Clarke v. StalderClarke v. Stalder
- Reporters:
- , ,
- Before:
- Reynaldo G. Garza, Emilio M. Garza, DeMoss
REYNALDO G. GARZA, Circuit Judge:
This civil rights case presents us with cross appeals from a final judgment entered by a magistrate judge after a bench trial. For the reasons assigned, we affirm in part and vacate and remand in part.
I. Background
Charles Clarke is, and has been at all relevant times, an inmate in the Louisiana prison system. He is currently incarcerated at the Louisiana State Penitentiary in Angola. The events which form the basis of this lawsuit began while he was imprisoned at the Work Training Facility at Pineville, commonly known as Camp Beauregard.
On August 16, 1992, Clarke was returning to his cell when he stopped to talk to another inmate who was sweeping the floor. This other inmate apparently did legal work for Clarke and Clarke wanted to discuss this
DEFIANCE (Schedule B): No prisoner shall commit or threaten physically or verbally to commit bodily harm upon an employee. No prisoner shall curse an employee or insult his family in the employee‘s presence. No prisoner shall threaten an employee in any manner, including threatening with legal redress during a confrontation situation (this does not mean telling an employee of planned legal redress outside a confrontation situation and certainly does not mean the actual composition or filing of a writ, suit, etc.; threatening to write to the Secretary, the Warden or other institutional officers is not a violation). No prisoner shall obstruct or resist an employee who is performing his proper duties. No prisoner shall try to intimidate an employee to make the employee do as the prisoner wants him to do.
Penalties for a violation of this rule include up to ten days of isolation, change to higher custody status (e.g., from minimum- to medium-security), a recommendation for transfer to another institution, or loss of good-time credits.
In his charge, Moulard described the incident as follows: “On the above date and time the above inmate was interfering with inmates assigned to extra duty. I Capt. Moulard called inmate Clark [sic] to C/C to talk to him. I told him I was going to write him up for interfering with the inmates. Inmate Clark became belligerent [sic] and told me he was going to file a lawsuit and an ARP [administrative complaint] on me and that he was going to see who was going to win.” Clarke was given a copy of the report and pled not guilty before a disciplinary board. The board determined otherwise. The board‘s report states that Clarke was found guilty because Moulard‘s report was clear and precise, Clarke had little or no defense, Clarke‘s credibility was low, and because he “admit[ted] he threatened legal redress during confrontation with staff.” Clarke was punished with the loss of ten days of good-time credits and was transferred to Washington Correction Institution (WCI), a higher-security prison. He appealed the board‘s determination to Richard Stalder, the Secretary of the Department of Corrections, who affirmed the action.
Following his transfer to WCI, Clarke filed suit under
Pursuant to
Both parties appeal. Clarke appeals the magistrate judge‘s refusal to award him any damages, even nominal damages, for the constitutional deprivation. He also appeals her holding that prison officials at WCI did not retaliate against him for exercising his right to access the courts.5 Stalder appeals the magistrate judge‘s holding that any constitutional deprivation occurred and her holding that the “no-legal-redress” portion of Rule 3 is facially unconstitutional.6
II. Application Challenge
