American Civil Liberties Union Foundation et al v. Spartanburg County et al

Filing 47

ORDER RULING ON REPORT AND RECOMMENDATION 33 . The Respondents motion for a preliminary injunction (ECF No. 5) is DENIED. Signed by Honorable Timothy M Cain on 11/21/2017. (kric, )

IN THE UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH CAROLINA
SPARTANBURG DIVISION
American Civil Liberties Union Foundation,
American Civil Liberties Union Foundation of
South Carolina,

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)
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C/A No. 7:17-cv-01145-TMC
Plaintiffs,
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vs.
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ORDER
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Spartanburg County; Chuck Wright, in his
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official capacity as the Spartanburg County
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Sheriff; and Allen Freeman, in his official
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capacity as administrator of the Spartanburg
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County Detention Center,
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Defendants.
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__________________________________________)

This matter is before the court on Plaintiffs’ motion for a preliminary injunction (ECF No.
5). Plaintiffs seek relief pursuant to Title 42, United States Code, Section 1983. Pursuant to the
provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Civil Rule
73.02(B)(2)(d) (D.S.C.), the motion was referred to a magistrate judge. The magistrate judge filed
a Report and Recommendation (the “Report”) (ECF No. 33) recommending that this court deny
Plaintiff’s motion for a preliminary injunction. Plaintiff filed objections to the Report. (ECF No.
38).

The Report has no presumptive weight, and the responsibility to make a final determination

in this matter remains with this court. See Matthews v. Weber, 423 U.S. 261, 270–71 (1976). In
making that determination, the court is charged with conducting a de novo review of those portions
of the Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). Then, the court
may accept, reject, or modify the Report or recommit the matter to the magistrate judge. See id.

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However, the court need not conduct a de novo review when a party makes only “general and
conclusory objections that do not direct the court to a specific error in the magistrate’s proposed
findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In that case,
the court reviews the Report only for clear error. See Diamond v. Colonial Life and Accident Ins.
Co., 416 F.3d 310, 315 (4th Cir. 2005).
FACTS AND PROCEDURAL HISTORY
On December 1, 2016, Nusrat J. Choudhury, a senior staff attorney with the American
Civil Liberties Union Foundation (“ACLU”),1 contacted Major Neal Urch, the outgoing director
of the Spartanburg County Detention Facility (“SCDF”), to request permission for attorneys
working with the ACLU to come to SCDF to conduct inmate interviews. (ECF No. 5-1). Major
Urch redirected Ms. Choudhury to Defendant Freeman, who was taking over as administrator of
SCDF. Id. Plaintiffs allege that an attorney associated with their organization contacted Defendant
Freeman on December 2, 2016, by leaving a voicemail on his office phone and by sending him an
email. Id. at 4. In these messages, Plaintiffs requested permission for two ACLU attorneys to meet
with twenty-seven SCDF inmates during specific dates and times over a four-day period. Id.
Plaintiffs contend that the purpose of these interviews was to investigate the alleged violations of
the constitutional rights of inmates currently detained in SCDF. Id. Defendant Freeman responded
by email to Plaintiffs. Id. at 5. He instructed Plaintiffs that “[t]he only visit allowed would be those
of Attorneys th[at] represent Inmates” and asked if any of the ACLU attorneys represented any of
the inmates listed in the request. Id.
Ms. Choudhury subsequently sent a demand letter to Defendant Freeman, again requesting
permission to meet with SCDF inmates and alerting Defendant Freeman that SCDF’s policy

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The term “ACLU” will collectively refer to both Plaintiffs throughout this order.

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limiting visits with inmates to “attorneys already representing the inmates in criminal, civil, or
family court proceedings” was unconstitutional. Id. After Defendant Freeman did not respond to
the letter, Ms. Choudhury forwarded the letter to Defendant Wright, the Spartanburg County
Sheriff. Id. Later that day, Defendant Wright emailed Ms. Choudhury and denied her request. Id.
On both December 12 and December 13, 2016, three ACLU attorneys visited SCDF in order to
interview inmates, despite the denial of their request. Id. at 6. Each attorney showed the officer at
the front desk his driver’s license and Bar card in addition to the list of inmates he was there to
interview. Id. The officer told the attorneys where each inmate was located – either at the main
facility or at Annex 2, an off-site facility. Id. All three attorneys met with inmates at the main
facility, and then two of them met with inmates at Annex 2. Id. According to Plaintiffs, at no time
did the officer ask these attorneys if they represented the inmates with whom they were meeting.
Id.
On January 31, 2017, two ACLU attorneys and one ACLU intern went to SCDF to
interview inmates. Id. at 7. They provided the officer at the front desk with a list of inmates with
whom they wished to speak, and the officer identified each inmate’s location. Id. The attorneys
provided the officer with their driver licenses and Bar cards, and the intern gave the officer his
student ID badge. Id. According to Plaintiffs, the officer did not ask whether the attorneys
represented the inmates that they were visiting. Id. Because the facility was under construction,
the ACLU representatives were not required to go through a metal detector as they had done on
previous visits. Id. An officer arranged for the first inmate on the list to be brought to a room in
the booking area so that the attorneys could meet with him. Id. However, shortly after the meeting
began, this officer came into the room and asked whether the attorneys represented the inmates
with whom they were meeting. Id. at 8. The attorneys explained why they were interviewing the

