Swain v. Mohr et al
Filing
32
Memorandum of Opinion and Order For the reasons set forth herein, Plaintiff's Motion for Temporary Restraining Order (ECF No. 19 ) is denied. Judge Benita Y. Pearson on 3/17/2015. (JLG)
PEARSON, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
SEAN SWAIN,
Plaintiff,
v.
GARY C. MOHR, et al.,
Defendants.
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CASE NO. 4:14cv2074
JUDGE BENITA Y. PEARSON
MEMORANDUM OF OPINION AND
ORDER [Resolving ECF No. 19]
The within matter came on for hearing upon Plaintiffs’ Motion for Temporary
Restraining Order (ECF No. 19).
After notice to the parties, the Court held a hearing on the motion. The Court has been
advised, having reviewed the record, the parties’ briefs, and the applicable law. The Court has
also considered the oral arguments of counsel.
Four factors are important in determining whether a temporary restraining order is
appropriate: (1) the likelihood of the plaintiff’s success on the merits, (2) whether the injunction
will save the plaintiff from irreparable injury, (3) whether the injunction would harm others, and
(4) whether the public interest would be served by the injunction. In re DeLorean Motor Co.,
755 F.2d 1223, 1228 (6th Cir. 1985). The consideration given these factors is a flexible one and
the factors are not prerequisites to be met, but must be balanced. Id. at 1229. In balancing the
four considerations applicable to temporary restraining order decisions, the Court holds that
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equitable relief is not appropriate.1
Plaintiff is unlikely to succeed on the merits of his claim that Defendants retaliated
against his exercise of free speech by restricting his access to Video Visitations. To successfully
state a First Amendment retaliation claim under 42 U.S.C. § 1983, a plaintiff must show that (1)
he engaged in protected conduct, (2) an adverse action was taken against the plaintiff that would
deter a person of ordinary firmness from continuing to engage in that conduct, and (3) there is a
causal connection between the protected conduct and the adverse action. King v. Zamiara, 680
F.3d 686, 694 (6th Cir. 2012) (quoting Thaddeus-X v. Blatter, 175 F.3d 378, 394 (6th Cir.
1999)). In order to show causation, a plaintiff must show both (1) that the adverse action was
proximately caused by an individual defendant’s conduct, and (2) the conduct was “motivated in
substantial part by a desire to punish an individual for exercise of a constitutional right.” Id. at
695 (quoting Thaddeus-X, 175 F.3d at 386).
Neither Plaintiff’s identification of Defendant Tibbals’ license plate in his website nor his
“campaign pledge” to burn down the Ohio Statehouse are protected conduct. Contrary to
Plaintiff’s assertions, neither comment is the type of political speech for which the First
Amendment offers protection, robust or otherwise. See McIntyre v. Ohio Elections Comm’n, 514
U.S. 334, 346–47 (1995) (discussing the longstanding principle that political speech is at the core
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During oral arguments, Plaintiff withdrew his request for a temporary restraining order
as based on any alleged nefarious purpose for the diagnosis that caused his transfer to the
infirmary and the medical treatment Plaintiff received while there. Accordingly, the Order will
focus on Plaintiff’s allegations that he lost Video Visitation privileges in response to two
comments he had made in articles posted to his personal website.
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of First Amendment protection). Amplifying sensitive identifying information of an Ohio
Department of Rehabilitation and Correction official, or promising destructive action of a
government facility, is different from the right to criticize public officials. See Glasson v. City of
Louisville, 518 F.2d 899, 904 (6th Cir. 1975) (“The right of an American citizen to criticize
public officials and policies and to advocate peacefully ideas for change is ‘the central meaning
of the First Amendment.’” (quoting New York Times v. Sullivan, 376 U.S. 254, 273 (1964)))
(emphasis added). Regardless of how Plaintiff has expressed himself, be it through emails, inperson conversation, or Video Visitations, his incendiary speech does not fall within the ambit of
the First Amendment’s protection. Nor can Plaintiff show causation. Plaintiff argues that the
fact that he is the only inmate in the Ohio prison system without access to Video Visitations is
indicative of retaliatory motive. Uniqueness, without more, is not evidence of retaliation. The
singular treatment Plaintiff complains of is equally reflective of the unique security threats he
poses to ODRC. Without a showing of protected conduct or causation, Plaintiff cannot
demonstrate a likelihood of success on the merits of his First Amendment retaliation claim.
