Opinion
Case No. C05-5837 FDB/KLS.
May 11, 2007
REPORT AND RECOMMENDATION
This civil rights action has been referred to United States Magistrate Judge Karen L. Strombom pursuant to Title 28 U.S.C. § 636(b)(1)(B) and Local MJR 3 and 4. Presently before the Court is Plaintiff's Motion to Cause the Department of Corrections to Allow Telephone Calls and Mailings Between Plaintiff and Vecris Investigations, Inc. (Dkt. # 46). Plaintiff's motion, which was originally filed on December 22, 2006, was re-noted to allow Defendants time to submit the relevant Department of Corrections (DOC) policies at issue and to permit Plaintiff additional time to file a reply brief addressing the legal and factual standards for the injunctive relief he seeks. Defendants have provided the Court with the relevant DOC policies. (Dkt. # 59, Exh. 1, Attachs. A and B). Having carefully reviewed the parties' submissions and balance of the record, the undersigned recommends that Plaintiff's motion be denied.
I. DISCUSSION
Plaintiff requests that the Court direct the Washington State Department of Corrections ("DOC") provide him with an exception to its legal calls/legal mail policies. Plaintiff states that he has hired Vecris Investigations, Inc. ("Vecris") to interview witnesses and obtain information related to his case. Plaintiff maintains that his ability to properly develop the facts surrounding the circumstances of his case requires strict confidentiality between himself and his investigator. (Dkt. # 46). In support of his motion, Plaintiff attaches the affidavit of David Vronay, President of Vecris, who states that he normally provides services for legal counsel, with the expectation that his communications with his clients will be confidential. ( Id., Exh. 1 at 3). Plaintiff and Mr. Vronay state that they believed they would be allowed to maintain private communications because they were permitted a private face-to-face visit in October 2006. ( Id.). Since that time, Plaintiff's attempts to obtain "legal" status from DOC for his mail and telephone communications with Mr. Vronay and Vecris have been denied. ( Id.).
Plaintiff argues that subjecting his communications to inspection places his investigation at risk. Plaintiff states that "government personnel tend to cover up evidence of wrongdoing, erasing tapes, losing important papers, etc., and provide government personnel with the investigation details in advance. This is exactly what will occur if Garrison's and Vecris' communications are monitored — and no evidence will be uncovered." (Dkt. # 46 at 3).
Defendants argue that Plaintiff's request that the Court should order DOC to allow him to speak with a non-attorney or correspond with a non-attorney is contrary to DOC policy regarding legal mail and phone calls for offenders. (Dkt. # 59). DOC Policy 450.200 explains an inmates' access to a telephone. ( Id., Exh. 1, Attach. A). This policy only allows "legal" calls between an offender and an attorney or a consular officer. ( Id. at 4). These phone calls are not monitored or recorded to protect the attorney-client privilege. ( Id.). Offenders from a foreign country are allowed to contact their consulate. ( Id. at 5). When an offender requests to speak to an attorney, the staff has to verify that the information is for an attorney or a consular officer. ( Id.). The phones are only to be used to speak to attorneys and are not used to speak to other individuals that do not fit in that category. ( Id).
DOC Policy 450.100 explains an inmate's access to legal mail. (Dkt. # 59, Exh. 1, Attach. B). An inmate's mail can be considered, processed and labeled as legal mail only if certain criteria are met. ( Id. at 6). For mail to be considered "legal" mail, it must be mail to or from courts, courts staff, attorneys, groups of attorneys like the ACLU, the President or Vice-President, members of Congress, U.S. Department of Justice, state attorneys general, state legislators and law enforcement officers. ( Id.). Legal mail is processed differently from regular mail. ( Id.). The mail has to be scanned for threatening content and to make sure it is actually legal mail. ( Id.). Outgoing legal mail is scanned for the same reason, the envelope is sealed, staff signs the sealed flap of the envelope, the staff logs the mail into the log book and then the mail is deposited in the legal mail envelope. ( Id. at 8).
A. Standard for Prospective Relief
Under the Prison Litigation Reform Act, 18 U.S.C. § 3626 (PLRA), Plaintiff is not entitled to prospective relief unless the court enters the necessary findings required by the Act:
The court shall not grant or approve any prospective relief unless the court finds that such relief is narrowly drawn, extends no further than necessary to correct the violation of a Federal right, and is the least intrusive means necessary to correct the violation of the Federal right. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief.18 U.S.C. § 3626(a)(1)(A).
In civil rights cases, injunctions must be granted sparingly and only in clear and plain cases. Rizzo v. Goode, 423 U.S. 362, 378 (1976). This holding applies even more strongly in cases involving the administration of state prisons. Turner v. Safley, 482 U.S. 78, 85, 107 S. Ct. 2254 (1987). "Prison administration is, moreover, a task that has been committed to the responsibility of those [executive and legislative] branches and separation of powers concerns counsels a policy of judicial restraint. Where a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities." Id.