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inmates and stated that they did not represent any of the inmates at the facility. Id. The officer
then told the attorneys that because they did not represent the inmates, they would have to leave.
Id.
The officer subsequently escorted the attorneys to Defendant Freeman’s office so that they
could speak with Defendant Freeman about the policy. Id. Defendant Freeman told them that
SCDF had a policy prohibiting attorneys from speaking with inmates in person unless the attorneys
could demonstrate that they have a prior attorney-client relationship with the inmates. Id.
In support of their reply to Defendants’ response in opposition to the motion for
preliminary injunction, Plaintiffs submitted the declaration of Clay Allen, the Public Defender for
the Seventh Judicial Circuit. (ECF No. 31-4). In his declaration, Mr. Allen stated that part of the
job of his office is to determine if eligible inmates facing charges in General Sessions court desire
to have an appointed attorney to represent them in their criminal cases. Id. He further stated that
he and his staff are routinely granted professional visits with new inmates in SCDF despite not
having a pre-existing attorney-client relationship with them. Id. Furthermore, Mr. Allen described
how he and his staff are regularly granted professional visits with new inmates that are facing
charges in Municipal and Magistrate Court, but only when those inmates request a meeting. Id.
Mr. Allen does remember one instance in which he was asked if he had an attorney-client
relationship with the inmate with which he was meeting; because he did not, he was asked to cut
the interview short. Id. Plaintiffs also submitted the declaration of Ricky Harris, a criminal defense
attorney in Spartanburg, who stated that he regularly conducts visits with clients in SCDF and has
never been required to affirm that he has an existing attorney-client relationship with an inmate
prior to visiting that inmate. (ECF No. 31-5).

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On May 2, 2017, Plaintiffs filed their Complaint (ECF No. 1) alleging that they have a First
Amendment right “to speak to inmates in person to inform them of their legal rights, investigate
civil rights violations, and discuss the possibility of legal representation in a confidential setting.”
(ECF No. 1 at 8–9). Plaintiffs allege that Defendants violated this right by prohibiting them from
speaking with inmates in person unless Plaintiffs could first demonstrate that they have a preexisting attorney-client relationship with the inmates. Id. at 9. Plaintiffs seek a declaratory
judgment that SCDF’s policy violates the First Amendment, a preliminary or permanent injunction
barring Defendants from enforcing the policy while the suit is pending, and reasonable attorney
fees and costs. Id. at 10.
On May 3, 2017, Plaintiffs filed the motion for a preliminary injunction that is now before
the court. (ECF No. 5). Pertinent to the motion and to this court’s analysis are two SCDF policies:
Policy 700.0 and Policy 702.0. Policy 700.0, entitled “Inmate Visitation,” states, in relevant part,
that “[p]rofessional visits will be allowed any day during the week during normal working hours
provided the visit does not jeopardize security or normal operation of the detention facility, e.g.,
the visitor arrives at a time when head count is being conducted, meals are being served, etc.”
(ECF No. 28-1). The policy defines a “Professional/Legal Visit” as “any visit between an inmate
and his/her attorney, legal representative, paralegal, law enforcement, or court official.” (ECF No.
28-1). The policy further provides for one non-contact “Social Visitation” per week, in which the
inmate selects a visiting period and contacts the visitor to advise them of their visitation slot. Id.
Policy 702.0, entitled “Inmate Mail Procedures” defines “Privileged Mail” as “mail sent to or
received from an attorney or member of the Bar . . . , and mail received from legal representative
groups or organizations, i.e. ACLU, etc. . . .” Id. The policy further provides that such mail will be
opened and inspected for contraband by an officer in the presence of the recipient inmate, but it

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will not be read by the officer. Id. While all other mail must be in postcard form, Privileged Mail
may be in letter-form and may be placed in an envelope to ensure the confidentiality of the content.
Id.
On June 9, 2017, Defendants filed a response in opposition to this motion. (ECF No. 28).
Plaintiffs filed a reply to this response on June 16, 2017. (ECF No. 31). The parties argued their
respective points at a hearing before the magistrate judge on June 22, 2017, and this transcript has
been made part of the record. (ECF No. 40). The magistrate judge subsequently filed his Report,
recommending that Plaintiffs’ motion be denied. (ECF No. 33). This motion is now ripe for review.
PRELIMINARY INJUNCTION STANDARD
A plaintiff seeking a preliminary injunction must establish all four of the following
elements: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable
harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4)
that an injunction is in the public interest. Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7,
20 (2008). Because a preliminary injunction is an “extraordinary remed[y] involving the exercise
of a very far-reaching power,” it is “to be granted only sparingly and in limited circumstances.”
MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal citations omitted).
Furthermore, when the administration of a state prison is being challenged, such relief should be
granted only in compelling circumstances because at this stage “only preliminary findings as to
plaintiffs’ likelihood of success on the merits have been made.” See Taylor v. Freeman, 34 F.3d
266, 269 (4th Cir. 1994).2

