Ohio Justice and Policy Center v. Chambers-Smith et al

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
OHIO 	JUSTICE 	AND 	POLICY
CENTER,
Plaintiff,
v.
ANNETTE CHAMBERS-SMITH, et
al.,
Defendants.
Case No. 1:25-cv-291
JUDGE DOUGLAS R. COLE
OPINION AND ORDER
Plaintiff, the Ohio Justice and Policy Center (OJPC), moves the Court for a
preliminary 	injunction 	barring 	Defendants, 	a 	handful 	of 	Ohio 	Department 	of
Rehabilitation and Corrections (ODRC) officials, from implementing and enforcing a
new legal mail policy for inmates. (Doc. 19). For the reasons discussed below, the
Court DENIES the motion.
BACKGROUND
This is a case about legal mail in Ohio state prisons. According to the Second
Amended Complaint (Doc. 37), the ODRC, which manages Ohio’s prisons, adopted a
new policy—the Legal Mail Copying Policy (the Policy)—on December 2, 2024. (Id. at
#979). The Policy replaced certain provisions of the preexisting legal-mail policy. 1 (See
id. at #984–87). Under the earlier policy, inmates’ legal mail was regulated through
1 ODRC has expanded the Policy since the start of this case. While the Policy first only applied
to a few institutions, (Doc. 37, #979), as of September 23, 2025, it applies to all facilities. (Id.
at #980).
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a system of “control numbers,” which registered attorneys and courts can generate
using a secure website and then affix to envelopes containing legal communications.
(Id. at #984). The presence of a valid control number on an envelope serves to
authenticate the mail as bona fide, addressing the concern that malefactors otherwise
could use the guise of confidential attorney-client communications to smuggle
contraband into the prison. (Id. at #985).
More recently, though, “a synthetic drug commonly referred to as ‘toon’ has
been introduced into ODRC facilities by being sprayed on paper or soaked into paper.”
(Id.). Specifically, letters written on toon-soaked paper are sent to prisoners as a way
to smuggle the drug into the facility. (Id.). This led the ODRC to adopt the Policy,
which added an extra step to the legal mail intake process. (See id. at #992; Doc. 37-
1 (Policy)). Instead of simply validating the control number and briefly examining the
envelope’s contents for contraband in the addressee’s presence, officials now also
handle 	each 	page of the 	mail for 	“extended 	period[s] 	of 	time.” 	(Id. at #987).
Specifically, they photocopy each page individually and then provide the photocopied
version to the inmate. (Id. at #986–88). That way, the prisoner never receives the
actual paper from the sender, thereby preventing use of that paper as a means to
smuggle drugs into the facility. (Id.).
The OJPC takes issue with the extended, page-by-page handling of legal mail
by prison staff that the new Policy entails. “Practically speaking,” they allege, “it is
highly likely that an individual’s legal mail will be read by officers during the process
of copying the mail because copying the document will naturally require the staff
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member to lay eyes on the document.” (Id. at #989; see Shellenberger Decl., Doc. 37-
2, #1005–07). That in turn intrudes on the secrecy of privileged attorney-client
communications, allegedly violating “the [First Amendment] rights of [the OJPC’s]
attorneys and clients to have confidential attorney-client communications via the
mail.” (Doc. 19, #497; Doc. 37, #994 (stating claim under § 1983 for alleged First
Amendment violations)). So the OJPC seeks a preliminary injunction prohibiting the
implementation of the policy. (Doc. 19). 2 Defendants responded, (Doc. 25), and
Plaintiff OJPC replied, (Doc. 29). Additionally, the Cleveland Metropolitan Bar
Association (CMBA) filed an amicus curiae brief in support of OJPC’s position that
the Policy violates confidentiality, but with respect to CMBA’s Certified Grievance
Committees. (See generally Doc. 36). The Defendants have since responded to that
brief as well. (Doc. 38). The matter is now ripe.
LEGAL STANDARD
A party requesting the “extraordinary and drastic remed[y]” of a preliminary
injunction “bears the burden of justifying such relief.” ACLU Fund of Mich. v.
