United States District Court, W.D. Virginia, Harrisonburg Division
Elizabeth K. Dillon United States District Judge
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.
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.
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.) 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.)
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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. 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