Hughbanks v. Dooley et al

Filing 42

ORDER denying 31 Motion for Preliminary Injunction; denying 26 Motion for Preliminary Injunction; denying 26 Motion for TRO; denying as moot 27 Motion to Withdraw ; denying 28 Motion to Appoint Counsel ; denying 29 Motion for Preliminary Injunction. Signed by Chief Judge Karen E. Schreier on 10/28/2010. (KC)

Hughbanks v. Dooley et al

Doc. 42

UNITED STATES DISTRICT COURT D I S T R I C T OF SOUTH DAKOTA S O U T H E R N DIVISION ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C iv . 10-4064-KES

K E V I N L. HUGHBANKS, Plaintiff, vs. R O B E R T DOOLEY, Warden, Mike D u r fe e State Prison; TIM REISCH, C a b in e t Secretary, SD DOC; S U S A N JACOBS, Associate W a r d e n , Mike Durfee State Prison; T A M I DEJONG, Unit Coordinator, M ik e Durfee State Prison; RANDY S T E V E N S , Sco. Property Officer, M ik e Durfee State Prison; and N I C O L E ST. PIERRE, Sco. Property O ffic e r , Mike Durfee State Prison, Defendants.

.O R D E R DENYING INJUNCTIVE RELIEF

P la in t iff, Kevin. L Hughbanks, an inmate at Mike Durfee State Prison, file d this civil rights action arguing that his mail was improperly rejected. H u g h b a n k s now moves for several preliminary injunctions. He seeks the r e t u r n of a number of suggestive photographs; an order directing defendants t o allow him to utilize the administrative remedy process; an order that d e fe n d a n t s provide Hughbanks with free legal copies for all matters relating t o his case; and finally an order directing defendants to cease retaliating a g a in s t him. Docket 26, 29, 31. Hughbanks also moves to withdraw his m o tio n for an ex parte injunction (Docket 9) in part, to remove anything that

Dockets.Justia.com

could result in his relocation. Docket 27. Hughbanks also seeks the a p p o in t m e n t of counsel. Docket 28. D ISC U S S IO N I. E le m e n t s "The burden of proving that a preliminary injunction should be issued r e s ts entirely with the movant." Goff v. Harper, 60 F.3d 518, 520 (8th Cir. 1 9 9 5 ). Whether a preliminary injunction should issue is decided by weighing fo u r factors (the "Dataphase" factors). They are: (1) the threat of irreparable h a r m to the movant; (2) the state of balance between this harm and the in ju r y that granting the injunction will inflict on the other parties; (3) the probability that the movant will succeed on the merits; and (4) the p u b lic interest. Dataphase Systems v. C L Systems, 640 F.2d 109, 114 (8th C ir . 1981). In the prison setting, a request for a preliminary injunction " m u s t always be viewed with great caution because judicial restraint is e s p e c ia lly called for in dealing with the complex and intractable problems of p r is o n administration." Goff, 60 F.3d at 520. A. P h otograp h s

H u g h b a n k s argues the confiscation of a number of sexually suggestive p h o t o g r a p h s violated his constitutional rights. He asserts the photographs w e r e not prohibited by the DOC pornography policy because they did not d e p ic t nudity and would not be considered sexually suggestive under its d e fin itio n s . The DOC pornography policy defines nudity as "a pictorial or

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other graphic depiction where male or female genitalia or female breasts are e x p o s e d ." Docket 34-8. Sexually explicit material "includes written and p ic to r ia l depiction of actual or simulated sexual acts including but not lim it e d to sexual intercourse, oral sex, or masturbation." Id. It also "includes in d iv id u a l pictures, photographs, or drawings of nudity or sexually explicit c o n d u c t that are not part of a book, pamphlet, magazine, periodical or other p u b lic a t io n ." Id. Defendants have produced the rejected photographs as an e x h ib it . See Docket 34-4. It appears that the photographs do not fall within t h e pornography policy. But according to defendants, that is not why the p h o t o g r a p h s were confiscated. Defendants argue the photographs were rejected because they were c o n s id e r e d detrimental to Hughbanks's rehabilitation as a sex offender. B e c a u s e Hughbanks was convicted of third-degree rape and possession of c h ild pornography, he received a psychosexual evaluation upon his in c a r c e r a t io n . Docket 34-2. It was recommended that Hughbanks receive sex o ffe n d e r treatment through the Special Treatment of Perpetrators Program (S T O P ) and the Sex Offender Management Program (SOMP). Id. Hughbanks's p s y c h o s e x u a l evaluation states that he should not be allowed any use or e x p o s u r e to pornography or erotica or access to the internet. Id. The t r e a t m e n t coordinator recommended that any explicit photographs in H u g h b a n k s 's possession be confiscated. Docket 34-3. Prison staff followed

