Ronald Newsom Hasan Sharif Eddie J. McMillan and Donald Wolverton v. Steve Norris, Commissioner Michael Dutton, Warden and David Hindman

Sharif; NEWSOM; Eddie Ronald Hasan Wolverton, McMillan;

J. and Donald

Plaintiffs-Appellees, Commissioner; NORRIS, Michael

Steve Hindman,

Dutton, Warden; and David

Defendants-Appellants.

No. 88-5071. Appeals,

United States Court

Sixth Circuit.

Argued Dec. 1988. 19, 1989.

Decided Oct. KRUPANSKY, KEITH and

Before ZATKOFF, Judges, District Circuit Judge.* KRUPANSKY, Judge. Circuit appeal from an order issued This is an for the the United States District Court granting pre- Middle District of Tennessee liminary injunctive relief in favor of Ronald (Newsom), (Sharif), Newsom Hasan Sharif (McMillan) Eddie McMillan and Donald (Wolverton), appel- Wolverton the named (referred collectively lees in this action appellees),1ordering ap- the named as pellants appellees to reinstate the to their positions as inmate advisors. The former appellants appealed from the district injunc- awarding preliminary court’s order tive relief. following

The record disclosed the facts. (Dut- January On Warden Dutton ton) reappoint did not as in- advisors, respective mate when their terms expired pursuant February authority in him Policies vested Corrections,3 Department of the which pertinent part in states that: Newsom, Nashville, Tenn., pro Ronald appointed Inmate advisors will be for a se. period six month the first two months being probationary. The inmate advisors bono, Jr., McAlpin, argued, pro Neal may reappointed at the discretion Nashville, Tenn., plaintiffs-appellees. or Associate Warden of Warden Nashville, Tenn., Sharif, pro Hasan se. upon Treatment recommendation of the McMillan,Nashville, Tenn., pro Eddie J. classification committee and with se. consent and continued interest of the mate. Wolverton, Tenn., Memphis, pro Donald

se. 502.01, Policy (emphasis B-2 add- Section ed). Gen., Cody, Atty. Tom-

W.J. Michael Will linson, Reevers, Attys. March com- Stephanie Asst. On Gen., Atty. in argued, Gen. of menced the instant action the United Office Tenn., Nashville, Tenn., defendants-ap- States District Court for the Middle Dis- Tennessee, charged trict of wherein pellants. * Zatkoff, District 2. The named in this action are Steve Hon. Lawrence P. United States Norris, the Commissioner of the Tennessee De- Judge, Court for the East- United States District Corrections; Dutton, partment of Michael sitting by designation. Michigan, ern District of Penitentiary; Warden of the Tennessee State appellees were "inmate advisors" 1.The named Hindman, David a Correctional Officer and and Chairman of Penitentiary, who assist- in the Tennessee State Disciplinary Board at the Ten- defending prison be- themselves ed inmates Penitentiary. nessee State They Board. had fore the Prison adopted 3. The State of Tennessee has statewide appointed Warden been regulate policies which the activities and con Penitentiary, Michael State of the Tennessee See, e.g. duct of officials. Beard v. Live Dutton. (6th Cir.1986). say, disciplinary board and inmate advis- speech infringe- free Amendment First Penitentiary State as appellants had con- at the Tennessee alleging that ors ments deprived them of and to allow such practicable and had as spired to soon rights to continue to serve adminis- persons to serve these trained 42 U.S.C. in violation of Re- inmate advisors Magistrate’s proceeding trative [sic].” 1981, 1983, 1985(3), in retalia- and Recommendation, at 15. port and §§ they had filed complaints which tion for appellants timely objections filed The perform- criticizing the the Warden with fact, proposed findings magistrate’s of the (Hindman) who ance of David Hindman and recommendations to conclusions of law the the was Chairman court. On December the district appellees argued that histori- Board. in toto however, adopted the district routinely reappointed had cally wardens report magistrate’s and recommenda- the expressed a desire inmate advisor who de novo tions, appel- a review of the after that, position in the and service to continue request preliminary injunctive for re- lees’ existing and consequence custom as a thereupon time- appellants lief. The filed a implied an had vested practice, the warden appeal from the district court’s order ly appellees to continue right in the property injunctive granting preliminary relief. of inmate advis- indefinitely position in the Appellees requested examining appellees’ if so elected. the motion ors When relief, as declaratory injunctive relief, as well injunctive and preliminary for the district damages, from the monetary punitive and required following the court was to balance appellants. four factors: 9,1987, 1) plaintiff the trial court referred the has shown a March Whether