We first address Clarke‘s claim that his punishment for speaking to Captain Moulard violated his right to free speech, as protected by the First and Fourteenth Amendments. Clarke was charged with violating Louisiana‘s defiance rule by threatening Captain Moulard with legal redress, by being “belligerent,” and by threatening him with the words “we‘ll see who wins.” He was found guilty by a prison disciplinary board and this finding was affirmed after an administrative appeal. He was punished with transfer to another prison and had accumulated good-time credits taken from him. Counsel for the State explained at oral argument that good-time credits count toward early release: when an inmate‘s time served plus accumulated good-time credits equal the amount of time he was sentenced to serve, the inmate is entitled to release. Thus, for Clarke, his conviction for the incident involving
This was error. In Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), the Supreme Court held that an inmate may not, by suing under
Clarke‘s claim is clearly barred by Preiser and Heck. Clarke claims he was found guilty of violating an unconstitutional rule and, therefore, that his conviction was illegal. He has not obtained habeas relief. This is precisely the type of claim that is remediable via a habeas proceeding and that is barred by Preiser and Heck when it is brought under
It being clear that the magistrate judge erred in not analyzing and dismissing Clarke‘s complaint under Heck, we must decide the effect of this given the State‘s failure to address it. The Sixth and Seventh Circuits, using different rationales, have held that this objection may not be waived. Dixon v. Chrans, 101 F.3d 1228, 1231 (7th Cir.1996); Hadley v. Werner, 753 F.2d 514, 516 (6th Cir.1985). We find it helpful to analogize to the law governing the waiver of the requirement that a state prisoner exhaust his state remedies before filing a
Where the issues in a claim are highly factual and unresolved and there is additional relevant evidence that has not been considered, the case should be dismissed and the state remedies exhausted. Graham v. Johnson, 94 F.3d 958, 970-71 (5th Cir.1996). Because that is the situation here, we vacate the magistrate judge‘s judgment in favor of Clarke on this claim and those parts of her order which attempt to make him whole for the alleged constitutional violation. We remand with directions to dismiss the claim without prejudice to Clarke filing again at such time as he is able to demonstrate that he has received the requisite habeas relief.8 See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir.1996).
III. Facial Challenge
We turn now to Clarke‘s facial challenge to the rule and the magistrate judge‘s order declaring the challenged portion of Rule 3 unconstitutional and enjoining its enforcement.
A. Preliminary Inquiries
We must initially determine whether the principles of Heck allow us to address Clarke‘s claim for prospective relief. In Edwards, the Court stated that “[o]rdinarily, a prayer for prospective relief will not ‘necessarily imply’ the invalidity of a previous loss of good time credits and so may properly be brought under
The Court in Edwards stated that, while Heck might not bar a suit for prospective injunctive relief, we should ensure the litigant has standing to pursue the claim and that the requirements for federal injunctive relief, as discussed in O‘Shea v. Littleton, 414 U.S. 488, 94 S.Ct. 669, 38 L.Ed.2d 674 (1974), are met. We first look to the question of standing. The question of a litigant‘s standing to bring suit is jurisdictional as it implicates judicial power under Article III. Accordingly, we must examine it sua sponte if necessary. E.g., Lewis v. Casey, 518 U.S. 343, ---- n. 1, 116 S.Ct. 2174, 2178 n. 1, 135 L.Ed.2d 606 (1996). The Constitution requires that a litigant have suffered or will imminently suffer an injury, that this injury is fairly traceable to the defendant‘s conduct, and that a favorable decision will redress her injury. Allen v. Wright, 468 U.S. 737, 751, 104 S.Ct. 3315, 3324-25, 82 L.Ed.2d 556 (1984). The Supreme Court‘s decision in City of Houston v. Hill, 482 U.S. 451, 459 n. 7, 107 S.Ct. 2502, 2508 n. 7, 96 L.Ed.2d 398 (1987), among others, demonstrates that Clarke has sufficient fear of being punished by the challenged portion of the rule in the future to satisfy the injury requirement. In addition to the prison conviction which is discussed above, Clarke received several defiance convictions after his transfer to WCI, many of them pertaining to his challenges to
