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Crime, Justice & America, Inc. v. McGinness

August 3, 2009


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


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.


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.)


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 ...

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