Vollette, et al v. Watson et al, No. 2:2012cv00231 - Document 37 (E.D. Va. 2012)

Court Description: OPINION AND ORDER - the Court DENIES the Injunction Plaintiffs' six pending motions seeking preliminary injunctions ordering Sheriff Watson to reinstate their security clearances at the Portsmouth City Jail. Signed by District Judge Mark S. Davis and filed on 7/24/12. (jcow, )

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FILED UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA JUL 2 4 2012 Norfolk Division CLLKK, U.R f'iSTruCl COURT NAN VOLLETTE, et al., N'):;;:oi K va Plaintiffs, v. Civil Action No. 2:12cv231 BILL WATSON, et al., Defendants. OPINION AND ORDER This matter is before the Court on a "Motion for Temporary Restraining Order and/or Preliminary Injunction," filed of the nine plaintiffs in this consolidated action.1 the "Injunction ("Correct requests Plaintiffs," Care").2 for a worked Injunction preliminary for Correct Plaintiffs' injunction Care the six These six, Solutions written pending by and oral outcome of this case are predicated on the alleged retaliatory action taken by defendant Portsmouth, issue Bill Watson, Virginia a Temporary the elected Sheriff ("Sheriff Watson"), Restraining Order or for the City of and ask that the Court Preliminary Injunction: 1 Each plaintiff initially filed a Complaint in a separately styled suit, and the nine suits were later consolidated by the Court. Having been consolidated, the Court now issues a single Opinion and Order resolving the six outstanding motions. All citations to the record refer to the docket in case number 2:12cv231. 2 The following six plaintiffs seek a preliminary injunction: Nan Vollette, Angelene Coleman, Yolanda Vines, Hashena Hockaday, Verita One of the three remaining plaintiffs Braswell, and Emma Floyd-Sharp. was also previously employed by Correct Care, while the other two remaining plaintiffs worked for a separate employer, Aramark Correctional Facility Food Service. (1) ordering security Sheriff clearances Watson and Portsmouth City Jail; further filing retaliation of this to restore allow and (2) against them to return to Plaintiffs' work at the enjoining Sheriff Watson from any the lawsuit.3 Injunction Injunction Following Plaintiffs notification for to the Sheriff Watson regarding the preliminary relief sought by the Injunction Plaintiffs, the Court After considering the the hearing, for conducted case the file a hearing and reasons the on their motions. testimony presented at stated below, Injunction Plaintiff's motions is DENIED, each of the pending the outcome of this case. I. Defendant Portsmouth 116.2. Jail Although preliminary that FACTUAL4 AND PROCEDURAL BACKGROUND Sheriff Watson City it defendants ("the the injunction appears are seeking a preliminary injunction from is responsible Jail"). Injunction against See for overseeing the VA Code Plaintiffs Sheriff Ann. § only 53.1- seek a Watson, the Court notes all the other named the record that Portsmouth Deputy Sheriffs of that work under the supervision of Sheriff Watson (collectively "Defendants"). 3 As the hearing on the pending motions was not ex parte, but was instead conducted after Sheriff Watson had an opportunity to submit a written brief in opposition and present evidence at the hearing on such motions, the Court considers the pending motions as motions seeking a preliminary injunction, not a temporary restraining order. 4 The facts reproduced here are merely preliminary facts and do not represent of the factual findings instant motion. for any purpose other than the resolution Each of the private health written Injunction care contract Plaintiffs contractor between Correct Care provides is Correct Correct an employee Care. Care Pursuant and Sheriff nursing and other medical inmates housed at the Jail. of the to a Watson, services to the See Health Services Agmt., ECF No. 9-1. In April were filed assigned to Care. in 2011, April work at of 2012, the Jail time the by that the Injunction their direct instant suits Plaintiffs employer, were Correct as well as at least three other Jail contractors who Plaintiffs injunction, search at in to this but did not a strip search Jail. According to the such "continuous reliable searches the Injunction contraband into whether were the Jail. "[s]ome and visual Sheriff about and Injun. a preliminary body Watson's because nurses other Prelim. ") . seek conducted information" Plaintiffs) (hereinafter, "Tr. counsel case undergo testimony, of and at the On April 22, 2011, Defendants required all six Injunction Plaintiffs, are of hearing he had (including some contractors Tr. cavity 53, bringing ECF No. When specifically asked by Plaintiffs' of these plaintiffs were involved illegal contraband," Sheriff Watson responded "Yes, ma'am." 58. Sheriff strip Watson searched strip searched. around also the Tr. 56. 20 testified same time that that in Tr. "jail officers" were the Plaintiffs were Despite Sheriff Watson's Injunction Plaintiffs were the Tr. Jail, Injunction 58, involved in following Plaintiffs, assertion all the six that "some" bringing 2011 strip Injunction of the contraband into searches Plaintiffs of the apparently retained their security clearances and returned to work at the Jail. On searches, seeking April the 27, 2012, Injunction relief approximately Plaintiffs pursuant to 42 one filed U.S.C. § year suit 1983 in for after this the Court violation of their Constitutional rights under color of state law, as well as seeking relief Injunction for various Plaintiff's state law causes Complaint search occurring on April 22, alleges 2011, of action. an unlawful Each strip in violation of the filing Plaintiff's Fourth Amendment right to be free from unreasonable searches. expressly None allege of the the Injunction existence policy regarding strip searches, of Plaintiffs' an Complaints unconstitutional Jail nor do any of the Complaints allege that the filing Plaintiff was strip searched at any time other than Plaintiffs continues on April alleges to 22, in suffer her SI 56, ECF No. Each Complaint humiliation feeling of being invaded, Compl. 2011. and of that the six she suffered emotional and other emotional harm. 1. Each Injunction millions of dollars in monetary damages, Injunction and distress, a See, e.g., Plaintiff seeks punitive damages, and a "preliminary and permanent injunction" prohibiting any further strip searches on the named Plaintiff suspicion of illegal activity. Shortly six after Injunction April of of had Sheriff of the while their individualized Id. SI 63. filing Plaintiffs, 2012, direction the absent original still security Watson. Complaints, working at clearances In the Jail revoked response, the at the in the Injunction Plaintiffs each filed an Amended Complaint in this case adding a Amendment First According to April 30, 2012, were filed, retaliation revoked, work the Injunction just such thereby assignments claim Plaintiffs' three after the had their Jail prohibiting the such Jail. Sheriff Amended days Plaintiffs at against The Complaints, original Amended from on Complaints security Plaintiffs Watson. clearance any Complaints further allege that such revocation was motivated by the filing of the original Complaints. seeking Injunction preliminary Watson to Plaintiffs injunctions thereafter that would filed motions require Sheriff immediately reinstate their security clearance at the Jail. Subsequent to the filing of the motions seeking preliminary injunctions, the Sheriff requested Watson filed injunctions. a After response in receiving opposition to the Injunction preliminary Plaintiffs' reply briefs, the Court conducted a injunction hearing where each side presented testimony offered argument in support of their respective positions. and The Court also granted a motion permitting Injunction Plaintiffs to file a Second Amended Complaint clarifying that all Defendants were sued in their individual and official capacities.5 received such written filings, oral testimony, Having and oral argument, this matter is now ripe for decision. II. PRELMINARY INJUNCTION STANDARD "A preliminary injunction is 'an extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled 649 F.3d Res. Def. to such 287, relief.'" 290 Council, (4th Dewhurst Cir. Inc., 555 U.S. National Telecommunications 2d 317 313, Breakthrough (E.D. Med. 2011) Va. & 952 "[a] extraordinary remedy involving circumstances which which is 7, F.2d that power, (quoting 22 preliminary to clearly the be Admin., 811 505 exercise Israel, (4th of only it'"). in In to succeed on 5 The the merits"; three Plaintiffs (2) that do "that (1) [s]he is not seek Ltd. an v. 1992)) is 'an very a far- the order "that Supp. Cir. the extraordinary remedy of a preliminary injunction, is on the moving party to demonstrate: Natural F. injunction applied demand v. Co., see Peterson v. Direx 802, Aluminum Winter (2008)); (quoting (recognizing reaching Century Information 2006) Corp., v. to limited obtain the burden [s]he is likely likely to suffer injunction were also permitted to amend their Complaints in the above referenced manner. However, the newly filed Complaints submitted by those three Plaintiffs represented their "First" Amended Complaint. irreparable "that harm the "that an balance the of at 290 see Direx bears the F.2d burden fact Circuit that United preliminary in h[er] marks 812 and Dewhurst, relief"; favor"; (4) Dewhurst, 649 that the after (3) and citations (indicating demonstrating In omitted); the moving propriety setting of forth controlling Circuit") precedent ("Supreme separately from Court") the highlighted Supreme requires Court that a of The exacting mandates a F.2d 808, 828 283, preliminary as 286 outlined seeks a contrasted injunction pending trial. F.3d standard plaintiff action, preliminary the the Id. 555 U.S. at 22) (emphasis added). demanding when the plaintiff "clearly show" that she is likely to succeed on the merits. (quoting Winter, a the United States Court of Appeals for the ("Fourth States at of preliminary injunction). Fourth tips quotation 952 above four-part test, of in the public interest." (internal Israel, absence equities injunction is F.3d party in that above becomes preliminary with merely the even more injunction that typical preserves the See East Tennessee Natural Gas Co. (4th Cir. (4th injunctions 2004) Cir. do (quoting Wetzel 1980)) not (noting preserve the v. that form of status quo v. Sage, 361 Edwards, 635 "'mandatory status quo and normally should be granted only in those circumstances when the exigencies of the situation demand such relief"). explained by the Fourth Circuit: 7 As recently Ordinarily, preliminary injunctions are issued to "protect the status quo and to prevent irreparable harm during the pendency of a lawsuit ultimately to preserve the court's ability to render a meaningful judgment on the merits." In re Microsoft Corp. Antitrust Litiq., 333 F.3d 517, 525 (4th Cir. 2003). Movant, however, seeks to alter the status quo by having a federal court order the Board to include his name on a primary election ballot. But such " [m] andatory preliminary injunctive relief in any circumstance is disfavored, and warranted only in the most extraordinary circumstances." Id. (citation Consequently, our "application of th[e] omitted). exacting standard of review [for preliminary injunctions] is even more searching when" the relief requested "is mandatory rather than prohibitory in nature." Id. Perry v. Judd, 17, 2012) No. 12-1067, 2012 WL 120076, at *4 (4th Cir. Jan (unpublished). III. Each Injunction "mandatory" DISCUSSION Plaintiff preliminary has injunction filed a ordering motion seeking a Sheriff Watson to reinstate her security clearance at the Jail pending the outcome of this case. rely Such requests for a preliminary injunction do not on the assertion of an unconstitutional strip search, instead are claims that clearances based upon Sheriff in Injunction Watson retaliation Complaints in this case. Plaintiffs' improperly for them First revoked but Amendment their security the original filing The "irreparable harm" alleged by the Injunction Plaintiffs is thus grounded entirely on the assertion that they Amendment suffered right to retaliation free speech. 