-----------------
Inmate Mail
All incoming mail, with the exception of legal mail, must be standard postcards.
This is to ensure the safety and security of jail facilities, inmates, and staff.
Acceptable STANDARD Postcards
(Italics are mine)
Written in blue or black ink only (no felt tip or roller balls - must be ballpoint!)
Metered or stamps (they'll just cut off the stamp and your message first,
if you don't get the pre-stamped cards )
Minimum size requirements: 3.5 x 4.25 inches
Maximum allowable postcard size: 4.25 x 6 inches
Stamps are removed prior to inmate receiving mail
Unacceptable Postcards
Defaced or altered postcards
No plastics or wrappings on postcard
Postcards marked with paint, crayon or marker or ink (only black or blue ink is accepted)
Postcards with labels or stickers
Postcards with any biohazards, perfumes or lipstick
Postcards with watermarks or stains
Postcards depicting nudity, weapons or gang
--------------------
Here's part of the 14-piece "birthday card" I had to send a girl who turned 17 this summer in Arpaio's solitary hell:
They usually lose one of my cards when I write long letters like this...as they did in this case, of course. Someone - inside or out - needs to sue MCSO over this policy, or it just wont change. I hope they do soon.
Prison Legal News is an excellent resource for prisoners and their families, by the way. A single print subscription is only $35 a year, which is well worth it - it can save your loved ones life, so send it to them if you can. They also have a good selection of books - the Prisoner's Self-Help Litigation Manual ($39.95) is especially useful if your loved one keeps getting screwed by the system.
Or download and print the National Lawyers Guild Jailhouse Lawyer's Handbook for free, then mail it in - I've sent hundreds of those in myself! Dont forget to connect them with the US District court if they are thinking about suing. Just because Parsons v Ryan is settled Corizon wont suddenly start treating everyone properly - they'll still only attend to those prisoners they absolutely HAVE to spend money on. So, prisoners need to know how and be prepared to actually file suit if they really plan to fight the DOC - bluffing will just get them hurt.
Here's the postcard-only ruling out of the State of Washington last month. Hooray for Prison Legal News!!! ------------------
PRISON LEGAL NEWS, Plaintiff,
v. LEWIS COUNTY, et al., Defendants.
Case No. 14-cv-05304 JRC.
United States District Court, W.D. Washington, Tacoma.
September 10, 2014.
ORDER
J. RICHARD CREATURA, Magistrate Judge.
This
Court has jurisdiction under 28 U.S.C. § 636(c), Federal Rule of Civil
Procedure 73 and Local Magistrate Judge Rule MJR 13. See also Joint
Status Report, Dkt. 49 and Minute Order, Dkt. 50.
Prison
Legal News seeks an injunction that would prohibit Lewis County Jail
from restricting incoming and outgoing prisoner mail to postcards only.
Dkt. 10. At various times, Lewis County Jail has chosen to enforce a
policy imposing such a restriction and at other times has chosen not to
enforce this restriction. Despite representing to the Court that it has
changed its policy and is now allowing news sources to distribute both
publications and other forms of correspondence to prisoners, there is
substantial evidence to believe that this policy has not yet been
adopted.
First Amendment rights are too important to be subject
to such arbitrariness. When it comes to access to news and information,
prisoners and those who correspond with them should be afforded the
opportunity to send and receive mail, and if mail is refused by the
Jail, prisoners and persons attempting to communicate with prisoners
should receive notice and a fair and timely process for appealing the
Jail's refusal to deliver the mail.
Therefore, this Court GRANTS plaintiff's motion for a preliminary injunction, as will be further delineated below.
BACKGROUND
Plaintiff
Prison Legal News ("PLN") is published by the Human Rights Defense
Center ("HRDC"), a Washington Non-Profit Corporation. Dkt. 1 at ¶ 3.1
HRDC's mission is public education, prisoner education, advocacy, and
outreach in support of the rights of prisoners and in furtherance of
basic human rights. Id. PLN publishes and distributes a monthly journal
of corrections news and analysis, as well as books about the criminal
justice system and legal issues affecting prisoners, to prisoners,
lawyers, courts, libraries, and the public throughout the country. Id.
From
September 2013 through October 2013, PLN mailed to prisoners of Lewis
County Jail personally addressed envelopes containing informational
brochures about subscribing to PLN, copies of a catalog of books that
PLN offers for sale, detailed book offers, and court opinions. Dkt. 12
at ¶¶10-13, Exhibits A through SS (censored mail), Exhibits TT and UU
(exemplars). The Jail rejected and returned the mail, totaling
forty-five pieces of mail. Dkt. 12 at ¶¶12-13, Exhibits A through SS. On
forty of the returned items, the Jail staff stamped "RETURN TO SENDER
This facility accepts postcards only." Dkt. 12 at ¶¶ 12-13, Exhibits E
through RR. On three items Jail staff stamped "Returned to Sender REASON
CHECKED BELOW" with "Unauthorized Mail" checked or circled.
Dkt.
12 at ¶¶ 12-13, Exhibits B through D. On two of the items, Jail staff
stamped both "RETURN TO SENDER This facility accepts postcards only" and
"Returned to Sender REASON CHECKED BELOW" with "Unauthorized Mail"
circled; and, on one of these double stamped items, Jail staff
additionally stamped "RETURN TO SENDER.
UNDELIVERABLE
AS ADDRESSED." Dkt. 12 at ¶¶ 12-13, Exhibits A and SS. The Jail also has
rejected materials printed from PLN's website that were sent to a
prisoner by a family member, such as one rejected in May, 2014. Dkt. 33
at ¶ 5, Exhibit B. The Jail rejects mail sent from family members and
friends if not in postcard form. Dkt. 34, Exhibits 1-3.
Defendants
indicate that the Jail adopted its official mail policy on February 3,
2010, and has officially adopted revisions as late as September 4, 2012.
