Outley v. Shinn et al

Filing 21

ORDER: The reference to the Magistrate Judge is withdrawn as to Plaintiff's Motion for Preliminary Injunction (Doc. 4 ). Plaintiff's Motion for Preliminary Injunction (Doc. 4 ) is denied. (See Order for details.) Signed by Senior Judge James A Teilborg on 6/3/21. (SST)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Michael Dewayne Outley, Jr.,

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Plaintiff,

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v.

No. CV 21-00084-PHX-JAT (JFM)

ORDER

David Shinn, et al.,

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Defendants.

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Plaintiff Michael Dewayne Outley, Jr., who is currently confined in the Red Rock

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Correctional Center (RRCC), filed a pro se civil rights Complaint pursuant to 42 U.S.C.

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§ 1983. (Doc. 1.) Before the Court is Plaintiff’s Motion for Preliminary Injunction

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(Doc. 4).

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I.

Background

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On screening under 28 U.S.C. § 1915A(a), the Court determined that Plaintiff stated

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a First Amendment claim against Defendants Shinn, the Director of the Arizona

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Department of Corrections (ADC), and Stolc, the Warden of RRCC, solely in their official

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capacities based on the ADC’s telephone policy, which is implemented at RRCC. (Doc.

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6.) The Court dismissed the remaining claims and Defendants. (Id.)

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II.

Motion for Preliminary Injunction

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In his Motion, Plaintiff asserts that his rights to “freedom of expression” and

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“intimate association” are burdened due to RRCC’s telephone policy requiring Plaintiff to

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get pre-approval prior to placing phone calls and only allowing Plaintiff to place two phone

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calls per day. (Doc. 4.) Plaintiff asserts that he does not possess addresses of his friends

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and family and will not be able to comply with RRCC’s policies, which “essentially bar[s]”

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him from placing calls. (Id. at 2.) Plaintiff asserts that he should be permitted to place

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“unlimited phone calls” and that RRCC will suffer “no type of safety or monetary

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hardships” if he is permitted to do so. (Id. at 4.)

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As relief, Plaintiff seeks an order: (1) preventing RRCC from requiring prior

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approval for Plaintiff to place calls; (2) preventing RRCC from limiting Plaintiff to two

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calls per day; and (3) preventing RRCC from limiting Plaintiff to receiving “secure

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packages” from parties on a pre-approved list.

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In response, Defendants assert that the telephone policy does not violate Plaintiff’s

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First Amendment rights because there are legitimate governmental interests for the policy

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and Plaintiff has alternative means of exercising his First Amendment rights.

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A.

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Defendants support their Response with the following facts. Red Rock Correctional

The Policy and Asserted Interests in the Policy

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Center (RRCC) is owned and operated by CoreCivic.

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Complaint, RRCC incarcerated ADC prisoners pursuant to a correctional services

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agreement between ADC and CoreCivic. (Doc. 13-1 at 2 ¶ 3.) RRCC is a medium-custody

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facility that houses approximately 1950 prisoners. (Id. at 3 ¶ 9.) Prisoners are afforded

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privileges consistent with their custody level classification and phase. (Id. ¶ 10.) A

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prisoner’s custody level classification is based on their security risk. (Id. ¶ 11.) The

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process for determining a prisoner’s custody level classification considers their behavior

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and other objective factors that are available and relevant, such as the risk the prisoner

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presents to the public, staff, and other prisoners. (Id.)

At all times relevant to the

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Prisoners classified as medium custody are those who represent a moderate risk to

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the public and staff. (Id. ¶ 12.) These prisoners are not permitted to work outside the

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secure perimeter of an institution and require controlled movement within the institution.

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(Id.)

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In addition to a prisoner’s custody level, prisoners are assigned phases through the

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Earned Incentive Program (“EIP”). (Id. at 4 ¶ 13.) The EIP is a three-phase system of

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graduated, earned incentives and sanctions to assist prisoners in learning and sustaining a

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responsible, pro-social lifestyle and to incorporate ethics and values into their everyday

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lives. (Id.) The EIP also enhances the safety and security of the facility by providing

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incentives to prisoners based on their positive behavior. (Id.)

