United States District Court, W.D. Virginia, Abingdon Division
M. Douglass and Thomas S. Chapman, Williams & Connolly
LLP, Washington, D.C., and Daniel Marshall, Human Rights
Defense Center, Lake Worth, Florida, for Plaintiff.
H. Schnetzler, Frith Anderson Peake, P.C., Roanoke,
Virginia, for Defendants.
OPINION AND ORDER
P. JONES UNITED STATES DISTRICT JUDGE.
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
following facts are taken from the summary judgment record
and are undisputed except where noted.
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
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
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.
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.
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
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.
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.
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.
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.
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.
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.
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.”
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.
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.
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
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.
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 ...