Hughbanks v. Dooley et al

Filing 93

ORDER denying 56 Motion for TRO; denying 56 Motion for Preliminary Injunction; denying 77 Motion to Appoint Counsel. Signed by Chief Judge Karen E. Schreier on 4/19/2011. (KC)

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA
SOUTHERN DIVISION
KEVIN L. HUGHBANKS,
Plaintiff,
vs.
ROBERT DOOLEY, Warden, Mike
Durfee State Prison, a/k/a Bob
Dooley;
TIM REISCH, Cabinet Secretary,
SD DOC;
SUSAN JACOBS, Associate
Warden, Mike Durfee State Prison;
TAMI DEJONG, Unit Coordinator,
MDSP;
RANDY STEVENS, Sco. Property
Officer, MDSP; and
NICHOLE ST. PIERRE, Sco.
Property Officer, MDSP;
Defendants.

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Civ. 10-4064-KES

ORDER DENYING
PRELIMINARY INJUNCTION
AND DENYING APPOINTED
COUNSEL

Plaintiff, Kevin L. Hughbanks, is incarcerated at Mike Durfee State
Prison in Springfield, South Dakota. He filed a pro se civil rights action under
42 U.S.C. § 1983 alleging, in addition to several other claims, that the South
Dakota Department of Corrections’ (DOC’s) correspondence policy prohibiting
the delivery of bulk-rate mail, in particular as applied to catalogs, is
unconstitutional. He now moves for preliminary relief and asks the court to
invalidate portions of the DOC’s correspondence policy. Specifically,

Hughbanks seeks an order directing defendants to “stop using the rate/cost of
postage on [an] item being received as a means of determining whether item is
allowed or not.” Docket 56 at 1. Hughbanks also asks this court to order prison
officials to notify the sender or publisher “whenever correspondence, catalogs,
or publications are confiscated/rejected as well as the reason for
confiscation/rejection, giving the sender/publisher an opportunity to appeal as
well as the intended recipient.” Id. Thus, Hughbanks’s motion asserts
violations of his First Amendment rights and his procedural due process rights
under the Fourteenth Amendment. Hughbanks also moves for the appointment
of counsel to represent him in this action. Defendants oppose his motions.
STANDARD OF REVIEW
A preliminary injunction is an “extraordinary and drastic remedy.” Munaf
v. Geren, 553 U.S. 674, 689-90 (2008). Therefore, the party seeking preliminary
relief bears the burden of establishing the elements necessary for relief.
Watkins, Inc. v. Lewis, 346 F.3d 841, 833 (8th Cir. 2003). Whether a
preliminary injunction should issue is decided by weighing four factors (the
“Dataphase” factors). They are: (1) the threat of irreparable harm to the movant;
(2) the state of balance between this harm and the injury that granting the
injunction will inflict on the other parties; (3) the probability that the movant
will succeed on the merits; and (4) the public interest. Dataphase Sys. v. C L

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Sys., 640 F.2d 109, 114 (8th Cir. 1981). No single factor is dispositive; rather,
all of the factors must be considered to determine whether, on the balance,
they weigh in favor of granting the injunction. Calvin Klein Cosmetics Corp. v.
Lenox Labs., Inc., 815 F.2d 500, 503 (8th Cir. 1987). The Eighth Circuit has
held, however, that “the two most critical factors for a district court to consider
in determining whether to grant a preliminary injunction are: (1) the probability
that plaintiff will succeed on the merits and (2) whether the plaintiff will suffer
irreparable harm if an injunction is not granted.” Chicago Stadium Corp. v.
Scallen, 530 F.2d 204, 206 (8th Cir. 1976). Moreover, in the prison setting, a
request for a preliminary injunction “must always be viewed with great caution
because judicial restraint is especially called for in dealing with the complex
and intractable problems of prison administration.” Goff v. Harper, 60 F.3d
518, 520 (8th Cir. 1995).
DISCUSSION
I.

First Amendment Claim: Bulk-Rate Mail
A.

