Warner v. Chambers-Smith et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
Danny Lee Warner, Jr.,
Plaintiff,
V.
Annette Chambers-Smith, et al.,
Defendants.
Case No. 2:24-cv-1565
Judge Michael H. Watson
Magistrate Judge Jolson
OPINION AND ORDER
Plaintiff renewed his motion for a temporary restraining order ("TRO") or
preliminary injunction ("Pl") ("TRO Motion"). Mot., ECF No. 71. Defendants
opposed, Resp., ECF No. 78, and Plaintiff did not reply. 1 The Magistrate Judge
recommended that the Court deny the TRO Motion. R&R, ECF No. 105. Plaintiff
objects. Obj., ECF No. 120.
I. STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 72(b)(3), the Court will
"determine de novo any part of the magistrate judge's disposition that has been
properly objected to" and "may accept, reject, or modify the recommended
1 In his objections, Plaintiff states that he mailed a reply brief on May 30, 2025. Obj. 1,
ECF No. 120. The Court never received the same, and no reply brief appears on the
docket. In an abundance of caution, however, the Court has considered the
"Declaration of facts related to legal mail" that is purportedly dated May 30, 2025, ECF
No. 120-1, as if it were a timely filed reply brief.
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disposition; receive further evidence; or return the matter to the magistrate judge
with instructions. " Fed. R. Civ. P. 72(b)(3).
II. ANALYSIS
A. Plaintiff's Motions
Plaintiff's TRO Motion asks for an order "enjoining the unconstitutional
policy of Defendants that requires a 'control number' on mail received from a
court, attorney, or other legal entity before it can be treated as legal mail. " Mot. 1,
ECF No. 71. Plaintiff asks the Court to consolidate any hearing on his TRO
Motion with a trial on the merits of the case. Id. In support of his request for
preliminary injunctive relief, Plaintiff stands on the arguments raised in his original
motion, ECF No. 37. Id.
In that original motion, Plaintiff acknowledges that this Court ordered
Defendants to treat mail from this Court as legal mail ("Legal Mail Order"), but he
contends that he continues to suffer violations of his rights vis-a-vis Defendants'
treatment of mail from other courts and from attorneys. Additionally, he disputes
that the Legal Mail Order protects him from further violations even as to mail from
this Court because, he argues, Trumbull Correctional Institution ("TCI") continues
to violate that Legal Mail Order. Id. at 3. Moreover, he continues, all mail that is
not legal mail is sent to a central processing center, and inmates then must pay
to print it from their tablets. Id. at 3-4. Thus, if his legal mail is improperly sent to
the processing center, he will incur unnecessary economic cost to print the same.
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Id. As such, he contends, he is in imminent danger of irreparable injury without
some form of preliminary injunctive relief.
B. Standard for Preliminary Injunctive Relief
Plaintiff seeks a TRO or a Pl. Both are extraordinary remedies, and courts
should grant them only if the moving party proves "that the circumstances clearly
demand it. " Overstreet v. Lexington-Fayette Urb. Cnty. Gov't, 305 F. 3d 566, 573
(6th Cir. 2002) (citation omitted); Hacker v. Fed. Bureau of Prisons, 450 F. Supp.
2d 705, 710 (E. D. Mich. 2006) (citation omitted); see a/so NetChoice, LLCv.
Yost, 711 F. Supp. 3d 844, 852 (S. D. Ohio 2024). Courts evaluate four factors
when determining whether the circumstances "clearly" demand a TRO2 or Pl:
(1) whether the movant has a strong likelihood of success on the
merits; (2) whether the movant would suffer irreparable injury
without the injunction; (3) whether issuance of the injunction would
cause substantial harm to others; and (4) whether the public
interest would be served by issuance of the injunction.
City ofPontiac Retired Emps. Ass'n v. Schimmel, 751 F. 3d 427, 430 (6th Cir.
2014) (per curiam) (en bane) (internal quotation marks and citation omitted).
These four factors are not prerequisites that must be met but rather are
considerations that must be balanced. Fhsch's Rest, Inc. v. Shoney's Inc., 759
2 The TRO and Pl standards are not, however, identical. A TRO lasts for only fourteen
days (with the possibility of a fourteen-day extension). Fed. R. Civ. P. 65. Therefore,
relative to the Pl standard, the TRO standard affords greater weight to "irreparable
injury. " See NetChoice, 711 F. Supp. 3d at 852 (describing immediate, irreparable harm
as "paramount" to the TRO inquiry); Doe v. Univ. of Cincinnati, No. 1:15-cv-600, 2015
WL 5729328, at *1 (S. D. Ohio Sept. 30, 2015) ("The standard for issuing a temporary
restraining order is logically the same as for a preliminary injunction with emphasis,
however, on irreparable harm . . . . " (internal quotation marks and citation omitted)).