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Plaintiffs disagreed with the magistrate judge’s reliance on Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir. 1994),
because the case involved “sweeping intervention in the management” of the prison, whereas the Plaintiffs are
challenging one policy. However, this court finds that Taylor is persuasive in light of this Circuit’s and the Supreme
Court’s well-established history of being deferential to the administration of state prisons. See e.g. Thornburgh v.
Abbott, 490 U.S. 401, 408 (1989) (“this court has offered considerable deference to the determinations of prison
administrators who, in the interest of security, regulate the relations between prisoners and the outside world”); Pell
v. Procunier, 417 U.S. 817, 827 (1974) (. . . in the absence of substantial evidence in the record to indicate that the

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The purpose of a preliminary injunction is to “preserve the status quo” of the parties until
the claims can be fully and fairly investigated. See Meiselman v. Paramount Film Distrib. Co., 180
F.2d 94,97 (4th Cir. 1950). Therefore, such relief should only be granted when the plaintiff can
make a clear showing that he or she is likely to succeed on the merits of the claim and that he or
she has been irreparably harmed absent injunctive relief. The Real Truth About Obama, Inc. v.
Fed. Election Comm’n, 575 F.3d 342, 342, 346 – 47 (4th Cir. 2009), vacated on other grounds by
559 U.S. 1089 (2010), restated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per
curiam).
ANALYSIS
The magistrate judge ultimately determined that Plaintiffs failed to establish that they were
likely to succeed on the merits and that they had not demonstrated that they would suffer
irreparable harm absent an injunction. (ECF No. 33). Because the magistrate judge’s determination
as to those two elements was dispositive, he did not reach a decision on the remaining elements.
Id. Plaintiffs’ objections to the magistrate judge’s Report are largely exact copy-and-paste
reiterations of arguments made in Plaintiffs’ motion, which the magistrate judge has already
considered. (ECF No. 38 at 3–10). However, Plaintiffs do make the following objections to the
Report: (1) that the magistrate judge erred in finding that Plaintiffs are not likely to prevail on the
merits of their claim; (2) that the magistrate judge erred in “not applying the well-established strict
scrutiny standard for analyzing First Amendment claims by non-profit civil rights organizations”;
(3) that even if the Turner v. Safely, 482 U.S. 78 (1987), standard was proper that the magistrate
judge erred in “improperly discount[ing] or ignor[ing] evidence showing that Defendants . . .

officials have exaggerated their response to [security] considerations, courts should ordinarily defer to [the officers’]
expert judgment on such matters”); Wetzel v. Edwards, 635 F.2d 283, 288 (4th Cir. 1980) (“federal courts have an
additional reason to show deference to the decisions of prison authorities, where a state prison institution is involved”)
(internal citations omitted).

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selectively applied the policy to Plaintiffs”; and (4) that the magistrate judge erred in finding that
Plaintiffs “did not show they would suffer actual and imminent harm absent a preliminary
injunction.” (ECF No. 38). For the reasons stated below, these objections are overruled.
I. Plaintiffs have failed to show that they are likely to prevail on the merits of their claim.
Plaintiffs argue that they have a “well-established First Amendment right to speak in person
to Detention Center inmates to advise them of their constitutional rights and to recruit potential
plaintiffs for civil rights lawsuits.” (ECF No. 5 at 11). As the magistrate judge correctly pointed
out, Defendants do not challenge the fact that Plaintiffs generally have a right under the First
Amendment to pursue litigation as a form of speech. (ECF No. 33 at 6). However, Defendants
argue that this does not give Plaintiffs an unfettered right to have uninvited access to inmates for
face-to-face interviews. (ECF No. 28 at 5). The undersigned agrees.
In asserting this alleged right, Plaintiffs rely primarily on three cases: In re Primus, 436,
U.S. 412 (1978); National Association for Advancement of Colored People v. Button, 371 U.S.
415 (1963); and American Civil Liberties Union Fund of Michigan v. Livingston County, 796 F.3d
636 (6th Cir. 2015). While these cases recognize the specific right to solicit potential litigants as
being encompassed within the previously recognized right “to engage in association for the
advancement of beliefs and ideas” under the First Amendment, nowhere in these cases does it
specifically state that face-to-face contact must be available as the only avenue for such
solicitation. See In re Primus, 436, U.S. 412 (1978) (holding that the ACLU attorney’s letter came
“within the generous zone of First Amendment protection reserved for associational freedoms);
Nat’l Ass’n for Advancement of Colored People v. Button, 371 U.S. 415 (1963) (stating solicitation
of prospective litigants was within the right “to engage in association for the advancement of
beliefs and public ideas”); Am. Civil Liberties Union Fund of Michigan v. Livingston Cnty., 796

