Lead Opinion
COLE, J., delivered the opinion of the court, in which KEITH, J., joined.
McKEAGUE, J. (pp. 279-81), delivered a separate dissenting opinion.
OPINION
Defendants-Appellants Patricia L. Caruso, Director of the Michigan Department of Corrections (“MDOC”), Linda Matuszak, the Record Office Supervisor at Saginaw Correctional Facility, and Jan E. Trombley, the Warden at Saginaw Correctional Facility (collectively, “Defendants”), appeal the district court’s denial of their motion to reconsider its order enjoining them from enforcing subsection (HH)(23) (“Rule 23”) of MDOC Policy Directive (“MDOC PD”) 05.03.118 (“Prisoner Mail”), which pro se Plaintiff-Appellee Walter Jones claims infringes on his First Amendment and Due Process rights. MDOC PD 05.03.118, which became effective on March 19, 1985, sets forth MDOC’s guidelines for prisoners’ mail rights. The directive includes a list of prohibited materials prisoners “shall not be allowed to receive ... as they are considered to be a threat to the order and security of an institution or to the rehabilitation of prisoners.” MDOC PD 05.03.118(N).
This case relates to Rule 23 of the policy directive, which specifically regulates prisoners’ possession of UCC-related materials. Defendants argue that the district court’s injunction should be dissolved because: (1) the district court mistakenly found UCC-related materials to be “legal mail” subject to heightened First Amendment protections; (2) the district court erred in finding that Rule 23 is not rationally related to the legitimate penological objective of maintaining order and discipline in MDOC prisons; (3) the district court erred in finding that Rule 23’s scholarly-materials exception did not alleviate First Amendment concerns; (4) the district court’s issuance of the injunction interfered with the “well-supported judgment of prison officials”; and (5) the district court erroneously applied the standard for the issuance of preliminary injunctions. Jones counters that: (1) this Court cannot consider arguments that Defendants have raised for the first time on appeal; (2) Defendants have regulated their UCC ban through other MDOC directives, obviating the need to dissolve the injunction; and (3) the district court properly determined that the facts met the standard for issuance of a preliminary injunction. Although the district court abused its discretion in applying the incorrect level of scrutiny to analyze Rule 23, for the following reasons, we AFr FIRM the district court’s preliminary injunction on its merits and REMAND the case to the district court for further consideration not inconsistent with this opinion.
A. Factual Background
1. Development of Rule 23
Since 2004, there has been a nationwide increase in the number of filings by prison inmates of unsubstantiated liens and Uniform Commercial Code (“UCC”) financing statements against state or federal officials involved with their incarceration. See, e.g., United States v. Gordon, No. CV205-158,
On March 30, 2004, in response to increased activity by Michigan prisoners engaging in these types of fraudulent schemes, MDOC Director, Defendant Caruso, used her authority to establish policy through a Director’s Office Memorandum (“DOM”) and enacted DOM 2004-8, “Fraudulent Activities Involving the Uniform Commercial Code.” See Jones v. Mich. Dep’t of Corrs., No. 05-CV-72817-DT,
On June 6, 2005, DOM 2005-4 was superseded by MDOC PD 05.03.118(HH)(22)
PROHIBITED INCOMING MAIL
HH. Prisoners are prohibited from receiving mail that is a threat to the security, good order, or discipline of the facility, may facilitate or encourage criminal activity, or may interfere with the rehabilitation of the prisoner. The following pose such risks within a correctional facility under all circumstances and therefore shall be rejected.
22. Mail regarding actions that can be taken under the Uniform Commercial Code (UCC). This does not include legal materials which set forth the statute or provide a scholarly legal analysis of the UCC.
(JA 21.) Rule 22 prohibited prisoners from receiving and possessing certain UCC-related materials but was interpreted by the MDOC officials as making exceptions for UCC-related publications held in the prison law library, such as the Michigan Compiled Laws Annotated or scholarly analyses of the relevant statutes. See Jones,
On January 1, 2006, MDOC amended MDOC PD 05.04.118(HH), such that subsection HH(22) now states (in renumbered sub-paragraph 23 (“Rule 23”)):
23. Mail regarding actions that can be taken under the Uniform Commercial Code (UCC) which could be used to harass or threaten another individual, including the filing of a lien against the individual. This does not include legal materials which set forth the statute or provide a scholarly legal analysis of the UCC.