Threat of Irreparable Harm

The “threshold inquiry” in determining whether a party is entitled to a
preliminary injunction is “whether the movant has shown the threat of
irreparable injury.” Glenwood Bridge Inc. v. City of Minneapolis, 940 F.2d 367,
371 (8th Cir. 1991). While the court must consider all of the Dataphase factors,

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“[p]erhaps the single most important prerequisite for the issuance of a
preliminary injunction is a demonstration that if it is not granted the applicant
is likely to suffer irreparable harm before a decision on the merits can be
rendered[.]” 11A Charles Alan Wright, Arthur R. Miller, Mary Kay Kane, &
Richard L. Marcus, Federal Practice and Procedure § 2948.1 (2d ed. 1995).
Irreparable injury is harm that is “certain, great and of such imminence that
there is a clear and present need for equitable relief.” Packard Elevator v.
Interstate Commerce Comm’n, 782 F.2d 112, 115 (8th Cir. 1986).
“The loss of First Amendment freedoms, for even minimal periods of time,
unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347,
373 (1976) (plurality). See Marcus v. Iowa Pub. Television, 97 F.3d 1137, 114041 (8th Cir. 1996) (finding the threat of irreparable harm requirement satisfied
where movants alleged their exclusion from a particular public television
program violated their First Amendment rights). Defendants concede that
Hughbanks’s mere allegation that his First Amendment rights have been
violated by the denial of bulk-rate mail establishes the threat of irreparable
harm. Thus, Hughbanks has established this element.

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B.

Balance Between Harm and Injury to Other Parties

The second factor to consider is the balance of the threat of harm against
the harm that will occur to the other litigants. Dataphase, 640 F.2d at 113.
Defendants argue that any harm to Hughbanks is outweighed by the need to
accord deference to prison officials regarding the day-to-day operations of the
prison. Defendants also assert that the safety, security, and order of the prison
would be compromised by granting the relief Hughbanks seeks. Hughbanks’s
primary argument is that classifying mail based on the postage rate is arbitrary.
He also states that the rejected catalogs are “not standard rate mail, my name
and customer number are specifically on the catalog and it specifies ‘change
service requested’ instead of ‘or current resident.’ ” Docket 56 at 3. Hughbanks
argues that at one time, bulk-rate mail such as catalogs were handed out
“randomly to anyone requesting a catalog.” Docket 75 at ¶ 6. Hughbanks also
points out that DOC policy already limits the amount of property an inmate may
possess in his cell. Id. at ¶ 12. According to Hughbanks, these facts invalidate
defendants’ safety and security concerns.
There is a tension between the need to protect constitutional rights and
the longstanding policy of judicial restraint regarding issues of prison
administration. “Traditionally, federal courts have adopted a broad hands-off
attitude towards problems of prison administration.” Hosna v. Groose, 80 F.3d
298, 304 (8th Cir. 1996). It is not the role of federal courts to micro-manage

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state prisons. Klinger v. Dep’t of Corr., 31 F.3d 727, 733 (8th Cir. 1994), cert.
denied, 513 U.S. 1185 (1995). Furthermore, “federal courts ought to afford
appropriate deference and flexibility to state officials trying to manage a volatile
environment . . . such flexibility is especially warranted in the fine-tuning of the
ordinary incidents of prison life[.]” Sandin v. Conner, 515 U.S. 472, 483 (1995).
Because the policy Hughbanks seeks to invalidate is a state-wide DOC policy,
the court would be required to suspend it for all inmates in South Dakota at
every single corrections facility in the state, not just at the Mike Durfee State
Prison. This would compromise the safety and security of not just one
institution, but of every institution in the state. Thus, the balance of the harm
weighs in favor of defendants.
C.

Likelihood of Success on the Merits

“In a First Amendment case . . . the likelihood of success on the merits is
often the determining factor in whether a preliminary injunction should issue.”
Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008). To show a likelihood
of success on the merits, a movant need not show “a greater than fifty percent
likelihood that he will prevail on the merits.” Dataphase, 640 F.2d at 113.
Rather, “where the balance of other factors tips decidedly toward plaintiff a
preliminary injunction may issue if movant has raised questions so serious and
difficult as to call for more deliberate investigation.” Id.

