Free Brief in Support of Motion - District Court of Colorado - Colorado

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

Document 63

Filed 10/20/2005

Page 1 of 17

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. OPENING BRIEF IN SUPPORT OF PLAINTIFF'S MOTION FOR PARTIAL SUMMARY JUDGMENT Plaintiff Mark Jordan ("Jordan"), through his undersigned counsel, respectfully submits the following Opening Brief in Support of his Motion for Partial Summary Judgment pursuant to Fed.R.Civ.P. 56 and D.C.Colo.LCivR 56.1(A). Jordan attaches hereto an Appendix of the pertinent documents referenced in this Opening Brief. I. JORDAN'S CLAIM Jordan is a federal inmate at the United States Penitentiary, Administrative Maximum (ADX) facility, Florence, Colorado. He brought this action for declaratory and injunctive relief for violation of his rights under the First and Fifth Amendments to the Constitution of the United States. He challenges the constitutional validity, both facially and as applied to him, 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,

1158676_1.doc

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

Document 63

Filed 10/20/2005

Page 2 of 17

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. For purposes of this Motion for Partial Summary Judgment, Jordan requests the Court declare that 28 C.F.R. § 540.71(a)(2) is unconstitutional as applied to: (1) internet printouts; (2) newspaper clippings; and (3) clippings and copies from magazines. With regard, at a minimum, to these three categories of "softcover publications," the restrictions contained within the regulation are unsupportable under the standard of review established by the Supreme Court in Turner v. Safley, 482 U.S. 78, 89-91 (1987), and therefore in violation of the First and Fifth Amendments to the Constitution. II. STATEMENT OF UNDISPUTED MATERIAL FACTS Jordan respectfully submits that the following material facts are, or should be, undisputed: 1. Jordan, at all times pertinent hereto, has been an inmate at the United States

Penitentiary, Administrative Maximum (ADX) facility, Florence, Colorado. [Loftness dep., p. 11, ll. 5-15; Lee dep., p. 9, ll. 6-10; Sosa dep., p. 9, l. 14 ­ p. 10, l. 8].

1158676_1.doc

2

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

Document 63

Filed 10/20/2005

Page 3 of 17

2.

Robert A. Hood, at all times pertinent hereto, was the Warden at the United States

Penitentiary, Administrative Maximum (ADX) facility, Florence, Colorado. [Bureau of Prisons produced documents (hereinafter "BOP") 0002, 0008, 0014, 0020]. 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. [Sosa dep., p. 6, ll. 13-22]. 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. [67 FR 77161; Sosa dep., p. 17, ll. 11-25]. 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." [BOP 0001]. 6. Jordan exhausted his administrative remedies with regard to the material

described in paragraph 5, above, and received no explanation or justification for the rejection other than application of 28 C.F.R. § 540.71(a)(2) and its implementing Program Statement. [BOP 0001-0006]. 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. [BOP 0007].

1158676_1.doc

3

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

Document 63

Filed 10/20/2005

Page 4 of 17

8.

Jordan exhausted his administrative remedies with regard to the material

described in paragraph 7, above, and received no explanation or justification for the rejection other than application of 28 C.F.R. § 540.71(a)(2) and its implementing Program Statement. [BOP 0007-0012]. 9. Pursuant to 28 C.F.R. § 540.71(a)(2), the Defendants rejected and refused to

deliver to Jordan incoming mail containing clippings. [BOP 0013]. 10. Jordan exhausted his administrative remedies with regard to the material

described in paragraph 9, above, and received no explanation or justification for the rejection other than application of 28 C.F.R. § 540.71(a)(2) and its implementing Program Statement. [BOP 0013-0018]. 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), and received no response other than a rejection of his constitutional concerns and a suggestion that his appeals were "repetitive." [BOP 0019-0024]. 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 appended hereto. [Sosa dep., p. 31, l. 14 ­ p. 32, l. 7; Lee dep., p. 10, l. 16 ­ p. 11, l. 16; Loftness dep., p. 14, l. 21 ­ p. 15, l. 1; Program Statement ­ Incoming Publications (1/10/2003)]. 13. In response to inquiries from the Office of Management and Budget, the Bureau's