B. First Amendment Analysis
The rule at issue here prohibits “threatening [a prison employee] with legal redress during a confrontation situation.” It excludes from its coverage such threats made outside a “confrontation situation,” the “actual composition or filing of a writ, suit, etc.,” and threats to write the Secretary of the Department of Corrections, the warden, or other prison officials. Such a rule, if enacted to govern the relations of free citizens with police officers, would clearly be unconstitutional. The Supreme Court has held that “the First Amendment protects a significant amount of verbal criticism and challenge directed at police officers.” City of Houston, 482 U.S. at 461, 107 S.Ct. at 2509 (city ordinance making it unlawful to interrupt police officer in performance of his duties unconstitutionally overbroad). See also Norwell v. City of Cincinnati, 414 U.S. 14, 16, 94 S.Ct. 187, 188, 38 L.Ed.2d 170 (1973) (per curiam) (reversing conviction for disorderly conduct where defendant was “loud and boisterous,” stating that a person “is not to be punished for non-provocatively voicing his objection to what he obviously felt was a highly questionable detention by a police officer“); Guffey v. Wyatt, 18 F.3d 869, 871-73 (10th Cir.1994) (police officer unconstitutionally arrested referee who told officer to get off court during high school basketball game); Enlow v. Tishomingo County, 962 F.2d 501, 509 (5th Cir.1992) (officers unconstitutionally arrested individual who queried officers about legality of their gambling raid); Buffkins v. City of Omaha, 922 F.2d 465, 472 (8th Cir.1990) (calling arresting officer an “asshole” was protected speech), cert. denied, 502 U.S. 898, 112 S.Ct. 273, 116 L.Ed.2d 225 (1991); Duran v. City of Douglas, 904 F.2d 1372, 1378 (9th Cir.1990) (profanities and obscene gestures directed at police officer constituted protected speech); City of New Orleans v. Lewis, 263 La. 809, 269 So.2d 450, 460 (1972) (Tate, J., dissenting) (“The right to criticize our public officers, be they judges or policemen, has, since our earliest days, been deemed a basic right of all Americans“), rev‘d, 415 U.S. 130, 94 S.Ct. 970, 39 L.Ed.2d 214 (1974).
The question we face is whether and to what extent this result changes when the citizen is incarcerated. To answer this, we turn to the teachings of the Supreme Court with respect to the constitutional rights of prisoners. The Court has stated that while “convicted prisoners do not forfeit all constitutional protections by reason of their conviction and confinement in prison,” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 1877, 60 L.Ed.2d 447 (1979), they do not enjoy all protections either. A prisoner retains only those rights that are not inconsistent with his status as a prisoner or with the legitimate penological goals of the corrections system. Jones v. North Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125, 97 S.Ct. 2532, 2537-38, 53 L.Ed.2d 629 (1977). This is as true of the right to free speech as it is of any other constitutional right. Id. The Court has recognized that the management of a prison is no small task and, accordingly, has repeatedly emphasized that great deference is due the determinations of prison administrators. Courts must be sensitive to their expert judgment and mindful that the judiciary is ” ‘ill equipped’ to deal with the difficult and delicate problems of prison management.” Thornburgh v. Abbott, 490 U.S. 401, 407-08, 109 S.Ct. 1874, 1878-79, 104 L.Ed.2d 459 (1989). At the same time, our deference “must be schooled, not absolute.” Campbell v. Miller, 787 F.2d 217, 227 n. 17 (7th Cir.), cert. denied, 479 U.S. 1019, 107 S.Ct. 673, 93 L.Ed.2d 724 (1986). The fact that initial responsibility for the prison is vested in prison administrators “does not mean that constitutional rights are not to be scrupulously observed.” Bell, 441 U.S. at 562, 99 S.Ct. at 1886.