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F. 2d 1261, 1270 (6th Cir. 1985) (citation omitted). Thus, a court may grant
preliminary injunctive relief even if a movant does not meet his burden of
establishing a likelihood of success on the merits, but the movant must show at
least "serious questions going to the merits and irreparable harm which decidedly
outweighs any potential harm to the defendant if an injunction is issued. " Id.
(internal quotation marks and citation omitted). In other words, "[w]here the
burden of the injunction would weigh as heavily on the defendant as on the
plaintiff, the plaintiff must make a showing of at least a strong probability of
success on the merits before a trial court would be justified in issuing the order."
Id. (citation modified).
C. Application of Standard to Motions
1. Likelihood of Success on the Merits
Where, as here, a party bases his request for preliminary injunctive relief
on an alleged violation of a constitutional right, the "likelihood of success on the
merits often will be the determinative factor. " Schimmel, 751 F. 3d at 430 (internal
quotation marks and citation omitted).
As a preliminary matter, Plaintiff faults the Magistrate Judge for limiting her
R&R analysis to Plaintiff's FirstAmendment claim. Obj. 1, ECF No. 120. But
Plaintiff's legal mail claims are likely subject to the same standard-the test set
forth in Turner v. Safley, 482 U. S. 78, 89 (1987)-regardless of whether they are
brought under the First, Fourth, Sixth, or Fourteenth Amendments. See, e. g.,
Sa///'er v. Brooks, 343 F. 3d 868, 873-84 (6th Cir. 2003); Erdman v. Mich. Dept. of
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Corr., No. 94-2109, 1995 WL 150341, at *1 (6th Cir. Apr. 5, 1995); Muhammad v.
Pitcher, 35 F. 3d 1081, 1084-85 (6th Cir. 1994); Bout v. Abramajtys, No. 93-1383,
1994 WL 329219, at *3 (6th Cir. July 7, 1994); Lavado v. Keohane, 992 F. 2d 601,
607-08 (6th Cir. 1993); Knop v. Johnson, 977 F. 2d 996, 1012 (6th Cir. 1992).
Moreover, the Magistrate Judge's conclusion that Plaintiff failed to show a
likelihood of future irreparable harm was not claim-specific. Thus, she did not err,
and this Court likewise focuses on Plaintiff's likelihood of success under Saltier
and other legal mail cases (which, as described below, implicate the Turner {est).
Plaintiff hinges his claims on one of the Sixth Circuit's seminal legal mail
cases-Saltier v. Brooks. In that case, the Circuit recognized that "[a] prisoner's
right to receive mail is protected by the First Amendment, but prison officials may
impose restrictions that are reasonably related to security or other legitimate
penological objectives. " Sa///er, 343 F. 3d at 873 (citation omitted) (describing the
Ti/mertest). The Circuit distinguished between "legal mail" and other mail, noting
that the former is subject to a heightened concern "because a prison's security
needs do not automatically trump a prisoner's First Amendment right to receive
mail, especially correspondence that impacts upon or has import for the
prisoner's legal rights, the attorney-client privilege, or the right of access to the
courts. " Id. at 874 (citations omitted). Legal mail "can be opened (but not read)
and inspected for contraband!, ]" but that must be done in the inmate's presence,
if he has so requested. Id.
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Saltier is important to Plaintiff's pending motion in several respects. First, it
recognized that "[n]ot all mail that a prisoner receives from a legal source will
implicate constitutionally protected legal mail rights. " Id. at 874. Rather, Sallier
plainly limits protected "legal mail" to mail that "protect[s] a prisoner's access to
the courts and other governmental entities to redress grievances or... protect[s]
an inmate's relationship with an attorney. " Sallier, 343 F. 3d at 874; id. at 875
("Given that the ABA is not a direct-services legal organization and generally
does not provide legal advice and that the envelope contained no marking to
alert a prison employee that it was to be opened only in the presence of the
prisoner, receipt of this correspondence did not implicate constitutionally
protected legal mail rights. " (citations omitted)); id. at 876 ("[M]ail from a county
clerk or register of deeds does not implicate constitutionally protected legal mail
rights. ").