On initial controversy Magistrate or strong the or substantial likelihood Recom- merits; and for submission of consideration on the probability of success Findings of Fact and Conclusions mended 2) plaintiff irrep- has Whether the shown Magis- the of Law. On March injury; arable thereafter, hearing conducted a and trate 3) preliminary of a Whether the issuance May Report his issued cause injunction would substantial in which he concluded Recommendation others; harm to reap- appellees had been denied 4) public interest would be Whether in retaliation for written and pointment in- by issuing preliminary served complaints had criticized Hind- oral which junction. of the Dis- performance man’s as Chairman Materials, Michigan Friendship Inc. ciplinary Having Board. decided that requirements Brick, Inc., (6th appellees had satisfied the F.2d Cir. injunc- necessary support preliminary 1982). reviewing the District Court’s In tion, Magistrate request recommended addressing appellees’ decision the four appellants ordered to reinstate relief, this court must determine appellees to their as named acting its discretion in if the district abused of the pending advisors the resolution mate Wyatt Lexington Lowary & it did. action on its merits. Educ., Local Bd. of 854 F.2d Arbor, Ann Christy City Cir.1988); complaint had Although appellees’ de 824 F.2d certification, requested nor al- class nied, Discipli- training inadequacies of the leged (1988); Black Law advisors, nary Board members or inmate Enforce Akron, City Ass’n v. Magistrate sponte sua addressed these Officers Par Planned joined by the which had not been issues Cincinnati, City Inc. v. enthood Ass’n and on his own pleadings and the evidence Cincinnati, that “the District initiative recommended Cir.1987). its dis “A district court abuses plan file a require appellants Court clearly erroneous it relies on program cretion when training for a to be with the Court fact, ap- improperly it findings of or when by lawyers for of the conducted members plies legal prove “expectation” or uses an erroneous To an law interest under law, state must Brewing Christian Schmidt standard.” demonstrate Co., “mutually explicit Brewing that there was a under Co. v. G. Heileman dismissed, standing” ap themselves and (6th Cir.), between pellants. Existing precedent recog has “prison policy nized that officials’ state Lowary Wyatt, accord & promulgations” ments and other can create Christy, 490-91; Black F.2d at constitutionally protected interests in favor Ass’n, 824 F.2d at Law 479. Officers prisoners. See, e.g., Kentucky Dep’t appeal, the instant have con Corrections, at-, tended that the district court erred in its 1908-09; Livesay, Beard v. factual conclusion that the were (6th Cir.1986); Ay Franklin v. likely to succeed on the merits of their cock, (6th Cir.1986); claim, concluding appellees and in that Henderson, Bills v. irreparable would suffer harm should the (6th Cir.1980). policy pro The official injunctive relief be denied. by nouncements enacted the State of Ten urged appellants The have that the appeal nessee at in clearly issue the instant appellees constitutionally protected had no may indicate that “inmate advisors property employment in interest continued reappointed at the discretion of the Ward appellants as inmate advisors. The are 502.01, Policy en.” (emphasis B-2 Section Existing precedent correct. confirms that added). policy guidelines Because these prop Constitution does not create a “[t]he complete vested discretionary authority in erty liberty prison employ or interest in the appoint reappoint warden to or inmate any ment ... such interest must [and that] advisors, they provide did not serve to the be created ‘language state law of an appellees with a constitutionally protected ” unmistakably mandatory character.’ In interest. gram Papalia, v. here, regulations however, at issue (10th Cir.1986) (quoting Helms, Hewitt v. lack requisite mandatory relevant 460, 471, 864, 871, 459 U.S. language. They stop requiring short of (1983)); see also Adams v. particular that a result is to be reached James, (11th Cir.1986); 784 F.2d 1077 Gib upon finding predi- that the substantive McEvers, son v. 631 F.2d 95 cates are regulations met.... are [T]he Paderick, v. (4th Cir.), Altizer in way not worded such a that an inmate cert. denied sub nom. Altizer v. Young, reasonably expect could to enforce them 435 U.S. 56 L.Ed.2d 391 against officials. (1978). generally Kentucky Dep’t See of Kentucky Corrections, Dep’t 490 U.S. Thompson, Corrections v. -, 490 U.S. -, (footnotes 109 S.Ct. at 1910-11 -, 104 L.Ed.2d 506 omitted). Roth, Regents Board v. 408 U.S. case, In appellees the instant S.Ct. failed to appellants demonstrate that bar, appellees ease at agreed expressed had to waive the policy failed to they any demonstrate that had guideline which vested unlimited discretion cognizable property interest created under in appoint the warden to reappoint and/or continuing Tennessee law in to serve as ment any inmate advisors for or no reason. inmate appellees advisors. The have ar- Consequently, any practice policy or relied gued that longstanding prac- custom and upon by appellees did not rise to the provided tice any prisoner which who “explicit” level of a “mutual” and under serving elected to continue as an inmate standing, merely and was a “unilateral ex reappointed advisor would be posi- to the pectation” part appellees in expectation tion and that reappoint- recognized sufficient to create a property a property cogni- constituted interest interest. To constitutionally constitute a zable under the argu- Constitution. The protected property right, “the interest persuasive. ment is less than must rise to more than ‘an abstract need or desire,’ ... and must be on more advisors, based position their did inmate ” Kentucky hope’.... than ‘a unilateral cognizable have a liberty however interest Corrections, at -, Dep’t remaining respective in in see (citations omitted); also S.Ct. impermissible free It from interference. Bishop Wood, recognized constitutionally well it is (1976); Perry impermissible to terminate even unilater- Sindermann, 602 n. expectation property al of a in a interest n. manner which of expression violates Roth, Regents Board protected by the First Amendment.4 L.Ed.2d [plaintiff] though merely pro- Even was (1972). Accordingly, are cor bationary employee, and even if she asserting rect in failed to discharged have been rea- could prove of a property existence interest all, may son or for no reason at she remaining as inmate advisors which was nonetheless be entitled reinstatement cognizable under state law. if discharged exercising she was her expres- to freedom

Although the did dem sion. a cognizable property onstrate interest terminations, not the of their he did suggested time the issue of the

