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Crime, Justice & America, Inc. v. McGinness

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA


August 3, 2009

CRIME, JUSTICE & AMERICA, INC., A CALIFORNIA CORPORATION; AND RAY HRDLICKA, AN INDIVIDUAL, PLAINTIFFS,
v.
JOHN MCGINNESS, IN HIS OFFICIAL CAPACITY OF SHERIFF OF THE COUNTY OF SACRAMENTO, CALIFORNIA, DEFENDANTS.

The opinion of the court was delivered by: Frank C. Damrell, Jr. United States District Judge

MEMORANDUM & ORDER

This matter is before the court on defendant John McGinness' ("defendant" or "McGinness") motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Plaintiffs Crime, Justice & America, Inc. and Ray Hrdlicka ("Hrdilicka") (collectively "plaintiffs") oppose the motion.*fn1 For the reasons set forth below,*fn2 defendant's motion for summary judgment is GRANTED.

BACKGROUND*fn3

Plaintiffs filed this action, arising out of the policies of the Sacramento County Jail in its distribution of plaintiffs' magazine, Crime, Justice & America ("CJA"). (Compl., filed Feb 22, 2008.) Plaintiffs assert that defendant's policies violate their Constitutional rights guaranteed by the First Amendment be denying distribution of CJA whether directly mailed to inmates or dropped off for bulk distribution. (Compl. ¶¶ 31-37.) Plaintiff Crime, Justice & America, Inc. is a private company with the primary business purpose of publishing and distributing the quarterly periodical CJA. (Compl. ¶ 6.) Plaintiff Hrdlicka is the sole owner and the publisher of CJA. (Compl. ¶ 7; PUF ¶ 1.) Defendant McGinness is the Sheriff of the County of Sacramento at all relevant times. (Compl. ¶ 8.)

The Sheriff is in charge of managing the Sacramento County Jail (the "Jail"). (DUF ¶ 1.) On average, there are 2,340 inmates at the Jail per day. (DUF ¶ 2.) There are over seven hundred pieces of incoming mail and six hundred pieces of outgoing mail per day. (DUF ¶ 5.) In accordance with applicable regulations, defendant implemented policies and procedures relating to the receipt of mail for inmates in the jail. (DUF ¶ 3.)

The mail at the Jail is processed during the night shift six days a week by a total of sixty persons. (DUF ¶¶ 7, 13.) Control room officers are responsible for opening and inspecting the mail, and floor officers distribute the mail. (DUF ¶ 8.) Commercial publications and personal mail are reviewed for content and searched for contraband prior to distribution. (DUF ¶ 9.) A total of twenty-four personnel hours is used per day on mail related duties at the Jail. (DUF ¶ 12.)

The mail policy currently in place at the Jail prohibits the distribution of unsolicited commercial mail. (DUF ¶ 15.) The policy does not take into account the content of any unsolicited publications, nor the postage rate under which unsolicited publications are sent. (DUF ¶ 16.) The Jail will not accept publications for distribution received on a "drop-off" basis or delivery that constitutes "bulk delivery." (DUF ¶ 17.) The Jail considers "bulk mail" to be any mail, regardless of volume not individually addressed and not individually posted with U.S. Postage. (PUF ¶ 81.) Defendant contends that the primary purpose of the refusal to accept and distribute unsolicited commercial mail is to allow the Sheriff to control the volume of mail that enters the Jail, which allows for control over the amount of time and resources used to categorize, effectively search, and distribute incoming mail. (DUF ¶ 18; see PUF ¶ 54 ("Sacramento County Jail denies distribution of bulk mail for two reasons: (1) the precedential value of potentially having to accept other deliveries of bulk mail; and (2) the potential negative effect on the work load for the Jail staff."))

Further, inmates are only allowed to keep a limited amount of written materials in their cells and are not permitted to leave any materials in the common areas of the jail. (DUF ¶ 23.) Moreover, the Sheriff is required to maintain the Jail in a neat, orderly manner, and all places not open to continuous observation must be kept free from combustible litter and rubbish at all times. (DUF ¶ 22.) The purported purpose of these rules and requirements are to: (1) limit inmates' ability to secret contraband; (2) limit the amount of materials that inmates can use to plug toilets and flood their cells and pods; (3) limit inmates' ability to place items over the lights and windows in their cells, allowing staff to perform mandated hourly welfare checks more efficiently; and (4) enhance inmate safety by providing fewer avenues in which they can communicate inappropriate and violent messages and instructions to each other. (DUF ¶ 24.) Even with the various rules already in place, inmates routinely attempt to hide contraband, start fires, flood their cells, and cover their lights and windows. (DUF ¶ 26.) Further, Jail staff spend a significant amount of time searching for contraband and attempting to prevent disruptive and dangerous incidents. (DUF ¶ 27.)