Rules Administrator, on or about July 31, 2002, defined "softcover materials" for purposes of then proposed 28 C.F.R. § 540.71(a)(2) as "magazines, softcover books, clippings, items in

1158676_1.doc

4

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

Document 63

Filed 10/20/2005

Page 5 of 17

paper folders, pamphlets, catalogs, brochures, and other items of a similar nature." The Bureau's Rules Administrator further noted that "[w]e prefer to leave a specific definition out of the rule so that we may expand the definition as necessary to encompass new forms of incoming publications that we may not have originally contemplated." [BOP 0533 (question 6)]. 14. 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. [Sosa dep., p. 25, ll. 2-5; Lee dep., p. 11, l. 17 ­ p. 12, l. 4]. 15. Pursuant to 28 C.F.R. § 540.71(a)(2), as applied at the Florence ADX facility, an

article torn out of a magazine, mailed to an inmate from a source other than a publisher, book club, or bookstore, would be rejected for delivery to the inmate. [Sosa dep., p. 22, l. 22 ­ p. 23, l. 19; Lee dep., p. 12, ll. 5-18]. 16. Pursuant to 28 C.F.R. § 540.71(a)(2), as applied at the Florence ADX facility, a

clipping from a newspaper, mailed to an inmate from a source other than a publisher, book club, or bookstore, would be rejected for delivery to the inmate. [Sosa dep., p. 25, ll. 19-24; Lee dep., p. 12, ll. 19-21]. 17. Pursuant to 28 C.F.R. § 540.71(a)(2), as applied at the Florence ADX facility, a

printout off of the internet, mailed to an inmate from a source other than a publisher, book club, or bookstore, would be rejected for delivery to the inmate. [Sosa dep., p. 25, ll. 6-9; Lee dep., p. 12, l. 25 ­ p. 13, l. 11]. 18. Bureau personnel do not have a specific understanding of the term "other similar

items" as used in 28 C.F.R. § 540.71(a)(2). [Lee dep., p. 13, l. 24 ­ p. 14, l. 11].

1158676_1.doc

5

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

Document 63

Filed 10/20/2005

Page 6 of 17

19.

Notwithstanding the practices at the Florence facility, 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). [Loftness dep., p. 19, l. 19 ­ p. 20, l. 4]. 20. Notwithstanding the practices at the Florence facility, 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. [Loftness dep., p. 20, ll. 8-24]. 21. Notwithstanding the practices at the Florence facility, 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. [Loftness dep., p. 20, l. 25 ­ p. 21, l. 8]. 22. 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. [Loftness dep., p. 18, l. 8 ­ p. 19, l. 10]. 23. While an internet printout would be rejected at the Florence ADX per 28 C.F.R. §

540.71(a)(2), the same material would probably be allowed if hand-copied into a letter. [Lee dep., p. 39, l. 4 ­ p. 40, l. 6]. 24. The Bureau's recited purpose for adopting 28 C.F.R. § 540.71(a)(2) was "to

reduce the amount of contraband introduced into Federal prisons through materials sent by mail." [67 FR 77161; Loftness dep., p. 16, l. 22 ­ p. 17, l. 5].

1158676_1.doc

6

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

Document 63

Filed 10/20/2005

Page 7 of 17

25.

The Bureau has estimated that approximately 7% of the total number of "soft

cover publications" received in the federal prison system during the course of a year contain contraband. [BOP 0537, 0539]. 26. It is easier to hide contraband in a book or magazine than in a one-or-few page

magazine article, clipping, or internet printout. [Lee dep., p. 21, l. 21 ­ p. 22, l. 9]. 27. The primary impact of 28 C.F.R. § 540.71(a)(2) has been to reduce the incoming

volume of soft cover books and magazines as distinguished from other items covered by the rule such as printouts. [Lee dep., p. 31, ll. 4-13]. 28. 28 C.F.R. § 540.71(a)(2) has had no material effect upon the ability of prison staff

