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

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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. PLAINTIFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Plaintiff Mark Jordan, through his undersigned counsel, respectfully submits the following Proposed Findings of Fact and Conclusions of Law in connection with the trial in the above-captioned case on June 12, 2006: FINDINGS OF FACT 1. Mark Jordan ("Jordan"), at all times pertinent to the matters at issue in this case,

has been an inmate at the United States Penitentiary, Administrative Maximum facility (ADX), Florence, Colorado. [Final Pretrial Order ­ ¶ IV(1)] 2. The Florence ADX facility is operated by Defendant Federal Bureau of Prisons

("the Bureau") and is within the Bureau's North Central Region. [Testimony of John Loftness] 3. Robert A. Hood, during the bulk of the period of time pertinent hereto, was the

Warden at the Florence ADX facility. Mr. Hood is sued in this action in his official capacity. [Final Pretrial Order ­ ¶ IV(2)]

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4.

Mary H. Sosa, at all times pertinent hereto until her retirement in January 2006,

was the Assistant Inmate Systems Manager at the Florence ADX facility. Ms. Sosa is sued in this action in her official capacity. [Final Pretrial Order ­ ¶ IV(3); Testimony of Mary Sosa] 5. As a part of her responsibilities at the Florence ADX facility, Ms. Sosa supervised

the operations of the prison's mail room from the early 1990s until her retirement. [Testimony of Mary Sosa] 6. On December 17, 2002, the Bureau promulgated 28 C.F.R. § 540.71(a)(2), which

provides as follows: At medium security, high security, and administrative institutions, an inmate may receive soft cover publications (for example, paperback books, newspaper, clippings, magazines, and other similar items) only from the publisher, from a book club, or from a bookstore. [Joint Exhibit 1; Administrative Record ­ pp. 741-49] 7. 28 C.F.R. § 540.71(a)(2) was implemented upon its proclamation at the Florence

ADX facility. [Final Pretrial Order ­ ¶ IV(4)] 8. Pursuant to 28 C.F.R. § 540.71(a)(2), Defendants rejected and refused to deliver

to Jordan incoming mail consisting of 120 pages of an internet published series of essays entitled "Justice Denied." [Final Pretrial Order ­ ¶ IV(5)] 9. Jordan exhausted his administrative remedies with regard to the material

described in paragraph 8, above, and received no explanation for the rejection other than application of 28 C.F.R. § 540.71(a)(2) and its implementing Program Statement. [Joint Exhibit 2; Final Pretrial Order ­ ¶ IV(6)]

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10.

Pursuant to 28 C.F.R. § 540.71(a)(2), Defendants rejected and refused to deliver

to Jordan incoming mail consisting of photocopies of two magazine articles. [Final Pretrial Order ­ ¶ IV(7)] 11. Jordan exhausted his administrative remedies with regard to the material

described in paragraph 10, above, and received no explanation for the rejection other than application of 28 C.F.R. § 540.71(a)(2) and its implementing Program Statement. [Joint Exhibit 3; Final Pretrial Order ­ ¶ IV(8)] 12. Pursuant to 28 C.F.R. § 540.71(a)(2), Defendants rejected and refused to deliver

to Jordan incoming mail consisting of clippings. [Final Pretrial Order ­ ¶ IV(9)] 13. Jordan exhausted his administrative remedies with regard to the material

described in paragraph 12, above, and received no explanation for the rejection other than application of 28 C.F.R. § 540.71(a)(2) and its implementing Program Statement. [Joint Exhibit 4; Final Pretrial Order ­ ¶ IV(10)] 14. 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." [Joint Exhibit 5; Final Pretrial Order ­ ¶ IV(11)] 15. Bureau personnel, at least at the Florence ADX facility and at the Bureau's North

