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Prison Legal News v. Northwestern Regional Jail Authority

United States District Court, W.D. Virginia, Harrisonburg Division

September 29, 2017




         This case involves constitutional challenges brought by publisher Prison Legal News (PLN) after materials it sent to prisoners at the Northwestern Regional Adult Detention Center (NRADC) were sent back to it at PLN's expense with a notation that they had been refused, per jail policy. The named defendants are the Northwestern Regional Jail Authority (NRJA), which runs NRADC, jail superintendent James F. Whitley, and Captain Clay Corbin.[1] Whitley was in charge of all operations at the jail and approved the policy that PLN challenges; Corbin was the jail officer tasked with implementing the policy. After this suit was filed, the parties engaged in settlement discussions. They subsequently provided to the court two consent decrees, both of which were entered by the court. Those orders effectively granted the injunctive relief sought by PLN in this suit.

         Now pending before the court are cross-motions for summary judgment, in which the parties disagree as to the remaining relief, if any, that the court should grant. The motions raise a number of distinct issues, including whether the prior consent decrees either establish legal liability or moot the requests for declaratory relief, whether the defendants are entitled to qualified immunity, whether the NRJA is entitled to Eleventh Amendment immunity, and whether, if the court were to reach the issue of damages, PLN is entitled to anything other than nominal damages. The motions are fully briefed and were argued before the court at a March 1, 2017 hearing. At the hearing, PLN conceded that Corbin is no longer an appropriate defendant because he was not the policy-maker and because the question of injunctive relief-for which he might have been a proper defendant-had been resolved. Thus, Corbin will be dismissed from the case per the agreement of the parties.

         For the reasons discussed below, the court will grant in part and deny in part both motions for summary judgment.

         I. BACKGROUND

         NRADC is a Virginia-accredited detention center. At the time of the depositions in this case, it housed approximately 650 prisoners, although the numbers have exceeded 725, and were as low as 550 when Whitley first began working there. Approximately twenty-five percent of the inmates are women.

         PLN, a project of the Human Rights Defense Center (HRDC), publishes a number of books and magazines which it sends to incarcerated persons along with materials published by others. The publications that are identified in the complaint as having been refused and sent back to PLN from NRADC are: (1) a monthly journal published by PLN titled Prison Legal News: Dedicated to Protecting Human Rights, which contains analysis and news on the topic of prisoners' rights; (2) a softcover book published by PLN titled The Habeas Citebook: Ineffective Assistance of Counsel (Habeas Citebook); and (3) a publication of the Southern Poverty Law Center, distributed exclusively by PLN, titled Protecting Your Health and Safety (PYHS), which explains the basic rights of U.S. prisoners with regard to abuse and various other health and safety-related issues.

         The complaint alleges that, from October 2014 through the filing of the complaint, all three of these publications were not delivered to PLN's intended recipients incarcerated at NRADC, in varying numbers and on various dates. Most were returned with a simple notation that they were refused per jail policy, although occasionally a publication was returned without any reason provided.

         The facts show that these rejections were the result of a new NRADC policy, effective April 1, 2014, concerning outside publications. Prior to that time, an inmate was permitted to possess only five softcover books in his cell, although he also could have one religious book and two educational books, in addition to the five “regular” books. (Corbin Dep. 20-21, Dkt. No. 84-1; see also Whitley Dep. 48, Dkt. No. 84-2.) According to Corbin's testimony, he did not believe there was any numeric restriction on magazines prior to April 1, 2014. (Corbin Dep. 21-22.) All books and magazines were screened for contraband and for inappropriate pictures (such as pornography) or content that was otherwise considered a security risk.

         With the enactment of the April 1, 2014 policy, the NRADC prohibited prisoners from receiving books or magazines through the mail, “directly from the publisher, or from a distribution source.” (Second Am. Compl., Ex. 1, Dkt. No. 25-1.) Instead, the policy outlined that books and magazines would be provided by the programs section through the library cart and would be “appropriately marked as property of the NRADC.” (Id.) Each inmate would be allowed to keep only one book at a time. Additionally, the carts would contain multiple copies of five specific magazines. The policy contained an exception, however, noting that “[r]eligious books approved by the chaplain and educational books approved by the Captain of Security or designee will still be allowed” to be possessed by an individual prisoner. (Id.; see also Id. at Ex. 2, Dkt. No. 25-2 (discussing the policy for religious books).)

         Two reasons were given for the new policy: to control contraband and to reduce the amount of inmate personal property. Whitley has further explained that he believed the policy would cut down on the time it took to search cells, because the amount of personal property would be reduced. He adopted the policy based on similar (or identical) policies that had been in place at other Virginia jails where he had worked. He also noted that there were no complaints about the new April 2014 policy from any prisoners; the only complaint he got was from PLN's attorney. (Whitley Dep. 38.)