2 The OJPC filed its original Complaint (Doc. 1) and Motion for Preliminary Injunction (Doc.
2) when an earlier version of the Policy was in effect. (See generally Doc. 1). That version
expired on May 31, 2025, and was superseded by a second iteration, which expanded the
policy’s scope to more ODRC facilities. (Doc. 37, #979). So the OJPC amended its pleading
and its motion to implead additional Defendants (the wardens of the facilities swept into the
updated Policy’s scope). ODRC amended the Policy for a third time, expanding it to all ODRC
institutions. (Doc. 37, #980). The Plaintiff filed a Second Amended Complaint (Doc. 37)
encompassing the additional institutions and adding their wardens as Defendants, but did
not file a Second Amended Motion for Preliminary Injunction. Because the changes to the
policy—adding institutions—does not affect the underlying substance of the Policy, the Court
will construe the Amended Motion (Doc. 19) as applying to all ODRC institutions. The Court
will likewise construe the Defendant’s Response to the Amended Motion (Doc. 25), and the
Plaintiff’s Reply (Doc. 29), as applying to all ODRC institutions.
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Livingston Cnty., 796 F.3d 636, 642 (6th Cir. 2015) (first quoting Platt v. Bd. of
Comm’rs on Grievances & Discipline of Ohio Sup. Ct., 769 F.3d 447, 453 (6th Cir.
2014); and then quoting McNeilly v. Land, 684 F.3d 611, 615 (6th Cir. 2012)); Cretor
Constr. Equip. LLC v. Gibson, 738 F. Supp. 3d 950, 959 (S.D. Ohio 2024). The Court
assesses such requests “in light of four well-known factors: (1) the movant’s likelihood
of success on the merits; (2) whether the movant will suffer irreparable injury without
a preliminary injunction; (3) whether the issuance of a preliminary injunction would
cause substantial harm to others; and (4) whether the public interest would be served
by issuance of a preliminary injunction.” Cretor, 738 F. Supp. 3d at 959 (cleaned up).
But those factors aren’t created equally. See id. at 960. In First Amendment cases
specifically, “the crucial inquiry is usually whether the plaintiff has demonstrated a
likelihood of success on the merits.” ACLU Fund of Mich., 796 F.3d at 642 (quoting
Bays v. City of Fairborn, 668 F.3d 814, 819 (6th Cir. 2012)). So the first prong is where
the Court will focus its efforts.
Before reaching the merits of a plaintiff’s request for a preliminary injunction,
though, the Court is first obliged to confirm its own subject-matter jurisdiction. See
Crawford v. Law Offs. of Brett Borland, No. 1:23-cv-191, 2024 WL 187825, at *3 (S.D.
Ohio Jan. 12, 2024). A plaintiff’s standing to sue is an “irreducible” requirement for
such jurisdiction to attach. Ohio v. Yellen, 539 F. Supp. 3d 802, 810 (S.D. Ohio 2021).
A plaintiff bears the burden of establishing such standing by showing (1) an “injury
in fact” that is (a) concrete and particularized, and (b) actual or imminent; that is
(2) traceable to Defendants’ allegedly unlawful conduct; and that (3) the requested
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relief would redress. See id. (quoting Lyshe v. Levy, 854 F.3d 855, 857 (6th Cir. 2017)).
As to the first element, one of the standing requirement’s core aspects is that “a party
must assert his own legal rights and interests, and cannot rest his claim to relief on
the legal rights or interests of third parties.” Suciu v. Washington, No. 12-12316, 2012
WL 4839924, at *3 (E.D. Mich. Oct. 11, 2012) (internal quotation marks omitted)
(emphasis added).
LAW AND ANALYSIS
The OJPC argues that the Policy violates two groups’ constitutional rights:
(1) its own (and by extension, its attorneys’), and (2) its incarcerated clients’. (Doc. 37,
#994). The ODRC Defendants in turn argue that OJPC failed to allege concrete and
particularized injuries to itself or its attorneys, and thus lacks standing on its own. 3
(Doc. 25, #731–32). And, even if OJPC has standing, the Defendants separately argue
that OJPC fails to demonstrate it will be successful on the merits and otherwise fails
to support the remaining elements for a preliminary injunction. (See generally id.).
As explained further below, the Court agrees that OJPC lacks standing based on the
alleged harms to its incarcerated clients. And although it has standing based on its
own (and its attorneys’) rights, the alleged infringement of those rights doesn’t merit
a preliminary injunction. The Court addresses each topic in turn, starting with the
OJPC’s own standing.
3 Defendants do not offer much argument regarding standing in their Response. (Doc. 25,
#731–32). Instead, they principally rely on their Motion to Dismiss to explain why OJPC
lacks standing. (Doc. 24, #708–13). While the court addresses the standing argument from
that Motion here, the Court does not rule on the other arguments in the Motion to Dismiss
in this Opinion and Order.
