Miles v. Scanlon

Under 42 U.S.C. § 406(a), any award of fees for services performed before the Administration is properly a matter for the Administration to decide. This Court awards fees only for services performed here. 42 U.S.C. § 406(b) (2018); Wrenn v. Astrue, 525 F.3d 931, 937 (10th Cir. 2008).

The Fee Agreement was entered into by Plaintiff and attorney Michael D. Armstrong, individually on May 24, 2019. [Doc. 36-1] at 24. The attorney requesting fees at this time, however, is Laura 25 (6th Cir. 1987); see also Flagner v. Wilkinson, 241 F.3d 475, 481 (6th Cir. 2001) (same); Bakr v. Johnson, No. 95-2348,1997 WL 428903, at *2 (6th Cir. July 30, 1997) (noting that "sincerely held religious beliefs require accommodation by prison officials"). Even if Plaintiff establishes those three elements, prison officials may impinge on these constitutional rights where their actions are "reasonably related to legitimate penological interests." See Flagner, 241 F.3d at 483 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)).

To date, the federal courts have not determined that the "right" to email communication is as broad as the "right" to receive mail. The MDOC Director's Office Memorandum regarding e-mails and the MDOC mail policy make clear that the ability to so communicate is a privilege and that the privilege can be limited. The courts have routinely agreed. While prisoners have a First Amendment right to communicate with the outside world, see Valdez v. Rosenbaum, 302 F.3d 1039 (9th Cir. 2002); Benzel v. Grammar, 869 F.2d 1105, 1108 (8th Cir. 1989), they do not have a constitutional right to a particular form of communication, such as access to email. Nonetheless, "the First Amendment protects 'the right to receive information and ideas,' which, as applicable in the prison context, extends to the right to receive mail and access reading material." Bethel v. Jenkins, 988 F.3d 931, 938 (6th Cir. 2021) (quoting Kleindienst v. Mandel, 408 U.S. 753, 762 (1972)).

Certainly, even if Plaintiff may not have a "right" to the email form of communication, he might still have some right to the information so communicated. Just as certainly, however, that right would also be subject to "prison officials' need for flexibility in making day-to-day decisions on prison operations [such] that 'when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests.'" Id. (quoting Turner, 482 U.S. at 89). Thus, whether considered from the perspective of the "free exercise" right or the "mail/communication" right, an impingement on the right might be justified by legitimate penological interests.

Any impingement of Petitioner's rights is the product of the MDOC's "publisher only" rule—a rule "that only allow[s] prisoners to receive publications from approved publishers and vendors." Bethel, 988 F.3d at 940. The justification for such rules is to prevent contraband from entering into the prisons. The MDOC mail policy makes clear that the purpose of the rule is to preserve the security, good order, and discipline of the facility. MDOC Policy Directive 05.03.118, ¶NN. Such rules "have been previously upheld." Id., (citing Bell v. Wolfish, 441 U.S. 520, 550 (1979) (regarding hardback books); Ward v. Washtenaw Cnty. Cheriff's Dep't, 881 F.2d 325, 329-30 (6th Cir. 1989) (regarding soft cover materials)).

Certainly, there are differences between the contraband concealment risks of a "hard copy" book and a digital book, but the threats to security from books are not only concealment of weapons or drugs. There is also the risk that the content of the publication might be detrimental to security. Thornburgh v. Abbott, 490 U.S. 401, 415-16 (1989). The purpose of publisher-only rules is to reduce "the administrative difficulties posed by the necessity of carefully inspecting each book mailed from unidentified sources." Bell, 441 U.S. at 551.

The risk that content poses a threat to security may be even greater with digital books than "hard copy" books because it is easier to surreptitiously change the content of a digital book than it is to surreptitiously change a page or a chapter in a "hard copy" book. Thus, as with "hard copy" books, the risks to security from digital books are increased when that book comes from someone other than the publisher or an approved vendor. Because reduction of that risk is plainly a legitimate penological interest, "publisher only" rules have been upheld against all sorts of challenges, even when the book rejected was as common as the Bible. See, e.g., Garrison v. Dutcher, No. 1:07-cv-642, 2008 WL 4534102, at *12 (W.D. Mich. Aug. 14, 2008). The Sixth Circuit has repeatedly upheld the validity of the publisher-only rule. See Ward, 881 F.2d at 325; Littlejohn v. Larson, No. 89-1392, 1989 WL 147110 (6th Cir. Dec. 6, 1989); Jourdan v. Lecureux, No. 91-1197, 1991 WL 158680 (6th Cir. Aug. 14, 1991); Ballard v. City of Inkster, No. 92-1203, 1992 WL 301278 (6th Cir. Oct. 21, 1992); Hunt v. Beckenger, No. 97-3237, 1997 WL 778158 (6th Cir. Dec. 9, 1997); Thompson v. Campbell, 81 F. App'x 563 (6th Cir. 2003); Bethel, 988 F.3d at 938-42.

Under these circumstances, this Court "need not engage in a Turner analysis of this policy because precedent [binds] the district court . . . in addressing this First Amendment challenge." Thompson, 81 F.App'x at 569. The Thompson court concluded that Bell and Ward dictated the result in that case: "Nothing about the Department's policy or Thompson's challenge to it overcomes these controlling precedents." Id. Similarly, in Plaintiff's case, nothing about the MDOC publisher-only rule or Plaintiff's challenge to it permits the Court to ignore Bell, Ward, or the many other persuasive precedents upholding the publisher-only rule. Accordingly, Plaintiff has failed to state an actionable claim for violation of his First Amendment rights.

Having conducted the review required by the Prison Litigation Reform Act, the Court determines that Plaintiff's complaint will be dismissed for failure to state a claim, under 28 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The Court must next decide whether an appeal of this action would be in good faith within the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th Cir. 1997). Although the Court concludes that Plaintiff's claims are properly dismissed, the Court does not conclude that any issue Plaintiff might raise on appeal would be frivolous. Coppedge v. United States, 369 U.S. 438, 445 (1962). Accordingly, the Court does not certify that an appeal would not be taken in good faith. Should Plaintiff appeal this decision, the Court will assess the $505.00 appellate filing fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless Plaintiff is barred from proceeding in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be required to pay the $505.00 appellate filing fee in one lump sum.

This is a dismissal as described by 28 U.S.C. § 1915(g).

A judgment consistent with this opinion will be entered. Dated: May 6, 2021

/s/ Janet T. Neff

Janet T. Neff

United States District Judge

Flagner, 241 F.3d at 484 (quoting Turner, 482 U.S. at 89-91).

Failure to satisfy the first factor renders the regulation or action infirm, without regard to the remaining three factors. Flagner, 241 F.3d at 484 (quoting Turner, 482 U.S. at 89-90) ("a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational"). If the first factor is satisfied, the remaining three factors are considered and balanced together; however, they are "not necessarily weighed evenly," but instead represent "guidelines" by which the court can assess whether the policy or action at issue is reasonably related to a legitimate penological interest. Flagner, 241 F.3d at 484 (citations omitted). It should further be noted that the Turner standard is "not a 'least restrictive alternative' test" requiring prison officials "to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint." Instead, the issue is simply whether the policy or action at issue is reasonably related to a legitimate penological interest. Id.