Central Regional Office, 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

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("Program Statement") promulgated by the Bureau Director on January 10, 2003. [Joint Exhibit 6; Testimony of Mary Sosa; Testimony of John Loftness] 16. The Program Statement provides extensive guidance in Section 6(b)-6(f) (pp. 3-6)

and Section 7 (pp. 6-9) (dealing with the Ensign Amendment) regarding restrictions on the contents of publications that may be received from an otherwise authorized source, as well as procedures for review or rejection of such publications. In Section 6(a) (pp. 2-3), the Program Statement simply recites the source restrictions on hard cover publications (at all Bureau institutions) and "softcover publications" (at medium security, high security, and administrative institutions) without further guidance as to interpretation or implementation. [Joint Exhibit 6] 17. The Program Statement specifies a single exception to the source restrictions for

both hard cover and soft cover publications by providing in paragraph 6(a)(4) that the Unit Manager may permit a publication to be received from a source other than a publisher, book club, or bookstore when provided written documentation that the publication is no longer available from those sources. [Joint Exhibit 6] 18. 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 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." [Joint Exhibit 1, p. 669, question 6]

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19.

Neither Ms. Sosa nor the Assistant Correctional Services Administrator for the

Bureau's North Central Region (John Loftness) appeared to have a specific understanding of the term "other similar items" as used in 28 C.F.R. § 540.71(a)(2). Mr. Loftness stated that, in his view, it would include things like pamphlets. [Testimony of Mary Sosa; Testimony of John Loftness] 20. 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, are rejected for delivery to inmates. [Testimony of Mary Sosa; Final Pretrial Order ­ ¶ IV(13)] 21. Pursuant to 28 C.F.R. § 540.71(a)(2), as applied at the Florence ADX facility

prior to January 23, 2006, an article torn out of a magazine or photocopied from 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. [Testimony of Mary Sosa] 22. Pursuant to 28 C.F.R. § 540.71(a)(2), as applied at the Florence ADX facility

prior to January 23, 2006, a clipping or photocopy of 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. [Testimony of Mary Sosa] 23. Pursuant to 28 C.F.R. § 540.71(a)(2), as applied at the Florence ADX facility

prior to January 23, 2006, 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. [Testimony of Mary Sosa]

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24.

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 change 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. [Joint Exhibit 7] 25. No policy change or directive similar to the one issued at the Florence ADX

facility on January 23, 2006 [Joint Exhibit 7] has been issued by the Bureau's North Central Regional Office. [Testimony of John Loftness] Nor has the Bureau suggested or offered any evidence to suggest that the policy reflected in the January 23, 2006 Florence ADX directive is, or is intended to be, in any way a permanent policy change by or within the Bureau. 26. Notwithstanding the practices at the Florence facility prior to January 23, 2006,

the Assistant Correctional Services Administrator for the North Central Region does not view a one-to-three-or-four page magazine article, news clipping, or internet printout to be within the

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reasonable scope of 28 C.F.R. § 540.71(a)(2), and believes that discretion should be used in permitting inmates to receive such items. [Testimony of John Loftness] 27. 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 [Joint Exhibit 1, p. 741] 28. All mail coming into the Florence ADX facility is x-rayed upon arrival at the

institution and again upon arrival at the mailroom. A portable scanner is also available in the mailroom for use in detecting contraband. Each piece of mail (except properly marked legal correspondence) is opened, handled, and read by the two personnel who operate the mail room. [Testimony of Mary Sosa] When the Bureau promulgated 28 C.F.R. § 540.71(a)(2), it stated that "Staff will continue to examine all mail (including softcover materials from a publisher, book store, or book club) for contraband." 67 FR 77161 [Joint Exhibit 1, p. 744] 29. The former Inmate Systems Manager at Florence ADX facility, John Lee,

acknowledges that it is easier to hide contraband in a book or magazine than in a one-or-few page magazine article, clipping, or internet printout. And Mr. Lee also acknowledges that 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. [Testimony of John Lee ­ Deposition, p. 5, ll. 18-19; p. 21, l. 21 ­ p. 22, l. 17; p. 31, ll. 4-13] 30. Mr. Lee further acknowledges that it is no more likely that contraband would be

included in a one-page internet printout or news clipping than in a one-page letter, nor would it

