1 WO
2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Prison Legal News, a project of the Human Rights Defense Center,
9 Plaintiff,
10 v.
11 Paul Ba beu, indivi dual and i n his official
12 capacity as Sheriff of Pinal County, Arizona; et al.,
13 Defendants.
14

NO. CV 11-01761-PHX-GMS ORDER

15

The Court has before it the suppl emental briefing (Docs. 144, 148) it requested on

16 the publisher-only rule in a previous Order. (Doc. 143 at 10–13.) Defendants have moved

17 to strike most of the Response filed by Plai ntiff Prison Legal News (“PLN”). (Doc. 149.)

18 After reviewing the Parties’ submissions, the Court grants in part and deni es in part

19 Defendants’ Motion to Strike a nd de nies PLN’s outstanding Motion fo r P ermanent

20 Injunction (Doc. 85). PLN has also filed a Motion for Reconsideration. (Doc. 145.)

21 Defendants responde d in accorda nce with t his Court’s Order, and the C ourt now denies

the Motion for Reconsideration. 22

23

I. PUBLISHER-ONLY INJUNCTION

RULE AND NECESSITY F OR A P ERMANENT

24

On March 19, 2013, this Cour t issued an Order in resp onse to the Cross-Motions

25 for Summary Judgment that the Parties filed. (Doc. 143.) In that Order, the Court resolved

26 several of the claims, but ordered supplemental briefing on one issue and the effect of that

27 issue on PLN’s request for injunctive relief. Specifically, PLN re quested a perm anent

28 injunction that w ould preve nt Defenda nts from rejecting PLN materials under the

1 mailroom policy i n effect at Pinal Count y Jail. (Doc. 86 at 13–17.) One of PLN’s

2 arguments for the necessity of injunctive re lief was that the policy’s current provisions

3 governing adm ission of publications were “v ague a nd contradictory.” Befor e resolving

4 PLN’s Motion for Permanent Injunction, the Court sought clarification on the “basis the

5 jail has determined to presently accept all th e materials that PLN se nds into it.” (Doc. 143

6 at 13.) That information, in turn, would illuminate the in quiry into whether injunctive

7 relief is necessary.

8

A. Background and Current Application of the Publisher-only Rule

9

The official mailroom policy in effect when PLN’s materials were rejected allowed

10 “publications” as long as they “c[a]me directly from a recognized publisher, distributor, or

authorized retailer.” (Doc. 88 -5, Ex. Q at PCSO 000052; id. at PCSO 0 00066.) Nowhere 11
did the policy define t he term “publication” or describe how jail staff determined a given 12
publisher, distributor, or retailer becam e “recognized” or “aut horized.” The Parties 13
referred to this rule as the “publis her-only” rule. At the time PLN was sending materials, 14
mailroom staff applied the publisher-only r ule for books in a very limited fashion. Only

15 four vendors, who were in fa ct not ge nerally publishers, we re considered “r ecognized”:

16 Amazon, Borders, Barnes & Noble, and Waldenbooks. (Doc. 87 ¶ 25; Doc. 99 ¶ 25.) And

17 so only books coming from these book sellers were allowed. (Id.)

18

Defendants conceded the unconstitutionality of the way mailroom staff applied the

19 publisher-only rule. (Doc. 98 at 7.) The Cour t then determined the liability of various

20 Defendants under 42 U. S.C. § 1983 for thos e unconstitutional actions and the availability

21 of certain categories of dam ages to PLN at trial that stemmed fro m the First Amendment

22 violations, among others. (Doc. 143 at 18–25; 28–32.)

23

PLN also requested injunctive relief and c ited the fact that the publisher-only rule

24 under the new policy was substantially simila r to the previous policy, which mailroom

25 staff had implemented in an unconstitutiona l manner. The Court made the following

26 observations:

27

PLN asks the Court to enter a perm anent injunction that it may send

materials into the jail and have th

em received by the addressees.

28

2930168.1

2

1

Nevertheless, in light of the deference to which prison officials are entitled,

2

the Court is disinclined to enter s uch a broad and undefined injunction on a permanent basis, when it is not sure on what basis the jail has determined to

3

presently accept all the materials that PLN sends into it. PLN might change

the nature of materials it seeks to send into the ja il that could conceivably

4

cause security or m anagement conc erns. Nor, in light of the jail’s

5

undisputed representation t hat all of P LN’s m aterials are now bei ng

received, is it necessarily clear that such an injunction is necessary.

6 On t he other hand, w hen Defenda nts have not explaine d w hat

7

determinations were made under the current policies to a llow the receipt of

8

PLN’s materials, nor the criteria on wh ich such determinations were made, if any, it is possible that the jail’s cu rrent decision to allow suc h materials

9

may be ephemeral. This is underlined by the jail’s refusal to permit mailing

privileges to ot her organizations that PLN asserts are si milar to it. Further,

10

to the extent there are no such criteria there is the possibility if not

11

likelihood that the jail is resolving such matte rs “on an a d hoc a nd

subjective basis, with the attenda nt dangers of arbitrary and discrim inatory

12

application.”

13 (Id. at 12–13 ( quoting Cohen v. San Ber nardino Valley Coll. , 92 F.3d 968, 972 ( 9th Cir.

14 1996)).)

15

Deputy Chief James Kimble, who has fina l policymaking authority for the prisons

16 in Pinal C ounty, (D oc. 87 ¶ 35; Doc. 99 ¶ 35 ), filed a Declaration in response to the

17 Court’s Order for supplem ental briefing. (D oc. 144-1, Ex. 1.) De puty Chief Kimble

18 clarified how the jail is currently implementing the “publisher-only” rule.

19

The current policy permits “publications” so long as they come from a “recognized

20 publisher, distributor, or author ized retail er.” (Doc. 88-6, Ex. S at PCSO 000082.)

“Publications” are defined as “books, ma gazines, periodicals, and catalogs.” ( Id. at PCSO 21

000075.) Upon arrival, all pub lications are screened for cont raband. (Doc. 144- 1, Ex. 1 ¶ 22
3.)1 The policy, however, does not specify what criteria the jail employs to classify an 23
entity as a “recognized publisher, distributor, or authorized retailer.”

24 Nevertheless, Deputy Chief Ki mble ha s “interpreted the terms ‘recognized

25 publisher,’ ‘recognized distributor,’ and ‘authorized retailer’ to mean t hat the identity and

26 address of the purported publis her, distributor, and/or retaile r have been verified through

27

28

1 At no point has PLN ever challenged this procedure.

2930168.1

3

1 internet searches, thus eliminating any danger that it is an in dividual attempting to contact

2 inmates by simply using a name that sounds like a book publisher or distributor.” (Id. ¶ 4.)

3 The reason the jail allows publications only from entities—not individuals—is “[t]o

4 eliminate contraband.” (Id. ¶ 3.)

5

PLN mails (1) its own newsletter, (2) its own brochures and pam phlets, (3) books

6 that it has published, and (4 ) books that are published by other entities. (Doc. 89 ¶¶ 4–6,

7 12.) According to De puty Chief Kimble, “PLN is a recognized publisher and distributor

8 because its identity is able to be independently verified .” (Doc. 144-1, Ex. 1 ¶ 5.)
9 Consequently, PLN’s own news letter, brochures, and pamphlets and self-published books 10 are allowed because “they come directly fro m PLN, a recognized publisher, and not from
an individual.” (Id. ¶ 6.) For books that PLN does not publish but still distributes, PLN is 11
considered a “recognized distributor.” (Id.) 12
B. An alysis 13
PLN seeks a perm anent injunction against Defenda nts. PLN, however, has not ha d 14
any materials rejected by the jail since this lawsuit was filed. (Doc. 99 ¶ 94; Doc. 119 ¶ 15
94.) Injunctive relief is for unusual cases, where a plaintiff “(1) has suffered an irreparable 16 injury; (2) [where] remedies available at la w, such as m onetary damages, are inadequate
17 to compensate for that inju ry; (3) [where ], considering t he ba lance of the har dships
18 between the plaintiff and defenda nt, a rem edy in equity is warranted; and (4) [ where] the

19 public interest would not be disse rved by a perman ent injunction.” eBay, Inc. v.

20 MercExchange, L.L.C., 547 U.S. 388, 391 (2006). In case like this, where the injury to the

21 plaintiff has ceased, the plaintiff carries a weig hty burden to show th at future injury is

22 likely. See Nelsen v. King Co. , 895 F.2d 1248, 1251 (9th Cir. 1990). Notably, “[p]ast

23 exposure to illegal conduct does not in itself show a present case or controversy regarding

24 injunctive relief . . . if unaccompanied by any continuing, present adverse effects.” O’Shea

25 v. Littleton, 414 U.S. 488, 495–96 (1974).

