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Human Rights Defense Center v. Southwest Virginia Regional Jail Authority

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

July 3, 2018


          Thomas G. Hentoff, Sean M. Douglass, and Chelsea T. Kelly, Williams & Connolly LLP, Washington, D.C., Bruce E. H. Johnson, Davis Wright Tremaine LLP, Seattle, Washington, and Sabarish Neelakanta, Masimba Mutamba, and Daniel Marshall, Human Rights Defense Center, Lake Worth, Florida, for Plaintiff; Katherine C. Londos and Nathan H. Schnetzler, Frith Anderson Peake, P.C., Roanoke, Virginia, for Defendants.


          James P. Jones, United States District Judge.

         The plaintiff in this civil action, a nonprofit organization, seeks a preliminary injunction prohibiting the defendants, a regional jail authority and its superintendent, from confiscating publications that the plaintiff mails to inmates. The motion has been fully briefed and I have heard evidence and argument. For the following reasons, I will grant the plaintiff's motion and preliminarily enjoin the defendants from refusing to deliver the plaintiff's mailings on the grounds that such publications are printed on colored paper or bound with glue or staples. Additionally, I will order the defendants to promptly advise the plaintiff of the grounds for the rejection of any of its publications and to provide the plaintiff with a reasonable opportunity to be heard regarding any rejections.

         I. Findings of Fact.

         As required by Federal Rule of Civil Procedure 52(a), I make the following findings based on the evidence presented by the parties at the evidentiary hearing and the affidavits and other evidence filed in support of and in opposition to the plaintiff's motion.[1]

         Plaintiff Human Rights Defense Center (“HRDC”) is a non-profit organization that, among other things, distributes books, magazines, and other information concerning legal news and prisoners' rights. HRDC publishes Prison Legal News (“PLN”), a 72-page soft cover monthly magazine printed on black and white newsprint. Thousands of people and institutions subscribe to PLN, including incarcerated persons at approximately 2, 600 institutions throughout the United States. HRDC also publishes about 50 soft cover books designed to educate inmates about the legal system and their rights. One example of such a book is called Prisoners' Guerrilla Handbook to Correspondence Programs in the United States & Canada. In addition to PLN and books, HRDC sends inmates annual report newsletters, brochure packets including order forms, copies of important judicial opinions, and legal letters. HRDC sends inmates who will be incarcerated for a meaningful period of time an initial mail packet and a six-month subscription to PLN at no charge. After the free subscription ends, inmates must order and pay for PLN to continue receiving it.

         Defendant Southwest Virginia Regional Jail Authority (“Jail Authority”) operates four jails that are located in Abingdon, Haysi, Duffield, and Tazewell, Virginia. The Jail Authority houses approximately 2, 000 inmates across its four facilities, with the largest facility, Abingdon, housing about 820 incarcerated posttrial and pretrial detainees. Some inmates are housed in a Jail Authority facility for only a few days while others are there as long as three years. Inmates at the Jail Authority's facilities are housed in varying levels of security from minimum to maximum security. The Jail Authority's facilities have housing units that are single-cell, double-cell, four-person, six-person, and dormitory style housing arrangements. Each housing unit contains 80 to 90 inmates.

         HRDC has on a number of occasions attempted to send its publications to inmates at the Jail Authority's facilities, but rather than delivering the items to the inmates, the Jail Authority has confiscated them. The Jail Authority implemented a policy effective March 1, 2015, banning personal material sent to inmates from outside publishers. According to the Jail Authority's Superintendant Stephen Clear, the policy was adopted because of concerns about inappropriate material; lack of space in the property rooms at the facilities; fire hazards; safety concerns regarding staples, which could be used for weapons or tattooing; and the possibility that colored papers and glue could be laced with drugs. However, no written policy addresses staples or glue, and the Jail Authority has confiscated mailings from HRDC that do not contain glue, staples, or colored paper.

         On June 1, 2016, the Jail Authority amended its policy to allow inmates to order books from publishing companies subject to case-by-case approval. The Jail Authority accepts donations of materials to its library, subject to approval. However, one inmate declared that in practice, the Haysi facility stopped accepting library donations around 2013. The Jail Authority's written policies regarding publications, mail, and donated materials do not list any criteria for determining which items will be accepted and which will be rejected.

         Some inmates are unaware that they are allowed to order books. The delivery and confiscation of mail is inconsistent and the policies are applied differently depending on which correctional officers are working. Some inmates have not received mail they know was sent to them by family members and friends. Sometimes prisoners receive confiscation forms for confiscated materials, but sometimes they do not. One inmate filed a grievance regarding the confiscation of his mail but did not receive any response to the grievance.

         None of the Jail Authority's facilities allow inmates to physically access jail libraries. Rather, at the Haysi and Tazewell facilities, inmates have access to book carts sporadically, about twice a month. The book carts contain a limited number of books, many of which are missing pages or are otherwise damaged, and the carts are rarely refreshed with new books. Inmates at the Abingdon facility receive library slips with which to request books every two weeks, but they do not always receive the books they have requested. The Abingdon library contains about 5, 000 books.

         The Jail Authority provides one local newspaper and one national newspaper to be shared among all the inmates in a housing unit. Inmates also have access to an electronic kiosk containing certain court opinions and other limited legal information, but they are only able to use the kiosk for up to 30 minutes at a time and are not guaranteed access to it on any given day. The Jail Authority does not allow inmates to have magazines at all, and inmates are not permitted to receive newspapers other than those provided by the Jail Authority. The Jail Authority restricts newspapers and magazines in an effort to control clutter.

         Inmates are allowed to order books from publishers, subject to certain restrictions. The books must be legal, religious, or educational in nature and cannot have hard covers. Soft cover books are usually bound with glue, but this does not pose a significant risk because books sent directly from a publisher usually do not contain drugs or other contraband. Publications containing colored paper are not allowed because Suboxone strips can be melted onto paper and are difficult to detect on colored paper. This, too, is less of a concern s mailed directly from a publisher than for those mailed by individual senders. When an inmate receives a book and the Jail Authority administration is not aware that the inmate ordered the book, an administrator calls the publisher or sender to confirm that the inmate ordered the book.

         Inmates have in the past put staples into toothbrushes and other objects to fashion weapons. Inmates sometimes fashion tattoo guns out of found objects including staples. Currently, most of the staples used for these purposes come from documents delivered by attorneys, as magazines containing staples are prohibited in the Jail Authority's facilities. Tattooing is a problem for the Jail Authority because it can lead to infections and other medical problems that require costly treatment. The ...

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