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American Civil Liberties Union Foundation v. Spartanburg County

United States District Court, D. South Carolina, Spartanburg Division

November 21, 2017

American Liberties Union Foundation, American Liberties Union Foundation of South Carolina, Plaintiffs,
Spartanburg County; Chuck Wright, in his official capacity as the Spartanburg County Sheriff; and Allen Freeman, in his official capacity as administrator of the Spartanburg County Detention Center, Defendants.


          Timothy M. Cain United States District Judge

         This matter is before the court on Plaintiffs' motion for a preliminary injunction (ECF No. 5). Plaintiffs seek relief pursuant to Title 42, United States Code, Section 1983. Pursuant to the provisions of Title 28, United States Code, Section 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(d) (D.S.C.), the motion was referred to a magistrate judge. The magistrate judge filed a Report and Recommendation (the “Report”) (ECF No. 33) recommending that this court deny Plaintiff's motion for a preliminary injunction. Plaintiff filed objections to the Report. (ECF No. 38).

         The Report has no presumptive weight, and the responsibility to make a final determination in this matter remains with this court. See Matthews v. Weber, 423 U.S. 261, 270-71 (1976). In making that determination, the court is charged with conducting a de novo review of those portions of the Report to which either party specifically objects. See 28 U.S.C. § 636(b)(1). Then, the court may accept, reject, or modify the Report or recommit the matter to the magistrate judge. See id.

         However, the court need not conduct a de novo review when a party makes only “general and conclusory objections that do not direct the court to a specific error in the magistrate's proposed findings and recommendations.” Orpiano v. Johnson, 687 F.2d 44, 47 (4th Cir. 1982). In that case, the court reviews the Report only for clear error. See Diamond v. Colonial Life and Accident Ins. Co., 416 F.3d 310, 315 (4th Cir. 2005).


         On December 1, 2016, Nusrat J. Choudhury, a senior staff attorney with the American Civil Liberties Union Foundation (“ACLU”), [1] contacted Major Neal Urch, the outgoing director of the Spartanburg County Detention Facility (“SCDF”), to request permission for attorneys working with the ACLU to come to SCDF to conduct inmate interviews. (ECF No. 5-1). Major Urch redirected Ms. Choudhury to Defendant Freeman, who was taking over as administrator of SCDF. Id. Plaintiffs allege that an attorney associated with their organization contacted Defendant Freeman on December 2, 2016, by leaving a voicemail on his office phone and by sending him an email. Id. at 4. In these messages, Plaintiffs requested permission for two ACLU attorneys to meet with twenty-seven SCDF inmates during specific dates and times over a four-day period. Id. Plaintiffs contend that the purpose of these interviews was to investigate the alleged violations of the constitutional rights of inmates currently detained in SCDF. Id. Defendant Freeman responded by email to Plaintiffs. Id. at 5. He instructed Plaintiffs that “[t]he only visit allowed would be those of Attorneys th[at] represent Inmates” and asked if any of the ACLU attorneys represented any of the inmates listed in the request. Id.

         Ms. Choudhury subsequently sent a demand letter to Defendant Freeman, again requesting permission to meet with SCDF inmates and alerting Defendant Freeman that SCDF's policy limiting visits with inmates to “attorneys already representing the inmates in criminal, civil, or family court proceedings” was unconstitutional. Id. After Defendant Freeman did not respond to the letter, Ms. Choudhury forwarded the letter to Defendant Wright, the Spartanburg County Sheriff. Id. Later that day, Defendant Wright emailed Ms. Choudhury and denied her request. Id. On both December 12 and December 13, 2016, three ACLU attorneys visited SCDF in order to interview inmates, despite the denial of their request. Id. at 6. Each attorney showed the officer at the front desk his driver's license and Bar card in addition to the list of inmates he was there to interview. Id. The officer told the attorneys where each inmate was located - either at the main facility or at Annex 2, an off-site facility. Id. All three attorneys met with inmates at the main facility, and then two of them met with inmates at Annex 2. Id. According to Plaintiffs, at no time did the officer ask these attorneys if they represented the inmates with whom they were meeting. Id.

