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Human Rights Defense Center v. Southwest Virginia Regional Jail Authority

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

June 5, 2019


          Sean M. Douglass and Thomas S. Chapman, Williams & Connolly LLP, Washington, D.C., and Daniel Marshall, Human Rights Defense Center, Lake Worth, Florida, for Plaintiff.

          Nathan H. Schnetzler, Frith Anderson Peake, P.C., Roanoke, Virginia, for Defendants.



         The defendant jail authority prohibited prisoners in its jails from obtaining magazines or other periodicals or from obtaining books unless the prisoner received prior permission to order the book in question. A prisoners' rights organization sued under 42 U.S.C. § 1983, asserting that these policies violated its First Amendment and due process rights as a publisher of magazines and books, and seeking damages and injunctive relief. On cross motions for summary judgment, I find sufficient evidence that the plaintiff's rights were violated as alleged, although I find that the jail authority's superintendent is entitled to qualified immunity as to the plaintiff's First Amendment claim. The case will proceed to a jury trial on damages, with a later hearing before the court to determine injunction relief.[1]


         The following facts are taken from the summary judgment record and are undisputed except where noted.

         Plaintiff Human Rights Defense Center (“HRDC”) is a non-profit organization that, among other things, distributes to inmates books, magazines, and other information concerning legal news, prisoners' rights, and current events. It is a small organization with approximately 19 employees. HRDC publishes two monthly magazines, Prison Legal News (“PLN”) and Criminal Legal News (“CLN”), which are both printed on black and white newsprint and bound with staples. PLN is 72 pages long and CLN is 48 pages long. The printer of the magazines prints individual addressee and pre-paid mailing information directly onto each issue and delivers bundles of the magazines, sorted by ZIP Code, to the United States Postal Service for delivery. Over the past 29 years, more than one million copies of PLN have been printed and delivered to inmates at more than 3, 000 correctional facilities, including all state prisons in Virginia. In addition, HRDC publishes an annual report that is printed and mailed in the same format as PLN and CLN.

         HRDC also publishes and distributes a number of soft-cover books, which are printed in black-and-white with colored covers, bound with glue, and sent to recipients in cardboard boxes with mailing addresses printed directly on the boxes. Two such books are at issue in this litigation: Prisoners' Guerrilla Handbook to Correspondence Programs in the United States and Canada (“Prisoners' Guerrilla Handbook”), which provides information on educational and vocational programs available to inmates, and The Habeas Citebook: Ineffective Assistance of Counsel (“Habeas Citebook”), which contains legal analysis related to habeas corpus actions with citations to cases and statutes.

         Defendant Southwest Virginia Regional Jail Authority (“Jail Authority”) operates four jails that house nearly 2, 000 pretrial detainees and inmates serving short sentences. About 800 prisoners are held at the Abingdon facility, about 600 are held at the Duffield facility, about 300 are held at the Haysi facility, and about 200 are held at the Tazewell facility. The Jail Authority houses inmates of varying security levels ranging from minimum to maximum. The average length of stay at the Tazewell facility is 50 days, and the average length of stay at the other three facilities is 100 days. Many offenders are housed at one of the Jail Authority's facilities for only a brief time, from several days to several weeks. The inmates are housed in housing units that each hold between eight and 90 prisoners. The Abingdon facility is the only facility with a housing unit that can hold 90 inmates, and that housing unit is not always filled. Defendant Stephen Clear, the Jail Authority's superintendant, adopts policies governing the management and operations of the four jail facilities.

         Each of the four facilities has a book room where donated books are stored. Prisoners are not permitted to visit the book rooms, and they are not given a list of the books contained in the book rooms. They can, however, request to borrow up to two books at a time every two weeks. They can ask staff whether certain books are available. Prisoners do not always receive each book they request to borrow, even if a prisoner's family member donated the book with the intention of it reaching that particular prisoner.

