Phillip Wayne Harris v. David Evans, Commissioner, Lanson Newsome, Deputy Commissioner, A.G. Thomas, Warden

CLARK, Circuit Before JOHNSON *, District Judges, and BROWN Senior Judge.

PER CURIAM: Phillip Wayne Harris Plaintiff-appellee pursuant U.S.C. action filed this policy of the Geor- 1983, alleging that the prohib- Department of Corrections gia making pa- employees from correctional directly to the Geor- role recommendations Paroles Pardons and Board of gia State of the United violates dated Oc- In an order States Constitution. granted district court tober pauperis proceed Harris leave forma in a an inmate held that as * Brown, designation. Wesley Dis- Senior U.S. E. Honorable Kansas, sitting by Judge for the District trict prison subject parole, Harris has stand- raises facial allegation that he has been bring this action. Rl-1. The defen- injured by Department’s policy because dants-appellants, the Commissioner and it prevented employees from writing to Deputy Commissioner of the Georgia De- board on his implicit- behalf and partment of Corrections and the Warden of ly shows that a favorable decision would Reidsville, State Prison at filed injury, redress his the employees as a motion summary judgment, arguing no longer hesitate to write on his behalf employees that corrections do not have a of losing jobs. fear their We find First right Amendment to communicate di- injury sufficiently “distinct and palpable” rectly with the state regard- board to satisfy the “case or controversy” re- ing particular inmate. The quirement of Article III. Allen Wright, v. magistrate recommended that the motion 737, 751, 468 3315, U.S. 3324, 104 S.Ct. 82 summary judgment be denied on the (1984); see, L.Ed.2d 556 e.g., United States grounds that corrections employees do SCRAP, 669, 14, v. 412 U.S. 689 n. 93 S.Ct. have such a First right, Amendment and 2405, 14, 2417 n. (1973) 37 L.Ed.2d 254 the district court subsequently entered an (Holding that an “identifiable trifle” is suf- adopting order magistrate’s recommen- injury ficient standing); establish Sala- Rl-10, dation. 15. The district court sub- din v. City Milledgeville, 687, 812 F.2d sequently certified this appeal pursuant to (11th Cir.1987) 691 (Holding that “focus is 1292(b). 28 U.S.C. § qualitative on the injury, nature re- Although appellants did gardless be.”). of how may small [it] challenge standing Harris’s to bring this In addition satisfying the stand action in the district court or in their initial ing imposed by III, limitations Article appeal, briefs on we parties asked the plaintiff must also satisfy certain judicially brief jurisdictional this threshold issue. prudential created limitations. One of Having arguments, their reviewed we are plaintiffs these limitations is that “must that, convinced action, context of this generally assert legal own rights [their] Harris standing does have to assert interests, and cannot rest [their] First rights Amendment of corrections em to relief the legal rights claim[s]

