Free Response to Motion - 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-02320-PSF-MJW MARK JORDAN, Plaintiff, v. ROBERT A. HOOD, Warden, ADX Florence, MARY H. SOSA, Acting ISM, ADX Florence, in their official and individual capacities, and FEDERAL BUREAU OF PRISONS, Defendants.

DEFENDANTS' RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT

Defendants, by undersigned counsel, respond to Plaintiff's Motion for Partial Summary Judgment as follows: A. Plaintiff's Motion Plaintiff moves for summary judgment contending that 28 C.F.R. § 540.71 is unconstitutional as applied to: (1) internet printouts; (2) newspaper clippings; and (3) clippings and copies from magazines. As an initial matter, Defendants contend that summary judgment does not apply to 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, 123839 (10 th Cir. 2005). District court review of agency actions must be processed as appeals.

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

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Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10 th Cir. 1994). 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 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." 28 C.F.R. § 540.71(a)(2). BOP determined this amendment was necessary to reduce the amount of contraband introduced into Federal prisons through materials sent by mail. The presence of contraband in prisons, such as drugs, weapons and escape-related materials poses 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. Exh. A-1: 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. Furthermore, 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

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

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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 prison regulation is reasonable. Turner v. Safely, 482 U.S. 78, 89-91 (1987). Application of these factors demonstrates that 28 C.F.R. § 540.71(a)(2) does not violate the First Amendment. There is a valid rational connection between the regulation and preventing individuals from sending contraband with mail. The regulation is neutral in that it bans all softcover material, regardless of content, that is not sent by a publisher, bookclub, 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. Plaintiff's own expert, William L. Kautzky, testified that there were legitimate penelogical reasons for publisher only soft cover publication regulations. Exh. A-2: 31:16 - 34:20; 47:4 - 57:5. Plaintiff argues that internet articles and newspaper clippings are no different than ordinary letters, and thus, don't pose a significant threat. Although this may be true for articles that are only a few pages long, Plaintiff does not address the fact that BOP personnel would be required to examine longer articles more thoroughly, and that this would be very time consuming. Therefore, the regulation is not unconstitutional even as applied to restrict internet articles, and newspaper and magazine clippings.

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

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Dated this 12 th day of December, 2005.

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 Fax: (303) 454-0404 E-mail: [email protected] Attorney for Defendants

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

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CERTIFICATE OF MAILING I hereby certify that on this 12 th day of December, 2005, I electronically filed the foregoing DEFENDANTS' RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENT with the Clerk of the 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 hereby certify that on this 12 th day of December, 2005, I served the forgoing DEFENDANTS' RESPONSE TO MOTION FOR PARTIAL SUMMARY JUDGMENTto the following non CM/ECF participants in the manner (mail, hand delivery, etc.) indicated by the nonparticipant's name: Theresa Montoya - via e-mail

s/William G. Pharo William G. Pharo Assistant United States Attorney 1225 Seventeenth St., Suite 700 Denver, Colorado 80202 Telephone: (303) 454-0100 Fax: (303) 454-0404 E-mail: [email protected] Attorney for Defendants

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