         Prisoners may order books from publishers or retailers through a preapproval process. Orders are approved only for books that the Jail Authority deems to be religious, legal, or educational. There is no written list of criteria for determining whether a book falls into one of these categories. PLN is considered non-legal mail, but the Jail Authority considers Habeas Citebook to be legal. Prisoners are given a canvas bag and can possess as many pieces of mail or books as will fit in the bag. There is no specific number of books that a prisoner is allowed to possess at one time, although Jail Authority personnel at the Abingdon facility have limited prisoners to two or four books. Each prisoner is allowed to possess no more than ten photographs.

         Magazines are prohibited in the Jail Authority's facilities. Prisoners may not order them, and the book rooms do not contain any for prisoners to borrow. Nor are prisoners allowed to order newspapers. The Jail Authority provides a daily copy of a national newspaper and a weekly copy of a local newspaper to each housing unit. The Jail Authority asserts that it does not have the staff resources to deliver newspapers and magazine subscriptions to individual inmates daily. However, HRDC suggests that delivering its mailings would require no greater expenditure of staff time than rejecting them, which is a cumbersome process. It further asserts that accumulation of newspaper and magazine subscriptions would create a fire hazard. In addition, inmates have frequently stuck newspaper and magazine clippings to cell walls and used them to cover vents.

         Each of the facilities has a computer law cart, which is loaded with cases, statutes, and other legal materials provided by a third-party contractor. The law cart computers are not connected to the internet. Prisoners must request to use the law cart in advance and are allowed to use it once per day for 30 minutes, with longer periods of use occasionally permitted when there are no other prisoners waiting to use it. Sometimes prisoners have been scheduled to use the law carts but have not been given the opportunity to do so. The law carts are only available for inmates to access on weekdays. The law carts contain software called Casemaker, which offers federal and 50-state primary law coverage. Prisoners can purchase printed copies of materials from the law carts for 15 cents per page. The law carts are not used to their full capacity by inmates and often are not accessed for days at a time.

         The Jail Authority generally rejects all publications mailed to prisoners in its custody, although employees have in their discretion permitted some publications to be delivered. A written policy titled “Inmate Communications” governs the acceptance or rejection of mail sent to prisoners. The version of the policy in effect from October 2017 through July 2018 contains the following provisions relevant to this action:

[Contraband is] [a]ny item or article in the possession of an inmate that they are not allowed to possess. For the purpose of this policy, contraband may be any item received through the mail that inmates are not allowed to possess.
Written notice of seizure of all inmate mail shall be given to the inmate and sender, whose mail is found to contain contraband. Such notice will contain the reason for the seizure. The sender shall have the opportunity to appeal the decision to the Jail Administrator, unless the Seizure is held for criminal investigation.
Magazines, newspapers, periodicals, or other such correspondence are disallowed. These items may be provided from the library.

         When deemed necessary to remove any item from incoming mail the Chief of Security or designee will be notified immediately. A written record shall be made in the form of an incident report in JMS. Such record shall include:

a. Inmate's name and booking number.
b. Description of the item in question.
c. Description of the action taken and the reason for same.
d. Disposition of the item involved.
When contraband is found which is not otherwise illegal, but is not allowed in the possession of an inmate, a notice shall be sent to the inmate and the sender with a written reason for the seizure. The sender will be allowed the opportunity to appeal and challenge the seizure before the Chief of Security. Unless is it needed for a criminal investigation or prosecution, property which can legally be possessed outside the facility shall be returned to sender, placed in the inmate's property to be returned upon release, or destroyed. The notice shall indicate the nature of the contraband and why it is being denied.
If the original sender does not reply within a reasonable amount of time about the seizure within 5 business days, all such items described in # 3 above will be shipped to an address provided by the inmate at the inmates [sic] expense or destroyed at the inmates [sic] request.
Packages shall not be accepted. All packages shall be marked, “Return to Sender”, and placed in the outgoing mail (with the exception of Work Release inmates).