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take longer to search for contraband in a one-page printout than in a one-page letter. [Testimony of John Lee ­ Deposition, p. 22, l. 18 ­ p. 23, l. 5] 31. Another proffered justification for 28 C.F.R. § 540.71(a)(2), albeit not officially

in the statement promulgating the rule in the Federal Register at 67 FR 77161, is interdiction of coded gang communication. 32. Ms. Sosa acknowledges that gang communications into a prison are no more

likely to be successfully effectuated through a single or few page internet printout, copy of an article, or clipping than through a single or few page letter and, in fact, are likely to be more difficult for the mail room staff to detect in a longhand letter than in a clipping, copy, or printout. [Testimony of Mary Sosa] 33. There are no limits on the number of pieces of individual mail that an inmate may

receive. [Testimony of Mary Sosa] 34. There are no page limits on letters that an inmate may receive. Limitations on the

size of a particular piece of mail do not come into play until the mail reaches a specified thickness (such as one inch). [Testimony of Mary Sosa] 35. A third justification for 28 C.F.R. § 540.71(a)(2) proffered by the Bureau, albeit

again not officially in the statement promulgating the rule in the Federal Register at 67 FR 77161, is reduction of the impact of mail processing upon prison staffing and resources. 36. The promulgation of 28 C.F.R. § 540.71(a)(2) by the Bureau was not supported

by a cost-benefit analysis, nor does the Bureau maintain statistics concerning the impact the regulation would have upon staff time spent processing mail or searching for contraband. [Joint Exhibit 1, p. 671, question 14]

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37.

Both Ms. Sosa and Mr. Loftness acknowledge that 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. [Testimony of Mary Sosa; Testimony of John Loftness] 38. Inmates at the Florence ADX facility do not have access to the internet.

[Testimony of Mary Sosa] CONCLUSIONS OF LAW 1. Jordan has brought this action seeking declaratory and injunctive relief to the

effect that 28 C.F.R. § 540.71(a)(2) is facially overbroad and violates the First Amendment rights of himself and other inmates in the federal prison system. He asserts subject matter jurisdiction under 28 U.S.C. § 1331. 2. As a preliminary matter, Defendants argue that the Court, when considering

Jordan's claims, must limit its review to the administrative record provided by the Bureau ­ Stipulated Exhibit 1. The basis of this argument is that the United States has only waived sovereign immunity in the context of non-monetary damage suits involving federal agencies under 5 U.S.C. § 702 of the Administrative Procedure Act and that the scope of review is therefore restricted to the administrative record under 5 U.S.C. § 706. The United States Court of Appeals for the Tenth Circuit has held, however, that the waiver of sovereign immunity under 5 U.S.C. § 702 "is not limited to suits under the Administrative Procedure Act." Simmat v. U.S. Bureau of Prisons, 413 F.3d 1225, 1233 (10th Cir. 2005). The Tenth Circuit stated specifically "federal district courts now have jurisdiction over claims by federal prisoners against federal prison officials seeking vindication of their constitutional rights under either 28 U.S.C. § 1331 or 28 U.S.C. § 1361, and may obtain relief in the nature of either injunction or mandamus." Id. at