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this recommendation, confiscating some erotic photographs and rejecting o t h e r s that were mailed to him. Certain publications containing erotic p h o t o g r a p h s were also rejected. The mailroom rejection notice provides that m a il may be confiscated if it is considered detrimental to an offender's r e h a b ilit a t io n . Docket 34-2. Hughbanks seeks that this court issue several orders in connection w ith the photographs. First, Hughbanks asks this court to order defendants t o return the photographs. Docket 26. Second, he seeks an injunction " r e s t r a in in g defendants from censoring, confiscating, or rejecting any item m a ile d to plaintiff in the past, present, or future that defendants allege to be d e tr im e n t a l to plaintiff's rehabilitation without having a qualified behavioral p s y c h o lo g is t review each item." Id. Hughbanks also asks this court to enjoin d e fe n d a n t s from "censoring, confiscating or rejecting any item mailed to p la in t iff in the past, present, or future that defendants allege may cause p la in t iff to reoffend without having a qualified behavioral psychologist review t h e item(s) in question, after being provided with the circumstances of p la in t iff's felony convictions, what led defendants to believe the questioned it e m s could be detrimental to plaintiff's rehabilitation, and how the D e fe n d a n t s believe the item could cause plaintiff to reoffend." Id. Finally, if t h e court grants the two injunctions relating to evaluation by a behavioral

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psychologist, Hughbanks also seeks a copy of the report or findings of the p s y c h o lo g is t and a list of the psychologist's credentials. Id. 1 . T h r e a t of Irreparable Harm I n order to demonstrate irreparable harm, Hughbanks must show that t h e harm is "certain, great and of such imminence that there is a clear and p r e s e n t need for equitable relief." Packard Elevator v. Interstate Commerce C o m m 'n , 782 F.2d 112, 115 (8th Cir. 1986). Hughbanks argues that the c o n fis c a t io n and rejection of the suggestive photographs violated his First A m e n d m e n t rights. If he is correct and his First Amendment rights have b e e n violated, this constitutes irreparable harm. "The loss of First A m e n d m e n t freedoms, for even minimal periods of time, unquestionably c o n s tit u te s irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976) (p lu r a lit y ). See Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1140-41 (8th C ir . 1996) (finding the threat of irreparable harm requirement satisfied w h e r e movants alleged their exclusion from a particular public television p r o g r a m violated their First Amendment rights). Thus, Hughbanks has s a t is fie d this element of the Dataphase inquiry. 2. B a la n c e between Harm and Injury to Other Parties T h e second factor to consider is the balance of the threat of harm a g a in s t the harm that will occur to other litigants. Dataphase, 640 F.2d at 1 1 3 . There is a tension between the need to protect constitutional rights and

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the longstanding policy of judicial restraint regarding issues of prison a d m in is t r a t io n . "Traditionally, federal courts have adopted a broad hands-off a t tit u d e towards problems of prison administration." Hosna v. Groose, 80 F .3 d 298, 304 (8th Cir. 1996). It is not the role of federal courts to microm a n a g e state prisons. Klinger v. Dep't of Corr., 31 F.3d 727, 733 (8th Cir. 1 9 9 4 ), cert. denied, 513 U.S. 1185 (1995). Conversely, "federal courts ought t o afford appropriate deference and flexibility to state officials trying to m a n a g e a volatile environment . . . such flexibility is especially warranted in t h e fine-tuning of the ordinary incidents of prison life." Sandin v. Conner, 515 U .S . 472, 483 (1995). If the injunctions Hughbanks seeks were issued, the p r is o n would be required to employ a behavioral psychologist to evaluate any r e je c te d photographs with Hughbanks's unique characteristics in mind. E v e r y time Hughbanks orders or is mailed photographs that are rejected, the p s y c h o lo g is t would be required to provide him with a report describing how t h e photographs would undermine his rehabilitation. Such relief would be u n d u ly burdensome on prison officials. Hughbanks seeks special treatment, w h ic h , as defendants point out, is always a concern for prison officials t a s k e d with the "unenviable task of keeping dangerous men in safe c u s t o d y [.]" Farmer v. Brennan, 511 U.S. 825, 844 (1994). These concerns o u t w e ig h any injury Hughbanks will suffer if the court fails to issue an in ju n c t io n .

