Keys v. Torres et al

Filing 54

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION DENYING TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION re: 32 Memorandum and Recommendations, 25 MOTION for Order to Show Cause as to for a Preliminary Injunction MOTION for Temporary Restraining Order (Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
ROBERT DANIEL KEYS,
Plaintiff,
VS.
CANDACE TORRES, et al,
Defendants.

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§ CIVIL ACTION NO. 2:12-CV-350
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ORDER ADOPTING MEMORANDUM AND RECOMMENDATION DENYING
TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Pending before the Court is Plaintiff’s Application for a Preliminary Injunction
and Temporary Restraining Order.

(D.E. 25).

On October 8, 2013, United States

Magistrate Judge B. Janice Ellington submitted a Memorandum and Recommendation
recommending that Plaintiff’s request for a temporary restraining order and preliminary
injunction be denied. (D.E. 32). Plaintiff timely filed his Objections on October 17,
2013. (D.E. 35).
In her Memorandum and Recommendation, the Magistrate Judge found that
Plaintiff failed to carry his burden on any of the factors required for granting preliminary
injunctive relief. Plaintiff challenges the Magistrate Judge’s conclusion that he failed to
meet the burden for granting his requested relief and urges this Court to order Defendants
to show cause as to why a temporary restraining order and preliminary injunction should
not issue in this matter. Plaintiff’s Objections are set out and discussed below.
First, Plaintiff disputes the Magistrate Judge’s characterization of his claim. He
contends that he is not arguing that he has a constitutional right to receive “any
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publication he demand[s] while incarcerated.” (D.E. 35, p. 1). Rather, he stresses that
his claim should be narrowly focused on the specific materials he has requested—namely
maps that do not depict Texas and publications about firearms. The Magistrate Judge’s
characterization of Plaintiff’s claim is not determinative of the issues presented. Plaintiff
has not demonstrated a right to a preliminary injunction. Plaintiff’s first objection is
OVERRULED.
Second, Plaintiff generally objects to the recommendation to deny his requested
relief without ordering Defendants to “show cause” as to why Plaintiff should not be
granted preliminary injunctive relief. Plaintiff is essentially urging that Defendants bear
a burden of proof on the issue of a preliminary injunction without Plaintiff first
establishing a prima facie case.
The Magistrate Judge properly observed that a plaintiff seeking a preliminary
injunction must show:

(1) a substantial likelihood of success on the merits; (2) a

substantial threat of irreparable injury if the injunction is not granted; (3) the threatened
injury outweighs the threatened harm to the defendant; and (4) granting the preliminary
injunction will not disserve the public interest. Texas Medical Providers v. Lakey, 667
F.3d 570, 574 (5th Cir. 2012). “[A] preliminary injunction is an extraordinary remedy
which should not be granted unless the party seeking it has clearly carried the burden of
persuasion on all four requirements.” Id. (internal quotation omitted) (emphasis added).
As discussed in more detail below, Plaintiff has not met the prerequisites for
obtaining preliminary injunctive relief. His failure to do so does not shift the burden onto
Defendants to establish why injunctive relief should not be granted. When arguing that
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Defendants were required to show more than metaphysical doubt, Plaintiff drew from the
summary judgment standard that is applied to FED. R. CIV. P. 56. That standard does not
govern the issue of imposing a preliminary injunction. Because Plaintiff has not met the
burden of persuasion as to any of the elements articulated in Lakey, preliminary
injunctive relief would be inappropriate, and there is no need for Defendants to show
cause as to why a preliminary injunction and temporary restraining order should not
issue. Plaintiff’s second objection is OVERRULED.
Third, Plaintiff objects to the Magistrate Judge’s conclusion that he has not
established a substantial likelihood of success on the merits. Plaintiff insists that he will
succeed on the merits because “no other State or Territory in the United States is allowed
to practice the same policy’s [sic] that TDCJ/MSCP & DRC are practicing because
they’ve been ruled unconstitutional . . . .” (D.E. 35, p. 7). However, he does not cite and
this Court has not identified any authority which would indicate that prisoners have a
constitutional right to maps or publications related to firearms.
To the contrary, the Supreme Court has held that “where the regulations at issue
concern the entry of materials into the prison . . . a regulation which gives prison
authorities broad discretion is appropriate.” Thornbugh v. Abbott, 490 U.S. 401, 416
(1989). Restrictions on incoming mail are valid as long as they are reasonably related to
a legitimate penological interest. Turner v. Safely, 482 U.S. 78, 89 (1987). Prison
security is one such interest. Pell v. Procunier, 417 U.S. 817, 823 (1974) (“[C]entral to
all other corrections goals is the institutional consideration of internal security within the
corrections facilities themselves. It is in light of these legitimate penal objectives that a
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court must assess challenges to prison regulations based on asserted constitutional rights
of prisoners.”)
Here, Defendants have asserted that the publications at issue were rejected because
they present a security threat to the correctional institution.