Dkt. 24, Exhibit 2. This policy restricts all ingoing and outgoing
prisoner personal mail to postcards only. Id. at page 2. The policy also
contains a "Publications" section that allows for the delivery of
incoming soft covered magazines. Id. at page 3. The Jail has also
presented a draft policy that it claims to have put into practice on
June 2, 2014. Dkt. 71 at ¶ 2. This draft policy contains a separate
section regarding publishers and publications providing that
correspondence between publishers and prisoners will not be censored
under the postcard-only policy. Dkt. 44, Exhibit 2 at page 2. Despite
this assertion, defendants admit that this draft policy has not been
widely disseminated nor officially adopted by the Jail. Dkt. 71 at ¶ 2;
Dkt. 61, Exhibit 15 at page 18. The official policy of the Jail remains
the policy discussed above that was adopted February 3, 2010 and revised
as late as September 4, 2012. Dkt. 61, Exhibit 15 at page 18. Although
this official policy contains a subsection under the section titled
"Incoming Mail" that allows for the delivery of incoming soft covered
magazines, it does not specifically address general correspondence
between publishers and prisoners in any other form. Dkt. 24, Exhibit 2
at page 3. On its face, the correspondence PLN claims was wrongfully
censored by defendants does not qualify under the publications
subsection of the Jail's official policy and is therefore subject to the
postcard-only restriction applied to all personal mail. Id. at page
2-3.
PROCEDURAL BACKGROUND
Plaintiff filed a
Complaint on April 11, 2014, alleging that Lewis County Jail's post-card
only rule violated PLN's and prisoner-addressees' protected free speech
rights, as well as the free speech rights of others who correspond
with, or attempt to correspond with, prisoners. Dkt. 1 at ¶¶4.13, 4.14,
4.36-4.39, 5.2. Plaintiff also alleges that when defendants rejected
mail based on this post-card-only policy, Lewis County Jail failed to
provide due process notice and opportunity for appeal to PLN and other
senders and receivers of the rejected prison mail. Dkt. 1 at
¶¶4.18-4.21, 4.40-4.41, 5.6.
Plaintiff filed a motion for
preliminary injunction on April 21, 2014, requesting that this Court
enjoin the postcard-only rule and require notice and opportunity to be
heard when mail is rejected. Dkt. 10. That matter is currently before
the Court.
DISCUSSION
Standing. As a preliminary
matter, plaintiff seeks to assert the First Amendment free speech rights
and Fourteenth Amendment due process rights not only on its own behalf,
but also on behalf of prisoners and other persons who send and receive
mail to and from prisoners in the Jail. Dkt. 1 at ¶¶ 4.13, 4.16, 4.18,
4.19, 4.36-4.41, 5.2, 5.6; Dkt. 10 at page 2.
To satisfy
standing requirements, a plaintiff must show: (1) that it has suffered
an "injury in fact" that is "(a) concrete and particularized and (b)
`actual or imminent, not `conjectural' or `hypothetical;''" (2) that the
injury is fairly traceable to the challenged action of the defendant;
and (3) that it is "`likely', as opposed to merely `speculative', that
the injury will be `redressed by a favorable decision.'" See Lujan v.
Defenders of Wildlife, 504 U.S. 555, 560-561 (1992) (footnote and all
citations omitted).
PLN has met each of these requirements.
First, PLN has shown that the jail actually rejected mail sent by
plaintiff to prisoners, and has set forth concrete and particularized
examples of those rejections. Second, the action is fairly traceable to
the Jail's postcard-only policy as the policy was in place at the time
PLN's mail was rejected and was used as the basis for rejecting this
mail. And, third, as will be discussed below, plaintiff has demonstrated
that further injury will be redressed by a favorable decision on the
merits. Although defendants assert that its postcard-only policy is no
longer enforced, the policy remains in place and could be used again to
reject mail if it chose to enforce the policy. Therefore, this Court
concludes that plaintiff has standing to bring this motion for
preliminary injunction on its own behalf. See id.
Further, plaintiff has standing to assert the rights of third parties who are not before the Court.
Under
the overbreadth doctrine, a plaintiff "may challenge an overly broad
statute or regulation by showing that it may inhibit the First Amendment
rights of individuals who are not before the court." 4805 Convoy, Inc.
v. City of San Diego, 183 F.3d 1108, 1112 (9th Cir. 1999) (citations
omitted). The requirements to satisfy overbreadth standing are
injury-in-fact and the ability to frame the issues in the case
satisfactorily. Id. (citing Secretary of Maryland v. Joseph H. Munson
Co., 467 U.S. 947, 958 (1984)).
First, the current official
policy threatens the ability of those other than PLN to send information
packs and other non postcard materials to prisoners while also failing
to provide notice of the opportunity to appeal; and, such restriction
has occurred, for instance, to a partner of a prisoner who shares a
child with the prisoner (see Dkt. 34 at Exhibits 1 and 3) as well as to a
mother of a prisoner (see Dkt. 34 at Exhibits 2 and 3). Thus, those
other than PLN have been injured-in-fact.
Second, PLN is
certainly able to frame the issues on behalf of prisoners and other
correspondents. PLN has vigorously advocated on behalf of prisoners in
previous litigation in this Circuit. See, e.g., Prison Legal News v.
Lehman, 397 F.3d 692 (9th Cir. 2005); Prison Legal News v. Cook, 238
F.3d 1145 (9th Cir. 2001); Prison Legal News v. Columbia County, Dock.
No. 3:12-CV-00071-SI, 2012 WL 1936108, 2012 U.S. Dist. LEXIS 74030 (D.
Or. May 29, 2012) (unpublished opinion); see also Dkt. 34. Furthermore,
PLN has offered multiple declarations from prisoners and their
correspondents demonstrating that PLN has invested significant time in
determining how the Jail's policy has affected prisoners and their
correspondents. See Dkt. 30; see also Dkt. 34. Finally, PLN has framed
its argument to address the allegedly overbroad nature of the mail
policy's postcard-only restriction and lack of procedural due process
safeguards while presenting specific alleged effects of the policy on
prisoners and their correspondents in addition to the effect on PLN
alone. PLN has demonstrated advocacy on behalf of prisoners and their
other correspondents; and has demonstrated that it is able to represent
adequately prisoners and their correspondents' interests in this
litigation. Therefore, PLN has standing to assert the rights of the
prisoners and other potential senders and recipients of prison mail.
