dissenting:
Because I disagree that Clarke’s facial challenge to Rule 3 is cognizable under § 1983 and because, even if it is, I disagree with the majority’s conclusion that Rule 3 is facially unconstitutional, I dissent from Part III of the majority opinion.
The majority concludes that Clarke’s claim for prospective relief does not necessarily imply the invalidity of his previous loss of good time credits, and therefore may properly be brought under § 1983, because “it is unclear upon which portion of the defiance rule Clarke’s conviction is based.” However, the majority states that Clarke was punished with the loss of ten days of good time credits and was transferred to WCI because “he ‘admitted] he threatened legal redress during confrontation with staff.’ ” The majority also states that Clarke alleged “that he had been punished for violating the ‘no threats' of legal redress’ portion of Rule 3 in violation of his First Amendment rights.” In addition, after describing the behavior for which Clarke was punished as his telling Captain Moulard that “he was going to file a lawsuit and an ARP” against Captain Moulard, the magistrate states in her order:
At issue in this case is that portion of Rule 3 which allows prison officials to discipline inmates for “threatening” legal redress during a “confrontation situation.” Plaintiff alleges that the Rule is unconstitutional on its face or was at least unconstitutionally applied to him in violation of his First Amendment rights. From the evidence that was presented at trial, the Court readily infers that plaintiff was stripped of good time credits and was transferred to a medium security prison in retaliation for voicing his intention to exercise his First Amendment rights.
Nothing in this language indicates that the magistrate determined that Clarke had been punished for anything other than violating Rule 3’s legal redress provision. Moreover, the magistrate states later in the order: “Had [Clarke] threatened the defendant with physical harm or insulted the employee or his family, disciplinary action against [Clarke] would have been appropriate under the other, unchallenged portions of DOC Rule 3.” (emphasis added). The clear implication of this statement is that Clarke was not disciplined for violation of “the other, unchallenged portions” of Rule 3. Under these circumstances, a conclusion that the “legal redress” provision in Rule 3 is unconstitutional would necessarily call into question the validity of the deprivation of Clarke’s good time credits. As such, Clarke would be unable to bring this suit pursuant to § 1983 and our analysis would end there. See Johnson v. Pfeiffer, 821 F.2d 1120, 1123 (5th Cir.1987) (“[E]ven broad-based challenges to the rules and procedures used by parole boards or disciplinary officials to make decisions that may affect prisoners’ dates of release must be pursued in habeas corpus if resolution of the factual and legal allegations necessary to resolve the § 1983 claims would automatically entitle one or more plaintiffs to accelerated release.”); Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1119 (5th Cir.1987) (“Even in some broad-based attacks, resolution of the factual allegations and legal issues necessary to decide the § 1983 claim may, in effect, automatically entitle one more claimants to immediate or earlier release.... Such claims must also be pursued initially through habeas corpus.”).1
However, in the event that Clarke can maintain his facial challenge to Rule 3 under § 1983, I also disagree with the majority’s conclusion that Rule 3 is facially unconstitu*234tional. First, I disagree with the majority’s conclusion that no alternate means of exercising “the right” is available, and am troubled by the majority’s apparent definition of the relevant “right” as “the ability to tell an official, before she acts, that the inmate believes her action is illegal” and the “right to criticize the legality of [prison] officials’ actions.” The challenged portion of Rule 3 does not prohibit such statements; rather, it prohibits an inmate from “threatening] an employee in any manner, including threatening with legal redress during a confrontation situation....” Thus, the relevant right appears to be the right to threaten an employee with legal redress in a confrontation situation.
Moreover, even if this “right” is one that inmates are entitled to exercise, alternative means exist for that exercise. Rule 3 specifically states that “threatening to write to the Secretary, the Warden or other institutional officers is not a violation” of the rule. Thus, even during a confrontation, an inmate can communicate his grievance to his chosen recipient by threatening to report the employee to the Secretary, the Warden or another institutional officer. See Muhammad v. Pitcher, 35 F.3d 1081, 1085 (6th Cir.1994) (stating that relevant inquiry is whether rule leaves inmate with alternate means of communicating grievance to chosen recipient). In addition, an inmate can presumably communicate his grievance to his chosen recipient in the form of an administrative complaint.
I also disagree with the majority’s conclusion that no adverse impact will result from accommodation of the “right” to threaten prison employees with legal redress in confrontation situations. I view the relationship between Rule 3’s prohibition on threats of legal redress during confrontations and the State’s asserted interest in preserving order in its prisons as quite legitimate. Permitting inmates to threaten employees with legal redress in confrontation situations can only contribute to the tension undoubtedly present in such situations; escalating tension can lead to violence. Minimizing the occurrence of such escalation by prohibiting threats of legal redress in heated situations is a legitimate security measure. See Pell v. Procunier, 417 U.S. 817, 823, 94 S.Ct. 2800, 2804, 41 L.Ed.2d 495 (1974) (“[C]entral to all other corrections goals is the institutional consideration of internal security within the corrections facilities themselves.”). The authority the majority cites as support for its conclusion that the relationship between Rule 3 and the State’s interest in preserving order in its prisons is “tenuous at best” pertains to police officers, not to prison guards.
Furthermore, the authority the majority cites in support of its conclusion that “the challenged portion of Rule 3 does not have the ‘reasonable relationship’ to the goal of prison order and security that the Constitution requires” does not address analogous factual situations. To the contrary, the cited cases are retaliation cases and as such are irrelevant to our analysis of the facial validity of Rule 3. In sum, I would conclude that Rule 3 is valid because it is reasonably related to legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89, 107 S.Ct. 2254, 2261, 96 L.Ed.2d 64 (1987) (holding that prison regulation that impinges on inmate’s constitutional rights is valid “if it is reasonably related to legitimate penological interests”).
. To evaluate whether resolution of a broad-based claim would automatically entitle a claimant to immediate or earlier release, "a district court must consider the distinction between claims that would merely enhance eligibility for accelerated release and those that would create entitlement to such relief.” Serio, 821 F.2d at 1119. My discussion is premised upon an assumption that Clarke seeks restoration of good time credits that affect his entitlement to early release rather than merely his eligibility for parole consideration. The majority does not address this important distinction.