(JA 397) (emphasis added). MDOC also sought legislation that would make inmates’ UCC abuses punishable as criminal offenses, and, in 2004, it became a felony in Michigan to knowingly and intentionally file a false or fraudulent financing statement with the Secretary of State under the UCC. See Mich. Comp. Laws § 440.9501(6) (2004).
2. Enforcement of Rule 23 against Jones
Jones is currently serving a life sentence in the custody of MDOC. After MDOC enacted DOM 2004-8, Jones notified prison officials that he possessed books, pamphlets, forms, and other literary materials that referenced usage of the UCC regulations but were not associated with criminal or fraudulent activity. On February 10, 2005, Jones attempted to send a letter to the Michigan Secretary of State seeking forms related to Michigan copyright and trademark registration laws. On February 14, 2005, Jones’s metered envelope was
B. Procedural history
Jones filed his complaint on July 19, 2005, alleging under 42 U.S.C. § 1983, that DOM 2004-8 suppresses communication and is facially overbroad in violation of the First Amendment. Because DOM 2004-8 was superseded by Rule 22, the magistrate and district judges construed Jones’s claims as arising from Rule 22. Haines v. Kerner,
Jones sought the following relief: (1) a declaratory judgment stating that DOM 2004-8 and Rule 45 were unconstitutional under the First and Fourteenth Amendments to the Constitution; (2) an injunction to prevent MDOC’s enforcement of both DOM 2004-8 and Rule 45; (3) an injunction requiring Defendants to notify Jones when they confiscate or reject his outgoing mail; (4) compensatory damages of $800; and (5) punitive damages of $950. Defendants moved for summary judgment. In support of their motion for summary judgment, Defendants attached evidence showing that Michigan prisoners were filing fraudulent liens. Specifically, Defendants’ Exhibit C to their Motion for Summary Judgment consists of eighteen pages of documents including correspondence from the Michigan Secretary of State’s office; copies of “Common-Law Copyright & Trade-Name/Trademark Self-Executing Contraci/Seeurity Agreement in Event of Unauthorized/Unlawful Use” purporting to allow a prisoner to claim a trademark interest in his own name; newspaper advertisements purporting to assert a copyright interest in a prisoner’s name; a complaint against an MDOC employee for violation of a prisoner’s contractual rights, and an assertion of a debt of $6,000,000 against an MDOC employee for alleged abuses of a prisoner’s copyrighted name.
On July 10, 2006, the magistrate judge issued a Report and Recommendation (“R & R”), which recommended that the district court grant Defendants’ motion for summary judgment as to Defendants Caruso, Trombley, and Matuszak in their individual capacities based on qualified immunity. However, the magistrate judge recommended the denial of Defendants’ motion to dismiss Jones’s request for injunctive relief against them in their official capacities and that the district court issue a temporary restraining order enjoining MDOC’s enforcement of Rule 22. The magistrate judge concluded that Jones had demonstrated a likelihood of success on the merits of his claim that Rule 22 violated his First Amendment rights and was also unconstitutionally vague and over-broad.
Defendants objected to the R & R, contending that Jones’s claims were mooted by MDOC’s January 1, 2006 enactment of Rule 23. On July 21, 2006, the magistrate judge issued an Amended R & R determining that Rule 23 acceptably modified Rule 22, making an injunction unnecessary. Jones then objected to the Amended R & R.
On September 28, 2005, the district court adopted the magistrate judge’s R & R but rejected his Amended R & R. The court explained that although Defendants
The added language of [Rule 23] limits UCC materials, which could be used to harass or threaten another individual, including the filing of a lien against the individual. Although this policy does not appear to be related to the “security” of the prisons, the policy may be addressing the prison’s “other legitimate penological obj ectives”-“harassment” and “felony” activities, as argued by Defendants. The added language allows confiscation of UCC materials relating to a lien to be placed on “another” individual, which is a vague term. Although defendants in their summary judgment motion submitted examples of two other prisoners who may have placed or attempted to place liens against two individuals who appear to be employed with the State of Michigan, there is no affirmative evidence or statement by the two individuals identified that these liens were in fact improper or illegal or that the prisoners were successful in filing the liens. Defendants also do not cite any authority or statute (federal or state) that shows the filing of a lien against “another” individual is prohibited or is a “felony” as argued by Defendants. The added language is vague as to the “individual” the policy attempts to protect and does not limit the filing of a lien which may be legitimate or legal.