         After the filing of this lawsuit and pursuant to the consent orders entered by the court, the policy was changed to allow three books to each inmate, in addition to religious books and books used for internal or external educational programs. Each prisoner now is permitted to have five magazines in his cell, and NRADC also still subscribes to magazines on the book cart. A prisoner may also have up to three days of newspapers in his cell, which did not change from the prior policy. (Corbin Dep. 27-29.) Additionally, the first consent decree requires that the sender and any specific recipient be notified if mail is rejected, with a specific reason for the rejection, and that the sender or inmate be given the opportunity to file a written appeal, to which a jail official will respond in writing “within a reasonable time period.” (First Consent Order, Dkt. Nos. 46-1, 47.)

         Corbin testified that the changeover to the new policy outlined in the consent order has been “pretty smooth.” (Corbin Dep. 29.) He noted that it “takes more work” than under the April 2014 policy, but he believes that, overall, the work is warranted because the new policy serves both NRADC and the inmates. (Id.) Whitley testified that the new policy involves “more work” for his staff in terms of reviewing publications and other reading materials and generating more reports about what is being rejected and for what reason. (Whitley Dep. at 40-41, 43.)

         The operative complaint-PLN's Second Amended Complaint-asserts four separate counts arising out of the rejections of the various publications, and all are brought under 42 U.S.C. § 1983. Count I alleges a violation of PLN's First Amendment rights based on defendants' interference with its attempts to correspond with NRADC prisoners, and also purports to assert a First Amendment claim on behalf of prisoners confined at NRADC. (Second Am. Compl. ¶¶ 40-46.) Count II alleges that defendants violated PLN's Fourteenth Amendment right to due process because they failed to give adequate “notice of and an opportunity to appeal Defendants' decisions to censor PLN's written speech.” (Id. ¶¶ 47-54.) In Count III, PLN brings another First Amendment claim, alleging that defendants' prior policy constitutes content-based discrimination, since it prohibited “secular” books, but allowed “religious books.” (Id. ¶¶ 55-57.) Count IV asserts a violation of the Fourteenth Amendment's Equal Protection Clause because the old policy prohibited “secular” books but allowed “religious” books. (Id. ¶¶ 58-59.)

         In its prayer for relief, PLN requests a declaration that defendants' policies and practices violated the First and Fourteenth Amendments, nominal damages for each violation of rights by defendants, an injunction preventing defendants from continuing to violate the rights of PLN “and other senders of publications, ” compensatory and punitive damages, and costs and attorneys' fees. (Id. at 12.)

         As noted, the parties were able to reach an agreement that effectively modified the April 1, 2014 policy, and they submitted consent orders to the court containing those modifications. The first consent order addressed PLN's due process concerns and was designed to ensure that defendants would provide notice and an opportunity to appeal any future rejection of a publisher's communications with prisoners. (First Consent Order.) As the parties have acknowledged and the court has recognized, the first consent order “resolved Plaintiff's claim for equitable relief on the issue of due process of law for senders of censored mail.” (Second Consent Decree 6, Dkt. No. 50.) On March 7, 2016, the parties' second proposed consent order was entered by the court; it implemented a new policy that allowed prisoners to receive publications (including PLN's publications) through the mail, subject to individual review. This effectively addressed the injunctive relief sought by PLN's First Amendment claims and also addressed “all remaining issues” related to the motion for preliminary injunction. (Joint Mot. Requesting Entry, ¶ 2, Dkt. No. 49; see also Second Consent Decree.)

         After discovery, the parties filed their respective motions for summary judgment, which address how they contend the remaining issues in the case should be resolved.


         A. Summary Judgment Standard

         Under Rule 56, summary judgment is proper where “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). A genuine issue of material fact exists only where the record, taken as a whole, could lead a reasonable jury to return a verdict in favor of the non-moving party. Ricci v. DeStefano, 557 U.S. 557, 586 (2009). In making that determination, the court must take “the evidence and all reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.” Henry v. Purnell, 652 F.3d 524, 531 (4th Cir. 2011) (en banc).

         When considering cross-motions for summary judgment, the court must “consider each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law.” Defs. of Wildlife v. N.C. Dep't of Transp., 762 F.3d 374, 392 (4th Cir. 2014) (quoting Bacon v. City of Richmond, Va., 475 F.3d 633, 638 (4th Cir. 2007)). “The party who bears the burden of proof on an issue at trial, however, cannot survive summary judgment without forecasting evidence sufficient to sustain his or her burden of proof on that point.” McIntyre v. Aetna Life Ins. Co., 581 F.Supp.2d 749, 756 (W.D. Va. 2008).

         B. Defendants' Motion for Summary Judgment

         In their motion for summary judgment, defendants argue first that NRADC's mail policies challenged by PLN did not violate the First Amendment. Although defendants repeatedly state in general terms that the policies were “constitutional, ” they offer no arguments as to how their rejection of PLN's publications satisfied due process or as to why they did not violate the Equal Protection Clause.[2] Instead, they present arguments only with regard to the First Amendment claim, contending that the mail policies served legitimate penological interests and were constitutional pursuant to Turner v. Safley, 482 U.S. 78 (1987). Even if the policies violated the First Amendment, however, Whitley contends that he is entitled to qualified immunity. Additionally, defendants assert that PLN may not recover any monetary damages because of both qualified immunity and “Superintendent Whitley's Eleventh Amendment immunity.” (Defs.' Mem. Supp. Mot. Summ. J. 1, Dkt. No. 81.)

