Keller v. Aki et al

Filing 31

ORDER denying 9 Plaintiff's motion for a preliminary injunction; denying as moot 13 Plaintiff's motion for an order to preserve evidence; and denying 22 Plaintiff's motion for an evidentiary hearing. See Order for details. Signed by Judge Sharon L. Gleason on 7/3/2024. (ANM, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA

THOMAS KELLAR,
Plaintiff,

Case No. 3:23-cv-00263-SLG

v.
KEITH AKI, et al.,
Defendants.1

ORDER RE PENDING MOTIONS
On April 30, 2024, the Court ordered service of the Complaint, and
Defendants have since appeared through counsel.2 Although the Court also
encouraged the parties to consider filing to a joint motion for a judicial settlement
conference,3 they have not done so. Instead, now pending before the Court are
three motions filed by self-represented prisoner Thomas Kellar (“Plaintiff”) in this
case.4 On June 6, 2024, Plaintiff filed a “Notice to Withdraw” his motion to preserve
the book at issue in this dispute, “Repressed Memories.”5 Therefore, the motion at

On November 29, 2023, Plaintiff filed a motion to correct the spelling of his name and to
substitute the true names of two defendants whose full names were previously unknown.
Docket 3.
1

2

Dockets 6, 8.

3

Docket 6 at 11.

Dockets 9 (Motion for Preliminary Injunction), 13 (Motion to Request Order to Preserve
Evidence), and 20 (Motion for Evidentiary Hearing).
4

5

Docket 24.

Docket 13 is DENIED as moot.6 The Court now addresses the remaining two
motions.
Motion for a Preliminary Injunction
On May 9, 2024, Plaintiff filed a motion for a preliminary injunction.7 Plaintiff
also filed a supporting memorandum and an affidavit.8 Defendants responded in
opposition on May 20, 2024, and included a copy of the first page of the withheld
book and a declaration from Superintendent Banachowicz.9 Defendants note that
the author of “Repressed Memories” explicitly disclaims using the book in any
context other than as part of a course of treatment guided by a mental health
professional.10 Defendants filed a Plaintiff filed a reply on June 6, 2024.11 On June
20, 2024, Defendants filed an errata their opposition that included the Amended
Declaration of Deirdre Banachowicz correcting factual errors in her original
declaration about Mr. Kellar’s eligibility for sex offender treatment.12

Litigants have a duty to preserve what they know or reasonably should know will be relevant
evidence in a pending lawsuit. See Fed. R. Civ. P. 37. Here, Defendant Banachowicz has
stated that the withheld book at issue in this case will be preserved during the course of this
litigation. See Docket 16 at 2.
6

7

Docket 9.

8

Dockets 10–11.

9

Dockets 15–16.

10

Docket 15 (referencing Docket 15-1).

11

Docket 19.

12

Docket 27, 27-1.

Case No. 3:23-cv-00263-SLG, Kellar v. Aki, et al.
Order re Pending Motions
Page 2 of 8

I.

Legal Standard

A preliminary injunction is an “extraordinary and drastic remedy” that is
never awarded as of right.13 In Winter v. Natural Resources Defense Council, Inc.,
the United States Supreme Court held that plaintiffs seeking preliminary injunctive
relief must establish that (1) they are likely to succeed on the merits; (2) they are
likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance
of equities tips in their favor; and (4) a preliminary injunction is in the public
interest.14 Following Winter, the Ninth Circuit addressed the first element—the
likelihood of success on the merits—and held that its “serious questions” approach
to preliminary injunctions was still valid “when applied as a part of the four-element
Winter test.”15 Under this approach, if a plaintiff shows “that there are ‘serious
questions going to the merits’—a lesser showing than likelihood of success on the
merits—then a preliminary injunction may still issue if the ‘balance of hardships
tips sharply in the plaintiff’s favor.’”16 Under either approach, when the government
is a party to the action, as is the case here, the last two elements—the balance of
hardships and consideration of the public interest—merge.17

13

Munaf v. Geren, 553 U.S. 674, 689–90 (2008) (citations omitted).

14

555 U.S. 7, 20 (2008).

15

All. for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131–32 (9th Cir. 2011).

Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (emphasis in original)
(quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)).
16

17

Nken v. Holder, 556 U.S. 418, 435 (2009).

Case No. 3:23-cv-00263-SLG, Kellar v. Aki, et al.
Order re Pending Motions
Page 3 of 8

In the context of prison litigation, a district court cannot give prospective
relief without meeting the requirements of the Prison Litigation Reform Act
(“PLRA”).18 The PLRA requires that any preliminary injunction sought “must be
narrowly drawn, extend no further than necessary to correct the harm the court
finds requires preliminary relief, and be the least intrusive means necessary to
correct that harm.”19 While “federal courts ‘must not shrink from their obligation to
enforce the constitutional rights of all persons, including prisoners,’”20 courts must
give “substantial weight to any adverse impact on public safety or the operation of
a criminal justice system caused by the preliminary relief” and respect principles
of comity in tailoring any relief.21 Thus, preliminary injunctive relief in this case, if
warranted, would be solely with respect to the one book at issue and would not
broadly preclude the Alaska Department of Corrections from applying or enforcing
its policy restricting inmates from receiving sexually explicit materials statewide.22

18

18 U.S.C. § 3626.

19

Id. § 3626(2).

Porretti v. Dzurenda, 11 F.4th 1037, 1047 (9th Cir. 2021) (quoting Brown v. Plata, 563 U.S.
493, 511 (2011)).
20

California v. Azar, 911 F.3d 558, 584 (9th Cir. 2018). See also Gilmore v. People of the State
of California, 220 F.3d 987, 998 (9th Cir. 2000) ("Section 3626(a) . . . operates simultaneously to
restrict the equity jurisdiction of federal courts and to protect the bargaining power of prison
administrators-no longer may courts grant or approve relief that binds prison administrators to
do more than the constitutional minimum.").
21

22

Cf. Docket 9-1 (Plaintiff’s Proposed Preliminary Injunction order).

Case No. 3:23-cv-00263-SLG, Kellar v. Aki, et al.
Order re Pending Motions
Page 4 of 8

“Courts asked to issue preliminary injunctions based on First Amendment
grounds face an inherent tension: the moving party bears the burden of showing
likely success on the merits . . . and yet within that merits determination the
government bears the burden of justifying its speech-restrictive law.”23 As Plaintiff
observes, the loss of First Amendment freedoms, for even minimal periods of time,
may itself constitute irreparable injury.24 However, prisoners’ First Amendment
rights are “necessarily limited by the fact of incarceration and may be curtailed in
order to achieve legitimate correctional goals or to maintain prison security.”25
When a prison regulation impinges on an inmate’s constitutional rights, the
regulation is constitutionally valid if it is reasonably related to legitimate penological
interests.26
II.

Discussion

Although the Court found sufficiently cognizable claims for this case to
proceed past the initial screening inquiry, it does not follow that Plaintiff has
demonstrated a likelihood of success on the merits. Federal courts have routinely
upheld regulations prohibiting inmates' receipt of mail containing sexually explicit

Cal. Chamber of Com. v. Council for Educ. & Rsch. on Toxics, 29 F.4th 468, 478 (9th Cir.
2022) (alteration in original) (quoting Thalheimer v. City of San Diego, 645 F.3d 1109, 1115 (9th
Cir. 2011)).
23

24

Elrod v. Burns, 427 U.S. 347, 373.

25

McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987).

26

Turner v. Safley, 482 U.S. 78, 89 (1987).

Case No. 3:23-cv-00263-SLG, Kellar v. Aki, et al.
Order re Pending Motions
Page 5 of 8

material as constitutional.27 But liberally construing the filings, Plaintiff has at least
shown “that there are ‘serious questions going to the merits’—a lesser showing
than likelihood of success on the merits—such that a preliminary injunction may
still issue if the ‘balance of hardships tips sharply in the plaintiff’s favor.’”28 But in
this case, balancing the potential short-term threat to Plaintiff's First Amendment
rights during the pendency of this case against DOC's interest in prohibiting the
admission of allegedly sexually explicit material into the general population at the
Palmer Correctional Center for purposes of security, rehabilitation, and safety, the
balance of equities does not favor issuance of a preliminary injunction. That
Plaintiff is not presently eligible for sex offender treatment at the facility does not
tip the balance of hardships sharply in his favor.
For these reasons, Plaintiff’s motion for a preliminary injunction at Docket 9
is DENIED.