The Jail has multiple common areas, also known as Day Rooms, which contain telephones, televisions, and bulletin boards with advertising. (DUF ¶ 28.) There are no materials which are made available to inmates by placing copies in any of the day rooms; this prevents inmates from exchanging messages with each other and limits fire and other safety hazards. (DUF ¶ 34.) Defendant asserts that if the Jail were to place bulk copies of CJA in the common areas, additional staff and resources would be required to monitor the copies of the publication, remove and replace the publication on a daily basis, and clean up an trash or excess created by the placement of the publication. (DUF ¶ 35.)

Inmates at the Jail are provided with access to a law library and a general circulation library. (DUF ¶ 36.) Inmates can also receive magazines that they subscribe to, if nothing precludes delivery of the particular magazine on the basis of subject matter (e.g., pornography). (DUF ¶ 40.)

CJA is currently distributed in correctional facilities in more than sixty counties throughout thirteen states. (PUF ¶ 16.) It is generally distributed to inmates of correctional facilities in one of two manners: (1) direct mailings to inmates; or (2) general distribution. (PUF ¶ 18.) In the case of direct mailing, CJA is sent, individually addressed, through the U.S. Mail to inmates at a correctional facility at a ratio of approximately one issue for every ten inmates. (PUF ¶ 19.) In the case of general distribution, plaintiffs drop off a weekly distribution of CJA at a ratio of approximately one issue for every ten inmates, and the jail staff leaves a small stack of magazines in common areas. (PUF ¶ 26.)

Sometime in September 2003, plaintiffs inquired with the Sheriff whether he would be amenable to allow inmates at the Jail to receive CJA. (DUF ¶ 41.) On September 30, 2003, plaintiffs were informed by Sheriff Lou Blanas, Sacramento County Sheriff at the time, via Sergeant Scott Jones ("Jones"), that so long as the material and content of the magazine did not fall within prohibited guidelines for inmate mail, they were free to mail the publication to any inmates within the jail facilities. (DUF ¶ 42.) Jones also informed plaintiffs that a list of each inmate housed at the Jail, along with their identifying criteria for receiving mail, was made available to the public on a daily basis in the lobby. (DUF ¶ 43.) However, Jones told Hrdlicka that the Jail would not facilitate the publication's delivery to inmates on a "drop-off" basis. (DUF ¶ 44; PUF ¶ 35.)

On January 6, 2004, Jones again wrote plaintiffs and informed them that the Jail would not accept the publication delivered en masse, but that plaintiffs could mail the magazine to individual inmates. (DUF ¶ 45.) Over the next few months, plaintiffs requested a weekly electronic copy of the list of inmate names and housing information or, in the alternative, a paper-based copy. (DUF ¶¶ 46-48.) On May 21, 2004, Jones reiterated that a printed list of inmates and relevant information was available in the lobby of the Jail, but that he was not required to send or mail a copy of the list to plaintiffs and would not undertake such a duty. (DUF ¶ 49.) On April 5, 2005, Jones responded to another request for electronic records, informing plaintiffs that the information sought did not exist in electronic format that could be provided, but that a printed list was available in the lobby. (DUF ¶ 50.) At some point prior to January 2007, the technology at the Jail was upgraded and an electronic list became available. (DUF ¶ 57.) After this time, an electronic copy of the information was provided to plaintiffs. (DUF ¶ 57.)

Plaintiffs were notified on multiple occasions that CJA could be mailed directly to inmates without objections. (DUF ¶ 55.) In approximately December 2004, plaintiffs began sending copies of CJA to inmates at the Jail through bulk-mail. (PUF ¶¶ 43-45.) Plaintiffs contend that the copies were paid for individually and were addressed to an individual inmate; however, postage was paid at the bulk rate of 14.7 cents per magazine as opposed to individually stamped copies that would have cost $1.21 per magazine. (PUF ¶ 45.) Plaintiffs sent hundreds of copies of their publication to the Jail on this bulk-mail basis. (DUF ¶ 51.) In May 2005, CJA was denied further distribution in the Jail through bulk-mail because of the perceived extra burden on the jail staff. (PUF ¶ 77.) Plaintiffs also concede that the distribution of CJA in the Jail is a concern because of the introduction of written materials into the Jail over which inmates do not have ownership. (PUF ¶ 86.)

STANDARD

The Federal Rules of Civil Procedure provide for summary judgment where "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); see California v. Campbell, 138 F.3d 772, 780 (9th Cir. 1998). The evidence must be viewed in the light most favorable to the nonmoving party. See Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000) (en banc).