26

As discussed in the prior Order, severa l Defendants violated PLN’s constitutional

27 rights, and PLN can proceed to trial to dete rmine what damages sh ould be awarded. But 28 any injury due to appl ication of the publisher-only rule appears to be over, and injunctive

2930168.1

4

1 relief is appropriate on ly when injuries are ongoing or im minent. See Demery v. Arpai o,

2 278 F.3d 1020, 1025–26 ( 9th Cir. 2004) (“[ A] suit for injunctive relief is normally moot

3 upon the termination of the cond uct at i ssue” unless there is evidence that the conduct is

4 likely to recur).

5

PLN’s primary argument for why the jail is likely to deny its materials in the future

6 pursuant to the publis her-only rule is that th e jail currently allows PLN materials only on

7 the whim of Deputy Chief Kimble. PLN is a “recognized publisher and distributor ”

8 because Deputy Chief Kimble interpreted the terms “approved” and “recognized” to mean

9 “verifiable by internet search.” An internet search confirmed the existence of PLN. Yet

10 the policy itself does not prescribe that proc edure. Its opacity leaves open the possibility

that a subs equent De puty m ight ascribe a di fferent m eaning t o t hose term s that woul d 11
move PLN back to the blacklist. The written policy’s failure to spec ify the procedure for 12
approval may leave open the poss ibility that, de spite the efforts of Deputy Chief Kimble, 13
jail officers might resolve questions of approval “on an ad hoc and s ubjective basis, with 14
the attendant dangers of arbitrary and discriminatory application.” Cohen, 92 F.3d at 972.

15 This is the vagueness that the First Amendment condemns. Id.

16

To support its theory that the policy—even with Deputy Chief Kimble’s

17 interpretation—will result in arbitrary application and that an injunction is necessary, PLN

18 cites the jail’s refusal to pe rmit mailing privileges to other similarly-situated non- profit

19 entities, such as Prison Library Project and Read Between the Bars. (Doc. 88-8, Ex. AA at

20 PCSO 000224-26; id., Ex. CC at PCSO 005292, 005241-44, 005424.) While those entities

21 are not parties to this case and PLN cannot a ssert their rights, the jail’s treatment of thos e

22 materials serves as a yardstick for meas uring how jail staff are implementing the

23 publisher-only rule and whether the danger is real that they might refuse PLN materials in

24 the future. At one po int, PLN m aterials were getting th rough, but m aterials from othe r

25 non-profits were not, raising the possibility that the only reason PLN materials were

26 allowed was because PLN had filed suit.

27

Defendants counter by asserting t hat D eputy C hief Kim ble has personally

28 institutionalized his interpretati on of the policy by conducting training for all jail staff.

2930168.1

5

1 (Doc. 144- 1, Ex. 1 ¶¶ 8–9.) Under Deputy Chief Kimble’s interpretation of the policy,

2 books from non- profits like Read Between th e Bars and Prison Library Project are

3 allowed—those e ntities qualify as “recogniz ed di stributors becaus e their ide ntity can be

4 independently verified.” ( Id. ¶ 7.) Consequently, jail sta ff should allow materials from

5 those organizations. (Id.)

6

Deputy Chief Kim ble acknowle dged, how ever, that “[u] nfortunately, during and

7 shortly after the implementation and training phase of the jail policy on incoming mail,

8 several publications were [incorrectly] reject ed. . . . Apparently front line m ail staff did

9 not independently verify the iden tity of these organizations.” ( Id. ¶ 8.) This lapse woul d

10 explain why the jail was rejecting m aterials from other non- profit organizations w hile

allowing PLN material in. Jail staff w 11

ere unawa re of De puty C hief Kim ble’s

interpretation of the policy, and, as discussed in the prior or der, appeared to a dhere to the

12

idea that the only approved suppliers were Amazon, Borders, Barnes & Noble, and

13

Waldenbooks. (Doc. 143 at 5, 10–13.)

14 Deputy C hief Kim ble contends t hat he ha s disabuse d t he jail staff of t hat not ion.

15 “Since that time [January and February, 2012), I have reinforced the im plementation of

16 the jail mail policy by personal ly instructing lower and upper supervisor y staff on the

17 proper im plementation of the pol icy. I have also implemented periodic jail mail policy

18 training for front line mail staff to reinfo rce the policy.” (D oc. 144- 1, Ex. 1 ¶ 8.)

19 Accordingly, “[f]ront line mail staff now kn ow that . . . ‘recognized publishers and

20 distributors’ and ‘a uthorized ret ailers’ are t hose that can be i ndependently verified t o

21 ensure that contraba nd is not hidde n in pub lications that reach the jail. Publications

22 coming to the jail go through a review process.” (Id. ¶ 9.) Deputy Chief Kimble described

23 the now-operational review process: “Front line mail staff (1) inspect each publication for

24 contraband, sexually explicit materials, and unauthorized materials . . . and (2) must verify

25 the identity of an unknown purported publisher, distributor and/or retailer through internet

26 searches. If the internet search confirms the identity of the orga nization, the n t he

27 publication should be allowed in subject to the [contraband] review process.” (Id. ¶ 9.)

28

The training and review process that Deputy C hief K imble outli ned and t hat he

2930168.1

6

1 asserts is now operative appears to allevi ate the concern from PL N’s perspective that

2 acceptance or rejection of its materials depe nds on which mailroom staffer reviews the

3 package. Deputy Chief Kimble has testified th at the review pr ocess is regularized and

4 uniform.

5

In its Response, P LN attempts to raise issues as to the accuracy of Deput y Chief

6 Kimble’s affidavit. Defenda nts have m oved to strike signific ant portions of P LN’s 7 Response. (Doc. 149.)2 PLN filed copies of emails betw een jail staff that show confusion
8 relating to the policy. Those emails, however, are all dated before PLN s ought t o send
9 material to the jail, and are irrelevant to th e very limited question th e Court left for this 10 supplemental briefing. Conse quently, the C ourt gra nts Defenda nts’ Motion t o Strike the
emails and accompanying affidavit. (Doc. 148-1; id., Exs. 1–4.) 11
PLN also submitted an Expert Report, prepar ed by John L. Clark, who is a former 12
corrections professional. (Doc. 148- 1, Ex. 5.) The re port and accom panying affida vit 13
(Doc. 148-2), contain his review and opinion on the adequacy of all of the jail’s mailroom 14
policies. Only a small portion of Clark’s repor t and affidavit is rele vant to the question 15
here, namely his opinion that “v erbal instructions to staff in correctional institutions often 16 do not lead to consistent im plementation of written policies over time, as memories fade 17 or personalities change.” ( Id. ¶ 10.) The Court has considered that observation for w hat it
18 is worth i n arriving at its final decision. The rem ainder of the r eport a nd affidavit is
19 irrelevant, and the C ourt grants Defenda nts’ Motion to Strike that material. (Doc. 148-1,

20 Ex. 5; Doc. 148-2.)

21

Finally, PLN submitted an affidavit from a Jody Holm es. (D oc. 148-3 (Holmes

22 Decl.).) Holmes claims to be “a core member of Read Between the Bars (‘RBtB”), a non-

23 profit book distribut or.” ( Id. ¶ 2.) She claims that “[p]ri or to reading Deputy Chief

24 Kimble’s March 29, 2013 affida vit it was m y understanding that books sent by R BtB to

25

26

2 Defenda nts believe that the standar ds normally applicable to a Motion for Reconsideration apply to any argument or evidence submitted by PLN in response to the

27

Court’s Order for supplem ental briefing. Wh ile the Court is mindful of the respective burdens attenda nt to sum mary judgm ent, its Order did not nec essarily foreclose the

28 possibility of new evidence, provided that it was responsive to the issue.

2930168.1

7

1 prisoners at the Pinal County Jail would be rejected by m ailroom staff and w ould not be

2 delivered.” (Id. ¶ 3.) Holmes states that Read Betw een the Bars ceased sending m aterials

3 to Pinal County Jail after Apr il 2010, but that a few vol unteers were unaware of t his

4 change and sent books to pris oners as recently as April 20 12, after the jail instituted the

5 new policy. ( Id. ¶¶ 5–7.) Those books were rejected and no notice was given as to the

6 reasons for rejection. (Id. ¶ 7.)