Mem. in Supp. of Pl.'s Mot. for Summ. J. & Permanent Inj. Ex. 14 at 3-4, 6-7, ECF No. 57-14. The Inmate Communications policy was signed by Clear on October 10, 2017, and remained in place until July 2018, when this court issued a preliminary injunction in this case. The previous version of the policy, which was signed by Clear in 2013, was not materially different.

         The policies surrounding books were inconsistently communicated to inmates. One employee told an inmate that only religious materials sent directly from the publisher were allowed. Another employee told an inmate he could request legal materials from the library by writing to his counselor. Some inmates were told by staff that they were not allowed to order any books at all.

         In March 2016, a nearby jail authority entered into a consent decree with HRDC regarding similar issues, and Clear referenced that decree in an email in March 2016. Regarding the consent decree, Clear wrote, “Take a look at the decree, basically says we cannot stop magazines and books.” Id. at 2, ECF No. 57-24. Clear contacted administrators of a number of other correctional facilities in Virginia and learned that many of them allow inmates to order books and magazines.

         HRDC has sent publications to Jail Authority inmates since 2016, some solicited and some unsolicited. HRDC has a practice of sending complimentary sample copies of its magazines and books to inmates, who then have the option to subscribe to the magazines or purchase additional books. Various prisoners wrote to HRDC to say that they had not received the publications that were sent to them. The Jail Authority had confiscated many of the publications and had marked others “Return to Sender.”

         When a Jail Authority mailroom employee decides to accept mail for delivery to a prisoner, the employee only needs to place it in a mail cart for distribution. When an employee decides to confiscate mail, however, the employee must place it in a bag, complete and file a confiscation form, send the form to the sender, await a response, and destroy the mail if no response is received. When mail is returned to the sender, the employee is supposed to write on the packaging the reason for its return.

         At least 50 of HRDC's books and magazines were confiscated across three of the Jail Authority's four facilities, including 31 issues of PLN, 12 issues of CLN, six copies of Prisoners' Guerrilla Handbook, and one copy of the Habeas Citebook. These confiscations are reflected in confiscation forms. No. confiscation forms exist for confiscations at the Tazewell facility, although mailings were confiscated or rejected at that facility.

         Before filing the instant suit, HRDC received seven confiscation forms from the Haysi facility, all of which pertained to confiscations of PLN. Two of the forms were dated December 15, 2016, and were received by HRDC four days later. The other five were dated January 18, 2017, and received by HRDC five days later. All seven forms stated the reason for confiscation as “NOT ALLOWED, ” with no further elaboration. The forms stated that the confiscated magazines would be destroyed if no response was received within 10 days of the date of confiscation. HRDC did not appeal or attempt to contact the Jail Authority about the confiscations within the 10-day window. One form stated that the Jail Authority had destroyed an issue of PLN the day after it was confiscated because neither the sender nor the inmate had yet responded.

         On February 22, 2016, the Chief of Security at the Duffield Facility issued a memorandum informing inmates that effective March 1, 2016, the facility would “no longer accept books from outside vendors” and that all books received at the facility after that date would be returned to the sender. Id. at Ex. 27 at 28, ECF No. 57-27. The Jail Authority adopted a policy in 2015 prohibiting books from outside vendors due to concerns about overcrowding and safety concerns. On June 1, 2016, the Jail Authority amended its policy to allow books to be ordered subject to preapproval on a case-by-case basis.

         On January 26, 2017, HRDC sent the Jail Authority a letter appealing the confiscation of PLN issues to inmates at the Haysi facility. The letter did not reference a specific prisoner or issue, but rather referred to the broader “decision to censor PLN which was sent to numerous prisoner-subscribers.” Id. at Ex. 30 at 3, ECF No. 57-30. On the day the Jail Authority received the letter, Clear asked two employees whether the Jail Authority's facilities allowed prisoners to ...

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