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Defendants assert that Hughbanks has no First Amendment right to
receive bulk-rate mail. They rely on Jones v. North Carolina Prisoners’ Labor
Union, Inc., 433 U.S. 119, 130-33 (1977). In that case, the Supreme Court
upheld a prison regulation that prohibited prisoners from receiving bulk-rate
mail from a prison union. Id. North Carolina prohibited inmate solicitation of
other inmates, meetings between members of the union, and bulk-rate
mailings concerning the union from outside sources. Id. at 122. Prison officials
had determined that the existence of the union could lead to work stoppages,
mutinies, riots, and chaos. Id. at 127. The union sought to send boxes of
pamphlets to inmates, using bulk-rate mail, and to have the inmates distribute
the pamphlets among the prison population. Id. at 130-33. Here, Hughbanks
seeks to receive bulk-rate mail for his individual consumption; there is no
indication that he intends to distribute the material he receives to other
inmates. Thus, Jones is factually distinguishable and defendants’ assertion
that there is no First Amendment right to receive bulk-rate mail expands the
Jones holding.
Defendants also cite Smith v. Maschner, 899 F.2d 940, 944 (10th Cir.
1990) for the position that Hughbanks has no First Amendment right to receive
bulk-rate mail. The Smith court held that a “complaint about undelivered
catalogs fail[ed] to raise an issue of constitutional magnitude.” Id. But the

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Tenth Circuit Court of Appeals later distinguished the decision, noting the
decision did not involve a challenge to a prison regulation or apply the Turner
test. See Jones v. Salt Lake Cnty., 503 F.3d 1147, 1159-60 (10th Cir. 2007).
Rather, the decision was “limited to a prison official’s one-time failure to deliver
catalogs to an inmate.” Id. Because the instant situation is factually
distinguishable from Jones and Smith, this court assumes, without deciding,
that Hughbanks has a First Amendment right to receive bulk-rate mail. Thus,
the court will consider whether Hughbanks has demonstrated a likelihood of
success on the merits of his claim.
Assuming that Hughbanks has a First Amendment right to receive bulkrate mail, he does not lose it merely because he is incarcerated. Procunier v.
Martinez, 416 U.S. 396, 408-10 (1974). Rather, he “retains those First
Amendment rights that are not inconsistent with his status as a prisoner or
with the legitimate penological objectives of the corrections system.” Leonard v.
Nix, 55 F.3d 370, 374 (8th Cir. 1995). These limitations “arise both from the fact
of incarceration and from valid penological objectives–including deterrence of
crime, rehabilitation of prisoners, and institutional security.” O’Lone v. Estate of
Shabazz, 482 U.S. 342, 348 (1987). Therefore, an inmate’s constitutional rights

may be diminished by prison regulations that are reasonably related to
legitimate penological interests. Turner v. Safley, 482 U.S. 78, 89 (1987).

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A number of courts have upheld bans on bulk-rate mail and catalogs in
prisons, finding they were reasonably related to legitimate penological interests
such as the security of the prison, allocation of resources, and preventing fire
hazards. See Jones, 503 F.3d at 1159-60 (noting that plaintiff likely had not
met his burden of demonstrating that a county jail’s catalog ban was
unconstitutional, but remanding to district court for Turner analysis); Sheets v.
Moore, 97 F.3d 164, 168 (6th Cir. 1996) (upholding a ban on bulk-rate mail);
Allen v. Deland, 42 F.3d 1406 (10th Cir. 1994) (upholding prison policy
banning catalogs); Hrdlicka v. Cogbill, No. 04-3020, 2006 WL 2560790 at *11
(N.D. Cal. Sept. 1, 2006) (upholding prison policy banning bulk-rate mail and
prison officials’ decision not to deliver magazine pursuant to that policy); Dixon
v. Kirby, 210 F. Supp. 2d 792, 801 (S.D. W. Va. 2002) (upholding ban on bulkrate mail and catalogs); Allen v. Wood, 970 F. Supp. 824, 829-30 (E.D. Wash.
1997) (upholding prison policy banning catalogs); Alcala v. Calderon, No. 953329, 1997 WL 446234 at *6 (N.D. Cal. July 24, 1997) (upholding prison ban
on bulk-rate mail); Kalasho v. Kapture, 868 F. Supp. 882, 888 (E.D. Mich.
1994) (upholding prison policy banning the delivery of bulk-rate mail to
inmates).
Hughbanks relies on contrary authority, which comes primarily from the
Ninth Circuit Court of Appeals. See Prison Legal News v. Lehman, 397 F.3d