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F.3d 636 (6th Cir. 2015) ( stating that the ACLU letters to inmates should be privileged because
“an attorney must be able to communicate with an inmate in confidence before litigation and before
establishment of a formal attorney-client privilege in order to offer legal advice. . .”). Furthermore,
no case law has been provided to support Plaintiffs’ contention that they have a “fundamental
right” to conduct such in-person interviews with inmates, much less without the inmates’ consent
to such a meeting. Without such a right, there cannot be the infringement of the right. To the extent
that Plaintiffs specifically allege that they have “well-established First Amendment right to speak
in person to Detention Center inmates to advise them of their constitutional rights and to recruit
potential plaintiffs for civil rights lawsuits,” (ECF No. 5 at 11) (emphasis added), Plaintiffs could
not show a likelihood that they will ultimately prevail on the merits because no such right has been
established.
However, in analyzing the motion at hand, both parties and in turn, the magistrate judge,
focused more on the Plaintiffs’ alleged right to solicit clients, which as stated above, is protected
under the First Amendment. To the extent that Plaintiffs’ claim that Defendants infringed on this
right, the key question is what standard should be applied to determine whether a First Amendment
infringement occurred by Defendants’ implementation of the visitation policy.
A. The Turner test is applicable to this case.
The magistrate judge determined that for policy reasons, the Turner reasonableness inquiry
was the proper standard to apply, and this court agrees. However, because the determination of the
appropriate standard seems to be dispositive to this motion, this court has explored those policy
considerations further.
In Turner v. Safely, the Supreme Court addressed the constitutionality of prison regulations
in the context of inmate marriages and inmate-to-inmate correspondence. 482 U.S. 78 (1987). The

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Court held that “when a prison regulation impinges on inmates’ constitutional rights, the regulation
is valid if it is reasonably related to legitimate penological interests.” Id. at 89. The Court listed
“several factors [that] are relevant to the reasonableness” of a prison regulation: (1) whether the
regulation is rationally related to a legitimate and neutral government objective; (2) whether there
are alternative avenues to exercise the right that remain open to the inmates; (3) whether there is
an impact on the guards and other prisoners in accommodating the asserted right; and (4) whether
the existence of easy and obvious alternatives at de minimis cost on the pursuit of legitimate goals
indicates that the regulation is an exaggerated response by prison officials. Id. at 90. However, the
burden of proof falls on the prisoner to disprove the validity of the prison regulation at issue. See
id.; Overton v. Bazzetta, 539 U.S. 126, 132 (2003).
Plaintiffs argue that the court should reject the Defendants’ argument that the Turner
reasonableness test applies because Turner was focused solely on prisoners’ constitutional claims,
and Plaintiffs are not prisoners. However, this court agrees with the magistrate judge that the while
this distinction is important, the court “must look at the policy at issue in the context in which it is
presented – that of a county detention facility.” (ECF No. 33 at 8).
In determining that this less-strict standard should apply to assessing whether or not an
inmate’s rights have been infringed, the Turner Court stated that such a standard “is necessary if
prison administrators . . . and not the courts are to make the difficult judgments concerning
institutional operations.” Turner, 482 U.S. at 89 (internal citations omitted). The Court further
noted that “[s]ubjecting 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.” Id. Therefore, if the
court was forced to abide by the traditional strict scrutiny analysis in such situations, courts would

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be forced to “unnecessarily perpetuate the[ir] involvement . . . in affairs of prison administration.”
Id. (citing Procunier v. Martinez, 416 U.S. 396, 407 (1974), overruled on other grounds by
Thornburgh v. Abbott, 490 U.S. 401 (1989).
This practice of being deferential to the officials running a state prison facility is wellestablished by both the Supreme Court and the Fourth Circuit Court of Appeals. See e.g.
Thornburgh v. Abbott, 490 U.S. 401, 408 (1989) (“this court has offered considerable deference to
the determinations of prison administrators who, in the interest of security, regulate the relations
between prisoners and the outside world”); Pell v. Procunier, 417 U.S. 817, 827 (1974) (. . . in the
absence of substantial evidence in the record to indicate that the officials have exaggerated their
response to [security] considerations, courts should ordinarily defer to [the officers’] expert
judgment on such matters”); Wetzel v. Edwards, 635 F.2d 283, 288 (4th Cir. 1980) (“federal courts
have additional reason to show deference to the decisions of prison authorities, where a state prison
institution is involved”) (internal citations omitted). Specifically, in regards to face-to-face contact
with inmates, the Supreme Court has observed that when “the question involves the entry of people
into the prisons for face-to-face communication with inmates, it is obvious that institutional
considerations, such as security and related administrative problems, as well as the accepted and
legitimate policy objectives for the corrections system itself, require that some limitation be placed
on visitations,” and that in drawing the lines as to what is reasonable, “prison officials must be
accorded latitude.” Pell v. Procunier, 417 U.S. at 826. Therefore, courts “must accord substantial
deference to the professional judgment of prison administrators, who bear a significant
responsibility for defining the legitimate goals of a corrections system and for determining the
most appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003). This