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The third phase of the EIP affords prisoners the most privileges, the second phase

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affords prisoners moderate privileges, and the first phase affords prisoners the fewest

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privileges. (Id. ¶ 14.) EIP programming includes: academic and career and technical

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education; substance abuse and sex offender education and treatment; and self-

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improvement (e.g. cognitive restructuring and re-entry). (Id.) Prisoners receive EIP

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incentives to participate in the program based on the prisoner’s EIP phase level. (Id. ¶ 16.)

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These incentives include, but are not limited to: regular visitation, holiday visitation, and

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food visitation; the allowable amounts for telephone calls; and the allowable property and

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spending limitations for the store. (Id.)

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A medium-custody prisoner at Phase II receives two 15-minute calls per day. (Id.

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¶ 17.) A medium-custody prisoner at Phase III receives five 15-minute calls per day. (Id.)

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To receive the privilege of unlimited calls per day, a prisoner must be classified at the

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minimum custody level and achieve Phase III of the EIP. (Id.)

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Further, a medium-custody prisoner at Phase II may receive a Secure Package once

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every other month. (Id. at 5 ¶ 18.) A Secure Package is one that is ordered directly from

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an approved vendor and must comply with requirements for allowable and authorized

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property. (Id.) To receive the privilege of receiving one Secure Package a month, a

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prisoner must achieve Phase III of the EIP. (Id.)

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Department Order (DO) 915 is the ADC policy for Prisoner Telephone Calls. (Id.

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¶ 19.) RRCC follows and enforces DO 915 among the prisoner population. (Id.) Pursuant

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to DO 915, prisoners are afforded restricted access to telephones consistent with their

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security classification, their EIP phase, and within the physical limits of the institution. (Id.

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¶ 20.) The frequency of telephone calls for each prisoner varies depending on their security

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classification and phase in the EIP. (Id. ¶ 21.) Only approved individuals on a prisoner’s

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visitor list are authorized as recipients of prisoner telephone calls. (Id.)

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Telephone calls are limited to the same individuals (maximum of 20) approved for

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visitation. (Id. ¶ 23.) The visitor list is maintained in the prisoner’s visitation file. (Id. ¶

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24.) During processing, background checks on the individuals on the visitor list are

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conducted. (Id. ¶ 25.) The background checks include a review of the individual visitor’s

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criminal history and warrant checks. (Id.) Background checks take approximately 30 days

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to complete. (Id. ¶ 26.) A third-party vendor processes the background checks. (Id.)

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ADC asserts that the purpose of these background checks is to enhance the safety

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and security of the facility and to protect the general public against potential crime that

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might occur if there were no restrictions regarding the visitor list. (Id. at 6 ¶ 27.) Prior to

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approval, the accuracy of telephone numbers, the individuals, and the stated relationship is

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verified. (Id.)

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Although DO 915 generally requires prisoners to schedule personal telephone calls

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in advance using a sign-up request and based on the facility’s telephone call schedule, it

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also gives the Wardens and Deputy Wardens the discretion to develop telephone schedules

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that are conducive to the unit operational clock and the available telephones at their

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institution. (Id. ¶ 29.) At RRCC, prisoners are not required to schedule use of the

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telephones for personal telephone calls. (Id. ¶ 30.) RRCC houses 1950 prisoners on

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average (with a max capacity of 2000), and has approximately 200 telephones on site. (Id.)

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Of the 200 telephones, there are 6 telephones per dayroom. (Id.) Each dayroom houses a

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maximum of 60 prisoners. (Id.)

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When speaking to an approved individual on the telephone, the prisoner is permitted

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to speak to other members within that household as well. (Id. ¶ 31.) For example, if a

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prisoner’s parent is listed as approved and he/she has a conversation with their parent, they

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may speak to other members within their parent’s household. (Id.)

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In addition to the ability to communicate by telephone, prisoners may utilize

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traditional mail and the facility’s tablet messaging system, which allows for email

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communications with friends and family. (Id. ¶ 32.)

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Pursuant to the CARES Act, prisoners receive two free 15-minute calls per week.

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(Id. ¶ 33.) Plaintiff and all other prisoners permitted to use the telephone, may utilize their

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two free telephone calls per week by contacting an individual on their approved visitor/call

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list pursuant to the CARES Act. (Id. ¶ 36.)

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As of November 9, 2020, Plaintiff utilized his two free calls per week to call his

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father, who is on his approved visitor/call list. (Id. ¶ 37.) From November 9, 2020 to

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March 10, 2021, Plaintiff received 45 free calls. (Id. ¶ 38.)