(JA 341-42.) The district court then enjoined Defendants’ enforcement of Rule 23, pending resolution of the parties’ dispute.
Defendants subsequently moved for rehearing or reconsideration based on an alleged “palpable defect” in the district court’s decision. Defendants argued that Rule 23 is narrowly tailored to prevent MDOC prisoners from committing fraudulent acts against individuals and that it did not unconstitutionally infringe on prisoners’ abilities to obtain lawful liens or to possess forms, pamphlets, and other items that could facilitate the commission of fraudulent prisoner activity. On April 13, 2007, Defendants filed a supplemental brief in support of their motion, citing two recent Michigan federal district court decisions involving similar issues: Mitchell v. Caruso, No. 06-11567,
On September 28, 2007, the district court denied Defendants’ motion for reconsideration. The court found that though Defendants had cited specific instances of UCC fraud committed by MDOC prisoners against Michigan employees, “Defendants fail[ed] to adequately address the [c]ourt’s concern regarding Rule 23’s overinclusiveness and d[id] not address underinclusiveness at all.” (JA 455.) The court explained:
*265 Defendants acknowledge Rule 23’s over-inclusiveness, but suggest that the MDOC has a process, already in place, that is capable of sifting out legitimate UCC-related prisoner mail. Defendants assert that, if a prisoner believes that his UCC-related mail has been inappropriately confiscated, there is a process by which he may request a hearing to determine the appropriateness of the confiscation. The Court is not convinced that such a remedy, which is the same relief available to a prisoner for “any [type of] rejected or confiscated material,” is well-suited for prisoners seeking relief from Rule 23. Courts must ensure that prisoners are afforded greater First Amendment protection for their legal mail than with other items. Moreover, there is a heightened First Amendment concern when prison officials place restrictions on legal mail. Defendants’ proposed remedy does not meet this heightened test.
(JA 455) (internal citations omitted) (emphasis added). Defendants now appeal the district court’s decision and ask this Court to dissolve the injunction.
II. ANALYSIS
A. Standard of review
We review for abuse of discretion, the district court’s denial of Defendants’ motion for reconsideration. United States v. Brown,
Defendants’ motion for reconsideration involves the district court’s issuance of Jones’s request for injunctive relief, and this Court reviews a district court’s decision to grant or deny a preliminary injunction for abuse of discretion. United States v. Any & All Radio Station Transmission Equip.,
Notwithstanding this balancing approach, “[w]hen a party seeks a preliminary injunction on the basis of a potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.” Connection Distrib. Co. v. Reno,
B. This Court may consider Defendants’ arguments on appeal
As a threshold matter, we must address Jones’s assertion that this Court should not consider the following arguments raised by Defendants for the first time on appeal: (1) UCC materials are not “legal mail” warranting heightened scrutiny; (2) Rule 23 is rationally related to a legitimate penological purpose and does not infringe on prisoners’ First Amendment rights; (3) the district court erred in its analysis of Rule 23’s scholarly-materials exception; and (4) the district court failed to accord the prison officials the required deference in evaluating Rule 23. Jones asserts that a decision on the merits would be improper where he had no opportunity to present opposing arguments or evidence.
Although this Court adheres to the general rule that “[i]ssues not presented to the district court but raised for the first time on appeal are not properly before the court,’ ” see, e.g., St. Marys Foundry, Inc. v. Employers Ins. of Wausau,
C. The district court erred by applying the incorrect standard of review to Rule 23
The district court found that Rule 23 unconstitutionally limits inmates’ right to send and receive “legal mail” and reviewed the rule under a heightened standard, rather than under the standard typically applied to challenged prison regulations. For the reasons that follow, we find that the district court applied the wrong standard of review to its analysis of Rule 23.
The Supreme Court has identified four factors generally relevant to determining the reasonableness of a challenged prison regulation (the “Turner factors”):
1. there must be a valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it;
*267 2. there must be alternative means of exercising the right that remain open to prison inmates;
3. we must consider the impact that accommodation of the asserted constitutional right will have on guards and other inmates and on the allocation of prison resources ■ generally; and
4. there must not be alternatives available that fully accommodate the prisoner’s rights at de minimis cost to valid penological interests.
