Ivey et al v Johnston

Filing 43

ORDER: IT IS HEREBY ORDERED that: 1. The Report and Recommendation of Magistrate Judge 40 is ADOPTED; and 2. Plaintiffs' Motion for Preliminary Injunction 11 is DENIED. (Written Opinion) LET JUDGMENT BE ENTERED ACCORDINGLY. Signed by The Hon. Paul A. Magnuson on 11/05/2018. (LLM)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Christopher Ivey and Eugene Banks,

Civ. No. 18-1429 (PAM/DTS)

Plaintiffs,
v.

ORDER

Nancy Johnston,
Defendant.

This matter is before the court on the October 15, 2018, Report and
Recommendation (“R&R”) of United States Magistrate Judge David T. Schultz. (Docket
No. 40.) The R&R recommended that Plaintiffs’ Motion for Preliminary Injunction be
denied. Plaintiffs filed timely objections to the R&R.
The Court must conduct a de novo review of any portion of the R&R to which
specific objections are made. 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b); D. Minn.
LR 72.2(b). Based on that de novo review, and for the reasons set forth below, the Court
overrules Plaintiffs’ objections and adopts the R&R.
Plaintiffs are civilly committed residents of the Minnesota Sex Offender Program
(“MSOP”). They claim that MSOP policies which completely restrict residents’ internet
access and partially restrict their television access violate their First Amendment free
speech and voting rights under the Minnesota and United States Constitutions. Plaintiffs
desire access to the internet and additional television channels so that they may become
“informed voters.”

Plaintiffs request a mandatory preliminary injunction requiring

MSOP to grant them access to these websites and televisions before the November 6,

2018, general election. A preliminary injunction is already an extraordinary remedy, but
the burden becomes even higher when a party requests a mandatory preliminary
injunction, requiring an alteration of the status quo. See Sanborn Mfg. Co. v. Campbell
Hausfeld/Scott Fetzer Co., 997 F.2d 484, 486 (8th Cir. 1993); see also Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873, 879 (9th Cir. 2009).
The R&R concluded that Plaintiffs had failed to satisfy the required factors for a
preliminary injunction, namely a likelihood of success on the merits and a demonstration
that irreparable injury will occur in the absence of an injunction.
Plaintiffs raise three objections to the R&R. First, they argue that the R&R failed
to account for the inadequacy of phone and mail as a medium to obtain political
information, and failed to consider the excessive nature of a ban on all internet access.
They claim that these restrictions violate their free speech rights. However, the existence
of more convenient mediums of information does not mean that Plaintiffs are likely to
succeed on the merits. As stated in the R&R, courts in this District have applied a
modified version of the test announced by the Supreme Court in Turner v. Safley, 482
U.S. 78 (1987) when considering constitutional claims of a civilly committed person.
“Turner places the burden on Plaintiffs to show, among other things, that a challenged
policy lacks a ‘valid rational connection’ to a legitimate government interest and that the
challengers lack ‘an alternative means of exercising [their] constitutional right.’” Ortiz v.
Fort Dodge Corr. Facility, 368 F.3d 1024, 1026 (8th Cir. 2004). MSOP officials state
that the internet ban and television-channel restrictions serve to protect minors and ensure
that residents are not exposed to stimuli that may harm their rehabilitation efforts. (See
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Hébert Aff. (Docket No. 34) ¶¶ 4-6.) This is certainly a legitimate government interest,
and the policy and interest share a valid rational connection. Plaintiffs also have not
contested that they have an alternate means of accessing political information. Plaintiffs
have access to mail, telephone, newspapers, magazines, radio, and some television
channels. (Def.’s Opp’n Mem. (Docket No. 33) at 11.) Because political information is
readily available in these mediums, Plaintiffs have an “adequate alternative” for
informing themselves.
Plaintiffs argue that the complete ban on internet usage is excessive, and that the
technology exists to allow them access to certain websites while restricting their access to
others. However, the fact remains that Plaintiffs are considered “sexually dangerous
persons,” which has led to their confinement. (Id. at 1.) Such individuals have liberty
interests “considerably less than those held by members of free society.” Senty-Haugen
v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006). Additionally, as Plaintiffs concede, the
means used to further the government interest at issue need not be the least restrictive to
achieve that interest. (See Pl’s Obj. Mem (Docket No. 42) at 5.) Plaintiffs have failed to
demonstrate that the MSOP policy violates the Turner standard, and therefore they are
not likely to succeed on the merits of their free-speech claims.
Second, Plaintiffs argue that the R&R erred by holding that the “right to be
informed politically” is not a right protected by the Constitution, and that the MSOP
policy does not violate Plaintiffs’ right to vote. Plaintiffs seem to argue that the right to
be an informed voter is part of the right to vote. However, the cases Plaintiffs cite in
support of this proposition either fail to assert what Plaintiffs claim or involve the right to
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cast a vote. Plaintiffs do not argue that they are denied the right to cast a vote, and in fact
they have voted routinely and have been involved in political processes in the past. (See
Def.’s Opp’n Mem. at 2.) In any event, Plaintiffs cannot show that any “right to be
informed politically” has been violated; Plaintiffs have access to sufficient information to
inform themselves.
Third, Plaintiffs argue that the R&R erred by failing to appropriately apply the
Supreme Court’s holding in Packingham v. North Carolina, 137 S. Ct. 1730 (2017);
Plaintiffs argue that the holdings in Packingham and similar cases show that they are
likely to succeed on the merits. However, as stated in the R&R, Packingham and related
cases Plaintiffs cite are distinguishable. The statute at issue in Packingham prevented all
registered sex offenders in the state of North Carolina from accessing certain social
media cites, including individuals “no longer subject to the supervision of the criminal
justice system.” Packingham, 137 S. Ct. at 1737. Plaintiffs are in confinement, and are
therefore subject to different standards; Packingham does not apply.
Accordingly, IT IS HEREBY ORDERED that:
1. The R&R (Docket No. 40) is ADOPTED; and
2. Plaintiffs’ Motion for Preliminary Injunction (Docket No. 11) is DENIED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: November 5, 2018

s/ Paul A. Magnuson
Paul A. Magnuson
United States District Court Judge

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