ployees. The first hurdle in any parties.” interests of third Warth v. Sel inquiry is the imposed limitation by the din, 490, 499, 422 2197, 2205, U.S. 95 S.Ct. controversy” “case or requirement of Arti 45 L.Ed.2d (1975). 343 Harris’s action vio cle III of the Constitution. Secretary of general prohibition lates this against third- Maryland State Joseph v. H. Munson party standing, alleges he Co., because 947, 954, that he 2839, 467 U.S. 2845, 104 S.Ct. injured has been not as a result (1984); 81 L.Ed.2d 786 Singleton Wulff, infringement of his 106, 112, rights, 428 own but as the 2868, 2873, 96 S.Ct. infringement result of the (1976). To First surmount this hur dle, Amendment employ of corrections allege an actual or However, ees. injury allegations threatened the context of which is fairly traceable violations of First challenged rights, action and likely which is to be Court by a has found that compet redressed favorable decision. Valley Forge considerations outweigh College pru Christian v. Ameri against cans United dential rationale Separation For third-party Church stand State, Inc., ing. Munson, 464, 472, 102 454 U.S. 467 U.S. at S.Ct. at S.Ct. 752, 758, 81 L.Ed.2d at pro In his 786. The Court has complaint, se alleges Harris determined that dangers he has chilling asked employees corrections justify free relaxing write let ters to the behalf, against board on his but limitation third-party standing. “ have told him they explains ‘[ljitigants ... prohibited are doing so permitted fear ter to challenge a statute mination if they violate the Department’s their because own expression free policy. complaint, therefore, R1-2. His are violated but judicial pre- because of a L.Ed.2d at at 708. When assumption that the statute’s diction or regulate employer seeks to government not before may cause others very existence regarding pub- employee speech matters constitutionally refrain from court to ” concern, is “to seek ‘a lic courts’ task Virgi- expression.’ speech or protected Ass’n., Inc., the interests of the em- between balance American Booksellers nia v. citizen, commenting upon 636, 642, 392-93, ployee, 108 S.Ct. Munson, public concern and the interest 467 matters of (1988) (citing L.Ed.2d 782 State, promoting employer, as an 81 of the 956-57, at per- efficiency services it Okla- (quoting Broadrick L.Ed.2d at 786 ” Connick, employees.’ 601, 612, through forms homa, 413 U.S. (1973))). (quoting Pickering v. Board L.Ed.2d at 708 challenges a Therefore, plaintiff a when 563, 568, Education, 391 U.S. grounds as on statute 1734-35, (1968)). 1731, 811 20 L.Ed.2d broad, allow a the Court will overly being rights of another with- poli assert the party Department “to of Corrections ability other to employees regard to corrections cy prohibits out at issue ” Munson, 467 directly pa claims.... communicating his own with assert from 2847, at 957,104 at 81 L.Ed.2d Employees may S.Ct. submit written atU.S. role board. Instead, the Court concerns itself “for his en to the warden 786. communications satisfies plaintiff dorsement,” they only with whether after which are forward injury- by alleging an 1. The limitation Rl-7-Exh. parole Article III board. ed to “can be plaintiff that whether the district court found magistrate in-fact and the issues satisfactorily to frame on suppresses employee expected policy this 2847, 958, appeal public case.” Id. at concern. On matters of Harris’s find that inter employee’s We argue L.Ed.2d at 786. that defendants rec- having favorable to the making recommendation in in a personal est on parole particular board inmate regarding to made board parole ommendations disagree. interest in the strong We gives personal him matter. purely his behalf noted, he be that can made magistrate this action such decisions outcome As in this case con the issues pursue regarding the release expected parole boards great that which equal society zeal are of into an adversarial victed criminals with on employees themselves comment Citizens who public corrections concern. conclude, offering in there- likely parole We decisions are exhibit. individual or criminal fore, no constitutional working there are of the state’s put that on the pre- com limitations The fact standing system. justice of one bringing this action. merits to the Harris clude ments directed gen than case rather particular inmate’s placed of restrictions In the context does board policies eral employees by government speech of on the mat on comments change nature as their question threshold employers, the their prisoners types of regarding ters what fairly be can prohibited speech whether not, paroled. should, be or should constituting speech on as characterized speech in restricted Because concern. Rankin public matter of concern, Pickering matters of volves McPherson, employee’s inter (1987); requires us to balance 2896-97, Con 97 L.Ed.2d against matters commenting such in est Myers, nick effi employer’s interest government “When 75 L.Ed.2d Connick, 461 at operation. fairly con cient expression cannot employee 1687, L.Ed.2d at politi 103 S.Ct. matter of relating sidered the defendants found magistrate commu social, cal, other concern or support of any evidence present enjoy failed officials government nity, re summary judgment motion of their managing their latitude wide ” security need, reasons their garding Connick, fices .... otherwise, to restrict their ment of the prison guards at Reids- from communicating directly pa- ville. The complained by plaintiff role board. The defendants do appeal is set forth in a DOC memorandum as finding, they argue nor do appeal follows: their operation interests efficient employee [Individual recommendations outweigh employees' in being interests to the Parole Board in behalf of inmates freely able to communicate with the only must end. It not violates the princi- conclude, board. therefore, We pal command, of chain of but in fact magistrate and the district correctly court compromise individual employees. held that the defendants failed to demon- Should there ever be the occasion for they strate that are entitled summary recommendation other than in the normal judgment as a matter of law. process, review employees should forward it to the above,

