Free Pretrial Order - 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.

FINAL PRETRIAL ORDER

I. DATE AND APPEARANCES The Final Pretrial Conference is scheduled for February 21, 2006 at 10:30 a.m. Plaintiff is represented by Edward T. Ramey, Isaacson Rosenbaum P.C., 633 17th Street, Suite 200, Denver, Colorado 80202. Defendants are represented by William G. Pharo, Assistant United States Attorney, United States Attorney's Office, 1225 17th Street, Suite 700, Denver, Colorado 80202. II. JURISDICTION Plaintiff contends that this Court has jurisdiction over the claims in this case pursuant to 28 U.S.C. § 1331. Defendants contend that the Court has jurisdiction pursuant to the Administrative Procedure Act, 5 U.S.C. § 702.

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III. CLAIMS AND DEFENSES Plaintiff Mark Jordan ("Jordan"), an inmate at the United States Penitentiary, Administrative Maximum (ADX) facility in Florence, Colorado, challenges the constitutionality of 28 C.F.R. § 540.71(a)(2), which provides as follows: At medium security, high security, and administrative institutions, an inmate may receive softcover publications (for example, paperback books, newspaper, clippings, magazines, and other similar items) only from the publisher, from a book club, or from a bookstore. Jordan alleges that the regulation violates the First Amendment because it is facially vague and overbroad, unnecessarily sweeping, lacks a valid, rational connection to a legitimate penological interest, and is an exaggerated response to the interest asserted. He also alleges that rejections by the Defendants of specific publications mailed to him from sources other than those specifically allowed by the regulation lacked individualized determinations and failed to provide him a realistic opportunity to appeal a decision to reject, thereby constituting a taking of his personal property without procedural due process of law in violation of the Fifth Amendment. Jordan requests the Court to declare the regulation to be unconstitutional both facially and as applied to him and to enter a permanent injunction against its further enforcement. Defendants contend that the subject regulation bears a rational connection to legitimate penological interests and is constitutional both on its face and as applied to Plaintiff. IV. STIPULATIONS 1. Jordan, at all times pertinent hereto, has been an inmate at the United States

Penitentiary, Administrative Maximum (ADX) facility, Florence, Colorado. 2. Robert A. Hood, at all times pertinent hereto, was the Warden at the United States

Penitentiary, Administrative Maximum (ADX) facility, Florence, Colorado. 2

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3.

Mary H. Sosa, at all times pertinent hereto, was the Assistant Inmate Systems

Manager at the United States Penitentiary, Administrative Maximum (ADX) facility, Florence, Colorado. 4. 28 C.F.R. § 540.71(a)(2) was promulgated by the Bureau of Prisons (the

"Bureau") on December 17, 2002, has been implemented at the Florence ADX facility, and provides as follows: At medium security, high security, and administrative institutions, an inmate may receive softcover publications (for example, paperback books, newspaper, clippings, magazines, and other similar items) only from the publisher, from a book club, or from a bookstore. 5. Pursuant to 28 C.F.R. § 540.71(a)(2), the Defendants rejected and refused to

deliver to Jordan incoming mail containing 120 pages of an internet published series of essays entitled "Justice Denied." 6. Jordan exhausted his administrative remedies with regard to the material

described in paragraph 5, above. 7. Pursuant to 28 C.F.R. § 540.71(a)(2), the Defendants rejected and refused to

deliver to Jordan incoming mail containing photocopies of two magazine articles. 8. Jordan exhausted his administrative remedies with regard to the material

described in paragraph 7, above. 9. Pursuant to 28 C.F.R. § 540.71(a)(2), the Defendants rejected and refused to

deliver to Jordan incoming mail containing clippings. 10. Jordan exhausted his administrative remedies with regard to the material

described in paragraph 9, above.

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11.