8 for exercising Accordingly, their this First Court's analysis focuses Sheriff Watson speech when on the violated he Injunction their retaliated First Amendment against them begins security clearances.6 The Court carefully considering whether the clearly such demonstrated claims, a likelihood required as Plaintiffs' by the rights by such success that to revoking Injunction of claims free their analysis Plaintiffs on controlling the by have merits precedent of cited above. A. The overcome first in demonstrating 6 hurdle order a Likelihood of Success to that each obtain likelihood of a Injunction Plaintiff preliminary success on the injunction merits of must is her The First Amendment to the Constitution provides, in relevant part, that "Congress shall make no law . . . abridging the freedom of speech ... or the right of the people ... to petition the Government for a redress of grievances." U.S. Const, amend. I. The Supreme Court has held that the due process protections of the Fourteenth Amendment incorporate the protections of the First Amendment, and therefore make the protections of the First Amendment applicable to state and local governments. Gitlow v. People of State of New York, 268 U.S. 652, 666 (1925); see also Kowalski v. Berkeley County Schools, 652 F.3d 565, 571 (4th Cir. 2011) (quoting U.S. Const. Amend. I.) ("The First Amendment prohibits Congress and, through the Fourteenth Amendment, the States from 'abridging the freedom of speech.'"). Each Injunction Plaintiff's Second Amended Complaint asserts a First Amendment violation of her "right to seek redress in court . . . ." See, e.g., Second Amend. Compl. S 82, ECF No. 14. Injunction Plaintiffs' briefs in support of their motions seeking a preliminary injunction expressly invoke both the "petition clause" and the "free speech clause" of the First Amendment. The Supreme Court recently held that the same legal framework applies regardless of which clause of the First Amendment is invoked by a government employee in support of her retaliation claim. Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct. 2488, 2493-2501 (2011). Therefore, for consistency only, the remainder of this opinion will reference Injunction Plaintiffs' allegations of retaliation in violation of their "speech rights" under the First Amendment. retaliation below, if claim. the Dewhurst, speaker 649 F.3d alleging a at 290. First As set Amendment forth violation qualifies as a "public employee," a special test applies to the determination rights were of whether violated, such individual's and therefore whether succeed on their retaliation claim. of the Injunction "public Plaintiffs employee," this Amendment they are likely to After determining that each before Court First the applies Court such qualifies special as test a and concludes that the Injunction Plaintiffs have failed to clearly demonstrate a likelihood of success on the merits of their retaliation claims. 1. Are Injunction Plaintiff's Public Employees? In examining on the merits considers purposes First of whether of such Amendment Injunction their they Plaintiffs' retaliation qualify analysis. generally as The include likelihood of claims, "public the "not Court employees" protections the first for afforded only success the by the affirmative right to speak, but also the 'right to be free from retaliation by a public official for the exercise of that right.'" Trustees of the University of N.C.-Wilmington, 640 F.3d 550, 560 (4th Cir. 2011) (quoting Suarez Corp. Indus, v. McGraw, 676, Cir. 685 protection (4th afforded 2000)). to a However, "public the employee" Adams v. is First less 202 F.3d Amendment than that afforded to an ordinary citizen because the government and the 10 general public providing both efficient employees do not have a strong public interest services. in Id. public "While lose their constitutional rights agencies government at work, the Supreme Court has repeatedly held that the government may impose certain restraints against them that general public." (1983) 568 seek on its employees' would be unconstitutional Id.; see Connick v. (quoting Pickering v. (1968)) ("Our 'a balance citizen, task, as between of efficiency the we the of employees.'") State, the defined it of the 461 U.S. 138, 142 it 563, is to [employee], of public services 391 U.S. Pickering, the employer, action to in an take if applied Myers, interests as public and Board of Education, in commenting upon matters interest speech as a concern and the in promoting the through its performs (alteration in original). Here, there is some dispute among the parties as to whether the Injunction Plaintiffs should be categorized as "public employees" since they are not employees of the Jail or Sheriff's Office, but instead are employees of Correct Care, a company that is under contract to provide health services to the inmates housed at the Jail. Plaintiffs' Second Amend. Compl. fl! 18-19, ECF No. 14. counsel acknowledges that the Injunction Plaintiffs' status as employees of a Jail contractor likely qualifies them as "public employees," of conceding however, such point. counsel's This Court's 11 position falls short research revealed that the Supreme Court has concluding that there squarely addressed this is not a "difference threshold issue, of constitutional magnitude between independent contractors and employees" in the context analysis. of First County Comm'rs, 684 (1996) The Supreme (internal not to the always-somewhat case." Id. conclusion government and Kan, v. Umbehr, Board 518 U.S. of 668, quotation marks and citations omitted).7 Court's respects speaker's retaliation Wabaunsee County, "[independent relevant Amendment was contractors government's Accordingly, on the fact are similar employees, government less based although interests strong in "the same the are in most both the typically-though independent form of that contractor balancing analysis should apply to each," and any such differences in interests can be adequately required of accounted federal for courts. by Id. Haywood Regional Medical Center, 2007) the at 234 case 678, specific 685; Fed. Appx. see balancing Braswell 47, 53 v. (4th Cir. (recognizing that "the government's legitimate reasons for regulating its employees' speech apply equally to independent contractors"). 7 Defense counsel failed to cite any cases demonstrating that the Injunction Plaintiffs should be held to the "public employee" standard. Although the authority cited by Plaintiffs' counsel did not include Umbehr, Plaintiffs' counsel commendably acknowledged, against her clients' interest but consistent with her ethical obligations, that federal courts appear to apply the same legal standard to government contractors as that applied to government employees. 12 Having "public determined employees" Amendment for retaliation that the the Injunction purposes claims, the of Plaintiffs analyzing Court their must are First examine the appropriate legal standard governing First Amendment retaliation claims Ridge advanced by Volunteer public Fire employees. Co., 218 F.3d In 337 Goldstein v. (4th Cir. Chestnut 2000), the Fourth Circuit articulated a four-part test that must be met in order to First Amendment action." prove Id. a at public rights employee's flowing 351. Such "claim from test, employees and government contractors, an for deprivation adverse applicable to of employment both public applies as follows: First, to trigger First Amendment protection, the speech at issue must relate to matters of public interest. Second, the employee's interest in First Amendment expression must outweigh the employer's interest in efficient operation of the workplace. Third, the employee must establish retaliation of some kind-that he was deprived of a valuable government benefit or adversely affected in a manner that, at the very least, would tend to chill his exercise of First Amendment rights. Finally, the employee must establish a causal relationship between the protected expression and the retaliation: that the protected speech was a "substantial factor" in the decision to take the allegedly retaliatory action. Id. at 351-52 (internal quotation marks and citations omitted).8 The Fourth Circuit has elsewhere defined the above standard as a three-prong test, requiring a court to determine: "(1) whether the public employee was speaking as a citizen upon a matter of public concern or as an employee about a matter of personal interest; (2) whether the employee's interest in speaking upon the matter of public concern outweighed the government's interest in providing effective and efficient services to the public; and (3) whether the employee's speech was a substantial factor in the employee's termination 13 2. Is Sheriff Watson Immune from Suit? Before applying the Goldstein test to determine whether the Injunction Plaintiffs on their First have demonstrated a Amendment retaliation consider Sheriff Watson's claims of likelihood of claims, the success Court immunity from suit. must In the Sheriff's brief in opposition to the pending motions and at oral argument, Sheriff Watson asserted that he is common law doctrine of qualified immunity. recently noted, of government doing so, undue "[a]t common law, enjoyed various protected by the As the Supreme Court those who carried out the work protections from liability when in order to allow them to serve the government without fear of personal exposure," and the Court has looked to these protections in extending qualified immunity to individuals sued under 1657, 1660 immunity 42 (2012) . should Plaintiffs' Maynard, U.S.C. 652 § Sheriff be of 557, McVey v. Watson (4th [a] Stacy, Amendment for retaliatory Delia, that assessing on the Cir. F.3d 132 such the merits. 