The first factor is multi-faceted. We must determine whether the governmental objective is legitimate and neutral and whether the regulation is rationally related to that objective. We begin with determining whether the State‘s proffered penological interest is “legitimate.” The State proffers the goal of institutional security. The stated purpose of the rule is “to prevent the escalation of tension that can arise from ... exchanges between inmates and guards.” There can be no question but that this is a legitimate interest. See, e.g., Hewitt v. Helms, 459 U.S. 460, 473, 103 S.Ct. 864, 872, 74 L.Ed.2d 675 (1983) (“[t]he safety of the institution‘s guards and inmates is perhaps the fundamental responsibility of the prison administration“); Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804-05 (1974) (security is “central to all other corrections goals“). Next we must determine whether the regulation is “content neutral.” The Supreme Court has stated that content-based speech restrictions are “neutral” so long as distinctions are drawn “solely on the basis of their potential implications for prison security.” Thornburgh, 490 U.S. at 415-16, 109 S.Ct. at 1882-83. Thus, while the government here is proscribing the content of the speech of Louisiana prisoners, this is “neutral” for purposes of our analysis. See also Giano v. Senkowski, 54 F.3d 1050, 1055 (2d Cir.1995) (discussing neutrality under Turner ).
We finally examine whether there is a rational relationship between the regulation and the proffered interest. This is essentially the same test we use in analyzing governmental classifications in economic matters, see, e.g., City of New Orleans v. Dukes, 427 U.S. 297, 96 S.Ct. 2513, 49 L.Ed.2d 511 (1975), and is very deferential. Despite the fact that the State simply relies on a conclusory assertion that there is a relationship, leaving us to discern it, we are able to come up with two theories. First, the State intimated at argument that to permit inmates to verbally challenge the legality of an official‘s actions would lead to growing disrespect for the officials and, eventually, the breakdown of authority. We do not buy this peculiar notion that an inmate‘s stated intention to abide by the rules of the prison and make use of available access to the external and internal legal systems is a threat to the very order and security of the prison. If anything, we think the opposite is true. Second, it has also been suggested that permitting inmates to make these challenges to prison officials is likely to result in confrontations. It is supposed that the words “I‘m going to sue” equate to “fighting words,” geared to anger and provoke prison staff. We are hesitant to deny the existence of some connection owing to our deference to prison administrators and, therefore, conclude that a relationship, albeit tenuous, exists here.
It is not enough, however, that the restriction is related to a governmental interest: it must be “reasonably related,” the reasonableness determined by consideration of the remaining factors. We consider next whether there are alternative means of exercising the right that remain open to inmates with the present rule in place. There are not. The exception the rule makes for submitting written complaints to a superior does not in any way equate to the ability to tell an official, before she acts, that the inmate believes her action is illegal. Rather than serve as a means of dispute prevention, the existing rule permits only those activities that mop up after an incident has occurred. As stated by the Sixth Circuit, the fact that the State leaves open the possibility of “filing traditional lawsuits” does not satisfy this factor; the inquiry, rather, should be whether the rule leaves an inmate with an alternate means of communicating his grievance to his
We must also consider whether heightened deference is due the prison administrators because accommodation of the claimed right would have an adverse impact on the prison. We do not believe any adverse impact is likely. Although we granted the State the benefit of the doubt that there might be a relationship between the rule and the State‘s interest in preserving order in its prisons, we note now that, as stated above, any such relationship is tenuous at best. The Supreme Court has recognized that, as an objective matter, law enforcement officers, because of their training, are to be expected to exercise great self-restraint when their authority is challenged. See City of Houston, 482 U.S. at 462, 107 S.Ct. at 2509-10; Lewis v. City of New Orleans, 415 U.S. 130, 135, 94 S.Ct. 970, 973, 39 L.Ed.2d 214 (1974) (Powell, J. concurring in result) (“a properly trained officer may reasonably be expected to exercise a higher degree of restraint than the average citizen and thus be less likely to respond belligerently to fighting words“) (citations omitted). Inmates in America‘s prisons, like their fellow citizens on the outside, are fond of litigation. Indeed, as a colleague on the Second Circuit has recognized, the fastest growing category of civil litigation in the federal courts is prisoner lawsuits. Jon O. Newman, Pro Se Prisoner Litigation: Looking for Needles in Haystacks, 62 Brook. L.Rev. 519, 519 (1996). Concern about this fact recently prompted the Congress to enact legislation geared to curtail the proliferation of such suits. See Prison Litigation Reform Act of 1995, Pub.L. No. 104-134, 110 Stat. 1321 (1996). Thus, prison officials may well be annoyed by prisoners’ threats to sue them for one supposed injustice or another and may tire of hearing the incantations of Supreme Court case law. Annoyance, however, is insufficient to justify the suppression of this speech.