         On January 31, 2017, two ACLU attorneys and one ACLU intern went to SCDF to interview inmates. Id. at 7. They provided the officer at the front desk with a list of inmates with whom they wished to speak, and the officer identified each inmate's location. Id. The attorneys provided the officer with their driver licenses and Bar cards, and the intern gave the officer his student ID badge. Id. According to Plaintiffs, the officer did not ask whether the attorneys represented the inmates that they were visiting. Id. Because the facility was under construction, the ACLU representatives were not required to go through a metal detector as they had done on previous visits. Id. An officer arranged for the first inmate on the list to be brought to a room in the booking area so that the attorneys could meet with him. Id. However, shortly after the meeting began, this officer came into the room and asked whether the attorneys represented the inmates with whom they were meeting. Id. at 8. The attorneys explained why they were interviewing the inmates and stated that they did not represent any of the inmates at the facility. Id. The officer then told the attorneys that because they did not represent the inmates, they would have to leave. Id.

         The officer subsequently escorted the attorneys to Defendant Freeman's office so that they could speak with Defendant Freeman about the policy. Id. Defendant Freeman told them that SCDF had a policy prohibiting attorneys from speaking with inmates in person unless the attorneys could demonstrate that they have a prior attorney-client relationship with the inmates. Id.

         In support of their reply to Defendants' response in opposition to the motion for preliminary injunction, Plaintiffs submitted the declaration of Clay Allen, the Public Defender for the Seventh Judicial Circuit. (ECF No. 31-4). In his declaration, Mr. Allen stated that part of the job of his office is to determine if eligible inmates facing charges in General Sessions court desire to have an appointed attorney to represent them in their criminal cases. Id. He further stated that he and his staff are routinely granted professional visits with new inmates in SCDF despite not having a pre-existing attorney-client relationship with them. Id. Furthermore, Mr. Allen described how he and his staff are regularly granted professional visits with new inmates that are facing charges in Municipal and Magistrate Court, but only when those inmates request a meeting. Id. Mr. Allen does remember one instance in which he was asked if he had an attorney-client relationship with the inmate with which he was meeting; because he did not, he was asked to cut the interview short. Id. Plaintiffs also submitted the declaration of Ricky Harris, a criminal defense attorney in Spartanburg, who stated that he regularly conducts visits with clients in SCDF and has never been required to affirm that he has an existing attorney-client relationship with an inmate prior to visiting that inmate. (ECF No. 31-5).

         On May 2, 2017, Plaintiffs filed their Complaint (ECF No. 1) alleging that they have a First Amendment right “to speak to inmates in person to inform them of their legal rights, investigate civil rights violations, and discuss the possibility of legal representation in a confidential setting.” (ECF No. 1 at 8-9). Plaintiffs allege that Defendants violated this right by prohibiting them from speaking with inmates in person unless Plaintiffs could first demonstrate that they have a preexisting attorney-client relationship with the inmates. Id. at 9. Plaintiffs seek a declaratory judgment that SCDF's policy violates the First Amendment, a preliminary or permanent injunction barring Defendants from enforcing the policy while the suit is pending, and reasonable attorney fees and costs. Id. at 10.

         On May 3, 2017, Plaintiffs filed the motion for a preliminary injunction that is now before the court. (ECF No. 5). Pertinent to the motion and to this court's analysis are two SCDF policies: Policy 700.0 and Policy 702.0. Policy 700.0, entitled “Inmate Visitation, ” states, in relevant part, that “[p]rofessional visits will be allowed any day during the week during normal working hours provided the visit does not jeopardize security or normal operation of the detention facility, e.g., the visitor arrives at a time when head count is being conducted, meals are being served, etc.” (ECF No. 28-1). The policy defines a “Professional/Legal Visit” as “any visit between an inmate and his/her attorney, legal representative, paralegal, law enforcement, or court official.” (ECF No. 28-1). The policy further provides for one non-contact “Social Visitation” per week, in which the inmate selects a visiting period and contacts the visitor to advise them of their visitation slot. Id. Policy 702.0, entitled “Inmate Mail Procedures” defines “Privileged Mail” as “mail sent to or received from an attorney or member of the Bar . . ., and mail received from legal representative groups or organizations, i.e. ACLU, etc. . . .” Id. The policy further provides that such mail will be opened and inspected for contraband by an officer in the presence of the recipient inmate, but it will not be read by the officer. Id. While all other mail must be in postcard form, Privileged Mail may be in letter-form and may be placed in an envelope to ensure the confidentiality of the content. Id.