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A. 	The OJPC Has Standing to Assert Its Own and Its Attorneys’ Rights to
Communicate, But It Has No Right to Communicate Confidentially.
The OJPC has standing, but its cognizable injury is more limited than it
claims. Specifically, it has a right to communicate with incarcerated persons. But it
does not have a cognizable right to communicate with them confidentially.
To 	support 	standing, 	a 	plaintiff’s 	alleged 	injury 	must 	be 	concrete 	and
particularized, and it must have already occurred or at least be imminent. Spokeo,
Inc. v. Robins, 578 U.S. 330, 339 (2016). “By particularized, we mean that the injury
must affect the plaintiff in a personal and individual way.” Lujan v. Defs. of Wildlife,
504 U.S. 555, 560 n.1 (1992). And plaintiffs “cannot manufacture standing merely by
inflicting harm on themselves based on their fears of hypothetical future harm that
is not certainly impending.” Clapper v. Amnesty Int’l USA, 568 U.S. 398, 416 (2013)
(citations omitted).
Broadly speaking, OJPC alleges injuries based on violations of its “right to
communicate with incarcerated people, the right to freedom of speech and expression,
the right to practice their profession absent unreasonable government regulation,
and the right to due process of law.” (Doc. 37, #994). 4 More specifically, it argues that
“OJPC is forced to continue to communicate with its clients via legal mail, placing
4 While OJPC initially states that the Policy violates its right to due process of law, (Doc. 37,
#994), it later clarifies that it does not raise a procedural or substantive due process violation.
(Doc. 29, #824 n.1). Rather, “[w]hen state officials violate someone’s First Amendment rights,
they naturally violate the due process clause of the Fourteenth Amendment, because the
Clause incorporates the protections of the First Amendment against the states.” (Id.). So the
Court will treat this alleged injury as coextensive with the first injury—an infringement on
the First Amendment right to communicate with incarcerated people. See Kiser v. Kamdar,
831 F.3d 784, 791 (6th Cir. 2016).
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their clients’ confidential information in jeopardy, breaking the attorney-client
privilege, and placing their attorneys at risk of discipline,” under Ohio’s Rules of
Professional Misconduct 1.18 and 1.6. (Id. at #979, 991).
Start with the basic right to communicate with an incarcerated person. While
OJPC offers plenty of legal support regarding an incarcerated person’s rights to
receive legal mail, it cites only one case, Thornburgh v. Abbott, 490 U.S. 401 (1989),
regarding the contours of an outsider’s right to communicate with inmates. (See Doc.
19, #504, 507). As a starting premise, “prison walls do not form a barrier separating
prison inmates from the protections of the Constitution, nor do they bar free citizens
from exercising their own constitutional rights by reaching out to those on the inside.”
Thornburgh, 490 U.S. at 407 (citations omitted) (cleaned up). So the court in
Thornburgh held that there was “no question” that people outside of prison have a
First Amendment right to communicate with those in prison. Id. at 408; see also Jones
v. Caruso, 569 F.3d 258, 267 (6th Cir. 2009) (citation omitted) (“The Court has
recognized that receiving mail from an outside source, an interest in communication
shared by prisoners and their correspondents, is such a First Amendment right.”).
True, 	as 	discussed 	below, 	prisoner 	administrators’ 	regulations 	of 	those
communications receive deferential review in court. But there is nonetheless a
legitimate First Amendment interest at least potentially at stake. And “[t]he loss of
First Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976) (citing N.Y.
Times Co. v. United States, 403 U.S. 713 (1971)).
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Seeking to take advantage of that principle, the OJPC alleges that ODRC’s
Policy interferes with its ability to communicate with its clients. Its core allegation is
that the Policy is an “egregious breach of [its] right[] to communicate in a confidential
manner with [its] incarcerated clients and incarcerated potential clients, and to
vindicate the rights of its incarcerated clients to communicate confidentially with
attorneys.” (Doc. 37, #975 (emphasis added)). Consistent with Thornburgh, if OJPC
is asserting an injury based on interference with its right to communicate at all, it
would have adequately alleged an injury that supports standing.
But OJPC’s challenge appears narrower; it claims that the Policy interferes
with its right to communicate with its incarcerated clients confidentially. (Id.). The
problem with that, though, is that, while OJPC has a right to communicate with
incarcerated persons, that does not include the right to do so confidentially. And thus
the Court concludes that OJPC does not have an injury resulting from (and thus any
standing to raise) the alleged interference with confidentiality.