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court believes that these policy considerations support the application of the Turner test to the
analysis of the pending motion in this case.
However, Plaintiffs argue that the Turner test should not apply because Plaintiffs are not
inmates and because the courts have not extended the test to apply to non-inmate claims. As the
magistrate judge pointed out in his Report, this is not entirely accurate. While it is true that
Plaintiffs are not inmates and that the holding in Turner was specifically tailored to the situation
of infringement of inmate rights, the Supreme Court did extend the Turner test and analysis to
non-inmate publishers asserting First Amendment rights in Thornburg v. Abbott, 490 U.S. 401
(1989). In Thornburg, the court stated that there was “no question that publishers who wish to
communicate with those who, through subscription, willingly seek their point of view have a
legitimate First Amendment interest in access to prisoners.” 490 U.S. at 408. The court focused on
which standard of review should apply to prison regulations that limited those publishers’ access.
Id. In its analysis, the court noted that
[a]ccess [to the prison] is essential to lawyers and legal assistants representing their
prisoner clients, to journalists seeking information about prisoner conditions, and
to families and friends of prisoners who seek to sustain relationships with them. All
of these claims to prison access undoubtedly are legitimate; yet prison officials may
well conclude that certain proposed interactions, though seemingly innocuous to
laymen, have potentially significant implications for the order and security of the
prison. Acknowledging the expertise of these officials and that the judiciary is “ill
equipped” to deal with the difficult and delicate problems of prison management,
this court has afforded considerable deference to the determinations of prison

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administrators who, in the interest of security, regulate the relations between
prisoners and the outside world.
Id. at 407–408.
The Thornburgh court ultimately determined that the Turner approach was proper, noting
that the Turner court essentially considered that “a strict standard simply was not appropriate for
consideration of regulations that are centrally concerned with maintenance of order and security
in prisons.” Id. (internal citations omitted). In light of the concern that a strict approach would
“fail[] to afford prison officials sufficient discretion to protect prison security,” the Thornburg
court held that “regulations affecting the sending of a publication to a prisoner should be analyzed
under the Turner reasonableness standard.” While the Thornburgh court’s holding was limited to
the narrow instance in which publishers wished to assert their First Amendment rights by sending
publications into the prison, it is noteworthy that the Supreme Court was willing to extend the
Turner analysis to a case involving non-prisoner constitutional rights being allegedly infringed
upon by prison policy. Furthermore, the court specifically stated that the reason that it extended
the Turner test and analysis to that case was for policy reasons for giving deference to the
administrative workings of a prison. See id.
Plaintiffs further assert that the magistrate judge erred in ignoring the context in which
Thornburgh was decided. (ECF No. 28). Plaintiffs reiterate that in Thornburgh, the Supreme Court
merely discerned between incoming correspondence from prisoners and incoming correspondence
from non-prisoners, focusing on the security implications of each. Thornburgh, 490 U.S. at 413.
Therefore, instead of following the policy considerations set forth above, Plaintiffs argue that this
court should instead adopt the reasoning in Strum v. Clark, a Third Circuit case in which an
attorney asserted her First Amendment right to speak with clients and non-clients within a prison

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context. 835 F.2d 1009 (3rd Cir. 1987). In that case, the court rejected the Turner analysis, stating
that it was only applicable to the constitutional rights of prisoners, and evaluated the plaintiff’s
claim “in light of conventional first amendment doctrine . . . not in light of the less demanding
standard involving only prisoners’ rights.” Strum v. Clark, 835 F.2d 1009, 1014 (3rd Cir. 1987).
In rationalizing this decision, the court noted that the “reasonable relation test . . . ha[d] been
applied to modify only the constitutional rights of prisoners.” Id. (emphasis added).
Notably, the Strum decision preceded the decision in Thornburgh by two years. At the time
of Strum, it was true that the Turner test had not been used in any case other than a case of inmate
rights. However, Thornburgh changed this, and it brought along with it the policy consideration
for why courts might be inclined to be deferential to prison policy even when dealing with noninmate constitutional rights. For this reason, this court finds Plaintiffs reliance on Strum
unpersuasive.
Therefore, this court agrees with the magistrate judge that the Turner reasonableness test
should apply in this case. The magistrate judge applied the Turner reasonableness test to the facts
of this case in his Report. (ECF No. 33). However, the Plaintiffs have objected to the magistrate
judge’s analysis as to all four factors. These objections are overruled for the reasons stated below.
i. SCDF’s policy is rationally related to a legitimate and neutral government
objective.
The Plaintiffs argue that Policy 700.0 is not rationally related to any legitimate, neutral
government objective. This court disagrees. The Defendants have stated that the regulation is
related to its interest in limiting the visitors of SCDF, which Defendants claim to be of “preeminent
importance in running a jail.” (ECF No. 28 at 8). Plaintiffs assert that this is not a legitimate
government objective. However, in Defendant Freeman’s affidavit, he stated that the visitation