Turner v. Safley,
The Supreme Court has made it clear that prison inmates retain all First Amendment rights not incompatible with their status as prisoners, “or with the legitimate penological objectives of the corrections system.” Pell v. Procunier,
This Court has held that a review of regulations governing “legal mail” is subject to a heightened standard. See Sallier v. Brooks,
Here, the district court erred by applying heightened review when the UCCrelated materials at issue are not “legal mail.” The confiscated letter Jones attempted to mail to the Michigan Secretary of State’s office, requesting information about copyrighting and trademark registration in Michigan, resembles the correspondence with the county clerk that we previously determined was not “legal mail” in Sallier.
The documents set forth in Defendants’ Exhibit C in support of their Motion for Summary Judgment do not constitute “legal mail” either. See supra at I.B. Because those documents all relate to the administrative process of perfecting a security interest and enforcing that interest through the Secretary of State’s office, and they do not implicate Jones’s constitutional right of access to the courts, they are not entitled to greater First Amendment protections. Sallier,
Finally, it bears mention that both the Third Circuit and a Michigan federal district court have recently concluded that the challenged types of UCC-related mate
For all these reasons, the district court’s application of the heightened scrutiny applicable to outgoing “legal mail” was in error. Defendants argue that our inquiry, should end here and that we should vacate the injunction and remand the issue to the district court for analysis under the proper standard. We disagree.
Defendants are correct that “[generally, a panel entertaining a preliminary injunction appeal decides only whether the district court abused its discretion in ruling on the request for relief and does not go into the merits any further than necessary to determine whether the moving party established a likelihood of success.” Rogers v. Corbett,
D. Analysis of Jones’s preliminary injunction motion
As noted supra, a court’s decision on whether to grant a motion for preliminary injunction involves a balancing of the following factors: (1) the likelihood that the movant will succeed on the merits; (2) whether the movant will suffer irreparable harm if the injunction is not granted; (3) the probability that granting the injunction will cause substantial harm to others; and (4) whether the injunction advances the public interest. See Six Clinics Holding Corp.,
1. Likelihood of success on the merits
a. Application of the Turner factors
To determine the likelihood that Jones will succeed on the merits of his claim that Rule 23 violates his First Amendment right to communication, see Brooks,
With respect to the first factor' — • whether there is a valid, rational connection between the regulation and a legitimate government interest — Jones concedes that Rule 23 furthers the legitimate government interest of preventing prisoners from committing fraud under the UCC. See Lewis v. Caruso, No. 1:08-cv-28,
As to the second factor — whether Rule 23 leaves Michigan inmates other opportunities to access UCC-related materials— Defendants argue that “by limiting the allowable works to ‘scholarly’ and statutory materials, [Defendants] • exclude[ ] all inmate-generated how-to manuals on fraudulent liens and other UCC abuses, as well as forms generated for UCC abusive filings, but allow[] in legitimate publica
Other Michigan federal district courts have found that MDOC PD 05.03.11 affords prisoners reasonable alternatives for prohibited UCC-related material such that it does not infringe on their First Amendment rights. See Strickland v. Caruso,
The MDOC mail policy represents a rational means by which to achieve the legitimate goal of preventing prisoners from engaging in fraudulent and illegal behavior. While [the Policy Directive] prevents prisoners from possessing “books, pamphlets, forms or other material regarding actions that can be taken under the UCC,” prisoners were still permitted to possess “publications in the law library, such as Michigan Compiled Laws Annotated, that set forth the statute or provide a scholarly legal analysis of the UCC.” The Court concludes, therefore, that there exists a “valid, rational connection” between the policies at issue and a legitimate government interest.
Jones’s argument that the effectiveness of an administrative hearing to determine whether MDOC officials used Rule 23 in violation of a prisoner’s First Amendment rights is undermined by the rule’s inherent vagueness is not well-taken. Unlike the cases on which Jones relies, in which courts invalidated ordinances because the bounds of official discretion were “defined so imprecisely” as to invite action in violation of the First Amendment, see, e.g., Leonardson v. City of East Lansing,
The mayor’s -order need not be conditioned upon the existence of an imminent threat of property destruction or violence or upon any other meaningful and explicit standard. Accordingly, [the ordinance] impermissibly delegates discretionary authority to, the chief of police and mayor to inhibit the exercise of First Amendment freedoms by enforcing the [ordinance in an arbitrary and discriminatory manner.