The moving party bears the initial burden of demonstrating the absence of a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). If the moving party fails to meet this burden, "the nonmoving party has no obligation to produce anything, even if the nonmoving party would have the ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 (9th Cir. 2000). However, if the nonmoving party has the burden of proof at trial, the moving party only needs to show "that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.

Once the moving party has met its burden of proof, the nonmoving party must produce evidence on which a reasonable trier of fact could find in its favor viewing the record as a whole in light of the evidentiary burden the law places on that party. See Triton Energy Corp. v. Square D Co., 68 F.3d 1216, 1221 (9th Cir. 1995). The nonmoving party cannot simply rest on its allegations without any significant probative evidence tending to support the complaint. See Nissan Fire & Marine, 210 F.3d at 1107. Instead, through admissible evidence the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e).

ANALYSIS

Through this action, plaintiffs contend that they have a First Amendment right to distribute CJA in the Sacramento County Jail because defendant does not have any legitimate penological interests that are served by the current mail procedures relating to the distribution of magazines. Defendant moves for summary judgment on the basis that his refusal to distribute CJA in the manner advanced by plaintiffs is rationally related to the jails' legitimate penological interest.*fn4

"In a prison context, an inmate does not retain those First Amendment rights that are 'inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system.'" Jones v. N.C. Prisoners' Labor Union, Inc., 433 U.S. 119, 129 (1977) (quoting Pell v. Procunier, 417 U.S. 817, 822 (1974)). Specifically, "there is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners." Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). However, this right "is subject to substantial limitations and restrictions in order to allow prison officials to achieve legitimate correctional goals and maintain institutional security." Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005). Indeed, the Supreme Court has "repeatedly recognized the need for major restrictions on a prisoner's rights" in balancing the institutional needs and objectives of prisons and rights generally afforded by the Constitution. Id.

In Turner v. Safley, the Supreme Court laid out a four-factor test to determine whether a prison regulation that impinges upon First Amendment rights is "reasonably related to legitimate penological interests":

(1) whether the regulation is rationally related to a legitimate and neutral government objective; (2) whether there are alternative avenues that remain open to the inmates to exercise the right; (3) the impact that accommodating the asserted right will have on other guards and prisoners, and on the allocation of prison resources; and (4) whether the existence of easy and obvious alternatives indicates that the regulation is an exaggerated response by prison officials.

Prison Legal News, 397 F.3d at 699 (quotations and citations omitted); see Turner, 482 U.S. 78, 89 (1987). The Court noted that "such a standard is necessary if 'prison administrators . . . , and not the courts, [are] to make the difficult judgments concerning institutional operations.'" Turner, 482 U.S. at 89 (quoting Jones, 433 U.S. at 128).

A. Rational Relationship to Legitimate Penological Interest

In analyzing the first Turner factor, the court must determine whether there is a "'valid, rational connection' between the prison regulation and the legitimate governmental interest put forward to justify it." Id. (quoting Block v. Rutherford, 468 U.S. 576, 586 (1984)). "[A] regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational." Id. at 89-90. Further, the governmental objective must be legitimate and neutral and must operate neutrally with regard to the content of the expression. Id. at 90.

It is undisputed that the Jail denies distribution of bulk mail for two primary reasons: (1) the precedential value of potentially having to accept other deliveries of bulk mail; and

(2) the potential negative effect on the work load for the Jail staff. Moreover, defendant contends that its current policies regarding bulk mail and general distribution of publications serves to (1) limit inmates' ability to secret contraband; (2) limit the amount of materials that inmates can use to plug toilets and flood their cells and pods; (3) limit inmates' ability to place items over the lights and windows in their cells, allowing staff to perform mandated hourly welfare checks more efficiently; and (4) enhance inmate safety by providing fewer avenues in which they can communicate inappropriate and violent messages and instructions to each other.*fn5

Plaintiffs concede that defendant has an interest in maintaining mail quality control, ensuring jail security, and allocating jail resources. However, plaintiffs argue that the regulations at issue are not rationally related to those legitimate interests.

The court disagrees. Defendant has presented evidence that there are over seven hundred pieces of incoming mail per day at the Jail. This requires a total of sixty people to process the mail and a total of twenty-four personnel hours per day. Under plaintiffs' calculation, distribution through bulk mail would increase incoming mail by at least two hundred fifty pieces per week.*fn6 Defendant presents evidence that this increase in unsolicited bulk mail would cause additional administration, staffing, and security issues for the jail. (Decl. of Capt. Scott Jones in Supp. of Mot. for Summ. J. ("Jones Decl."), filed Apr. 14, 2009, ¶ 50.) Moreover, plaintiffs concede that distribution of CJA is a concern because it introduces written materials for which inmates do not have an ownership interest. Plaintiff also concedes that magazines are associated with the creation of a weapon. (PUF ¶¶ 86, 88.)