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policy “is in place to protect the safety and security of the SCDF staff, the inmates, and the visitors
of the facility.” (ECF No. 28-2 at 3). He further stated that SCDF “simply does not have the staff
resources to accommodate requests such as the request made by Plaintiff” because whenever an
inmate is transported for such a meeting, he or she “must be accompanied by at least one Deputy.”
Id. That Deputy must then remain “in close proximity” to the meeting in order to escort the inmate
back to his or her regularly assigned area at the conclusion of the visitation. Id. He further
mentioned that because “SCDF is already understaffed” this would mean having to pull a Deputy
from his or her regularly assigned duties in order to accommodate such visits and that this “creates
a real and legitimate concern to the overall jail operations.” Id.
As the Plaintiffs have pointed out in their objections, the Fourth Circuit has identified three
penological objectives in the operation of a jail: preserving order, preserving discipline, and
maintaining institutional security. In re Long Term Admin. Segregation of Inmates Designated as
Five Percenters, 174 F.3d 464, 469 (4th Cir. 1999). Plaintiffs allege that Defendants have failed
to demonstrate how this policy furthers any of those three objectives. However, this court finds
that Defendants have shown that this policy is in place as an effort to maintain order and security
in the prison, which are legitimate penological objectives.
Plaintiffs also contend that Defendants do not apply the challenged policy in a neutral
manner. (ECF No. 38 at 25). Plaintiffs state that the policy, as written, distinguishes between
attorneys who have a preexisting relationship with inmates and those that do not, which Plaintiff
claims is not “neutral.” Furthermore, Plaintiffs assert that the Defendants “selectively use the
policy to block Plaintiffs from meeting with inmates they do not represent while allowing other
attorneys to do so on a regular basis.” (ECF No. 38 at 25). This court disagrees.

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The policy, as written, does distinguish between those that classify as “Professional
visitors,” i.e. “[the inmate’s] attorney, legal representative, paralegal, law enforcement, or court
official” and “social visitors,” which encompass family members, friends, and other individuals
on a visitation list. (ECF No. 28-1 at 2). However, this does not make the policy discriminatory
against civil rights organizations as Plaintiff suggests. Any attorney that does not represent the
inmate, by SCDF policy, is classified as a “social visitor” and must abide by the rules accordingly.
The policy does not bar civil rights groups or unretained attorneys from meeting with an inmate;
the inmate can meet with those individuals if they choose to do so by following the social visitation
guidelines. (ECF No. 28-1).
Plaintiffs contend that the Defendants do not apply their policy in a neutral manner so that
it essentially discriminates against just civil rights groups looking to solicit potential inmateclients. Plaintiffs assert that this allegation is supported by the declarations of Mr. Allen and Mr.
Harris. Mr. Allen’s declaration states that he and his staff routinely meet with inmates despite not
representing them, and that he has only once been forced to cut his meeting short with an inmate
because he did not represent the inmate. (ECF. No. 31-4). Mr. Harris’s declaration states that he
has never been asked to provide evidence that he represents the inmate when meeting with inmates
at the prison. (ECF No. 31-5).
While these facts might show that the policy is not always enforced as it is supposed to be,
the court fails to see how the implementation of the policy, when enforced properly, is
discriminatory. At Plaintiffs’ own admission, the ACLU attorneys were able to meet with inmates
multiple times after having their requests denied by SCDF because no one asked them whether or
not they represented the inmate with whom they were meeting. (ECF No. 5). However, it was only
when one officer did remember to enforce the policy that the ACLU attorneys were asked to leave.

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In his affidavit, Defendant Freeman stated that the Plaintiffs being granted access was “an error on
the part of the desk clerk and not in keeping with SCDF policy.” (ECF No. 28-2 at 3). The same
is true for the instances in which the Public Defender and Mr. Harris have been able to visit inmates
without proof that they represent the inmate – someone has not followed the policy. However,
when the policy is adequately implemented, if the person does not represent the inmate in question,
that person is asked to leave. (ECF No. 28-1). The Public Defender was once asked to leave for
this reason, as noted in his declaration. (ECF No. 31-4). The policy is, therefore, not implemented
solely against the ACLU and other civil rights groups as Plaintiffs suggest.
Plaintiffs further contend that the fact that Defendants have not consistently adhered to the
policy is evidence that the prison’s objective is not actually legitimate. Plaintiffs state that the
ACLU attorneys do not pose a security threat to the prison. (ECF No. 38 at 26). Plaintiffs cite State
v. Walker, which says that “[b]ecause an attorney is considered an officer to the court, there is no
reason to suspect that he or she would be a threat to prison security discipline.” 804 N.W. 2d 284,
294 (Iowa 2011). However, neither the Defendants nor the magistrate judge implied that the ACLU
attorneys were the security threat with which the prison was concerned. Defendants have stated
that when these visits take place, Deputies have to be pulled from their regularly assigned stations
in order to escort inmates to and from meetings. (ECF No. 28-2). They have further stated that
they are understaffed and that this puts a burden on the Deputies. (ECF No. 28-2). It seems that
SCDF is concerned with the security threat of having to move around its officers in order to escort
inmates, not the security threat of an attorney coming into the building. Therefore, this court finds
that the objective is legitimate and neutral.3

3

Findings as to each of the four factors are based on facts presented at the time of this Order and are pertinent only
to the issue of whether or not to grant this preliminary injunction.