Here, Rule 23 is not so vague that MDOC officials conducting an administrative hearing would be able to exclude materials for impermissible reasons. See Thompson v. Campbell,
Under the third Turner factor, we must consider the “impact accommodation ... will have on guards and other inmates, and on the allocation of prison resources generally.” Washington v. Harper,
However, Defendants’ arguments are undermined by the fact that reasonable alternatives to Rule 23 exist at what appears to be a minimal cost to MDOC. As our analysis of the fourth Turner factor stresses, effective rules have been developed that allow prisoners to receive a broad range of UCC-related materials while still limiting fraudulent filings. Thus, an injunction of Rule 23 would have little practical effect on Defendants. Under the fourth Turner factor, the prisoner bears the burden of challenging a regulation by showing that there are obvious and easy alternatives to the regulation in question, noting:
the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an “exag*273 gerated response” to prison concerns. This is not a “least restrictive alternatives test”____ But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.
Turner,
Specifically, Jones asserts that PD 05.03.118 ¶ D(7) (“Rule 7”) and PD 05.03.118 ¶ HH.3 (“Rule 3”), which MDOC enacted to prevent inmates from receiving through the mail or otherwise possessing UCC-related materials that would foster the fraudulent misconduct but allow prisoners access to a wider range of legitimate materials, are sufficient substitutes for Rule 23. Rule 7 prohibits mail that is a “threat to the security, good order or discipline of the facility, may facilitate or encourage criminal activity or may interfere with the rehabilitation of the prisoner” including “[m]ail for the purpose of operating a business enterprise from within the facility.” (JA 391-92.) Rule 3 prohibits “mail advocating or promoting the violation of [a] statute or federal laws.” (JA 396.) It is undisputed that Defendants have used Rules 3 and 7 to confiscate prisoners’ UCC-related mail. In fact, in November 2006, MDOC officials confiscated various UCC documents from Jones himself after the prison librarian notified them that she believed Jones planned to use the documents to file a $5,000,000 fraudulent lien. The district court denied Jones’s motion for contempt in which he argued that MDOC should be sanctioned for using Rules 3 and 7 to deliberately avoid the effect of the court’s injunction, noting, “MDOC does not need to rely on [Rule 23] to confiscate UCC-related materials. Although the MDOC has specifically been enjoined from enforcing Rule 23 by the Court ‘the MDOC is not similarly enjoined from forbidding inmates from possessing materials which might promote criminal activity.’ ” (JA 458). The district court’s ruling strongly suggests that Rules 3 and 7 are effective alternatives to Rule 23.
Jones also refers the Court to an October 6, 2006 email sent from Stapleton to all MDOC wardens, entitled “Notice of Preliminary Injunction/UCC Materials,” that specifically directs the wardens that the injunction prevented them from confiscating prisoner mail under Rule 23, but reminds them that they could still prohibit prisoners from receiving potentially problematic UCC-related materials through other means. The email states, in relevant part:
Effective immediately, UCC material shall not be rejected under Paragraph HE, no. 23 of PD 05.05.118.
In addition, since the same criteria is used to determine whether UCC material found in a prisoner’s possession is contraband or not, UCC material found in a prisoner’s possession shall not be confiscated for this purpose. UCC material that is evidence of a major misconduct charge is still appropriately confiscated and processed in accordance with*274 PD 03.03.106 “Prisoner Discipline” (for example: Insolence based on staff harassment by filing fraudulent liens). Prisoners are also still prohibited from receiving mail, or having written material in their possession, that poses a threat to the security, good order, or discipline of the facility, may facilitate or encourage criminal activity, or may interfere with the rehabilitation of the prisoner. UCC material that can no longer be rejected under [Rule 23], and is not evidence of a misconduct, may still otherwise violate policy based on the nature of the specific material received. Therefore, if any UCC material is received in the mail or found in a prisoner’s possession which would have been rejected or confiscated under [Rule 23], Norma Killough[, of Corrections Facilities Administration,] is to be contacted as soon as possible for direction on how to proceed ....
(Pl.Br., Ex. B.) Accordingly, through this email, MDOC concedes that wardens can (and should) continue to confiscate UCC-related materials without resorting to Rule 23.