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3. L i k e l i h o o d of Success on the Merits " I n a First Amendment case . . . the likelihood of success on the merits is often the determining factor in whether a preliminary injunction should is s u e ." Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). If Hughbanks were in his home, rather than incarcerated as a sex offender in M ik e Durfee State Prison, he would have an undisputed First Amendment right to the possession of the photographs. See Stanley v. Georgia, 394 U.S. 5 5 7 (1969) (holding that the First Amendment protects the possession of o b s c e n e material in the home). But his incarceration alters the analysis. "In the First Amendment context . . . a prison inmate retains those F ir s t Amendment rights that are not inconsistent with his status as a p r is o n e r or with the legitimate penological objectives of the corrections s y s t e m ." Leonard v. Nix, 55 F.3d 370, 374 (8th Cir. 1995). These limitations " a r is e both from the fact of incarceration and from valid penological o b je c t iv e s ­ in c lu d in g deterrence of crime, rehabilitation of prisoners, and in s t it u t io n a l security." O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1 9 8 7 ). At least one court has found a sex offender has no First Amendment r ig h t to possess sexually suggestive materials that could be detrimental to h is rehabilitation. See Frazier v. Ortiz, No. 07-cv-02131, 2010 WL 924254 at * 1 2 (D. Colo. March 10, 2010).

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Rehabilitating offenders is a "paramount objective of the corrections s y s t e m ." Pell v. Procunier, 417 U.S. 817, 823 (1974). Evaluating an offender's r e h a b ilit a t io n , and what may be detrimental to it, is "committed to the c o n s id e r e d judgment of prison administrators[.]" Fegans v. Norris, 537 F.3d 8 9 7 , 902 (8th Cir. 2008) (internal citations omitted). Thus, courts apply a d e fe r e n t ia l rational relationship test to prison officials' application of a policy t o an inmate. A prison official's action that "impinges on inmates' c o n s tit u tio n a l rights is valid if it is reasonably related to legitimate p e n o lo g ic a l interests." Turner v. Safley, 482 U.S. 78, 89 (1987). The four fa c t o r s of the Turner test examine (1) whether a valid, rational connection e x is ts between the prison action and the government interest it protects; (2 ) whether prisoners have an alternative means of exercising the protected r ig h t ; (3) the impact of accommodating the right on other inmates, guards, a n d the allocation of prisoner resources generally; and (4) whether a lt e r n a t iv e s exist that fully accommodate the prisoner's rights at de minimis c o s t to valid penological interests. Id. at 89-90. First, this court evaluates whether a valid, rational connection exists b e tw e e n prison officials' action and the government interest it protects. Id. Here, Hughbanks underwent a psychosexual evaluation upon his in c a r c e r a t io n . His evaluation recommended that he not be permitted to a c c e s s pornography, erotica, or the internet. In accordance with that

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recommendation, prison officials confiscated sexually suggestive, erotic p h o t o g r a p h s of women that Hughbanks had in his possession. They also r e je c te d similar photographs that Hughbanks ordered, noting on the m a ilr o o m rejection notice that they were rejected because they were " d e t r im e n t a l [to Hughbanks's] rehabilitation." Docket 34-4. Hughbanks d is p u te s this finding. Hughbanks asserts that the confiscation of sexually s u g g e s t iv e photographs of adults actually hinders his rehabilitation as a sex o ffe n d e r . He argues: [T]he logic of denying a person from viewing photos of adults t h a t could stimulate and arouse that person when said person h a s problematic attractions toward children seems c o u n t e r p r o d u c t iv e and in itself detrimental to rehabilitation b e c a u s e the institution is applying negative consequences for t r y in g to view pictures of adults. In a sense, the logical c o n c lu s io n that one would come to is that Defendants do not w a n t me to have sexual fantasies of adults. Docket 41 at 12. The conclusion that the photographs would be detrimental t o Hughbanks's rehabilitation is "committed to the considered judgment of p r is o n administrators[.]" Fegan, 537 F.3d at 902. This court will not disturb t h a t determination. Due to such concerns, the prison has a specific sex-offender r e s tr ic t io n s policy. Docket 34-7. Under that policy, the warden may prohibit a n y sex offender from possessing any specific items of personal property. Id. S u c h property includes sexually graphic photos that are considered d e tr im e n t a l to the sex offender's rehabilitation, even those that do not fall

