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Hines v. Mincks, WA, Prelim. Inj. - Jail Attorney Phone Call Policy, 2017

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Case: 2:17-cv-00436-ALM-TPK Doc #: 11 Filed: 05/25/17 Page: 1 of 5 PAGEID #: 71

LARRY R. MINCKS, et al.,


Case No. 2:17-cv-0436
Magistrate Judge Kemp

This matter is before the Court on the Motion of Plaintiffs Daniel Buchman, Dakota
Hines, and Joey Brooks (together, “Plaintiffs”) for a Temporary Restraining Order and
Declaratory and Injunctive Relief. (Doc. 7.) For the reasons set forth below, Plaintiffs’ Motion
Plaintiffs are indigent inmates and pretrial detainees in the Washington County Jail (the
“Jail”) who allege that their Sixth Amendment right to the assistance of counsel is being
infringed by the Jail’s restrictive telephone call and written correspondence policy.


therefore move this Court for an order restraining and enjoining Defendants Larry R. Mincks,
individually and in his official capacity as Washington County Sheriff, and Washington
County/Washington County Board of Commissioners (“Defendants”) from enforcing this policy.
Currently, the Jail’s telephone call policy requires: (1) indigent inmates to pay for
attorney-client phone calls, or place them collect; and (2) that attorney-client phone calls be


At the Local Rule 65.1 Conference, the Court granted Plaintiffs’ motion for a temporary restraining
order. Rather than continually renewing the TRO, the parties agreed to injunctive relief under the terms
set by the Court. The terms of the injunction will last for sixty (60) days from the date of this Order, to
allow the parties to mediate this dispute.


Case: 2:17-cv-00436-ALM-TPK Doc #: 11 Filed: 05/25/17 Page: 2 of 5 PAGEID #: 72

recorded. (See Doc. 7-1 at 1; Compl., Doc. 2, ¶ 1.) Until August 31, 2016, indigent inmates
could use the Jail’s phones to make “free, unrecorded, and unlimited calls to their public
defenders.” (Doc. 2 ¶ 14.) Prior to August 2016, the Office of the Ohio Public Defender (which
provides public defense services in Washington County), would occasionally forward inmates’
phone calls to friends and family members to try and arrange for them to post bond. (Id. ¶¶ 57–
58.) Plaintiffs allege that Defendants knew about and permitted this practice. (Id. ¶ 58.) During
August 2016, the Public Defender’s office “inadvertently forwarded a call from a client to the
victim of his crime.” (Id. ¶ 59.) That inmate “abused the system and violated a protection
order.” (Id.)
As a result, on August 31, 2016, Defendants contacted the Public Defender’s office and
informed them that, going forward, the Jail’s telephone call policy would change. Now, all calls
to the Public Defender’s office are recorded, and normal billing rates ($4.50 for a twenty-minute
call to another Ohio resident) apply to indigent inmates. (See id. ¶¶ 15, 60.) Although the
Director of the Public Defender’s office notified the Washington County Prosecutor and Sheriff
that this new policy would “shut down the phone system for indigent inmates” and offered to
“cease the Public Defender’s practice of forwarding client calls to family and friends,”
Defendants nonetheless instituted the new telephone call policy. (Id. ¶ 61.)
With regard to inmate mail, the Jail has a written policy informing inmates that their
“incoming mail will be inspected by the Sheriff or jail staff. The mail sent to you by the court or
your attorney may be inspected in your presence for contraband only.”

(Doc. 2-5 at 1.)

Plaintiffs allege, however, that Jail officials collect inmates’ mail (including attorney letters)
before sealing the correspondence, and do not seal the envelopes in the inmates’ presence; thus,
Plaintiffs have no way of knowing whether Jail officials are reading their mail. (See Doc.