7

PLN cannot use Holmes’s affida vit to show that, despite Depu ty Chief Kimble’s

8 training, the message has not gotten through and frontline mailroom staff are still rejecting
9 publications on a n ad-hoc basis. Holm es’s statements lack foundation. The F ederal Rules 10 of Evidence state that “[a] witness may testify to a matter only if evidence is introduced
sufficient to support a finding that the witness has personal knowledge of the matter.” Fed. 11
R. Evi d. 602. P LN a pparently relies on Holm es’s s tatus as “a core m ember” of Read 12
Between the Bars to supply th e foundation for her la ter claims about the packages sent to 13
the Pinal County Jail. Nowher e does Holmes establish what “a core member” means. Nor 14
does she claim that she sent the packages to the jail; i ndeed, it is clear that other 15
volunteers sent those packa ges and receive d them back again. (D oc. 148-3 ¶¶ 6–7.) He r 16 affidavit lacks foundat ion as to her claim s about what happened w ith those packages—it
17 is not clear what cha nnels of com munication she employed to ascer tain what happened.
18 Absent that foundation, she l acks sufficient personal knowledge to testify as to what the

19 jail did with certain packages.

20

And in any event, her testim ony does not es tablish that Pinal County has not fixed

21 its former unconstitutiona l denial of access. It is not clear when Deputy Chief Kimble

22 conducted the training he references in his affidavit. He cites incidents from December

23 2011, January 2012, and Fe bruary 2012 w here jail staff rejected m aterials from non-

24 profits like PLN, and then states that “[s]ince that time, I ha ve . . . personall y instruct[ed]

25 lower and upper supervisory staff on the proper implementation of the policy.” (Doc. 144-

26 1 ¶ 8.) According to Holmes, Read Between the Bars voluntee rs sent books in April 2012

27 and “[a] fter April 2012.” ( Doc. 148- 3 ¶¶ 6–7.) On t his in complete record, the Court 28 cannot determine that the jail rejected books from Read Between the Bars after Deputy

2930168.1

8

1 Chief Kimble conducted the training. Deputy Chief Kimble admitted that mailroom staff

2 did not understand the new policy for a

period of tim e after im plementation a nd

3 improperly rejected books from some “recognized” entities. PLN has not shown the jail is

4 still administering the policy on an ad-hoc basis.

5

PLN has thus failed to show a likelihood th at its materials will be denied in the

6 future under the policy. Depu ty Chief Kimble has standard ized the approval process and

7 ensured that frontline mailroom staff are aware of and ar e acting according to that policy.

8 PLN has produced no evidence to the contrary. Consequently, PLN has not show n that it

9 is likely to suffer future inju ry on the facts before the Cour t. Its Motion for a Permanent

10 Injunction is denied.

II. MOTION FOR RECONSIDERATION 11
PLN filed a Motion for Reconsideration (Doc. 145) of the Court’s decision that the 12
jail’s prior policy limiting corre spondence to one-page lette rs or postcards was not 13
unconstitutional. (Doc. 143 at 13–15.) PLN contends that Court’s ruling was manifest 14
error because Defendants had previously conceded that the policy was unconstitutional.

15 A. Legal Standard

16

A motion for reconsideration can be grante d only on one of fo ur grounds: “ 1) the

17 motion is necessary to correct manifest errors of law or fact upon whic h the j udgment is

18 based; 2) the moving party presents newly discovered or previously unavailable evidence;

19 3) the m otion is nece ssary to pr event m anifest injustice or 4) ther e is an intervening

20 change in controlling law.” Turner v. Burl ington N. Sant a Fe R. R. C o., 338 F.3d 1058,

21 1063 (9th Cir. 2003) (interna l quotations and emphasis omitte d). In addition, L.R. Ci v.

22 7.2(g)(1) provides that “No motion for reconsideration of an Order may repeat any oral or

23 written argument made by the movant in supp ort of or in oppositio n to the motion that

24 resulted in the Order.”

25

B. An alysis

26

PLN fails to show why the Court should grant the Motion under the strict standards

27 that govern these requests. When PLN tried to send its materials into the jail, at least some 28 materials were rejected under the jail’s po licy limiting correspondence to one-page letters

2930168.1

9

1 or postcards. (Doc. 88-5, Ex. Q at PCSO 000048; id. at PSCO 000062.) The Court upheld

2 that policy under Turner v. Safley , 482 U. S. 78, 84 ( 1987). The arguments P LN m akes,

3 and the evidence it cites to show that the decision was m anifestly erroneous, were either

4 previously m ade or co uld ha ve been m ade at the sum mary judgment stage. At no point

5 does PLN attempt to fit its ar gument to one of the limited ba ses that can support a Motion

6 for Reconsideration.

7

It is true that PLN described the postcard and one- page letter policy and how

8 certain PLN materials were denied under that policy in its Motion for Partial Summary

9 Judgment. (Doc. 86 at 4.) But when PLN laid out its legal challenge to the mail policies, it

10 chose not to make any specific arguments about the unconstitutiona lity of the one-page

policy. I nstead, PLN argued broadl y that “[t] he Jail’s policies and pract ices violate 11
established law on t he First Amendment rights of publishers and prisoners.” ( Id. at 5.) At 12
no point in its Motion did PLN differentiate between the policy ba nning newspapers and 13
magazines, the publisher-only rule, or the pos tcard/one-page letter policy. PLN lumped 14
all of the policies together into a generali zed argum ent that all of Defendants’ policies

15 were patently unconstitutional.

16

With regar d to t he one-page/postcard po licy, PLN m ade onl y one specific point:

17 “Defendants’ person-most-k nowledgeable testified th at there was no legitimate

18 penological interest for the po stcard only policy, and that in his professiona l experience

19 there were penological benefits to allowing inmate correspondence.” ( Id. at 7.) PLN

20 supported that statement w ith a citation to Deputy Chie f Kimble’s deposition. ( Id.) At his

21 deposition, Deputy Chief Kimble was aske d w hy he changed t he policy from allowing

22 only postcards to allowing both postcards and one-page letters. (Doc. 88-1, Ex. I at 60:19–

23 61:13.) Deputy Chief Kimble responded by stating that “we don’t have anything to show a

24 legitimate penological interest ” to justify allowing only postcards but not letters. ( Id. at

25 61:14–25.) He also added that al lowing prisoners to write lette rs is helpful in maintaining

26 order. ( Id. at 62:1–7.) Nowhere did he state that the jail lacked a le gitimate penological

27 interest in limiting correspondence to postcards and one-page letters.

28

Defendants likewise did not directly

address the constitutionality of the

2930168.1

10

1 postcard/one-page letter policy i n their Re sponse/Cross-Motion fo r Su mmary Jud gment,

2 but, unlike the other policies, neither did De fendants concede that the postcard/one-pa ge

3 letter policy was unc onstitutional. (Doc. 101 at 7.) Finally, in its Reply/Response to

4 Defendant’s Cross-Motion, P LN m ade its first specific argument for why the

5 postcard/one-page letter policy was unconstitutional. First, it claimed, citin g supporting

6 facts, that “PLN has demons trated that Jail policy allowed inmates to receive

7 correspondence onl y in the form or postcards and one -page letters, and that delivery of

8 PLN’s materials, including its information pack s, was refused as a result.” (Doc. 117 at 6;

9 Doc. 87 ¶¶ 2, 5, 24.) The Court accepted thes e facts in its Order. PL N then claimed that

10 “Defendants have offered no ev idence that this policy serv ed a legitimate penological

objective. [citation]. It follows that sum mary judgment should be granted.” ( Doc. 117 at 11
6.) Those statements constituted the extent of PLN’s case against the postcard/one-page 12
letter policy. Defendants argued in their Reply th at “PLN errs in sugg esting that the jail’s 13
one-page letter policy was unconstitutional . . . . Prison officials are free to limit the 14
number of pages of material an inmate may receive or send in the mail in order to reduce

15 the volume of materials they must screen for contraband.” (Doc. 132 at 3.)

16

In light of the portions of the record that the Parties cited and the arguments they

17 made, the Court concluded that

18

[t]here appears to be a common-sens e connection bet ween a jail goal of

19

reducing contraband and limiting the number of pages a particular piece of

correspondence conta ins. . . . PLN has not provi ded any evide nce that

20

would refute the obvi ous connection between a page lim it and vol ume

21

control. The rem aining Turner factors do not counsel against the

constitutionality of the jail’s policy. Sufficient alterna tive avenues of

22

communication rem ain ope n f or pub lishers like PLN who wish to

23

communicate with inmates at the

Pinal County Jail: newspapers,

magazines, books, br ochures and ot her publications. The jail’s policy

24

limiting correspondence to one- page and postcards did not violate the First

Amendment. 25
(Doc. 143 at 14–15.)