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692,701 (9th Cir. 2005) (holding that prison ban on bulk-rate mail and
catalogs violated the First Amendment); Prison Legal News v. Cook, 238 F.3d
1145, 1149-50 (9th Cir. 2001) (holding that prison regulation banning the
receipt of subscription non-profit mail based on the postal service rate was not
rationally related to a legitimate penological objective); Morrison v. Hall, 261
F.3d 896, 905 (9th Cir. 2001) (holding prison regulation banning bulk-rate mail
was unconstitutional as applied to for-profit subscriptions publications); Allen
v. Higgins, 902 F.2d 682, 684 (8th Cir. 1990) (holding prison official was not
entitled to qualified immunity because he denied an inmate’s request to mail a
money order for a government catalog without examining the catalog); Brooks
v. Seiter, 779 F.2d 1177, 1181 (6th Cir. 1985) (holding that an inmate’s
complaint that pamphlets, magazines, and catalogs were not delivered was not
frivolous).1 Because there is a split in authority and no controlling precedent
from the Eighth Circuit, this court will independently analyze the
constitutionality of the DOC’s correspondence policy.

1

Hughbanks also relies on Williams v. Brimeyer, 116 F.3d 351, 354 (8th
Cir. 1997). In Williams, the Eighth Circuit Court of Appeals held that a prison’s
blanket ban on materials from the Church of Jesus Christ Christian violated
the First Amendment. Id. But in that case, the inmate was claiming the ban
violated his rights under the Free Exercise clause, not his First Amendment
right to receive information. Id. Thus, the precedential value of the decision in
the instant case is limited.
10

Four factors are relevant in determining whether a challenged regulation
is reasonably related to legitimate penological interests. Turner, 482 U.S. at 8990. The first factor examines whether the regulation is legitimate and neutral
and rationally related to the underlying government objective. Id. Second, the
court must examine whether the prisoners have an alternative means of
exercising the right. Id. at 90. Third, the court must examine the impact
accommodation will have on guards and other inmates and other allocation of
prison resources generally. Id. The fourth factor is the absence of ready
alternatives. Id.
1.

Neutral and Rationally Related to the Underlying
Objective

Defendants assert that the South Dakota Department of Corrections’
correspondence policy is constitutional. The policy provides that “free
advertising materials, fliers, non-subscriptive third class/bulk-rate mail, nonsubscriptive or free catalogs or pamphlets will normally not be delivered to
offenders.” Docket 61-1 at 2. The policy bans all non-subscriptive third
class/bulk-rate mail and all non-subscriptive or free catalogs. Thus, it is
content neutral. Hughbanks does not dispute the neutrality of the policy.
Defendants assert that the policy exists to manage prison resources and
preserve the safety of the institution. “One danger of granting Hughbanks’s
request for preliminary relief is that the safety, security, and order of the prison
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would be compromised.” Docket 67 at 4. Preventing contraband from entering
the prison, fire safety, and allocating mailroom staff are the objectives behind
this policy. “Maintaining institutional security and preserving internal order
and discipline are essential goals that may require limitation or retraction of
the retained constitutional rights” of prisoners. Bell v. Wolfish, 441 U.S. 520,
546 (1979). “Such considerations are peculiarly within the province and
professional experience of corrections officials, and, in the absence of
substantial evidence in the record that the officials have exaggerated their
response to these considerations, courts should ordinarily defer to their expert
judgment in such matters.” Pell v. Procunier, 417 U.S. 817, 827 (1974). Thus,
there is a legitimate government objective underlying the policy.
Hughbanks contends that prohibiting inmates “from receiving mail based
on the postage rate at which the mail was sent is an arbitrary means” of
achieving these goals. Docket 75 at 4. According to Hughbanks, “it is irrational
to prohibit prisoners from receiving bulk-rate mail and catalogs on the theory
that it reduces fire hazards because the DOC already regulates the quantity of
possessions that prisoners may have in their cell.” Id. (citing Lehman, 397 F.3d
at 700). Even if that were true, Hughbanks has not addressed defendants’
other rationales for prohibiting bulk-rate mail, namely security and order.
Thus, despite the split in authority, Hughbanks is unlikely to be able to