Case: 2:17-cv-00436-ALM-TPK Doc #: 11 Filed: 05/25/17 Page: 3 of 5 PAGEID #: 73

2 ¶ 41.) Plaintiffs also believe that Jail officials are reading incoming mail from their attorneys
outside their presence. (See id. ¶ 42.)
In determining whether to grant a TRO under Federal Rule of Civil Procedure 65(b), the
Court must balance four factors: (1) whether the movant has shown a strong or substantial
likelihood of success on the merits; (2) whether irreparable harm will result without an
injunction; (3) whether issuance of an injunction will result in substantial harm to others; and (4)
whether the public interest will be advanced by the injunction. Ohio Republican Party v.
Brunner, 543 F.3d 357, 361 (6th Cir. 2008). The Court, however, “need not reach all of the
factors,” and a focus on “[t]he irreparability and immediacy of harm” remains consistent with the
commands of Rule 65(b). Women’s Med. Prof’l Corp. v. Baird, No. 03-CV162, 2008 WL
545015, at *1–2 (S.D. Ohio Feb. 27, 2008) (Marbley, J.).
The two relevant factors are easily met here. As a matter of law, an “individual is
irreparably injured when his constitutional rights are violated.” Lynch v. Leis, No. 1:00-CV-274,
2002 WL 33001391, at *7 (S.D. Ohio Feb. 19, 2002) (citing Bonnell v. Lorenzo, 241 F.3d 800,
809 (6th Cir. 2001)). “Absent justification, restrictions which impose severe constraints on a
pretrial detainee’s ability to contact his attorney and discuss matters of substance violate the
Sixth Amendment.” Lynch, 2002 WL 33001391, at *5 (citations omitted). In Lynch, this Court
struck down as a violation of the Sixth Amendment a policy that permitted inmates to make only
collect calls, which made it impossible for the plaintiff to contact his attorney during a twentyday detention period. See id. at *2, *5. Similarly, in Nordstrom v. Ryan, the Ninth Circuit Court
of Appeals held that “prison officials may inspect, but may not read, an inmate’s outgoing legal
mail in his presence.” No. 16-15277, 2017 WL 2174547, at *4 (9th Cir. May 18, 2017). Under


Case: 2:17-cv-00436-ALM-TPK Doc #: 11 Filed: 05/25/17 Page: 4 of 5 PAGEID #: 74

Lynch and Nordstrom, it is clear that Defendants’ policies are unconstitutional and thus Plaintiffs
have been irreparably harmed.
In terms of the immediacy of the harm, Plaintiffs have been jailed for weeks without
speaking to their attorneys, and with hearings quickly approaching. (See Doc. 7-1 at 12–13.)
One Plaintiff is facing felony charges and has never spoken to his attorney on the phone. (Id.)
There is no doubt that Plaintiffs’ rights to contact and discuss substantive legal matters with their
attorneys have been “severe[ly] constrain[ed],” Lynch, 2002 WL 33001391, at *5, and Plaintiffs’
Sixth Amendment right to the assistance of counsel will not be vindicated unless they are able to
speak with their attorneys prior to upcoming legal proceedings.
For the foregoing reasons, Plaintiffs’ Motion is GRANTED. As explained above, the
Court finds that the factors necessary to grant a TRO under Rule 65(b) have been met. However,
the parties have agreed to extended injunctive relief, in the nature of a preliminary injunction,
under the conditions set by the Court. The Court orders as follows:

The Jail must reinstate its pre-August 2016 inmate telephone call policy. That is,
indigent inmates must be permitted to call the Public Defender no cost.


telephone calls must not be recorded.

Non-indigent inmates’ telephone calls with their attorneys must not be recorded. Nonindigent inmates must still pay for their telephone calls to their attorneys.


The Public Defender may not forward any inmate telephone calls or facilitate threeway telephone calls.


The Jail must modify its written “Phone Calls and Correspondence” policy to read:
“Your incoming mail will be inspected by the Sheriff or jail staff. The mail sent to you


Case: 2:17-cv-00436-ALM-TPK Doc #: 11 Filed: 05/25/17 Page: 5 of 5 PAGEID #: 75

by the court or your attorney will be inspected in your presence for contraband only.”
Outgoing mail must also be sealed in the inmates’ presence.

This Court’s Order will be distributed to the Office of the Ohio Public Defender and the
Office of the Washington County Public Defender by Plaintiffs’ counsel.

Although Plaintiffs moved for a TRO, the parties have agreed to the entry of a preliminary
injunction to allow them an opportunity to mediate the merits of this case. The terms of the
preliminary injunction will last for 60 days, and the parties will mediate the case before
Magistrate Judge King within 30 days. They agreed to waive the requirement of a bond. The
parties are to inform the Court of the mediation date. The Court will retain jurisdiction over this

s/Algenon L. Marbley ___________

DATED: May 25, 2017