         In response to PLN's motion for summary judgment, defendants also argue that any claims for declaratory relief are mooted by the entry of the court's consent decrees. For all of these reasons, defendants contend that monetary, injunctive, and declaratory relief are foreclosed. (Id. at 1, 10.) The court addresses each of these issues below.

         1. Merits of First Amendment claim in Count I [3]

         Defendants contend they are entitled to summary judgment as to PLN's First Amendment claim because NRDAC's April 1, 2014 policy was not unconstitutional. This issue will turn on the court's application of the four-factor test in Turner, 482 U.S. 78. That is, to evaluate the constitutionality of a prison policy that impacts the First Amendment rights of prisoners (or publishers communicating with them), the court must look to the following factors:

(1) whether there is a “valid, rational connection” between the prison regulation or action and the interest asserted by the government, or whether this interest is “so remote as to render the policy arbitrary or irrational”; (2) whether “alternative means of exercising the right . . . remain open to prison inmates” . . .; (3) what impact the desired accommodation would have on security staff, inmates, and the allocation of prison resources; and (4) whether there exist any “obvious, easy alternatives” to the challenged regulation or action, which may suggest that it is “not reasonable, but is [instead] an exaggerated response to prison concerns.”

Lovelace v. Lee, 472 F.3d 174, 200 (4th Cir. 2006) (quoting Turner, 482 U.S. at 89-92); see also Thornburgh v. Abbott, 490 U.S. 401, 404 (1989) (holding that prison regulations affecting a publisher's ability to send material to prisoners are valid if they are reasonably related to legitimate penological interests, and directing courts to apply the Turner factors in this context). The Supreme Court has since clarified that the first factor must be satisfied for the regulation to be upheld. Shaw v. Murphy, 532 U.S. 223, 229-30 (2001) (explaining the first Turner factor and noting that “[i]f the connection between the regulation and the asserted goal is ‘arbitrary or irrational, ' then the regulation fails, irrespective of whether the other factors tilt in its favor”); see also Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006) (describing the first factor as an “‘element' because it is not simply a consideration to be weighed but rather an essential requirement”).

         When applying the Turner factors, the court must “respect the determinations of prison officials, ” United States v. Stotts, 925 F.2d 83, 87 (4th Cir. 1991), and “must accord deference to the officials who run a prison, overseeing and coordinating its many aspects, including security, discipline, and general administration.” Lovelace, 472 F.3d at 199. That is, the court must accord “substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.” Overton v. Bazzetta, 539 U.S. 126, 132 (2003).

         There are several cases rejecting First Amendment challenges to similar prison regulations that restrict either prisoners' access to publications or a publisher's ability to reach inmates. In Couch v. Jabe, No. 7:11-cv-34, 2012 WL 3043105 (W.D. Va. July 25, 2012), for example, the court held that a Virginia Department of Corrections (VDOC) policy requiring that a prisoner complete a personal property request form prior to receiving publications was not an impermissible burden on the plaintiff's First Amendment rights. There, a prison official explained that abolition of the request form requirement would have a significant impact on VDOC operations (causing increased staff time to handle, screen, and dispose incoming mail), and the plaintiff failed to establish that he would be denied possession of these books if he filled out the simple, short form. Id. at *6. Accord Prison Legal News v. Jones, No. 4:12-cv-239, 2015 WL 12911752, at *16 (N.D. Fl. Oct. 5, 2015), appeal docketed, No. 15-14220 (11th Cir. argued June 10, 2016) (concluding-after a four-day bench trial-that defendant had offered legitimate reasons for a prison regulation that required a publication to be impounded if it had “prominent or prevalent” advertisements for services prohibited under the regulation, including advertisements for pen pals, three-way calling services, and conducting a business or profession while incarcerated and thus upholding it under the Turner test).

         Likewise, in Prison Legal News v. Stolle, No. 2:13-cv-424, 2014 WL 6982470 (E.D. Va. Dec. 8, 2014), the court upheld a regulation concerning incoming publications, granting the defendant sheriff's motion for summary judgment and denying the plaintiff's motion. In Stolle, the jail had repeatedly rejected copies of PLN because it contained ordering forms, and that was against prison policy, which banned mail containing “ordering forms with prices.” Id. at *5. The defendants asserted that the “order form ban [was] designed to protect the public from fraud, further stating that there have in the past been investigations into [the correctional center] inmates fraudulently using credit cards to purchase goods from outside vendors, as well as problems with inmates using stamps as currency to purchase items from outside vendors.” Id. The Stolle court ...

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