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Right to Associate Still Viable

The U.S. court of appeals for the Second Circuit held that genuine issues of fact, as to the reasonableness of an official denial of a prisoner's request to form a legal defense center, precluded summary judgment for prison officials. The court, however, further held that the officials were entitled to qualified immunity.

In May 1995, Jason Nicholas, a New York state prisoner confined to Woodbourne Correctional Facility (WCF), sought permission from local prison authorities to form a Prisoners' Legal Defense Center (Center). The organization would disseminate information to the public and the media on prison issues, lobby government on behalf of prisoners' issues, and "provide legal assistance to selected prisoners." Ultimately, Nicholas' requests, including administrative appeals, were denied.

In October 1995, Nicholas brought suit, pursuant to 42 U.S.C. § 1983, against two WCF officials and the N.Y. Department of Correctional Services (DOCS). He alleged an assortment of First Amendment violations (free speech, assembly, petition, access to court, political expression., and association), plus equal protection and due process claims. He sought preliminary and permanent injunctions, declaratory judgment and monetary damages. Eight months later, Chief Judge Griesa dismissed the complaint, pursuant to 28 U.S.C. § 1915 (d) , as frivolous.

In an unpublished opinion, a panel of the Second Circuit held that Nicholas' complaint stated an arguable claim under Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 132 (1977), for a violation of his First Amendment associational rights. In all other respects, however, the finding of frivolousness was affirmed. The case was remanded on the one issue, as to the individual defendants.

In August 1997, Nicholas' filed an amended complaint in which he reiterated his First Amendment, due process, and equal protections claims, but he added the DOCS deputy commissioner as a defendant. This time the defendants answered the complaint, and responded to Nicholas' motion for a preliminary injunction with "a letter brief," which the district court found lacking. In an order requiringfurther response to the motion, the district court pointedly asked "why the Center would interfere with a penological objective"?

The defendants then responded with a motion for summary judgme nt, which included an affidavit stating the Center "conflicted with an already existing group and would result in duplication of services." This response was also deemed inadequate, and the district court ordered further response, cautioning the defendants that failure to do so in writing would result in the issuance of a preliminary injunction. Finally, after Nicholas moved for summary judgment and appointment of counsel, the defendents filed an affidavit by the DOCS assistant commissioner in charge of security, who claimed "the Center would `undermine the safety and security' of the facility; it would `foster, and perhaps even instigate, adversarial conflicts' within the facility, and `incite collective subversive activities'; it `would be worse than a "gang,"' and would `trigger serious conflict' in the facility, because the `subservience' it would generate `inevitably leads to extortion and violence."' This conclusory rhetoric was good enough for the district court, and summary judgment was entered in favor of the defendants.

On appeal, the court noted that the remaining claim is the infringement on Nicholas' associational rights, and under Jones, such rights "may be curtailed" only upon a showing that "legitimate penological objectives" would be adversely impacted. According to the Court, the appropriate methodology for ascertaining whether a valid penological objective was being advanced is the analytical framework set forth in Turner v. Safley, 482 U.S. 78 (1987). Since the district court "did not acknowledge the applicability of Turner, must less address each Turner factor," the court concluded that unresolved genuine issues of fact precluded summary judgment.

Nevertheless, the defendants had asserted a qualified immunity defense in their answer to the complaint, and had briefed the issue on appeal. In this respect, the court determined "the First Amendment right of association to form an inmate legal services organization was not clearly established at the time permission to form the Center was denied;" therefore, the defendants were accorded to qualified immunity from damages.

The case was remanded for a proper consideration of Nicholas' equitable claims. However, the court "expressed no view as to the extent, if any, that a First Amendment associational right could protect the right to associate for the purpose of discussing lawrelated issues." The district court was also instructed to rule on Nicholas' motions for injunctive relief and appointment of counsel.

On remand from the appeals court, the district court denied Nicholas' motion for a Preliminary Injunction seeking establishment of the legal center.. The court held Nicholas has not shown a likelihood of prevailing on the merits. The court also denied the defendants' motion for summary judgment, holding that disputed issues of fact required a trial. See: Nicholas v. Miller, 189 F.3d 191 (2nd Cir. 1999)

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Related legal cases

Nicholas v. Miller


96 Civ. 4249 (WK)


109 F. Supp. 2d 152; 2000 U.S. Dist. LEXIS 10172

July 21, 2000, Decided

July 21, 2000, Filed

DISPOSITION: [**1] Defendant's motion for summary judgment DENIED and plaintiff's motion for preliminary injunction DENIED.

COUNSEL: For Plaintiff: Martin L. Zerwitz, Esq., Schulte Roth & Zabel LLP, New York, NY.

For Plaintiff: Jason B. Nicholas, Warwick, NY.

For Defendant: Nicola N. Grey, Esq., Office of the Attorney General, State of New York, New York, NY.



OPINION: [*153]




We assume familiarity with the background information set forth in the prior decisions in this matter of this Court and the Court of Appeals. See Nicholas v. Miller (2d Cir. 1999) 189 F.3d 191.