26 For the first time in its Mo tion f or Reconsi deration, P LN claims that Defendants

27 disclaimed any legitimate penological interest in their discovery responses and wait ed

28

2930168.1

11

1 until their Reply to raise the issu e. PLN’s argument fails for two reasons. First, it is not a

2 proper basis for a Motion for Re consideration. PLN’s citations to other evidence in the

3 record are una vailing. Most of that evidence was already cons idered by the Court in its

4 Order. As to the statements PLN cites for the first time, PLN c ould have cited those

5 statements in its original Motion and did no t. None of the evidence qualifies as newly -

6 discovered. The rem ainder of P LN’s Motion for Reconsideration rehashes why certain

7 cases that the Court relied on are inapplicab le. None of those are proper bases for a

8 Motion for Reconsideration.

9

The second reason PLN’s argument is unconvin cing is because it is incorrect. PLN

10 bore the burden on its Motion fo r Summary Judgment to show that the postcard/one-page

policy was not “rationally related to a legi timate and neutral governmental objective.” 11
Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, 482 U.S. 12
at 89–90); see also Celotex Corp. v. Catrett , 477 U.S. 317, 323 (19 86) (“In our view, the 13
plain language of R ule 56(c) m andates the entry of sum mary judgm ent, after adequate 14
time for discovery a nd upon m otion, agains t a party w ho fai ls to m ake a showi ng

15 sufficient to establish the exis tence of an element essential to that party's case, and on

16 which that party will bear the bur den of proof at trial.”) PLN attempts to avoid its failure

17 to meet that obligation by contending that it thought Defendants had already conceded the

18 point. PLN then references Defenda nts’ Responses to two Interrogatori es as evidence of

19 the concession. The C ourt has reviewed thos e discovery responses (Doc. 145-1, Ex. B)

20 and nowhere did Defendants con cede that there was no legitim ate penological interest in

21 the decision to restrict inco ming mail to postcards/one-page letters. They conceded that

22 the materials were not denied “based on c ontent” or becau se the materials themselves

23 “implicated a health or safety concern” or would have “an adverse impact on other guards

24 and prisoners”. ( Id.) But they did not conced e that the specific policy that allows only

25 postcards and one-page lette rs was unconstitutional. PLN s till had to carry its burden on

26 summary judgment and it did not.

27

Accordingly, P LN has failed to show

28 reconsideration.

clear error. There is no basis for

2930168.1

12

1

CONCLUSION

2

PLN has failed to show that its materi als are likely to be rejected under the

3 publisher-only rule, and is therefore not entitled to a permanent injunction. PLN has

4 likewise failed to show manife st error in the Court’s deci sion upholding the postcard/one-

5 page letter policy.

6

IT IS THERFO RE ORDERED that PLN’s Motion for Permanent Injunction

7 (Doc. 85) is DENIED.

8

IT IS FURTHER ORDERED that Def endants’ Motion to St rike (Doc. 149) is

9 granted in part and denied in part as described herein.

10

IT IS FURTHER ORDERED that PLN’s Motion for Re consideration (Doc. 145)

is DENIED. 11
Dated this 1st day of May, 2013. 12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

2930168.1

13

 
 1 WO

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8 Prison Legal News, a project of t he Human 9 Rights Defense Center,

10

Plaintiff,

No. CV-11-01761-PHX-GMS ORDER

11 v.

12 Paul Ba beu, indivi dual and in his official capacity as Sheriff of Pinal County,
13 Arizona; et al.,

14

Defendants.

15

Pending before the Court is Plaintiff Prison Legal News’s (“PLN”) Motion for

16 Partial Summary Judgment, Permanent Injunction, and Declaratory Judgm ent. (Doc. 85.)

17 Defendants have filed a Response and Cr oss-motion for Partial Summary Ju dgment.

18 (Doc. 102. ) Each m otion is granted in part, denied in part, and deferred in part. I n 19 addition, PLN filed a Motion for Surreply (Doc. 134), which is denied.1

20

FACTUAL BACKGROUND

21

Plaintiff P LN is a non-pr ofit or ganization that pr ovides a variety of m aterials to

22 prisoners throughout the country. (Doc. 89 ¶¶ 1-5.) It produces and distributes a 56-pa ge

23 monthly journal that “provides i nformation ab out legal issues such as access to courts,

24 disciplinary hearings, prison conditions, exc essive force, m ail censorship, pri son and jail

25 litigation, visitation, telephones, religious freedom, prison rape, and the death penalty.”

26

27

1 The Parties’ requests for oral argument are denied because they have ha d an adequate opportunity to discu ss the law and evidence and or al argument will not aid the

28

Court’s decision. See Lake at Las Vegas Investo rs Group v. Pac. Malibu De v., 933 F. 2d 724, 729 (9th Cir. 1991).

1 (Id. ¶ 4.) PLN also distributes a variety of books. (Id. ¶¶ 5-6.) These books include PLN’s

2 own publications as well as books published by other entities, such as “Protecting Your

3 Health and Safety”, which is publishe d by the Sout hern Pover ty La w Ce nter. ( Id.)

4 According to PLN, it has around 7,000 subs cribers and distributes its materials to around

5 2,200 correctional facilities. ( Id. ¶ 7.) PLN challenges the acti ons of Pinal County Jail

6 officers and employees, who failed to deliver PLN materials during 2011.

7

The Defendants to t his action are all i nvolved i n the adm inistration of the Pina l

8 County Jail or work in its mailroom. Pa ul Babe u is the S heriff of Pi nal C ounty and

9 assumed that office on January 1, 2009. (Doc. 99 ¶ 53; Doc. 119 ¶ 53.) He de legated all

10 responsibility for the Pinal County Jail and its policies to Deput y Chief James Kimble.

11 (Doc. 87 ¶ 35; Doc . 99 ¶ 35.) Deput y Ki mble’s com mand staff include d Da vid

12 Linderholm—the training specialist for jail staff since 2007 (Doc. 99-1, Ex. D

13 (Linderholm Dep.) at 11: 7-15; Doc. 99 ¶ 36), and Commanders Terry Johnson, Jarym e

14 Valenzuela, and Rube n Montano, who revie wed policy and trained jail staff. (Doc. 87 ¶

15 36; Doc. 99 ¶ 36.)

16

In the jail’s mailroom, there were se veral detention aides w ho re ported to a

17 Sergeant who, from 2008 to Ja nuary 2011, reported to a lieut enant. From some time in

18 2008 until July 2011 T onya Delgado was the Serg eant who oversaw mailroom

19 operations. (Doc. 88-1, Ex. A (Delgado Dep.) at 32:1-7.) She supervised Detention Aides

20 Alyssa R omero, Laur enda Hensl ey-Salisberry, and C heryl McBir nie, who s orted the

21 mail. ( Id.) Lieutenant Darrin R ushing was S ergeant De lgado’s supervisor from 2008 t o

22 January 2011. (Doc. 88-1, Ex. F (Rushing Dep.) at 20: 11-18.) He was succeeded by

23 Lieutenant Gilbert Hoyos. (D oc. 88- 1, Ex. F at 25:17-21.) In addition t o reporting t o

24 Lieutenant Rushing, (Doc. 122, Ex. B ( Delgado Dep.) at 76:18-77:6), Sergeant Delgado

25 could also consult Commander Montano if ques tions arose about policy. (Doc. 99-1, Ex.

26 E (Darrin Rus hing Dep.) at 27:6-29:2.) Defe ndant Sergeant Le onard Arnold apparently

27 took over s upervision of the m ailroom from Sergeant Delgado s ometime in m id-2011.

28

- 2 -

1 There is no evidence that the remaining named Defendants2 were involved in this case.

2

Beginning in Fe bruary 2011, PLN attempted to send its publications to the jail’s

3 inmates. (Doc. 87 ¶ 1-4; D oc. 99 ¶ 1- 4.) These m aterials included the P LN m onthly

4 journal; an Inform ational Br ochure pack, which contained a subscription order form ,

5 book list, and brochures; and the book “Protecting Your Health and Safety.” (Id.; Doc. 89

6 ¶ 12.) Jail staff members were unfamiliar w ith PLN and had never seen its materials

7 before. (Doc. 99 ¶ 67; Doc. 119 ¶ 67.) It appears no m agazines or newspapers had ever

8 been sent to the jail before. (Doc. 99 ¶¶ 76- 77; D oc. 119 ¶¶ 76-77.) Starting in March

9 2011, PLN began receiving m any of its m aterials back with vari ous notations on them,

10 such as “ not allowe d”, “onl y 1 pa ge lette rs allowed”, and “not sent from appr oved

11 publisher.” (Doc. 89-1, Ex. C at PLNT 000042, 00 0045, 000172; Doc. 87 ¶ 5; D oc. 99 ¶

12 5.)