Further, the State is still able to punish inmates for the manner in which they convey their message, whether it be “I‘m going to sue” or “the Constitution forbids your actions.” As an incident of their incarceration, prisoners lack the same freedom to criticize they would enjoy on the outside, a point we acknowledged in Gibbs v. King, 779 F.2d 1040 (5th Cir.), cert. denied, 476 U.S. 1117, 106 S.Ct. 1975, 90 L.Ed.2d 659 (1986). In that case we upheld a Louisiana “disrespect” rule against a facial challenge. At that time, Rule 7 forbade, inter alia, cursing or insulting an employee, making derogatory comments, or using “intrusive verbal behavior.” The current Rule 7 prohibits “disrespectful” conversation and other portions of Rule 3 prohibit threats of violence, intimidation, or resistance. These provisions may be employed to punish those inmates whose message contains as much conduct as it does speech. The State must ensure, however, that these other portions of the prison rules are not used as a backdoor means of punishing inmates for exercising their right to criticize the legality of officials’ actions. Any attempt to use the rules in this manner would result in an unconstitutional application of the rules.
We conclude that the challenged portion of Rule 3 does not have the “reasonable relationship” to the goal of prison order and security that the Constitution requires. Our conclusion is consistent with statements expressed in prior decisions of our court. See, e.g., Woods v. Smith, 60 F.3d 1161, 1164 (5th Cir.1995), cert. denied, 516 U.S. 1084, 116 S.Ct. 800, 133 L.Ed.2d 747 (1996); Gibbs, 779 F.2d at 1046 (a guard “may not harass an inmate in retaliation for the inmate complaining to supervisors about the guard‘s conduct“) Ruiz v. Estelle, 679 F.2d 1115, 1154 (5th Cir.) (holding that prison officials were prohibited from “retaliati[ng] against inmates who complain of prison conditions or official misconduct“), opinion amended in part and
IV. Retaliation Claim
Clarke alleges he was retaliated against for having taken legal action against the Department of Corrections while incarcerated at WCI. Specifically, Clarke states he received ten write-ups in a two-month period after his lawyer successfully petitioned for an injunction ordering the prison to conduct a re-test of a positive drug test and after a dispute involving a phone call Clarke made to his lawyer that was terminated by prison authorities. In addition to the disciplinary charges, Clarke alleges that Sergeant Doug Goss physically and verbally assaulted him in his cell and read his legal mail. He also contends that Sergeants Steve Miller and Doug Miller verbally and sexually harassed him by forcing him to expose his genitalia to them and writing him up when he initially refused their demands. He argues that the guards utilized “irregular procedures” in terms of the number, frequency, and results of the write-ups and he introduced evidence to support these contentions, including that he had received only seven write-ups in the previous three years. He was given disciplinary hearings on these charged infractions, was found guilty of all of them, and was punished with the loss of good-time credits, time in isolation, and ultimately with transfer to the state penitentiary at Angola because of his “poor conduct.”
It is well established that prisoners enjoy a constitutional right to access the courts. E.g., Bounds v. Smith, 430 U.S. 817, 97 S.Ct. 1491, 52 L.Ed.2d 72 (1977). It is equally well established that prison officials may not retaliate against a prisoner for exercising this right. Woods, 60 F.3d at 1164; Gibbs, 779 F.2d at 1046; Campbell v. Beto, 460 F.2d 765, 768 (5th Cir.1972). The elements of a retaliation claim are the “invocation of a ‘specific constitutional right,’ the defendants’ intent to retaliate against the plaintiff for his or her exercise of that right, a retaliatory adverse act, and causation, i.e., ‘but for the retaliatory motive the complained of incident ... would not have occurred.’ ” Johnson v. Rodriguez, 110 F.3d 299, 310 (5th Cir.1997) (quoting Woods, 60 F.3d at 1166). With respect to the last element, we emphasized in Woods that “[a]n action motivated by retaliation for the exercise of a constitutionally protected right is actionable even if the act, when taken for a different reason, may have been legitimate.” 60 F.3d at 1165.