While
case law indicates that a free speech claim like plaintiff's is an
appropriate setting for the application of the overbreadth doctrine, the
doctrine does not appear to have been used by other courts to cover
claims such as plaintiff's due process claims. The Supreme Court has
"recognized the validity of facial attacks alleging overbreadth (though
not necessarily using that term) in relatively few settings, and,
generally, on the strength of specific reasons weighty enough to
overcome our well-founded reticence." Sabri v. United States, 541 U.S.
600, 609-10 (2004) (citations omitted). Such settings include free
speech, the right to travel, abortion, and legislation under § 5 of the
Fourteenth Amendment. Id (citing Broadrick v. Oklahoma, 413 U.S. 601
(1973); Aptheker v. Secretary of State, 378 U.S. 500 (1964); Stenberg v.
Carhart, 530 U.S. 914, 938-46 (2000); City of Boerne v. Flores, 521
U.S. 507, 532-35 (1997)) (other citations omitted). The overbreadth
doctrine should not be extended beyond these settings without good
reason. Sabri, supra, 541 U.S. at 610. Nonetheless, the Court finds that
the same evidence supports PLN's ability to properly frame both First
and Fourteenth Amendment interests of prisoners and other
correspondents. Additionally, PLN has indicated injury-in-fact arising
from the violation of both its First and Fourteenth Amendment rights.
Therefore, the Court concludes that the equal existence of these factors
in regards to both constitutional rights, coupled with the already
appropriate application of the overbreadth doctrine to plaintiff's free
speech claim, constitutes good reason for extending the doctrine to
plaintiff's Fourteenth Amendment due process claims as well. Plaintiff
may assert these claims on behalf of prisoners and other correspondents
whose mail is restricted by the Jail's postcard-only policy.
Mootness.
Also as a preliminary matter, defendants claim that the several
instances cited by plaintiff when its mail was rejected were isolated
instances that were the result of one mail handler's misunderstanding
and that these rejections will not likely happen again. Therefore,
according to defendants, this matter is moot and should not be the
subject of a preliminary injunction. "It is well settled that `a
defendant's voluntary cessation of a challenged practice does not
deprive a federal court of its power to determine the legality of the
practice. . . . . If it did, the courts would be compelled to leave `the
defendant. . . . free to return to his old ways.''" Friends of the
Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189
(2000) (quoting City of Mesquite v. Aladdin's Castle, Inc., 455 U.S.
283, 289, 289 n.10 (1982) (citing United States v. W.T. Grant Co., 345
U.S. 629, 632 (1953))) (internal citations omitted).
A
defendant claiming that its voluntary compliance moots a case bears the
formidable burden of showing that it is "absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur." Friends of
the Earth, supra, 528 U.S. at 189 (citing United States v. Concentrated
Phosphate Export Assn., Inc., 393 U.S. 199, 203 (1968)). Accordingly, a
mere change in policy ante litem is not sufficient to moot a case
unless it clearly shows that the alleged wrong will not reasonably
recur.
Defendants have not met this heavy burden. For
instance, defendants acknowledge that at the time of the incident, the
Jail's policy had a postcard-only policy, but argue that it chose not to
enforce it against PLN. Since PLN's mail was rejected on several
instances, it is clear that the Jail's policy of not following its
policy does not negate a potential impact on PLN in the future.
Defendants
also argue that the draft policy will cure the problem. But, for
unknown reasons, it has not yet been adopted. This fact, as well, leads
the Court to conclude that it is not "absolutely clear the allegedly
wrongful behavior could not reasonably be expected to recur." See
Friends of the Earth, supra, 528 U.S. at 189 (citing Concentrated
Phosphate Export Assn., Inc., supra, 393 U.S. at 203).
Furthermore,
even the draft policy presented by the Jail is problematic. It includes
a "Publications/Other mail" section in addition to the categories of
"Personal" and "Privileged" mail.
Dkt. 44, Exhibit 2. This newly
drafted section suggests that "verifiable business, banks, publishers,
etc. shall not be subject to postcard rules," but remains unclear about
what organizations actually qualify under this exception. Dkt. 45 at ¶
5, Exhibit 2 at page 2. This is particularly apparent where the next
sentence of the same section offers a slightly expanded list of
correspondents who might qualify under the exception including
publishers, "verifiable business[es], government office[s], bank[s],
book store[s], etc." Id. (emphasis added). This draft version of the new
policy does far too little to alleviate concerns regarding the
possibility that the Jail will reject mail from PLN or other
correspondents in the future, including correspondents such as family
and friends, whose rights are also being properly asserted by PLN, as
noted above. Furthermore, defendants' assertion that the harm formerly
done to PLN resulted from a "misunderstanding" of the current policy
only increases concerns that this vague new section could be applied
arbitrarily in the future.
Regarding PLN's due process
claims, the draft policy includes a statement that rejected mail "will
be returned to sender with a copy of the Notice of Withheld Material.
The withheld material notice shall include contact information and
direction for due process," and "[t]he inmate. . . . will receive a copy
of the Notice of Withheld Material." Dkt. 45, Exhibit 2 at page 3. PLN
claims that these measures are still inadequate safeguards of its own
due process rights, the rights of prisoners, and the rights of other
correspondents. The proposed policy does not facially require notice of
the reason for rejecting the mail by Jail staff. See id. And, it vaguely
addresses notice of an appeals process for those sending mail to
prisoners, and neglects to indicate if prisoners will be able to appeal
the censorship of their mail by Jail staff. See id. Furthermore, there
is nothing in the policy that mentions notification or the right to
appeal the rejection of outgoing mail by Jail staff. See id.
Accordingly,
several areas of dispute remain unresolved. Defendants have not
satisfied "the formidable burden of showing that it is absolutely clear
the allegedly wrongful behavior could not reasonably be expected to
recur." See Friends of the Earth, supra, 528 U.S. at 189 (citing
Concentrated Phosphate Export Assn., Inc., 393 U.S. at 203). Therefore,
this motion for preliminary injunction is not moot.
Because
plaintiff has standing to assert its rights and the rights of third
parties, and because this matter is not moot, the Court will now address
the standards for granting a preliminary injunction, as set forth in
Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008).
Because plaintiff is seeking a preliminary injunction regarding both the
Jail's post-card only policy and the Jail's notice and appeals
procedure for rejected mail, and those policies potentially impact
separate constitutionally protected rights, the Court will deal with
each policy separately.
Standards for preliminary injunction.