13

Detention Aides Romero, McBirney, an d He nsley-Salisberry received the PLN

14 materials and were unsure ho w to handle them . (Doc . 88- 1, Ex. H (R omero De p.) at

15 25:12-21.) The detention aides took the matter to Sergeant Delgado, their supervisor, and

16 asked what they should do. ( Id.) Sergeant D elgado asked the dete ntion aides what the y

17 did with sim ilar publi cations and learned the aides had never seen analogous item s

18 before. (Doc. 99-2, Ex. I (Delgado Dep.) at 76: 6-77:16.) Sergea nt Delga do went to

19 Lieutenant Rus hing who told Sergeant Delga do that he had never seen the pam phlets

20 before. ( Id.) He gave no f urther direction. Ther e is conflicting evid ence about what

21 Sergeant D elgado di d next. Dete ntion Ai des Ro mero and McBir ney sa id that Sergean t

22 Delgado told them to return the materials to the sender or throw them away. (Doc. 88-1,

23 Ex. H (R omero Dep. ) at 26:22- 25, 27: 1-2; id., Ex. G (McBirnie De p.) at 22: 10- 13.)

24 Sergeant Delgado claims to have never tol d anyone to throw the materials away. (Doc.

25 99-2, Ex. I (Delga do Dep.) at 75: 3-5.) In either case, the detention aides proceeded t o

26

27

2 Loretta Valdez, Dalton Gay, Eric Chavez, Dena Kelly, Amado Martinez, Frances

28

Hawkings, and Lie utenants Ma tthew Hull, Dennis Rushing, Vernita Gant, and Michele McNeely.

- 3 -

1 either discard the materials or send them back to PLN with the notations described above.

2 (Doc. 88, Ex. H (R omero Dep.) at 27:4-8; Doc. 99-1, Ex. C (Hensley -Salisberry Dep.) at

3 26:4-25.) PLN’s materials did not, however, pose any safety or security threat. (Doc. 87 ¶

4 7; Doc. 99 ¶ 7.)

5

The official mailroom policy in effect 3 w hen P LN sent its m aterials did not

6 contain a ny specific provisio n governi ng newspa pers and m agazines. As one of the

7 rejection notices sent to PLN indicated, the policy limited incomi ng corresponde nce to

8 “post cards no larger than 5X7 or regular envelope with a si ngle page letter.” (Doc. 88-5,

9 Ex. Q at PCSO 000 048; id. at PSCO 000062.) The policy also containe d a “publisher -

10 only” rule. It provide d that “[t]he mail room shall accept authorized publications directly

11 from the publisher (paper back). Hard back books are not authorized.” ( Id. at PCSO

12 000049; id. at PCSO 000063.) Fr om its references to “paperback” and “Hard back,” this

13 portion of the policy appeared to apply to books. Used books were also permitted,

14 provided t hey were “shippe d directly fro m a recognized publ isher, distribut or, or

15 authorized retailer.” ( Id.) Later, the policy stated that “[p] ublications shall come directly

16 from a recognized publisher, distributor, or authorized retailer.” ( Id. at PCSO 000052, id. 17 at PCSO 000066.) Nowhere did the policy define the term “publication.”4 In addition, no

18 policy provision required jail officers to no tify publi shers that delivery ha d not taken

19 place and provide an opportunity to appeal th e jail’s refusal to deliver items. (Doc. 87 ¶¶

20 27-28; Doc. 99 ¶¶ 27-28.)

21

Despite the absence of a formal policy governing magazines and ne wspapers, the

22 practice in the mailroom was to ban th

em. Detention Aides McBirnie, Hensley-

23 Salisberry, and Romero all belie ved newspapers and magazines were banned. (Doc. 87 ¶

24 22; D oc. 99 ¶ 22.) Li kewise, Se rgeant Del gado a nd Lieutena nt Ru shing believed that

25

26

3 Two separate policies applied during th e perio d in volved in the case, but the relevant provisions were identical. Both provisions are cited.

27

4 Defendants argue tha t a stray reference to “a m agazine or public ation” that was

28

present in a separate, unrelated clause demons trates that magazine and publication were interchangeable. There is nothing in the policy to that effect.

- 4 -

1 newspapers and m agazines were contraband and shoul d be immediately rejected. (Doc.

2 88-1, Ex. A (Delgado Dep.) at 52:21-23; id., Ex. F (Rushing Dep.) at 42:2-7.) In fact, the

3 mailroom policy in effect until January 31 , 2010—about a year before PLN began 4 sending its materials—had included a blanket prohibition on magazines and newspapers.5

5 The inmate handbook and jail website also st ated that newspapers and m agazines were

6 considered contraba nd. (Doc. 88- 1, Ex. J at PC SO 000112 ( 2/25/10 re vision), Ex. K at

7 PCSO 000126 ( 10/7/10 revision), Ex. L at PCSO 000140 (1/6/11 revision), Ex. M at 8 PCSO 000154 ( 9/12/11 re vision); Doc. 88-8, Ex. BB at PCSO 000545-48.) 6 In short,

9 there was a wides pread belief in the mailr oom t hat newspa pers and m agazines were

10 forbidden.

11

Mailroom staff also applied the publisher-o nly rule for books in a very limited

12 fashion. O nly four vendors were considered “recognized”: Am azon, B orders, Barnes &

13 Noble, and Waldenbooks. (D oc. 87 ¶ 25; D oc. 99 ¶ 25.) Only b ooks coming from these

14 publishers were allow ed. (Id.) Finally, mailroom staff stric tly enforced the rule limiting

15 correspondence to postcards and one-page letters. (Doc. 87 ¶ 24; Doc. 99 ¶ 24.) PLN

16 materials were denied under all three rati onales: the newspa per/magazine ban, t he 17 publisher-only rule, and the one-page letter policy. 7 On April 27, 2011, an inmate filed a

18 request for information about the material s he was expecting from Prison Legal News.

19 (Doc. 89-1, Ex. D.) A me mber of the prison staff responde d: “The onl y thi ng that was

20 received for you from PLN was a letter but it wa s returned due to it having more than 1

21 page. PLN is not an appr oved publisher ther efore you can’t receive books from them or

22 newspapers.” (Id.)

23

24

5 “The Mail Room will accept authorized publications directly from the publi sher

25 (excluding newspapers and magazines).” (Doc. 88-5, Ex. O at PCSO 00030.)

26

6 The handbook was revised on February 14, 2012, to e liminate the language that newspapers and magazines were contraband.

27

7 The notations included on the materials returned to PLN included statements like

28

“not allow ed,” “onl y 1 pa ge letters allowed,” and “not se nt from appr oved publisher.” (Doc. 89-1, Ex. C at PLNT 000042, 000045, 000172; Doc. 87 ¶ 5; Doc. 99 ¶ 5.)

- 5 -

1

At the policymaker level, however, Pinal County asserts that there was a starkly

2 different understanding of t he m ailroom polic y. Deputy Kimble testified that mailroom

3 policy permitted magazines an d news papers, since the la nguage expressly banning

4 newspapers had been removed. (Doc. 99-2, Ex. F, (Ki mble Dep.) at 82: 22-83:14.) After

5 examining the policy, Specialis t Linderholm also stated that magazines and newspaper s 6 were allowed. (Doc. 99-1, Ex. D, (Linder holm Dep.) at 56:19- 59:4.)8 Nevertheless, no

7 member of the staff was disciplined for refusing to deliver PLN’s publications. (Doc. 87 ¶

8 30; Doc. 99 ¶ 30.) The command staff never conducted any training for mailroom staff on

9 mailroom policies. (Doc. 87 ¶ 23; Doc. 99 ¶ 23.)

10

PLN filed the instant lawsuit on September 7, 2011. (Doc. 1.) By that time, PLN

11 had attempted to send around 420 items to inm ates at Pinal C ounty Jail. (Doc. 89 ¶ 12;

12 Doc. 87 ¶ 1-4; Doc. 99 ¶ 1-4.)

13

On November 20, 2011, Pinal C ounty Ja il issued an update d mail policy. U nder

14 the new policy, inmates were provided “with access to books and periodicals [unless the

15 materials] jeopardiz[ed] safety, secur ity, order and other legitimate PCSO-ADC

16 interests.” (Doc. 88-6, Ex. S at PCSO 0 00082.) Books sent from a “publisher, a book

17 club, or other approved commercial supplie[r]” were permitted. (Id. at PCSO 000075.) As

18 before, used books were aut horized so long as they were “shipp ed directly from a

19 recognized publisher, distribut or or aut horized retailer.” ( Id. at PCSO 000083.)

20 Publications likewise had to come “directly from a recogniz ed publisher, dis tributer, or

21 authorized retailer.” ( Id. at PCSO 000082.) The policy did not provi de a description of

22 how a publisher or distributor bec omes “recognized” or a commercial supplier or retailer

23 “authorized.” Nevertheless, the new polic y required mailroom staff to give notice to both

24 the prisoner and the sender of a rejection of m aterials (Doc. 88- 6, Ex. S at PC SO

25 000080), a nd pr ovided an oppor tunity to a ppeal (D oc. 99- 1, Ex. F (Kim ble Dep.) at

26

27

8 In addition, an email sent from Co mmander Montano to Sp ecialist Linderholm

28

after this lawsuit was filed asked Spec ialist Linde rholm w hether news papers and magazines were allowed. Specialist Linderholm answered, “yes.” (Doc. 99-2, Ex. J.)