4. The dissent has that question performance plaintiff of and rights the prison inmate advisors’ First Amendment complaints from or he had no inmates expression properly that to freedom is not before of staff, Hindman, about than institutional other court that issue was neither raised this because plaintiffs performance of their parties the by by [sic] decided district the nor the court. Therefore, 1077, James, appears See, to advisor duties. it e.g., mate 1080 Adams 784 plaintiffs’ Magistrate com- (11th Cir.1986) ("It the but the important that is that we review for Hindman, plaints with presented and to the court the case district rather confrontations positions. they in would have remained their a the than better case fashioned after district record, order."). Magistrate’s Report and Recommendation the court’s An examination of of 1, added). however, (emphasis May at 6 & 10 demonstrates that this concern is mis- Magis- adopted expressly the The district court placed. Recommendation, specifical- Report and trate's Recommendation, Mag- Report the In his and commenting respect ly the likeli- that to ”[w]ith following expressly made the factual ob- istrate merits, agrees the hood success on the Court of legal conclusions: servations and Magistrate’s proof the with conclusion that the essence, they allege, Plaintiffs in that were 10, hearing April held at the introduced as inmate advisors in retaliation terminated 1987, likeli- is a substantial indicates there discipli- objections of their to the conduct for complaints plaintiffs’ about hood that the nary segregation proceed- and administrative Hindman, of the David Chairman actions of ings by Discipli- at TSP Chairman Board, primary rea- were the TSP nary Board. by Dutton.” District sons their terminations Magistrate a finds that there is substan- for 1987, at December Memorandum Court’s complaints plaintiffs’ tial that the of likelihood added). (emphasis 1-2 primary were the reason about Hindman legal quoted and conclu- factual The above Dutton.... terminations of quintessential formulation sions constituted of .... Hindman’s conduct [Ratification magistrate district finding by and the departmental failure to Dutton’s follow constitutionally protect- plaintiffs’ court that the gives Magistrate’s finding policies to the rise expression had been rights freedom of ed plaintiffs non-reappointment that the was not at bar. in case violated the defendants matters, ordinary prison adminstrative but specifically did below not The fact that court plaintiffs rather decision to terminate Dutton’s imper- relating case law to the cite to relevant legitimate complaints upon their was based infringement such First Amendment missible rights Such actions about Hindman’s conduct.... irrelevant, expression since the is by Dutton are consistent with Hindman’s support an findings specific sufficient to made objected plaintiffs to his statements that if con- abridgement inmate advisors’ handling disciplinary proceedings, they case. facts this under the stitutional jobs. would lose their Oklahoma, See, Eddings 113 e.g., 455 U.S. view, Magistrate’s evidence in this n. n. 876 date, plain- is substantial case to [sic] depend upon cita- ("Our jurisdiction does their com- because were terminated tiffs verse.”) (citing ex York New tion book and of adminis- plaints about Hindman’s conduct Zimmerman, 278 U.S. Bryant v. rel. disciplinary proceedings at the trative and (1928)). 61, 63, 73 L.Ed. 184 S.Ct. stated that at Prison. Dutton Tennessee State denied, McPherson, 408 U.S. Rankin v. 383- L.Ed.2d 767 2891, 2896, 97 L.Ed.2d Healthy City accord Mt. Bd. of Finkel, “In Branti [v. 274, 283-84, Doyle, Educ. v. (1980)], the S.Ct. [Su Per a failure to preme determined that Court] ry, plaintiffs discharge even rehire the was a Johnson, Cale v. form, appoint though, in the terms of their Cir.1988); Ryan v. City Aurora Bd. of Thus, expired.... the court ments [had] Educ., Branti simply held what occurred Day still a was fact dismissal. On (1977). Existing prece case plaintiffs job, Day had a and on reappoint dent indicates that a failure to an job.” terminated from that were position equally impermis individual to a is Curci, Messer sible, cognizable even where there was no Cir.1989) (en banc); accord id. (“Similarly, service, expectation reap of continued if the Branti applied all the cases that have pointment was denied because of the indi doctrine to failures to rehire have involved vidual’s exercise of First Amendment situations where worker was informed rights. non-reappointment at the end of a term of employment, causing thus an actual dis Thus, respondent’s lack of a con charge.”). “right” re-employ or tenure tractual Certainly, had no contractu- year the 1969-70 academic contractually al or expecta- based speech In

immaterial to his free claim. reemployment. tion of It does not fol- deed, before, specifi twice this Court has low, however, that the refusal to reem- cally held that the nonrenewal of a non ploy them did not violate their constitu- one-year public tenured school teacher’s rights. Supreme tional Court has may predicated on contract not be his consistently recognized “even exercise of First and Fourteenth Amend though person a ‘right’ has no to a valu- Tucker[, v. Shelton rights. ment 364 governmental able benefit [the 479, 247, U.S. 81 S.Ct. 5 L.Ed.2d 231 government] may deny not a a benefit to (1960); Keyishian Regents[, v. Board of person infringes on a basis that his con- 589, 675, 385 87 17 L.Ed.2d 629 U.S. S.Ct. stitutionally protected interests.” (1967)]. holdings We reaffirm those here. Adams, McConnell v. 1319, 829 F.2d 1323 (4th Cir.1987) (quoting Perry, 408 U.S. at Finkel, 507, 515, 100 v. 445 U.S. Branti 597, 2697), cert. denied sub 92 S.Ct. at 1287, 1293, 63 L.Ed.2d 574 S.Ct. Virginia nom. ex rel. State Board Elec Sindermann, 408 U.S. Perry v. (quoting — Kilgore, tions v. -, U.S. 108 S.Ct. 2697-98, 2694, 33 593, 92 S.Ct. 1731, (1988); see also 100 L.Ed.2d 195 v. (1972)); accord Givhan L.Ed.2d 570 Gonzalez, Cheveras Pacheco Rivera v. 809 Disk, 439 School Line Consol. Western 125, (1st Cir.1987); Furlong v. F.2d 128 693, 58 410, 99 S.Ct. U.S. Gudknecht, 233, (3rd 808 F.2d 238 Cir. Dist. City School Healthy (1979); Mount Taylor, Horton v. 1986); 471, 767 F.2d 473 274, 97 Doyle, v. Educ. Bd. of Hogg McBee v. Jim 1 n. (1977); see also 471 50 L.Ed.2d County, 730 F.2d (5th Cir.1984) 1015 821, 827, 828-29 Isibor, F.2d v. 868 Parate (en banc). Rose, 768 F.2d Cir.1989); Littlejohn v. (6th denied, Cir.1985), 475 cert. (6th 765, 769-70 Cale, 570- In recently this court ob 106 S.Ct. U.S. Shouldice, “egregious served that v. gov abuse of Stern (1986); denied, U.S. Cir.), power,” ernmental (6th the form of “retalia (1983); Orr [against prisoner by L.Ed.2d tion prison 104 S.Ct. officials] Cir.1971), (6th Trinter, exercising his right first amendment inadequate complaint about” register reap would have been to state a sufficient policies was prison pointed to their as inmate advis- First Amendment deprivation complaints per claim for ors but for their about of 42 U.S.C. in violation formance of Hindman as the Chairman Cale, (A 1985(3) reviewing F.2d at 951 Board. and 1986. unlawful, findings underlying grant factual of in- malicious officer’s probation relief, liberty junctive this court can disturb such of a mother’s deprivation intentional findings only “clearly if it finds them to be custody of her children stat- in the interest (“Find erroneous.” See Fed.R.Civ.P. 52(a) claim for the violation cognizable ed a fact, ings of whether based on oral or rights under section her constitutional evidence, documentary shall not set Campbell, 1983.) Vinson (citing ”); Bose clearly aside unless erroneous.... Cir.1987)). Corp. v. Consumers Union United Inc., States, particular entitlement to a The lack of 1949, 1959, (1984) (“A 80 L.Ed.2d 502 find privilege does not free administra- ing ‘clearly although erroneous’ when privilege grant tors to or withhold it, support there is evidence to the review impermissible reasons. The doctrine ing court on the entire evidence is left with prohibits of unconstitutional conditions the definite and firm conviction that a mis benefits, terminating though not classi- committed.”) (quoting Unit take has been entitlements, if the termination is fied as Co., Gypsum ed v. United States States on motivations that other constitu- based 364, 395, provisions proscribe. tional (1948)); see also Anderson v. L.Ed. 746 City City, Bessemer U.S. may officials retaliate [P]rison exercising a consti- against an inmate for Connaughton v. Harte Hanks Communi tutionally protected right. prison- Since cations, Inc., rights, ers retain some first amendment — aff'd, Cir.1988), -, retaliated for a claim that officials Sewell personal the exercise of a first amend- Court, County Fiscal Jefferson states a claim. - -, James, F.2d Adams (1989). case, In the instant the district Kelly, see also Franco v. adopted magistrate’s findings (2nd Cir.1988) (plaintiff stated 854 F.2d 584 fact, credibility which were anchored in as against action under a cause of § sessments of both the and the acted in retalia- state officials who appellants. magistrate The and the court prisoner’s exercise of constitu- tion for assigned greater credibility to the testimo Livingston, Burton rights); tional ny appellees, accordingly Cir.1986) (death (8th threat F.2d adopted their version of the facts. guard in retaliation for by prison made findings “When are