For the Warden reasons set forth endorse- the dis- ment. trict court’s denial of the defendant’s mo- summary judgment tion for is AFFIRMED. majority notes, As the establish in order to satisfy the BROWN, WESLEY E. Senior District controversy” “case or requirement of Arti- Judge, dissenting: cle III of the Constitution. The law of majority The III plaintiff, standing concludes that Article the is “built single on a prisoner, basic standing has idea—the separation assert the al- idea of pow- leged First rights Amendment ers.” Allen v. of correc- Wright, 468 U.S. employees. tions Although the courts have The done much to Court prisons, requirement democratize our I stated: “The am of stand- ing any not aware of ... case that has has a core gone component so far derived di- give rectly as to rights the from the sought plaintiff constitution. A here. I allege would plaintiff personal find that the must injury fairly tracea- standing ble to base a to the claim on the likely First defendant’s conduct and Amendment rights persons, of third redressed espe- requested relief.” Id. cially prison guards. Moreover, I S.Ct. at 3324. The Allen Court find that Department also noted that the standing of Corrections’ doctrine “em- policy braces at issue several judicially here does not violate imposed self limits First exercise of jurisdiction, federal Corrections’ such employees general as the policy prohibition because the regulates em- on a litigant’s ployment-related raising person’s another legal that is not a rights, mat- ter barring rule adjudication concern. I generalized would also find grievances the policy being challenged more appropriately here' is addressed in reasonably representative legitimate branches, related to penological and the re- objectives quirement plaintiff’s and is not that a unconstitutional. complaint fall therefore within the respectfully dissent. zone protected of interests