- 6 -

1 71:22-72:2). Specialist Linderholm conducted several training sessions on the new policy

2 with mailroom staff. (Doc. 99 ¶ 88; Doc. 119 ¶ 88.)

3

PLN materials have not been rejected for non-compliance with the policy since the

4 revision issued i n November 2011. (D oc. 99 ¶ 94; D oc. 119 ¶ 94.) Other m aterials from

5 non-profits have. The jail has rejected one book from Bookman’s (D oc. 88-8, Ex. CC at

6 PCSO 005292), four books from Read Between the Bars ( Id. at PCSO 005241-44,

7 005424), and two National Geographic Ma gazines from Prison Library Pr oject ( Id. at 8 PCSO 005424).9

9

On Jul y 6, 2012, PLN file d for s ummary judgm ent, de claratory judgm ent, a nd a

10 permanent injunction. (Doc. 85.) It asks this Court to grant summ ary judgment for it on

11 the issue of all Defendants’ liability for refu sing to deliver PLN materials. PLN also

12 seeks a permanent injunction th at enjoins the jail and its officers against denying fut ure

13 PLN materials. Finally, PLN requests this Co urt to declare what limitations the jail may

14 place on correspondence between publishers lik e itself and inmates, specifically whether

15 the jail can ban news papers and m agazines, restrict co rrespondence to one-page letters,

16 and whether the jail can a pply a publisher-only rule. The Defendan ts opposed and cross-

17 moved for summary judgment on the issue of liability and damages. (Docs. 101, 102.)

18

DISCUSSION

19 I. LEGAL STANDARD

20

Summary judgment is appropriate if th e evidence, viewed in the light m ost

21 favorable to the nonmoving party, demonstrates “that there is n o ge nuine dispute as to

22 any material fact and th e movant is entitled to judgment as a matter of law.” Fed. R. Civ.

23 P. 56(a). S ubstantive law determines which f acts are material an d “[o]nly disputes ove r

24 facts that might affect the outcome of th e suit under the governing law will properly

25

26

9 In addition, one prisoner filed a grievance with the jail and asked about a book he was expecting from Read Between the Bars. (Doc. 88- 8, Ex. AA at PSCO 000224). The

27

response indicated that Read Between the Bars was not a recognized publishe r, and cited Amazon, Borders, and Barnes and Noble as ex amples, despite the fa ct that these entities

28

seem not to be publishers at all but pe

rhaps constitute “recog nized distributors,”

“authorized retailers” or “commercial suppliers.” (Id.)

- 7 -

1 preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

2 248 (1986). “A fact issue is genui ne ‘if the ev idence is such that a reasonable jury coul d

3 return a verdict for th e nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d

4 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S . at 248). Thus, the nonm oving

5 party must show that the genuin e factual issues “‘can be resolv ed only by a finder of fact

6 because they may reasonably be resolv ed in favor of either party.’” Cal. Architectural

7 Bldg. Prods., Inc. v. Fran ciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9t h Cir. 1987)

8 (quoting Anderson, 477 U.S. at 250).

9 II. ANALYSI S

10

PLN claims Defendants violated its rights under the Fourteenth Amendment to the

11 U.S. Constitution. It seeks bot h injunctive re lief and da mages. The basis for the claim is

12 Section 1983 of Title 42 of th e U.S. Code, which provides a cause of action for persons 13 who have been deprived their constitutional rights by persons acting under color of law.10

14 Section 1983 “is not i tself a source of subs tantive rights” but pr ovides a cause of action

15 “for vindic ating feder al rights elsewhere conferred.” Baker v. McCollan , 443 U.S. 137,

16 144 n.3 (1979). PLN seeks damages for the en forcement of jail policies during 2011 that

17 it claims were unconstitutional. It also seek s a perm anent injunction against any f urther

18 refusal by the Defendants to deliver PLN mate rials pursuant to the current publi sher-only

19 rule, which it claims remains unconstitutionally vague. Each of the policies is reviewed

20 below.

21

22

23

10 The statute reads, in full: “Every pers on who, under colo r of any statute,

24

ordinance, regulation, custom , or usage, of any State or Te rritory or the District of Columbia, subjects, or causes to be subjected , any citizen of the Un ited States or other

25

person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, sh all be liable to the party injured in an

26

action at la w, suit i n equity, or other prope r procee ding f or redre ss, except that in any action br ought a gainst a judicial officer for an act or om ission taken i n suc h officer’s

27

judicial capacity, injunctive relief shall not be gra nted unless a de claratory decree was violated or declaratory relief was unavailable. For the purposes of this section, any Act of

28

Congress applicable exclusively to the District of Columbia shall be considered to be a statute of the District of Columbia.” 42 U.S.C. § 1983 (2006).

- 8 -

1

A. Constitution al Violations

2

PLN conte nds t hat its First Am endment rights were vi olated w hen Pi nal C ounty

3 Jail refused to deliver its materials to the inmates pursuant to a belief that newspapers and

4 magazines were banned, new publications or used books could onl y com e from four 5 specific retailers, and correspondence was limited to a single page.11 PLN likewise claims

6 that its due process rights under the F ourteenth Amendment were violated when the jail

7 did not give notice of its rejection of the materials and failed to provide an opportunity to

8 appeal.

9

As a gene ral m atter, “[p] rison walls do not form a barrier separating prison

10 inmates from the protections of the Constitution.” Turner v. Safley , 482 U.S. 78, 84

11 (1987). Yet a prison is a unique location that has unique needs. “Running a pr ison is an

12 inordinately difficult undertaking that requi res expertise, planning, and the com mitment

13 of resources, all of whic h are peculiarly w ithin the pr ovince of the legislative and

14 executive branches of government.” Id. at 84-85. In light of the constitutional principles

15 of separation of powe rs and fede ralism, the actions and po licies of prison administrators

16 receive a level of deference. See id. Accordingly, when prison regulations are challenged

17 federal courts engage in the four-factor inquiry laid out in Turner:

18

(1) whether the regulation is rationally related to a legitimate and neutral

19

governmental objective; (2) w hether there are alternative avenues that remain open to the inma tes to exercise the righ t; (3) the impact that

20

accommodating the asserted right will ha ve on other guard s and prisoners,

21

and on t he allocation of prison resources; and (4) w hether the e xistence of easy and obvious alternatives indicates that the regulation is an exaggerated

22

response by prison officials.

23 Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (citing Turner, 482 U.S.

24 at 89-90). Examination of each of the prison’s challenged policies is required.

25

26

27

11 The free speech claus e of the First Am endment operates against the states and

28

municipalities by virtue of the Fourteen th Amendment’s Due Process Clause. See Gitlow v. New York, 268 U.S. 652, 666 (1925).

- 9 -

1

1. First Amendment Claims

2

The First Amendment to the Constituti

on has direct application to the

3 correspondence that PLN seeks to have with the inmates at the Pinal County Jail.

4 “Publishers have a First Am endment right to communicate with pr isoners by mail, and

5 inmates have a First Amendment right to receive this mail.” Prison Legal News v.

6 Lehman, 397 F.3d 692, 699 (9th Cir. 2005). This right applie s to uns olicited literature,

7 like that sent by PLN. See Hrdlicka v. Reniff , 631 F.3d 1044, 1049 (9th Cir. 2011) (“A

8 First Amendment interest in distributi ng and receiving information does not depend on a

9 recipient’s prior request for that information. . . . We see no reason why this well-

10 established principle does not apply to a publisher’s intere st in distributing, a nd a n

11 inmate’s corresponding interest in receiving, unsolicited literature.”), cert. denied, 132 S.

12 Ct. 1544 ( 2012). PLN challenges several past and pr esent aspects of the Pinal Count y

13 Jail’s mailroom policies as violative of its First Amendment rights.

14

a. Blanket Newspaper and Magazine Ban

15

Jail staff rejected PLN materials under the assumption that pr ison policy banned

16 all newspa pers and m agazines. (Doc. 89- 1, Ex. C at PL NT 000042, 0 00045, 000172.)

17 While the parties debate whether or not th e mailroom policy actual ly banned books and

18 newspapers, Defendants adm it that such m aterials wer e effec tively banned in 2011 and

19 that enforcing a blanket ban on magazines and newspapers violates the First Amendment.

20 (Doc. 98 at 7.) Accordingl y, there is no dispute that the practice of the Jail in this respect

21 during 2011 was unconstitutional.

22

b.