prisoner’s attempt to exercise first amend- based on determina- witnesses, regarding credibility tions federal courts access to right ment greater Rule 52 demands even 1983); deference to action under cause of states a Russell, Bridges v. the trial findings [concerning] court’s Cir.1985) (claim prison officials trans- that the variations in demeanor and tone of prison in retaliation another ferred him to heavily voice that bear so on the listener’s first amend- exercise of his prisoner’s understanding of and belief what is cause of speech states a rights to free ment Anderson, said.” 470 U.S. at action). 1512; accord Sewell v. Jefferson S.Ct. at chal- Court, appellants have County Fiscal Additionally, 863 F.2d at 466-67. findings factual magistrate’s lenged the “[Credibility determinations are reviewed (Stewart, J., be clearly concurring standard erroneous S.Ct. at 2690 under the (termination ‘opportu judgment) employment fact has had the from the trier of cause political reasons violated First Amend- of the wit the demeanor nity to observe ” — at -, rights; injunctive properly ment relief ac- U.S. Connaughton, nesses.’ circumstances). corded under such Corp. 466 (quoting Bose 109 S.Ct. at 2696 1959), aff'g at at suggested The dissent has that the Su- effec Having failed to at 828-29. Elrod, preme admonition in Court’s credibility challenge magistrate’s tively freedoms, loss of First Amendment “[t]he evaluations, not demon appellants have time, periods unques- for even minimal findings adopted the factual strated that tionably irreparable injury,” constitutes El- clearly erroneous. the district court were rod, 427 U.S. at 96 S.Ct. at Anderson, inapplicable to the case at bar since the Bank & v. Fort Worth Watson already inmate advisors have been Trust, positions. majori- terminated from the The grounds, remanded on other vacated and courts, ty however, of federal circuit have U.S. -, individual, concluded that an who has been subjected to direct and intentional retalia- having protected

tion for exercised the con- expression, stitutional continues to irreparable injury suffer even after termi- Additionally, the tangible nation of some benefit such as conclusion court’s challenged the district employment. irreparable suffer appellees would not accorded relief were if injury “It is well settled that the loss of First rein damages and monetary them because Amendment freedoms for even minimal on the mer a trial subsequent to statement periods of time irreparable constitutes remedy for adequate an provide its would injury justifying grant prelimi- of a The appellees. by the any injuries suffered nary injunction.” Medical Deerfield con court’s the district ignores argument Center v. City Beach, 661 of Deerfield injury to the irreparable clusion 1981).... Cir. Unit B impinging their from appellees resulted too, penalization, So direct opposed from and not rights, Amendment First inhibition, incidental of First Amendment monetary or interests property denial of rights irreparable constitutes injury. damage. Bergland, Johnson v. (4th Cir.1978) (transfer employee al- legedly for exercise of First Amendment Supreme unequivocally Court has rights; of first amendment “[violations infringe- admonished that even minimal per irreparable constitute se inju- upon First Amendment values consti- ry”); Citizens a Better Environ- for irreparable injury tutes justify sufficient to ment City v. Ridge, Park 567 F.2d of injunctive relief. (7th Cir.1975).... 689 First It is clear therefore that Amend- stringent protec- One reason for such ment interests either threatened or were tion rights certainly of First Amendment time being impaired in fact at the relief intangible is the nature or the benefits sought. of First Amend- was The loss flowing from the exercise of those freedoms, periods minimal ment for even that, rights; rights and the fear if these time, irrep- unquestionably of constitutes jealously safeguarded, persons are not injury. arable deterred, imperceptibly, will be even if Burns, Elrod v. 427 exercising U.S. 96 from those in the fu- 49 L.Ed.2d (plurality mean, however, 547 ture .... This does not opinion Brennan, J.); 374-75, of id. at actual, 96 plaintiff prove if a can