OJPC urges a different result, relying heavily on the Sixth Circuit’s opinion in
ACLU Fund of Michigan to support its assertion that an attorney has a right to
confidential communications with their incarcerated clients. (See, e.g., Doc. 19, #506).
But that case recognizes no such right. While the court there recognized that “both
attorneys and inmates have a strong interest” in confidential legal mail, the rest of
the 	opinion 	focuses 	on 	“[a] 	prisoner’s 	interest 	in 	unimpaired, 	confidential
communication with an attorney.” ACLU Fund of Mich., 796 F.3d at 643. So that case
does not help the OJPC show that it has any rights to communicate confidentially
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that the Policy may impact, as would be required for the OJPC to have standing. See
also Dwyer v. Hall, No. 5:21-cv-12024, 2022 WL 16709712, at *6 (E.D. Mich. Apr. 25,
2022) (explaining that, in ACLU Fund of Michigan, “the Sixth Circuit relied only on
caselaw applying to the rights of inmates. It did not cite any cases concerning the
rights of an attorney,” (emphasis in original)), report and recommendation adopted,
2022 WL 5241842 (E.D. Mich. Oct. 6, 2022).
Furthermore, the central issue in ACLU Fund of Michigan was that the prison
did not deliver certain legal mail from the ACLU to potential incarcerated clients
because the prison did not consider the correspondence to be legal mail. 796 F.3d at
640, 642. In other words, the policy at issue there interfered with the ability to receive
an attorney’s mail at all. Here, the OJPC does not argue that the Policy goes that far;
rather, the Policy interferes only with the confidentiality of the mail. So ACLU Fund
of Michigan is inapposite on that front.
Nor can the OJPC point to its status as an attorney to claim a greater right to
communicate. In an analogous context, the Sixth Circuit has held that “a jailhouse
lawyer’s right to assist another prisoner is wholly derivative of that prisoner’s right
of access to the courts.” Thaddeus-X v. Blatter, 175 F.3d 378, 395 (6th Cir. 1999); see
also Goff v. Nix, 113 F.3d 887, 890 (8th Cir. 1997) (citations omitted) (“A jailhouse
lawyer has no independent right to provide legal advice, but may assert the right on
behalf of other inmates who are otherwise unable to obtain access to the courts.”).
True, the present case does not involve jailhouse lawyers, but the holding still applies.
Implications for the attorney’s “right to assist,” and thus any standing based on that
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right, arise only when the prisoner lacks access to the courts. Thaddeus-X, 175 F.3d
at 395. But OJPC does not allege such a hindrance. See infra Law & Analysis, Part
B. So the OJPC, as an attorney, cannot point to any unique right to communicate
with an incarcerated person as the basis for its standing here; rather it has the same
general right to communicate as the publisher in Thornburgh, described above.
OJPC argues two other points to complicate this confidentiality analysis:
(1) attorney-client privilege, and (2) the Ohio Rules of Professional Conduct. But
neither 	helps 	its 	argument. 	As 	for 	attorney-client 	privilege, OJPC 	claims 	the
attorney-client privilege grants its own right to confidentiality, and that sending legal
mail under this Policy could be viewed as waiving that privilege. (Doc. 28, #770) But,
as OJPC itself admits, the “attorney-client privilege belongs to the client.” (Id. (citing
LifeBio, Inc. v. Eva Garland Consulting, LLC, 672 F. Supp. 3d 512, 517 (S.D. Ohio
2023)). And as stated in LifeBio, “attorney-client privilege—blatant in its name—is a
privilege, not a right.” 672 F. Supp. 3d at 517–18. So the Policy cannot be violating a
right to confidentiality—at least not a right that belongs to OJPC—based on this
privilege.
Finally, OJPC argues that sending legal mail under this Policy would cause its
attorneys an injury by forcing them to violate their ethical obligations relating to
confidentiality under the Ohio Rules of Professional Conduct 1.18 and 1.6. (Doc. 37,
#979). Specifically, it alleges that fears of violating the professional rules will chill its
speech. (Doc. 28, #764). Even assuming that a violation of these rules would
constitute an injury for standing purposes, OJPC has not alleged any imminent
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threat of enforcement. “Under the First Amendment, mere allegations of a subjective
chill are not an adequate substitute for a claim of specific present objective harm or
a threat of specific future harm.” Speech First, Inc. v. Schlissel, 939 F.3d 756, 764 (6th
Cir. 2019) (cleaned up). And “[i]n order to have standing, therefore, a litigant alleging
chill must still establish that a concrete harm—i.e., enforcement of a challenged
statute—occurred or is imminent.” Id. (citation omitted). The OJPC has not alleged
any threats of discipline, malpractice lawsuit from a client, or other kind of imminent
enforcement due to sending legal mail under this Policy.
