Free Proposed Findings of Fact - District Court of Colorado - Colorado

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

Document 103

Filed 06/26/2006

Page 1 of 11

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.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

Defendants, by undersigned counsel, submit the following proposed Findings of Fact and Conclusions of Law: FINDING OF FACT 1. Plaintiff, an inmate at the United States Penitentiary, Administrative Maximum (ADX), asserts jurisdiction pursuant to the United States Constitution, 28 U.S.C. § 1331 (federal question), 28 U.S.C. § 2201 (Declaratory Judgment Act), and 5 U.S.C. § 702 (Administrative Procedure Act). Complaint § B. 2. Effective January 16, 2003, the United States Bureau of Prisons (BOP) amended 28 C.F.R. § 540.71 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

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

Document 103

Filed 06/26/2006

Page 2 of 11

similar items) only from the publisher, from a book club, or from a bookstore." 28 C.F.R. § 540.71(a)(2) ("publishers only regulation"). 3. Plaintiff contends that 28 C.F.R. § 540.71(a)(2) is facially invalid because it is overbroad in violation of the First Amendment. Additionally, Plaintiff contends that Defendants Hood and Sosa, in their official capacities, violated his First Amendment rights when, pursuant to the regulation, they rejected copies of internet and magazine articles that were mailed to him by someone other than a publisher, bookstore or book club. Plaintiff seeks a declaration that the "publishers only regulation" violates the First Amendment because it permits BOP to reject newspaper clippings and internet and magazine articles regardless of their content. 4. BOP determined the "publishers only regulation" amendment was necessary to reduce the amount of contraband introduced into federal prisons through materials sent by mail. BOP determined that the presence of contraband in prisons, such as drugs, weapons and escape-related materials, posed a danger to inmates, staff and the public. Anecdotal evidence from numerous federal prisons indicated that paperback books and magazines were being used to smuggle drugs and other contraband into federal prisons. Joint Exhibit 1: Administrative Record (AR.), pp. 750 - 767; 67 F.R. 77161. BOP estimated that approximately 1,326,000 soft-cover publications were received in the federal prison system per year, and that approximately 97,206 pieces of contraband were being found in soft-cover publications per year. Soft-cover publications were also being used as a means

2

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

Document 103

Filed 06/26/2006

Page 3 of 11

of sending coded messages to other inmates. AR. 673. BOP considered alternative solutions to the problem of intercepting contraband, such as technological security devices and increased staffing, but determined that other options were impracticable. 67 F.R. 77161. 5. It is unlikely that contraband or coded communications will be contained in soft-cover publications that are sent by publishers, book stores or book clubs. BOP mail room staff , however, would be required to read each page of a soft-cover publication sent by a friend or relative to determine if it contained contraband or coded communications. This process would be unduly burdensome to mail room operations. 6. Letters sent to BOP inmates by friends and relatives are typically less than 12 pages long. Reviewing this correspondence is not unduly burdensome. 7. On March 12, 2004, incoming mail to Mr. Jordan, consisting of 120 pages of an internet published series of essays entitled "Justice Denied," was rejected by BOP pursuant to 28 C.F.R. § 540.71(a)(2). Final Pretrial Order ­ ¶ IV(5); Joint exhibit 2, pp. 1 - 4. 8. On April 21, 2003, incoming mail to Mr. Jordan consisting of photocopies of two magazine articles was rejected pursuant to 28 C.F.R. § 540.71(a)(2). Final Pretrial Order ­ ¶ IV(7); Joint exhibit 3, pp. 7 - 8. No evidence regarding the size of these articles was presented. 9. On February 10, 2003, Jordan filed a request for Administrative Remedy