A plaintiff seeking a preliminary injunction must clearly establish:
(1) that plaintiff is likely to succeed on the merits, (2) that
plaintiff is likely to suffer irreparable harm in the absence of
preliminary relief, (3) that the balance of equities tips in plaintiff's
favor, and (4) that the injunction is in the public interest. Winter v.
Natural Res. Def. Council, Inc., 555 U.S. 7, 20 (2008) (citations
omitted); Fed. R. Civ. P. 65(a); cf. M.R. v. Dreyfus, 663 F.3d 1100,
1108 (9th Cir. 2011) (the Court may grant a preliminary injunction "if
there is a likelihood of irreparable injury to the plaintiff; there are
serious questions going to the merits; the balance of hardships tips
sharply in favor of the plaintiff; and the injunction is in the public
interest"); The Lands Council v. McNair, 537 F.3d 981, 987 (9th Cir.
2008), overturned by Winter, supra, 555 U.S. at 22.
1. The
Jail's postcard-only policy. The Jail's policy regarding personal mail
states, in part, "Incoming and outgoing personal mail shall be postcard
media only." Dkt. 24, Exhibit 2 at page 2. PLN alleges that defendants
violated its free speech rights and those of other publishers and
correspondents by limiting prisoner personal mail to postcards only and
by rejecting informational brochure packs and court opinions that PLN
mailed to prisoners in envelopes. Dkt. 1 at ¶¶ 4.13-4.14, 4.26-4.27,
4.33. The Jail's policy provides an exception for "Publications" as
follows: "Publications are allowed for inmates. Publications must come
directly from a publisher or approved book store and must be soft
covered. Publications must be individually addressed." Dkt. 24, Exhibit 2
at page 3. The policy does not define a "publication," but it is clear
that it was not interpreted by the Jail to include the informational
brochure packets that plaintiff sent to prisoners and were rejected.
Under
the first factor of the test in Winter, plaintiff has the burden of
demonstrating that it is likely to succeed on the merits. See Winter,
supra, 555 U.S. at 20. Prisoners and their correspondents have a First
Amendment interest in sending each other mail. The Ninth Circuit has
"repeatedly recognized that publishers and inmates have a First
Amendment interest in communicating with each other." Hrdlicka v.
Reniff, 631 F.3d 1044, 1049 (9th Cir. 2010) (citing Prison Legal News v.
Lehman, 397 F.3d 692, 699 (9th Cir. 2005); Thornburgh v. Abbott, 490
U.S. 401, 408 (1989)).
Also, prison and jail walls do not "bar
free citizens from exercising their own constitutional rights by
reaching out to those on the `inside.'" Thornburgh v. Abbott, 490 U.S.
401, 407 (1989) (citing Turner v. Safley, 482 U.S. 78, 94-99 (1987);
Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. North Carolina Prisoners'
Labor Union, Inc., 433 U.S. 119 (1977); Pell v. Procunier, 417 U.S. 817
(1974)) (internal citation omitted).
This First Amendment
interest extends to receiving mail as well as sending it. "It is now
well established that the Constitution protects the right to receive
information and ideas. `This freedom [of speech and press]. . . .
necessarily protects the right to receive. . . .'" Stanley v. Georgia,
394 U.S. 557, 564 (1969) (citing Martin v. City of Struthers, 319 U.S.
141, 143 (1943); Griswold v. Connecticut, 381 U.S. 479, 482 (1965);
Lamont v. Postmaster General, 381 U.S. 301, 307-08 (1965) (Brennan, J.,
concurring); cf. Pierce v. Society of the Sisters, 268 U.S. 510 (1925)).
Accordingly, plaintiff has a First Amendment interest in both sending
correspondence to prisoners and receiving correspondence in return.
Additionally, prisoners and their other correspondents share the same
constitutional interest.
Notwithstanding the implication of a
First Amendment interest, "restrictions that are asserted to inhibit
First Amendment interests must be analyzed in terms of the legitimate
policies and goals of the corrections system. . . ." Pell v. Procunier,
417 U.S. 817, 822 (1974). In Turner v. Safley, the Supreme Court
determined that when prison regulations impinge on constitutional
interests, the regulations are valid if "reasonably related to
legitimate penological interests." 482 U.S. 78, 89 (1987), superceded by
statute, 42 U.S.C. § 2000cc-1(a)(1)-(2), with respect to burdens on
religious exercise, as stated in Warsoldier v. Woodford, 418 F.3d 989,
994 (9th Cir. 2005) (citation and footnote omitted). The Court provided a
four-factor test to evaluate "the reasonableness of a prison or jail
regulation impinging on a constitutional right." Hrdlicka, supra, 631
F.3d at 1049. This test considers:
(1) whether the regulation
is rationally related to a legitimate and neutral governmental
objective, (2) whether there are alternative avenues that remain open to
the inmates to exercise the right, (3) the impact that accommodating
the asserted right will have on other guards and prisoners, and on the
allocation of prison resources; and (4) whether the existence of easy
and obvious alternatives indicates that the regulation is an exaggerated
response by prison officials.
Prison Legal News v. Lehman,
272 F.Supp.2d 1151, 1155 (W.D. Wash. 2003) (quoting Prison Legal News v.
Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, supra, 482
U.S. at 89-90)). Not only do these factors apply in evaluating
regulations that govern prisoners' right to receive mail, but they also
apply to regulations affecting correspondents' "rights to send materials
to prisoners." Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir.
2001) (citing Thornburgh, supra, 490 U.S. at 413).
The first
Turner factor requires this Court to determine if the postcard-only
policy is rationally related to a legitimate and neutral governmental
objective. See Turner, supra, 482 U.S. at 89-90 (citations omitted).
Defendants assert that the postcard-only policy is aimed at improving
jail security by reducing the importation of contraband, the amount of
resources spent screening mail, and prisoner misuse of the mailing
system. Dkt. 25 at ¶¶ 3, 4. Prison security is undeniably a legitimate
penological objective. See Thornburg, supra, 490 U.S. at 415. The policy
also is neutral because it draws a distinction between postcards and
other forms of mail "solely on the basis of their potential implications
for prison security. . . ." Id. (footnote omitted).
The
burden of showing a rational relationship lies with defendants, and is
initially satisfied by presenting an "intuitive, common-sense
connection" between the objective and the regulation. Frost v.