Jordan raised and exhausted his administrative remedies with regard to the

exclusion from his mail of items falling within the term "other similar items" as used in 28 C.F.R. § 540.71(a)(2). 12. Bureau personnel, at least at the Florence ADX facility, received no training on

the application or interpretation of 28 C.F.R. § 540.71(a)(2), other than provision of the Program Statement on Incoming Publications. 13. Pursuant to 28 C.F.R. § 540.71(a)(2), as applied at the Florence ADX facility,

paperback books, magazines, and newspapers, without distinction, mailed to an inmate from a source other than a publisher, book club, or bookstore, would be rejected for delivery to the inmate. 14. The Assistant Correctional Services Administrator for the North Central Region

does not view a single page magazine article to be within the scope of 28 C.F.R. § 540.71(a)(2). 15. The Assistant Correctional Services Administrator for the North Central Region

does not view a single newspaper clipping to be within the scope of 28 C.F.R. § 540.71(a)(2) and would use discretion with regard to three or four clippings. 16. The Assistant Correctional Services Administrator for the North Central Region

does not view a single internet printout to be within the scope of 28 C.F.R. § 540.71(a)(2) and would use discretion with regard to a two or three page printout. 17. The Assistant Correctional Services Administrator for the North Central Region

interprets 28 C.F.R. § 540.71(a)(2) as requiring a book club to be a for-profit business to be a qualifying source. 18. receive. 4 There are no limits on the number of pieces of individual mail that an inmate may

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19.

Inmates do not have access to the internet. V. PENDING MOTIONS

Jordan filed a Motion for Partial Summary Judgment and Opening Brief on October 20, 2005. Defendants filed a Response on December 12, 2005. Jordan filed a Reply on December 30, 2005. VI. WITNESSES I. Plaintiff's Witnesses: A. Non-Expert Witnesses: 1. Will Call: a. Mark Jordan: Mr. Jordan will testify regarding the factual basis

for his claims, including his efforts to obtain various publications and his pursuit of administrative remedies with the federal correctional system. Mr. Jordan is expected to testify in person or by video-conference. 2. May Call: a. John Lee: Mr. Lee may be called to testify as an adverse witness

regarding the Defendant Bureau's justifications for the challenged regulation. Mr. Lee may be called to testify in person if made available by the Defendants; otherwise, he may testify by deposition. b. Jon Loftness: Mr. Loftness may be called to testify as an adverse

witness regarding the Defendant Bureau's justifications for the challenged regulation. Mr. Loftness may be called to testify in person if made available by the Defendants; otherwise, he may testify by deposition.

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c.

Mary Sosa:

Ms. Sosa may be called to testify as an adverse

witness regarding the Defendant Bureau's justifications for the challenged regulation. Ms. Sosa may be called to testify in person if made available by the Defendants; otherwise, she may testify by deposition. B. Expert Witnesses: 1. May Call: a. Walter Kautzky: Mr. Kautzky may be called to testify as an expert

regarding the Defendant Bureau's justifications for the challenged regulation. Mr. Kautzky would be expected to testify in person. II. Defendants' Witnesses: A. Non-Expert Witnesses: 1. Will Call: a. Mary Sosa: Ms. Sosa will testify to the reasons the subject

regulation was needed and how it complies with the factors set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987). B. Expert Witnesses: 1. Will Call: a. John Lee: Mr. Lee will testify to the reasons the subject regulation

was needed and how it complies with the factors set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987). b. Jon Loftness: Mr. Loftness will testify to the reasons the subject

regulation was needed and how it complies with the factors set forth in Turner v. Safley, 482 U.S. 78, 89-91 (1987). 6

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VII. EXHIBITS A. Plaintiff's Exhibits: 1. Jordan's administrative file containing Requests for Administrative

Remedy, Regional Administrative Remedy Appeals, Central Office Administrative Appeals, and Responses. 2. 3. Promulgation of 28 C.F.R. § 540.71(a)(2), 67 FR 77161 (Dec. 17, 2002). U. S. Department of Justice, Federal Bureau of Prisons Program Statement