Plaintiff Jason Nicholas (hereinafter "plaintiff") sued defendant New York State Department of Corrections (hereinafter "defendant" or "DOCS") to establish an authorized Prisoners' Legal Defense Center (hereinafter the "Center") where he is incarcerated. n1 We granted summary judgment to defendant and denied plaintiff's motion for injunctive relief as moot. The Second Circuit remanded, ruling that the evidentiary record as of June 1999 contained material disputes of fact. Id. at 195. [**2] Defendant in its appearances before us has done nothing to put that finding in doubt. We therefore deny its motion for summary judgment.

n1 In his original complaint, plaintiff requested permission to open a legal center at the Woodbourne Correctional Facility. DOCS has since relocated plaintiff to the Mid-Orange Correctional Facility. He now asks to open a center only where he is currently imprisoned, and we have heard evidence specifically relating to this context. The complaint has been dismissed against defendants Thomas J. Miller and Robert Hanslmaier on grounds of qualified immunity.

Turning to plaintiff's motion for a preliminary injunction, we have held a two-day hearing, including the testimony of several witnesses. We have also considered affidavits and memoranda of law. For the reasons stated below, we deny plaintiff's motion, for which this opinion and order will constitute our findings of fact and conclusions of law.

Plaintiff's proposed Center would engage in three kinds of activities: First, as [**3] a group and using organizational stationery, it would disseminate information to the public and the media regarding legal issues of importance to prisoners. For example, the Center possibly would publish a newsletter reviewing such issues and addressing prison policy. It would, in appropriate cases, lobby for prison reform.

Additionally, the Center would engage in "impact litigation," i.e., prosecute select prisoner lawsuits of relatively wide significance. Finally, it would educate the local inmate population, allowing prisoners to assemble, discuss their views, and attempt to arrive at a consensus. It would invite speakers, hold paralegal training classes, and perhaps publish handbooks and pamphlets. Incidentally, the organization would raise money and would thus, according to plaintiff, need no other financial assistance.

DOCS proffers two justifications for rejecting the Center. First, DOCS argues that the Center will duplicate existing services. [*154] DOCS currently permits plaintiff and the other inmates individually to contact the media and the government, and to research the law and file suits with the assistance of the law library staff. But, since DOCS refuses to approve the [**4] Center as an authorized organization, plaintiff cannot now associate with other inmates to engage in these activities on a group basis, which entails a distinct kind of expression. n2 We therefore shall not consider this DOCS argument for present purposes.

n2 No matter what plaintiff or the other inmates can write or research in isolation, if they cannot gather to discuss common issues (or invite guest speakers, communicate as a group, or conduct other activities permitted only to approved inmate organizations), the public power of their unique collective voice may appreciably diminish.

Second, DOCS argues that the Center might generate a significant security risk. It asserts that since the Center will engage in activities of an adversarial nature, particularly belligerent prisoners may use the Center as a way to incite violence, anti-authoritarian behavior, or extortion. We shall consider the merits of this contention.


A preliminary injunction constitutes an extraordinary remedy which [**5] should not be routinely granted. Pride v. Community Sch. Bd. (2d Cir. 1973) 482 F.2d 257, 264. Someone seeking a preliminary injunction normally must demonstrate (1) a material threat of irreparable injury and (2) either a likelihood of success on the merits or (2) the existence of serious questions going to the merits as to make the case a fair ground for litigation and that the balance of hardships tips decidedly in favor of the movant. See, e.g., Cherry River Music Co. v. Simitar Entertainment, Inc. (S.D.N.Y. 1999) 38 F. Supp. 2d 310, 316 (citations omitted).

Were plaintiff's request for an injunction to sustain the status quo, we would begin by assuming a material threat of irreparable harm, see Elrod v. Burns (1976) 427 U.S. 347, 373, 96 S. Ct. 2673, 49 L. Ed. 2d 547 ("the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury"), since the Second Circuit has ruled that plaintiff's claimed violation of his associational rights has "an arguable basis in law." Nicholas, 189 F.3d at 193. Moreover, our present ruling denying defendant's summary judgment motion [**6] establishes the existence of serious questions going to the merits.

However, we apply a higher standard in cases, such as the instant one, where the injunction would alter the status quo. Such a "mandatory" injunction should issue "only upon a clear showing that the moving party is entitled to the relief requested" in the complaint, or "where extreme or very serious damage will result from a denial of preliminary relief." Tom Doherty Assocs., Inc. v. Saban Entertainment, Inc. (2d Cir. 1995) 60 F.3d 27, 34 (citations omitted); see also, e.g., Cherry River Music Co., 38 F. Supp. 2d at 316 & n.46.


Plaintiff correctly notes that on this motion, defendant has the burden of production -- i.e., to advance rationales for denying the Center that bear a reasonable relationship to a legitimate penological interest. Yet the burden of proof remains on plaintiff to show that the regulation is clearly unreasonable. Giano v. Senkowski (2d Cir. 1995) 54 F.3d 1050, 1054 (citations omitted). Plaintiff has not met his burden here.

A. Standard of Review for Prisoner First Amendment [**7] Cases

The Supreme Court has declared that, "When a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner v. Safley (1987) 482 U.S. 78, 89, 107 S. Ct. 2254, [*155] 96 L. Ed. 2d 64. The Turner Court set forth a four-part test to determine the reasonableness of such regulations:

First, there must be a "valid, rational connection" between the prison regulation and the legitimate governmental interest put forward to justify it... Moreover, the governmental objective must be a legitimate and neutral one...

