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Prison Legal News v. Northwestern Regional Jail Authority

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

September 30, 2019

PRISON LEGAL NEWS, Plaintiff,
v.
NORTHWESTERN REGIONAL JAIL AUTHORITY, et al., Defendants.

          MEMORANDUM OPINION

          Elizabeth K. Dillon United States District Judge

         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. Whitley was responsible for 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.

         On September 29, 2017, the court issued a Memorandum Opinion and an Order on cross-motions for summary judgment. (9/29/17 Mem. Op., Dkt. No. 89; 9/29/17 Order, Dkt. No. 90.) As a result of that ruling, the remaining issues to be resolved were whether PLN could prevail on its First Amendment claim against NRJA and the compensatory damages, if any, that PLN is entitled to as to its First Amendment claim in Count I and its due process claim in Count II. (9/29/17 Mem. Op. 28.) The court also dismissed Corbin from the case. (9/29/17 Order.)[1] In a later order, the court granted summary judgment for defendants on PLN’s equal protection claim. (11/20/18 Mem. Op. & Order, Dkt. No. 101.)

         On November 29, 2018, the court held a bench trial, after which the parties submitted proposed findings of fact and conclusions of law. Upon consideration of those submissions and based on the evidence and testimony presented at trial, the court issues the following ruling.

         I. BACKGROUND[2]

         PLN is a publishing project of the non-profit Human Rights Defense Center (HRDC). HRDC’s Executive Director, Paul Wright, founded PLN as a prisoner within the Washington Department of Corrections. The core of PLN’s mission is public education, advocacy, and outreach to assist prisoners who seek legal redress for infringements of their constitutional and human rights.

         PLN publishes an award-winning, 72-page monthly magazine entitled Prison Legal News. Prison Legal News provides information about legal issues affecting prisoners, including access to courts, disciplinary hearings, prison and jail conditions, excessive force, and religious freedom. In addition to Prison Legal News, PLN publishes and distributes legal and self-help softcover books, including: (a) The Habeas Citebook: Ineffective Assistance of Counsel (Habeas Citebook), which describes the procedural and substantive complexities of Federal habeas corpus litigation; (b) Protecting Your Health and Safety (PYHS), which explains the basic rights of U.S. prisoners with regard to communicable diseases, abuse, and other health and safety related issues; and (c) Prisoner’ Guerilla Handbook to Correspondence Programs in the United States & Canada (“PGH”), a guide book to high school, vocational, paralegal, law, college and graduate courses available to prisoners. PLN has a practice of mailing free copies of its publications to inmates it believes may be interested in its materials. PLN also obtains inmate mailing lists from other organizations.

         NRJA is a jail authority created by the City of Winchester, Virginia, and the counties of Clarke, Frederick, and Faquier. NRADC is the name of the detention facility under the authority of, and operated by, NRJA and located in Frederick County, Virginia. As of late November 2016, NRADC had approximately 650 inmates. In fiscal year 2014, NRADC averaged 580 inmates. In fiscal year 2015, NRADC averaged 638 inmates. While its population fluctuates, approximately 50% of the prisoners at the NRADC are pretrial detainees.

         James Whitley has been the superintendent at the jail since 2012 and is the final decision maker with respect to all operational issues at the jail. Clay Corbin is the former Captain of Security at NRADC. In that role, Corbin collaborated with Whitley to establish security policies at the jail, including the institution of the former mail policy at issue in this case.

         Prior to February 26, 2014, NRADC had a policy which allowed inmates to receive books, magazines, and other periodicals through the mail. Superintendent Whitley reexamined NRADC’s policy after receiving numerous reports that people were tampering with mailings sent to the jail in order to hide contraband. In addition to inmates using books, magazines, and periodicals to smuggle contraband, Whitley was concerned about the number of books, magazines, and periodicals that inmates were accumulating in their cells. NRADC expended a great amount of resources reviewing these items, and cell searches took much longer because of the amount of material inmates accumulated.

         In February 2014, Superintendent Whitley instituted a new policy, effective April 1, 2014, that prohibited prisoners from receiving books or magazines “through the mail, directly from the publisher, or from a distribution source.” Prior to the April 1, 2014 policy, inmates could possess one religious book, two educational books, and up to five additional soft-covered books. Inmates could also possess an unlimited number of magazines, although certain periodicals were altogether banned. The new policy stated that books and magazines would be provided by the programs section through the library cart and marked as property of NRADC. Each inmate would be allowed one book at a time, with an exception for religious or educational or educational books. Additionally, the carts would contain multiple copies of five specific magazines.

         The reasons given by defendants for the new policy were that it was an effort to limit contraband (such as drugs) from coming into the jail, and to reduce the amount of personal property in a cell for purposes of cell searches. No contraband had ever been found in books, magazines, or other periodicals sent by a publisher or distributor. There were instances of contraband having been introduced into the jail through visits, letter correspondence, and/or work release. Defendants did not curtail visitation, letter correspondence, or work release. Defendants concede that greater prison resources are needed to monitor prisoner visitations than would be required to review incoming books and magazines for contraband, yet it did not eliminate visitations out of a concern that it would be unlawful to do so.

         NRADC invested time and money expanding its library, ordering magazines directly from publishers, and rotating them in and out of the book carts each month. NRADC also purchased over one thousand new books following implementation of the new policy. Staff took inmate suggestions for magazines and books for the library cart. No inmate ever requested PLN publications be included on the library cart.

         On or about April 1, 2014, counsel for PLN wrote a letter to Superintendent Whitley objecting to the new policy and asserting that it violated the First Amendment, with citations to legal authority. The letter did not indicate that counsel represented PLN specifically. Whitley emailed back that he would examine the issue. No further response was received from Whitley, as he forgot about the letter and did not discuss it with anyone.

         In total, PLN mailed 236 magazines and books to individual prisoners at the NRADC subsequent to the implementation of the new April 1, 2014 policy. PLN had at least one paid prisoner subscriber, Mary Jenkins, who was in and out of defendants’ custody in 2014. As a result of the policy banning publications, Ms. Jenkins did not receive PLN’s publications. Wright testified that while Ms. Jenkins was the only paid subscriber identified at his deposition, he believed there were more paid subscribers at the facility during the prior mail policy.

         Some of PLN’s books and magazines were mailed back to PLN through the Return to Sender service of the United States Postal Service. From October 2014 to November 4, 2015, at least 170 issues of Prison Legal News were rejected by defendants.[3] From October 2014 to November 4, 2015, at least 16 copies of The Habeas Citebook were rejected by defendants. In November 2015, at least 25 copies of PYHS were rejected by defendants. From October 2014 to March 2016, at least three copies of PGH were rejected by defendants. A total of 44 books were returned to PLN. Many of the returned magazines and books bore the stamp “Against Jail Policy, ” indicating that defendants had rejected delivery of that mail item pursuant to the new April 1, 2014 policy. Even though PLN did not receive back every magazine or book that was mailed to the jail in that timeframe, defendants do not deny that every ...


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