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demonstrate that the DOC’s correspondence policy is not rationally related to
at least one legitimate penological purpose.
2.

Alternative Means of Exercising the Right

The next factor is whether there is an alternative means available to
exercise the asserted right. Turner, 482 U.S. at 90. Defendants assert that
inmates at Mike Durfee State Prison have alternative means of exercising their
First Amendment rights. Inmates may review catalogs in the prison property
office and the prison has a library that inmates may access. Docket 59 at 17.
Hughbanks does not dispute this contention or address this factor of the
Turner test. Moreover, this court notes that inmates may pre-pay the postage
on any catalog and have it mailed first or second class. See Kalashno, 868 F.
Supp. at 887. Because the application of the policy allows a broad range of
materials to be sent, received, and read, this prong of the Turner test is
satisfied. Thornburgh v. Abbott, 490 U.S. 401, 418 (1989). Therefore, the court
finds, at least for the purposes of determining whether preliminary relief is
warranted, that alternative means of exercising the right exist.
3.

Impact of Accommodation

The next factor to consider in assessing the DOC’s correspondence policy
is the impact of requiring the delivery of bulk-rate mail to inmates. Thus, this
court must consider the impact on “guards and other inmates and prison

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resources generally” if Hughbanks’s proposal is adopted. Turner, 482 U.S. at
90. Defendants assert that permitting bulk-rate mail to be delivered would
present safety and security concerns and would limit prison resources. In
addition to processing the increased volume of mail, prison employees would
have to individually review it for contraband before delivery. Docket 59 at 17.
Moreover, because the challenged policy is a state DOC policy, any changes
ordered to the policy would have to be made in every correctional institution in
South Dakota, not just Mike Durfee State Prison. Hughbanks asserts that
defendants could “easily make a database that unit staff can update and
mailroom/property office would have quick access to that lists what material
inmate is requesting so defendants will have knowledge of what an inmate has
requested when material comes in.” Docket 75 at 8. But this would require
every facility in the state to develop such a database, train staff on its use, and
maintain it. “When the accommodation of an asserted right will have a
significant ripple effect on fellow inmates or prison staff, courts should be
particularly deferential to the informed discretion of corrections officials.”
Turner, 482 U.S. at 90. Because the policy Hughbanks challenges is statewide,
his suggested accommodation would have a significant effect on South Dakota
inmates and prison staff. Thus, at least at this stage of the litigation, this court
will defer to prison officials’ discretion.

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4.

Absence of Ready Alternatives

The final factor to be considered is whether there are alternatives to the
existing policy that “fully accommodate the prisoner’s rights at de minimis cost
to valid penological interest.” Id. at 91. “The absence of ready alternatives is
evidence of the reasonableness of a prison regulation. By the same token, the
existence of obvious, easy alternatives may be evidence that the regulation is
not reasonable. . . .” Id. The purpose of this factor is to ensure that a regulation
is not an “exaggerated response” to legitimate concerns. Sheets, 97 F.3d at 169.
It appears that Hughbanks will not be able to demonstrate that the DOC’s ban
on bulk-rate mail is an exaggerated response to security and order concerns.
Therefore, it appears that Hughbanks has not demonstrated he is likely to
succeed on the merits of his claim.
D.

Public Interest

“[T]he determination of where the public interest lies also is dependent on
the determination of the likelihood of success on the merits of the First
Amendment challenge because it is always in the public interest to protect
constitutional rights.” Phelps-Roper, 545 F.3d at 690. This fact, coupled with
the public policy of deferring to prison officials in matters of prison
administration, demonstrates that the public interest would not be served if this

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court issued the injunctions Hughbanks seeks. Therefore, Hughbanks is not

entitled to preliminary relief on his First Amendment claim.
II.