2011) 271 (4th S. Ct. qualified Injunction See (noting plaintiff's rights, 157 articulated by the Fourth Circuit, "whether a public employee has v. argues in success 560 where an officer violated decision." Filarsky considered likelihood F.3d 1983. Braun that v. "even [the officer] Cir. 1998). As the McVey test applies to determine stated a claim under the First discharge." Id. at 277 (emphasis added). Accordingly, because the McVey test presupposes a termination, prong three of the Goldstein test (deprivation of a valuable government benefit) has necessarily been satisfied by such termination. Here, because Plaintiffs were not "terminated" from employment, the Court applies the Goldstein test, which mirrors prongs one, two, and four of the McVey test. 14 may claim immunity established"). matter, the law Furthermore, Sheriff capacity" if Watson damages question may be based immune on 1428198, at Virginia, See Bland v. Roberts, *10 (E.D. Va. not Apr. 24, from clearly any "official sovereign the afforded states by the Eleventh Amendment Constitution. was as discussed at the hearing on this also claims in immunity to the United States F. Supp. 2012) 2d , 2012 WL (indicating that, a Sheriff is a constitutional officer, in and is shielded by the doctrine of sovereign immunity as to "official capacity" damages claims since any monetary award would be paid by the sovereign-the Commonwealth of Virginia). Despite stage in Sheriff the Watson's proceedings, assertions the Court of immunity, finds it at this unnecessary to delve into these complex immunity issues because the Injunction Plaintiffs relief. seek both monetary damages Since it is and well-established permanent that neither injunctive qualified immunity nor Eleventh Amendment sovereign immunity are a defense to a claim for permanent injunctive relief, there is no need to analyze Sheriff Watson's potential immunity to monetary damages claims. 2012) See Lefemine v. Wideman, 303-04 (4th Cir. (recognizing that "[c]laims for declaratory and injunctive relief are Prince George's Cir. 672 F.3d 292, 2012) not affected by County (recognizing qualified Public that immunity"); Schools, "the 15 666 Eleventh F.3d Lee-Thomas 244, Amendment 249 v. (4th permits suits for prospective injunctive relief against state officials acting in violation notwithstanding separate seek a Sheriff immunity permanent action, the of federal Watson's apparent doctrines, because injunction to Court moves on law"). the remedy Accordingly, invocation Injunction of two Plaintiffs alleged retaliatory analyze to the whether Injunction Plaintiffs have clearly demonstrated a likelihood of success on their First Amendment claims. 950, 962-63 (10th Cir. See Kikumura v. 2001) (indicating Hurley, F.3d because that 242 the primary relief sought by the plaintiff was permanent injunctive relief, the doctrine of qualified immunity did not impact the "likelihood of success" calculus). 3. Application of the Goldstein Test Although it is well-established that a citizen does not relinquish all of her First Amendment speech rights by accepting public employment, possesses greater "the state, authority as to an employer, restrict the undoubtedly speech of its employees than it has as sovereign to restrict the speech of the citizenry as a whole." (4th Cir. 2000) Urofsky v. (en banc). Gilmore, Accordingly, 216 F.3d 401, 406 when analyzing the free speech protections afforded to a public employee, the Court must ultimately employee citizen balance with governance. the those Id. interests of (citing the of state Connick, 16 the in 461 public promoting U.S. at as a efficient 142). The threshold question Plaintiffs can First speech lawsuits searches rights a whether retaliation alleging implicates Goldstein, determining demonstrate Amendment initial in is in the violation whether the unconstitutional matter of Injunction of filing their of workplace "public the strip concern." Id.; 218 F.3d at 352. a. Prong One - Speech on a Matter of Public Concern The first step in the multi-faceted Goldstein test requires the Court case, the to determine lawsuit whether that the allegedly speech caused at the issue (in retaliation) this was made "as a citizen upon a matter of public concern" or whether it was made interest." "as an McVey v. employee Stacy, 157 about a matter F.3d 271, 277 of (4th Cir. see Ridpath v. Board of Governors Marshall University, 292, 316 n.26 (4th Cir. 2006) personal (indicating that 1998); 447 classifying F.3d the speech as involving a "public concern" or a "personal interest" is the "threshold question"). If a court determines that a public employee's speech "does not touch upon a matter of public concern, the infringing any state, First as employer, may regulate Amendment protection." at 406; see Stroman v. Colleton County Sch. 156 (4th Cir. 1992)) complaints about other matters of (explaining that interest 17 do Urofsky, Dist., without 216 F.3d 981 F.2d 152, "[p]ersonal conditions of employment, personal it grievances, or expressions about not constitute speech about matters of public concern that are protected by the First Amendment, but are matters more immediately concerned with the self-interest of the speaker as employee"). Whether speech addresses a matter of a matter content, the of personal form, whole "must be speech Connick, involves a 461 U.S. matter at of addresses "an issue of social, political, community." Id. "interesting" Such inquiry, the Baker v. McCall, Va. 6, 2012) Feb. (4th Cir. 1995)) [speech] would occurred], determined and context of a given statement, record." employee's interest public concern versus subject ~F. matter Supp. of 2d , the A public concern if it or other interest to a does not turn speech is. 2012 WL 363963, (quoting DiMeglio v. on how Id.; at *9 see (W.D. Haines, 45 F.3d 790, 805 (recognizing that "[e]ven if the subject of the arouse 'the however, the as revealed by 147-48. public by interest mere fact that in the the small topic of town the [where it employee's speech was one in which the public might or would have had a great interest is of little moment'") (emphasis added). Whether the speech occurs inside or outside of the workplace is also not determinative, as an individual can speak as a private citizen while and at work, can while away from the workplace. speak as a government Urofsky, forum in which the speech is made, inquiry, as internal non-public 18 216 F.3d at 406. is however, complaints employee are The relevant to the less likely to garner constitutional statements. 2488, 2501 The of Duryea, Circuit of case the touches Galloway, Circuit than Pa. publicly v. disseminated Guarnieri, 131 S. Ct. (2011). Fourth thereof, speech Borough protection on a articulated specific matter 483 F.3d 258 of the for test public (4th Cir. 2007). expressly declined contours, determining concern in or whether Campbell In Campbell, to "articulate any lack v. the Fourth sort of bright- line rule" as to whether sexual harassment claims are matters of public concern, appear suggesting that such a universal rule does not "consistent [lower courts] with engage the in a Supreme Court's case-and directive fact-specific that inquiry to determine" if a public employee's speech addresses a matter of public concern. Supreme nature Court of Id. have such precedential at 269. expressly test Both the Fourth Circuit and acknowledged that necessarily results in See at 270 (noting guidance. id. a the lack flexible of that clear Fourth Circuit precedent has "provided little concrete guidance on the question of ... when a [sexual discrimination] complaint amounts to an issue of public concern"); City of San Diego, Cal. v. Roe, 543 U.S. 77, 83-84 (2004) (noting that "the boundaries of the public concern test are not well defined"). whether the public would be "truly employee's speech remains a "subtle, 19 concerned" with Therefore, a public qualitative inquiry" that must be performed in every case, even where the speech at issue criticizes public officials in the handling of matters directly impacting public Mills Steger, 64 Fed. that "[o]ne of v. (explaining whether speech safety. is on Goldstein, Appx. the public 218 864, F.3d 871 at 352-53; (4th Cir. see 2003) critical factors in determining private matters is or whether it concerns matters of public debate or whether it reflects merely personal pique and internal employment issues"). More recently, the Supreme Court and the Fourth Circuit have added some clarity as to the importance of the forum of the speech, indicating that internal employee complaints implicating workplace on-the-job favoritism claims rarely implicate a matter of public concern. Guarnieri, 131 S. Ct. *3 at duties 2501; advancing Brooks v. (4th Cir. case of or July 9, Arthur, 2012) . F.3d , This speech focusing solely on treatment of a single individual. *6-7. In Guarnieri, 2012 WL 2695418, is particularly true the at in the alleged unfair workplace Brooks, 2012 WL 2695418, at the Supreme Court noted that "[a] petition filed with an employer using an internal grievance procedure in many cases advance a will not political seek or to communicate social employment context" and that point such to the of view public or beyond to the internal complaints involving "nothing more than a complaint about a change in the employee's own duties does not relate to 20 a matter of public concern." Guarnieri, 131 S. Ct. at 2501. Likewise, in Brooks, the Fourth Circuit stressed the private nature of "individualized" internal workplace parties more." complaints involved," Brooks, noting remains consideration statement, at 147-48, are that such unchanged: of the "significant "[t]he 2012 WL 2695418, Notwithstanding test that First chiefly Amendment the the demands at *8. recent the "content, cases, the ultimate form, and applicable inquiry context of as revealed by the whole record," Connick, with to ultimate question being legal requires a given 461 U.S. "whether the 'public' or the 'community' is likely to be truly concerned with or interested in the particular expression," Goldstein, 218 F.3d at 352 (internal quotation marks and citations omitted) . The Fourth Circuit's most recent commentary on such test appears in the Brooks opinion: As to content, . . . Connick directed us to scrutinize the comments to assess whether they are intended "to evaluate the performance of the office"-which would merit constitutional protection-or merely "to gather ammunition for another round of controversy" with superiors-which would not. Id. at 148. The Connick Court was explicit on this point: "When employee speech concerning office policy arises from an employment dispute concerning the very application of that policy to the speaker, additional weight must be given to the supervisor's view" that the employee's speech addresses solely a private dispute. Id. at 153. 21 [Considering the form and context], [a]s the Supreme Court has emphasized, "[t]he forum in which a petition is lodged will be relevant to the determination of whether the petition relates to a matter of public concern." Guarnieri, 131 S. Ct. at 2501. . . . The Court stressed that the right of a public employee "to participate as a citizen, through petitioning activity, in the democratic process ... is not a right to transform everyday employment disputes into matters for constitutional litigation in the federal courts." Brooks, Id. at 2501. 2012 WL 2695418, Here, although Injunction are Goldstein a close question, Plaintiffs' unconstitutional official at *5. strip test as federal searches sufficient they the to first matter of that alleging by the a finds lawsuits orchestrated satisfy implicate Court an elected prong of public the concern. The Court reaches such conclusion after conducting the required "subtle, qualitative inquiry" allegations. Goldstein, 851 717 F.2d 714, into the case 218 F.3d at 352; (4th Cir. 1988) specific factual see Jackson v. Bair, (indicating that the elements of a public employee's speech rights "are subtle and difficult [in] application, precisely because of the obviously conflicting interests and relationship"); values Stickley v. (4th Cir. 2011) becomes matter a boundary involved (noting confining of a in Sutherly, that public public "the the 416 line concern is official's discern"). 