True, in the amicus brief, the CMBA seeks to address that issue by pointing to
past examples of prisoners filing grievances against their attorneys. (See Doc. 36,
#963). But in every one of those examples, the grievance was predicated on the non-
receipt of attorney correspondence. (Id.). But that dovetails more with Thornburgh’s
discussion of a constitutional right to communicate generally, or ACLU Fund of
Michigan’s discussion of non-delivery of attorney mail, than with the claimed injury
here, which is a right to do so confidentially. So this claim of chilled speech is not
sufficient to establish an injury for standing purposes, and it does not help OJPC
establish that it has an independent right to communicate confidentially through the
mail with its incarcerated clients.
In sum, the OJPC has adequately alleged a general right as an outsider to
communicate with those incarcerated. So, it has standing to pursue claims that the
Policy interferes with that right. But to the extent it seeks instead to rely on an
asserted right to communicate confidentially or to assist as an attorney more
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generally, that is not a right that OJPC has, and so it cannot support standing. See
Thaddeus-X, 175 F.3d at 395.
Moving to the second prong, traceability, the OJPC claims that the alleged
harm flows directly from the Policy’s implementation. (Doc. 37, #989–91). And on
redressability, it asserts that the Court can cure the alleged rights-violation by
preventing the ODRC from enforcing the policy. (Id. at #994–95). That suffices to
provide it standing for any injury to its right to communicate generally.
For many of the same reasons, the OJPC has standing to assert its attorneys’
rights. “‘[A]ssociational standing’ … permits an entity to sue over injuries suffered by
its members.” Ass’n of Am. Physicians & Surgeons v. U.S. Food & Drug Admin., 13
F.4th 531, 537 (6th Cir. 2021) (citations omitted). Here, the OJPC’s “members” are
its attorneys. To have associational standing, an organization must show that: (1) its
“members 	would 	otherwise 	have 	standing 	to 	sue 	in 	their 	own 	right”; 	(2) the
“interests” that the suit “seeks to protect are germane to the organization’s purpose”;
and (3) “neither the claim asserted nor the relief requested requires the participation
of individual members in the lawsuit.” Id. (quoting Hunt v. Wash. State Apple Advert.
Comm’n, 432 U.S. 333, 343 (1977)).
The OJPC meets all three requirements here. First, the OJPC describes the
above communication injuries “with regard[] to OJPC and its attorneys,” which
makes sense given that its attorneys are the individuals attempting to communicate
with the incarcerated clients. (See Doc. 37, #994). In other words, its attorneys would
be the specific people injured by any interference with the right to communicate.
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Second, the OJPC is a “nonprofit law firm which provides free legal services to people
who are incarcerated in Ohio’s state prisons,” so its pursuit of its attorneys’ rights
maps directly onto its organizational purpose. (Id. at #975). Finally, the presence of
each individual attorney isn’t necessary in this case, since the OJPC is “not seeking
damages on behalf of its members, just the resolution of a pure question of law”—
that is, the legality of the Policy. Trollinger v. Tyson Foods, Inc., 370 F.3d 602, 622
(6th Cir. 2004) (cleaned up) (quoting Int’l Union, United Auto., Aerospace & Agric.
Implement Workers of Am. v. Brock, 477 U.S. 274, 287 (1996)); (Doc. 37, #994–95
(seeking declaratory and injunctive relief)). So it can press the claims at issue here
on their behalf, as well.
In sum, the OJPC has standing to press its, and its attorneys’, rights to
communicate generally. But it does not itself have, nor do its attorneys have, a
cognizable injury based on the inability to do so confidentially. 5
B. 	The OJPC Doesn’t Have Standing to Assert the Rights of its Clients in
Their Absence.