Symington, 197 F.3d 348, 354, 356-57 (9th Cir. 1999). If PLN is able to
show sufficient evidence refuting the connection, defendants must
additionally present enough evidence "to show that the connection is not
so `remote as to render the policy arbitrary or irrational.'" Id.
(quoting Mauro v. Arpaio, 188 F 3.d 1054, 1060 (9th Cir. 1999) (quoting
Turner, supra, 428 U.S. at 89-90 and Amatel v. Reno, 156 F.3d 192,
200-01 (D.C. Cir. 1998))).
Here, defendants indicate that
"[i]t is simply more effective to visually scan a postcard for
contraband and other issues than it is to scan a closed envelope, remove
its contents, and review the same for all of the issues of which our
staff has to be aware. . . ." Dkt. 25 at ¶ 10. Such issues include
concerns about materials like anthrax, weapons, secreted drugs, coded
messages, or even bodily fluids being sent through the mail. Id. at ¶¶
2, 3. Additionally, defendants indicate that the postcard-only policy
reduces the time that staff spends screening mail by half. Id. at ¶ 4.
This showing sufficiently establishes a common-sense connection between
the postcard-only policy and the asserted objective. This factor weighs
in favor of defendants.
The second Turner factor considers
whether or not "`other avenues' remain available for the exercise of the
asserted right." Turner, supra, 482 U.S. at 90 (citations omitted). In
evaluating this factor, alternative means need not be ideal, but they
must be reasonably available. See Overton v. Bazzetta, 539 U.S. 126, 135
(2003). Nonetheless, "`the right' in question must be viewed sensibly
and expansively." Thornburgh, supra, 490 U.S. at 417 (citing Turner,
supra, 482 U.S. 78; O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987)).
Defendants contend that alternate avenues exist to exercise free speech
rights because other channels remain open for contacting prisoners, like
sending emails, making phone calls, or utilizing regular visitation.
See Dkt. 45 at ¶¶ 9, 11.
On this point, the facts indicate
otherwise. The postcard-only policy, on its face, prevents PLN from
sending materials that are not easily transferable to a postcard, such
as court opinions and informational packets. PLN has shown that the
information included in these mailings cannot be formatted to fit onto a
postcard. Dkt. 12 at ¶ 17, Exhibits TT, UU. For this reason and due to
PLN's necessary reliance on such materials to secure new subscribers and
its continued vitality, the barriers implicated by the policy are not
an insubstantial hardship. See id.
The policy also prevents
family members from sending items like photographs, copies of bills, and
medical information. See, e.g., Dkt. 34. None of these things can be
easily replaced by telephone calls or regular visitation. It has been
recognized that such communication with family and friends "advances
rather than retards the goal of rehabilitation. . . ." Procunier v.
Martinez, 416 U.S. 396, 412-13 (1974) (quoting Policy Statement 7300.1A
of the Federal Bureau of Prisons (the policy "recognized that any need
for restrictions arises primarily from considerations of order and
security rather than rehabilitation: `Constructive, wholesome contact
with the community is a valuable therapeutic tool in the overall
corrections process'"); Policy Guideline of the Association of State
Correctional Administrators of August 23, 1972 (the policy guideline
"echoes the view that personal correspondence by prison inmates is a
generally wholesome activity: `Correspondence with members of an
inmate's family, close friends, associates and organizations is
beneficial to the morale of all confined persons and may form the basis
for good adjustment in the institution and the community'")) (footnote
omitted), overruled on other grounds, Thornburgh v. Abbott, 490 U.S.
401, 407, 413-16, 419 (1989) (noting the "undoubtedly" legitimate claim
to prison access by "families and friends of prisoners who seek to
sustain relationships with them") (citations omitted).
The
postcard-only policy drastically reduces prisoners' and other
correspondents' ability to communicate. It is more than a mere
inconvenience and becomes a substantial barrier to First Amendment
rights. Incarceration does not "form a barrier separating prison inmates
[or free citizens] from the protections of the Constitution. . . ."
Thornburgh, supra, 490 U.S. at 407 (citing Turner, supra, 482 U.S. at
84, 94-99; Bell v. Wolfish, 441 U.S. 520 (1979); Jones v. North Carolina
Prisoners' Labor Union, Inc., 433 U.S. 119 (1977); Pell v. Procunier,
417 U.S. 817 (1974)). Accordingly, the second Turner factor favors PLN
as "`the right' in question must be viewed sensibly and expansively."
Id. at 417 (citing Turner, supra, 482 U.S. 78; O'Lone, supra, 482 U.S.
342).
The third Turner factor considers the impact that
"accommodation of the asserted constitutional right will have on guards
and other inmates, and on the allocation of prison resources generally."
Turner, supra, 482 U.S. at 90. Because of the high likelihood that even
the smallest changes will have some "ramification of the liberty of
others or on the use of the prison's limited resources[,]" this third
factor weighs most heavily when "accommodation of an asserted right will
have a significant `ripple effect' on fellow inmates or on prison
staff." Id. Also, "the policies followed at other well-run institutions
[are] relevant to a determination of the need for a particular type of
restriction." Martinez, supra, 416 U.S. at 414 n.14, overruled on other
grounds, Thornburgh, supra, 490 U.S. 401; see also Morrison v. Hall, 261
F.3d 896, 905 (9th Cir. 2001) (citing Martinez, supra, 416 U.S. at 414
n.14, overruled on other grounds, Thornburgh, supra, 490 U.S. 401).
Defendants
state that the postcard-only policy reduces by half the time that staff
members spend screening mail, but PLN aptly raises important questions
concerning the actual amount of time that is saved. Compare Dkt. 25 at ¶
4 with Dkt. 34 at ¶¶ 11-12. PLN questions the methods by which this
figure was obtained. Dkt. 34 at ¶¶ 11-12. Also, PLN contends that the
time necessary to review the mailing, mark the reason for its rejection,
and attach a notice regarding an option to appeal the decision arguably
would be no greater than the time necessary to open and inspect the
contents of the envelope for contraband and send it on to the intended
recipient. Defendants' assertion regarding the impact on its budget is
simply not well documented nor supported by substantial quantitative and
qualitative evidence. Instead, it seems to be based entirely on
conjecture, rather than analysis and evidence. Therefore, without more,
this Court cannot ascribe substantial weight to this assertion.