Accordingly, under Sallier, mail from "legal entities" is not necessarily
constitutionally protected legal mail. Thus, Plaintiff is not likely to succeed on his
argument that all mail from any "legal entity" must be treated as "legal mail. " See
Mot. 1, ECF No. 37; Mot. 1, ECF No. 71. To the contrary, so far as the control
number policy applies to mail bearing a return address from "legal entities" that
does not indicate a specific attorney is attempting to correspond with Plaintiff and
is not otherwise marked as "confidential, " the policy is likely constitutional under
Sallier.
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On the other hand, any "mail from a court constitutes 'legal mail' and
cannot be opened outside the presence of a prisoner who has specifically
requested otherwise[, ]" without violating the inmate's FirstAmendment rights.
Saltier, 343 F. 3d at 877. Moreover, mail from attorneys is "the very essence of
'legal mail[, ]'" and an inmate "may not be required to designate ahead of time the
name of the attorney who will be sending the prisoner confidential legal mail. " Id.
at 877 (citations omitted). Accordingly, to the extent that the control number
policy causes Defendants to open mail from a court or attorneys without treating
it as legal mail, Plaintiff is likely to show an impingement on his FirstAmendment
rights.
But that does not mean that Plaintiff is likely to succeed on his claims.
That is, Plaintiff must do more than simply show that the control number policy
impinges on his First Amendment (or other) rights because even a prison
regulation that impinges on inmates' constitutional rights is valid "if it is
reasonably related to legitimate penological interests. " Turner, 482 U. S. at 89.
Thus, proof of the impingement merely begs the question of whether the control
number policy is a constitutional impingement under the Tt/rnertest.
Saltier says nothing about whether (or to what extent) a prison can enact
policies aimed at helping it distinguish between legitimate legal mail (which is
then to be provided all the requisite constitutional protections) and regular mail
(which is not). But in a later case, the Sixth Circuit implied that prisons may take
at least some steps to verify legal mail before being required to treat it as such.
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See generally Merriweather v. Zamora, 569 F. 3d 307 (6th Cir. 2009) (implying
that legal mail must be "properly" labelled to warrant constitutional protection).
It thus seems clear that prisons may enact policies to help them distinguish
between protected legal mail and illegitimate imposter mail before mail is
opened, even if those policies impinge prisoners' constitutional rights.
In this case, though Plaintiff cites cases standing for the general
proposition that opening legal mail outside his presence (or reading the same)
after he requests otherwise amounts to an impingement of his rights, he cites
nothing showing that the impingement is unconstitutional under the Turner test.
On the other hand, Turner makes clear that prisons do not have unbridled
discretion to trample inmates' constitutional rights. The issue at the heart of this
case, then, is whether the control number policy is a permissible impingement of
Plaintiff's rights under Turner or whether the prison has gone too far. As that
issue is far from obvious, Plaintiff has not established a strong likelihood of
succeeding on the merits of his legal mail claims. See generally Fontroy v.
Beard, 559 F. 3d 173 (3rd Cir. 2009) (concluding that a control number policy did
not violate the First Amendment); see a/so Quinn v. Rodriguez, No. 3:22-cv-661,
2025 WL 623762, at *7-9 (N. D. Ohio Feb. 26, 2025) (upholding the
constitutionality of Ohio's control number policy on summary judgment); Shine-
Johnson v. Chambers-Smith, No. 2:22-cv-3236, 2024 WL 1714482, at *3 (S. D.
OhioApr. 22, 2024) ("[W]hether the definition of 'legal mail' in the revised ODRC
policy is constitutional is far from 'well-settled. '" (citation omitted)), R&R adopted,
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2024 WL 4799910 (S. D. Ohio Nov. 15, 2024); Whitman v. Gray, No. 5:19-cv-
1818, 2022 WL621553, at *2 (N. D. Ohio Mar. 3, 2022) ("The new ODRC policy
satisfies constitutional requirements. "); cf. Wolffv. McDonnell, 418 U. S. 539,
576-77 (1974) ("It would also certainly be permissible that prison authorities
require that a lawyer desiring to correspond with a prisoner, first identify himself
and his client to the prison officials, to assure that the letters marked privileged
are actually from members of the bar. "); Guajardo-Palma v. Martinson, 622 F. 3d
801, 804 (7th Cir. 2010) ("Prison officials cannot be certain, just from the return
address on an envelope, that a letter is from a lawyer... rather than from a
criminal confederate of the prisoner masquerading as a lawyer.... " (citations
omitted)); Jankins v. Huntley, 235 F. App'x 374, 376 (7th Cir. 2007) ("There may
be some disagreement among the circuits concerning the scope of the definition
of legal mail... but there is no dispute concerning the constitutionality of
regulations requiring that prison mail from attorneys be labeled in order to receive
special treatment. " (cleaned up)); but see, e. g., King v. Aramark Corn Serv., No.