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There is no limitation on the amount of mail a prisoner may receive regardless of

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custody, provided that the incoming mail meets requirements, does not violate policy, and

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the mail is not between the prisoner and individuals including, but not limited to, released

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offenders currently under community supervision (excluding immediate family members),

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minors that are not the prisoner’s natural or adopted child or minors that do not have

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parents’ or guardians’ prior written approval, and current or former department/private

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prison employees and/or current or former department volunteers (for a period of two

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years). (Id. ¶ 39.)

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Additionally, prisoners may communicate using the tablet messaging system

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available on the tablet that each eligible prisoner receives. (Id. ¶ 40.) Tablets are

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authorized for all ADC prisoners housed in the ADC or a contract facility, including

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RRCC, excluding prisoners under watch status, who are assigned to reception centers, have

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demonstrated destructive behavior involving a tablet or kiosk within the past 12 months,

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are not compliant with the integrated housing program, or who are assigned to detention

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units pending transfer to close custody management, restrictive housing, or enhanced

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security. (Id. at 8 ¶ 41.) Tablets enable prisoners to access several applications, including

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but not limited to: email application, which enables prisoners to send and receive photo

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attachments and video gram messages; ecards, a digital version of a greeting card, utilized

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for the exchange between friends and family and the prisoner; and video visitation. (Id. ¶

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42.)

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Prisoners can use the email and ecard applications to correspond with anyone. (Id.

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¶ 43.) Individuals with whom prisoners correspond using these applications do not need

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to undergo a background check or any other approval. (Id.) Prisoners are also not limited

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by the number of individuals they can correspond with, so long as the individual registers

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as an active customer of the vendor contracted to provide the service. (Id.)

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Plaintiff was admitted to RRCC on October 13, 2020. (Id. ¶ 44.) Plaintiff is a

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medium-custody prisoner at Phase II of the EIP. (Id. at 9 ¶ 45.) Therefore, he receives

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privileges afforded to Phase II prisoners, including the opportunity to make two telephone

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calls per day and to receive one secure package every other month. (Id.) Secure packages

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are packages sent from an approved vendor. (Id. ¶ 46.) Individuals on the prisoner’s

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approved visitor/call list may send the prisoner secure packages from approved vendors.

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(Id.) Secure packages may not be sent from a non-approved vendor. (Id.)

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Approved vendors are vendors that are specifically contracted with the facility for

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the ordering, processing, and sending of packages ordered by prisoners or their friends and

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family. (Id. ¶ 47.)

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To receive the maximum of five telephone calls per day, Plaintiff must achieve

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Phase III of the EIP. (Id. ¶ 48.) Phase III will grant him the privilege of five 15-minute

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calls per day. (Id.) To receive one secure package per month, Plaintiff must achieve Phase

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III of the EIP. (Id. ¶ 49.) Plaintiff has not yet completed the programs for graduation to

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Phase III, and is not participating in the programs. (Id. ¶ 50.) Although Plaintiff has not

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received secure packages since arriving at RRCC, the privilege is available to him. (Id. ¶

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51.) Further, his custody and EIP phase do not prevent him from communicating by

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telephone with individuals on his approved visitor list, or from using either traditional mail

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or the prisoner messaging system to correspond with anyone not on his approved visitor

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list. (Id.)

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Additionally, since arriving at RRCC on October 13, 2020, Plaintiff has not

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requested more than two individuals be added to his visitor/call list. (Id. at 10 ¶ 52.) The

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two individuals that Plaintiff requested be added to his visitor/call list have been approved.

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(Id. ¶ 53.) In addition to corresponding with his father on the telephone, Plaintiff utilizes

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the tablet messaging system to correspond with his friends and other family members

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regularly. (Id. ¶ 54.) He also has traditional mail available to him, and has utilized it to

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send non-legal mail. (Id.) For example, as of March 23, 2021, Plaintiff has utilized the

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tablet messaging system to send 375 emails and to receive 410 emails, including images.

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(Id. ¶ 55.) He corresponds with five individuals, including his family members. (Id.) Most

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of these individuals are not on his approved visitor/call list (as no prior approval is needed

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for email correspondence). (Id.)

