United States District Court, D. South Carolina, Spartanburg Division
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
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
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.
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.
AND PROCEDURAL HISTORY
December 1, 2016, Nusrat J. Choudhury, a senior staff
attorney with the American Civil Liberties Union Foundation
(“ACLU”),  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
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.
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.
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.
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).
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.
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
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.
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).
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).
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.
Plaintiffs have failed to show that they are likely to
prevail on the merits of their claim.
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