Accordingly, the court finds that the undisputed facts demonstrate that defendant's regulation concerning bulk mail and drop-off distribution is logically connected to and advances the proffered legitimate penological concerns. Specifically, defendant's refusal to accept and distribute unsolicited bulk mail enables the Jail to conserve prison resources by limiting the amount of incoming mail that correctional staff must process.

Further, by limiting the amount of unsolicited mail, defendant is ensuring that there are less written materials that inmates may easily use or dispose of in ways that are disruptive to the staff or other inmates. Finally, the regulation limits the materials out of which inmates may fashion weapons.

The court also finds that defendant's regulation is neutral in its application. It is undisputed that the current policy does not take into account the content of any unsolicited publications. (DUF ¶ 16.)

Plaintiffs argue that the Ninth Circuit's decision in Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005), relating to the constitutionality of regulations relating to the receipt of publications sent via bulk mail, supports their argument that the regulations at issue are not rationally related to legitimate interests and thus, unconstitutional. However, the facts before the court in Lehman are distinguishable from the facts before the court in this case. In Lehman, the plaintiffs challenged the defendant Washington Department of Corrections' regulation prohibiting the receipt of non-subscription bulk mail and catalogs by inmates. Id. at 696. In finding that the regulation was not rationally related to a legitimate penological interest, the Lehman court emphasized that, in the case before it, every piece of mail sent by the plaintiffs was a result of a request by the recipient. Id. at 700-01 ("[I]t is the request on the part of the receiver and compliance on the part of the sender, and not the payment of money, that is relevant to the First Amendment analysis."). As such, "the sender's interest in communicating the ideas in the publication correspond[ed] to the recipient's interest in reading what the sender has to say." Id. at 701 (internal quotations and citations omitted). Conversely, in this case, plaintiffs do not seek to send CJA to inmates who have previously requested to receive the publication. Indeed, plaintiffs have failed to disclose the name of any inmate in the Sacramento County Jail who has requested a copy of CJA. (DUF ¶ 58.) Thus, the convergence of the publisher's interest in sending and the inmate's express desire to receive, the existence of which the Ninth Circuit held was both "important" and "relevant" in this inquiry, is notably absent here. See Lehman, 397 F.3d at 700-01.

Furthermore, two other district courts confronted with nearly identical issues are in accordance with the court's conclusion. In both Hrdlicka v. Cogbill, No. C 04-3020, 2006 WL 2560790 (N.D. Cal. Sept. 1, 2006), and Crime, Justice & America, Inc. v. Reniff, No. 2:08-cv-343, 2009 WL 735184 (E.D. Cal. Mar. 18, 2009), plaintiffs Hrdlicka and Crime, Justice & America, Inc. brought suit challenging nearly identical regulations regarding distribution of unsolicited publications at jails in Sonoma County and at the Butte County Jail. The defendants in Hrdlicka and Reniff proffered penological interests identical to those proffered by defendant in this case. After reviewing the submissions of the parties and the relevant case law, the district courts concluded that the challenged prohibitions relating to unsolicited publications were rationally related to and advanced legitimate penological interests. Further, both courts also concluded that the Ninth Circuit's holding in Lehman was inapplicable because no request for the publication had been made to plaintiffs.

Therefore, the court concludes that the first Turner factor weighs in favor of defendant.

B. Alternative Means of Exercising the Right

In analyzing the second Turner factor, the court must examine whether "'other avenues' remain available for the exercise of the asserted rights." Turner, 482 U.S. at 90 (quoting Jones, 433 U.S. at 131). Where such alternative means are available, "courts should be particularly conscious of the 'measure of judicial deference owed to corrections officials . . . in gauging the validity of the regulation.'" Id. (quoting Pell v. Procunier, 417 U.S. 817, 827 (1974)).

Defendant contends that inmates have always had the ability to request and receive CJA. Defendant also presents evidence that plaintiffs have been informed multiple times that CJA could be mailed directly to inmates without objection. Thus, defendant argues that other avenues remain available for inmates to receive plaintiffs' publication.