379 (CARD) Governing v. Bd. tion & prove irreparable can he current chill Draft Dist., High School Union Grossmont retaliation contrary, direct jury. On of Cir.1986); First having 1471, (9th for exercised by the state 1473 n. 3 F.2d 790 Enter., Vegas, par- City past Inc. v. Las in the Amendment freedoms 745 Lydo of Amend- ticularly proscribed by the First Libertarian (9th Cir.1984); 1211, 1214 F.2d Dist. v. Healthy City ment. Mt. School Packard, 981, v. Indiana Party of 741 F.2d Doyle, Corona, 97 S.Ct. at City Ebel v. Cir.1984); (7th 985 of Burns, 427 347, Elrod v. 574-76; 96 U.S. (9th Cir.1983); 390, 393 F.2d 698 Deerfield Cohen 2673, (1976); 49 L.Ed.2d 547 Beach, City v. Medical Center of Deerfield California, 403 1780, v. 15, 91 S.Ct. U.S. (5th 328, B Nov. 338 Unit F.2d Cir. 661 L.Ed.2d 284 29 Co., 1981); Community Communications Boulder, City 1370, 1376 Inc. v. F.2d 660 of Oldham, v. 1176, Cate 707 1188-89 F.2d agree cert. dismissed Cir.1981), (10th Feliciano accord Romero (11th Cir.1983); parties, 456 1001, 102 S.Ct. U.S. of Gaztambide, 1, (1st v. Torres 4 836 F.2d Busi Florida (1982); 2287, 1296 L.Ed.2d 73 Ruiz, Cir.1987); Mariani Giron v. Acevedo Holly City v. Free Enter. nessmen of for Branch v. (1st Cir.1987); 238, F.2d 239 834 wood, 956, B (5th Unit F.2d Cir. 648 958 Comm’n, 824 Federal Communications Local Lowary Lexington v. 1981); June cf. denied, 485 cert. 37, (D.C.Cir.1987), F.2d 40 Educ., (6th Cir.1988); Bd. of 1220, 99 Matish, (6th v. Damiano 1363 830 F.2d v. Torres Gaz Jimenez-Fuentes (1988); Toledo, 824 Cir.1987); Tierney City v. of tambide, Cir.1986), (1st F.2d 807 234 (6th Cir.1987). 1497, 1507 F.2d denied, cert. v. McDer Shondel (1987); 496 relief, the granting injunctive In its order mott, Cir.1985); (7th 775 F.2d sponte, sua court, acting district converted Trammell, v. Stegmaier F.2d 597 proceeding into a action and man- this class Berg Johnson 1032 n. dated the defendants to draft and submit land, com Cir.1978); plans providing training for the of the Dis- pare Litigation In re School Asbestos ciplinary Board the inmate advisors. (School Town Dist. Lancaster Manheim of joined by these were not Because issues Que ship Dist. v. Lake Asbestos School of pleadings, by the evi- demonstrated bec, Ltd.), 842 F.2d (3rd Cir.1988); incorporated appellees' re- dence or into Co., In re Providence Journal relief, have chal- quest en banc (1st Cir.1986), modified propriety part of the lenged the of this grounds, (1st other F.2d 1354 court's order. district juris lack dismissed Cir.1987), diction, in this argued, City review, Fort Taylor re appellate that orders to submit Lauderdale, not, in plans strictly speaking, are medial relief, and Parents Ass’n Public School result this Cir.1987); junctive that as a Quinones, jurisdiction (2nd 16 v. under is without 1292(a)(1) American Liberties Union U.S.C. part Civil this Cir.1986); to review Charles, City St. has Illinois court’s order.5 “This court the district re (7th Cir.), consistently rejected attempts to obtain requiring orders the submission view of L.Ed.2d Dutton, plans.” Groseclose v. Against Registra- Diego Committee San remedial Interlocutory courts of undisputed court orders of the district that because the district 5. It States, only preliminary injunc- granted granting and has not relief has granted the United ... action, judgment the a final in this tions .... jurisdiction appeal for the of this court basis 1292(a)(1). § U.S.C. 28 1292(a)(1), U.S.C. which states: § lies under 28 (a) juris- appeals The courts of shall have appeals from: diction 380 McNeill, 356, (6th Cir.1986) (1972); (per