But the OJPC doesn’t fare so well in its attempt to raise its clients’ rights—
clients who are absent from this litigation (since the OJPC named itself as sole
5 The Court recognizes that an alternate framing may have worked as well. It may be that
OJPC has standing (based on its right to communicate generally), but then lacks a viable
cause of action, as the wrong to which it points (interference with confidentiality) does not
give rise to a valid claim under the asserted right of communication. The exact dividing line
between standing and merits is not always clear. See Trumbull Cnty, Bd. of Comm’rs v. Vill.
of Lordstown, 811 F.3d 226, 227 (6th Cir. 2016) (Mem.) (“Sometimes in no-injury cases the
merits and standing issues look the same.”). But the Court need not explore that further here
because 	“[w]hether 	viewed 	as 	a 	matter 	of 	standing 	or 	merits—a 	question 	of 	some
complexity—we end up at the same point.” Jones v. Van Lanen, 27 F.4th 1280, 1287 (7th Cir.
2022).
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Plaintiff). (Id. at #971). Although standing generally requires a party to assert only
its own rights, one exception—“third party standing”—potentially applies here. A
plaintiff “may raise a constitutional claim on behalf of a third party [in addition to
his own] if he can prove (1) injury-in-fact to [himself], (2) a close relationship between
[himself] and the third party whose rights he asserts, and (3) a hindrance preventing
the third party from raising his own claim.” Moody v. Mich. Gaming Control Bd., 847
F.3d 399, 402 (6th Cir. 2017) (citations omitted).
The OJPC’s allegations do not suffice to establish its standing to vindicate its
clients’ rights under the third-party exception. To be fair, they meet the first two
prongs. First, the OJPC adequately alleged that Defendants violated its own First
Amendment right to communicate with inmates. See supra Part A. Second, OJPC and
its attorneys have a clear, close relationship with its established clients. As for
potential 	clients, 	the 	Sixth 	Circuit 	has 	protected 	“initial-stage, 	pre-litigation
investigation” correspondence. ACLU Fund of Mich., 796 F.3d at 644–45 (protecting
ACLU’s letter to non-client inmates about their interest in future litigation). So there
is a sufficient relationship for potential clients as well.
But on the third prong, the OJPC failed to show that its “prisoner clients are
hindered from advancing their own constitutional rights.” Suciu, 2012 WL 4839924,
at *4 (emphasis added). Two other cases—Kowalski (in the Supreme Court) and Suciu
(in another district within this Circuit)—are informative. Those cases held that
prisoners weren’t hindered from asserting their own claims when the inmates could
still pursue their own claims by proceeding pro se even if deprived of an attorney. See
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id. at *4 (denying third-party standing because the “claim arising from [the alleged]
violation [is] not complex factually or legally”); Kowalski v. Tesmer, 543 U.S. 125,
131–32 (2004) (explaining that “an indigent denied appellate counsel has open
avenues to argue that denial deprives him of his constitutional rights … [such as]
seek[ing] leave to challenge that denial” in a higher court). Stated differently, there
was no hindrance in those cases because the inmates could sue on their own behalf
by proceeding pro se to challenge the alleged rights violations.
As mentioned above, the Sixth Circuit has held that “a ‘jailhouse lawyer’s’ right
to assist another prisoner is wholly derivative of that prisoner’s right of access to the
courts.” Thaddeus-X, 175 F.3d at 395; see also Goff, 113 F.3d at 890 (citations omitted)
(“A jailhouse lawyer has no independent right to provide legal advice, but may assert
the right on behalf of other inmates who are otherwise unable to obtain access to the
courts.”). Even though the attorneys here are not jailhouse lawyers, the takeaway is
the same: unless the prisoner-client cannot access the courts, the attorney does not
have standing to assert the inmate’s rights. While the Policy’s alleged practical effect
is to substantially intrude on the confidentiality of all incoming legal mail, that
doesn’t prevent inmates from vindicating their own rights or otherwise limit their
access to the courts. After all, the Policy doesn’t affect outgoing mail, so an inmate’s
filings, pro se or otherwise, wouldn’t be hindered—and, therefore, neither would his
ability to challenge the Policy—by the Policy’s implementation.
Because the OJPC doesn’t have standing to invoke its clients’ rights on a third-
party theory, the Court doesn’t have subject-matter jurisdiction to consider the
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OJPC’s claim insofar as it relies on constitutional rights other than the constitutional
right that it and its attorneys have to generally communicate with prisoners.
C. 	The OJPC Isn’t Likely to Prevail on the Merits of the Claim it has
Standing to Advance.