A second factor... is whether there are alternative means of exercising the right that remain open to prison inmates....

A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally...

Finally, the absence of ready alternatives is evidence of the reasonableness of a prison regulation.

Id. at 89-90 (citations omitted).

We must apply a deferential standard of review to challenges to prison regulations because "courts [**8] are ill equipped to deal with the increasingly urgent problems of prison administration and reform." Id. at 84.

The problems of prisons in America are complex and intractable, and, more to the point, they are not readily susceptible of resolution by decree. Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches... Where a state penal system is involved, federal courts have... additional reason to accord deference to the appropriate prison authorities.

Id. at 84-85 (citations omitted).

On the other hand, the Supreme Court did not intend Turner's reasonableness analysis to be "toothless." Thornburgh v. Abbott (1989) 490 U.S. 401, 414, 109 S. Ct. 1874, 104 L. Ed. 2d 459. We should not adopt prison officials' rationales unthinkingly, especially since these officials have every incentive to "err on the side of too little freedom." Jones v. North Carolina Prisoners' Labor Union, Inc. (1977) 433 U.S. 119, 142, 97 S. Ct. 2532, 53 L. Ed. 2d 629 (Marshall, [**9] J., dissenting).

B. Is the First Amendment Implicated?

As the Court of Appeals intimated, plaintiff has by no means established that there clearly exists an associational right under the First Amendment for prisoners to organize for the adversarial functions that plaintiff demands. See Nicholas, 189 F.3d at 195. The Turner Court "refined the standard of review for all prison regulations that impinge on inmates' constitutional rights." Id. at 194 (our emphasis). Yet "implicit in the Turner approach is the principle that [its] four-factor analysis applies only after it is determined that the policy impinges on a first amendment right." Ali v. Dixon (4th Cir. 1990) 912 F.2d 86, 89; see Turner, 482 U.S. at 95-100 (deciding as a threshold matter whether the right to marry, certainly protected by the Constitution for free citizens, attaches in the prison context, i.e., whether marriage is consistent with an inmate's "status as a prisoner or with the legitimate penological objectives of the corrections system") (citation omitted).

In making its initial inquiry, the Turner Court -- and [**10] the Second Circuit in the case at bar and elsewhere -- continue to find guidance from an earlier precedent stating that a prisoner's associational rights are perforce significantly curtailed by his or her "status as a prisoner" and the "operational realities of a prison." Jones, 433 U.S. at 125-26, cited in Turner, 482 U.S. at 86-89, 90, 92; Nicholas, 189 F.3d at 194; Giano, 54 F.3d at 1052-53; Allen v. Coughlin (2d Cir. 1995) 64 F.3d 77, 79. [*156]

One Third Circuit opinion did order a preliminary injunction against the disbanding of a prisoner organization called the Inmate Legal Association ("ILA") that provided high quality paralegal assistance. Valentine v. Beyer (3d Cir. 1988) 850 F.2d 951. The Valentine Court noted that the ILA afforded prisoners legal education classes and a forum for private discussions and for "networking" about inmate cases. Id. at 955-56. The Court considered these arguably "associative" factors as elements of individuals' effective access to the courts. See id. n3 Yet the Second Circuit in the instant case has ruled that, "The considerable [**11] body of caselaw that has provided definition to the [right to provide legal assistance to other inmates] is not directly implicated in this case, as we earlier dismissed [plaintiff's] right of access claim as frivolous." Nicholas, 189 F.3d at 195; see generally Murphy v. Shaw, 195 F.3d 1121, 1126 & n.6 (9th Cir. 1999), cert granted, 121 S. Ct. 27, 147 L. Ed. 2d 1050 (U.S. 2000) (noting that only some circuits have recognized an associational right of an inmate to give legal aid to a fellow prisoner).

n3 Valentine is also distinguishable from the present case for two reasons. First, the injunction there essentially upheld rather than transformed the status quo. Second, the trial court there "carefully analyzed security considerations" and concluded that the importance of inmates' meaningful access to the courts outweighed any potential security threat presented by the continued functioning of the ILA. 850 F.2d at 953-54, 957-58.

Independently [**12] of that specific right, some courts, relying on a Supreme Court decision outside the prison context, have held that a prisoner's associational rights may be implicated when he pursues socially meaningful class action or civil rights litigation (as a form of "political association"). See, e.g., Smith v. Maschner (10th Cir. 1990) 899 F.2d 940, 950 (quoting an Eleventh Circuit case that relies on NAACP v. Button (1963) 371 U.S. 415, 419, 431, 83 S. Ct. 328, 9 L. Ed. 2d 405); cf. Rizzo v. Dawson (9th Cir. 1985) 778 F.2d 527, 531-32 (citing Button and its progeny). This circuit has not acknowledged such a right. Moreover, these cases grant protection to individual inmates commencing impact litigation. When a group of several inmates assembles to achieve this goal, however, it is precisely the group setting that seems most inconsistent with the inmates' "status as prisoner[s]."