788 F.2d 359 Allstate Ins. Co. v. cu 382 (citations riam) omitted); 84, Bradley see also (4th Cir.1967), cert. denied sub 87 Milliken, (6th Cir.), McNeil, v. Murray cert. nom. v. 931, 468 F.2d 902 392 U.S. denied, (1968); 409 U.S. 93 S.Ct. 34 S.Ct. McNal 20 L.Ed.2d 1390 Rhodes, Reed (1972); Co., v. ly v. Pulitzer Publ. 532 F.2d 69 (6th Cir.1976); Sykes Krieger, Cir.), denied, v. F.2d 1050 cert. 429 U.S. (6th Cir.1976). (1976); v. Sierra Club Marsh, 816 F.2d Although requiring party an order to Corp. Noxell Firehouse No. Bar-B- litigation proposed to submit a remedial Que Restaurant, (D.C. plan injunctive appeal- is not itself an order Cir.1985); King Corp. Instrument v. Otari 1292(a)(1), able under 28 U.S.C.A. where § Corp. (Fed. Cir.1987). by an order issued a district court also incorporates injunctive “Thus, measures indicate, which are as these cases if a dis- properly appealable 1292(a)(1), under the ruling trict court’s solely prem- § rests on a appeals jurisdiction court of has applicable law, review ise as to the rule of and the the entire order of the district court includ- facts are controlling established or of no ing requirement the that a relevance, defendant sub- ruling may be reviewed plan. mit a remedial though appeal even entry is from the preliminary injunction.” Thornburgh v. elementary It is appeal that an from College American Gy- Obstetricians & injunctive brings denial of relief necologists, 476 U.S. 747, 757, appellate whole record before the 2169, 2177, Because “scope may and that of review ex- the district court did award relief ques- tend further the immediate [than in the order from which appellants per- tion on which the District Court ruled] appeal, fected an jurisdiction this court’s disposition allow appropri- of all matters properly has been invoked to consider all ately by record, including; raised en- _ joined order, issues in that including the try judgment.” of final We have mandate that the submit a “jurisdiction reme- aspects to deal with all plan provide dial training for the of the sufficiently case that have been illu- Disciplinary Board and inmate advisors and minated to enable decision the Court propriety of the court’s class action Appeals without further trial court certification. development.” Brown Corp. & Williamson Tobacco case, In the appellees’ instant com- Comm’n, Federal Trade plaint allegation was limited to an charging (6th Cir.1983) (quoting Wright, personal C. A. infringements aris- Miller, Gressman, Cooper E. E. Federal ing & as a result of administra- Practice and Procedure at 17 reappoint tion’s refusal them as inmate (1977); id. at 3 denying order (Supp.1988)), advisors because complaints

petition rehearing en banc Hindman, against the Chairman of the from denied, F.2d 1165 Board. Since the in this action already experienced advisors, 127 were inmate (1984); Youngstown accord Sheet & Tube order, the district court’s requiring the de- v. Sawyer, Co. implement fendants to training procedure 863, 865-66, (1952); High 96 L.Ed. 1153 for new inmate advisors, would not have land Avenue & Belt R.R. Co. Colum affected the individual of the named Co., Equipment bian in this action. Consequently, any 42 L.Ed. 605 Smith plan remedial ordered the district court Works, v. Vulcan Iron concerning training see also Board members and inmate advisors must 41 L.Ed. 810 Climax, Kohn v. American Metal Inc. violations, any existed, have related to if (3rd Cir.), prisoners’ rights other and not those of the 874, 120, U.S. 93 34 L.Ed.2d in 126 this action.