So 	that 	leads 	to 	the 	relief 	requested 	in 	the 	motion 	at 	issue 	today—a
preliminary injunction. As a reminder, in First Amendment cases specifically, “the
crucial inquiry is usually whether the plaintiff has demonstrated a likelihood of
success on the merits.” ACLU Fund of Mich., 796 F.3d at 642 (quoting Bays, 668 F.3d
at 819 ). Here, as described above, the OJPC has standing to attack the regulations
only to the extent that it has a right to communicate with inmates in general under
Thornburgh. And the Supreme Court has found that the regulations limiting such
communications need only be “reasonably related to legitimate penological interests.”
Thornburgh, 490 U.S. at 413 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). 6
As the citation suggests, the reasonably-related inquiry is governed by the
four-factor analysis the Supreme Court laid out in Turner. First, courts consider
“whether a valid rational connection exists between the prison regulation and the
legitimate governmental interest put forward to justify it.” Human Rights Def. Ctr.
v. Baxter Cnty., Ark., 667 F. Supp. 3d 959, 967 (W.D. Ark. 2023) (internal quotation
6 Courts do apply a “heightened concern” to alleged violations of a prisoner’s right to receive
legal mail, since the more specific—and stronger—constitutional guarantees of access to the
courts and counsel belong to the inmate-recipient. See Sallier v. Brooks, 343 F.3d 868, 874
(6th Cir. 2003). But this “heightened concern” does not necessarily apply to the attorney-
sender. The caselaw confirms that while the subject matter of the right—legal mail—is the
same, its bite differs based on the status of the person invoking it. Cf. Dwyer, 2022 WL
16709712, at *6.
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marks omitted). If that first factor is not met, “the policy is unconstitutional, and the
other factors do not matter.” ACLU Fund of Mich., 796 F.3d at 646 (quoting
Muhammad v. Pitcher, 35 F.3d 1081, 1084 (6th Cir. 1994)). But if the challenged
policy passes that threshold test, courts balance three remaining factors: (1) “whether
there are alternative means of exercising the right that remain open to prison
inmates,” (2) the “impact that accommodation of the asserted constitutional right will
have on guards and other inmates, and on the allocation of prison resources
generally,” 	and 	(3) 	“whether 	there 	are 	ready 	alternatives 	available 	that 	fully
accommodate the prisoner’s rights at de minimis cost to valid penological interests.”
Id. (cleaned up). At the preliminary-injunction stage, the burden is on the OJPC to
show that those factors are likely to weigh in its favor. See Jones v. Caruso, 569 F.3d
258, 279 (6th Cir. 2009) (McKeague, J., dissenting).
The OJPC hasn’t shown that it is likely to prevail on any of the four Turner
factors. On the initial factor, the “legitimacy of the [ODRC’s] purpose in promulgating
[the Policy] is beyond question”; the policy is “expressly aimed at protecting prison
security, a purpose [the Supreme Court] has said is ‘central to all other corrections
goals.’” Thornburgh, 490 U.S. at 415 (quoting Pell v. Procunier, 417 U.S. 817, 823
(1974)). And the Policy strikes the Court as rationally related to that legitimate
interest—indeed, the OJPC recognizes in its motion that the “ODRC may be justified
in limiting paper … to prevent the importation of synthetic drugs” into prison
facilities. (Doc. 19, #511). To be fair, the OJPC only concedes that justification’s force
“in other contexts”—i.e., in contexts other than legal mail—since “attorneys are not
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the culprit” for the importation of drug-saturated paper. (Id.). But their own evidence
suggests otherwise. The ODRC’s contraband incident report, (Doc. 19-9), which the
OJPC attached to its motion, shows that contraband continued to pop up in legal mail
even after the institution of the control-number system, (see id. at #582 (records for
July 2021 onward); see also Doc. 37, #985–86 (explaining how contraband in legal
mail continues to the present)). True, those numbers have dropped “precipitously”
over the past few years. (Doc. 37, #986). But they persist. And a drop in frequency
doesn’t show that the Policy’s “goal is so remote as to render [it] arbitrary or
irrational,” Turner, 482 U.S. at 89–90, especially since the Policy responds specifically
to the problem of drugs “sprayed on paper or soaked into paper,” (Doc. 37, #985). So
on the record before the Court, the OJPC hasn’t established a likelihood that the
Policy is anything but an “innovative solution[] to the intractable problems of prison
administration.” Turner, 482 U.S. at 89.
Since the OJPC hasn’t shown a likelihood that the Policy fails on Turner’s
threshold rationality inquiry, the remaining three balancing factors kick into play.