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Individuals who have an extensive criminal history, are affiliated with a Security

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Threat Group (STG), or who are known to engage in criminal activity are not approved to

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be on the prisoner’s visitor call list. (Id. at 47 ¶ 29.) Prior to approval, the accuracy of

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telephone numbers, the individual, and the stated relationship are verified and the caller

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must give approval to receive calls from the prisoner. (Id. ¶ 31.) Defendants assert that

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conducting a background check on a potential caller promotes safety and security by

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preventing the prisoner from calling a victim, individuals with criminal histories, or

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individuals associated with a STG. (Id. ¶ 33.)

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B.

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“A preliminary injunction is ‘an extraordinary and drastic remedy, one that should

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not be granted unless the movant, by a clear showing, carries the burden of persuasion.’”

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Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520

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U.S. 968, 972 (1997) (per curiam)); see also Winter v. Natural Res. Def. Council, Inc., 555

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U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy

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never awarded as of right”). A plaintiff seeking a mandatory preliminary injunction must

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show that (1) the facts and law clearly favor the plaintiff, (2) he is likely to suffer irreparable

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harm without an injunction, (3) the balance of equities tips in his favor, and (4) an

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injunction is in the public interest. See Winter, 555 U.S. at 20; Comm. of Cent. Am.

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Refugees v. INS, 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted) (discussing the

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heightened burden when a mandatory preliminary injunction is sought).

Legal Standard

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The movant “has the burden of proof on each element of the test.” See Envtl.
Council of Sacramento v. Slater, 184 F. Supp. 2d 1016, 1027 (E.D. Cal. 2000).

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The Prison Litigation Reform Act imposes additional requirements on prisoner

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litigants who seek preliminary injunctive relief against prison officials and requires that

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any injunctive relief be narrowly drawn and the least intrusive means necessary to correct

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the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987,

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999 (9th Cir. 2000).

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C.

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In examining regulations that restrict communications with prisoners, a court must

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first determine whether any First Amendment interest is implicated. Hrdlicka v. Reniff,

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631 F.3d 1044, 1048-49 (9th Cir. 2011) (citing the two-step analysis in Thornburgh v.

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Abbott, 490 U.S. 401, 408 (1989)). If such an interest is implicated, the court must apply

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the four-factor Turner test to decide whether that interest gives rise to a protected First

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Amendment right. Hrdlick, 631 F.3d at 1048; Thornburgh, 490 U.S at 408.

Discussion

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The Ninth Circuit Court of Appeals has defined the First Amendment right at issue

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as the right to communicate with persons outside prison walls and has identified use of a

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telephone as a means of exercising this right. See Valdez v. Rosenbaum, 302 F.3d 1039,

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1048 (9th Cir.2002); Keenan v. Hall, 83 F.3d 1083, 1092 (9th Cir.1996), amended, 135

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F.3d 1318 (9th Cir. 1998); Strandberg v. City of Helena, 791 F.2d 744, 747 (9th Cir. 1986);

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see also Halvorsen v. Baird, 146 F.3d 680, 689 (9th Cir. 1998) (pretrial detainee).

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Having defined the constitutional right at issue, the Court next considers whether

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the restrictions on Plaintiff’s telephone usage violate the right. Valdez, 302 F.3d 1048-49.

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A prison regulation that impinges on a prisoner’s constitutional right “is valid if it is

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reasonably related to legitimate penological interests.” Turner v. Safely, 482 U.S. 78, 89

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(1987). In making the “reasonableness” inquiry, the Court considers the four factors

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articulated in Turner: (1) whether there is a valid, rational connection between the

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restriction and the legitimate governmental interest put forward to justify it; (2) whether

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there are alternative means of exercising the right; (3) whether accommodating the asserted

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constitutional right will have a significant negative impact on prison guards and other

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prisoners, and on the allocation of prison resources generally; and (4) whether there are

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obvious, easy alternatives to the restriction showing that it is an exaggerated response to

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prison concerns. Id. at 89-90.

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Regulations prohibiting certain communications are valid despite the unquestioned

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First Amendment interest if the Turner factors are met. Hrdlick, 631 F.3d at 1048;

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Thornburgh, 490 U.S at 408.