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within the South Dakota Department of Corrections' policy prohibiting p o r n o g r a p h y . Given Hughbanks's psychosexual evaluation, the application of t h e s e policies to Hughbanks is rationally related to the government interest in furthering his rehabilitation as a sex offender. See Wickner v. McComb, No. 0 9 - 1 2 1 9 , 2010 WL 3396918 at *6 (D. Minn. July 23, 2010) ("[P]rison officials w e r e reasonable in thinking that denying Plaintiff access to the photographs in issue would advance the legitimate penological interests in maintaining p r is o n security, rehabilitating sex offenders, and reducing sexual h a r a s s m e n t of prison guards.); Hunsaker v. Jimerson, No. 08-cv-01479, 2010 W L 3323415 at *5-6 (D. Colo. July 9, 2010) (holding inmate had not d e m o n s t r a t e d likelihood of success on the merits on his claim that prison im p r o p e r ly censored his mail preventing him from receiving publications w ith nudity); Frink v. Arnold, 842 F. Supp. 1184, 1191 (S.D. Iowa 1994) (" [P r is o n officials] have established a rational connection between the r e s tr ic t io n at issue in this case [ban on sexually graphic written materials] a n d the governmental interest in rehabilitating sex offenders[.]") T h e second factor examines whether Hughbanks has an alternative m e a n s of exercising the protected right. Turner, 482 U.S. at 89. This factor is s a t is fie d , if as here, the application of the policy allows a broad range of m a t e r ia ls to be sent, received, and read. Thornburgh v. Abbott, 490 U.S. 401, 4 1 8 (1989).

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Next, the court must assess the impact of accommodating the right on o t h e r inmates, guards, and the allocation of prison resources generally. T u r n e r , 482 U.S. at 89. If Hughbanks were permitted to possess sexually s u g g e s t iv e photographs, which are contrary to his rehabilitative goals, other s e x offenders in the prison would seek the same accommodation. R e h a b ilit a t iv e efforts would be frustrated at an institutional level. A c c o m m o d a t io n would come at the expense of rehabilitation. Moreoever, the r e lie f Hughbanks seeks is overly broad and would negatively impact the a llo c a t io n of prisoner resources. T h e final factor is whether whether alternatives exist that fully a c c o m m o d a t e the prisoner's rights at de minimis cost to valid penological in te r e s ts . Turner, 482 U.S. at 89-90. Hughbanks has not put forth any a lt e r n a t iv e s to the policy and its application. The policies he suggests in his m o tio n s would be more burdensome than the current application of the p o lic y . In fact, under the Prisoner Litigation Reform Act (PLRA), this court c o u ld not order the relief Hughbanks seeks. The PLRA provides, in relevant p art: P r e lim in a r y injunctive relief must be narrowly drawn, extend no fu r t h e r than necessary to correct the harm the court finds r e q u ir e s preliminary relief, and be the least intrusive means n e c e s s a r y to correct that harm. The court shall give substantial w e ig h t to any adverse impact on public safety or the operation of a criminal justice system caused by the preliminary relief and s h a ll respect the principles of comity set out in paragraph (1)(B) in tailoring any preliminary relief.

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18 U.S.C. § 3626(a)(2). Requiring the prison to employ a behavioral p s y c h o lo g is t to evaluate every rejected photograph with Hughbanks's specific c h a r a c t e r is t ic s in mind would hardly be the least intrusive means necessary. T h u s , there are no alternatives that would fully accommodate Hughbanks's r ig h t s without undermining legitimate penological objectives. It is unlikely t h a t Hughbanks would be able to prevail on the merits of his claim. 4. Public Interest T h e final Dataphase factor is whether the public interest would be s e r v e d by issuing an injunction. Dataphase, 640 F.2d at 113. "[T]he d e te r m in a t io n of where the public interest lies also is dependent on the d e te r m in a t io n of the likelihood of success on the merits of the First A m e n d m e n t challenge because it is always in the public interest to protect c o n s tit u tio n a l rights." Phelps-Roper, 545 F.3d at 690. Hughbanks has failed t o demonstrate a likelihood of success on the merits of his First Amendment c la im . This fact, coupled with the public policy of deferring to prison officials in matters of prison administration, demonstrates that the public interest w o u ld not be served if this court issued the injunctions Hughbanks seeks. A c c o r d in g ly , Hughbanks's motion for preliminary injunction is denied.

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B.

