss the complaint for failure to state a claim. The
basis of the motion was that the speech at issue was not related to a matter of
public concern and therefore did not violate any First Amendment rights. The
magistrate treated the motion as a motion for summary judgment
Although the defendants did not certify the question of legitimate security
interests in the petition for interlocutory appeal, the acceptance of the petition
confers broad jurisdiction on this court to review all of the district court's order.
See e.g., Ducre v. Executive Officers of Halter Marine, Inc., 752 F.2d 976, 983
n. 16 (5th Cir.1985) (Appellate court may address all issues material to the
order and is not limited to considerations of the "controlling question.")
5
The Supreme Court noted in Jones that "[t]he informed discretion of prison
officials that there is a potential for danger may be sufficient for limiting rights
even though this showing might be 'unimpressive if ... submitted as justification
for governmental restriction of personal communication among members of the
general public.' " Jones, 433 U.S. at 133 n. 9, 97 S.Ct. at 2541 n. 9