Plaintiff has also failed to demonstrate irreparable harm caused by Defendants’ decision
to limit Plaintiff’s access to Video Visitations. Plaintiff concedes the restriction on his use of
Video Visitations is the only restriction that Defendants had imposed on his ability to
communicate with people outside of prison. ECF No. 30 at 3. Plaintiff may still receive visitors,
place phone calls through JPay, and use mail privileges unhindered by Defendants’ current
restriction. Id. Inmates do not have a constitutional right to any specific manner of
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communication. See Washington v. Reno, 35 F.3d 1093, 1100 (6th Cir. 1994) (stating that
inmates do not have a right to unlimited telephone use); Bristow v. Amber, 2012 WL 1758570, at
*2 (S.D. Ohio May 16, 2012), report and recommendation adopted, 2012 WL 1963577 (S.D.
Ohio May 31, 2012) (collecting cases in which courts rejected the argument that the First
Amendment requires prison officials to provide inmates with access to email communication);
see also Holloway v. Magness, 2011 WL 204891, at *7 (E.D. Ark. Jan. 21, 2011), aff’d, 666 F.3d
1076 (8th Cir. 2012) (holding that the First Amendment does not require “that the government
provide telephones, videoconferencing, email, or any of the other marvelous forms of technology
that allow instantaneous communication across geographical distances”). Plaintiff may have
been restricted from using a desirable method of communication, but the law does not require
Defendants to provide inmates with their preferred mode of communication. Irreparable injury
has not been shown.
An injunction would harm others in this case. The relief sought by Plaintiff hampers
Defendants’ day-to-day operations of correctional facilities. Prison officials monitor other forms
of inmate communication, including regular mail, in-person visits, phone calls, and electronic
mail. An injunction would undermine Defendants’ ability to perform a similar screening for
Plaintiff’s Video Visitations, which could in turn pose a threat to the security of the correctional
institutions, inmates, or correctional employees. See Bell v. Wolfish, 441 U.S. 520, 547–48
(1979) (recognizing that courts should give deference to a prison administrator’s judgment that a
regulation is “to preserve internal order and discipline and to maintain institutional security”).
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The injunction’s consequence could also create a “ripple effect” harming other inmates. Plaintiff
is not the only inmate who benefits from Video Visitations. If ODRC determines that the
injunction hinders its ability to provide Video Visitations while performing an adequate screen
for security threats, and eliminates Video Visitations as a result, the other inmates who would
utilize Video Visitations would be harmed by its elimination. See Turner v. Safley, 482 U.S. 78,
92 (1987) (deferring to correctional officials’ expertise in matters which involve a tradeoff
between an inmate’s asserted right and the liberty and safety cost to others). In either event, the
injunction would cause harm to another party.
The public interest would not be served by the injunction. Plaintiff’s argument that the
public has an interest in hearing his speech is significantly outweighed by the public’s interests in
maintaining operational state correctional facilities. See Blair v. Loomis, 1 F. Supp. 2d 769, 773
(N.D. Ohio 1998) (holding that the public’s interest “in a safe and orderly prison system”
outweighs an inmate’s interest in spousal visitation rights when corrections officials denied
plaintiff’s wife visitation privileges when she falsified information on her visitor application).
What little informational value the public derives from the dissemination of a warden’s license
plate—a dubious proposition at best—is severely offset by the potential ramifications of the
dissemination. Widely dissemination identifying information of an ODRC employee aids those
of a mind to perform badly and threatens the ability of the state to provide safety to its employees
operating correctional facilities.
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Taken together, the factors weighs against imposing a temporary restraining order against
Defendants. Plaintiff’s Motion for Temporary Restraining Order (ECF No. 19) is denied.
IT IS SO ORDERED.
March 17, 2015
Date
/s/ Benita Y. Pearson
Benita Y. Pearson
United States District Judge
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