We hold that the magistrate judge‘s determination that prison officials did not retaliate against Clarke should stand. She based her determination on her finding that the guards were unaware of the incidents with the drug test and the shortened phone call. She made this finding after hearing the testimony of Clarke, Warden Day, and the guards at trial. Although Warden Day admitted on cross-examination that many people at the prison were aware of the incidents and Clarke testified to the guards’ retaliatory intent, the guards themselves testified they had no knowledge of them. Based on her observation of the witnesses’ demeanor, she found the guards credible. Because the guards were unaware of these incidents, she concluded, they could not have acted with a retaliatory animus.
The Federal Rules of Civil Procedure direct us to defer to a trial court‘s finding of fact unless we determine it to be “clearly erroneous.”
Regardless, we need not decide here how far Bose extends outside of the defamation arena because, even if it applies to retaliation claims, it would not change the standard of review in this case. The de novo review prescribed by Bose is limited, in the defamation context, to the question of whether a defendant acted with actual malice. Bose, 466 U.S. at 514, 104 S.Ct. at 1967. The only element of a retaliation claim that resembles a finding of “actual malice” is that requiring the defendant to have acted with retaliatory intent. Assuming Bose extends to our review of this claim, there is no reason to believe it would apply more broadly here than it does in the context of a defamation claim. We have held that Bose review does not extend to preliminary fact findings and credibility determinations made by the trier of fact. Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 560 (5th Cir.1997); Brown v. Petrolite Corp., 965 F.2d 38, 46 (5th Cir.1992). Because the magistrate judge‘s finding on the element of intent was premised upon a preliminary finding of no knowledge of Clarke‘s legal activities—itself based upon an evaluation of witness credibility—Bose would not mandate de novo review. Accordingly, we review for clear error.
A finding is clearly erroneous when, although there is evidence to support it, our review of the evidence leaves us with the “definite and firm conviction that a mistake was committed.” United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 541-42, 92 L.Ed. 746 (1948). In a bench trial, the assessment of witness credibility is a task assigned to the trial judge, who is able, unlike reviewing appellate judges, to see and hear witnesses as they testify. Accordingly, we are “especially reluctant to set aside findings that are based upon a trial judge‘s determination of the credibility of witnesses giving different accounts.” Ruiz, 679 F.2d at 1131; United States v. Wiring, Inc., 646 F.2d 1037, 1041 (5th Cir. Unit B 1981) (“appellate courts should be loathe to set aside such determinations“). With this in mind, we turn to Clarke‘s argument as to why the magistrate judge erred. He states that the chronology of events in this case mandates a finding that the defendants retaliated against him. We held in Jackson v. Cain, 864 F.2d 1235, 1248 (5th Cir.1989), that a prisoner made out a legally sufficient claim of retaliation based upon a “chronology of events” that suggested retaliation had occurred. Summary judgment was therefore inappropriate because a fact issue existed as to retaliatory intent. Here, by contrast, the fact issue has been resolved. Although the events are suspicious, we have no real basis for disturbing the magistrate judge‘s finding on this issue.