to detect contraband (at least at the Florence facility). [Sosa dep., p. 34, ll. 1-3]. 29. Contraband is no more likely to find its way into a prison through a one-page

internet printout or newspaper clipping (subject to the source restriction of 28 C.F.R. § 540.71(a)(2)) than through a one-page letter (not subject to the source restriction). [Lee dep., p. 23, ll. 1-5]. 30. Gang communications into a prison are no more likely to be successfully

effectuated through a single page internet printout than through a single page letter. [Sosa dep., p. 40, l. 19 ­ p. 41, l. 5]. 31. There are no limits on the number of pieces of individual mail that an inmate may

receive. [Sosa dep., p. 33, ll. 1-4; Lee dep., p. 16, l. 24 ­ p. 17, l. 10]. 32. There are no page limits on letters that an inmate may receive. [Sosa dep., p. 32,

ll. 8-13; Lee dep., p. 17, ll. 11-16].

1158676_1.doc

7

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

Document 63

Filed 10/20/2005

Page 8 of 17

33.

28 C.F.R. § 540.71(a)(2) has had no material effect on the operation or staffing of

the mail room at the Florence ADX facility or elsewhere within the federal prison system. [Sosa dep., p. 33, ll. 5-10, 22-25; p. 34, ll. 4-7; Loftness dep., p. 30, ll. 6-11]. 34. The promulgation of 28 C.F.R. § 540.71(a)(2) was not supported by a cost-benefit

analysis. [BOP 0535 (question 14)]. 35. Inmates do not have access to the internet. [BOP 0535 (question 15); Sosa dep.,

p. 28, ll. 5-7; Lee dep., p. 34, ll. 23-25]. III. ARGUMENT A. Standard for Partial Summary Judgment "Summary judgment should be granted if the evidence submitted shows 'that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Shell Rocky Mountain Production, LLC v. Ultra Resources, Inc., 415 F.3d 1158, 1165 (10th Cir. 2005), quoting Fed.R.Civ.P. 56(c). "When applying this standard, we review the evidence and draw reasonable inferences therefrom in the light most favorable to the nonmoving party." Id., quoting Keys Youth Services, Inc. v. City of Olathe, 248 F.3d 1267, 1270 (10th Cir. 2001). In light of the facts outlined above, which Jordan respectfully submits should be deemed undisputed as emanating virtually exclusively from the Bureau's own designated representatives in this litigation, partial summary judgment on the points noted is appropriate. If the Bureau contests any of these factual submissions, it "may not rest upon the mere allegations or denials" in its pleadings. Fed.R.Civ.P. 56(e). Rather, it is incumbent upon it to "set forth specific facts showing that there is a genuine issue for trial." Id. If it fails or is unable to do so with some

1158676_1.doc

8

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

Document 63

Filed 10/20/2005

Page 9 of 17

measure of specificity in its response to this Motion, Jordan respectfully submits that the Court may properly enter a partial summary judgment in his favor on these points. Downes v. Beach, 587 F.2d 469, 472 (10th Cir. 1978). B. The Constitutional Standard for Assessing Jordan's Claims The First Amendment "embraces the right to distribute literature . . . and necessarily protects the right to receive it." Martin v. City of Struthers, 319 U.S. 141, 143 (1943). Materials on the internet, as well as those in print, implicate these protections. Reno v. American Civil Liberties Union, 521 U.S. 844, 868 (1997). When the person seeking to receive publications or other materials by mail is a prison inmate, the constitutional claims are still entitled to judicial cognizance. Turner, supra, 482 U.S. at 84. "Prison walls do not form a barrier separating prison inmates from the protections of the Constitution." Id. As noted by the Tenth Circuit, "Inmates have a First Amendment right to receive information while in prison to the extent the right is not inconsistent with prisoner status or the legitimate penological objectives of the prison." Jacklovich v. Simmons, 392 F.3d 420, 426 (10th Cir. 2004). In Thornburgh v. Abbott, 490 U.S. 401, 413 (1989), the Supreme Court stated that regulations affecting the sending of publications to prisoners are appropriately analyzed under the "reasonableness standard" theretofore established in Turner, supra, for incoming mail. That standard provides that "when a prison regulation impinges on inmates' constitutional rights, the regulation is valid if it is reasonably related to legitimate penological interests." Turner, supra, at 89. The Supreme Court enunciated the following four factors as "relevant in determining the reasonableness" of the regulation at issue:

1158676_1.doc

9

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

Document 63

Filed 10/20/2005

Page 10 of 17

1.

