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Prison Legal News v. Lewis County

United States District Court, W.D. Washington, Tacoma

September 10, 2014

LEWIS COUNTY, et al., Defendants.


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.


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.


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.


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 ...

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