the law Thus, invoked.” Id. as majori- I. Standing. notes, ty there components are two to the concept of standing: a constitutional limita- Phillip Wayne Harris is an pres- inmate tion plaintiff that the allege a distinct ently Georgia incarcerated at a pris- state palpable injury prudential and various on. He filed action under 42 U.S.C. developed limitations by the courts. I be- 1983, alleging policy that a of the Geor- lieve in the instant case fails to gia Department (“DOC”) of Corrections standing establish on either of these two and Georgia Warden State Pris- components. Reidsville, on at Ga., prohibits correctional employees making parole recommen- The recognized Allen Court that stand- directly dations State Board incorporates doctrine concepts are of Pardons Paroles. alleged Plaintiff easily not defined. discussing In standing, policy that this violates the First Amend- the Court noted: beyond dispute It would to be inquiry requires careful seem [T]he complaint’s alle- considerations attach to certain judicial examination whether the particu- by prisoners. ascertain One of the gations claims asserted adjudication to an plaintiff is entitled important lar these considerations is most asserted. particular claim of the federal courts principle unnecessarily pris- not involved become Allen, at 3325. Safley, In Turner v. Georgia on administration. inmate in a plaintiff here is an challenge 96 L.Ed.2d attempting to a 482 U.S. He is prison. policy carefully (1987), Court Georgia Department of Corrections set employees regulates designed how DOC to bal- forth a standard of review concerning parole recommendations society submit and those of ance the interests policy without due roles. The that bring an affects tions, party weigh ty in the context complaint own sole assertion own. believe 2197, ican Booksellers claims lenge the administration based None of the “prudential” however, L.Ed.2d 786 inapposite because Co., Warth A State notes, chilling free plaintiff to overcome necessary plaintiffs generally 636, legal rights and cannot 467 U.S. 45 L.Ed.2d 343 standing. He competing considerations deprives Georgia Board of Pardons and v. Department the cases action. the Seldin, 422 these have 98 does the does prudential Maryland v. concerns legally protected Supreme Court L.Ed.2d 782 process (1984)). plaintiffs limitations on the cases cited is that legal rights component of extended not contend precedents, that of First him a (Citing speech prevails over One cited Assn., and allowed that this allege of Corrections. those cases were (1975). U.S. reasons of these limitations in the instant of law. 104 S.Ct. Joseph Amendment viola- Virginia v. Amer- carefully crafted judicially third 484 U.S. must assert (1988); of the 490, 499, by of third liberty that the DOC’s majority has found that standing is for As the against third majority right party him Rather, his violates H. Munson rest prison. Secretary may out- 2839, majority, right 383, imposed 95 parties. majori- danger policy stand- finds, case. their S.Ct. their chal- 108 Pa- 81 to prisoners. The Court Turner, judgments of inmates’ constitutional legitimate view, ments tions.” Jones v. North Carolina tion ible courts, “prison administrators [WJhen ously tive solutions problem had a less restrictive of what constitutes would become security problems and [ oners’ Martinez, ery administrative prison administration.” ment court somewhere necessarily perpetuating] also distort the Ops (1977) subject to every take is valid strict 2d of the federal hamper their such a standard Union, ]. [are] administration. cognizance recognized that administrative at hand. Courts prison regulation impinges on penological interests. scrutiny analysis would seri 416 Subjecting the if [(1974)]. 94 S.Ct. to ma.ke prison officials to an to the intractable it is the decisionmaking process, the best solution would conclude that problem, possibility reasonably primary arbiters ability institutional stated: courts in affairs of claims 1800 way the difficult ^[396] rights, 107 S.Ct. to ..., judgment would ^[119] The federal courts ^[1808] Procunier of adopt necessary if to thereby the involve solving rule that some day-to-day related anticipate inevitably problems affecting 407, 40 at 2261. 71 Ohio regula innova In our inflex opera ^[2539] to judg Pris “un ev of it prisoners, but recog- special problems concerned with fundamental princi- second the Court cautioned relating “[a] Supreme Court nized that ‘courts Martinez ... ple identified in in- federal by prisoners and court claims increasing- to deal with equipped are ill of prisons. in the administration volvement ly urgent problems liberty administration ates a by granting interest inmates Id. and reform.” 107 S.Ct. at 2259. an See also Board parole. entitlement _ U.S. _, Washington Harper, Allen, Pardons v. (1990) (“We 96 L.Ed.2d 303 In Slo- quite made clear that the standard of re cum v. Georgia State Board Pardons & Turner adopted view we applies to all Paroles, (11th Cir.1982), F.2d circumstances which needs of court found Georgia gov- statutes implicate administration constitutional erning parole liberty not create a did inter- rights.”) est in in favor of incarcerated in- particular courts have reason to be rejected mates. We therefore an inmate’s cautious when claim before the court challenges procedural to various aspects of affecting involves a challenge the adminis- parole determination, stating: “Unless tration of a process. state’s review there liberty is a in parole, In Greenholtz v. Inmates the Nebraska procedures making followed in Penal and Complex, Correctional required comport determination are not (1979), with standards of fundamental fairness.” rejected argument Slocum, See also Gwin v. at 942. F.2d applied Due Process Clause all Snow, (11th Cir.1989) (Where 870 F.2d 616 parole determinations. The Court stated: alleged an inmate Georgia parole There is no constitutional or inherent interest, liberty statute created a the court right person of a convicted to be condi- dismissed as “meritless” the inmate’s due tionally released before the expiration of claim); process Fuller v. State a valid sentence. The natural desire of Paroles, Board & Pardons 851 F.2d an individual to be released is indistin- (11th Cir.1988) (same).1 guishable from the initial resistance to These concerning prisons decisions being conviction, confined. But the parole are relevant to the issue of procedural all safeguards, has extin- First, for several reasons. plaintiff’s guished liberty right: “[Gjiven claim that he has suffered a “distinct and conviction, valid the criminal defendant palpable injury” is question by called into constitutionally deprived has been of his the concerning decisions challenges inmate liberty.” [cite omitted] parole procedures. to Greenholtz its and Branch, Decisions of the Executive progeny must the be foundation for deter- impact, however serious their do not au- mining interest, any, what if an inmate has tomatically process due protec- invoke procedures in adopted by the