See, e.g., Thornburgh v. Abbott, 490 U.S. 401 (1989) (upholding federal prison regulations
restricting sexually explicit material , deeming the “legitimacy” of the regulations’ purpose to be
“beyond question”); Bahrampour v. Lampert, 356 F.3d 969, 979 (9th Cir. 2004) (holding prison
officials may prohibit receipt of sexually explicit materials in light of concerns about preventing
the sexual harassment of prison guards and other inmates); Mauro v. Arpaio, 188 F.3d 1054,
1057–63 (9th Cir. 1999) (en banc) (upholding Arizona regulation prohibiting prisoners from
possessing “sexually explicit materials,” defined as “materials that show frontal nudity,” including
“personal photographs, drawings, and magazines and pictorials that show frontal nudity”); Frost
v. Symington, 197 F.3d 348, 357 (9th Cir. 1999) (affirming district court’s finding that the
regulation prohibiting receipt of sexually explicit images in the prison did not unconstitutionally
abridge the inmate's First Amendment rights); Grenning v. Klemme, 34 F.Supp.3d 1144, 1155
(E.D. Wash. 2014) (holding “no constitutional right is violated when prison staff refuse to
deliver sexually explicit materials to an inmate because it is reasonably related to penological
interests”).
27

Friends of the Wild Swan v. Weber, 767 F.3d 936, 942 (9th Cir. 2014) (emphasis in original)
(quoting Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013)).
28

Case No. 3:23-cv-00263-SLG, Kellar v. Aki, et al.
Order re Pending Motions
Page 6 of 8

Motion for an Evidentiary Hearing
On June 6, 2024, Plaintiff filed a motion for an evidentiary hearing.29
Defendants filed a response in opposition to the motion at Docket 28.
As set forth above, the Court has denied Plaintiff’s motion for a preliminary
injunction; an evidentiary hearing was not necessary to resolve that motion.
Accordingly, the Motion for an Evidentiary Hearing is DENIED.
IT IS THEREFORE ORDERED:
1.

Plaintiff’s motion for a preliminary injunction at Docket 9 is DENIED.

2.

Plaintiff’s motion for an order to preserve evidence at Docket 13 is

DENIED as moot, as the motion was withdrawn.
3.

Plaintiff’s motion for an evidentiary hearing at Docket 22 is DENIED.

4.

Self-represented litigants are expected to review and comply with the

Federal Rules of Civil Procedure, the Local Civil Rules, and all Court orders. 30
Failure to do so may result in the imposition of sanctions authorized by law,
including dismissal of this action.
5.

At all times, all parties shall keep the Court informed of any change of

address or phone number.

Such notice shall be titled “Notice of Change of

Address.” The Notice shall contain only information about the change of address,

29

Docket 22.

Federal Rules of Civil Procedure: https://www.uscourts.gov/rules-policies/current-rulespractice-procedure/federal-rules-civil-procedure; Alaska District Court’s Local Rules:
https://www.akd.uscourts.gov/court-info/local-rules-and-orders/local-rules.
30

Case No. 3:23-cv-00263-SLG, Kellar v. Aki, et al.
Order re Pending Motions
Page 7 of 8

and its effective date.31 The Notice shall not include requests for any other relief.
A Notice of Change of Address form, PS23, may be obtained from the Clerk of
Court, if needed. If a plaintiff fails to keep a current address on file with the Court,
that may result in a dismissal of the case without further notice.
DATED this 3rd day of July 2024, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

See Local Civil Rule 11.1(b) (requiring a notice of change of address to be filed, as “[s]elfrepresented parties must keep the court and other parties advised of the party’s current address
and telephone number”).
31

Case No. 3:23-cv-00263-SLG, Kellar v. Aki, et al.
Order re Pending Motions
Page 8 of 8