Procedural Due Process: Rejection Notices to Inmate and Sender
Hughbanks also argues that when bulk-rate mail, such as a catalog, is

not delivered, a rejection notice should be given to both the inmate and the
publisher or sender. He asks this court to require Mike Durfee State Prison to
“notify the intended recipient and the sender/publisher (as appropriate)
whenever correspondence, catalogs, or publications are confiscated/rejected as
well as the reason for confiscation/rejection giving the sender/publisher an
opportunity to appeal as well as the intended recipient.” Docket 56 at 1.
Hughbanks seeks a preliminary injunction on this claim as well. Thus, the
Dataphase factors apply to this claim.
A.

Threat of Irreparable Harm

The first factor that Hughbanks must establish is the threat of
irreparable harm. Dataphase, 640 F.2d at 113. Hughbanks’s allegation that his
due process rights are being violated by the current notice policy is sufficient to
establish a threat of irreparable harm. See 11A Charles Alan Wright, Arthur R.
Miller, Mary Kay Kane, & Richard L. Marcus, Federal Practice & Procedure
§ 2948.1 (2d ed. 1995) (“When an alleged constitutional right is involved, most
courts hold that no further showing of irreparable injury is necessary.”);

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Mitchell v. Cuomo, 748 F.2d 804, 806 (2d Cir. 1984) (holding that a deprivation
of a constitutional right is an irreparable injury). Cf. Marcus, 97 F.3d at 1140
(holding that allegation that First Amendment rights were violated was
sufficient to establish the threat of irreparable harm). Thus, Hughbanks has
satisfied the first prong of the Dataphase inquiry.
B.

Balance of Harm

The next factor is the balance of the threat of harm versus the harm that
the other parties will suffer if a preliminary injunction issues. Dataphase, 640
F.2d at 113. Defendants assert that the DOC would be required to expend
substantial prison resources if it were required to implement a policy requiring
notice to publishers. Docket 59. They also assert that requiring the prison to
provide notice to both the inmate and sender every time a piece of third
class/bulk-rate mail is rejected or destroyed would “eliminate the purpose of
the policy disallowing third class/bulk-rate mail, which is to preserve prison
resources and ultimately preserve security and order within the prison.” Id.
Given the federal courts’ longstanding policy of deferring to the judgment of
prison administrators, it appears that these concerns outweigh any harm
Hughbanks will suffer if he does not receive preliminary relief.

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C.

Likelihood of Success on the Merits

The next factor to be considered is the likelihood of success on the
merits. Dataphase, 640 F.2d at 113. Due process guarantees apply only when a
constitutionally protected liberty or property interest is at stake. Bd. of Regents
v. Roth, 408 U.S. 564, 569 (1972). In order for Hughbanks to successfully
argue that his due process rights are violated by the current policy, he must
first establish that he has a protected First Amendment interest in receiving
the rejected catalogs. See, e.g., Kalasho, 868 F. Supp. at 889.
This court has assumed, without deciding, that Hughbanks has a First
Amendment right to receive bulk-rate mail. See supra Part I.C. While the
United States Supreme Court has upheld a policy ordering prisons to provide
rejection notices to both inmates and senders of personal correspondence,
Procunier, 416 U.S. at 418, subsequent Supreme Court case law holds that
regulations governing mail to prisoners must be analyzed under the more
deferential standard set forth in Turner v. Safley. See Thornburgh, 490 U.S. at
413 (holding that correspondence entering a prison must be analyzed under
the Turner reasonableness standard, rather than the stricter test set forth in
Procunier). Therefore, the current notice policy will be upheld if it is “reasonably
related to legitimate penological interests.” Turner, 482 U.S. at 87.

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1.