3

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

Document 103

Filed 06/26/2006

Page 4 of 11

contending 28 C.F.R. § 540.71(a)(2) was unconstitutional as applied to clippings, copies and magazines. Joint exhibit 4, p. 13. This request did not indicate that any particular correspondence was rejected. 11. On July 8, 2003, Jordan filed a request for Administrative Remedy contending 28 C.F.R. § 540.71(a)(2) was unconstitutionally vague because of the phrase "and other similar items." Joint exhibit 5, p. 19. This request did not indicate that any particular correspondence was rejected. 12. On January 23, 2006, the Warden at the Florence ADX facility issued a memorandum advising that "guidance was received from Regional Director Nalley stating that due to unsettled judicial issues concerning the receipt of materials from other than commercial sources, the institution was encouraged to consider implementing changes in the processing of incoming correspondence." Under this guidance, the following policy was implemented and has been in effect since that time: (1) Inmates will be permitted to receive incoming correspondence containing newspaper or magazine clippings from non-commercial sources if, after analysis, it is determined the newspaper or magazine clipping poses no threat to institution security. Inmates will be permitted to receive such clippings in quantities which will not adversely affect the ability of mail room staff to effectively monitor incoming correspondence; and (2) Until additional guidance is provided by Central Office, materials printed directly from the internet will be treated as general correspondence, subject to rejection for content unless and until it is determined that the volume of such materials adversely affects staff ability to effectively monitor incoming correspondence for contraband and other threats to institutional security and good order.

4

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

Document 103

Filed 06/26/2006

Page 5 of 11

Joint Exhibit 7. CONCLUSIONS OF LAW 1. Suits against government officials in their official capacities are suits against the United States. Wyoming v. United States, 279 F.3d 1214, 1225 (10 th Cir. 2002). 2. The federal government cannot be sued without its consent. Block v. North Dakota, 461 U.S. 273, 287 (1983). A congressional waiver of sovereign immunity cannot be implied, but must be unequivocally expressed by statute. United States v. Mitchell, 445 U.S. 535, 538 (1980). 3. Sovereign immunity is not waived by general jurisdictional statutes such as 28 U.S.C. § 1331. Lonsdale v. United States, 919 F.2d 1440, 1443-44 (10 th Cir. 1990). Nor does 28 U.S.C. § 2201 waive sovereign immunity. Progressive Consumers Federal Credit Union v. United States, 79 F.3d 1228, 1230 (1 st Cir. 1996). 4. The Administrative Procedure Act (APA), 5 U.S.C. § 702, provides that "[a] person suffering legal wrong because of agency action, or adversely affected or aggrieved by agency action within the meaning of a relevant statute, is entitled to judicial review thereof." 5. District court review of agency actions pursuant to the APA must be processed as appeals. Olenhouse v. Commodity Credit Corp., 42 F.3d 1560, 1579-80 (10 th Cir. 1994). The APA prescribes the procedures, scope, and standards of judicial review of final agency determinations. The applicable standards of review are found at 5 U.S.C.

5

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

Document 103

Filed 06/26/2006

Page 6 of 11

§ 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, such as the enactment of a regulation, 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 1560, 1574 (10 th Cir. 1994). 6. 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. Overton Park, 401 U.S. at 415-416. 7. 5 U.S.C. § 702 is a general waiver of sovereign immunity for constitutional claims seeking injunctive relief. This general waiver permits claims pursuant to 28 U.S.C. § 1331, when a plaintiff is not attacking "final agency action." Simmat v. United States Bureau of Prisons, 413 F.3d 1225, 1233 (10 th Cir. 2005). However, when a plaintiff is contesting "final agency action" such as rule-making, the APA is the only waiver of sovereign immunity and its procedures apply. To hold otherwise would permit a plaintiff to unilaterally bypass APA procedures and case law, rendering the APA meaningless.