F r e e Copies

H u g h b a n k s also seeks an injunction requiring defendants to provide h im with free legal copies for all matters relating to his case. Docket 29. D e fe n d a n t s oppose the issuance of an injunction. 1 . T h r e a t of Irreparable Harm T h e first Dataphase factor is the threat of irreparable harm to the m o v a n t if the injunction does not issue. 640 F.2d at 113. Hughbanks does n o t specify how he will be harmed if the requested injunction does not issue. H e has not stated that he will miss a procedural deadline, that he has m is s e d a deadline, or that his case has or will be impacted in any way if the c o u r t denies his motion. In fact, his filings with this court suggest the o p p o s it e conclusion. "The equitable remedy is unavailable absent a showing o f irreparable injury, a requirement that cannot be met where there is no s h o w in g of any real or immediate threat that the plaintiff will be wronged a g a in [.]" Martin v. Sargent, 780 F.2d 1334, 1337 (8th Cir. 1985). At the most, H u g h b a n k s argues that his case may be impacted by having to pay for legal c o p ie s and wait for prison legal staff to Shepardize cases. "Possible or s p e c u la t iv e harm is not enough." Northland Ins. Co. v. Blaylock, 115 F. Supp. 2 d 1108, 1116 (D. Minn. 2000). Accordingly, Hughbanks has not made the r e q u is it e showing.

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2. B a la n c e of Harm and Injury to Other Parties The second factor is the balance of the harm to the movant if the in ju n c t io n does not issue and the harm to the other litigants if the injunction w e r e to issue. Dataphase, 640 F.2d at 113. Hughbanks has failed to d e m o n s t r a t e a threat of irreparable harm. But if the injunction were to issue, d e fe n d a n t s would be harmed. Defendants argue they would be required to d e v ia te from the indigent inmate policy, creating other concerns at the p r is o n . If this injunction were granted, it is likely that other inmates with le g a l claims pending will seek exemptions from the policy as well, which c o u ld pose a substantial burden on prison resources. Under this policy, in d ig e n t inmates are allowed to make photocopies up to but not exceeding t e n dollars a month. Docket 34-12. If an indigent inmate has already used h is monthly allotment of legal copies and has a deadline that requires a d d it io n a l copies, the indigent inmate may request additional copies. Id. H u g h b a n k s argues that he is not indigent. But rather than advancing his c la im , this argument undercuts it. Docket 41. Because Hughbanks can a ffo r d to pay for his own legal copies, his argument that defendants should p r o v id e him with unlimited free legal copies is even less compelling. Given t h a t Hughbanks has not shown a threat of irreparable harm, the harm in r e q u ir in g defendants to make an exception from an established prison policy w e ig h s in favor of defendants.

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3. L i k e l i h o o d of Success on the Merits H u g h b a n k s must also demonstrate a likelihood of success on the m e r it s in order to receive the injunction he seeks. Dataphase, 640 F.2d at 1 1 3 . If Hughbanks brought a freestanding challenge to the policy, he would b e unlikely to prevail. This district court upheld a similar policy against an a c c e s s to the courts challenge in Cody v. Slykhuis, No. 04-4169, 2006 WL 7 5 9 6 8 3 (D.S.D. March 23, 2006). In that case, the court noted that inmates a r e not entitled to unlimited free photocopies. Id. at *2. Nor are inmates c o n s tit u tio n a lly entitled to unlimited free postage. Blaise v. Fenn, 48 F.3d 3 3 7 (8th Cir. 1995). See also Vega v. United States of America, No. 05-3232, 2 0 0 6 WL 1445220 (W.D. Mo. May 23, 2006) (finding there is no c o n s tit u tio n a l right to free postage or free photocopies for inmates). M o r e o v e r , in order to prevail on an access to the courts claim, an inmate m u s t demonstrate that he sustained an "actual injury" as a result of the c h a lle n g e d policy. Moore v. Plaster, 266 F.3d 928, 933 (8th Cir. 2001). More s p e c ific a lly , Hughbanks would be required to show that a valid, non-frivolous le g a l claim was frustrated or impeded. Johnson v. Missouri, 142 F.3d 1087, 1 0 8 9 (8th Cir. 1998). Given that the challenged policy contains an exception fo r an inmate with a filing deadline, Hughbanks is unlikely to be able to m a k e this showing. Accordingly, Hughbanks has failed to demonstrate a lik e lih o o d of success on the merits.