Neutral and Rationally Related to Underlying Objective

The court must first examine whether the current policy is neutral and
rationally related to the underlying government objective. Turner, 482 U.S. at
89-90. The current policy is neutral, in that it bans the delivery of bulk-rate
mail outright and does not provide for a notice of its rejection to the inmate or
the sender. Thus, the regulation classifies mail on the basis of its postal
category rather than its content. Moreover, Hughbanks is unlikely to be able to
demonstrate that the current policy is not rationally related to the underlying
objective of the policy, which is to conserve prison resources and preserve
security and order within the prison. See Docket 59.
2.

Alternative Means of Exercising the Right

The second factor is whether an alternative means of exercising the right
exists. Turner, 482 U.S. at 90. The current correspondence policy provides for
an alternative means of exercising Hughbanks’s asserted right to notification
for refused bulk-rate mail. If Hughbanks prepaid the postage and had the
materials he seeks mailed first class, he would receive a rejection notice if it
were deemed undeliverable. See Docket 61-1, Offender Correspondence Policy.
See also Alcala, 1997 WL 446234 at *6 (noting that plaintiff had an alternative
means of exercising his asserted right to notification because the challenged
policy permitted him to prepay the postage on items that would normally be

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sent third class and prison policy provided for rejection notices for items mailed
first class).
3.

Impact of Accommodation

The impact of accommodating the asserted right is the third factor.
Turner, 482 U.S. at 90. Thus, the court must examine the impact on guards,
other inmates, and prison resources generally. Id. As noted earlier, the
challenged policy is a state-wide DOC policy. It therefore applies to all
corrections institutions in the state of South Dakota, not just Mike Durfee
State Prison where Hughbanks is housed. Defendants argue that substantial
resources would be required to provide rejection notices to the recipients and
senders of bulk-rate mail. Docket 59. The court agrees that substantial
resources would be expended to provide the requested rejection notices.
4.

Absence of Ready Alternatives

The final factor in the reasonableness analysis is the absence of ready
alternatives. Turner, 482 U.S. at 90. Hughbanks has not identified any
alternative that fully accommodates his asserted right to notification at de
minimis cost to prison security. Thus, it appears likely that Hughbanks will be
unable to demonstrate that the current notification policy is not reasonably
related to the legitimate penological interests of preserving limited prison

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resources and protecting the security and safety of the institution. Therefore,
Hughbanks is unlikely to succeed on the merits of his claims.
D.

Public Interest

The final factor in the Dataphase analysis is whether the public interest
would be served by the issuance of a preliminary injunction. Dataphase, 640
F.2d at 113. “Determination of where the public interest lies . . . is dependent
on the likelihood of success on the merits . . . because it is always in the public
interest to protect constitutional rights.” Phelps-Roper, 545 F.3d at 690.
Hughbanks has not demonstrated a likelihood of success on the merits. This
fact, coupled with the public policy of deferring to prison officials in matters of
prison administration, demonstrates that the public interest would not be
served if this court issued the injunction Hughbanks seeks. Thus, Hughbanks

is not entitled to preliminary relief on his procedural due process claim.
III.

Motion for Appointment of Counsel
Hughbanks also moves for court-appointed counsel. Docket 77-79.

A civil litigant has no constitutional or statutory right to a court-appointed
attorney. Edgington v. Mo. Dep’t of Corr., 52 F.3d 777, 780 (8th Cir. 1995).
Determining whether to appoint counsel to represent indigent civil litigants is a
matter of the court’s discretion. Id.