"There must be a 'valid, rational connection' between the prison regulation and the

legitimate governmental interest put forward to justify it." Turner, supra, at 89, quoting Block v. Rutherford, 468 U.S. 576, 586 (1984). 2. "[A] second factor . . . is whether there are alternative means of exercising the

right that remain open to prison inmates." Turner, supra, at 90. 3. "[A] third consideration is the impact accommodation of the asserted

constitutional right will have on guards and other inmates, and on the allocation of prison resources generally." Id. 4. "[F]inally, the absence of ready alternatives is evidence of the reasonableness of a

prison regulation. . . . By the same token, the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an 'exaggerated response' to prison concerns." Id. The Tenth Circuit has directed that all four of the Turner factors must be considered. Jacklovich, supra, 392 F.3d at 427. C. Application of the Turner v. Safley Standard to Jordan's Claims 1. Valid, rational connection with the legitimate governmental interest put forward to justify the regulation.

In adopting 28 C.F.R. § 540.71(a)(2), the Bureau recited a single governmental interest as its justification: "to reduce the amount of contraband introduced into Federal prisons through materials sent by mail." [Undisputed Fact ("UF") #24]. Jordan does not contest the legitimacy of this interest. Yet, the Assistant Inmate Systems Manager at the Florence ADX [UF #3] states that the regulation has had no material effect on the ability of the prison staff to detect contraband. [UF

1158676_1.doc

10

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

Document 63

Filed 10/20/2005

Page 11 of 17

#28]. The former Inmate Systems Manager at Florence [Lee dep., p. 5, ll. 18-22] acknowledges that contraband is no more likely to find its way into a prison through a single page internet printout or newspaper clipping (subject to the source restriction of 28 C.F.R. § 540.71(a)(2)) than through a single page letter (not subject to the restriction). [UF #29]. Notwithstanding this, there are no page limits on letters that an inmate may receive [UF #32] and no limits on the number of letters an inmate may receive. [UF #31]. Indeed, notwithstanding the enforcement of 28 C.F.R. § 540.71(a)(2) to bar delivery of internet printouts [UF #5, UF #17], copies or tearouts of magazine articles [UF #7, UF #15], and newspaper clippings [UF #9, UF #16] at Florence from sources other than publishers, book clubs, or bookstores, the Assistant Correctional Services Administrator for the Bureau's North Central Region (which includes Florence) [Loftness dep., p. 7, l. 19 ­ p. 8, l. 11] does not believe that at least a single page magazine article [UF #19], newspaper clipping [UF #20], or internet printout [UF # 21] should be viewed as within the scope of the regulation at all. Jordan submits that the connection of the regulation with this proffered governmental interest is tenuous at best. Though reduction in contraband is the only governmental interest formally proffered by the Bureau, two other interests have been suggested during discovery in this case ­ interdiction of coded gang communications and impact on staffing. Again, Jordan would not contest the legitimacy of such interests. Yet, the Assistant Inmate Systems Manager at the Florence ADX acknowledges that the transmission of coded gang communications into a prison are no more likely to be successfully effectuated through a single page internet printout than through a single page letter [UF #30] ­ though the latter are unlimited in quantity or page number [UF #31, UF # 32]. Further, while an