22 public Fed. employment Appx. marking when blurry, behavior and is 268, 272 something thus hard the to As the factors, Court's the Defendants' matters review each Court first each of each original Injunction self-interest to (1) filed a separate suit; based on the factors suits Plaintiff's is in pursuing each balancing instant the Complaint Plaintiff since: is reviews categorization restricted of finding that as personal Injunction favor involving interest. isolation relief competing suggests based on Plaintiff A that her own originally (2) each suit sought monetary damages to remedy personal suffering; (3) each suit alleged misconduct on a single the occasion; phrased future in a and manner treatment Martin, 355 complaints (4) of F.3d that the 766, regarding requested limits filing 776 such injunctive relief Plaintiff. (4th Cir. employment to See 2004) conditions, relief Defendants' Love-Lane (indicating or grievances, are not matters of public concern); is personal v. that work Brooks, 2012 WL 2695418, at *5 (classifying the internal workplace complaints at issue as "of a purely private nature" because such complaints do not seek to governmental actual inform the responsibilities, wrongdoing or a to the public, employee is upset with addition to the would his above, of do breach released In public a not seek of to to discharge bring the public merely convey that to trust, present none failure of conditions the of light and a if single employment). Plaintiffs expressly allege the existence of an unconstitutional Jail search policy, 23 nor suggest that there was an impending risk unconstitutional searches of the named Plaintiff, contractor or employee, at 270 or anyone else. Cf. of further any other Jail Campbell, 483 F.3d (indicating that the plaintiff's complaints about sexual harassment, "which involve improper treatment of members of public as well as [other] female officers, interest and concern to the public") would be the of genuine (emphasis added). Notwithstanding the above factors favoring Sheriff Watson's position, Court based finds Injunction on that the there causing concern. First, at issue, was favor considering the is the United States not Morrison, lawsuit involves the is the most in the the speech of public "context" that federal the of speech the that lawsuit nature a Although of distinguishable are unlikely to of alleging that in violation of the Constitution public is that F.3d 868, "the weighing the that and ("the Constitution"). wrongdoing 497 Court, matter a "form" observes acted Complaints alleged factors the retaliation was not an internal grievance, dispositive, workplace grievances before demonstrate instead a publicly-filed Plaintiffs' any to Court an elected state official of record sufficient retaliation allegedly caused the but are Plaintiffs' allegedly speech complete state actor. 872 (8th Cir. formal method 24 2007) of the such fact Injunction from internal inform the public of Compare Gunter v. (recognizing that a speech"), with Brooks, 2012 WL 2695418, internally filed at *5 (indicating employment grievance that relief generally through "does not an seek to communicate to the public or to advance a political or social point of view quotation marks and F.3d 1315 Brown, 88 internal beyond letter to the employment citations (4th the context") omitted); Cir. 1996) sheriff see also (finding from (internal Cromer that employees v. even raising an broad allegations of racial discrimination within the sheriff's office was "an expression of concern about the ability of the sheriff's office to carry out thus, was Notably, speech the typically to petitioners' its vital public mission effectively," and "as citizens, purpose address of "the employer, sovereign." and merely internal government rather Guarnieri, concurring in part an not than 131 S. employee in its its Ct. dissenting as employees"). grievance capacity capacity at 2506 in part). is as as the their (Scalia, J., In contrast, the purpose of each of the original federal Complaints appears, least in allegation his part, that authority e.g., Compl. the a in M Watson and his of to be to powerful direct 23-24, but seek state official violation 53-54, deputies searches, publicly of ECF No. had actual conducted 25 redress the 1 knowingly on the exercised Constitution. See, (alleging that Sheriff knowledge of them based at anyway) ; the Tr. illegality 5-6, 8, 13 (indicating that Injunction Plaintiffs' intent in filing suit was to protect others from similar abuses). Although isolation, single each focuses event Plaintiffs unconstitutional the at on search a policy workplace, same day, do not policy, that by complaint practice a same a the publicly allege Watson's that about alleging collective Sheriff in nine expressly such considered collectively all orchestrated or suit, individual's the the they inference by Plaintiff's single conduct Although motivated a suit unconstitutional support on occurring filed official. Injunction did elected a formal allegations conduct not was individually analyze the level of suspicion to search each jail contractor, as appears to be required by the Constitution. F.3d at 558 established reasonable (recognizing that intrusive suspicion").9 that, in prison The 2008, employee nine See Braun, it was "clearly searches publicly 652 filed require federal Complaints thus collectively allege a far more sweeping failure to comply with the dictates of the Constitution private internal complaint of a single employee. 483 F.3d 269-70 are more likely (suggesting to that implicate sexual a 26 a See Campbell, harassment public 9 The fact that Sheriff Watson testified conducted not only on contract workers but further supports the inference that others allegedly unconstitutional policy/practice. than would concern complaints when the that strip searches were also on "jail officers," were at risk based on an Tr. 56. allegations involve individuals); Brooks, facts that that before the grievance 2012 court "public department-wide repeat discrimination WL with procedures"; and at the facts speech concern" channel"; 2695418, in (2) (3) was impacting *5 in (contrasting Cromer, Cromer: made (1) the year after Injunction the challenged Plaintiffs that the noting "addressed an employee concerns of larger group of officers within the department") . although the Injunction Plaintiffs' and "outside "represented numerous a Furthermore, lawsuits were filed almost a searches were testified at performed, the the injunction three hearing all indicated under oath that their purpose for filing suit was so that something like this would never happen to anyone else, and such stated goal was not challenged by Sheriff Watson at the hearing. Tr. 5-6, 8, 13.10 10 The Court's consideration of the nature of the speech at issue is guided in part by, but not controlled by, the apparent motives for the speech. Any contention that "an individual's personal motives for speaking may dispositively determine whether that individual's speech addresses a matter of public concern" appears in conflict with the Supreme Court's ruling in Connick and is "'contrary to the broader purposes of the First Amendment'" which is "'concerned not only with a speaker's interest in speaking, but also with the public's interest in receiving information.'" McVey v. Virginia Highlands Airport Comm'n, 44 Fed. Appx. 630, 638 (4th Cir. 2002) (quoting Chappel v. Montgomery County 1997)); Fire see Protection Sousa v. Dist. Rogue, No. 578 1, 131 F.3d F.3d 164, 564, 174 574 (2d (6th Cir. Cir. 2009) (indicating that, in light of Connick, a majority of Circuits hold that a plaintiff's motivation in seeking redress for workplace grievances is not dispositive of whether the subject of such complaint implicates a matter of public concern, and thus holding that "it does not follow that a person motivated by a personal grievance cannot be speaking on a matter of public concern"). 27 Next, considering Plaintiffs' conduct speech that complained Complaints the of plainly allegedly in the involves ordinary workplace disputes discord." at 2501 "to Goldstein, of Injunction far like more constitutional litigation Rather, publicly here elected subordinates, employment in Plaintiffs' serious the state knowingly federal Injunction the not original than "interpersonal 131 S. Ct. have the right into matters courts") Plaintiffs constitutional violated or the matters see Guarnieri, disputes the Injunction retaliation, "favoritism" 218 F.3d at 352; everyday the caused (stressing that public employees do transform added). "content" (emphasis allege officer, Constitution for that and by a his forcing numerous jail contractors to either immediately submit to a full body strip and visual body cavity search, to work at the Jail. that See Campbell, a sexual harassment might well complaint or lose their ability 483 F.3d at 269 (suggesting "by a single employee . . . constitute a matter of public interest-for example, where a high-ranking public official is the offender") (emphasis added). Furthermore, implicates the implementation constitutionally the content public interest of type a unfounded, of of because 28 Plaintiffs' it alleges intrusive search could public's viewpoint regarding the the significantly speech the broad that, impact if the elected Sheriff's judgment and exercise of his broad powers. Cf. Connick, 461 U.S. at 148-49 (distinguishing speech involving internal workplace matters from speech implicating a matter of "public concern," and noting that the internal workplace light on seek to . . . bring to actual or potential wrongdoing or breach of public trust the To speech "did not part better of [the defendant] illustrate such and others") point, the (emphasis Constitution added). may be violated when, in the field, a low-ranking police officer makes the erroneous, but innocent, split-second decision to pat-down a single suspect for weapons officer reasonable However, thus lacks a apprised far of, more an unconstitutional powerful search remove to undergarments, cavities. and instantly that all perform legitimate by required to clothes, when such interest premeditated of submit The Court to orchestrated officer contractors her such pat-down. likely to be offended by, and allegedly constitutional or suspicion the public is far more have lawsuits over his their a and an at least all search of being knowingly elected clothing, visual in state- nine Jail of their their body further notes that the filing of the nine generated front page news, apparently not only because the "subject matter" of the suits were interesting, but because Sheriff the Watson's Maciariello v. citizenry alleged Sumner, was misuse 973 F.2d 29 legitimately of his 295, concerned broad 300 powers. (4th Cir. about See 1992) (agreeing with the district court that "an allegation of evidence tampering by a high-ranking police officer is a matter in 210 which the public F.3d 905, 910 a vital enforce of (quoting Brockell v. Norton, 1984)) (explaining that "the 'public v. and truly Brawner (5th Cir. by when 1988) public therefore it deserves concerns with or Although the Court in determining Richardson, is a Tex., matter constitutional the 855 operation of public protection, of a police The community is thus "likely to interested carefully whether of (noting that "[t]he disclosure officials (emphasis added). concerned City expression" at issue in this case. factors Martin, law'"); department") be v. 2000) (8th Cir. 191-92 especially Sexton integrity of those commissioned to misbehavior interest interested"); interest in the the F.2d 187, be (8th Cir. 732 F.2d 664, 668 has should the in the particular Goldstein, 218 F.3d at 352.n weighed speech all of causing the the above alleged 11 Controlling case law demonstrates that speech highlighting lenient security policies at a prison, or inadequately trained emergency personnel, clearly implicate a matter of public concern because such government failures create a direct threat to public safety. See Jackson, 851 F.2d at 716, 720 (speech highlighting lenient security policies at a prison); Goldstein, 218 F.3d at 355 (speech highlighting lack of training for emergency personal). Here, the Sheriff's alleged failure to uphold the United States Constitution does not fit neatly into the category of cases involving direct threats to public safety because his actions were based on alleged overzealous, as opposed to lenient, internal jail procedures. However, the public nevertheless has an interest in being informed when a high-ranking jail official, such as a sheriff or warden, allegedly abuses his power. Absent reporting from public employees or contractors, individuals in the unique position to witness such misconduct, a jail official's abuse of power could continue unchecked. 