(D.E. 28, p. 2).

As

established in Pell, ensuring prison security is a legitimate penological interest.
Furthermore, keeping information on maps and weapons out of prisons is reasonably
related to ensuring prison security since those types of publications might aid in the
execution of violence or escape. Given the broad discretion afforded to prison officials in
the regulation of incoming materials to prison facilities and the absence of any authority
suggesting that the regulation of maps or publications related to firearms in the interest of
ensuring prison security is unconstitutional, Plaintiff has not established a likelihood of
success on the merits. Plaintiff’s third objection is OVERRULED.
Fourth, Plaintiff objects to the Magistrate Judge’s conclusion that he has not met
the irreparable harm requirement for granting a preliminary injunction.

Although

Plaintiff lists a number of cases in an attempt to challenge this conclusion, they are
neither instructive as to the issue nor binding authority on this Court.1 While it is true
that “[t]he loss of First Amendment freedoms . . . constitutes irreparable injury,” Elrod v.
Burns, 427 U.S. 347, 373 (1976), the deprivation Plaintiff complains of falls within the
sphere of permissible regulation based on the Supreme Court precedent discussed with
regard to Plaintiff’s third objection.
1

The cases from district courts in New York and Arizona as well as the Second, Sixth, and Ninth Circuits cited by
Plaintiff at (D.E. 25, p. 8) in support of the proposition that he has suffered irreparable harm concern a number of
topics including retaliation, freedom of religion, and fair housing, but none of these cases address the regulation of
maps or publications related to firearms by a penal facility.

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Plaintiff also argues irreparable harm in that four businesses he had given to his
daughters failed because he was not able to advise them without his publications. In
addition to the failure of the businesses, he complains of the betrayal felt by his daughters
because they believed their father abandoned them when they needed his advice. (D.E.
35, p. 8). Neither of these harms constitutes injury, irreparable or otherwise, to Plaintiff.
Both the businesses and the feelings of betrayal belonged to Plaintiff’s daughters. Thus,
as the Magistrate Judge correctly observed, Plaintiff’s allegations of harm do not amount
to constitutional violations. Plaintiff’s fourth objection is OVERRULED.
Fifth, Plaintiff challenges the Magistrate Judge’s conclusion that a preliminary
injunction in Plaintiff’s favor would not be in the public interest. He argues that the
public interest is served when prison officials are required to obey the law and uphold the
Constitution.

(D.E. 35, p. 9-10).

This argument fails to acknowledge the well-

established principle that “unnecessarily perpetuating the involvement of the federal
courts in affairs of prison administration” “would seriously hamper [the administrators’]
ability to anticipate security problems and to adopt innovative solutions to the intractable
problems of prison administration.” Turner, 482 U.S. at 89. While the Court will
ultimately determine what the law requires in this case when the merits are tried, for the
purposes of a preliminary injunction, Plaintiff has not demonstrated that this type of
interference does not disserve the public interest.

Plaintiff’s fifth objection is

OVERRULED.
Sixth, Plaintiff urges that “[Defendants] have not and will no[t] suffer” if this
Court grants Plaintiff’s request for a preliminary injunction because “mailroom
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operations will change very little.”

(D.E. 35, p. 10).

Assuming that Plaintiff is

addressing the third requirement for granting a preliminary injunction, simply arguing
that Defendants’ harm is negligible does not establish that it is sufficiently outweighed by
any harm suffered by Plaintiff. Further, Plaintiff’s assessment of Defendant’s harm is the
type of “conclusory [and] unsubstantiated assertion” that Plaintiff himself cautions
against. (D.E. 35, p. 10). Plaintiff has not established that his harm outweighs the harm a
preliminary injunction would impose upon Defendants, so his final objection is
OVERRULED.
CONCLUSION
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s Memorandum and Recommendation, as well as
Plaintiff’s Objections, and all other relevant documents in the record, and having made a
de novo disposition of the portions of the Magistrate Judge’s Memorandum and
Recommendation

to

which

objections

were

specifically

directed,

the

Court

OVERRULES Plaintiff’s Objections and ADOPTS as its own the findings and
conclusions of the Magistrate Judge.

Accordingly, Plaintiff’s Application for a

Temporary Restraining Order and Preliminary Injunction (D.E. 25) is DENIED.
ORDERED this 13th day of January, 2014.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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