Free Motion for Leave - District Court of Colorado - Colorado

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

Document 79-3

Filed 12/29/2005

Page 1 of 3

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. PLAINTIFF'S REPLY IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Mark Jordan ("Jordan"), through his undersigned counsel, respectfully submits the following Reply in Support of his Motion for Partial Summary Judgment: The Defendants' first point in their Response is that summary judgment proceedings are not appropriate in a case under the Administrative Procedure Act. Jordan has no quarrel with this proposition when ­ as in the case of Olenhouse v. Commodity Credit Corp., 42 F.3d 1560 (10th Cir. 1994), cited by the Defendants ­ the District Court is "acting as a court of appeal" from a quasi-judicial agency adjudication. Id. at 1564. That is not the case here. Here, Jordan seeks declaratory and injunctive relief regarding the substantive constitutionality of a federal regulation under 28 U.S.C. §§1331, 2201, and 2202. To the extent the Administrative Procedure Act is implicated at all, it is purely by virtue of its broad waiver of sovereign immunity ­ extending beyond suits predicated upon the APA itself. See Simmat v.

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

Document 79-3

Filed 12/29/2005

Page 2 of 3

U.S. Bureau of Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005). There has been no adjudication of the constitutional issues at the agency level ­ there has only been rulemaking. Far from sitting in an "appellate" capacity, this Court is being requested by Mr. Jordan to apply the criteria enunciated by the Supreme Court in Turner v. Safley, 482 U.S. 78, 89-91 (1987), as mandated in Jacklovich v. Simmons, 392 F.3d 420, 427 (10th Cir. 2004) (itself before the court on cross motions for summary judgment). The normal rules and standards regarding consideration of requests for full or partial summary judgment should apply. The Defendants' second point is simply an invocation of the Bureau's rulemaking pronouncement that the regulation in question addresses concerns with contraband, as well as Mr. Jordan's expert's acknowledgment that soft-cover publication restrictions in general can reduce gang communications and institution staff commitments. Neither the legitimacy of these penological interests nor the truism that virtually any restriction on incoming mail will have some level of impact on these interests is being contested. Rather, it is the manifest overbreadth of the regulation at issue, and its utter failure to satisfy the second, third, and fourth Turner criteria that is at issue. And the undisputed evidence cited in Jordan's Motion for Partial Summary Judgment is sufficient to establish, as a matter of law, that these criteria cannot be satisfied with regard to the types of soft-cover publications that are the specific subject of the Motion.

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

Document 79-3

Filed 12/29/2005

Page 3 of 3

Jordan respectfully renews his request that his Motion for Partial Summary Judgment be granted. Respectfully submitted this 29th day of December, 2005.

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] CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 29th day of December, 2005, I electronically filed a true and correct copy of the foregoing PLAINTIFF'S REPLY IN SUPPORT OF HIS MOTION FOR PARTIAL SUMMARY JUDGMENT with the Clerk of Court using the CM/ECF system which will send notification of such filing to the following e-mail address: ([email protected]) William G. Pharo, Esq. United States Attorney's Office 1225 17th Street, Suite 700 Denver, CO 80202 s/ Susan Tablack ________________________________ Susan Tablack

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