tion; a state for there simply is no constitutional making parole guarantee that determinations. Those deci- all executive decisionmak- sions comply define the extent with standards that of an as- inmate’s con- determinations, sure error-free stitutionally protected parole interest in his [cite especially This is true with re- determination. omitted] I do not think an inmate spect to the presented sensitive choices can claim to “injured” by be restrictions by the grant administrative decision to parole direct if recommendations he no has parole release. right to have such recommendations made Greenholtz, parole Yet it board. is far 99 S.Ct. at 2104. clear Greenholtz plaintiff indicated in whether this case that has procedural some protections might right. such a See footnote supra. re- He quired particular if the state statute clearly cre- has not demonstrated that he a Snow, (11th 1. In v. parole presented 894 F.2d 1277 arguable interest in an ques- Sultenfuss Cir.1990), open possibility 1915(d) this court left preclude that tion of law so as to § dismis- Georgia liberty pa- inmates a regulations have interest in sal. The court its based decision on finding role. The passed by court reversed a Parole Board since Sultenfuss process challenge by Georgia that a due expressed Slocum opin- inmates decision. The court their was frivolous plaintiffs’ argument, under 28 ion on the merits but 1915(d). U.S.C. § at 1279. The legal Id. court found found that the issue should at least be plaintiffs’ they liberty that the by had claim a addressed the lower court. Branch, not to the and Judicial in Executive If the state is parole. liberty Branch, duty ‘take Care that to liberty in- of a plaintiff depriving fact ”). Clearly, faithfully Laws be executed.’ law re- process of due without terest prison regu- recommendations, of a and the administration stricting direct employees are matters in an lation of corrections rights assert his own plaintiff can legislative and entrusted to the executive it is I think under U.S.C. action for these func- proper respect branches. A presume to though, for us inappropriate, a tions dictates that we not allow injury has suffered plaintiff regulation of a challenge challenge the constitu- him to allow allegation prison- when is no alleging there tionality prison regulation being impinged upon. er’s are the First regulation violates Cf. 78, 85, 107 Safley, 482 U.S. The Turner v. prison guards.2 rights of (1987) (“Prison 2254, 2259, 96 L.Ed.2d 64 that he would apparent belief plaintiffs that has been is ... a task pris- administration if the chance for a have better leg- responsibility not mean committed changed [the does regulations are branches, sepa- islative and cognizable judicially executive] he has suffered powers concerns counsel ration of standing is concerned. “injury” as far as restraint.”) judicial also Preiser See finding reason for A second 475, 93 Rodriguez, to inter- hesitant that we should be here is (1973)(“It imag- difficult to L.Ed.2d of the functions in the administrative fere activity in State has ine an which does when the branch executive interest, that is more intri- stronger or one own but redress his not seek to laws, up regula- cately bound state regulations on behalf challenge seeks the administra- tions, procedures, than Allen v. the court. See others before prisons.”). tion of Wright, here is that third factor to consider A (1984)(“When transported into free claimed interest plaintiff’s context, ground- that principle, Ill the Art. guards is atten- of the speech rights separation of in the idea of ed as it is Supplemen- In his speculative. recognizing uated and against powers, counsels plaintiff stated Standing, tal Brief on enforce brought, not to standing in a case early release from “chances for that his obligations whose violation legal specific policies by the directly affected harm, seek a restruc- but to works direct issue,” a belief sheer but such id. by the apparatus established turing of the authority of light speculation legal duties. fulfill its Executive Branch Timmerman, Parole Leeke all, assigns Board. Constitution, after employees writ- prevented from Standing, has because it the Supplemental Brief on In his behalf....”) By parole his board on to the something had that he careful- plaintiff asserted cogni- alleged plaintiff a concluding has asserting complaint: that he ly avoided bypasses majority the stan- injury, the by zable liberty affected the interest that was had a by Supreme in developed Court Turn- the dards Supp. Appellee’s Brief policy. See DOC specifically that were er and Greenholtz—cases Standing ("Phillip to enforce seeks Harris society and designed balance the interests rights the correctional the First Amendment judicially plaintiffs prisoners. The personal those of direct and he has a because procedures de- parole is interest.”). cognizable interest in liberty in the outcome—his interest and Supreme Court decisions by those fined is in the basis of the appears that this fact It basing on the by his claim expanded reading cursory cannot Yet as plaintiff’s even claim. clear, rights As a conse- of others. the constitutional exist- make of Slocum and Sultenfuss the slight contained in quence the hand liberty be assumed in interest cannot ence of on a leads us complaint, plaintiff the plaintiff’s plaintiff Clearly, the here these circumstances. through the First goose chase liberty showing wild he has made no has focusing employees rather than majority’s al- decision parole. The in specific the prisoner. Given showing of a any on the away with plaintiff to do the lows Supreme the adopted by Court for the finding summarily standards by liberty interest claims, plaintiff I think the prisoner’s parole review of by injured the restriction he has been based on ("His pursue claim required to this page Maj.Op. at recommendations. through back rights and not "sneak allegation own that he complaint raises facial ... rights. relying else’s by on someone Department’s door” by injured been has 86-87, 69, 70-71, by Ill 102 S.Ct. ed reference to the Art. notion Moreover, (1981). plain power that federal courts exercise any injury tiffs claimed is not tethered to resort, only “in the last