30 retaliation involves a matter of public concern, in this case are the involved was the public contrasted Jail with an all facts: filing internal contractors unconstitutional following a employee spoke practice, of up as (1) that federal grievance; to the (2) that an with and it speech lawsuit, challenge contrasted specific to a single public employee, most compelling a as nine alleged grievance is undisputed at this time that at least some of the Injunction Plaintiffs filed suit to else; (3) prevent that the the alleged abuses speech at from happening to issue alleged invasive anyone strip and visual body cavity searches knowingly conducted in violation of the Constitution; and (4) the state constitutional officer, speech at issue alleged that a directly elected by the public and responsible for keeping the peace and maintaining inmates at a city jail, was abusing his power, thus calling his judgment into question. See Jackson, 851 F.2d at 720 ("Form and context may of course in some cases give special color to speech, one way spectrum, or the . other . . central aspect.") This [b]ut factors discussed public content, concern-private subject-matter, is grievance always the causing the implicates a matter of public concern, was conclusion, alleged retaliation only the (emphasis added). Court's reached on tipping it after careful above. that the speech consideration When 31 considered of on the a competing theoretical spectrum ranging favoritism aimed in solely Plaintiffs' from the at a purely workplace, exposing to personal a government true grievance "whistleblower" corruption, the about suit Injunction suits appear to fall somewhere in the middle. Some aspects suggest that the Injunction Plaintiffs were only seeking personal redress embarrassment, based and on some each aspects Plaintiff s suggest that very the personal Injunction Plaintiffs' speech is the type of public challenge to an elected official's alleged abuse unquestionably has an of power to which the interest in being apprised. electorate In the end, the content of the speech is more compelling than the speakers' express the or implicit Injunction Goldstein. intent, Plaintiffs' and the suits Court thus satisfy the concludes first In reaching this preliminary conclusion, that prong the of Court recognizes that, as the record is further developed, Plaintiffs may than demonstrate evident an even stronger from the current record. public interest On the other hand, that Defendants may demonstrate a weaker public interest in the disputed speech based on the internal investigation the Jail, searches. of illumination of details the into results of See Florence v. Burlington, "correctional 132 S. officials regarding Sheriff Watson's the importation of contraband which purportedly prompted the into strip Board of Chosen Freeholders of County Ct. must 1510 be 32 (2012) permitted to (indicating devise that reasonable search policies to detect and deter the possession of contraband in their evidence facilities" in the and record that to "in the indicate absence that the of substantial officials have exaggerated their response to these considerations courts should ordinarily defer to their expert judgment (quotation marks and citations omitted). as alleged in each live testimony demonstrate the at speech hearing, at are issue such matters") The preliminary facts, original Complaint and the in as presented through however, touches a sufficient matter of to public concern.12 b. Prong Two - Balancing Government vs. Citizen Interest The second prong of the Goldstein test, to as 'Pickering balancing,'" Ridpath, "commonly referred 447 F.3d at 317, requires the Court to determine "whether the degree of public interest in the employee's statement was responsibility to 'effective efficient' and manage . . . outweighed by the employer's its internal service to the affairs and public," provide Daniels v. 12 Although the Court makes a preliminary finding that the speech at issue relates to a matter of public concern, it notes that the first prong of Goldstein might be satisfied if speech only "arguably" relates to a matter of public concern. See Stroman v. Colleton County School Dist., 981 F.2d 152, 158 (4th Cir. 1992) ("When speech arguably relates to a matter of public concern, we prefer to apply the approach taken in Connick and weigh whatever public interest commentary may be contained in the [speech] against the state's dual interest as a provider of public service and employer of persons hired to provide that service.") (emphasis added); cf. Connick, 461 U.S. at 146 (indicating that a court need not consider the reasons for an employee's discharge if the "employee's expression cannot be fairly considered as relating to any matter of political, social, or other concern to the community") (emphasis added). 33 Quinn, 801 this case, F.2d 687, then, 690 (4th Cir. 1986) (emphasis added). In the Court weighs the degree of public interest in the allegations contained in the original Complaints filed by the Injunction employees abused Constitution, Jail's Plaintiffs, their i.e. power that by Sheriff knowingly Watson and his disregarding the against the Sheriff's responsibility to manage the internal affairs service to the public. and provide effective and efficient As outlined by the Fourth Circuit, some of the many factors relevant to this inquiry include whether the employee's speech "impairs discipline by superiors," "impairs 'harmony among co-workers,'" "'has a detrimental impact on close working relationships,'" "interferes with the operation of the agency," and whether it is "communicated to the public or to co workers in private." U.S. at 388-91). McVey, [the (quoting Rankin, 483 Additionally, the Fourth Circuit more recently noted in Ridpath that: that both 157 F.3d 278 "A majority of the McVey panel observed Fourth Circuit] and the Supreme Court have also included the value of the employee's speech to the public in the Pickering balance." 461 U.S. employer] at 152 may substantially be Ridpath, (cautioning 447 F.3d at 317 n.28; see Connick, that "a if the necessary involved matters of stronger showing employee's public [by the speech concern"); more Goldstein, 218 F.3d at 355 (recognizing that matters "of the highest public concern" are to be given "the highest level of First Amendment 34 protection"); Daniels, 801 F.2d at 690 (indicating that courts should compare "the degree of public interest" in the speech at issue with the employers' need to manage its affairs and provide efficient public services) The Supreme Court (emphasis added). and the Fourth Circuit have expressly recognized the inherent difficulty in performing such balancing, and for reasoned, relevant factors. Jackson, U.S. the need at 150 specific 851 F.2d at consideration employer "This is so because both interests' are When performing such balancing, alleged 461 retaliatory action 'public concern' relative kind and degree in different situations." 717. all see Connick, 717-18; of (noting that "particularized balancing" is required, but "difficult") . 'public case "is notions, taken varying Jackson, if the in and in 851 F.2d at public employer's response to merely threatened rather than actual disruption of employer interests, the reasonableness of the employer's perception must be weighed in the balance." required to employer's Id. at 718. "await actual justification Although a public employer is not disruption for before preemptive acting," action "objectively justifiable under the circumstances." Adding a further gloss to such balancing the fact that the public employer is in such must be Id. this case is a law enforcement officer responsible for overseeing and maintaining order at a city jail. See Maciariello, 973 F.2d 295, 300 35 (4th Cir. 1992) (indicating that because discipline is demanded within a police force, "greater latitude is afforded to police department officials in dealing with Plaintiffs and such balancing in this case employment because preservation prisons. dissension of in their The Injunction contractors working at the position necessarily impacts the Pickering the were ranks"). public security, has a order, paramount and interest control at Jail, in the jails As explained in detail by the Fourth Circuit: [C]ourts must give weight to the nature of the employee's job in assessing the possible effect of his action on employee morale, discipline or efficiency. . . . In analyzing the weight to be given a particular job in this connection "nonpolicymaking employees can be arrayed on a spectrum, from university professors at one end to policemen at the other. State inhibition of academic freedom is strongly disfavored. In polar contrast is the discipline demanded of, and freedom correspondingly denied to policemen. . . . Viewing thus the employee's status, the courts, under the second part of the Pickering-Connick test, must accord what the Supreme Court in Connick characterized as "full consideration of the government's interest . . . 'in promot[ing] efficiency and integrity in the discharge of official duties, and [in] maintain[ing] proper discipline in the public service.'" 