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Hughbanks relies on Abdullah v. Gunter, 949 F.2d 1032 (8th Cir. 1991),
asserting he is entitled to counsel because his claim has not been alleged to be
frivolous and because he has attempted to retain private counsel and failed.
But these two factors do not entitle a pro se litigant to appointed counsel.
Rather, they are threshold inquiries that a court must make before it assesses
whether “the plaintiff as well as the court will benefit from the assistance of
counsel.” Abdullah, 949 F.2d at 1035. “[O]nce the court is satisfied that
plaintiff has alleged a valid prima facie claim, then further inquiry should be
made as to need. The court should satisfy itself that plaintiff has in good faith
attempted to retain counsel and been unsuccessful.” Id. (quoting Nelson v.
Redfield Lithograph Printing, 728 F.2d 1003 (8th Cir. 1984)).
In analyzing a motion for appointed counsel, the court must evaluate the
legal and factual complexity of the case, the presence or absence of conflicting
testimony, and the plaintiff’s ability to investigate the facts and present his
claim. Davis v. Scott, 94 F.3d 444, 447 (8th Cir. 1996). Hughbanks argues that
the case is both legally and factually complex. He states “the sheer number of
claims and defendants makes this a factually complex case.” Docket 79 at 3.
But Hughbanks has chosen to pursue these claims against these defendants in
a single action. Because “a plaintiff is the master of his complaint,” BP Chem.
Ltd. v. Jiangsu Sopo Corp., 285 F.3d 677, 685 (8th Cir. 2002), the number of

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defendants and claims is within Hughbanks’s control. Moreover, the claim is
not factually complex. The only facts that appear to be in conflict relate to
Hughbanks’s Eighth Amendment claim and statements allegedly made by
defendant Randy Stevens. Otherwise, Hughbanks challenges the application of
prison and DOC policies to him and facially attacks the inmate correspondence
policy banning the delivery of bulk-rate mail to inmates. The materials
Hughbanks has filed in support of his motion for a preliminary injunction
demonstrate this fact.
Hughbanks also relies on his Eighth Amendment claim to assert that
there is conflicting testimony. Specifically, he states that “the plaintiff’s
account of his taunting and being threatened by Stevens is squarely in conflict
with the statements of the defendants.” Docket 79 at 4. “This aspect of the case
will be a credibility contest between the defendants and the plaintiff.” Id. But
this is not necessarily true. Defendants have moved for summary judgment; if
summary judgment is granted, it will be because the court finds there is no
genuine issue of material fact. See Fed. R. Civ. P. 56. If summary judgment is
granted, such credibility determinations will be unnecessary. Hughbanks has
been granted an extension of time to respond to defendants’ motion for
summary judgment. See Docket 74, Order Granting Extension of Time. Thus,
his concerns about credibility determinations are premature.

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The final factor to be evaluated is the plaintiff’s ability to investigate the
facts and present his claim. Davis, 94 F.3d at 447. Hughbanks states “a lot of
materials that the plaintiff needs to investigate are not allowed to him because
they are private documents, material that is not allowed into the possession of
the plaintiff (“Dirty Spanish” and “The Quotable Bitch”), are part of personnel
files or other inmate’s complaints, or they are being filed under seal where
plaintiff cannot review.” Docket 79 at 4. But Hughbanks is not prevented from
effectively arguing his claims by defendants’ refusal to provide him with books
confiscated under prison policy; defendants’ motion for summary judgment
and motion for in camera review provide Hughbanks with an explanation of
why the materials were confiscated and sufficient information for him to
challenge the confiscation. Hughbanks argues he is unable to effectively
present his claim because he lacks legal training. But the number and content
of the motions he has filed in this case belie that claim. Hughbanks has
demonstrated an ability to research the legal basis of his claims, present
arguments in support of them, and effectively respond to defendants’
arguments. His filings are clear and cite relevant precedent. Thus, the
appointment of counsel would not be beneficial to both the court and
Hughbanks at this time. Therefore, his motion to appoint counsel is denied
without prejudice to refiling if his claims survive summary judgment.

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CONCLUSION
Hughbanks has failed to meet his burden under Dataphase to show that
a preliminary injunction should issue on his First Amendment and due process
claims relating to the ban on bulk-rate mail and failure to provide rejection
notices when bulk-rate mail is rejected. Nor has Hughbanks demonstrated that
the appointment of counsel would benefit both the court and him at this time.
Therefore, it is
ORDERED that Hughbanks’s motion for a preliminary injunction (Docket
56) is denied.
IT IS FURTHER ORDERED that Hughbanks’s motion for appointed
counsel (Docket 77) is denied without prejudice to refiling if his claims survive
summary judgment.
Dated March 19, 2011.
BY THE COURT:

/s/ Karen E. Schreier
KAREN E. SCHREIER
CHIEF JUDGE

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