The court agrees. Defendant presents evidence that he has never refused to distribute CJA to an inmate that has requested it. (DUF ¶ 59.) While complying with defendant's regulation may reduce the circulation rate of CJA, a subscription or request based system would effectively allow plaintiffs to exercise their First Amendment right to communicate with inmates at the Sacramento County Jail. See Jones, 433 U.S. at 130-31 (holding that the loss of cost advantage in bulk mailing did not fundamentally implicate free speech values and thus, the regulations imposed were reasonable); Hrdlicka, 2006 WL 2560790, at *14 (noting that traditional advertising techniques and relying on word-of-mouth to promote inmate subscribers to whom plaintiffs may directly mail issues of CJA was a sufficient alternative means of exercising their First Amendment right).*fn7

Therefore, the court concludes that the second Turner factor weighs in favor of defendant.

C. Impact on the Allocation of Prison Resources

In analyzing the third Turner factor, the court must examine the impact that accommodation of the asserted constitutional right would have on guards and other inmates as well as on the allocation of prison resources generally. Turner, 482 U.S. at 90. The Supreme Court has acknowledged that in the context of a correctional institution, "few changes will have no ramifications on the liberty of others or on the use of the prison's limited resources for preserving institutional order." Id. Where such ramifications will have a significant effect on fellow inmates or prison staff, "courts should be particularly deferential to the informed discretion of corrections officials." Id.

As mentioned above, defendants present evidence that the increase in mail created by plaintiffs' proposed distribution of an unsolicited publication would likewise increase administration, staffing, and security issues within the Jail. Defendant asserts that to accept publications or magazines from one publisher would set an unworkable precedent, obligating the Jail to accept any other publications that appeared on the doorstep. (DUF ¶ 17); see Reniff, 2009 WL 735184, at *3 (holding that the third Turner factor weighed in favor of defendants where distribution of CJA would set a precedent regarding the distribution of other unsolicited newsletters or publications). In addition to the increased administrative burden in allocating staff to sort through the additional mail, defendants also present evidence that placing greater burdens on the mail processing staff increases the likelihood that error will occur and contraband will be missed; this would affect the safety and security of the Jail as a whole. (DUF ¶ 21); cf. Prison Legal New v. Cook, 238 F.3d 1145, 1151 (holding that 15 to 30 pieces of mail derived from personal subscriptions to a particular publication in addition to the 5000 to 8000 pieces of first class mail processed daily was minimal, particularly where there was evidence that the Department was able to process improperly addressed bulk mail sent by the state).

Therefore, in light of the undisputed evidence, the court concludes that the third Turner factor weighs in favor of defendant.

D. Easy or Obvious Alternatives

Finally, in analyzing the fourth Turner factor, the court must examine whether there are ready alternatives to the regulation at issue. Turner, 482 U.S. at 90. "[T]he existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an 'exaggerated response' to prison concerns." Id. However, the Supreme Court has made clear that this factor does not impose a "least restrictive alternative test."

Plaintiffs argue that defendant's regulations are an exaggerated response because other alternatives allay some of the concerns and interests proffered by defendant. Specifically, plaintiffs point to defendant's regulations limiting the amount of possessions inmates may have in their cells. (See PUF ¶ 74.) Plaintiffs also assert that defendants could prohibit or limit an inmates' ability to leave any written materials in common areas.

The court finds plaintiffs' arguments unpersuasive. Plaintiffs' asserted alternatives fail to take into account the administrative burdens imposed upon the Jail and its staff due to an increase in unsolicited mail. Indeed, their proposed new prohibition would likely require more staffing in order to ensure that inmates did not leave unsolicited publications in common areas. Furthermore, plaintiffs fail to address the jail safety issues raised by defendant, such as the potential increase in contraband due to inadequate screening or an inmate's ability to fashion weapons or otherwise improperly use materials over which they have no ownership or personal interest.

Therefore, the court concludes that the fourth Turner factor weighs in favor of defendant.

CONCLUSION

In sum, the court holds that defendant's regulations regarding the mail policy as it applies to unsolicited publications such as CJA are reasonably related to legitimate penological interests. There are valid, rational connections between the policies in place and defendant's interests in maintaining mail quality control, ensuring jail security, and allocating jail resources. There are also ready alternatives for plaintiffs to exercise their First Amendment right; defendant's regulations allow for the distribution of CJA to inmates when it is properly addressed and mailed to those who voluntarily request it. Further, accommodating plaintiffs' request would impact the allocation prison resources through the increased burden on staff as well as the potential increase in safety issues. Finally, there is no readily apparent alternative to the current regulations that bear in mind the legitimate penological interests proffered by defendant. Accordingly, the court concludes that defendant's challenged regulations are permissible under Turner.

For the foregoing reasons, defendant's motion for summary judgment is GRANTED. The Clerk of Court is directed to close this case.

IT IS SO ORDERED.


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