Accordingly, the third Turner factor supports PLN's argument because
defendants have failed to demonstrate that accommodating these First
Amendment rights will have a significant impact on other guards and
prisoners or on the allocation of prison resources.
In
addition, PLN also has identified numerous prison and jail systems that
do not enforce a postcard-only policy, but instead perform mail
inspections, as Lewis County Jail has done in the past. Such systems
include the Washington Department of Corrections ("WDOC"), the Bureau of
Prisons, King County Jail, Pierce County Jail, and Spokane County Jail.
Dkt. 10 at page 18. In contrast, defendants indirectly refer to two
jail systems that likewise employ postcard-only policies. See Dkt. 22 at
pages 3, 10-11. However, the prevalence of the alternative policies
allowing for enveloped mail among "well-run institutions" suggests that
postcard-only policies do not increase efficiency enough to result in
their widespread adoption.
The final Turner factor addresses
if "the existence of easy and obvious alternatives indicates that the
regulation is an exaggerated response by prison officials." Cook, supra,
238 F.3d at 1149 (citing Turner, supra, 482 U.S. at 89-90). This factor
should not be mistaken for a least restrictive alternative analysis;
prisons need not always adopt the least restrictive alternative. See
Turner, supra, 482 U.S. at 90-91 (citations omitted). However, courts
may consider "an alternative that fully accommodates the [asserted]
rights at de minimis cost to valid penological interests" as evidence
that the policy unreasonably infringes upon First Amendment rights. Id.
at 91.
As discussed above, PLN has indicated that simply
opening and inspecting enveloped mail is a ready alternative to Lewis
County Jail's postcard-only policy. This was the policy employed
previously by Lewis County Jail and the Jail has reported no incidents
of misconduct where the resulting danger would have increased had the
jail allowed envelopes and letters. Also, defendants have failed to show
that inspecting enveloped letters instead of outright rejecting them
will be difficult or will result in an undue burden on administrative
costs. The fact that systems like the Bureau of Prisons, the WDOC, and
large county jails in the immediate region all accommodate enveloped
mail without compromised security evidences that the postcard-only
policy is an exaggerated response to the potential dangers that
accompany the postal service.
Dkt. 10 at 18; see Morrison, supra,
261 F.3d at 905 (finding that alternative "policies followed at other
well-run institutions" evidenced that easy and obvious alternatives
existed to the challenged regulation) (citations omitted). In light of
these other institutions', and Lewis County Jail's own successful past
use of a letter inspecting policy, the fourth factor suggests that the
postcard-only policy is an exaggerated response by prison officials,
thus weighing in favor of PLN's position.
In summary,
although defendants succeed in stating a "rational" relationship between
the postcard-only policy and legitimate penological interests, the
remaining Turner factors weigh heavily in favor of PLN. This "rational"
relationship is insufficient to justify such a substantial barrier on
First Amendment rights. Therefore, plaintiff has demonstrated that it
likely will succeed on the merits of its First Amendment claims,
satisfying the first prong of the Winter test. See Winter, supra, 555
U.S. at 20.
Under the second prong in Winter, plaintiff has
the burden of proving that it is likely to suffer irreparable harm in
the absence of preliminary relief. Winter, supra, 555 U.S. at 20. To
meet this burden, it is well recognized that "[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury." Elrods v. Burns, 427 U.S. 347, 373
(1976) (citing New York Times Co. v. United States, 403 U.S. 713 (1971)
(footnote omitted)); see also Klein v. City of San Clemente, 584 F.3d
1196, 1207-08 (9th Cir. 2009). However, the fact of past injury, while
presumably affording a plaintiff standing to claim damages, "does
nothing to establish a real and immediate threat that he would again"
suffer similar injury in the future. City of Los Angeles v. Lyons, 461
U.S. 95, 105 (1983).
As discussed above, see supra, Mootness
section, the proposed change in the Jail's policy does too little to
alleviate the Court's concerns regarding the possibility that the Jail
will reject mail from PLN or other correspondents in the future. Due to
the vagueness of the policy in regards to who qualifies as a
"publisher/other," the policy on its face could be applied differently
to nearly identical organizations resulting in the arbitrary denial of
plaintiff's right to free speech.
Additionally, other personal
mail remains restricted to postcards only, preventing communications
between prisoners and family or other correspondents. Therefore, this
Court concludes that the Jail's postcard-only policy is likely to cause
further irreparable injury in the future.
The third Winter
test, that the balance of equities tips in plaintiff's favor, is very
similar in application to the weighing of interests that the Court
already has conducted under Turner. Compare Winter v. Natural Res. Def.
Council, Inc., supra, 555 U.S. 20 with Turner v. Safley, supra, 482 U.S.
at 89-91. Therefore, the Court simply notes here that analysis of the
postcardonly policy under the Turner factors establishes that the
balance of equities tips in favor of plaintiff. Considering that the
Jail previously has allowed enveloped mail, and due to a lack of
evidence showing that a return to this policy would cause inordinate
harm or difficulty, the Court concludes that the Jail's postcard-only
policy cannot justify the dramatic impact on plaintiff's, prisoners',
and other correspondents' First Amendment rights.
The final
test under Winter is whether or not the injunction is in the public
interest. Winter, supra, 555 U.S. at 20. "The public interest primarily
addresses [the] impact on nonparties rather than parties." Sammartano v.
First Judicial Dist. Court, in & for County of Carson City, 303
F.3d 959, 974 (9th Cir. 2002), overruled on other grounds, Winter,
supra, 555 U.S. at 22. Here, an injunction would not only benefit PLN,
but it also would directly benefit other publishers similarly situated
as well as other members of the public who wish to communicate with
prisoners through written correspondence. Additionally, because
communication with family and friends "advances rather than retards the
goal of rehabilitation," such an injunction would benefit the public
generally. Martinez, supra, 416 U.S. at 412-13 (footnote and quotations
omitted), overruled on other grounds, Thornburgh, supra, 490 U.S. at 407
(noting the "undoubtedly" legitimate claim to prison access by
"families and friends of prisoners who seek to sustain relationships
with them") (citations omitted).