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With regard to Plaintiff’s argument that his First Amendment rights are violated if

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he is not given “unlimited calls per day,” Defendants have shown that they have

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rehabilitative and security-related reasons for limiting prisoners at Plaintiff’s custody level

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to two calls per day and that Plaintiff has alternative means of communicating with

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individuals outside of prison, including by email and regular mail. Plaintiff has made no

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showing that the limitation of phone calls per security level is an exaggerated response to

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prison concerns. On this record, the Court cannot conclude that the facts and law clearly

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favor Plaintiff as to his contention that his First Amendment rights will be violated unless

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he is allowed “unlimited” phone calls.

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Likewise, although Plaintiff argues that the Court should prevent RRCC from

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limiting Plaintiff to receiving “secure packages” from parties on a pre-approved list,

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Plaintiff simply makes the conclusory assertion that the policy regarding secure packages

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violates his constitutional rights, but the Court cannot conclude from this assertion that the

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facts and law clearly favor Plaintiff.

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Plaintiff presents some evidence suggesting that the policy requiring a background

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check on an individual before a prisoner can call that individual is an exaggerated response

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to the security concerns at issue. Plaintiff asserts that the following measures are already

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in place to allay the security concerns provided by Defendants: (1) all calls are recorded

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and monitored; (2) prior to placing a call, Plaintiff must state his full name and enter his

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ADC inmate number, (3) if an individual wants to accept a call from a prisoner, they must

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prepay for an account through ICS Solutions, and (4) any individual a prisoner calls is

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given the opportunity to deny the call or permanently block any calls before the call will

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go through. (Doc. 4 at 14.)

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Here, the question of whether background checks for phone calls are an exaggerated

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response to the identified security interests is necessarily fact specific, and there are

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questions going to the merits that counsel hesitation before the Court renders an opinion as

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to the application of the Turner factors. See, e.g., Beaulieu v. Ludeman, 690 F.3d 1017,

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1038–40 (8th Cir. 2012) (“In the prison context, we have concluded that ‘the extent of

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inmates’ First Amendment right to communicate with the outside world is a fact-intensive

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universe.’”) (quoting Holloway v. Magness, 666 F.3d 1076, 1079 (8th Cir. 2012); Pell v.

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Procunier, 417 U.S. 817, 827–28 (1974) (Considerations of security and rehabilitation “are

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peculiarly within the province and professional expertise of corrections officials, and, in

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the absence of substantial evidence in the record to indicate that the officials have

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exaggerated their response to these considerations, courts should ordinarily defer to their

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expert judgment in such matters. . . . [W]hen the issue involves a regulation limiting one

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of several means of communication by an inmate, the institutional objectives furthered by

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that regulation and the measure of judicial deference owed to corrections officials in their

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attempt to serve those interests are relevant in gauging the validity of the regulation.”).

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Here, Plaintiff has not met his burden of showing that the law and facts clearly favor

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his position. See Pell, 417 U.S. at 828 (holding that in light of “the alternative channels of

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communication that are open to prison inmates, a restriction on one manner in which

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prisoners can communicate with persons outside of prison was not unconstitutional as long

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as the restriction operates in a neutral fashion, without regard to the content of the

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expression, falls within the ‘appropriate rules and regulations’ to which ‘prisoners

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necessarily are subject,’ and does not abridge any First Amendment freedoms retained by

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prison inmates.”) (internal citations omitted).

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Moreover, the Court is not persuaded by Plaintiff’s argument that he suffers

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irreparable harm because he cannot obtain addresses of those individuals he wishes to call.

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There is no showing that this difficulty, which is particular to Plaintiff, would render an

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otherwise reasonable regulation unreasonable because of Plaintiff’s particular

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circumstances. See, e.g., Coronel v. State of Hawaii, Dep’t of Corr., 993 F.2d 882 (9th

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Cir. 1993) (where prisoner could not make calls to his wife during regular hours because

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she was at work and her employer would not let her accept personal calls and the regulation

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was reasonable under the Turner factors, Plaintiff’s particular situation with his wife did

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not render it unreasonable because “[p]rison officials are not required to set up and then

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shoot down ‘every conceivable alternative method of accommodating the constitutional

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complainant’”) (internal citation omitted).

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For the foregoing reasons, Plaintiff’s Motion for Preliminary Injunction will be

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denied.

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IT IS ORDERED:

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(1)

The reference to the Magistrate Judge is withdrawn as to Plaintiff’s Motion

for Preliminary Injunction (Doc. 4).

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(2)

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Dated this 3rd day of June, 2021.

Plaintiff’s Motion for Preliminary Injunction (Doc. 4) is denied.

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