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1236. As the jurisdictional basis for Jordan's claims is 28 U.S.C. § 1331, the Court does not believe itself to be confined to a review of the Bureau's administrative record. This is

particularly the case here as the administrative record is purely rulemaking ­ or quasi-legislative ­ in nature; there has been no quasi-judicial adjudication of Jordan's constitutional claims at the administrative level. This Court sits in an initial adjudicative capacity, not in an appellate capacity, with regard to those claims. 3. The Court has also given consideration to whether Jordan's claims have been

rendered moot, at least in part, by the adoption in January 2006 of the mail room policy set forth in Joint Exhibit 7 at the Florence ADX facility. Jordan submits the case is not moot, and Defendants agree that it is "probably not moot." The Court notes that Joint Exhibit 7 states explicitly that it reflects "guidance" received from the Regional Director "due to unsettled judicial issues" ­ which Defendants' counsel notes refers to this case. The Court also notes that a comparable policy statement has not been issued by the Regional Office itself, nor by the Bureau's Central Office, nor is there any evidence that a similar policy is in effect at any other facility in the federal prison system. Finally, the Court notes that Joint Exhibit 7 appears at least to some degree (e.g., clippings) to be directly contrary to 28 C.F.R. § 540.71(a)(2) itself. Under these circumstances, the Court cannot conclude that "it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur." Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 190 (2000). The Court concludes the case is not moot. 4. 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

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(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). The Supreme Court has made it clear that constitutional protections do not stop at prison walls. Turner v. Safley, 482 U.S. 78, 84 (1987). 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" developed in Turner, supra, i.e., "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. As stated 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). 5. The Supreme Court has enunciated four factors as "relevant in determining the

reasonableness" of a prison regulation: (1) "There must be a 'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it;" (2) "a second factor . . . is whether there are alternative means of exercising the right that remain open to prison inmates;" (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;" and (4) "finally, 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." Turner, supra, at 89-90 (citations omitted). The Tenth Circuit has

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directed, in the context of a suit under 42 U.S.C. § 1983, that all four of the Turner factors must be considered. Jacklovich, supra, at 427. 6. In the present case, Defendants have tendered three governmental interests as

justification for 28 C.F.R. § 540.71(a)(2): (a) reduction in the amount of contraband mailed into federal prisons; (b) interdiction of coded gang communications; and (c) reduction of the impact of mail processing upon prison staffing and resources. Jordan acknowledges that the first two interests are legitimate penological interests and that the third is a consideration encompassed by the third Turner criterion. The Court concurs and concludes that reduction of contraband

entering the prison system and interdiction of gang communications are legitimate governmental interests and that the impact upon staffing and resources is a criterion that this Court must consider in any event in the context of other governmental interests under the mandated Turner analysis. 7. The next inquiry the Court must make is whether there is a "valid, rational

connection" between 28 C.F.R. § 540.71(a)(2) and the legitimate governmental interests put forward to justify it. While such a connection may exist with regard to paperback books, magazines, newspapers, and other voluminous forms of "soft-cover publication," the Court concludes that Jordan has met his burden of establishing that a "valid, rational connection" does not exist to justify 28 C.F.R. § 540.71(a)(2)'s source restrictions with regard to such items as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and printouts from the internet to the extent that these items do not exceed limitations on volume otherwise applicable to general correspondence to inmates. In this regard, the Court concludes that the evidence presented has established that: (a) such items are no more likely to serve as vehicles

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for the introduction of contraband into the prison than letters of similar length; (b) gang communications are no more likely ­ and indeed may be less likely ­ to be effectuated through such items than through letters of similar length; and (c) permitting such items to be mailed to inmates from sources other than publishers, book clubs, and bookstores does not appear upon the evidence submitted to have a material impact upon prison staffing or resources. 8. In support of its conclusions in paragraph 7, above, the Court notes that similar

conclusions have been reached with regard to similar state prison regulations by the Ninth Circuit Court of Appeals in Clement v. California Department of Corrections, 364 F.3d 1148 (9th Cir. 2004) (regarding internet printouts), the Second Circuit Court of Appeals in Allen v. Coughlin, 64 F.3d 77 (2d Cir. 1995) (regarding newspaper clippings), and the Seventh Circuit Court of Appeals in Lindell v. Frank, 377 F.3d 655 (7th Cir. 2004) (regarding magazine clippings and photocopies). 9. While the analysis may stop at this point for failure of 28 C.F.R. § 540.71(a)(2) to

satisfy the first Turner criterion with regard to such items as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and printouts from the internet, the Court proceeds with conclusions as to the remaining three criteria. With regard to the second criterion, the Court concludes that reasonable alternative means are not available to inmates to receive items of this nature. The Court notes that access to the internet is not available to Jordan and other inmates at the ADX facility. The Court further notes, as observed by the Second Circuit in Allen, supra, application of a "publishers-only" rule to news clippings "is . . . tantamount to a complete prohibition" as "[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