Nevertheless, at this stage of the proceedings, we do not decide plaintiff's motion on this issue, but instead proceed to examine the particular facts in light of the four enumerated Turner factors.

C. "Rational Connection"

Turner's first [**13] factor demands that we inquire whether a rational connection exists between the challenged governmental policy and a legitimate interest. Turner, 482 U.S. at 89. This requires us to determine whether the governmental objective underlying the policy is (1) "legitimate" and (2) "neutral," and (3) whether the policy is "rationally related" to that objective. Thornburgh, 490 U.S. at 414.

As above noted, we have recognized that we must consider defendant's concern with security. This is surely a "legitimate" consideration. See id. at 415. Moreover, this case also meets the requirement that the policy be "neutral." As the Supreme Court explained in Thornburgh, to meet the "neutrality" test,

the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of expression. Where, as here, prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are "neutral" in the technical sense in which we meant and used that term in Turner.

490 U.S. at 415-16 (quotations [**14] and citation omitted).

Here, analogous to Thornburgh, the prison administrators differentiated among [*157] inmate organizations based solely upon such groups' potential effects on the prison's security and order. Plaintiff claims that defendant suppressed his proposed Center because the Center would have raised a united voice in opposition to prison policy and practice. Yet, as discussed below, defendant has marshaled significant evidence of security risks not related to the specific politics of the Center's putative members. DOCS does allow individual prisoners to write letters of protest, to file grievances against it, and to complain through liaison committees. But, when a prison organization causes rational security concerns related to its anti-authoritarian nature, we find that DOCS may appropriately deny approval.

Finally, the government has adequately shown that its denial of plaintiff's Center is rationally related to its legitimate objectives. To show such a relationship between a regulation and an interest, "prison officials need not prove that the banned [organization] actually caused problems in the past, or that [it is] likely to cause problems in the future" (although [**15] evidence of past problems will bolster the government's case). "Moreover, it does not matter whether we agree with the [defendant] or whether the policy in fact advances the [prison's] legitimate interests. The only question that we must answer is whether the [defendant's] judgment was rational, that is, whether the [defendant] might reasonably have thought that the policy would advance its interests." Mauro v. Arpaio (9th Cir. 1999) (en banc) 188 F.3d 1054, 1060 & n.3, cert. denied, U.S. , 146 L. Ed. 2d 311, 120 S. Ct. 1419 (2000) (citations and internal quotation marks omitted). That is, the relationship between the policy and the goal must not prove "so remote as to render the policy arbitrary or irrational." Turner, 482 U.S. at 89-90.

Our deference to experts may properly lead us to "conclude that certain proposed interactions, though seemingly innocuous to laymen, have potentially significant implications for the order and security of the prison." Thornburgh, 490 U.S. at 407. In this regard, the instant case parallels Jones. There, prison officials uniformly testified that the [**16] concept of a prisoners' labor union "was itself fraught with potential dangers," even if the originators of the concept harbored the best intentions. 433 U.S. at 126; see also id. at 127-29, 131-33. Experienced government witnesses here, as in Jones, consistently declare that the more adversarial the purpose and methods of an inmate group, the higher the risk that a vocal minority within the group may recast it as a vehicle for consolidation of power and influence among the inmate population. Individuals may then find themselves coerced into joining the group and participating in disruptive schemes. One might also rationally predict friction between members and non-members. See also, e.g., Duamutef v. O'Keefe (2d Cir. 1996) 98 F.3d 22, 24 (speech and associational rights involved in preparing and circulating petitions in prison outweighed by safety concerns).

Plaintiff attacks these security concerns along three main lines. None of these arguments sufficiently demonstrates defendant's alleged irrationality. First, plaintiff suggests that group meetings criticizing the government actually serve as a "safety valve," allowing otherwise [**17] angry and violent people to vent their frustrations productively. We find this argument plausible, especially since inmate riots used to occur before prisons began routinely to condone some prisoner organizations. Still, so far, we have heard this theory advanced only by plaintiff himself and by a supervising attorney for the Prisoners' Rights Project of The Legal Aid Society. Without any expert opinion regarding such group catharsis, we credit the informed judgment of DOCS personnel, who note that groups typically present a far greater risk than individuals: In the volatile context of a correctional facility, group unrest can escalate without warning. [*158] A few enraged men can turn an otherwise positive forum into a riot.

Plaintiff's second main argument posits that DOCS already closely monitors and controls approved inmate organizations, and that such supervision forestalls most potential threats. Granted, DOCS maintains intelligence-gathering and special tactics forces that monitor unruly individuals and groups. Moreover, DOCS regulations restrict approved organizations in several ways. For example, (1) the regulations set a cap on the number of members joining a given group; (2) DOCS [**18] assigns each group a staff supervisor; (3) DOCS must pre-clear any correspondence, invited speakers, and newsletters; and (4) prison officials may remove a given inmate from any group for improper behavior.

