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Pearson v. GEO Group Inc.

United States District Court, D. Arizona

March 19, 2018

Peter Paul Pearson, Sr., Plaintiff,
v.
GEO Group Incorporated, et al., Defendants.

          ORDER

          David G. Campbell United States District Judge

         Plaintiff Peter Pearson, who is confined in the Central Arizona Correctional Facility (CACF), brought this pro se civil rights action under 42 U.S.C. § 1983 against the following CACF officials: Deputy Warden Lisa Brewer, Correctional Programs Supervisor Christie Gordon, Lieutenant Dowling, and Correctional Officer (CO) R. Cantrell. Before the Court are Plaintiff's two motions for injunctive relief (Docs. 12, 42) and Defendants' motion to dismiss for insufficient service (Doc. 35). The Court will deny all three motions.

         I. Background

         Plaintiff presents six counts for violation of his First Amendment free speech and mail rights, equal protection rights, and due process rights against CACF officials, the private prison facility that contracts to hold Arizona Department of Corrections (ADC) prisoners. All of Plaintiff's claims concern his ability to send mail. In his first four claims, Plaintiff alleges that ADC policy permits indigent inmates to send out first class mail, including personal property or unauthorized property, by placing a hold on the inmate's trust account (Doc. 1 at 5-8). CACF refuses to follow this policy, however, which Plaintiff alleges unconstitutionally impinges on his right to send mail under the First Amendment. Plaintiff further alleges that Defendants' actions are retaliatory because he previously prevailed on a grievance (id.). In his last two claims, Plaintiff alleges that since August 9, Cantrell, as the mailroom officer and acting on behalf of the other Defendants, has refused to process or send out Plaintiff's mail, allegedly in violation of ADC Department Orders (DO) 909 and 914 (id. at 9-10). Plaintiff seeks injunctive and declaratory relief as well as compensatory and punitive damages (id. at 11).

         II. Motions for Injunctive Relief

         A. Legal Standard

         “A preliminary injunction is ‘an extraordinary and drastic remedy, one that should not be granted unless the movant, by a clear showing, carries the burden of persuasion.'” Lopez v. Brewer, 680 F.3d 1068, 1072 (9th Cir. 2012) (quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997) (per curiam); see also Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 24 (2008) (citation omitted) (“[a] preliminary injunction is an extraordinary remedy never awarded as of right”). A plaintiff seeking a preliminary injunction must show that (1) he is likely to succeed on the merits, (2) he is likely to suffer irreparable harm without an injunction, (3) the balance of equities tips in his favor, and (4) an injunction is in the public interest. Winter, 555 U.S. at 20. “But if a plaintiff can only show that there are ‘serious questions going to the merits'-a lesser showing than likelihood of success on the merits-then a preliminary injunction may still issue if the ‘balance of hardships tips sharply in the plaintiff's favor, ' and the other two Winter factors are satisfied.” Shell Offshore, Inc. v. Greenpeace, Inc., 709 F.3d 1281, 1291 (9th Cir. 2013) (quoting Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011)). Under this serious questions variant of the Winter test, “[t]he elements . . . must be balanced, so that a stronger showing of one element may offset a weaker showing of another.” Lopez, 680 F.3d at 1072.

         Regardless of which standard applies, the movant “has the burden of proof on each element of the test.” See Envtl. Council of Sacramento v. Slater, 184 F.Supp.2d 1016, 1027 (E.D. Cal. 2000). Further, there is a heightened burden where a plaintiff seeks a mandatory preliminary injunction, which should not be granted “unless the facts and law clearly favor the plaintiff.” Comm. of Cent. Am. Refugees v. INS, 795 F.2d 1434, 1441 (9th Cir. 1986) (citation omitted).

         The Prison Litigation Reform Act imposes additional requirements on prisoner litigants who seek preliminary injunctive relief against prison officials. It requires that any injunctive relief be narrowly drawn and the least intrusive means necessary to correct the harm. 18 U.S.C. § 3626(a)(2); see Gilmore v. People of the State of Cal., 220 F.3d 987, 999 (9th Cir. 2000).

         B. Discussion

         1. Motion Seeking Injunction Regarding Mail

         In his first motion, Plaintiff seeks an order empowering him to send out first class and/or certified mail, authorized and/or unauthorized property, or completed hobby craft at his own “expense” by presenting a signed ADC money withdrawal form, thereby placing a hold on his trust account to cover the postage cost (Doc. 12 at 1-2).

         Plaintiff asserts that CACF's refusal to comply with ADC policies regarding indigent mail is a violation of his First Amendment rights and is taken in retaliation for his filing of a grievance. But allegations that a defendant violated a prison policy do not, by themselves, amount to a constitutional violation. See Gardner v. Howard, 109 F.3d 427, 430 (8th Cir. 1997) (no Section 1983 liability for violation of prison policy). And in his motion, Plaintiff requests blanket approval to send out first class and/or certified mail, authorized and/or unauthorized property, or completed hobby craft. There is not, however, any connection to his grievance activity or discussion of any particular mail he wishes to send. On this record, Plaintiff has not established that CACF's refusal to mail out unlimited, unspecified mail necessitates injunctive relief. See, e.g., Walker v. Davis, 533 Fed.Appx. 471 (5th Cir. 2013); Gaines v. Lane, 790 F.2d 1299, 1308 (7th Cir. 1986) (“However, although prisoners have a right of access to the courts, they do not have a right to unlimited free postage.”) (citing Bach v. Coughlin, 508 F.2d 303, 307-08 (7th Cir. 1974)). Additionally, Plaintiff expressly disclaims that his claim relates to sending legal mail, and the record makes clear that he is able to send his filings to the Court (Docs. 12-14, 17-18, 23-25, 27, 29, 38, 41-43, 45).

         Nor does Plaintiff satisfy the high standard of showing imminent irreparable harm absent an injunction. Caribbean Marine Services Co., Inc. v. Baldrige, 844 F.2d 668, 674-675 (9th Cir. 1988) (speculative injury does not constitute irreparable harm sufficient to warrant granting a ...


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