         On June 9, 2017, Defendants filed a response in opposition to this motion. (ECF No. 28). Plaintiffs filed a reply to this response on June 16, 2017. (ECF No. 31). The parties argued their respective points at a hearing before the magistrate judge on June 22, 2017, and this transcript has been made part of the record. (ECF No. 40). The magistrate judge subsequently filed his Report, recommending that Plaintiffs' motion be denied. (ECF No. 33). This motion is now ripe for review.


         A plaintiff seeking a preliminary injunction must establish all four of the following elements: (1) that he is likely to succeed on the merits; (2) that he is likely to suffer irreparable harm in the absence of preliminary relief; (3) that the balance of equities tips in his favor; and (4) that an injunction is in the public interest. Winter v. Nat. Res. Defense Council, Inc., 555 U.S. 7, 20 (2008). Because a preliminary injunction is an “extraordinary remed[y] involving the exercise of a very far-reaching power, ” it is “to be granted only sparingly and in limited circumstances.” MicroStrategy Inc. v. Motorola, Inc., 245 F.3d 335, 339 (4th Cir. 2001) (internal citations omitted). Furthermore, when the administration of a state prison is being challenged, such relief should be granted only in compelling circumstances because at this stage “only preliminary findings as to plaintiffs' likelihood of success on the merits have been made.” See Taylor v. Freeman, 34 F.3d 266, 269 (4th Cir. 1994).[2]

         The purpose of a preliminary injunction is to “preserve the status quo” of the parties until the claims can be fully and fairly investigated. See Meiselman v. Paramount Film Distrib. Co., 180 F.2d 94, 97 (4th Cir. 1950). Therefore, such relief should only be granted when the plaintiff can make a clear showing that he or she is likely to succeed on the merits of the claim and that he or she has been irreparably harmed absent injunctive relief. The Real Truth About Obama, Inc. v. Fed. Election Comm'n, 575 F.3d 342, 342, 346 - 47 (4th Cir. 2009), vacated on other grounds by 559 U.S. 1089 (2010), restated in relevant part on remand, 607 F.3d 355 (4th Cir. 2010) (per curiam).


         The magistrate judge ultimately determined that Plaintiffs failed to establish that they were likely to succeed on the merits and that they had not demonstrated that they would suffer irreparable harm absent an injunction. (ECF No. 33). Because the magistrate judge's determination as to those two elements was dispositive, he did not reach a decision on the remaining elements. Id. Plaintiffs' objections to the magistrate judge's Report are largely exact copy-and-paste reiterations of arguments made in Plaintiffs' motion, which the magistrate judge has already considered. (ECF No. 38 at 3-10). However, Plaintiffs do make the following objections to the Report: (1) that the magistrate judge erred in finding that Plaintiffs are not likely to prevail on the merits of their claim; (2) that the magistrate judge erred in “not applying the well-established strict scrutiny standard for analyzing First Amendment claims by non-profit civil rights organizations”; (3) that even if the Turner v. Safely, 482 U.S. 78 (1987), standard was proper that the magistrate judge erred in “improperly discount[ing] or ignor[ing] evidence showing that Defendants . . . selectively applied the policy to Plaintiffs”; and (4) that the magistrate judge erred in finding that Plaintiffs “did not show they would suffer actual and imminent harm absent a preliminary injunction.” (ECF No. 38). For the reasons stated below, these objections are overruled.

         I. Plaintiffs have failed to show that they are likely to prevail on the merits of their claim.

         Plaintiffs argue that they have a “well-established First Amendment right to speak in person to Detention Center inmates to advise them of their constitutional rights and to recruit potential plaintiffs for civil rights lawsuits.” (ECF No. 5 at 11). As the magistrate judge correctly pointed out, Defendants do not challenge the fact that Plaintiffs generally have a right under the First Amendment to pursue litigation as a form of speech. (ECF No. 33 at 6). However, Defendants argue that this does not give ...

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