Yet, defendant's witnesses assert that their surveillance capacity has limits. For instance, they do not have sufficient staff to watch over every inmate meeting, much less to oversee whether a malicious group leader might secretly coerce others once the meeting ends. If DOCS miscalculates, lives and significant resources may be sacrificed. Defendant rationally chooses not to gamble with such high stakes, which is why it disapproves of plaintiff's Center at the onset. Cf. Jones, 433 U.S. at 132-33 ("Responsible prison officials must be permitted to... act before the time when they can compile a dossier on the eve of a riot.").

Finally, plaintiff affirms that other prisons across the country and in New York have authorized the existence of allegedly "adversarial" prison organizations with similar goals to his, with no harmful consequences. If correct, this evidence would tend to demonstrate, notwithstanding the above testimony and analysis, that defendant's rejection [**19] of the Center represents an "exaggerated response." See Turner, 482 U.S. at 90. On the other hand, the Constitution "does not mandate a 'lowest common denominator' security standard, whereby a practice permitted at one penal institution must be permitted at all institutions." Id. at 93 n.* (quoting Bell v. Wolfish (1979) 441 U.S. 520, 554, 99 S. Ct. 1861, 60 L. Ed. 2d 447).

The current record in the instant case indicates that at least three pre-existing groups seem similar to the proposed Center. n4 At this stage, though, plaintiff has not met his burden of proof. We do not yet have enough information about the aspirations, membership, and actual practice of these other groups to conclude whether or not they are riskier than plaintiff's Center. Further, we do not know what security arrangements have been made to minimize hazards in the other groups, and whether such arrangements would be feasible at Mid-Orange. A court may properly decide that a movant has not demonstrated a reasonable likelihood of success if, after reviewing the evidence, it appears that there remains a substantial dispute as to the material facts. Cf., e.g. [**20] , Marcy Playground, Inc. v. Capitol Records, Inc. (S.D.N.Y. 1998) 6 F. Supp. 2d 277, 283 n.21 (citation omitted).

n4 First, Dale Artus, a government witness and the director of DOCS' Crisis Intervention Unit, testified about a "political action seminar" at New York's maximum-security Green Haven C.F. (Tr. 63). Second, an inmate group in Washington state publishes a newsletter. Third, as mentioned above, inmates at New Jersey's highest security state prison formed an Inmate Legal Association. Valentine, 850 F.2d at 953, 958. Plaintiff also alleges that similar programs exist at Auburn C.F., at Rahway State Prison, and at Lewisburg Federal Prison.

The Second Circuit has directed that we consider whether "some of the proposed Center's functions but not others would survive Turner analysis," Nicholas, 189 F.3d at 195, and we conclude that none of the functions are clearly likely to survive such analysis. We credit the three defense witnesses who have testified in [**21] detail about the peril of approving any gatherings called together by an antagonistic organization. Implicit in defendant's position [*159] is that additional functions, such as publishing, lobbying, or inviting guest speakers, would heighten an already sufficiently unacceptable risk. n5

n5 Still, because each side discussed the Center's paralegal function in depth, we comment about that function, concluding that it may present a serious menace. Granted, the record shows that DOCS already allows prisoners to help each other to prepare lawsuits. Even when an inmate is not affiliated with the prison library's law clerk program, DOCS routinely grants permission for such assistance on a case-by-case basis. Consequently, prisoners with legal expertise already exert power over those whom they help (or opt not to help), and thus the potential already exists for extortion, coercion, anger, incompetence, and discrimination.

However, defendant contends that the Center would potentially expose inmates and staff to unique risks. First and foremost, plaintiff apparently hopes that his Center will vote democratically to pursue a few important class action suits. Unfortunately, a vocal minority may become excessively interested in forcing the potentially considerable resources of the Center to be diverted towards one kind of lawsuit. When DOCS approves legal assistance on an individual basis, no such risk develops that entire sub-groups of the inmate population will fight for representation. Also, defendant argues that the law library supervises legal assistance via carefully established methods and specifically trained personnel in order to ensure that (1) confidential legal documents do not fall into the hands of third parties, who can use the information against the litigant; (2) inmates do not extort payments or favors from each other; and that (3) all segments of the population (including minorities) have equitable access to representation. Outside the structured environment of the law library program, and in a new and large group setting, these security-enhancing protections might well fall away.


D. Alternative Avenues

The second Turner factor we must consider in determining the reasonableness of the policy's restriction on constitutional rights is "whether there are alternative means of exercising the right that remain open to prison inmates." Turner, 482 U.S. at 90. In applying this factor, "the right in question must be viewed 'sensibly and expansively,' allowing for "flexibility in determining what qualifies as another means of expression." Giano, 54 F.3d at 1055 (quoting Thornburgh, 490 U.S. at 417; citing Turner, 482 U.S. at 78). For example, in Turner, the Court upheld a regulation that restricted correspondence between inmates at different state prisons. In doing so, the Court rejected the argument that the government should afford inmates other means of communicating with inmates at other institutions, finding it sufficient if other means of expression remained available to the inmates. See Turner, 482 U.S. at 92.

So long as the regulations foreclose only one of several ways in which inmates may exercise a specific first amendment right, the fact the prohibited [**23] activity may be a more desirable means of expression does not diminish the import of the remaining alternative.

Giano, 54 F.3d at 1055-56 (citation omitted).