and as a necessi- hearing or specific parole determination. ty,” only adjudi- and when omitted] [cite particular parole hear In the absence of system is “consistent cation with a plaintiffs ing or determination on suit powers separated dispute [the one] ability parole, plaintiff’s interest in traditionally thought capable to be parole procedures is that of an unaffected through judicial process.” resolution Arkansas, bystander. Whitmore jurisdiction exercise of I think the in this U.S. _, 109 L.Ed.2d flatly inconsistent principle case is with the (1990)(To standing, plaintiffs have powers separation and the notion that alleged injury must be “concrete in both a judicial power only exercise the we should sense.”). qualitative temporal There is necessary. majority when concludes parole no indication in the record of what allegations that because here concern procedures plaintiff are available to the Amendment, society’s First interests in bring attempt whether he has made all free override limita Parole this issue to the attention of the standing. tions on The mere invocation of in Board. Nor is there a clear indication Amendment, however, First does not what information record disregard prudential mean we con requests the DOC or Parole Board In cerns. Jones v. North Carolina Pris gathers how the information.3 DOC Union, oners’ foregoing factors merit seri- think the (1977), the Court stated: determining whether ous consideration in Prisons, obvious, it is differ numerous bring this ac- has respects society. They, from free to be- Allen, outlined tion. In Court with, gin populated, involuntarily, by standing inquiry in this fashion: people who have been found to have vio- abstract, injury or otherwise Is the too lated one or more of the criminal laws judicial- appropriate, to be considered by society orderly gov- established for its causation ly cognizable? Is the line of In seeking ernance. a “mutual accom- illegal injury conduct and between the modation between institutional needs and prospect too Is the of ob- attenuated? objectives prisons] provisions and the injury as a result taining [of relief from the general of the Constitution that are of speculative? ruling too of a favorable any application,” repeatedly others relevant questions These recognized major standing inquiry must be answer- the need for restric- discretionary plaintiff’s interest as far as recom- with the 3. The Board. Justice v. State Paroles, must be determined mendations is concerned Board Pardons and Ga. Board, enacted considering reference to the structure S.E.2d 45 Georgia structure, Upon law. an examination of this any power, case within its shall cause to be to me that contention it seems brought pertinent before it all information on restricting improperly that DOC is information person question. O.C.G.A. 42-9-43. relevant determinations is one that report by Included in this shall be a information only however, Clearly, Parole Board could make. the warden of the correctional institution in party Parole Board is not a to this person upon which the confined has been action. person conduct of record of the while in the may law, institution. Id. The Board also make such Under the duties and functions investigation may necessary it other deem are executive in character of the Parole Board fully person. order to be informed about the body usurp authorized to or and no other is jailer any Id. The warden or of institution in im- substitute its functions for the functions person which the convicted of a crime is con- posed Board. O.C.G.A.§ on the Parole 42-9-1. fined and all of the charged duty institution’s officers and determin- The Board is ing of cooperate serving shall at all times with the sentences be which inmates and, upon request, parole. duty Board shall furnish the is the of the Board released on It they may study personally the cases of Board with such information as have those inmates power respecting any person inquired about as will whom the Board has to consider so as to parole. properly perform determine their ultimate fitness for Id. enable the Board to its duties. added) power grant parole (emphasis is § The exercise of O.C.G.A. 42-9-55. the release of regarding boards con These re- prisoner’s rights. on a tions society great as well where into are of applied victed criminals have strictions implicat- were Clearly, great values public concern.” there is ed. public justice sys in the criminal make tems of the states. This does not 129-30, at 2539- Jones, 97 S.Ct. 433 U.S. 132, any speech setting relating to in a omitted]; see also id. 40 [citations (“First Amendment associ- a of concern.” See “public matter 97 S.Ct. at way give rights ... likewise e.g., University System ational Terrell v. Texas of penal of (5th Cir.1986), reasonable considerations Police, 792 F.2d alleged First Although management.”) denied, cert. 479 U.S. belong to rights here Amendment (1987) (“[T]he mere fact discussed prudential concerns guards, the employee’s speech was topic of the allowing the implicated still above are might public or would one which Turn- rights. See assert those plaintiff of little great had a interest is mo have Safley, er v. ment.”) Although meaning of the (1987) (“When accommodation L.Ed.2d 64 phrase public of concern” seems “matters significant have a right will of an asserted best, Vickrey, 855 ambiguous at Kurtz pris- inmates or on on fellow ‘ripple effect’ Cir.1988), (11th we are F.2d direct def- particularly should be staff, courts employee’s whether an to determine ed of cor- discretion the informed erential to public of con speech a matter addresses added). officials.”) (emphasis rections “content, form, and by reviewing the cern careful to has been Supreme Court given statement.” Connick context prison- of protection for set a standard 138, 147, 103 S.Ct. Meyers, standard is rights. The ers’ constitutional courts Some rights not incom- protect those designed speech focused on whether have including prisoner’s a patible with status — employee’s primarily is made issue right petition government citizen, primarily in the role as a role against protection grievances, redress Kurtz, 855 F.2d at 727. employee. an See discrimination, protection of due racial