17 

ii. There are alternative avenues that remain open for the ACLU attorneys to
solicit clients.
Plaintiffs contend that there is no sufficient alternative avenue that remains open for them
to solicit clients in the prison. This court disagrees. As stated by the SCDF policy 702.0, ACLU
mail is considered “privileged” mail. (ECF No. 28-1). Therefore, while officers may inspect the
contents of the letter for contraband in front of the recipient inmate, they may not read the letter;
the letters are considered confidential. Id. The ACLU attorneys can effectively alert the prisoners
of their potential rights and may recruit potential plaintiffs through this system. Additionally, if
the ACLU attorneys want to meet with the inmates in person, they may write a letter to the inmates
asking for the inmates to place the ACLU attorneys on their visitation lists or to establish an
attorney-client relationship. See id. For example, this can be accomplished through correspondence
that explains the purpose of the communication and includes a limited engagement letter for the
inmate to sign, which establishes an attorney-client relationship. This court finds that this is a
sufficient alternative avenue in which the ACLU may contact and solicit potential inmateplaintiffs.
iii. Allowing ACLU attorneys access to visit prisoners with whom they do not
represent under the “Professional visitor” policy would negatively impact the
guards and prisoners and would burden prison resources.
Plaintiffs object to the magistrate judge’s determination that if the ACLU attorneys are
allowed to meet with non-clients that it would put a burden on prison resources. However, as
discussed above, Defendant Freeman has clearly stated that the facility is understaffed and that for
each of these visits, a Deputy must be pulled from his assigned duties in order to escort the inmate
to and from the meeting. (ECF No. 28-2). Plaintiff’s objections are again misguided by the

18 

misunderstanding that SCDF is concerned with the attorneys being a security threat. Plaintiff
asserts that the fact that the attorneys were not screened with metal detectors or patted down upon
arrival on their final day of meeting with the inmates shows that there is no real threat. This court,
again, disagrees with the notion that this is the threat that the facility is concerned with. Because
prison resources, i.e. the Deputies, would have to be reassigned in order to accommodate Plaintiffs’
requests and because the prison is already understaffed, this court finds that accommodation of the
Plaintiffs’ requests would place a burden on the prison and guards.
iv. The regulation is not an exaggerated response by prison officials.
Plaintiffs object to the magistrate judge’s determination that SCDF’s response is not
exaggerated and that there are no ready alternatives to the policy at a de minimus cost to
penological interests. (ECF No. 38 at 31). The only available alternative that this court sees is to
allow Plaintiffs to conduct interviews according to the Professional visitation policy instead of
according to the social visit policy. However, as discussed above, this would place a heavy burden
on the allocation of limited resources in the prison. Additionally, relocating Deputies in order to
accommodate Plaintiffs’ request could pose a substantial safety risk within the prison because the
Deputy’s previously-assigned station would be un-manned. Therefore, this court finds that the
SCDF’s response is not exaggerated and that the implementation of the Plaintiffs’ request would
place a non-de minimus burden on penological interests – i.e. on the security and order of the
prison.
v. Plaintiffs have failed to make a clear showing that they are likely to succeed
on the merits under the Turner analysis.

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After considering each of the four factors enumerated in Turner, this court finds that
Plaintiffs have failed to make the requisite showing that they are likely to succeed on the merits of
their First Amendment claim.
B. Even if the Turner test was not applicable, the Plaintiffs have not shown that they
are likely to succeed on the merits of their claim because the policy is a reasonable time,
place, and manner restriction of content-neutral speech.
Plaintiffs contend that strict scrutiny is applicable to this case because it is the
“conventional first amendment doctrine.” (ECF NO. 38 at 19). However, when the regulated
speech is content-neutral, the type of scrutiny applicable to a First Amendment challenge depends
on the type of forum where the speech is regulated. See Perry Ed. Ass’n. v. Perry Local Educator’s
Assn., 460 U.S. 37, 46 (1983). In Perry, the Supreme Court identified three categories of public
forums: (1) those traditionally designated for public use; (2) those properties that the government
opens for use by the public as a place to express ideas; and (3) those types of public property that
are not used traditionally for public communication. Id. The guidelines for how the government
may regulate speech is different as to each of these types of forum. Id.
This court finds, for the reasons stated above in the Turner analysis, that the SCDF policy
regulates content-neutral speech. This court further finds that SCDF falls within the third category
of forum, much like the prison did in Plaintiffs’ proffered case, Strum v. Clark, 835 F.2d 1009 (3rd
Cir. 1987). When a forum falls within this third category, the government may make “time, place,
and manner” regulations so long as the regulation on speech is “reasonable and not an effort to
suppress expression merely because public officials oppose the speaker’s view.” Perry, 460 U.S.
at 46. These restrictions are considered reasonable “if they are imposed without reference to the
content of the regulated speech . . . serve a significant governmental interest, and leave open ample