No. 5266.10 ("Incoming Publications"). 4. Answers to OMB Inquiries, 7/31/02, Sarah Qureshi, Rules Administrator,

Federal Bureau of Prisons. 5. Answers to OMB Inquiries, 8/09/02, Sarah Qureshi, Rules Administrator,

Federal Bureau of Prisons. B. Defendants' Exhibits: The administrative record. C. Copies of listed exhibits must be provided to opposing counsel and any pro se

party no later than five days after the final pretrial conference. The objections contemplated by Fed.R.Civ.P. 26(a)(3) shall be filed with the Clerk and served by hand delivery or facsimile no later than 11 days after the exhibits are provided. VIII. DISCOVERY Discovery has been completed. IX. SPECIAL ISSUES Whether this case should be resolved through a trial or exclusively upon a review of the administrative record. 7

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X. SETTLEMENT 1. Counsel for the parties and any pro se party met in person on January 27, 2005 to

discuss in good faith the settlement of the case. Additionally, a settlement conference was conducted pursuant to the Court's Order with U. S. Magistrate Judge Watanabe on January 24, 2006. 2. party. 3. 4. The parties were promptly informed of all offers of settlement. Counsel for the parties and any pro se party do not intend to hold future The participants in both settlement conferences included counsel and any pro se

settlement conferences. 5. It appears from the discussion by all counsel and any pro se party that there is no

possibility of settlement. 6. 7. There is no further settlement conference scheduled. Counsel for the parties and any pro se party considered ADR in accordance with

D.C.COLO.LCivR. 16.6. XI. OFFER OF JUDGMENT Counsel and any pro se party acknowledge familiarity with the provision of Rule 68 (Offer of Judgment) of the Federal Rules of Civil Procedure. Counsel have discussed it with the clients against whom claims are made in this case. XII. EFFECT OF FINAL PRETRIAL ORDER Hereafter, this Final Pretrial Order will control the subsequent course of this action and the trial and may not be amended except by consent of the parties and approval by the Court or by order of the Court to prevent manifest injustice. The pleadings will be deemed merged 8

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herein. This Final Pretrial Order supersedes the Scheduling Order. In the event of ambiguity in any provision of this Final Pretrial Order, reference may be made to the record of the pretrial conference to the extent reported by stenographic notes and to the pleadings. XIII. TRIAL AND ESTIMATED TRIAL TIME; FURTHER TRIAL PREPARATION PROCEEDINGS 1. Plaintiff requests a trial to the Court. Defendants submit that jurisdiction is

limited by the Administrative Procedure Act to a review of the administrative record. 2. 3. A trial is estimated to take two days. If there is to be a trial, it shall begin Monday, June 12, 2006 at 9:30 a.m. The

trial will be held in Courtroom A602, Alfred A. Arraj United States Courthouse, 901 19th Street, Denver, Colorado 80294. The Court reserves three consecutive days for the trial. 4. The administrative record shall be filed by Friday, April 7, 2006. Any further

briefing of the Plaintiff' pending motion for partial summary judgment (Dkt. # 62) or s application of the Administrative Procedure Act, 5 U.S.C. § 701, et seq., in light of the filing of the administrative record shall be submitted by April 21, 2006. DATED this 21st day of February, 2006. BY THE COURT:

s/ Phillip S. Figa Phillip S. Figa United States District Judge

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APPROVED this 17th day of February, 2006: s/ Edward T. Ramey Edward T. Ramey ATTORNEYS FOR PLAINTIFF Isaacson Rosenbaum P.C. 633 17th Street, Suite 2200 Denver, CO 80202 Phone: 303/256-3978 Fax: 303/256-3152 E-mail: [email protected] s/ William G. Pharo William G. Pharo, Asst. U.S. Attorney William J. Leone, Acting U.S. Attorney ATTORNEYS FOR DEFENDANTS United States Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 Phone: 303/454-0100 Fax: 303/454-0404 E-mail: [email protected]

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