Finally, Jones has attached a November 17, 2006 letter he wrote to Defendant Caruso, suggesting the following alternative wording of Rule 23:
23. Mail or publications clearly subversive in nature, disseminated for the purpose of teaching [their] readers how to engage in fraudulent or illegal activities under the Uniform Commercial Code (UCC). Possession of blank UCC forms (e.g., UCC 1 “financial statements” etc.) are [sic] also prohibited; except where there is a clear need to file genuine UCC[-]related claims. Nonsubversive UCC publications, legal and nonlegal material are permitted and shall not be restricted solely on the basis of content (i.e., copyright, trademark, patent or other UCC information.)
(Pl.Br., Ex. A.)
We are aware that “[t]he resources of the MDOC are limited and the Court must accord ‘wide-ranging deference’ to the solutions implemented by prison officials to combat the very serious problem of UCC-related fraud perpetrated by prisoners.” Marr v. Caruso, No. 1:07 CV 745,
On balance, the Turner factors appear to favor Jones, and we are not convinced that Rule 23 is necessary to further Defendants’ undoubtedly legitimate interest in preventing prisoners from filing fraudulent UCC liens. Thus, we find that Jones is likely to succeed on the merits of his First Amendment claim.
b. Vagueness
We also must consider Jones’s likelihood of success on the merits of his vagueness claim. In his Complaint, Jones asserted that DOM 2004-8
Although [Jones] has framed his attack on the directive on the basis of over-breadth (and I agree that it is over-broad) this alone is insufficient to find a constitutional violation. Overbreadth has little or no role “in civil litigation dealing with prisons’ internal operations. Some open-ended quality is essential if a prison is to have any guidelines; it is impossible to foresee all literature that may pose a threat to safety and security.” Borzych v. Frank,439 F.3d 388 (7th Cir.2006) (internal citations omitted). However, the policy directive ... lends itself to a “void-for-vagueness” analysis. “The void-for-vagueness doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement.” Bailey v. Carter,15 Fed.Appx. 245 , 252,2001 WL 845446 , [at] *4 (6th Cir.2001); Kolender v. Lawson,461 U.S. 352 , 357,103 S.Ct. 1855 ,75 L.Ed.2d 903 (1983) (internal citations omitted.) However, an individual “raising a facial attack must demonstrate that the regulation is impermissibly vague in all of its applica*276 tions-including its application to his case.” Walker v. McCaughtry,141 Fed. Appx. 460 , 462,2005 WL 1515471 , [at] *2 (7th Cir.2005); Vill[.] of Hoffman Estates v. Flipside Hoffman Estates, Inc.,455 U.S. 489 , 497,102 S.Ct. 1186 ,71 L.Ed.2d 362 (1982).
(JA 298). The district court adopted the magistrate judge’s conclusion that Rule 23 was impermissibly vague, explaining:
The only material [Rule 23] clearly permits is access to “scholarly” UCC publications treatises written for use and study by lawyers and law students. Does it include treatises written by a business professor at the University of Pennsylvania? Does it include all UCC-related government publications composed for layman use? Alternatively, if it were interpreted to include government publications, would publications written by non-profit organizations for pro se litigants be forbidden?
(JA 342-43.)
Although the district court adopted the magistrate judge’s conclusion that Rule 23 was unconstitutionally vague, it appears to have issued the injunction on the basis of Jones’s First Amendment right to send “legal mail,” simply noting the vagueness issue as an afterthought. Nonetheless, the fact that Jones has argued the void-for-vagueness issue as a separate basis on which this Court could uphold the injunction makes it appropriate to consider in our evaluation of Jones’s likelihood of success on the merits.