Viewing the rights to assemble and to speak at issue here in this sensible and expansive manner, we hold that this factor is satisfied. Defendant sufficiently accommodates the free speech needs of individual prisoners by permitting them to write complaints addressed to the media and the government. (DOCS supplies inmates with directories of officials, writing materials, and stamps.) DOCS cannot and does not habitually suppress plaintiff's protests. Indeed, plaintiff is clearly an intelligent and eloquent spokesperson for prisoners' rights who has already initiated over thirty lawsuits on behalf of himself and others. Further, the government "has not hampered the ability of prison inmates to communicate their grievances to correctional officials," for "there exists an inmate grievance procedure through which... remedial action may be secured." Jones, 433 U.S. at 130 n.6; see also Duamutef, 98 F.3d at 24 ("effective" grievance system in New York state prisons). Finally, [**24] plaintiff may join the ILC and a [*160] host of other approved inmate organizations.

E. Impact on Others

The third factor that we must address is the impact that accommodation of the asserted constitutional right would have on prison personnel, other inmates, and the allocation of prison resources. Turner, 482 U.S. at 90. "When the accommodation of an asserted right will have a significant 'ripple effect' on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials." Id. (citing Jones, 433 U.S. at 132-33).

Given the risk of violence introduced by opening the Center, this factor is also met here. As the Second Circuit has stated,

Increased violence among inmates has a direct adverse affect on the inmates involved, and a ripple effect... Violent encounters among inmates drain prison resources... Furthermore, any increase in the level of prison violence unnecessarily risks lighting a spark in an environment in which there is no dearth of short fuses.

Giano, 54 F.3d at 1056; cf. Mauro, 188 F.3d at 1061.

F. Ready Alternatives [**25]

The fourth and final factor that we must deal with asks whether the policy constitutes an "exaggerated response" to the prison's concerns. As noted in Turner, 482 U.S. at 90-91 (citations omitted):

The absence of ready alternatives is evidence of the reasonableness of a prison regulation. By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable... This is not a "least restrictive alternative" test: prison officials do not have to set up and then shoot down every conceivable alternative method of accommodating the claimant's constitutional complaint. But if an inmate claimant can point to an alternative that fully accommodates the prisoner's rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.

Plaintiff has made no such showing.


Given that plaintiff has other means of voicing his dissent and congregating with fellow inmates, that he continues to prosecute lawsuits, and that a plenary trial of this case is forthcoming shortly, we [**26] see no extreme harm in maintaining the status quo.


For the reasons indicated above, we DENY defendant's motion for summary judgment and DENY plaintiff's motion for a preliminary injunction.

Although we have found that plaintiff has not produced enough evidence or arguments to persuade us that DOCS' actions have not related rationally to a legitimate penological interest, we remind the parties that plaintiff may develop further evidence as the litigation progresses that will enable him to succeed at trial. Cf. Gillespie & Co. v. Weyerhaeuser Co. (2d Cir. 1976) 533 F.2d 51, 53 (declining to reverse the denial of a preliminary injunction while recognizing that the movant might produce additional evidence at trial).


July 21, 2000

New York, New York


Nicholas v. Miller

Nicholas v. Miller, 189 F.3d 191 (2d Cir. 08/13/1999)

[1] U.S. Court of Appeals, Second Circuit

[2] Docket No. 98-2768

[4] August 13, 1999


[6] Jason B. Nicholas, Pro Se, Wallkill, N.y., for Plaintiff-Appellant. Dianne L. Rosky, Esq., New York, N.y., Appearing at Oral Argument for Plaintiff-Appellant. Archibald F. Robertson, Jr., Assistant Attorney General (Eliot Spitzer, Attorney General of the State of New York, John W. McConnell, Deputy Solicitor General, Robert A. Forte, Assistant Attorney General, on the brief), New York, N.y., for Defendants-Appellees.

[7] Before: Meskill and Walker, Circuit Judges, and Korman, *fn1 District Judge.

[8] The opinion of the court was delivered by: Per Curiam

[9] August Term 1998

[10] Argued: June 2, 1999

[11] Appeal from a judgment in the United States District Court for the Southern District of New York (Knapp, J.), granting summary judgment in favor of defendants-appellees and dismissing plaintiff-appellant's complaint that he had been prohibited from forming a Prisoners' Legal Defense Center in violation of his First Amendment rights.


[13] Plaintiff-appellant pro se Jason B. Nicholas appeals from the July 10, 1998 judgment of the United States District Court for the Southern District of New York (Whitman Knapp, Judge). The district court denied Nicholas's motion for a preliminary injunction, granted defendants-appellees' motion for summary judgment, and dismissed Nicholas's complaint. Nicholas alleges that defendants-appellees, various New York prison officials, violated his First Amendment rights when they denied his request to form a Prisoners' Legal Defense Center. We vacate the judgment of the district court and remand for further proceedings.