461 errors which the for lower U.S. court at the in 150-51. In Supreme Court that case fact, one of the in Connick chided was that "full consideration" of those interests had not been given. In a case such as this, involving as it does employment in a police department, it is important, as has already been suggested, to take account of the special character of such department in determining the matter of "the government's interest." Police departments "[r]egardless of the historical origin," are "para-military organizations" and the free speech rights of employees in those departments must thus be 36 and evaluated with the organization in mind. Jurqensen v. 1984) special Fairfax County, (internal Va., citations Jackson, 851 F.2d at rightly considered 745 F.2d omitted) 722 (noting that character of 868, 880 (emphasis that employment the (4th Cir. added); "[t]he in the district prison see court context presents special considerations favoring the public employer in the balancing process"); (recognizing that Maciariello, "[p]olice are at 973 the F.2d at restricted end 300 of the spectrum because they are 'paramilitary'-discipline is demanded, and freedom must be correspondingly denied").13 The fact employees" cannot, that working at however, 880; see Cromer, a police community and its "speak[ing] in their agencies"); approach that Injunction jail as would 88 F.3d for a law a universal at department officers, up 1327 must trump card "public over Jurgensen, (recognizing have creating the a broad-based Goldstein, 218 F.3d at permit 355 fire such 745 F.2d that, respect public any impermissibly are enforcement officer against 13 In conducting such balancing, Plaintiffs officers. Plaintiffs First Amendment rights. effective, officers a operate public employees' at the to of interest be the in discrimination (rejecting an companies or the Court recognizes that Injunction are medical contractors, However, as discussed below, and not themselves police Sheriff Watson testified that the Injunction Plaintiffs worked unsupervised with inmates, demonstrating that a high-level of trust and disciple was nevertheless demanded of them. 37 police departments to "quash complaints affecting public safety under the general disruptions"). aegis of 'camaraderie' and the avoidance of The Court must therefore still carefully balance the competing interests of the state with that of the speaker. However, in doing so, the powerful public interest in a safe and secure jail, and the difficult discretionary decisions that are inherent in overseeing such a facility, acts to some slight degree as a thumb on the scale in favor of the public employer. Here, for the reasons discussed below, the Court finds that the Injunction Plaintiffs have not, at this time, demonstrated a likelihood of success on the second prong of the Goldstein test. The following ultimate considerations conclusion. significantly First, the impact Court the Court's recognizes that Injunction Plaintiffs are not merely seeking the "extraordinary" remedy of seeking that a a typical 2012 WL injunctive most injunction than 120076, 333 on other grounds by, (2006)) preliminary rather Antitrust Litig., 388 injunction, disfavored modifies, Perry, preliminary (noting relief extraordinary preserves, at F.3d *4 (quoting 517, 525 the In but mandating status re (4th Cir. eBay Inc. v. MercExchange, that "'is any form disfavored, of and circumstances.'"). mandatory relief sought here instead are action quo. See Microsoft Corp. 2003), abrogated L.L.C., mandatory warranted Second, 547 U.S. preliminary only the in the form of warrants even stronger caution as 38 the Injunction Plaintiffs seek reinstatement of a Jail clearance move Jail that would without "routinely apparently permit interference. make close them Sheriffs decisions in to and the security about prison exercise of the wardens the broad authority that necessarily is delegated to them," and "[s]econd- guessing such judgment calls fearless decision-making,' would and inhibit displace 'principled experienced administration with more removed judicial policymaking." 652 F.3d at 408 560 (quoting Richardson v. McKniqht, (1997)). The likely results of guessing such difficult judgment calls Id. Accordingly, before granting 521 judicial and local Braun, U.S. forays 399, second "would not be salutary." such relief, the Court must be confident that the requisite balancing tips in the Injunction Plaintiffs' favor. Third, record demonstrates concern in violations a sufficient, Plaintiffs' by the the Court notes that the preliminary Sheriff and the Court considers but speech for not overwhelming, asserting ordering "the value of the public in the Pickering balance." the public constitutional searches at issue, the employee's speech to Ridpath, 447 F.3d at 317 n.28. i. Workplace Harmony Among part of the its employees' many relevant Pickering factors balancing is this the Court extent speech impairs harmony among co-workers, 39 considers to which as the and/or has a detrimental impact heightened in a on working law relationships. enforcement agency Such or jail concern is environment. Here, the fact that the speech at issue took the form of federal lawsuits, whereby themselves deputies, Jail against medical Sheriff contractors Watson and publicly numerous aligned Sheriff's on its face suggests some impairment to the internal harmony and work environment at the Jail. See Guarnieri, 131 S. Ct. a at form 2496 of a (acknowledging lawsuit particularly against contractors substantiated, such the "[w]hen government disruptive"). testified under oath that other that and the allegations individuals were it contraband would takes the it may employer, Furthermore, bringing that petition be Sheriff Watson regarding nurses into negatively permitted to remain the Jail impact at the and were morale Jail if because they would "have a different set of rules to go by" than the other employees and contractors. Watson provide did not Injunction the Plaintiffs' lawsuits allegations Sheriff illegal security filed, unequivocal Plaintiffs contraband Plaintiffs clear as of contractors' was Injunction were a did not into offer clearances opposed his in the 56. to were contention fact Jail. any evidence 40 Although Sheriff explanation misconduct in were Tr. as were after why revoked after the substantiated, the that the 58. challenging some the of responsible Tr. to some for of bringing Injunction the accuracy of such assertion, suggesting that nor did workplace they offer harmony any would rebuttal not be evidence negatively impacted by their filing of Complaints in federal court.14 ii. Interference with Agency Operation The Court also considers whether a public employee's speech impedes the operation performance of the of agency. her duties Sheriff or interferes Watson with the testified that the Plaintiffs work unsupervised with inmates and that, in light of the litigation, he no longer felt that the Injunction Plaintiffs could be indicated Injunction trusted that to the work Jail Plaintiffs alone. could not returned Tr. be 55. Sheriff efficiently to work because run Watson if he would the feel obligated to ensure that an escort be assigned to each nurse. Tr. 55-56. When asked on direct examination why he revoked the Injunction Plaintiffs' security clearances, Sheriff Watson twice indicated that inmates. he did so out Tr. 52, 54. of concern for the safety of the Sheriff Watson explained that some of the inmates that accused the nurses of importing contraband into the Jail were still housed at the Jail and appropriate to let the nurses interact, that it would not be unsupervised, with these 14 Injunction Plaintiffs presented very limited testimony in support of their motions, with three Injunction Plaintiffs answering very basic questions at the injunction hearing about their prior, and current, work schedules. The direct examination of all three Injunction Plaintiffs amounted to a combined total of less than four transcript pages. Furthermore, as noted above, none of the Injunction Plaintiffs were recalled to the witness stand to offer rebuttal testimony challenging any of Sheriff Watson's sworn statements. 41 individuals because the nurses might learn their identities and retaliate Sheriff against Watson them. again Tr. stated 54. that During the cross-examination, potential danger to the inmates from the Injunction Plaintiffs was the reason he revoked their security clearances, and that, from his perspective, until the lawsuits were filed, 59. Sheriff Watson the inmates were not indicated likely that the nurses might against them, that the in jeopardy. lawsuit made it Tr. more know which inmates had spoken out but he failed to explain his reasoning for such somewhat confusing conclusion. Tr. 60. Although Sheriff Watson did not offer specific details demonstrating a risk of danger to any inmate, Injunction contradictory evidence, the Sheriff's Plaintiffs failed to present or otherwise undermine the legitimacy of contention that one or more inmates might have been in danger. While Sheriff Watson's explanation regarding his motivation for revoking the security clearances failed to fully explain the timing of his action,15 he did testify that allegations against certain nurses regarding the importation of contraband were fact substantiated. Tr. he knew that some of the 56. Sheriff Watson in further stated that Injunction Plaintiffs were responsible 15 Sheriff Watson's alleged comments to the news media, if admissible, have the potential to impact the finder of fact's credibility determinations in this case with respect to the Sheriff's explanation of his decision to revoke Injunction Plaintiffs' security clearances. 42 for importing contraband. Tr. 58. not explanation provide reasoning a complete or the Injunction rebuttal timing Plaintiffs to Sheriff for have Although such statements may his to Sheriff decision, failed Watson's as to as of this offer assertions Watson's any that: time, evidence (1) some in of the Injunction Plaintiffs seeking mandatory relief in the form of reinstated contraband; security and clearances (2) that were responsible inmates still at for importing the Jail had implicated some of the Injunction Plaintiffs in wrongdoing and might therefore be at risk. Although it would appear, to an outsider, that a more prudent course would have been for Sheriff Watson to individually contractor for revoke which security allegations substantiated, the Court cannot, at conclude this time, that clearances of based on for wrongdoing any were the incomplete record Sheriff Watson's justification for his judgment call regarding jail security and safety of inmates was unreasonable. Jurqensen, competing Circuit] the 745 F.2d interests do[es] employee's not See Maciariello, at 879) under F.2d (noting that Pickering require speech 973 the actually and public at 300 when "balanc[ing] Connick, employer disrupted (quoting [the to efficiency, Fourth prove that but only that an adverse effect was 'reasonably to be apprehended'"). 43 the iii. In the this Strength of Competing Public Interests addition to the above, the Court's strength of the public interest case with the strength of in the the operating a safe and secure jail. balancing considers speech at issue government interest in in The facts of this case differ from prior precedent involving a risk to the public from unsafe fire department practices, Goldstein, failure to safely maintain a prison, 720. Here, alleged the speech overzealousness misconduct that, danger inmates, Jail Although the to public.16 knowing whether issue in attempting workers, elected to to 352-53, out increase and certainly has or F.2d at 716, Sheriff root visitors, official at 851 challenged acted public F.3d Jackson, at if occurring, an 218 Watson's internal the risk of the general an interest his duties performs in in compliance with the Constitution, the alleged violation must be considered in the context of the individual case. Here, Sheriff 16 It is certainly obvious that importation of some contraband into a jail is dangerous because prisoners routinely fashion all manner of items into weapons. While it may not be immediately obvious that importation of some contraband, such as a mobile telephone, can endanger the public, case law is replete with instances of prisoners seeking to avoid recording technology on jail/prison telephones in order to continue their criminal activity. See Thomas v. Owens, No. 9:llcv443, 2012 WL 591791, at *2 (D.S.C. Feb. 23, 2012) (quoting Robinson v. Warden, 250 Fed. Appx. 462, 463 (3d. Cir. 2007)) (indicating that cell phones "permit an inmate to circumvent the telephone monitoring system, and may be used as a tool which coordinates or facilitates escape and the introduction of illicit materials or drugs"); 28 CFR § 541.3 (2011) (defining prohibited acts and available sanctions for federal prisoners and classifying an inmate's possession of a "portable telephone" as a prohibited act of the "Greatest Severity Level"). 