A law or regulation can be deemed unconstitutionally vague if “men of common intelligence must necessarily guess at its meaning and differ as to its application.... ” Connally v. Gen. Constr. Co.,
Jones knew that his UCC-related materials violated MDOC’s Policy Directive. In fact, his Complaint expressly states that following the enactment of DOM 2004-8, (which was soon superseded by Rules 22 and 23), “Plaintiff additionally made Defendant Trombley aware that he was a certified paralegal, and that he possessed books, pamphlets and other materi
2. Irreparable injury
While the “likelihood of success” prong is the most important to our analysis and often determinative in First Amendment cases, see Connection Distrib.,
Rule 23 implicates Jones’s First Amendment rights, and the Supreme Court has long held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” See Elrod v. Burns,
8. Balancing of the harms
Next, we must balance the harm that MDOC prisoners would face from the enforcement of Rule 23 against that which Defendants would face if we uphold the injunction. The district court adopted the magistrate judge’s conclusion that the possible harm to prisoners caused by Rule 23’s enforcement pending resolution of the case outweighed any potential harm to Defendants from the temporary enjoinment of the rule. The magistrate judge reasoned that because Defendant Caruso could issue a superceding Director’s Office Memorandum at her discretion, Defendants could “immediately replace” the rule with a “narrower but effective directive which addresses the issue at hand.” (JA 304.) In fact, as noted by the magistrate judge in his amended R & R, Defendants did quickly replace Rule 22 with the amended Rule 23, although that rule was also deemed impermissible by the district court.
Defendants argue that the potential injury to Jones from lifting the injunction while the case proceeds is minimal, and that the district court failed to consider Defendants’ duty to protect the public interest. However, we believe that the balancing of the harms favors Jones. We have previously noted that:
[T]he purpose of the [balance of harms] test is ... to underscore the flexibility which traditionally has characterized the law of equity. It permits the district court, in its discretion, to grant a preliminary injunction even where the plaintiff fails to show a strong or substantial probability of ultimate success on the merits of his claim, but where he at least shows serious questions going, to the merits and irreparable harm which decidedly outweighs any potential harm to the defendant if the injunction is issued.
Friendship Materials, Inc. v. Mich. Brick, Inc.,
k. Public interest
Lastly, we must consider whether the public interest favors the issuance of the preliminary injunction. The magistrate judge considered the issue within his analysis of balancing of the harms. As noted supra, the district court adopted the magistrate judge’s conclusion that the public interest in preventing prisoners’ abusive filings would not be harmed by the preliminary injunction because the Defendants could quickly modify Rule 22 (later, Rule 23) to prevent such filings UCC without infringing on their constitutional rights. We agree that this final factor favors Jones, but for different reasons.
We have explained that “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Connection Distrib.,
5. Conclusion
Although the district court incorrectly applied a heightened level of review to Rule 23, á balancing of the relevant factors clearly demonstrates that the court’s issuance of the preliminary injunction was proper. We recognize Defendants’ concern over the rampant problem of prisoners’ filing of fraudulent liens, and we do not question that in most cases, we defer to prison administrators’ professional judgment in regard to instituting and enforcing prison policies. Overton v. Bazzetta,
Defendants have not provided us with any reasons why they cannot adequately regulate prisoners’ ownership and use of UCC-related materials through alternative regulations, i.e. Rules 7 and 3, Mich. Comp. .Laws § 440.9501, and other prison regulations. Moreover, Defendants de
III. CONCLUSION
For the foregoing reasons, we AFFIRM the district court’s preliminary injunction on its merits and REMAND the case to the district court for further consideration not inconsistent with this opinion.
Notes
. Unless the MDOC Director renews a DOM, it is effective only for the calendar year in which it is issued.
. Section 440.9501(6) provides:
A person shall not knowingly or intentionally file a false or fraudulent financing statement with the office of the secretary of state under subsection (l)(b) or (2). In addition to any other penalty provided by law, a violation of this subsection is a felony punishable by imprisonment for not more than 5 years or a fine of not more than $2,500.00, or both. If the person is convicted of the violation, the court may find that the financing statement is ineffective and may order the office of the secretary of state to terminate the financing statement and may order restitution.
Mich. Comp. Laws § 440.9501(6).
. As noted supra, Rule 23 prohibits, "Mail regarding actions that can be taken under the Uniform Commercial Code (UCC) which could be used to harass or threaten another individual, including the filing of a lien against the individual. This does not include legal materials which set forth the statute or provide a scholarly legal analysis of the UCC." (JA 399-401) (emphasis added).
. Because DOM 2004-8 was superseded by Rule 22, followed by Rule 23, for the purposes of this analysis, we have construed Jones’s overbreadth claim as a challenge to Rule 23. See Haines,
Dissenting Opinion
dissenting.