2:23-cv-156, 2024 WL 3461784, at *2 (S. D. Ohio Mar. 22, 2024) ("The ODRC's
new control number requirement does not square with the Sixth Circuit's
pronouncement in Saltier. ").
Plaintiff counters that "[t]his Court's" reasoning has been circular, Obj. 15,
ECF No. 37, but he does not persuade. Plaintiff argues that Defendants have no
right to re-define what constitutes "legal mail. " Id. The Court agrees, but the
problem is this: Just as Defendants cannot attempt to change the character of a
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piece of mail based on whether it contains a control number, neither can Plaintiff
establish that all mail bearing the stamp "legal mail" (or the return address of a
law firm, etc. ) is, indeed, legal mail. The entire point of this case is that things are
not always what they seem: mail without a control number can be legal mail, and
mail with the return address of an attorney may be regular mail in disguise. And,
impingement on Plaintiff's rights is not necessarily impermissible. So, though
Plaintiff, the Court, and Defendants appear to agree that Defendants must afford
"properly labelled legal mail" the protections it deserves under binding case law,
the issue is whether Defendants have any leeway, under the Constitution, to
impose restrictions on bona fide legal mail before treating it as such. If they do
have some leeway, the question is whether the control number policy is within or
outside the bounds of that leeway. There is nothing circular in the Court's
identification of this issue.
For these reasons, though Plaintiff might ultimately succeed, he has not
shown a likelihood of success on the merits (let alone a strong likelihood) to
warrant preliminary injunctive relief. The issue is complex, and resolution in
either party's favor is far from certain.
2. Likelihood of Irreparable Injury
Plaintiff contends that any First Amendment infringement constitutes
irreparable injury. Obj. 13-14, ECF No. 37. He argues that Defendants' control
number policy has already injured his First Amendment rights and that the policy
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will continue to do so absent preliminary injunctive relief. E. g., Obj. 4, 17, ECF
No. 37 at PAGEID ## 653-72.
Defendants respond that Plaintiff filed his motion in January 2025 but that
ODRC issued a variance to its control number policy in April 2025. Resp. 2-3,
ECF No. 78. They argue that the variance directs prison employees to treat any
mail bearing a valid return address from a federal court as legal mail. Id. They
thus argue that Plaintiff's concerns have been addressed and are moot.
Moreover, Defendants contend that the mail that was purportedly opened outside
Plaintiff's presence was not related to a direct criminal appeal, a habeas corpus
petition, or a civil rights claim, such that Plaintiff suffered no "injury" for purposes
of his First Amendment claim. 3 Id. at 5-6.
The Magistrate Judge did not analyze Plaintiff's likelihood of success on
the merits and recommended denying Plaintiff's motion solely based on his
inability to demonstrate a likelihood of irreparable injury. R&R 5-9, ECF No. 105.
First, she concluded that ODRC's newest policy is to not send legal mail to the
central processing center, undercutting any claim Plaintiff made of delay
stemming from that new procedure. Id. at 5-6 ("Plaintiff does not explain how
mail bearing return addresses from courts, attorneys, or legal organizations could
be mistaken as mail from loved ones. Plus, in the nearly seven months since the
3 Defendants frame this as an argument against both finding any success on the merits
and against finding a risk of irreparable harm. Id. at 5. Because the Court concludes
that Plaintiff's motion fails without consideration of this argument, it declines to consider
the same.
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center opened, Plaintiff has not alleged that even one piece of mail from courts,
attorneys, or other legal entities was sent to the center. " (citations omitted)).
Second, she concluded that: (A) Plaintiff is unlikely to suffer further access-to-
the-court issues because his state-court cases have terminated, (B) Plaintiff
failed to allege that any attorneys have attempted (or will attempt) to correspond
with him, and (C) ODRC's variance and this Court's Legal Mail Order suggest
that Defendants will treat any mail purporting to come from a federal court as
legal mail. Id. at 6-8. Ultimately, then, she concluded that Plaintiff will not suffer
irreparable harm in the absence of preliminary injunctive relief. Id.