1158676_1.doc

11

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

Document 63

Filed 10/20/2005

Page 12 of 17

internet printout would be rejected at Florence, precisely the same material (presumably gang code and all) would probably be allowed if hand-copied into a letter. [UF #23]. And, as noted above, the Assistant Correctional Services Administrator for the Bureau's North Central Region candidly acknowledges that a single page magazine article [UF #19], newspaper clipping [UF #20], or internet printout [UF # 21] should not be viewed as within the scope of the regulation, however justified. With regard to staffing, the Assistant Inmate Systems Manager at the Florence ADX acknowledges that the regulation has had no material effect on the operation or staffing of that facility's mail room [UF #33], and the Assistant Correctional Services Administrator for the Bureau's North Central Region agrees that the regulation has not impacted the number of people working in institution mailrooms system-wide [UF #33]. Indeed, as noted above, he would not even apply the regulation in the manner adopted at Florence. When asked by the Office of Management and Budget if the Bureau had conducted a cost-benefit analysis of the thenproposed regulation with regard to staffing, the Bureau's Rules Administrator simply replied that it was too burdensome to maintain such statistics. [UF #34 and cited document]. Jordan

respectfully submits that these additional purported justifications for the regulation are every bit as lacking in connection to the regulation itself as the single justification (reduction of contraband) formally proffered. While Jordan is unaware of any dispositive precedent to date one way or the other involving the application of 28 C.F.R. § 540.71(a)(2) specifically, he notes that the Ninth Circuit Court of Appeals affirmed the District Court in striking down a California state prison regulation prohibiting inmates from receiving mail containing material downloaded from the internet in

1158676_1.doc

12

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

Document 63

Filed 10/20/2005

Page 13 of 17

Clement v. California Department of Corrections, 364 F.3d 1148 (9th Cir. 2004) ­ specifically noting the absence of "a rational or logical connection" between the policy and the proffered interests of interdicting coded gang communications and reducing the volume of mail. Clement, supra, 364 F.3d at 1152. With regard to gang communications, the court observed that the California Department of Corrections had not supported its assertion that coded messages were any more likely to be transmitted into a prison by way of internet generated materials than by way of a word-processed letter. Id. With regard to mail volume, the court concluded that the prohibition was simply an inappropriate "arbitrary way to achieve a reduction." Id. Precisely the same is true here. In similar vein, the Second Circuit rejected a New York prison regulation barring newspaper clippings from incoming mail, noting a lack of connection to the proffered justification of preventing the dissemination into the prison of inflammatory material (as such material could as easily be disseminated through a letter). Allen v. Coughlin, 64 F.3d 77, 80 (2d Cir. 1995). And the United States District Court for the Western District of Wisconsin rejected a prohibition on receipt of newspaper and magazine clippings and photocopies under a Wisconsin prison regulation as insufficiently justified by the proffered penological interests of interdicting coded messages and controlling mail volume. Lindell v. Frank, 2003 U.S.Dist.LEXIS 24623 (W.D. Wisc. May 5, 2003), at *45-46. A challenge in the same court to a similar policy regarding internet printouts was mooted when the prison authorities withdrew that regulation. West v. Frank, 2005 U.S.Dist.LEXIS 5024 (W.D. Wisc. March 25, 2005), at *12-14. The only authorities arguably to the contrary appear to be Rogers v. Morris, 34 Fed.Appx. 481, 482 (7th Cir. 2002) (upholding a ban on internet-generated material otherwise

1158676_1.doc

13

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

Document 63

Filed 10/20/2005

Page 14 of 17

apparently available to the inmate directly from a website ­ not the case here ­ and absent any evidence whatsoever to contradict the institution's purported concern with gang communications ­ not the case here); In re Collins, 86 Cal. App. 4th 1176, 1185 (Cal. App. 2001) (upholding a ban on internet downloads at the same facility where such a ban was ultimately stricken by the Ninth Circuit in Clement, supra); and Waterman v. Commandant, 337 F.Supp. 2d 1237, 1241 (D. Kan. 2004) (upholding a broad non-original-source publication ban upon the proffered general justification of prison security with virtually no evidentiary discussion of rational connection one way or the other). 2. Alternative means for inmates to exercise their constitutionally protected right.