Publisher Requirements

23

Jail staff also turned away PLN materials under the policy provision that permitted

24 delivery of publications onl y if they cam e from “a recognized publisher, distributor, or 25 authorized retailer.” (Doc. 88 -5, Ex. Q at PC SO 000052, Id. at PCSO 0 00066.)12 During

26 the relevant portions of 2011, the policy was interpreted to allow books and publications

27

28

12 Jail staf f someti mes used the word “ approved” to describe the policy requirements. (Doc. 89-1, Ex. C at PLNT 000042, 000045, 000172.)

- 10 -

1 that cam e from onl y four publishers: Am azon, Borders, Barnes & Noble, and

2 Waldenbooks. (D oc. 87 ¶ 25; Doc. 99 ¶ 25.) Defendants admit that this narrow

3 construction of t he publisher-only requirem ent violated P LN’s First Am endment rights.

4 (Doc. 98 at 7.) Such an arbitrary limitation is unconstitutional.

5

The current policy—like its predecessor— retains substantially the same language

6 as the 2011 iteration and allows publications from only “the publisher, a book club, or 7 other approved commercial supplie[r].” (Doc. 88-6, Ex. S at PC SO 000075.)13 Since this

8 lawsuit was filed, however, all PLN materials have been perm itted. (Doc. 99 ¶ 94; D oc.

9 119 ¶ 94.) PLN ne vertheless attacks the curre nt vers ion of the pu blisher-only r ule as

10 “vague and contradictory” because there is no direction give n on how jail staff are to

11 determine whether a publisher is “recogniz ed.” (Doc. 117 at 18.) Defendants argue any

12 PLN attack on the publisher-only rule is now m oot because the current policy, as

13 enforced, i nflicts no harm on P LN, w hose bo oks and publications are allowed into the

14 jail. Books that have been rejected under the new polic y have com e from unrelated

15 organizations, such as Prison Library Project and Read Between the Bars, whose status as

16 publishers is a m atter of di spute and w ho are not parties here. (Doc. 88- 8, Ex. AA at

17 PCSO 000224-26; id., Ex. CC at PCSO 005292, 005241-44, 005424.)

18

“It is well settled that a defendant’s volu ntary cessation of a challenged practice

19 does not deprive a federal court of its power to determine the legality of the practice. [I]f

20 it did, the courts would be compelled to leave [t]he defendant . . . free to return to his old

21 ways.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc. , 528 U.S. 167, 189

22 (2000) (internal quotations and citations omitted). The standard for mootness is strict: “A

23 case might become moot if subse quent events made it absolutely clear that the allegedly

24 wrongful behavior c ould not re asonably be expected to recur. The heavy bur den of

25 persua[ding] the court that the challenged con duct cannot reasonably be expected to start

26 up again lies with the party asse rting m ootness.” Id. The Defendants offer only their

27

28

13 Similar ly, used books can come from a “ recognized publisher, distributor or authorized retailer.” (Id. at PCSO 000083.)

- 11 -

1 assurances that PLN material s will be accepted under the p ublisher-only rule. That rule

2 has not been effectively altered since the outset of this lawsuit. And there is evidence that

3 other non- profits have not be en able to have their m aterials delivered. C onsequently,

4 PLN’s vagueness challenge to the publisher-only rule is not moot.

5

PLN does not c hallenge the publ isher-only requirement under Turner; instead, it

6 asserts that the policy is unconstitutionally vague because it fails to provide any guidance

7 to outside parties on how to become an approved publisher or distributor.

8

There are three objections to vagu e policies in the First Am endment

9

context. First, they trap the innocent by not providing fair warning. Second, they impermissibly delegate basic polic y matters to low level officials for

10

resolution on a n ad hoc and subj ective basis, with the attendant dangers of

11

arbitrary and discrim inatory application. Third, a vague policy dis courages the exercise of first amendment freedoms.

12 Cohen v. San Ber nardino Valley Coll., 92 F.3d 968, 972 (9 th Cir. 1996) (citing Grayned

13 v. City of Rockford , 408 U. S. 104, 108-109 (1972). “[W]here the guarantees of the First

14 Amendment are at stake the [Supreme] Court applies its vagueness analysis strictly.”

15 Bullfrog Films Inc. v. Wick, 847 F.2d 502, 512 (9th Cir. 1988).

16

The Parties clearly agree that all PLN ma terials are currently allowed under the

17 policy. P LN sends i n (1) its ow n ne wsletter, (2) its own broc hures and pam phlets, (3)

18 books that it has published, and (4) books that are published by other entities. (Doc. 89 ¶¶

19 4-6, 12.) For PLN’s own newsletter, brochure s, and pamphlets and self-published books ,

20 the Defendants have presum ably determ ined that P LN is a “recognized publisher”, a

21 “recognized distribut or”, a “recognized re tailer”, a “book club” , an “other approve d

22 commercial supplier”, or some or all of the above. For books that PLN sends in that are

23 not published by PLN, the jail apparently considers PLN a “book club” or an “other

24 approved commercial supplier”.

25

PLN asks the Court to enter a permanent injunction that it may send materials into

26 the jail and have them received by the address ees. Nevertheless, in light of the deference

27 to which prison officials are entitled, the Cour t is disinclined to en ter such a broad and

28

- 12 -

1 undefined injunction on a perm anent basis, when it is not s ure on what basis the jail has

2 determined to presently accept all the materials that PLN sends into it. PLN might change

3 the nature of materials it seeks to send into the jail that c ould conceivably cause security

4 or management concerns. Nor, in light of t he jail’s undisputed representation that all of

5 PLN’s materials are n ow being received, is it n ecessarily clear that su ch an injunction is

6 necessary.

7

On the other hand, when Defendants have not explained what determinations were

8 made under the current policies to allow the receipt of PLN’s materials, nor the criteria

9 on w hich s uch determ inations w ere m ade, if any, it is possible that the jail’s current

10 decision to allow such m aterials m ay be ephe meral. This is underlined by the jail’s

11 refusal to permit mailing privile ges to other orga nizations that PLN asserts are similar to

12 it. Further, to the extent there are no such cr iteria there is the possi bility if not likelihood

13 that the jail is resolving su ch matters “on an ad hoc an d subjective basis, with the

14 attendant dangers of arbitrary and discriminatory application.” Cohen, 92 F.3d at 972.

15

The Court therefore orders Defendants t o supplement the record within 14 days of

16 this Order to inform the Court on what policy basis it is cu rrently allowing each category

17 of PLN material and how such evaluations were made including any criteria promulgated

18 to jail pers onnel by which s uch evaluations were made. PL N will be given 14 days in

19 which to make a response. The Court will then resolve the outstanding issues with regard

20 to the publisher-only rule and the necessity for a permanent injunction in favor of PLN.

21

c. One-Page/Postcar d Limitation

22

The jail also rejected PLN materials pur suant to its policy limiting correspondence

23 to one-page letters o r postcards . (Doc. 88-5, Ex. Q at PCSO 000048; Id. at PSCO

24 000062.) P LN c ontends that the onl y justif ication for the corre spondence policy was

25 reduction i n t he vol ume of m ail that m ust be screened for contraba nd, and that such a

26 justification is insufficient under Turner. Defendants largely agree that volum e reduction

27 is the justification, but assert that such a justification is appropriate under Turner.

28

The first Turner prong asks “ whether t he regula tion is rationally related to a

- 13 -

1 legitimate and neutral g overnmental objective.” Cook, 238 F.3d at 1149. “Restrictiv e

2 regulations are permissible if they are r easonably related to le gitimate penological

3 interests, and are not an exaggera ted response to such objectives.” Beard v. Banks , 548

4 U.S. 521, 528 (2006) (plu rality op. of Breyer, J.) (re asoning that policy banning

5 newspapers and m agazines for the “w orst of the worst” inmates could be justified by

6 providing incentiv e for prisoners to im prove beha vior, after whic h t hey c ould receive

7 newspapers and magazines). Courts “afford c onsiderable deference to the expertise and

8 decision making of prison administrators.” Cook, 238 F.3d at 1140 (citing Thornburgh v.

9 Abbott, 490 U.S. 401, 407-08 (1989)).

10

Decisions of this Court have uphel d a postcard-only policy against a First

11 Amendment challenge, findi ng that “the reduction of c ontraband sm uggling is a

12 legitimate goal of . . . jails and that the [ postcard-only] policy is reasonably related to

13 furthering that goal. The policy is also neutral on its face—there is nothing to indicate

14 that the aim of the policy is to suppress e xpression.” Covell v. Arpaio , 662 F. Supp. 2d

15 1146, 1153 (D. Ariz. 2009); see also Gieck v. Arpaio, No. CV 07-1143-PHX-NVW 2008

16 WL 2604919 at *5 ( D. Ariz. J une 23, 2008). Anot her court of this circuit has suggeste d

17 that jail officials concerned with controlling the volume of m aterial that must been

18 screened for contraband “could limit the numb er of pages an inmate may receive in each

19 piece of correspondence.” Clement v. Cal. Dep’t of Corr. , 220 F. Supp. 2d 1098, 1110

20 (N.D. Cal. 2002), aff’d, 364 F.3d 1148 (9th Cir. 2004).