[15] While in prison, Nicholas has earned a college degree and concentrated on the study of law. He has "practiced" his craft as a jailhouse lawyer. On May 25, 1995, while at the Woodbourne Correctional Facility, Nicholas requested that the prison authorities allow him to form a Prisoners' Legal Defense Center (the "Center"). Its stated goals were to disseminate information to the public and media on prison issues, to lobby the state and federal government in support of those issues, and to provide legal assistance to selected prisoners. Defendant Thomas J. Miller, the Inmate Organization Coordinator and Deputy Superintendent for Programs at Woodbourne, recommended that Nicholas's request be denied, and defendant Robert Hanslmaier, Woodbourne's acting Superintendent, denied the request. Nicholas pursued an administrative appeal, and defendant Raymond Broaddus, the Deputy Commissioner of the Department of Correctional Services, rejected his appeal by letter dated July 13, 1995.

[16] Nicholas brought this action pursuant to 42 U.S.C. § 1983 in October of 1995, initially naming Miller, Hanslmaier, and the New York State Department of Correctional Services as defendants. Nicholas requested a preliminary injunction and permanent injunctive relief requiring the prison to allow him to form the Center, a declaratory judgment, and unspecified monetary damages. Nicholas alleged that his First Amendment rights of speech, assembly, petition, access to the courts, political expression, and association, as well as his equal protection and due process rights, had all been violated by defendants' refusal to allow him to operate the Center.

[17] On June 10, 1996, the district court (Griesa, Chief Judge) dismissed Nicholas's complaint as frivolous pursuant to 28 U.S.C. § 1915(d). Nicholas appealed and a panel of this court vacated the dismissal of the action and remanded the case for further proceedings with respect to Miller and Hanslmaier. See Nicholas v. Miller, No. 96-2528 (2d Cir. Aug. 6, 1997) (unpublished order). We stated that Nicholas's First Amendment associational right had an arguable basis in law under Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119, 132 (1977), but affirmed the dismissal of the case as frivolous with regard to all other claims and parties.

[18] On August 25, 1997, Nicholas filed an amended complaint that reiterated his First Amendment, due process and equal protection claims and added Broaddus as a defendant. The amended complaint also requested declaratory, injunctive, and monetary relief in the amount of $25,000 in compensatory damages against each defendant, and $25,000 in punitive damages against each defendant. Nicholas moved for a preliminary injunction in the district court. Defendants answered the complaint and asserted numerous defenses, including qualified immunity and failure to state a claim, and filed a letter brief opposing the preliminary injunction. The district court ordered defendants to respond further to the injunction motion and to address the non-frivolous issue of associational rights identified in this court's August 1997 order by stating why the Center would interfere with a penological objective.

[19] Defendants responded by opposing the motion for a preliminary injunction and at the same time filed a motion for summary judgment pursuant to Rule 56, Fed. R. Civ. P., supported solely by an affidavit from Miller. Miller's affidavit asserted a single reason for denying the application to form the Center: it "conflicted with an already existing group and would thus result in duplication of services." Nicholas cross-moved for summary judgment and appointment of counsel. Thereafter, the district court again ordered defendants to respond to the substantive issue raised by Nicholas's complaint and warned that "[f]ailing such writing, the preliminary injunction will be granted."

[20] Defendants responded with an affidavit from George Duncan, the "Assistant Commissioner for Facility Operations (i.e., security) at the New York State Department of Correctional Services," who had no role in the denial of Nicholas's application in 1995. Duncan asserted an additional reason for denying Nicholas permission to form the Center: in his opinion, the Center would "undermine the safety and security" of the facility; it would "foster, and perhaps even instigate, adversarial conflicts" within the facility, and "incite collective subversive activities"; it "would be worse than a `gang,'" and would "trigger serious conflict" in the facility, because the "subservience" it would generate "inevitably leads to extortion and violence."

[21] Based on Duncan's affidavit, the district court granted defendants' motion for summary judgment and denied Nicholas's motions as moot. Judgment was entered on July 10, 1998, and this appeal followed.


[23] We review orders granting summary judgment de novo, "construing the evidence in the light most favorable to the non-moving party and drawing all reasonable inferences in its favor." Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir. 1998) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986)). Summary judgment shall be granted when "there is no genuine issue as to any material fact and [] the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Because genuine issues of material fact remain in this case, summary judgment was improperly granted. However, appellees are entitled to qualified immunity and may not, therefore, be sued for money damages.

[24] Nicholas's remaining claim in this case is for infringement of his First Amendment associational rights. In Jones v. North Carolina Prisoners' Labor Union, Inc., 433 U.S. 119 (1977), the Supreme Court held that associational rights in a prison setting "may be curtailed whenever the institution's officials, in the exercise of their informed discretion, reasonably conclude that such associations, whether through group meetings or otherwise, possess the likelihood of disruption to prison order or stability, or otherwise interfere with the legitimate penological objectives of the prison environment." Id. at 132. Applying this test, the Court upheld prison regulations prohibiting inmate-to-inmate solicitation for union membership and group meetings. See id. at 129. The Court reached this Conclusion because state correctional officials "uniformly testified" that the prisoners' labor union was "fraught with potential dangers." Id. at 126-27.