It is undisputed that inmates at the Florence ADX do not have access to the internet. [UF #35]. Further, as observed by the Second Circuit, application of a "publishers-only" rule of this nature to news clippings "is . . . tantamount to a complete prohibition" ­ noting that "[n]ewspaper publishers generally do not run clipping services" and there is nothing to suggest that such a service would qualify as an approved source under a rule of this nature in any event. Allen, supra, 64 F.3d at 80. Further, "[s]ubscriptions are not entirely substitutable for clippings because subscribing requires inmates to anticipate which papers might have articles that they like to read and to subscribe to all such papers." Id. The same is certainly true of magazine articles. The practical result of the application of 28 C.F.R. § 540.71(a)(2) to internet printouts, news clippings, and magazine article copies and tear-outs is the effective exclusion of these materials ­ and the information they contain ­ from the prison system.

1158676_1.doc

14

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

Document 63

Filed 10/20/2005

Page 15 of 17

3.

The impact accommodation of the asserted constitutional right would have on guards and other inmates, and on the allocation of prison resources generally.

As discussed above, 28 C.F.R. § 540.71(a)(2) has had no material impact upon mail room staffing or operations [UF #33], nor did the Bureau proffer any form of cost-benefit analysis suggesting that it would [UF #34]. Further, the primary impact of the rule has been to reduce the volume of incoming soft cover books and magazines rather than printouts, tear-outs, and clippings. [UF #27]. And it is the former, rather than the latter, which pose the primary risk of introducing contraband. [UF #26]. Indeed the rule has had no material effect upon the ability of prison staff to intercept contraband. [UF #28]. Finally, whatever utility may have existed for the transmission of coded gang communications by way of clippings, printouts, or tear-outs, the same continues to exist by virtue of letters [UF #30] ­ allowed in any number and at any length [UF #31, UF #32]. 4. The absence or existence of ready alternatives.

The disconnection between the Bureau's proffered justifications for 28 C.F.R. § 540.71(a)(2) and the rule itself makes an analysis of alternatives somewhat difficult. As

discussed, the rule has had minimal, if any, material impact on interdicting contraband or coded communications or upon operations and staffing. Mail in any volume and at any length will continue to be inspected in any event. The barred materials are no more likely to contain contraband or coded communications than other materials that are allowed. In the context of clippings, internet printouts, and magazine tear-outs, a readily more effective alternative would be simply to impose a reasonable page limit on all letters and materials received. In fact, the evidence already adduced makes it quite apparent that 28 C.F.R. § 540.71(a)(2) is an exaggerated and ill-conceived response to an ill-identified problem. The rule

1158676_1.doc

15

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

Document 63

Filed 10/20/2005

Page 16 of 17

itself is not specific ­ referring to "other similar items."

[UF #4].

The Bureau's Rules

Administrator states that the Bureau "prefers to leave a specific definition out of the rule" so that it may be expanded at will. [UF #13]. Bureau personnel have not received training on

application and interpretation of the rule [UF #12], and they have very different understandings of its scope [UF #18, UF #19, UF #20, UF #21, UF #22]. This is not a rule that is even susceptible to evaluation in the context of alternatives. It is simply an overreaching and arbitrary pronouncement. IV. CONCLUSION Jordan respectfully submits that, based upon the undisputed or undisputable facts already adduced in this case, 28 C.F.R. § 540.71(a)(2) ­ at least as applied to internet printouts, news clippings, and copies and tear-outs from magazines ­ easily fails all four of the Turner v. Safley tests and thereby wholly fails to qualify as a regulation reasonably related to legitimate penological interests. It's application to these types of materials therefore violates the First Amendment rights of Jordan and all other inmates in the custody of the Bureau in those institutions to which the rule applies. Respectfully submitted this 20th day of October, 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]

1158676_1.doc

16

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

Document 63

Filed 10/20/2005

Page 17 of 17

CERTIFICATE OF SERVICE I HEREBY CERTIFY that on this 20th day of October, 2005, I electronically filed a true and correct copy of the foregoing OPENING BRIEF IN SUPPORT OF PLAINTIFF'S 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/ Jayne M. Wills

1158676_1.doc

17