At the outset, the Court notes that two of those factors fit poorly onto claims invoking
only 	the 	rights 	of 	an 	outside 	communicator 	(that 	is, 	a 	non-prisoner 	whose
communications with inmates are subject to the challenged regulation). 7 Namely,
7 Thornburgh, where the Supreme Court explained that the Turner test applied to regulations
of outside speakers’ ability to communicate with inmates, was itself a case brought by “a class
of inmates and certain publishers.” Thornburgh, 490 U.S. at 403 (emphasis added). So the
Thornburgh Court’s analysis of the Turner factors, though aimed at evaluating the
challenged regulations in light of “publishers[’] … legitimate First Amendment interest in
access to prisoners,” still took account of the “inmates’ First Amendment Rights.” Id. at 415.
As explained above, see supra Part B, the inmates’ rights aren’t properly before the Court at
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“whether there are alternative means of exercising the right that remain open to
prison inmates,” and “whether there are ready alternatives available that fully
accommodate the prisoner’s rights at de minimis cost to valid penological interests,”
are both inquiries that center on the prisoner’s rights. See ACLU Fund of Mich., 796
F.3d 	at 	646 	(emphases 	added); 	see 	also 	Dwyer, 	2022 	WL 	16709712, 	at 	*6
(distinguishing between claims of prisoners’ rights and claims of attorney’s rights).
So it’s unclear how, or even if, the Court is to apply those factors when, as explained
above, the OJPC’s clients’ rights aren’t properly before the Court in this case’s current
posture. See supra Part B.
But even assuming—without deciding—that those inquiries somehow come
out in the OJPC’s favor, the remaining factor doesn’t. Namely, it isn’t clear that
enjoining the Policy will positively (or even neutrally) “impact … guards and other
inmates” or “the allocation of prison resources generally.” ACLU Fund of Mich., 796
F.3d at 646. On the one hand, the OJPC is correct that enjoining the Policy would
have the practical effect of freeing prison staff from “hav[ing] to spend time copying
legal mail and ensuring that the photocopy matches the original.” (Doc. 19, #513).
But that doesn’t mean there would necessarily be “very little ‘tradeoff’ … between the
rights asserted by Plaintiff and the legitimate security interests of ODRC.” (Id.). As
the ODRC Defendants argue, the Policy “allows corrections officers and prison
officials to spend more time addressing prison safety and security issues and less time
this stage, so Thornburgh’s application of the Turner factors provides little guidance at this
point.
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addressing the delivery of mail and the search for contraband.” (Doc. 25, #737). 	So
it’s possible that the problem of drug-soaked paper is so prevalent that the costs of
the 	Policy 	are 	well 	worth 	it. 	At 	a 	minimum, 	the 	OJPC 	hasn’t 	sufficiently
demonstrated that’s not the case to satisfy the likelihood of success on the merits
element necessary to win a preliminary injunction.
At bottom, “prison administrators, and not the courts, are to make the difficult
judgments concerning institutional operations.” Turner, 482 U.S. at 89 (cleaned up).
Sometimes, those judgments are unlawful. This Policy might be one of those. If it is,
the OJPC can continue to seek relief before this Court. But at this very early juncture,
it hasn’t made the necessary showing of “a strong or substantial likelihood or
probability of success on the merits” necessary to entitle it to this Court’s intervention
before Defendants have had their day in court. Ray v. Fifth Third Bank, N.A., 689 F.
Supp. 3d 502, 509 (S.D. Ohio 2022) (citations omitted).
* 	* 	*
Before concluding the Court takes a moment to stress just how narrow the
decision here is. As just noted, the Court has made no final determination on whether
the Policy is constitutional, even under the Thornburgh framework for general
communications. But more importantly, because the Court concludes that OJPC
lacks standing based on an alleged injury to its clients’ rights, the Court expresses no
opinion on whether the prisoners themselves may have a viable claim to challenge the
Policy on attorney-client privilege or other confidentiality grounds. That, however, is
a question for another day in a case involving different plaintiffs.
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CONCLUSION
For the foregoing reasons, the Court DENIES Plaintiff’s Amended Motion for
Preliminary Injunction (Doc. 19). 8
SO ORDERED.
February 10, 2026
DATE 	DOUGLAS R. COLE
UNITED STATES DISTRICT JUDGE
8 Plaintiff’s original Motion for Preliminary Injunction (Doc. 2) is denied as moot as Plaintiff
OJPC filed the Amended Motion, (Doc. 19).
GLAS R. COLE
ED STATES DISTRICT J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	J	JU	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U	U
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