In summary, plaintiff has
satisfied each of the prongs set forth in Winter, and is therefore
entitled to an injunction regarding the postcard-only policy. The Court
still needs to address the form of such an injunction. Plaintiff
proposes that this Court order a mandatory injunction. "`A mandatory
injunction orders a responsible party to take action,' while `[a]
prohibitory injunction prohibits a party from taking action and
preserves the status quo pending a determination of the action on the
merits.'" Arizona Dream Act Coal. v. Brewer, 757 F.3d 1053, 2014 U.S.
App. LEXIS 12746 at *13-*14 (9th Cir. 2014) (citing Marlyn
Nutraceuticals, Inc. v. Mucos Pharma GmbH & Co., 571 F.3d 873,
878-79 (9th Cir. 2009) (internal quotation marks and alteration
omitted), overruled on other grounds, Winter, supra, 555 U.S. at 22; see
also Flexible Lifeline Sys., Inc. v. Precision Lift, Inc., 654 F.3d
989, 997-98 (9th Cir. 2011)). In the context of an injunction, "the
`status quo' refers to the legally relevant relationship between the
parties before the controversy arose." Id. at *13 (citing McCormack v.
Hiedeman, 694 F.3d 1004, 1020 (9th Cir. 2012)). Policy changes in
response to litigation are an affirmative change of the status quo. See
id. ("By revising their policy in response to DACA, Defendants
affirmatively changed this status quo. The district court erred in
defining the status quo ante litem. . . .").
The Court has
been provided several options by the parties. Rather than delineating
all aspects of a mail policy, the most straight forward approach is
simply to prohibit that which is unconstitutional. Therefore, the Court
preliminarily enjoins defendants from restricting incoming and outgoing
prisoner mail to postcards only, and orders defendants not to refuse to
deliver or process prisoner personal mail on the ground that it is in a
form other than a postcard. Any policy or practice that does not conform
with this restriction is enjoined during the pendency of this action or
until further order of this Court.
2. The Jail's notice and appeals procedure for rejected mail.
Plaintiff
further alleges that by rejecting mail without providing information
regarding a right to appeal, defendants violated plaintiff's,
prisoners', and other correspondents' Fourteenth Amendment rights to due
process. Dkt. 1 at ¶5.6. Plaintiff seeks to obtain an injunction
delineating the due process procedure to be followed by defendants
during the pendency of these proceedings. Dkt. 10 at pages 20-24.
In
order to protect the Fourteenth Amendment rights of prisoners and their
correspondents, "the decision to censor or withhold delivery of a
particular letter must be accompanied by minimum procedural safeguards."
Martinez, supra, 416 U.S. at 417, overruled on other grounds,
Thornburgh v. Abbott, 490 U.S. 401 (1989). Inmates have "a Fourteenth
Amendment due process liberty interest in receiving notice that [their]
incoming mail is being withheld by prison authorities." Frost v.
Symington, 197 F.3d 348, 353 (9th Cir. 1999) (citations omitted).
A
preliminary injunction regarding the Jail's notice and appeals
procedures will be granted if plaintiff in the due process context
satisfies the four part test set forth in Winter v. Natural Res. Def.
Council, Inc., 555 U.S. 7, 20 (2008). Therefore, the following
discussion sets forth this Court's analysis of those factors as they
relate to plaintiff's Fourteenth Amendment due process claim.
Under
the first prong of Winter, plaintiff has the burden of demonstrating
that plaintiff is likely to succeed on the merits. See Winter, supra,
555 U.S. at 20. It is axiomatic that due process is adversely impacted
by vague policies or disparate enforcement of those policies. See, e.g.,
Giaccio v. Pennsylvania, 382 U.S. 399, 402 (1966) ("the 1860 Act is
invalid under the Due Process Clause because of vagueness and the
absence of any standards sufficient to enable defendants to protect
themselves against arbitrary and discriminatory impositions of costs. . .
. Certainly one of the basic purposes of the Due Process Clause has
always been to protect a person against having the Government impose
burdens upon him except in accordance with the valid laws of the land.
Implicit in this constitutional safeguard is the premise that the law
must be one that carries an understandable meaning with legal standards
that courts must enforce"). And, it is problematic that the Jail's
notice and appeal procedure is unclear.
A policy is set forth in POL 05.07.050, which states in part:
The
Administrative Lieutenant may authorize restrictions of incoming or
outgoing mail when the correspondence is deemed to be a threat to the
legitimate penological interest of the facility. The Administrative
Lieutenant shall provide written notification to both inmate and sender
identifying the reason for the restriction, and advise both of their
right to request a review. Staff shall accept a written request for
review within ten days of initial notice. The Jail Administrator shall
review the restriction and respond in a reasonable amount of time. . . .
Dkt. 12, Exhibit 2, Wright Declaration, Exhibit VV to Wright Declaration at page 3.
Plaintiff
argues that defendants failed to comply with this policy, that the
policy fails to define "threat to the legitimate penological interest,"
and that the policy is confusing and provides no information regarding
how to obtain the stated review. Dkt. 10 at pages 21-22.
Another
mail policy indicates that prisoners and their correspondents must be
notified of the rejection by Jail staff of incoming mail, but that
policy remains silent regarding outgoing mail rejected by Jail staff.
Dkt. 45, Exhibit 2 at page 3. It states that if incoming mail is
rejected for cause, it will be returned to the sender with a copy of the
Notice of Withheld Material and shall include contact information and
directions for due process. See id. Copies of this notice will be sent
to the intended prisoner recipient. See id. The same procedure does not
apply to outgoing mail rejected by Jail staff and no appeals procedure
for prisoners is set forth in the policy. See id.
Defendants
claim that the grievance policy contained in the Inmate Manual satisfies
all of plaintiff's due process concerns. Dkt. 22 at page 11 (citing
Dkt. 25, Exhibit 2). That Manual is for prisoners only, and not for
other non-prisoner correspondents. The Manual does not refer
specifically to the procedure that should be followed if mail is
rejected, nor what notice is required, although it indicates that
prisoners will be provided a written explanation when incoming mail
(only) is rejected and instructs prisoners that they can appeal "to the
Administration Lieutenant through the kiosk (GT) system." See Dkt. 25,
Exhibit 2 at pp. 9-11. Defendants have not clarified how this manual is
applied to rejected mail and has not clarified whether or not prisoners
are given any notice of the Jail refusing to send their mail. See id.