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of this nature in any event. Allen, supra, 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. 10. Turning to the third Turner criterion, Defendants have presented no evidence to

suggest that accommodating receipt of newspaper or magazine clippings, photocopies of newspaper or magazine articles, and internet printouts from sources other than publishers, book clubs, and bookstores will have any material impact upon guards, other inmates, or upon the allocation of prison resources generally. In fact, Defendants acknowledge that 28 C.F.R. § 540.71(a)(2), in its entirety, has had no material effect upon mail room operations at Florence. There is no basis upon which to conclude that accommodating receipt of these particular types of materials will have any material impact upon guards, other inmates, or upon the allocation of prison resources generally. 11. Finally, with regard to the fourth Turner criterion, the institution in January 2006

of the interim policy at the Florence ADX facility itself establishes the existence of an obvious, easy alternative to application of 28 C.F.R. § 540.71(a)(2)'s source restrictions to such items as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and internet printouts. The overbreadth of the regulation in this regard suggests that, as applied at least to these items, it is not reasonable, but is an exaggerated response to prison concerns. 12. For the reasons set forth above, the Court concludes that 28 C.F.R. § 540.71(a)(2)

is overbroad and fails to satisfy any of the four criteria set forth in Turner v. Safley, supra, as applied to such items as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and internet printouts (at least to the extent that these items do not exceed

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reasonable length or volume limitations or other restrictions otherwise applicable to general inmate correspondence and mail). 13. The Court notes the guidance of the Supreme Court in Ayotte v. Planned

Parenthood of Northern New England, 126 S.Ct. 961 (2006), to the effect that a district court may, and should, tailor its remedies to "unconstitutional applications" of a defective statute or regulation even in the context of a facial challenge. With this guidance in mind, the Court concludes that 28 C.F.R. § 540.71(a)(2) is unconstitutional when applied specifically to such items as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and internet printouts, to the extent that these items do not exceed reasonable length or volume limitations or other reasonable restrictions otherwise applicable to inmate correspondence and mail. 14. Pursuant to and as required by 18 U.S.C. § 3626(a)(1), the Court specifically

finds and concludes that the prospective relief granted herein is narrowly drawn, extends no further than necessary to correct the violations of federal constitutional right asserted by Jordan, and is the least intrusive means necessary to correct the violation of federal constitutional right. The Court has, further, given substantial weight to any adverse impact on public safety and the operation of the federal criminal justice system caused by the relief. JUDGMENT Based upon the Findings of Fact and Conclusions of Law set forth above, the Court enters judgment: (1) declaring 28 C.F.R. § 540.71(a)(2) to be unconstitutional as applied

specifically to such items as newspaper or magazine clippings, photocopies of newspaper or magazine articles, and internet printouts to the extent that these items do not exceed reasonable

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length or volume limitations or other reasonable restrictions otherwise applicable to inmate correspondence and mail; and (2) permanently enjoining Defendants from applying and enforcing 28 C.F.R. § 540.71(a)(2) in such manner as to prevent Jordan from receiving such items from sources other than publishers, book clubs, or bookstores. Respectfully submitted this 23rd day of June, 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] CERTIFICATE OF SERVICE (CM/ECF) I HEREBY CERTIFY that on this 23rd day of June, 2006, I electronically filed a true and correct copy of the foregoing PLAINTIFF'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 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 Jayne M. Wills

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