On de novo review, the Court concludes that Plaintiff has not shown a
likelihood of irreparable injury absent preliminary injunctive relief given: (1) all the
instances of alleged violations occurred before the April 2025 variance;
(2) Plaintiff has not disputed the Magistrate Judge's conclusion that his state-
court cases are terminated such that he is unlikely to receive future mail from
state courts; and (3) the Court has upheld the denial of Plaintiff's motion for
contempt based on the Magistrate Judge's finding that Plaintiff has not proven a
violation of this Court's Legal Mail Order to treat mail from this Court as legal
mail. See Decl., ECF No. 120-1 (identifying prior violations from 2022-2024);
Op. and Order, ECF No. 138. 4 In short, regardless of how many pnb/-alleged
4 Part of the Court's denial of Plaintiff's motion was based on a conclusion that
Defendants did not violate the Court's Legal Mail Order (which applies only to mail in
this case) with respect to an April 15, 2025 Order because that Order was associated
with Plaintiff's other case in the United States District Court for the Southern District of
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violations Plaintiff cites, injunctive relief is available only to prevent a likelihood of
future harm, and the current posture of the case does not show Plaintiff is likely
to suffer future violations.
The Court is, however, concerned about Plaintiff's new allegation-raised
for the first time in his objections to the Magistrate Judge's R&R-that
Defendants have "started to let Mr. Warner's legal mail accumulate for upwards
of two weeks at a time so that they only have to call him down to open it in his
presence at once[. ]" Obj 1, ECF No. 120. The unredacted portions of the mail
logs that the Court previously considered, ECF Nos. 74-2, 85-1 , do not support
that contention. But, if true, this would certainly violate the spirit of the Court's
Order, ECF No. 20, and could warrant preliminary injunctive relief. Plaintiff is not
permitted to raise new arguments for the first time in a reply brief, however. So,
should the problem persist, Plaintiff's recourse is to move anew for sanctions or
injunctive relief.
3. Substantial Harm to Others
Plaintiff stresses that the harm to him and other inmates caused by
continued implementation of the control number policy (delay in receiving mail,
cost in printing said mail from their tablets, loss of privacy, etc. ) vastly outweighs
Ohio. Op. and Order 4, ECF No. 138. The Court notes, however, that Defendants may
have violated their own April 2025 variance with respect to that piece of mail: under the
April 14, 2025, variance, it should have been treated as legal mail regardless of which
case it corresponded to. If Plaintiff establishes that Defendants violated the April 2025
variance, the Court will not hesitate to impose sanctions or grant preliminary injunctive
relief.
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any harm that comes to Defendants from treating legal mail that lacks a control
number as legal mail. Obj. 14, ECF No. 37. He focuses on the amount of time it
would take prison staff to open legal mail in inmates' presence and compares it to
the amount of time staff spends opening regular mail, inspecting it for
contraband, and scanning it to inmates' tablets/forwarding it to inmates at the
various institutions. Id. at 14-15.
The Court disagrees that there is no harm to Defendants or others in
granting preliminary injunctive relief. Even if it would be faster for Defendants to
open all purported legal mail in inmates' presence than to process the same as
regular mail (something the Court does not find based solely on Plaintiff's
unsupported assertion), there are other potential harms at issue. The most
obvious possible harm is the ability to smuggle contraband through regular mail
"masquerading" as legal mail. Although the Court cannot ignore that glaringly
obvious possible harm, Defendants did not brief this prong of the analysis, so the
Court ultimately finds it weighs in neither party's favor but that Plaintiff did not
prove that any irreparable harm to him "decidedly outweighs any potential harm
to the defendant if an injunction is issued. " Frisch's, 759 F. 2d at 1270 (internal
quotation marks and citation omitted).
4. Protection of the public interest
The public has an interest in protecting the freedom of speech, and "it is
always in the public interest to prevent the violation of a party's constitutional
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rights. " G&V Lounge, Inc. v. Mich. Liquor Control Comm'n, 23 F. 3d 1071, 1079
(6th Cir. 1994) (internal quotation marks and citation omitted).
On the other hand, the public and those who work or reside in prisons
have a strong interest in maintaining prison security. E. g., Smith v. Jones, No.
1:08-cv-661, 2009 WL 1309301, at *2 (W. D. Mich. May 11, 2009) ("The public
interest would not be served by issuing a preliminary injunction which threatens
the safety and security of prison guards and other prisoners. ").
Thus, the Court likewise finds this factor to be neutral.
III. CONCLUSION
Each factor of the TRO/PI analysis either weighs against Plaintiff or is
neutral. Weighing the same, the Court finds that preliminary injunctive relief is
not warranted. Thus, the Court OVERRULES Plaintiff's objections, ECF No. 120,
and ADOPTS the R&R, ECF No. 105. Plaintiff's motion for preliminary injunctive
relief, ECF No. 37, and his renewed motion for the same, ECF No. 71, are
DENIED. The Clerk shall TERMINATE ECF Nos. 71, 105, and 135.
IT IS SO ORDERED.
HA L H. WATSON, JUDGE
UNITED STATES DISTRICT COURT
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