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4. P u b li c Interest T h e final Dataphase factor examines whether the public interest is fu r t h e r e d by the issuance of an injunction. Dataphase, 640 F.2d at 113. The p u b lic 's interest in the orderly administration of prisons and the c o n s e r v a t io n of prison resources is furthered if the court declines to interfere in the day-to-day running of the prison. While the public has a general in te r e s t in the enforcement of constitutional rights, it is overcome by the c o u n t e r v a ilin g interest in efficient management of the prisons. See Wycoff v. N ix , 975 F.2d 867 (8th Cir. 1992) (affirming denial of injunction where public in te re s t in efficient prison administration outweighed general interest in c o n s titu tio n a l rights and prisoner had shown no injury). Finally, the court is m in d fu l of the Eighth Circuit's admonition that judicial restraint is especially w a r r a n t e d in actions for injunctive relief against prison officials. Goff, 60 F .3 d at 520. Hughbanks has not demonstrated that issuing the injunction is in the public interest. The Dataphase factors weigh against granting the r e q u e s t e d relief. Accordingly, Hughbanks's motion for a injunction ordering d e fe n d a n t s to provide him with free legal copies is denied. C. S u s p e n s i o n of Administrative Remedy Process

H u g h b a n k s also seeks an injunction ordering defendants to "restore P la in t iff's Administrative Remedy process and attempt to resolve his g r ie v a n c e s at all levels of the Administrative Remedy process." Docket 26. He

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also asks the court to order that: the defendants "not to try to avoid r e s o lv in g " issues by restricting his access to the administrative remedy p r o c e s s ; that defendants "advise and work with Plaintiff if unclear as to what h is problem is or how he wants the issue resolved;" and that defendants p r o v id e him with a copy of all administrative remedy requests deemed a b u s iv e and a detailed description as to why each request was deemed a b u s iv e . Id. Defendants oppose Hughbanks's motion. The South Dakota Department of Corrections' administrative remedy p o lic y provides than an inmate's access to the administrative remedy p r o c e d u r e may be restricted if the administrative remedy coordinator and w a r d e n determine he is abusing the process. Docket 34-10. Warden Dooley a n d Associate Warden Susan Jacobs, the administrative remedy coordinator, d e te r m in e d that Hughbanks was abusing the administrative remedy p r o c e s s .1 Docket 34, at ¶10. Therefore, his access to the procedure was r e s tr ic t e d . Id. According to defendants, if Hughbanks would like his access to

A review of the Notice of Rejection of Request for Administrative Remedy d e m o n s t r a t e s that prison officials' determination Hughbanks was abusing the a d m in is t r a t iv e remedy process was warranted. See Docket 34-11. Hughbanks s u b m it t e d a complaint about puddles on the prison grounds after rain or s n o w fa ll. In his complaint, he argued that failure to fix the problem "to prevent t h e large puddles that stick around for more than a day shows deliberate in d iffe r e n c e to the health and safety of inmates." Id. Hughbanks based this c o n c lu s io n on the possibility that the puddles created a breeding ground for m o s q u it o s . Id. His request was rejected because "the water absorbs into the g r o u n d within a day or two." Id. After this complaint, the warden and associate w a r d e n restricted his access to the administrative remedy process.

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the administrative remedy procedure restored, he needs to submit a request t o the warden. Id. They contend he has not done so. Id. Hughbanks disputes t h is contention. Docket 41. 1 . T h r e a t of Irreparable Harm H u g h b a n k s has not asserted that he faces the threat of irreparable h a r m , as required by Dataphase, if the court does not issue the requested in ju n c t io n . Dataphase, 640 F.2d at 113. Defendants contend that H u g h b a n k s may still submit complaints to the warden through kites or le t te r s . Docket 33. Accordingly, Hughbanks has failed to meet his burden on t h e first prong of the Dataphase test. "The failure to show irreparable injury is , by itself, a sufficient ground upon which to deny a preliminary injunction, fo r the basis of injunctive relief in the federal courts has always been ir r e p a r a b le harm and inadequacy of legal remedies." Gelco Corp. v. Coniston P ar tn e r s , 811 F.2d 414, 418 (8th Cir. 1987) (internal citations omitted). D e s p it e Hughbanks's failure to demonstrate the threat of irreparable injury, t h e court will continue the Dataphase analysis. 2. Balance of Harm and Injury to Other Parties Because Hughbanks has not demonstrated that he faces the threat of ir r e p a r a b le harm, the balance shifts in favor of defendants. Prison officials m a d e a determination that Hughbanks was abusing the administrative r e m e d y process. Issuing the injunctions Hughbanks seeks would interfere