44 Watson's alleged violations occurred on a year ago. Furthermore, hearing, constitutional any Jail safety, based on the record evidence from the violation in was made in the importing contraband into the Jail. Stated slightly differently, put more than name of based on a "reliable source" implicating nurses and contractors concerned a single day, with an elected Jail employees, Tr. 52-53. the public would likely be far more Sheriff contractors, whose lax visitors, security and policies the public at- large at risk than a Sheriff who allegedly, on a single day, based his on reliable conducting overly contractors. nature of invasive Accordingly, the environment, Sheriff's information, overstepped searches based Injunction on on the Plaintiffs' authority by Jail employees and record evidence, the employment in a Jail the lack of any rebuttal evidence challenging the testimony, and the extreme nature of the mandatory relief requested in light of the Sheriff's sworn testimony that he had credible Plaintiffs, demonstrated evidence implicating the Court finds that that they will some of the Injunction Injunction Plaintiffs have not likely prevail on the Pickering balancing. The Court's ruling on this preliminary injunction in no way suggests that some or all of the Plaintiffs will not ultimately prevail in this particularly when case. a jail However, or 45 Pickering law-enforcement balancing, department is involved, record, is a difficult task even with a completely developed and it is infinitely more difficult with a limited pre- discovery record. although the question of See Jackson, "ultimate law for constitutional constitutional issue" the in court, litigation, law 851 F.2d at 718 Pickering "as is th[is] inevitably (indicating that balancing often the ultimate embrace[s] is case in issue[] subsidiary of issues pure historical fact which establish the context in which a of . . . the appropriate balance of competing interests must be legally assessed in particular additional will be complex legal impacted Plaintiffs may by regard searched. if, to Some (emphasis issues, the yet ultimately injunction claims without cases") including to be prevail as alleged, Similarly, immunity developed on their defenses, facts. Fourth Some Amendment strip searches were conducted individualized Plaintiffs added). suspicion may also as to each person prevail on their First Amendment claims since Sheriff Watson allegedly issued a blanket order that terminating filed suits were actions may developed. suit the against filed, not security and survive clearances him the Sheriff next all business Watson's scrutiny of after day individuals after explanation the record for such his is further It is therefore appropriate for all parties to "keep in mind that a preliminary injunction is intended to serve the limited purpose of preserving 'the 46 relative positions of the parties until a trial on the merits can be held'" and that "'the findings of fact and conclusions of law made by a court'" in ruling on a preliminary injunction "'are not binding at trial on the merits.'" Inc., 144 AttorneyFirst, Fed. Appx. 283, LLC v. 287-88, Ascension (4th University of Texas v. Camenisch, 451 U.S. Cir. Entertainment, 2005) (quoting 390, 395 (1981)). Although the preliminary facts demonstrate the possibility that at least at least some of the Injunction Plaintiffs may prevail on some of their claims, based on a preliminary and undeveloped record, the Court simply cannot find that any of the Injunction Plaintiffs have made a sufficient showing to warrant the extreme mandatory relief of security clearance restoration as sought in the pending motions. The Court acknowledges the fact that each day the Injunction Plaintiffs are barred from the Jail they are potentially suffering First Amendment retaliation. However, exigencies Injunction in restricted each this day Plaintiffs case, that have such an as not demonstrated speech injunction being is not any directly in place. It therefore appears that this is not a case where a preliminary injunction is necessary to maintain the status quo and preserve the Court's ability to render a meaningful judgment. the conclusion position of this to "'render case, the a meaningful Court will judgment still Rather, at be in a on the merits.'" Perry, 2012 WL 120076, at *4 (quoting In re Microsoft Corp., 333 47 F.3d at 525). demonstrate the type any of mandatory Injunction facts the in a form Court's that judgment the danger in in indicating light that one of the or warrant require the this to is disfavored the Sheriff's substituting a Court to judgment on prison official's Such failure is particularly unchallenged more failed See Braun, 652 F.3d at 560 judgment with that of the court). notable would would for likewise suggesting that that matters relating to Jail security.17 (recognizing have circumstances "extraordinary case" relief substitute or Plaintiffs preliminary individuals currently evidence barred from the Jail were responsible for bringing contraband into the Jail. Considering balancing, more the ultimately that as the above factors as a backdrop to the Pickering and recognizing the very real possibility that one or of record, the Injunction prevail, it the stands, Pickering Plaintiffs Court or the concludes that is insufficient balancing will to Defendants may the preliminary clearly demonstrate ultimately be resolved in favor of the Injunction Plaintiffs. c. Prongs Three and Four of the Goldstein Test The third prong of the Goldstein test requires a plaintiff to 17 establish that she "was deprived of a valuable government Such judgment calls take on added significance when notions of federalism come into play. Here, a federal court is being asked to overrule the judgment of a state constitutional officer about who can enter the Jail he supervises a matter arguably better left to a state court. 48 benefit or least, adversely would rights." prong tend affected to Goldstein, requires a chill 218 a a h[er] F.3d public "protected speech was in manner that, exercise at 352. employee of The to the First very Amendment fourth and establish 'substantial factor' take the allegedly retaliatory action." at final that the in the decision to Id. Because this Court finds that the Injunction Plaintiffs have not demonstrated their ability to succeed on the second prong of the Goldstein test, the Court Brooks, only 2012 judgment court's in briefly WL reviews 2695418, favor analysis of that at the these *8 final (affirming defendants was two limited entry based to prongs. the on of the See summary district first prong of McVey/Goldstein). i. Chilling First Amendment Rights Prong Three Sheriff Watson appears to take an incorrect legal position by contending that the Injunction Plaintiffs must demonstrate an adverse employment action tantamount to a satisfy the third prong of the Goldstein test. it is well-established that "a public "termination" to To the contrary, employer is prohibited from discharging or taking other adverse action against one of its employees constitutionally Edwards 1999) v. City on a basis protected of that interest Goldsboro, (emphasis added). infringes 178 Although 49 in F.3d the the freedom 231, Fourth employee's of 245-46 Circuit speech." (4th Cir. has not adopted an exhaustive the context of list of "sufficiently adverse actions retaliation," it has held that the "dispositive inquiry is whether the adverse actions complained of, particular circumstances from again comment on Fed. Appx. Party of exercising matters of the his case, concern." (4th Cir. 497 would U.S. 2001); 62, 76 under the deter the employee right constitutional public 241, 255-56 Illinois, of in publicly Saleh to v. Upadhyay, 11 see Rutan v. Republican (1990) (holding that an adverse employment action does not need to be the "substantial equivalent of a (suggesting that dismissal"); DiMeglio, 45 F.3d at 806 an employment action having a negative impact on an employee's "general duties, pay, benefits, or perquisites of office" could constitute a constitutional deprivation).18 Here, it Plaintiffs were is undisputed not terminated that although the from their positions Injunction at Correct Care, they are only compensated by Correct Care when they work a shift, and the preliminary evidence suggests that revocation of 18 As discussed herein in footnote 8, McVey and its progeny also do not require that a plaintiff demonstrate an adverse employment action equivalent to a termination. Rather, the McVey test presupposes a termination, likely because an alleged retaliatory discharge is the most frequently occurring fact pattern. Furthermore, although a "transfer" to a different work location with the same benefits and same pay might not amount to an adverse action, DiMeglio, 45 F.3d at 806-07, here, Sheriff Watson plainly did not "transfer" the Injunction Plaintiffs to another position with the same benefits and same pay. Rather, Sheriff Watson abruptly eliminated Injunction Plaintiffs' work placements at the Jail, leaving each of them temporarily without work and forcing most, if not all, to settle on less favorable job placements. 50 Injunction negative Plaintiffs' impact generate a Plaintiffs that on their steady appear Sheriff security clearances short-term income. able Watson's to or had long-term Accordingly, satisfy actions the would a tend to ability the third serious to Injunction prong by chill showing their First Amendment rights. ii. Protected Speech Causes Retaliation Prong Four As Watson to causation, testified Plaintiffs' the that security Court he did notes not clearances that although revoke because the they Sheriff Injunction filed federal lawsuits, he at least implicitly acknowledged that the filing of such suits was the "trigger" for his perception of an increased risk of harm to inmates. suits that Furthermore, purportedly created it was the filing of such an internal lack of trust/interpersonal discord that would be detrimental to Sheriff Watson's ability to effectively manage the Jail. the preliminary evidence suggests that Accordingly, Injunction Plaintiffs could likely satisfy the causation prong of the Goldstein test by showing factor in that the filing of their Sheriff Watson's decision to suits was a substantial terminate their security clearances. After careful application of the Goldstein test, finds that Injunction Plaintiffs have not, at this time, made a clear showing of a likelihood of success on the merits. 