6

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

Document 103

Filed 06/26/2006

Page 7 of 11

8. 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). 9. 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 prison regulation is reasonable. Turner v. Safley, 482 U.S. 78, 89-91 (1987). 10. Application of these factors demonstrates that 28 C.F.R. § 540.71(a)(2) does not violate the First Amendment and is not facially invalid. The Administrative Record demonstrates there is a valid rational connection between the regulation and preventing individuals from sending contraband and gang communications with soft-cover publications. 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. Furthermore, inmates maintain an alternative way of receiving such publications; they can receive them from a publisher, bookstore, or book club. BOP considered alternative means of detecting contraband, such as technological security devices and increased staffing, but these were

7

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

Document 103

Filed 06/26/2006

Page 8 of 11

determined to be impracticable. 11. The Court finds that BOP's enactment of the regulation was not arbitrary and capricious, or otherwise in violation of the law, and was based on substantial evidence. 12. "Publishers only" regulations for hardcover books have been upheld by the United States Supreme Court. Bell v. Wolfish, 441 U.S. 520, 555 (1979). Courts have extended the reasoning in Bell to soft-cover publications. See Ward v. Washtenaw County Sheriff's Dept., 881 F.2d 325, 329 (6 th Cir. 1989); Hurd v. Williams, 755 F.2d 306, 308-09 (3 d Cir. 1985); Kines v. Day, 754 F.2d 28, 30 (1 st Cir. 1985). 13. The "publishers only regulation" is not unconstitutionally overbroad because internet articles and newspaper clippings the size of typical letters could be rejected pursuant to it. In a facial challenge to the overbreadth of a regulation, a court must first determine if the enactment reaches a substantial amount of constitutionally protected conduct. Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 (1982); Jordan v. Pugh, 425 F.3d 820, 828 (10 th Cir. 2005). 14. Factors to be considered in this analysis include the number of valid applications, the historic or likely frequency of conceivably impermissible applications, the nature of the activity or conduct sought to be regulated, and the nature of the state interest underlying the regulation. Aiello v. City of Wilmington, 623 F.2d 845, 860 (3d Cir. 1980). Applying these factors, the Court finds that the regulation does not reach a substantial amount of constitutionally protected activity. Rejecting paperback books and

8

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

Document 103

Filed 06/26/2006

Page 9 of 11

magazines are valid constitutional applications of the regulation. There is no evidence that the regulation has been frequently used to reject internet articles or newspaper clippings that are not voluminous. The evidence shows that the current policy at ADX is to allow such materials as long as the quantity does not adversely affect mail room operations. Thus, the claimed overbreadth of the regulation is not real and substantial when compared to its plainly legitimate sweep. 15. The regulation was not unconstitutionally applied to Mr. Jordan. The rejection of 120 pages of internet articles was a valid application of the regulation. It would be just as burdensome for the ADX mail room staff to read this amount of internet material as it would be to review a 120 page paperback book or magazine. Furthermore, Plaintiff has failed to establish that the rejection of the two magazine articles was an unconstitutional application of the regulation because no evidence was presented that established the volume of this material. 16. The Prison Litigation Reform Act limits the breadth of injunctive relief. Prospective relief can extend no further than necessary to correct the violation of the federal right of a particular plaintiff, and no further than necessary to correct the violation of the federal right. 18 U.S.C. § 3626(a)(1)(A). Thus, the only relief that the Court could grant would be to order that Mr. Jordan be permitted to receive non-voluminous newspaper, magazine and internet articles from friends and relatives. However, such an order would not be justified because there is no evidence that this type of correspondence

9

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

Document 103

Filed 06/26/2006

Page 10 of 11

is being rejected. Dated this 26th day of June, 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

10

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

Document 103

Filed 06/26/2006

Page 11 of 11

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO CERTIFICATE OF SERVICE (CM/ECF) I hereby certify that on June 26, 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]

Case Manager of Mark Jordan #48374-066 USP-Max P.O. Box 8500 Florence, CO 81226-8500

s/William G. Pharo William G. Pharo Assistant United States Attorney 1225 17 th Street, Suite 700 Denver, CO 80202 Telephone: 303-454-0100 FAX: 303-454-0404 E-mail: [email protected]

11