significant in the in factor is I think this extent, the law, and to a limited process of case, of an evaluation because the stant own First prisoner’s right exercise the intrinsical suitability is inmate’s prison regula- rights. When guard. ly of the duties of one prison- upon tions encroach assigned the task of naturally is guard may bring an action er, eval behavior and monitoring the inmate’s 42 U.S.C. rights under his own assert comport inmate’s uating reporting But I find no or 28 U.S.C. 2254. § regula regard to institutional ment with prisoner extending to a authority for such, not see how As do tions. the First Amendment right to assert guard makes inmate evaluation duty it to restrain and of those whose in the course one other than can be him, and, asserting rights, those confine speech This is not official guard’s duties. challenge to the administration mount a concern; speech it a matter of case for lack I would dismiss the prison. employee’s job per part is a standing. part speech itself is When formance. Public A Matter Con- Speech duties, On II. it reflects on the employee’s cern. perform his or competence to employee’s Hutchinson, City job. Koch v. her rec- argued that below The defendants Cir.1988). (10th Con F.2d par- by guards ommendations context, cannot sidered suitability parole were inmate’s ticular of the em performance divorced public of concern” “speech on a matter not duties, therefore concerned and is ployee’s by the properly regulated be and could rather than internal office functions argument majority rejects this The DOC. the case dismiss concerns. would by public made grounds that “decisions on the speech because the involved in this case is to make difficult regarding decisions administration, public not matter of concern. prison [citing Turner These principles Jones two apply ] III. The Interests Underlying DOC’s in all prisoner cases in which a asserts Policy. prison regulation that a violates the Con- stitution, just not those in pris- which the speech Even if the at issue here is on a oner First invokes the Amendment. We concern, public matter of I would find that quite made clear that the standard of policy reasonably DOC’s is related to adopted review applies Turner to all legitimate penological interests and out- circumstances in which the pris- needs of weighs any right guards to make implicate on administration constitutional direct recommendations to the Parole rights. Although Board. the defendants did not _ dismiss,4 raise issue in their motion to Washington Harper, U.S. _, magistrate concluded 1028, that the DOC’s S.Ct. 108 L.Ed.2d 178 policy justified not by important “is securi- being challenged by The policy plain- ty Mag.Rep. interests.” at 6. magis- The part: tiff in this case states trate that the found defendants had made employee recommendations [Individual showing that the recommendations to the Board in Parole behalf of inmates disrespect could authority cause for among must end. It not only violates the inmates, staff or or that the recommenda- command, chain but may in fact tions information, contained confidential compromise individual employees. publicized they outside of the Should there ever be the occasion for parole hearing. Id. other recommendation than the normal process, Given fact that majority review finds forward to the standing, it Warden for his the case endorse- ment. it comes ... before us a challenge by involves to an regulation administrative The shows on its face that one of its such, prison. As we should review the purposes is to possible eliminate the com- case under the standard of Turner v. promise guards. A requirement Saf ley, 482 U.S. 96 L.Ed.2d parole pass through recommendations (1987), which ensures administra chain of command certainly appears to be a prison tive decisions officials are accord reasonable measure to such a situa- avoid appropriate ed deference the courts. tion. There clearly potential for cor- Turner prison stated that regula “when ruption in relationship guard between impinges tion on inmates’ constitutional and inmate potential goes and this un- rights, regulation if it is valid reason guard position checked awhen is in do ably legitimate related to penological inter favors for an inmate without the knowl- Turner, ests.” S.Ct. at edge supervisors. Brown v. recently stated: Glines, Our earlier adopt determination to (1980) (“Without upon standard review based was opportunity they to review before materials need reconcile our longstanding adher- dispersed base, throughout his a mili- ence principle that inmates tary retain possible could not commander avert some least constitutional de- disruptions among troops”) Jones, spite recognition incarceration with the (“A 97 S.Ct. at authorities equipped are best may easily be no more converted into a 4. The defendants moved to dismiss the petition interlocutory appeal, com- acceptance plaint failure to state a claim. The basis of petition jurisdiction confers broad on this the motion was that the at issue was not all of the court to review district court’s order. related a matter concern and there- e.g., See v. Executive Ducre Halter Officers rights. fore did violate Marine, Inc., (5th 752 F.2d n. 16 Cir. magistrate treated the motion as a motion 1985) (Appellate court address all issues summary judgment. material to the order and is limited to con Although the certify defendants did not “controlling question.") siderations question legitimate security interests in the base.”) The military than forum America, rea any such below dismissed UNITED STATES magistrate members “Prison staff Plaintiff-Appellee, declaring: soning, or lose nothing gain simply have inmate, a ‘favorite’ even of an inmate_” say the 4. To Mag.Rep. at HENRY, Thomas Richard gives least, conclusion unfounded this Defendant-Appellant. dis the informed whatsoever deference 89-8688. No. give officials, it nor does prison cretion of peculiar to “the recognition appropriate Appeals, States Court United penal con circumstances and restrictive Circuit. Eleventh 86, 107 at Turner, U.S. finement.” Car v. North (citing at 2260 Jones 10, 1991. Jan. 119, 97 Union, 433 U.S. Prisoners’ olina (1977)). Apply set forth in review ing the standard magistrate

