Free Brief - District Court of Colorado - Colorado

Case 1:03-cv-02320-PSF-MJW

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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO

Civil Action No. 03-cv-2320-PSF-MJW MARK JORDAN, Plaintiff, v. ROBERT A. HOOD, Warden, ADX Florence, MARY H. SOSA, Acting ISM, ADX Florence, in their official capacities, and FEDERAL BUREAU OF PRISONS, Defendants.

DEFENDANTS' ADMINISTRATIVE PROCEDURE ACT BRIEF

A. Jurisdiction Pursuant to the Administrative Procedure Act (APA) Defendants contend that Plaintiff is not entitled to a trial in this case because jurisdiction only exists pursuant to the Administrative Procedure Act (APA), 5 U.S.C. § 702. Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1238-39 (10 th Cir. 2005). The APA allows Plaintiff's to contest the constitutionality of government regulations. District court review of agency actions must be processed as appeals. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10 th Cir. 1994). The administrative record pertaining to the enactment of 28 C.F.R. § 540.71 was submitted on April 7, 2006.

Case 1:03-cv-02320-PSF-MJW

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The APA prescribes the procedures, scope, and standards for judicial review of final agency determinations. The applicable standards of review are found at 5 U.S.C. § 706(2). When reviewing agency action under the APA, the reviewing court must determine whether the decision was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. When reviewing formal agency action, the court must also determine if the agency decision was supported by substantial evidence. Citizens To Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); Olenhouse v. Commodity Credit Corp., 42 F.3d at 1574. In deciding whether administrative action is arbitrary and capricious, the court must determine whether the agency examined all relevant facts and connected them to the decision, and whether the agency made a clear error of judgment. However, the reviewing court is prohibited from substituting its own judgment for that of the agency. Citizens to Preserve Overton Park. Inc. v. Volpe, 401 U.S. at 415-416. B. The Mail Regulation Effective January 16, 2003, 28 C.F.R. § 540.71 was amended to include the following language: "At medium security, high security, and administrative institutions, an inmate may receive soft-cover publications (for example, paperback books, newspaper clippings, magazines, and other similar items) only from the publisher, from a book club, or from a bookstore." 28 C.F.R. § 540.71(a)(2).

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The Bureau of Prisons (BOP) determined this amendment was necessary to reduce the amount of contraband introduced into federal prisons through materials sent by mail. Soft-cover publications were being used to smuggle drugs and other contraband into federal prisons. AR. 750 - 767. BOP estimated that approximately 97,206 pieces of contraband were being found in soft-cover publications per year in the federal prison system. Soft-cover publications were also being used to as a means of sending coded messages to other inmates. AR. 673. BOP correctly determined that the presence of contraband in prisons, such as drugs and weapons posed a danger to inmates, staff and the public. BOP considered alternative solutions to the problem of intercepting contraband, but determined that other options were impracticable. See, 67 F.R. 77161. Prison regulations that restrict the receipt of mail by inmates do not violate the First Amendment if they are reasonably related to legitimate penological interests. Thornburgh v. Abbott, 490 U.S. 401, 414-19 (1989). Several factors are relevant in determining the reasonableness of a regulation. There must be a valid rational connection between the regulation and the reason for it, and the governmental objective must be legitimate and neutral. A second factor is whether the inmates have alternative means of exercising their First Amendment rights. Another consideration is the impact that accommodating the constitutional right will have on other inmates, guards, and on the allocation of prison resources. The absence of de minimis alternatives is evidence that a

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prison regulation is reasonable. Turner v. Safely, 482 U.S. 78, 89-91 (1987) (Turner). Application of these factors demonstrates that 28 C.F.R. § 540.71(a)(2) is not facially invalid. There is a rational connection between the regulation and preventing individuals from sending contraband with mail. The regulation is neutral in that it bans all soft-cover material, regardless of content, that is not sent by a publisher, book club, or bookstore. Inmates maintain an alternative way of receiving such publications; they can receive them from a publisher, bookstore, or book club. Additionally, alternative means of detecting contraband were considered, such as technological security devices and increased staffing, but were determined to be impracticable. Furthermore, 28 C.F.R. § 540.71(d) provides for administrative review of rejection decisions. The Complaint acknowledges that a prisoner may grieve rejection decisions through the BOP Administrative Remedy Program, and that the Plaintiff utilized this procedure. Complaint § F ¶ 2 & § D ¶ 30. The regulation was enacted based on substantial evidence that a significant amount of contraband and communications were being smuggled into federal prisons through the use of soft-cover publications that were not from publishers, bookstores, or book clubs. BOP considered the Turner factors before enacting the regulation. BOP's decision to enact the regulation was not arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.

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The court should deny Plaintiff's request to declare the regulation unconstitutional. The regulation does not violate the First and Fifth Amendments. Dated this 21 st day of April, 2006. Respectfully submitted, WILLIAM J. LEONE United States Attorney

s/William G. Pharo William G. Pharo Assistant United States Attorney 1225 Seventeenth St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100

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CERTIFICATE OF MAILING

I hereby certify that on April 21, 2006, I electronically filed the foregoing with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail addresses: Edward T. Ramey [email protected] [email protected] I served this document to the following via U.S. Mail: Case Manager of Mark Jordan #48374-066 USP-Max P.O. Box 8500 Florence, CO 81226-8500

s/Annette Dolce Office of the United States Attorney

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