V. Conclusion
We have determined that Clarke‘s challenge to his disciplinary conviction, to the extent it seeks to recover lost good-time credits, is barred by Preiser. To the extent he seeks damages, his claim is barred by Heck. Accordingly, we vacate the magistrate judge‘s entry of judgment in favor of him on this claim and we remand with instructions to dismiss the claim without prejudice to his filing again should he obtain the requisite habeas relief. We express no opinion on the merits of any habeas claim he might pursue. With respect to Clarke‘s claim for prospective relief from enforcement of the challenged portions of Rule 3, we affirm the magistrate judge‘s determination that the rule is unconstitutional on its face. We likewise affirm the magistrate judge‘s determination that prison officials did not retaliate
AFFIRMED in part and VACATED and REMANDED in part with instructions.
EMILIO M. GARZA, Circuit Judge, dissenting:
Because I disagree that Clarke‘s facial challenge to Rule 3 is cognizable under
The majority concludes that Clarke‘s claim for prospective relief does not necessarily imply the invalidity of his previous loss of good time credits, and therefore may properly be brought under
At issue in this case is that portion of Rule 3 which allows prison officials to discipline inmates for “threatening” legal redress during a “confrontation situation.” Plaintiff alleges that the Rule is unconstitutional on its face or was at least unconstitutionally applied to him in violation of his First Amendment rights. From the evidence that was presented at trial, the Court readily infers that plaintiff was stripped of good time credits and was transferred to a medium security prison in retaliation for voicing his intention to exercise his First Amendment rights.
Nothing in this language indicates that the magistrate determined that Clarke had been punished for anything other than violating Rule 3‘s legal redress provision. Moreover, the magistrate states later in the order: “Had [Clarke] threatened the defendant with physical harm or insulted the employee or his family, disciplinary action against [Clarke] would have been appropriate under the other, unchallenged portions of DOC Rule 3.” (emphasis added). The clear implication of this statement is that Clarke was not disciplined for violation of “the other, unchallenged portions” of Rule 3. Under these circumstances, a conclusion that the “legal redress” provision in Rule 3 is unconstitutional would necessarily call into question the validity of the deprivation of Clarke‘s good time credits. As such, Clarke would be unable to bring this suit pursuant to
However, in the event that Clarke can maintain his facial challenge to Rule 3 under
Moreover, even if this “right” is one that inmates are entitled to exercise, alternative means exist for that exercise. Rule 3 specifically states that “threatening to write to the Secretary, the Warden or other institutional officers is not a violation” of the rule. Thus, even during a confrontation, an inmate can communicate his grievance to his chosen recipient by threatening to report the employee to the Secretary, the Warden or another institutional officer. See Muhammad v. Pitcher, 35 F.3d 1081, 1085 (6th Cir.1994) (stating that relevant inquiry is whether rule leaves inmate with alternate means of communicating grievance to chosen recipient). In addition, an inmate can presumably communicate his grievance to his chosen recipient in the form of an administrative complaint.
I also disagree with the majority‘s conclusion that no adverse impact will result from accommodation of the “right” to threaten prison employees with legal redress in confrontation situations. I view the relationship between Rule 3‘s prohibition on threats of legal redress during confrontations and the State‘s asserted interest in preserving order in its prisons as quite legitimate. Permitting inmates to threaten employees with legal redress in confrontation situations can only contribute to the tension undoubtedly present in such situations; escalating tension can lead to violence. Minimizing the occurrence of such escalation by prohibiting threats of legal redress in heated situations is a legitimate security measure. See Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974) (“[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.“). The authority the majority cites as support for its conclusion that the relationship between Rule 3 and the State‘s interest in preserving order in its prisons is “tenuous at best” pertains to police officers, not to prison guards.
Furthermore, the authority the majority cites in support of its conclusion that “the challenged portion of Rule 3 does not have the ‘reasonable relationship’ to the goal of prison order and security that the Constitution requires” does not address analogous factual situations. To the contrary, the cited cases are retaliation cases and as such are irrelevant to our analysis of the facial validity of Rule 3. In sum, I would conclude that Rule 3 is valid because it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987) (holding that prison regulation that impinges on inmate‘s constitutional rights is valid “if it is reasonably related to legitimate penological interests“).