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with the day-to-day operations of the prison, harming defendants. It would a ls o undermine the prison's ability to deal with abusive administrative r e m e d y requests from inmates. Accordingly, this factor weighs against g r a n t in g the injunction. 3 . L i k e l i h o o d of Success on the Merits I f Hughbanks brought a freestanding claim based on the denial of the a d m in is t r a t iv e remedy process, he would be unlikely to prevail. This case is a n a lo g o u s to Buckley v. Barlow, 997 F.2d 494 (8th Cir. 1993). In that case, a p r is o n e r brought a § 1983 claim alleging prison officials refused to pick up a n d submit his completed grievance forms. Id. at 495. The district court d is m is s e d his claim for failure to state a claim. Id. The Eighth Circuit a ffir m e d , noting "no constitutional right was violated by defendants' failure, if any, to process all of the grievances he submitted for consideration." Id. T h e court explained that "a prison grievance procedure is a procedural right o n ly , it does not confer any substantive right upon the inmates." Id. (citing A z e e z v. DeRobertis, 568 F. Supp. 8 (N.D. Ill. 1982)). See also Flick v. Alba, 9 3 2 F.2d 728 (8th Cir. 1991). Thus, there is no constitutional right to utilize t h e prison grievance system. Id. In this case, prison officials made a c o n s id e r e d determination that Hughbanks was abusing the administrative r e m e d y process and pursuant to policy, restricted his access to the process.

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As defendants point out, Hughbanks may still submit kites and letters to the w a r d e n . Consequently, Hughbanks is unlikely to prevail on the merits. 4 . P u b li c Interest B e c a u s e no constitutional right has been violated, there is no public in te r e s t in granting the injunction Hughbanks seeks. There is, however, a p u b lic interest in safeguarding the orderly administration of prisons. Prison o ffic ia ls are given "wide ranging deference to preserve internal order and d is c ip lin e ." Norman v. Schuetzle, 585 F.3d 1097, 1107 (8th Cir. 2009) (citing J ac k s o n v. Everett, 140 F.3d 1149, 1151 (8th Cir. 1998)). If this court were to r e s tr ic t prison officials' ability to address abusive inmate complaints, their a b ilit y to preserve internal order and discipline would be undermined. Accordingly, the public interest weighs against granting the injunction. B e c a u s e Hughbanks has not demonstrated any of the Dataphase factors fa v o r granting a preliminary injunction, his motion is denied. D. R e ta lia tio n

H u g h b a n k s 's final request for a preliminary injunction asks this court t o order defendants to stop "all retaliatory practices." Docket 31. Hughbanks a s s e r t s he has been subjected to increased censorship,2 has not been a llo w e d to use his institutional savings account to purchase the same items

These claims have been addressed in the section relating to the rejected a n d confiscated photographs.

2

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he was allowed to purchase prior to filing this suit, and that he was im p r o p e r ly denied parole. Id. 1. T h r e a t of Irreparable Harm H u g h b a n k s cannot establish that he will suffer irreparable harm if the d e fe n d a n t s are not ordered to permit him to use his institutional savings a c c o u n t , rather than his commissary funds, to purchase religious food items. H e was permitted to use his savings account funds instead of his c o m m is s a r y funds on one occasion due to an employee error. See Docket 40. H u g h b a n k s still purchases religious food items with his commissary account fu n d s . See Docket 40-3. Nor has Hughbanks shown that he will be harmed if he must wait for h is next scheduled parole hearing. He has not shown that having an earlier, c o u r t- o r d e r e d parole hearing will increase his chances of receiving parole. A c c o r d in g ly , he will suffer no harm if the injunction does not issue. 2 . B a la n c e of Harm with Harm to Parties Litigant B e c a u s e Hughbanks has not demonstrated he will face irreparable h a r m , the harm defendants would face if an injunction were issued o u t w e ig h s any ostensible injury to him. Hughbanks's request seeks special t r e a t m e n t ; this is a concern for defendants who are tasked with the difficult t a s k of running a prison. Furthermore, if this court were to order a new p a r o le hearing, it would undermine the discretion of the Board of Pardons