[25] A decade later, in Turner v. Safley, 482 U.S. 78 (1987), the Court refined the standard of review for all prison regulations that impinge on inmates' constitutional rights: a prison regulation is "valid if it is reasonably related to legitimate penological interests." Id. at 89. The Turner Court identified the methodology to be followed in determining the reasonableness of such regulations. First, there must be a valid and rational connection between the regulation and the governmental interest put forward to justify it, and the governmental objective must be legitimate and neutral. The court must then consider whether there are alternative means of exercising the proscribed right, the impact that accommodating the right will have on other inmates, on prison guards, and on the allocation of prison resources generally, and the availability of ready alternatives to the regulation. See id. at 89-91; see also Thornburgh v. Abbott, 490 U.S. 401, 414-18 (1989) (reiterating Turner factors).

[26] In Allen v. Coughlin, 64 F.3d 77 (2d Cir. 1995), applying the Turner methodology, we reviewed a prison regulation that permitted newspaper clippings that were not sent directly by the publisher to be removed from personal inmate mail as suspected contraband. See id. at 78. Prison officials submitted affidavits to support their claim that prison security justified removal of newspaper clippings, but those affidavits cited "only one concrete example of a dangerous clipping." Id. at 80. We held that "[c]onclusory assertions in affidavits are generally insufficient to resolve factual disputes that would otherwise preclude summary judgment" and noted that "the record does not establish as a matter of law that [alternative means for inmates to receive newspaper articles] are effective." Id. As a result, we held that "[g]iving the full measure of deference to the judgment of prison authorities, the validity of the [regulation] is not established as a matter of law on this record," id. at 81 (internal citation omitted), and reversed the district court's summary judgment against the plaintiff, see id.

[27] As in Allen, summary judgment was improper in this case. The district court did not acknowledge the applicability of Turner, much less address each Turner factor. Moreover, Nicholas has asserted credible arguments as to why his proposed Center survives a Turner analysis. Nicholas has questioned the validity of the prison's asserted interest in preventing duplication of services because appellees have never identified the inmate group providing the same service. He has also challenged Duncan's stated security concerns as unrelated to the denial of his application. The district court should have considered these arguments, as well as the question of whether some of the proposed Center's functions but not others would survive Turner analysis. In sum, the evidentiary record contains several genuine issues of fact, and we remand the case to the district court for further proceedings.

[28] Although defendants-appellees did not address the question of qualified immunity in their summary judgment motion, and so the issue was not reached by the district court, they raised the defense in their answer to the amended complaint and briefed the issue on this appeal. Defendants are indeed entitled to qualified immunity, because the First Amendment right of association to form an inmate legal services organization was not clearly established at the time permission to form the Center was denied.

[29] Three questions must be answered in determining whether a right was clearly established at the time defendants acted such that defendants would not be entitled to the defense of qualified immunity: "whether the right was defined with reasonable specificity; whether decisional law of the Supreme Court and the applicable circuit court supports its existence; and whether, under pre-existing law, a defendant official would have reasonably understood that his actions were unlawful." Rodriguez v. Phillips, 66 F.3d 470, 476 (2d Cir. 1995). In evaluating a qualified immunity defense, "the inquiry is not whether plaintiff has alleged a violation of an abstract legal standard, but whether under the particular circumstances alleged, defendants could have reasonably believed that they did not violate plaintiff's constitutional rights." Gittens v. LeFevre, 891 F.2d 38, 42 (2d Cir. 1989).

[30] In June and July of 1995, when appellees allegedly violated Nicholas's constitutional rights, it was clearly established under Supreme Court and Second Circuit precedent that a prison inmate retains First Amendment speech rights that are "not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Giano v. Senkowski, 54 F.3d 1050, 1053 (2d Cir. 1995); accord Allen, 64 F.3d at 79. However, no Supreme Court or Second Circuit case had applied that principle to the formation of an inmate legal services organization to hold that the denial of permission to form such an organization violated the First Amendment.

[31] Without Second Circuit or Supreme Court authority defining with reasonable specificity Nicholas's right to form an inmate legal services organization, appellees are entitled to qualified immunity. However, since qualified immunity only shields appellees from monetary damages, Nicholas's claims for equitable relief may proceed. See, e.g., Rodriguez v. City of New York, 72 F.3d 1051, 1065-66 (2d Cir. 1995).

[32] To the extent that Nicholas asserts a right to provide legal assistance to other inmates, we note that such claims are usually analyzed under the constitutional rubric of the right of access to the courts. See generally Lewis v. Casey, 518 U.S. 343 (1996); Wolff v. McDonnell, 418 U.S. 539 (1974); Johnson v. Avery, 393 U.S. 483 (1969). The considerable body of caselaw that has provided definition to that right is not directly implicated in this case, as we earlier dismissed Nicholas's right of access claim as frivolous. We express no view as to the extent, if any, that a First Amendment associational right could protect the right to associate for the purpose of discussing law-related issues short of practicing law, which in New York, of course, is prohibited without admission to the bar. See N.Y. Jud. Law § 478. Nor do we, at this early stage, intimate whether the reasons advanced by the state in justification for the prohibition of such associational activity will or will not turn out to be well-founded.


[34] For the reasons set forth above, the judgment of the district court is vacated and the case is remanded for further proceedings. The district court is also instructed to rule upon Nicholas's motions for injunctive relief and appointment of counsel.


Opinion Footnotes


[35] 1 The Honorable Edward R. Korman, of the United States District Court for the Eastern District of New York, sitting by designation.