In my opinion, the majority misses the forest for the trees. Despite concluding (1) that the district court erred when it granted preliminary injunctive relief based on application of an erroneous legal standard; and (2) that Rule 23 is supported by a legitimate penological interest; and (3) that Rule 23’s restriction of Jones’s access to UCC materials leaves other alternative means of access readily available to him, the majority today upholds “extraordinary” preliminary injunctive interference with Michigan Department of Corrections officials’ management of a “very serious problem,” even in the absence of any showing by Jones of irreparable injury. This anomalous result stems from misapplication of the four-part standard set forth in Turner v. Safley,
At the outset, it bears emphasis that our application of the Turner standard comes in the context of a motion for preliminary injunction. Jones has the burden of establishing entitlement to such relief, by showing, inter alia, a substantial likelihood of success on the merits and that, absent relief, he will suffer irreparable injury. To establish a substantial likelihood of success on the merits, Jones must show that application of the Turner standard weighs in favor of finding that Rule 23 is an unreasonable regulation.
The Turner 'standard is designed, in recognition of the special needs of the prison setting and in deference to prison officials’ expertise and administrative judgment, to uphold prison regulations as valid, despite their impingement on inmates’ constitutional rights, if they are reasonably related to legitimate penological interests. Id. at 89,
The majority readily acknowledges that the first factor in the Turner standard is satisfied by Rule 23. That is, there is a rational connection between Rule 23’s restriction of prisoners’ access to UCC materials and the government’s legitimate interest in combating the serious problem of UCC-related fraud perpetrated by prisoners.
Consideration of the second factor, whether Jones has alternative means of access to UCC materials, is also deemed by the majority to favor upholding Rule 23. In other words, although Rule 23 impinges on Jones’s right to receive UCC materials in the mail, he retains access to UCC materials in the prison law library and even retains the right to receive them in the mail by using the grievance procedure to show he has a legitimate purpose (as opposed to a fraudulent or harassing
The third and fourth factors relate to the availability of still other alternative means of access. If other possible accommodations of Jones’s desire to receive UCC materials in the mail would have an adverse “ripple effect” on guards, other inmates or allocation of prison resources generally, then, the Supreme Court again admonishes, we are obliged to be “particularly deferential to the informed discretion of corrections officials.” Id. If, on the other hand, Jones identifies an easy alternative that would not pose a significant ripple effect, this could represent evidence that Rule 23 is not reasonable, but is an “exaggerated response” to prison concerns. Id. at 90-91,
Well, if Turner does not impose a “least restrictive alternative” requirement, and if, as the majority has found, Rule 23 allows at least two available and adequate alternatives, then why should it matter whether other alternatives might also be available, even if they might be less restrictive? And if Jones has failed to demonstrate that the existing accommodations are either burdensome or ineffective, then why should the existence of other possible accommodations that are not “shot down” by prison officials be deemed to suggest that the existing accommodations are unreasonable?
The majority does not purport to answer these questions, but sidesteps them. Its determination that the third and fourth factors demonstrate the unreasonableness of Rule 23 is not based on evidence that other accommodations have been unreasonably denied. Rather, instead of focusing on evidence of other means of access to UCC materials, the majority turns the factors around and focuses on evidence of other means of denying access. Finding that prison officials have employed various other ways of denying access without resorting to Rule 23, the majority concludes that Rule 23 is unnecessary.
In other words, instead of deferring to prison officials’ discretionary authority and upholding Rule 23 because Jones has not shown that it unreasonably restricts access, the majority has usurped their authority by barring enforcement of Rule 23 because prison officials have failed to show that Rule 23 is needed, inasmuch as restriction of UCC materials is or can be effected through other means. Or, even more plainly, the federal judicial power is invoked to intrude upon matters of state prison management not because Jones has shown that his rights are substantially abridged, but because the court, in its wisdom, has determined that it “knows better” than the prison officials — i.e., that a regulation promulgated by prison officials shall not be enforced because the work done by the regulation is also accomplished by other regulations.
In my opinion, the majority’s analysis and decision run directly contrary to Turney’s clear and insistent teaching to let prison administrators make the difficult judgments concerning institutional opera
Moreover, Jones’s showing of irreparable injury in support of preliminary injunctive relief is nonexistent. The majority is content to rely on oft-quoted language from the plurality opinion in Elrod v. Burns,
Thus finding that Jones has shown neither substantial likelihood of success nor irreparable injury, I believe the law clearly requires us to vacate the preliminary injunction issued by the district court as an abuse of discretion. I therefore respectfully dissent.