Turner, find that show a more extensive requiring

erred need for defendants rec unsupervised regulation not have does prison

ommendations. dem and documents witnesses produce main an interest that it has

onstrating corruption discipline preventing

taining and Jones, guards.5 inmates between (The 2541. authority order preserving interest in self-evident; enough is it prisons shown has not been say prison relating to regulations wrong in its

to be 135, 97 S.Ct. at security) and id. emphatically is most (“Since prison be reasonable forum,’ ‘public

not a [the] sufficient.... appellants

liefs requirement further

District Court’s prisoner’s showing that [a

demonstrable is inconsistent fact harmful was union] federal courts deference discretion informed pay to the that the DOC’s

officials.”). find I would parole recom requires

policy, which for the Warden be submitted

mendations endorsement, reasonably related to un is not security interests

legitimate Coles, At- constitutional. S. Matthew Handley, A. David defendant-appellant. lanta, Ga., for McKinnon, Atty., Asst. L. William Ga., Atlanta, plaintiff-appellee. for personal com- governmental restriction that "[t]he in Jones Supreme Court noted 5. The pub- general among members that there officials munication discretion of informed is limiting ” Jones, S.Ct. at danger at 133 n. be sufficient potential lic.’ might showing though even 2541 n. justification submitted as 'unimpressive if ...

Case Details

Case Name: Phillip Wayne Harris v. David Evans, Commissioner, Lanson Newsome, Deputy Commissioner, A.G. Thomas, Warden

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Jan 10, 1991

Citation: 920 F.2d 864

Docket Number: 89-8589

Court Abbreviation: 11th Cir.