Case 1:07-cv-02618-CAP

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Filed 02/04/2008

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
PRISON LEGAL NEWS,
Plaintiff,

CIVIL ACTION

v.

NO. 1:07-CV-2618-CAP

FULTON COUNTY, GEORGIA and
MYRON FREEMAN, individually
and in his official capacity
as Fulton County Sheriff,
Defendants.
O R D E R
This matter is before the court on the plaintiff’s motion for
a preliminary injunction [Doc. No. 8].
I.

Statement of Facts
The plaintiff in this matter is an independent, monthly

magazine, Prison Legal News (“PLN”) that has subscribers who are
incarcerated in the Fulton County Jail (“Jail”).
lawsuit challenging the Jail’s mail policy.

PLN filed this

According to PLN, the

policy that was in effect at the time the lawsuit was filed (“old
mail policy”), which was declared unconstitutional by this court in
a 2002 ruling,1 prevented inmates from receiving its publication.
The defendants filed an answer to the lawsuit denying that the old
mail policy was unconstitutional [Doc. No. 4 at 5-6].

1

See Daker v. Barrett, No. 1:00-CV-1065-RWS (N.D. Ga. July
22, 2002).

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On December 18, 2007, PLN moved for a preliminary injunction
to enjoin the defendants from continuing to enforce the mail
policy.

On December 20, 2007, Defendant Freeman modified the mail

policy

(“new

constitutional.

mail

policy”),

which

defendants

contend

is

See Freeman Aff. at ¶ 4[Ex. A to Doc. 11].

Accordingly, the defendants contend that the motion for preliminary
injunction is now moot.
On January 31, 2008, the court conducted a hearing on the
motion for preliminary injunction.

At the hearing, the parties

were

many

in

substantial

agreement

on

issues.

First,

the

defendants conceded that the old mail policy that was in effect
when this lawsuit was filed was unconstitutional.

Second, while

the plaintiff indicated that it may have challenges to the new mail
policy once discovery is completed, the new mail policy is an
improvement over the old mail policy.

Thus, for purposes of the

motion for preliminary injunction, the plaintiff indicated its
satisfaction with enforcement of the new mail policy.
The parties disagreed, however, on whether an injunction
should be issued by the court to compel the defendants to continue
using the new mail policy.

The defendants contend that because

they have voluntarily adopted and are currently enforcing the new
mail policy, there is no need for injunctive relief. The plaintiff

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on the other hand argued that an injunction was necessary to
prevent the defendants from returning to the old mail policy.
II. Legal Analysis
A.

Preliminary Injunction Standard

A district court may grant a preliminary injunction only upon
the movant's showing that (1) it has a substantial likelihood of
success on the merits, (2) the movant will suffer irreparable
injury unless the injunction is issued, (3) the threatened injury
to the movant outweighs the possible injury that the injunction may
cause the opposing party, and (4) if issued, the injunction would
not disserve the public interest. Horton v. City of St. Augustine,
272 F.3d 1318, 1326 (11th Cir. 2001).
B.

Application of the Standard to the Facts
1.

For

Likelihood of Success on the Merits

purposes

of

the

relief

sought

in

the

motion

for

preliminary injunction, the plaintiff has already succeeded on the
merits.

The defendants have conceded that the old mail policy was

unconstitutional and have changed the policy.
2.

Irreparable Harm

With regard to the issue of irreparable harm, the United
States Supreme Court has held, “The loss of First Amendment
freedoms for even minimal period of time unquestionably constitutes

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irreparable injury.”

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Elrod v. Burns, 427 U.S. 347, 373-74 (1976).

Thus, the plaintiff has demonstrated irreparable harm.
The defendants argued that because the old mail policy is not
being

enforced

and

a

new

policy

is

in

effect,

there

is

irreparable harm to the plaintiff occurring at this time.

no
The

Eleventh Circuit has held, however that voluntary cessation of
challenged conduct does not render an issue moot because “nothing
would prevent the defendant from resuming its challenged action.”
Sierra Club v. EPA, 315 F.3d 1295, 1303 (11th Cir. 2002).

In light

of the defendants admitted mistake in enforcing an unconstitutional
policy for more than five years after this court struck it down,
the court finds that an injunction is necessary to prevent the
defendants from imposing additional irreparable injury on the
plaintiff.
3.

Balance of Injury

The third inquiry of the preliminary injunction analysis is
whether the plaintiff can establish that the injury it would
sustain if the defendants were not enjoined outweighs the harm an
injunction would cause the defendants.

Here, the defendants

assured the court that it was their intention to refrain from using
the old mail policy and to continue to enforce the new mail policy.
Therefore, issuance of the instant injunction is of no harm
whatsoever to the defendants.
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4.

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Public Policy

The fourth and final inquiry this court must make is whether
the injunction sought by the plaintiff would disserve public
policy.

In this case, a relapse to the use of an unconstitutional

policy would disserve the public interest.

Thus, the injunction

requiring the defendants to refrain from using the old mail policy
and to continue to use the new mail policy would serve the public
interest.
III. Conclusion
Based on the foregoing, the plaintiff has established (1) a
likelihood of success on the merits and (2) that it would suffer
irreparable injury without an injunction.

Additionally, the court

found that there was no injury to the defendants that outweighed
the potential injury to the plaintiff and that the injunction did
not disserve public policy. Therefore, the plaintiff’s motion for
preliminary injunction [Doc. No. 8] is GRANTED. The defendants are
HEREBY ENJOINED from the use of the old mail policy; the defendants
are REQUIRED to enforce the new mail policy; and the defendants are
REQUIRED to notify the plaintiff and the court should it make any
change in the new mail policy.
SO ORDERED, this 4th day of February, 2008.
/s/ Charles A. Pannell, Jr.
CHARLES A. PANNELL, JR.
United States District Judge
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