In order to justify the extraordinary measure of injunctive relief under Federal Rule of Civil Procedure 65, the moving party bears a heavy burden. Canal Authority of the State of Florida v. Callaway, 489 F.2d 567 (5th Cir. 1974). A party seeking a preliminary injunction must fulfill one of two standards: the "traditional" or the "alternative." Johnson v. California State Bd. of Accountancy, 72 F.3d 1427, 1430 (9th Cir. 1995); Cassim v. Bowen, 824 F.2d 791, 795 (9th Cir. 1987). Although two tests are recognized, they are not totally distinct tests. Rather, they are "extremes of a single continuum." Funds for Animals, Inc. v. Lujan, 962 F.2d 1391, 1400 (9th Cir. 1992).
Under the traditional standard, a court may issue preliminary relief if it finds that: (1) the moving party will suffer irreparable injury if the relief is denied; (2) the moving party will probably prevail on the merits; (3) the balance of potential harm favors the moving party; and (4) the public interest favors granting relief. Cassim, 824 F.2d at 795. Under the alternative standard, the moving party may meet its burden by demonstrating either (1) a combination of probable success and the possibility of irreparable injury or (2) that serious questions are raised and the balance of hardships tips sharply in its favor. Id. at 795. Under either test, Plaintiff fails to carry his burden to obtain preliminary injunctive relief in this case.
B. Plaintiff Has Not Shown That He Will Suffer Irreparable Harm
Plaintiff argues that if his communications with Vecris are not treated as "legal" communications, investigation of the factual basis of his claims is in danger of being thwarted by the Defendants and other detention officers, who will be able to open his mail and monitor his telephone calls and apparently, sabotage his investigative efforts.
Prison inmates have a First Amendment right to send and receive mail. Pell v. Procunier, 417 U.S. 817, 822 (1974). A prison may limit an inmate's constitutional rights if the restrictions are reasonably related to legitimate penological interests. Turner v. Safely, 482 U.S. 78, 89 (1987). The extent of a prisoner's rights with regard to the inspection of legal mail is uncertain. Wolff v. McDonald, 418 U.S. 539, 577 (1974). A prison policy of opening legal mail for inspection only in the presence of the inmate meets, and may even exceed, the demands of the Constitution. Id. However, mail from the courts, as contrasted to mail from a prisoner's lawyer, is not legal mail. Keenan v. Hall, 83 F.3d 1083 (1996), amended by 135 F.3d 1318 (9th Cir. 1998).
Prisoners have a First Amendment right to telephone access, subject to reasonable security limitations. Id. at 1092. No prisoner should reasonably expect privacy in his non-legal out-bound telephone calls. United States v. Van Poyck, 77 F.3d 285, 290-91 (9th Cir. 1996).
Neither Mr. Vronay nor Vecris are Plaintiff's lawyers nor are they representing Plaintiff in this case. The Court is not aware that Mr. Vronay is licensed to practice law in the State of Washington or on the roll of attorneys admitted to practice before this Court. There is, therefore, no basis for application of the attorney/client privilege or a reasonable expectation of privacy in the communications at issue. Although Plaintiff is acting pro se in this action, this does not give rise to an attorney-client relationship between himself and Vecris (or its employees). Additionally, and although Plaintiff makes broad and conclusory statements relating to his fear that Defendants will hide or destroy evidence, Plaintiff has not shown that Defendants are tampering with evidence or even with Plaintiff's ability to proceed with discovery. Plaintiff has not alleged nor is there evidence that he has been denied other access to phone or mail to contact his investigators.
Thus, Plaintiff has failed to provide evidence to support his claim of irreparable harm due to a First Amendment violation, and the undersigned recommends that his motion for preliminary injunction be denied.
C. Plaintiff Has Not Shown That He Is Likely To Succeed On the Merits Of His Case
Plaintiff does not raise any issues in his motion that are at issue in his Complaint, arguing only that his need to develop the factual basis of his case mandates the relief requested.
As Plaintiff has not shown that he is likely to succeed on the merits of his claims, the injunctive relief he seeks may be denied on that basis.
D. Plaintiff Has Not Shown That the Balance Of Potential Harm Favors The Moving Party
Defendants argue that Plaintiff has not alleged any significant harm and thus the balance of any potential harm is outweighed by the interest of the DOC in governing its own affairs. Rizzo, 423 U.S. 362; Turner, 482 U.S. at 85. Arguably, the potential harm alleged by Plaintiff is the ongoing monitoring of his mail and telephone calls with Vecris.
However, prison staff has a legitimate penological interest in inspecting an inmate's mail. Witherow, 52 F.3d at 265. In addition, there is no evidence before the Court that the mailroom staff will inspect and restrict Plaintiff's communications with Vecris other than as according to the clearly enumerated policy requirements of DOC policy directives and not in an arbitrary and capricious manner. Plaintiff has not shown that his interest in having an exception to DOC policies for his communications alone outweighs the prison's interest in maintaining safety and security in its prisons. Plaintiff states only that he may encounter difficulties in developing discovery in this case. There is no factual basis for reaching this conclusion. Accordingly, Plaintiff has failed to carried his burden to obtain preliminary injunctive relief and his motion should be denied.
II. CONCLUSION
For the foregoing reasons, the undersigned recommends that Plaintiff's motion for preliminary injunction (Dkt. # 46) be DENIED. A proposed order accompanies this Report and Recommendation.
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140 (1985). Accommodating the time limit imposed by Rule 72(b), the clerk is directed to set the matter for consideration on June 15, 2007, as noted in the caption.