Plaintiff
argues that because of the disparate policies and procedures "the
Jail's mail staff will be left to use unfettered discretion to apply the
confusing and inconsistent policy according to their own
interpretations." Dkt. 10 at p. 22. And, that appears to be exactly what
occurred here. The Jail applied different stamps, advising the senders
of different objections to the same types of mail. See Dkt. 12 at ¶¶
12-13, Exhibits A through SS. None of the notices provided information
to plaintiff of the procedure for appealing the rejections. Id. And,
plaintiff has submitted evidence that prisoners were not given any
notice that their mail had been rejected or that mail from the outside
was not getting in. See Dkt. 32, Exhibit 3 at page 4. This is simply
insufficient.
In Martinez, the Supreme Court affirmed an
order by a district court that "required that an inmate be notified of
the rejection of a letter written by or addressed to him, that the
author of that letter be given a reasonable opportunity to protest that
decision, and that complaints be referred to a prison official other
than the person who originally disapproved the correspondence."
Martinez, supra, 416 U.S. at 418-19, overruled on other grounds,
Thornburgh, supra, 490 U.S. 401.
Non-prisoner correspondents also
have a constitutional interest in communicating with prisoners. See
id.; Thornburgh, supra, 490 U.S. at 407 (prison and jail walls do not
"bar free citizens from exercising their own constitutional rights by
reaching out to those on the `inside'") (citations omitted). Therefore,
plaintiff has satisfied this Court that the Jail's policies and
practices of notifying senders and recipients of prison mail are unclear
and irregularly applied. As such, the Court finds that plaintiff is
likely to prevail on this issue and that the Jail's policy as applied is
unconstitutional.
As set forth previously, under the second
prong in Winter, "an alleged constitutional infringement will often
alone constitute irreparable harm." Monterey Mech. Co. v. Wilson, 125
F.3d 702, 715 (9th Cir. 1997) (quoting Associated General Contractors v.
Coalition for Economic Equity, 950 F.2d 1401, 1412 (9th Cir. 1991),
overruled on other grounds, United Food & Commercial Workers Union
Local 751 v. Brown Group, Inc., 517 U.S. 544, 551 (1996) (quoting
Goldie's Bookstore v. Superior Ct., 739 F.2d 466, 472 (9th Cir. 1984)
(citing Wright & Miller, 11 Federal Practice and Procedure § 2948 at
440 (1973))). Due process, as guaranteed by the Fourteenth Amendment,
cannot be protected by vague and irregularly applied policies and
procedures. The threat of this continuing harm sufficiently satisfies
this element of the Winter test. See Winter, supra, 555 U.S. at 20; see
also Elrods, supra, 427 U.S. at 373 (citing New York Times Co., supra,
403 U.S. 713 (footnote omitted)); Klein, supra, 584 F.3d at 1207-08.
Regarding
the third prong in the Winter test, the Court concludes that the
balance of equities tips in plaintiff's favor as to prisoners and those
sending correspondences to prisoners. Defendant has made no attempt to
argue that it would be burdensome to provide sufficient notice to
prisoners. In fact, it argues that it is already doing so, despite
plaintiff's evidence to the contrary. Nor have defendants argued that
providing sufficient notice to persons whose mail is rejected would be
an unreasonable burden; instead arguing that they, too, receive this
notice, despite the evidence to the contrary.
However,
defendants have articulated good reasons for not being required to
notify persons who do not receive rejected mail from prisoners. As to
those persons, the Jail argues persuasively that if a prisoner attempts
to send a message that would violate a restraining order or potentially
lead to harmful actions taken by others, a requirement that the Jail
notify the intended recipient of the attempted contact would defeat the
entire purpose of screening the dangerous mail in the first place. See
Dkt. 44 at ¶ 4.41. As to those persons, the Court agrees that the
balance of hardships does not tip in favor of plaintiff. Because it is
difficult to determine which potential non-prisoner recipients may
benefit from notice, and because prisoners' due process rights can be
adequately protected by providing them notice, the Court will not
require that the Jail inform the intended recipients that prisoners'
mail to them has been rejected.
Except as to those intended
recipients of prisoners' mail, under the forth Winter test, the public
interest is well served by requiring the Jail to provide notice and a
clear appeals process to prisoners of both rejected incoming and
outgoing mail, as well as to non-prisoner correspondents whose mail is
rejected.
Rather than attempting to write jail policy, this
Court will delineate the parameters of a constitutionally acceptable
policy. First, the Jail must notify a prisoner when it rejects
correspondence written by or addressed to the prisoner. This
notification, at a minimum, will set forth the reason the mail was
rejected, and the procedure to follow if the prisoner wishes to appeal
the rejection. Second, the Jail must notify a non-prisoner correspondent
if the nonprisoner correspondent's mail is rejected. Such notification,
at a minimum, will set forth the reason mail was rejected, and the
procedure to follow if the non-prisoner correspondent wishes to appeal
the rejection. Third, any appeal of rejected mail will be referred to a
jail official other than the person who originally rejected the
correspondence.
ACCORDINGLY, IT IS HEREBY ORDERED that for the duration of plaintiff's lawsuit, the Court:
1.
PRELIMINARILY ENJOINS defendants from restricting incoming and outgoing
prisoner mail to postcards only, and orders defendants not to refuse to
deliver or process prisoner personal mail on the grounds that it is in a
form other than a postcard.
2. PRELIMINARILY ENJOINS
defendants from rejecting mail to or from prisoners without providing
notice to the prisoner. This notification, at a minimum, will set forth
the reason the mail was rejected and the procedure to follow if the
prisoner wishes to appeal the rejection.
3. PRELIMINARILY
ENJOINS defendants from rejecting mail from nonprisoner correspondents
without providing notice to the non-prisoner correspondent. This
notification, at a minimum, will set forth the reason the mail was
rejected, and the procedure to follow if the non-prisoner correspondent
wishes to appeal the rejection.
4. PRELIMINARILY ENJOINS any
appeal of rejected mail that is not referred to a jail official other
than the person who originally rejected the correspondence.
.JPG)