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and Paroles. Ordering a new parole hearing in this case would likely put the c o u r t in the position of continually ruling on requests for new parole h e a r in g s and requiring the state to respond. The harm to defendants o u t w e ig h s any potential injury to Hughbanks. 3 . L i k e l i h o o d of Success on the Merits I n order to prevail on his motion for a preliminary injunction, H u g h b a n k s bears the burden of demonstrating a likelihood of success on the m e r it s . To prevail on a retaliation claim Hughbanks would be required to d e m o n s t r a t e that: (1) he was engaged in constitutionally protected conduct; (2 ) an official took actions against him that would deter a similarly situated in d iv id u a l from exercising his constitutional rights; and (3) the official's r e t a lia t o r y actions were motivated by Hughbanks's constitutionallyp r o t e c t e d conduct. Carroll v. Pfeffer, 262 F.3d 847, 850 (8th Cir. 2001). H u g h b a n k 's suit against defendants is constitutionally protected conduct. B u t he cannot satisfy the second element. The fact that Hughbanks was r e q u ir e d to utilize his commissary account rather than his inmate savings a c c o u n t to purchase religious food items does not rise to the level of a c o n s tit u tio n a l violation. Thus, the officials' actions in requiring Hughbanks t o follow the prison's financial policy would not deter a similarly situated in d iv id u a l from exercising his constitutional rights. Here, Hughbanks does n o t allege that he was not permitted to purchase religious food items.

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Rather, he takes issue with which account he was permitted to use. Finally, H u g h b a n k s cannot demonstrate that the prison employee's actions were m o tiv a t e d by his lawsuit. The employee in question was not even aware that H u g h b a n k s had filed suit; nor were the named defendants involved in the d e c is io n . Docket 40, ¶ 9. Thus, Hughbanks has failed to satisfy the third e le m e n t . Atkinson v. Bohn, 91 F.3d 1127, 1128 (8th Cir. 1996) (affirming d is m is s a l of retaliation claim for failure to state a claim where inmate did not a lle g e defendants were involved in or affected by his previous litigation). A c c o r d in g ly , Hughbanks has not demonstrated a likelihood of success on his r e t a lia t io n claim with respect to use of his inmate accounts. H u g h b a n k s also alleges defendants retaliated against him by denying h im parole. But none of the named defendants are involved in the parole p r o c e s s . The Board of Pardons and Paroles is technically under the s u p e r v is io n of the Department of Corrections, but exercises its functions in d e p e n d e n t ly . See SDCL 24-13-3 ("The Board of Pardons and Paroles shall b e administered under the direction and supervision of the Department of C o r r e c t io n s but shall retain the quasi-judicial, quasi-legislative, advisory and o t h e r nonadministrative functions . . . and shall exercise those functions in d e p e n d e n t ly [.]" ). To be held liable for retaliation under § 1983, a prison o ffic ia l's involvement must be personal and direct. When there is no evidence o f such involvement, an inmate's claim against that defendant must be

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dismissed. Boyd v. Knox, 47 F.3d 966, 969 (8th Cir. 1995). Consequently, H u g h b a n k s has failed to demonstrate a likelihood of success on the merits o n the claim that defendants retaliated against him by denying him parole. 4. P u b li c Interest T h e final Dataphase factor examines whether the issuance of a p r e lim in a r y injunction would serve the public interest. Issuing the in ju n c t io n s Hughbanks seeks would be an unwarranted intervention into the r u n n in g of the South Dakota prison system. Accordingly, the public interest w o u ld not be served by issuing him the relief he seeks. Because none of the D atap h as e factors weigh in Hughbanks's favor, his motion for a preliminary in ju n c t io n relating to retaliation by defendants is denied. II. M o t i o n to Withdraw Motion for Ex Parte Injunction H u g h b a n k s filed a motion for ex parte injunction on July 28, 2010. D o c k e t 9. On September 10, 2010, this court ordered him to serve his m o tio n on defendants. Docket 25. Hughbanks has failed to do so. A c c o r d in g ly , his motion for ex parte injunction is denied. His motion to w ith d r a w his motion for ex parte injunction, therefore, is denied as moot. III. M o t i o n for the Appointment of Counsel F o r the reasons set forth in this court's September 10, 2010, order, H u g h b a n k s 's motion to appoint counsel is denied. Docket 25. Contrary to H u g h b a n k s 's assertions, neither the Turner v. Safley standard nor the

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defendants' responses to his various motions for preliminary relief render his c a s e more legally complex. Docket 38. Thus, his motion is denied. A c c o r d in g ly , it is O R D E R E D that Hughbanks's motions for preliminary injunctions (D o c k e t 26, 29, 31) are denied. IT IS FURTHER ORDERED that Hughbanks's motion for ex parte in ju n c t io n (Docket 9) is denied. I T IS FURTHER ORDERED that Hughbanks's motion to withdraw ex p a r t e injunction (Docket 27) is denied as moot. I T IS FURTHER ORDERED that Hughbanks's motion for the a p p o in t m e n t of counsel (Docket 28) is denied. Dated October 28, 2010. B Y THE COURT:

/s/

Karen E. Schreier

K A R E N E. SCHREIER C H I E F JUDGE

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