381 Co., 159, (5th troleum 164 n. 10 prisoner a dictates that Precedent bar, 1971)). In the case at Cir. challenging cer action initiates a civil who action in their individual in his commenced this prison facility at a conditions tain complaint no re asserting capacities; contained limited to capacity is individual or classwide quest for class certification of his own constitutional alleged violations Lusted, Compare F.2d at 821 and, for class certi 741 request a relief.6 absent brought indi fication, standing (“[Plaintiff’s] assert the consti suit was as an lacks prisoners. complaint other Her neither rights of vidual action. tutional alleged that the suit met showed nor plaintiffs claim ... The essence specified prerequisites of a class action as general prison conditions was that bad 23, complaint prayed by Rule and the ... rights of the constitutional might affect behalf.”); solely [plaintiff’s] on for relief Penitentiary inmates. State Oklahoma Wilson, (“In F.2d at 57 neither rule, however, 534 is that general complaint filed nor in the as convict’s letter his own constitu- plaintiff must assert any allegation that class action is there rights. tional Instead, desired_”). it was the relief is (10th 900, 902 Hopkins, v. Cotner initiative, court, acting on its own trial Adams, F.2d 1080 Cir.1986); 784 accord a class action. certified this case as prisoner (“In action context a non-class litigate prison- standing to another has no may suggest that Although a trial “court of access to claim of denial er’s appro relief to a definable class would be v. Ma- McGowan courts.”). generally See priate, it cannot convert an individual 1101, 429, 420, 81 S.Ct. ryland, action on its own mo action into a class States (1961); United 1107, 6 Kane, & Wright, A. Miller M. tion.” 7B C. 519, Raines, v. U.S. 80 S.Ct. 362 1785, and Procedure Federal Practice Ballard v. 524 also, Blanche see Katz v. Carte Cir.1987). Stanton, 593, (6th F.2d 594 833 747, (3rd Cir.1974) Corp., 496 F.2d 760 system, (“[T]he plaintiff, judicial not the action, a class the existence “To maintain ask for class controls whether or not to pleaded and the limits must be of the class denied, treatment.”), cert. with some action must be defined of the class Zarhadnick, 152, 42 L.Ed.2d 125 specificity.” Wilson v. 534 Corp., Carbide Consumer omit Nance v. Union Cir.1976) (citations (5th F.2d 57 Div., (4th 722 n. 2 Prods. Antonio In accord Lusted San ted); other (same), Dist., vacated Cir.1976) (5th dep. F.2d 821 School 741 53 grounds, Cir.1984) (“[C]lass action relief must be sua (1977). grant, “The proper class action com predicated upon a when it is sponte, of class action relief requirements plaint satisfying all obvi- specified, nor is an Phillips Pe requested neither 23.”) (quoting Danner v. Rule pro action and unquestionably filed as a class complaint case at bar al- in the 6. Because the denied, basis.”), only 436 as to the leged violations ceeded to trial on inmates, request- specifically named and U.S. individuals, it cannot as to those Corp., ed relief F.2d 511 Motors 532 and Senter v. General suggested in the instant that the (6th Cir.) ("There question but that there is no sought informally impliedly appeal or had pro action and it filed as a class the suit was Compare, pursue as a class action. this matter action.”), ceeded to trial as class Indep. example. Antonio Lusted v. San (5th Cir.1984) Dist., F.2d School (1976), appellate concluded wherein the ("Nor the record that indication in is there improperly treated as a was not that "the action action, implicitly a class this case was tried pro parties [had] because “all the class action" its parties action knew of to the and 'that all assumption action was a on the ceeded it.’") (quoting acquiesced in class nature Corp., Carbide Nance v. Union action.” class Inc., Roadway Express, F.2d Bing Div., (4th Consumer Prods. omitted), Cir.1973)) (footnote which the Senter, (citing Cir.1976) (quoting class appeals the denial of affirmed court of certification, 446-47)), on other Bing, vacated F.2d at cases as Alexander with such L.Ed.2d grounds, Machinists, Lodge Ass’n No. Inti Aero ("The Cir.1977) itself was action F.2d 1364 Wilson, speech magis- ous error.” 534 F.2d at as a free Walk claim issue. The Haynes, er v. Cir. opin- Unit trate and the district court based their 1981)(“[I]t A error Oct. is obvious to certi probable ions on a violation of the First fy a class when class certification has not right Amendment of access to the courts. Lusted, requested.”); compare been 741 Appellees’ brief filed with this court does (“[Plaintiff’s] F.2d at 821 failure to seek speech Finding not set forth a free issue. complaint effectively class relief in her right of access to the courts is not certification....’”) ‘precluded any class case, implicated in this I would also vacate (quoting Nance, (quoting 540 F.2d at 725 grant the district court’s re- Corp., Liberty Pertiz v. Loan 523 F.2d lief. (7th Cir.1975))). In the instant case, sponte the trial court’s sua action in Right I. Access to the Courts mandating appellants to submit a reme training plan dial Disciplinary Board guarantees First Amendment that inmate members and advisors and in certi persons all shall have access to the courts. fying proceeding as a class action con prison context, In a right of access to error, particularly stituted under circum right prepare the courts is the to and file joined stances where those issues were not pleadings fairly with a court repre- which complaint developed by nor sents the inmate’s claim. Bounds v. and, proof consequently, part of the Smith, district court’s order must be vacated. See 1498, (1977). In the Jacobs, Board School Commissioners v. any meaningful alternative, absence of permitted mates must be to receive from (1975); Shipp Memphis Area other preparing inmates assistance in Office, Dep’t Sec., Employment Tenn. court documents. Johnson v. Avery, 393 60 (1969). case, In this ap- district court found Accordingly, for the reasons set forth pellees right had a constitutional provide to herein, part of the district court’s or- legal concept advice. This has been sound granting preliminary injunctive der relief ly rejected by jurisdictions. other reinstating to their former James, Adams v. Cir. pending as inmate advisors final 1986), the Eleventh Circuit held that al disposition underlying of their claims is though prisoner right has a to receive AFFIRMED, part and that of the district from other inmates assistance and advice certifying court’s order a class action re- matters, legal trained inmate “law quiring appellants to submit remedial clerks” have no right pro plan training Disciplinary for the Board legal prisoners. vide assistance to Similar members and inmate advisors is ' ly in Halford, F.Supp. 1187, Smith v. hereby VACATED. (D.Kan.1983), the court noted that no authority existed for the creation of “a ZATKOFF, Judge, dissenting. District right, jailhouse vested in [constitutional] majority I concur in the decision va- lawyers, provide legal assistance to oth portion cate that of the district court’s or- ers.” Henman, But see Gometz v. certifying der a class requiring action and (7th Cir.1986) (leaving unan plan to submit a remedial question swered the jailhouse of whether a training Board members lawyer standing has to assert the constitu inmate advisors. I write to set prisoner tional he desires to my forth understanding of the First assist). argued upon Amendment issue and ruled the district court and I find briefed and have no constitutional presented provide to this court. I legal dissent from the assistance to other majority appellees’ decision to prisoners. litigant may address A present only his filing the legal memoranda for with of of relief. In order rights the bases own as Therefore, is appellees’ consti- assistance party third to assert another’s for a courts. rights, impedi- must be there some First Amendment guaranteed by tutional the not litigation. Single- party ment to first See courts. right of access to the U.S. Wulff, ton v. 2868, 2874-2875, 49 L.Ed.2d Right Speech II. to Free (Stevens, J., (1976) plurality opinion). No majority The state: party litigation is al-