51 the Court B. Irreparable Harm Out of an abundance of caution, the second though 342, 3271 of Injunction showing" Truth prong of preliminary Plaintiffs have injunction failed to a likelihood of success on Obama, About 346 the the Court briefly considers Federal Election (4th Cir. (2010) Inc. v. 2009), the standard make merits. that "all four obtaining a preliminary injunction "must be "clear See Real 575 F.3d 130 S. Ct. Comm'n, vacated on other grounds, (indicating a even requirements" for satisfied"). The second prong of the preliminary injunction standard requires a plaintiff to demonstrate that, suffer "irreparable harm." absent an injunction, she will Dewhurst, 649 F.3d at 290. The irreparable harm allegedly suffered by each of the six Injunction that, Plaintiffs in this case is the same: they assert each day that they are prevented from returning to their prior work assignments at the Jail, they are being retaliated against in violation of their First Amendment rights. is the non-curable loss of curable loss of income, a Constitutional right, Thus, and not it the that the Injunction Plaintiffs highlight in this case. The First relevant part, Amendment to the Constitution provides, in that "Congress shall make no law . . . abridging the freedom of speech ... or the right of the people ... to petition the Government for a 52 redress of grievances." U.S. Const, amend. I. The Fourth well-established rule First freedoms, Amendment unquestionably Amendment F.3d 291, 347, 373 302 this for constitutes "monetary damages First within are circuit even inadequate (4th Cir. recently to reiterated "'[t]he Night Club v. of time, that the loss Miller, (quoting Elrod v. Burns, (plurality opinion)). of and injury' for the loss periods compensate Legend 2011) that minimal irreparable freedoms." (1976) Circuit of 637 427 U.S. Based on such rule, "in the context of an alleged violation of First Amendment rights, plaintiff's claimed irreparable harm is the likelihood Amendment Services, see F.3d of success claim." Inc. Newsom ex 249, Injunction WV on Ass'n v. Musgrave, rel. 254 Newsom (4th Plaintiffs the Cir. v. merits of 553 Club Albemarle of plaintiff's Owners F.3d 292, 2003). cannot 'inseparably linked' 298 that show School other they prevail on their claims that Sheriff Watson First 2009); Bd., words, are to Fraternal (4th Cir. County In and a 354 if the likely to retaliated against them because they spoke up and filed this suit, then they cannot show that they will suffer an irreparable injury without issuance of a preliminary injunction reinstating their security clearances. Accordingly, preliminary Injunction because record is Plaintiffs this Court insufficient are likely 53 concluded to clearly to succeed on above that the show that the the merits by showing that Sheriff Watson retaliated against them because they spoke up and filed this suit, the Injunction Plaintiffs have failed to show they will suffer irreparable harm absent issuance of a preliminary injunction. each Injunction harm" will rise Plaintiff's and fall After further factual development, ability to with her demonstrate ability to "irreparable succeed on the merits of her retaliation claim by demonstrating a loss of First Amendment freedoms through satisfying all four prongs of the Goldstein test. C. Balancing of Equities and Public Interest The third and fourth prongs of the preliminary injunction standard require a plaintiff to demonstrate that the balance of equities tips in her favor and that a preliminary injunction is in the public interest. Dewhurst, 649 F.3d at 290. As the Court concludes above that Injunction Plaintiffs have, on the limited record, failed to satisfy either of the first two prongs of the preliminary analyze at injunction standard, the Court length the merits of the parties' respect to such latter two prongs. F.3d at 346; see Holbrook, 706 F. does not arguments with Real Truth About Obama, 575 Supp. 2d at 655 (suggesting that a motion for an injunction should be denied if the movant fails to meet any prong of "the four-prong standard required by Winter"). The Court does, however, recognize that these factors may have to be analyzed in light of additional evidence in this 54 matter, the and it therefore Injunction disfavored reiterates Plaintiffs mandatory in the that the pending injunction; and to security motion is: that on an incomplete record, the clearances contractors. Not only are courts, second the guess difficult sought relief (2) require this Court, reinstate relief (1) a would to order a Sheriff of six former as a general rule, judgment by calls regarding that are made by prison and jail administrators, Jail loathe to security see Braun, 652 F.3d at 560, but here, Sheriff Watson's uncontradicted testimony supports the preliminary finding that at least some individuals seeking reinstatement are responsible for violating Jail rules and bringing contraband extraordinary relief, on into the Jail. undeveloped Entry such absent facts, of a clear showing of irreparable harm, would not be in the public interest because it would judgment call risk with substituting a viewpoint of predicated on erroneous facts. (quoting Richardson, 521 the the Sheriff's Court See Braun, U.S. at 408 that difficult could be 652 F.3d at 560 ("Second-guessing such judgment calls would inhibit 'principled and fearless decision making' . . . ."). Similarly, it does not appear that the "balance of equities" would tip in the Injunction Plaintiffs' favor based on their failure, at this time, to likelihood of success on their retaliation claims. 55 demonstrate a Accordingly, even if the Court reached the final two prongs, this time, set forth Plaintiffs") Watson's at to favor Sheriff Watson. IV. As they appear, seek SUMMARY AND CONCLUSION above, Plaintiffs (the preliminary a six injunction based revocation of their security "Injunction on clearances Sheriff at the Portsmouth City Jail. Injunction Plaintiffs are all health care contractors previously providing the that were inmates at the Jail. medical Injunction Plaintiffs in this Court in April of 2012 alleging that, year earlier, required Sheriff Injunction Watson services filed lawsuits approximately one and several Sheriff's to undergo strip Plaintiffs to deputies searches in violation of their Fourth Amendment rights. Several days after the revoked lawsuits Plaintiffs' further were Sheriff security clearances, contract Plaintiffs filed, work claim that at Watson Injunction thereby excluding them from any the Portsmouth Sheriff Watson's Jail. Injunction action punishes them for filing suit, in violation of the protections established by the First Amendment's clause." enter a "free Injunction mandatory speech Plaintiffs preliminary clause" and its "petition therefore ask this Court injunction requiring to Sheriff Watson to reinstate their security clearances pending resolution of this case. 56 Injunction Plaintiffs have the burden to demonstrate that a preliminary injunction should issue in because would Injunction alter litigation, Plaintiffs the status this case. seek a mandatory quo during the Furthermore, injunction pendency of that the the Court's inquiry is even more searching than in a typical case, and entry of the requested mandatory injunction is "disfavored" by governing law. injunction, likely Injunction Plaintiffs must show: succeed retaliation In order to obtain a preliminary on claims; the (2) that suffer irreparable harm; in their favor; and (4) merits (3) of absent that (1) their an that they will First injunction, Amendment they will the balance of equities tips that the public interest favors entry of a preliminary injunction. Applying the four-part injunction test to the preliminary record reveals that Injunction Plaintiffs have not carried their burden to demonstrate sought in their case. Injunction have, likely that motions Plaintiffs among other things, to is succeed retaliation claims. on the extraordinary appropriate fail to at mandatory this stage relief of the satisfy such test as they failed to "clearly show" that they are the merits of their Injunction Plaintiffs First Amendment fail to make such a showing because they have not demonstrated that they will likely satisfy the special legal test that governs the speech rights of "public employees." 57 First Amendment The First employees citizens have are Amendment less because a than to employee public or the protections and interest Accordingly, afforded government, the strong protections in establish a afforded the contractor speech must public to general efficient free to ordinary public, public services. violation, establish: both a (1) public that the speech that allegedly caused retaliation relates to a matter of public concern; outweighs public the (2) the employer's workplace; government that interest (3) benefit; employee's that and (4) in the interest efficiently operating employee that in expression such lost benefit a was the valuable lost as a result of the public employee's speech. Although it presents a relatively close question, Court finds their that Injunction speech the unconstitutional filing strip Furthermore, demonstrate that they However, stage, such benefit demonstrate operation fail lost Injunction to outweighs of do the so federal Injunction they lost expression of have searches-touches concern." that Plaintiffs a as Plaintiffs that the their of 58 matter result not, at in interest Sheriff's of of "public able benefit their this the Injunction to and speech. preliminary First in that alleging appear government City Jail. the lawsuits a interest Sheriff's Portsmouth because a do demonstrated Plaintiffs valuable here, the Amendment efficient Plaintiffs uncontradicted sworn testimony at the injunction hearing indicating: the Injunction contraband into alignment of Plaintiffs the Jail; themselves were and (1) responsible (2) that against the that some of for Injunction Sheriff bringing Plaintiffs' and Sheriff's deputies through filing suits would create a breakdown in trust at the Jail currently and housed raise at the safety Jail concerns that had regarding implicated inmates some of the Injunction Plaintiffs in smuggling contraband into the Jail. This record, Court's and the findings instant for analysis facts any constrained discussed above do purpose motions. is other Similarly, than the by not the the preliminary represent factual resolution Court's ruling of is not the a predictor as to the likelihood that either party will ultimately prevail in this case, as further factual development will likely dictate the final resolution. standard not having been met, The preliminary injunction and mindful of the fact that the disfavored relief sought by Injunction Plaintiffs would require this federal elected Court state important substitute constitutional matter injunction to should of Jail not its officer security, issue judgment at (the the this for that Sheriff) of on an an Court finds that an early stage of the proceedings. Based on the detailed analysis above, Injunction Plaintiffs' six pending 59 motions the Court DENIES the seeking preliminary injunctions ordering Sheriff Watson to reinstate their security clearances at the Portsmouth City Jail. The Clerk is REQUESTED to send a copy of this Opinion and Order to all counsel of record. It is so ORDERED. /s Mark S. ;fiM$Davis UNITED STATES DISTRICT JUDGE Norfolk, Virginia July 2& , 2012 60

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