20 

alternative channels of communication.” Strum, 835 F.2d at 1015 (internal citations omitted).
Additionally, “[t]he nature of a place, the pattern of its normal activities, dictate the kinds of
regulations of time, place, and manner that are reasonable.” Pell v. Procunier, 417 U.S. 817, 826
(1974). In the context of a prison, normal activity “necessarily requires that considerable attention
be devoted to the maintenance of security.” Id.
In Pell v. Procunier, in the context of inmates asserting their constitutional rights for faceto-face communications with newsmen, the court stated that while this does not mean that prison
officials have an unfettered right to limit all types of expression within the prison, “security
considerations are sufficiently paramount in the administration of the prison to justify the
imposition of some restrictions on the entry of outsiders into the prison for face-to-face contact
with inmates.” Id. Furthermore, in determining whether limiting the face-to-face contact between
the press and the prisoners was a reasonable time, place, and manner restriction, the court
considered that “keeping visitations at a manageable level that will not compromise institutional
security” was a consideration that was “peculiarly within the province and professional expertise
of corrections officials, and [that] in the absence of substantial evidence in the record to indicate
that the officials have exaggerated their response to these considerations, courts should defer” to
the prison’s judgment in such matters. Id. at 827.
This court finds that SCDF’s policy is a proper time, place, and manner restriction that is
reasonable and does not seek to suppress a particular view or statement. The regulation does not
seek to prohibit a certain viewpoint of speech. Additionally, as noted in Pell v. Procunier, keeping
visitation to a manageable level can have substantial effects on institutional security. See id.
Furthermore, as stated previously, the security and order of the prison are of paramount interest to
SCDF. Accordingly, this is a legitimate, significant penological interest. See In re Long Term

21 

Admin. Segregation of Inmates Designated as Five Percenters, 174 F.3d 464, 469 (4th Cir. 1999).
Furthermore, as discussed above, there are alternative channels for the ACLU to communicate
with the inmates – the legal mail system and the social visitation system. If the inmate chooses to
have ACLU come to the prison for visitation, that inmate can put the ACLU on his or her visitation
list or can establish an attorney-client relationship with an ACLU attorney. Therefore, based on
these facts, this court finds that the regulation is a reasonable time, place, and manner restriction.
Accordingly, based on the information presented to the court at this stage of the proceedings,
Plaintiffs have not shown a likelihood of success on the merits even if the Turner test was not
applied.
II. Plaintiffs have not demonstrated that they will suffer actual and imminent harm absent
a preliminary injunction.
Because Plaintiffs have not made a showing that they are likely to succeed on the merits
of their claim based on the facts presently before the court, Plaintiffs fail to meet the test for a
preliminary injunction. However, since the Plaintiffs objected to the magistrate judge’s
determination that they were not likely to suffer actual or imminent harm absent this relief, the
court will address this objection. Plaintiffs are correct that the “loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns,
427 U.S. 347, 373–74 (1976). However, as stated earlier, Plaintiffs have not made the necessary
showing as to their First Amendment claim.
Plaintiffs allege that they are seeking to exercise their right to “communicate with inmates”
in order to solicit them for potential litigation, and that this will be hampered by not being allowed
to exercise this right. However, Plaintiffs may confidentially communicate with inmates through
the use of SCDF’s legal mail system. (ECF No. 28-1). Inmates may then set up face-to-face

22 

communications with the ACLU attorney either by (1) putting the attorney on the social visit list
or (2) establishing an attorney-client relationship with the ACLU attorney. Even with the denial of
this injunction, Plaintiffs can contact inmates, alert them of their rights, solicit them for potential
cases, and set up meetings with the inmates. Therefore, this court finds that Plaintiffs will not be
irreparably harmed in the absence of a preliminary injunction.
CONCLUSION
After a careful and thorough review of the record under the appropriate standards, as set
forth above, the court adopts the Report (ECF No. 33), which is incorporated herein by reference,
to the extent that it is consistent with this Order. For the reasons set forth in the Report and in this
Order, the Respondent’s motion for a preliminary injunction (ECF No. 5) is DENIED.4
s/Timothy M. Cain
United States District Judge
Anderson, South Carolina
November 21, 2017

4

 The court does not reach the issue of the other two elements of the Winter v. National Resources Defense Council,
Inc., 555 U.S. 7, (2008) test for when a preliminary injunction is appropriate because Plaintiff has failed to prove
elements one and two. These two elements are dispositive of the motion for a preliminary injunction because a
Plaintiff must prove all four elements of the test in order to obtain such relief.

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