impediment to first by the to whom leged appellees; inmates the appellees commenced instant ac- the provided capable are appellees assistance First [asserting] tion ... Amendment pursuing of their own claims. speech infringements alleging that free had Assuming appellees conspired had stand to and had de- arguendo ing claims of their inmate prived rights to assert the them of their constitutional clients, is right the access to the courts of to inmate to continue serve as advisors implicated in case. inmate has not this No complaints in filed retaliation to an inmate advis- ever been denied access concerning the the perform- with Warden reap a the decision not to or as result of David ance of Hindman as Chairman of positions. their New point the appellees the Board. appointed in inmate were to serve advisors appellees’ complaint of no Review reveals appel- held positions previously the the abridgement claim of free express an indigent a an defendant to lees. Just as appellants.1 speech by Reviewing ap- trial not have constitutional criminal does pro complaint se pellees’ with measure of choice, right lawyer prison to a his appellees’ leniency, complaint may, argu- are represented inmates whom ably, enough encompass be broad a free particular not entitled the assistance of a court, however, speech claim. The district legal Slappy, Morris advisor. Cf. grant not relief on such a did L.Ed.2d I theory. inappropriate believe it is to rule indigent (finding criminal defendant theory being on such a without the matter merely adequate representa entitled to presented to the court. district tion). A similar issue was encountered Moreover, right of access to James, Eleventh Circuit in Adams v. guarantees an inmate to a courts access (11th Cir.1986). Adams, F.2d 1077 primary purpose court law for were from clerk mates who terminated law petitions filing corpus and civil habeas a lawsuit to be reinstat- instituted complaints. Smith, rights Bounds alleged The inmate-law clerks their ed. violated their inmate-clients’ termination (1977). By allowing inmates to the access right First Amendment of access to the pursue types legal pro- courts these granted The courts. district court summa- ceedings, provided inmates are an avenue in ry judgment favor of adminis- protection their for the appeal, tration. On the inmate-law clerks right of rights. Id. The access to they argued that raised before the district guarantee does not an inmate a courts implicating claims their own First right to in internal adminis- counsel rights than Amendment rather proceedings. provid- trative assistance inmate-clients. The inmate-law of their by appellees inmates was limited to mat- ed argued clerks that the district court misun- prison disciplinary involving ters internal and, position conse- prison disciplinary board. derstood action before the they relief. Appellees preparation quence, did not assist were denied The Elev- they registered complaints speech 1. The First free is because about Disci- Amendment anywhere appellees’ com- not mentioned plaint. plinary Board Hindman. Com- Chairman See Moreover, complaint alleges 24-27; in no para. para. Ap- plaint Joint § uncertain terminated terms were pendix pp. 16-18. advocates, legal because were effective erly held that the District Court enth addressed the claim ruled Circuit court, stating: upon by denying prelimi- the district its discretion in abused (Citations omit- nary injunctive relief. important that we review the case [i]t presented ted) added). (emphasis to the district court rather fashioned after the than a better case Clearly, the Elrod Court contemplated that district court’s order. infringement the First Amendment would Likewise, in the instant F.2d at 1080. occurring either be threatened or case, I would review those matters sought injury time relief is before the could upon by ruled the district court. irreparable. Savage v. Gor be considered majority Because the discuss the free ski, (2d Cir.1988) (finding issue, speech express my I must view that chilling speech discharge of stems not from injunctive inappropri- relief is nonetheless American discharge); but from threat of showing irrepa- ate because there is no of Postal Workers Union United States harm. rable Service, (2d Postal Cir. Burns, 1985) Elrod v. (holding majority upon employee’s The relies to free discharge), 2673, 2690, speech subsequent not threatened to (1976), support proposi- to t. 475 U.S. cer any infringe- tion that First Amendment Kendzi S.Ct. minimal, ment, no matter how constitutes (N.D. Corey, erski v. F.Supp. irreparable injury justify in- sufficient to Ind.1985); Savage v. Commonwealth of Elrod, Brennan, junctive relief. Justice Pennsylvania, F.Supp. (E.D.Pa.1979), plurality opinion, who authored the stated: (3rd Cir.1980). aff 'd. It is clear therefore that First Amend- case, In this the First Amendment viola- ment interests were either threatened or past longer tion is a act which is no impaired being at the time fact relief appellees’ right speech. threat to to free sought. was The loss of First Amend- Appellees may lodge many now as com- freedoms, periods ment for even minimal plaints against disciplinary wish time, unquestionably irrep- constitutes board members. injury Since such injury.... arable money damages Since reinstatement and was occurring both threatened and subsequent would make whole to respondents’ the time motion and merits, a trial on the I would find respondents sufficiently since demon- probability irreparable failed to strated a of success on the demonstrate harm.2 merits, Appeals might prop- Accordingly, the Court of to the extent that this case is Albers, very prisons deprive policies); Whitley It is the nature of 2. persons liberty. persons (1986) of their Incarcerated 89 L.Ed.2d liberty retain minimal interests. Prison author (holding prison courts must consider nature of may liberty ities threaten the loss of those inter setting prevent prison official’s conduct from conformity ests retained inmates to ensure being subject judicial post to unreasonable hoc rules, prison regulations policies. with and guessing); Wolfish, second 547, Bell v. deprivations liberty, threat of additional ever, how (1989) many often has little deterrent effect since (stating that "Prison administrators ... should perceive they nothing inmates left to lose. wide-range adop- be accorded deference security prisons This situation creates risks in policies practices tion and execution of and unparalleled compared which are when judgment preserve in their are needed to inter- society. other facet of Because of the nature of discipline nal order and and maintain institu- prisons grave recognizing and risks associat Procunier, security”); tional Pell day-to-day operation prisons, ed with the (1974) (finding 41 L.Ed.2d Supreme granted prison Court has administra policies goals system may and of correction great tors deference in execution of their justify prisoner’s restrictions on First Amend- e.g., Kentucky Dept. duties. See Corrections v. rights). U.S. -, Thompson, 490 1908- inappropriate grant injunctive I believe it is (finding ab prison injury plaintiff relief in a when the regulation containing explicitly to the sent state man discretion, reparable. unduly datory language prison To hold otherwise to limit restricts ad subjects the discretion of ministrators should be afforded vast discretion officials and implementation prison regulations premature judicial oversight. in the and officials to claim, speech I would a free addressed as deny

nonetheless relief.

III. Conclusion appellees’ right of

Finding no violation courts, finding further it

access to the prop- matters

inappropriate to address court,

erly presented in the district I would order en-

vacate court’s in its the district

tirety. NEWMYER,

Joseph Kwiat M. John W.

kowski, and R. Collins Tobin John C. (88-1345) Collins, Plaintiffs-Appellants, LEASING, al., LTD., et

PHILATELIC

Defendants-Appellees. (89-1288) O’CONNELL,

Edward

Plaintiff-Appellant, LEASING, al., LTD., et

PHILATELIC

Defendants-Appellees.

Nos. 89-1288. of Appeals,

United Court States Circuit.

Sixth July

Argued 1989.

Decided Oct. 1989. Rehearing Re

Order Denial of Nov.

hearing En Banc 1989.

Case Details

Case Name: Ronald Newsom Hasan Sharif Eddie J. McMillan and Donald Wolverton v. Steve Norris, Commissioner Michael Dutton, Warden and David Hindman

Court Name: Court of Appeals for the Sixth Circuit

Date Published: Oct 19, 1989

Citation: 888 F.2d 371

Docket Number: 88-5071

Court Abbreviation: 6th Cir.