21

There appears to be a common-sense connection between a jail goal of reducing

22 contraband and limiting the number of pages a particular piece of correspondence

23 contains. P LN cites Prison Legal News v. Lehm an to justify its claim that volume

24 reduction is not a legitimate and neutral governmental objective, but Lehman concerned a

25 ban on non-subscription bulk rate mail that the court determined was “an arbitra ry means

26 of achieving the goal of volume control.” 397 F.3d at 700. It was not the “goal of volume

27 control” that was the problem—it wa s the m eans chosen by the prison in Lehman. In

28 contrast to a policy that prohibits certain types of mail and allows others depending on its

- 14 -

1 postage rate, a one-page policy for correspo ndence applies across th e board a nd delivers

2 less arbitrary results. Lines of com munication are open for all who wish to send letters to

3 prisoners. Moreover, PLN has not provided a ny evidence that woul d refute the obvious

4 connection between a page limit and volume control. The remaining Turner factors do

5 not counsel against the constitutionality of the jail’s policy. Sufficient alternative avenues

6 of communication remain ope n for publishers like PLN who wish to communicate with

7 inmates at the Pinal County Jail: newspapers , magazines, books, brochures and other

8 publications. The jail’s policy limiting corresp ondence to one-page and postcards did not 9 violate the First Amendment.14

10

2. Due Process

11

PLN asserts that the Defenda nts violated it s procedur al due pr ocess rights under

12 the Fourteenth Amendment when it was not given notice and an opportunity to appeal the

13 jail’s refusal to deliver materials. Defendants admit that the policy’s failure to so provide

14 was a Fourteenth Amendment violation.

15

Accordingly, the Defendants’ follo wing policies were unconstitutional: (1)

16 banning newspapers or m agazines, (2) allowing publications only from the four specific

17 retailers, and ( 3) failing t o pr ovide notice of rejection and an opportunity to appeal.

18 Disposition of PLN’s challenge to the current publisher-only rul e awaits Defendants’

19 supplemental filing.

20

B. Injunctive and Declaratory Relief

21

PLN seeks a permanent injunction agains t Defenda nts refusing to deliver P LN

22 materials. Because the Jail’s current policy expressly allo ws newspapers, magazines,

23 books, and other publications, PLN’s only basis for injunctive relief is the alleged opacity

24 of the current publisher-only r ule. PLN claim s the publisher-only rule is im permissibly

25

26

14 PLN appears to also challenge the co nstitutionality of the publication ins ert

27

policy in its Reply. (Doc. 117 at 28.) The C ourt need not consider this argument because it was raised for the first time in PLN’s Reply. See Delgadillo v. Woodford, 527 F.3d 919,

28

930 n.4 (9th Cir. 2008) (“Arguments raise d fo r the first ti me in [the] reply brief ar e deemed waived.”).

- 15 -

1 vague and that PLN therefore runs the risk of having its materials rejected again by the

2 Jail. As the Court indicated above, it is not clear under what rationale D efendants are

3 currently allowing PLN materials. Clarification of this point is necessary for the Court to

4 determine whether permanent in junctive relief is warranted. The Court therefore defers

5 ruling on PLN’s Motion for a Permanent Injunction until De fendants supplement the

6 record in accordance with the Court’s Order.

7

In its motion for summary j udgment, PLN also requests declaratory relief, namely

8 that this Court to “clarify whether the Jail ca n ban newspapers and magazines, whether it

9 can restrict correspondence to one-pa ge letters, and whet her it can pick and c hoose

10 between book distributors.” (D oc. 86 at 25 .) The Court has addr essed these questions

11 supra and declines to grant additional declaratory relief that is unsupported by the record.

12

C. Section 1983 Liability

13

In addition to pros pective injunctiv e relief, PLN seeks damages for past

14 constitutional violations. PLN’s free speech right s were violated when the jail refused to

15 allow delivery of P LN m aterials because it believed newspa pers and m agazines were

16 banned and that PLN was not a recognized pu blisher, distributor, or retailer, as it

17 interpreted those terms at the time. In additio n, PLN’s rights to due process were violated

18 when it was not provided with notice and an opportunity to appeal the refusal.

19

While they have conceded the unconstitu tionality of these policies, Defendants

20 claim first that many name d Defendants were not invo lved in the constitutional

21 deprivations. For § 1983 liability to attach, each Defendant mu st be personally involved

22 in the constitutional deprivation. See Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002)

23 (“In order for a person acti ng under color of state law to be liable under section 1983

24 there must be a showi ng of personal participa tion in the alleged rights deprivation: there

25 is no respondeat superior liability under section 1983.”).

26

For those who were involve d, Defendants raise the defense of qua lified immunity

27 in response to PLN’s damage claim. See Wilson v. Layne, 526 U.S. 603 (1999). Qualified

28 immunity protects government officials “from liability for civil dama ges insofar as their

- 16 -

1 conduct does not violate clearl y established statutory or c onstitutional rights of which a

2 reasonable person w ould have known.” Harlow v. Fitzgerald , 457 U.S. 800, 818 (1982).

3 “Whether a reasonable officer should have known of a right in a particular factual context

4 depends s olely a nd objectively on whet her a princ iple of la w had be en ‘clearly

5 established at the time’ the offi cers took the contested action.” Hulstedt v. City of

6 Scottsdale, 884 F. Supp. 2d 972, 1000 (D. Ariz. 2012) (internal quotation marks omitted);

7 see also Pearson v. Callahan , 555 U.S. 223, 2 44 ( 2009) (“Thi s inquiry t urns on t he

8 objective legal reasonableness of t he action, a ssessed in light of the legal rules that were

9 clearly established at the time it was take n.”) (internal quotation m arks omitted); Wilson

10 v. Layne , 526 U. S. 603, 614 ( 1999) (“What this means in practice is that whether an

11 official protected by qualified imm unity m ay be held personall y liable for an allegedly

12 unlawful official action ge nerally t urns on the objective legal reasonableness of the

13 action, assessed in light of the legal rules that were clearly established at the time it was

14 taken.”) (internal quot ation marks omitted); Moss v. U.S. Secret Serv. , 675 F.3d 1213,

15 1222 (9th Cir. 2012) (describing the clea rly established pr ong and reasona bleness

16 inquiries as the same), amended in nonrelevant part, ___ F.3d ___, 2013 WL 674059 (9th

17 Cir. Feb. 26, 2013).

18

“A G overnment official' s conduc t violat es clearly established law when, at the

19 time of the challenged conduct, [t] he cont ours of [a] right [are] sufficiently clear that

20 every reasonable official would have understood that what he is doing violates that right.

21 Ashcroft v. al-Kidd, ___ U.S. ___, ___, 131 S.Ct. 2074, 2083 (2011) (internal quotations

22 omitted). To determ ine whether a properly define d ri ght has bee n clearly established,

23 courts “do not re quire a case directly on poi nt, but exi sting precedent must have placed

24 the statutory or constitutiona l question beyond debate.” Id.; see also Anderson , 483 U.S.

25 at 640 (“This is not to say that an official action is protected by qualified immunity unless

26 the very action in question has pr eviously been held unlawful, but it is to say that in the

27 light of pre-existing la w the unlawfulness must be apparent.”). “If a principle of law ha d

28 been ‘clearly established’ by the Suprem e Court, the N inth Circuit, or a consensus of

- 17 -

1 persuasive authority at the time of the in cident, it has been clearly established.” Hulstedt,

2 884 F. Supp. 2d at 1001 (citing al-Kidd, 131 S. Ct. at 2084).

3

“Whether the law was clearly established is an objective standard; the defendant’s

4 ‘subjective understanding of the constitutionality of his or her cond uct is irrelevant.’”

5 Karl v. City of Mountlake Terrace , 678 F.3d 1062, 1073 (9th Cir. 2012). The liability of

6 Defendants for the First Amendment and Due Process violations is considered in turn.

7

1. First Amendment

8

A blanket ban on newspa pers and m agazines violated clearly established

9 constitutional law at the time jail staff either threw away or sent b ack PLN’s materials.

10 While there case has directly held that a blanket ba n on ne wspapers and m agazines

11 violates the First Am endment, the Ninth Circ uit stated twenty year s ago tha t a blanket

12 ban on magazines “carries a heavy presumption of unconstitutionality.” Pepperling v .

13 Crist, 678 F.2d 787, 791 ( 9th Cir. 1982). The S upreme Court has appeared war y of

14 blanket ba ns. See Thornbur gh, 490 U. S. at 416 (taking c omfort in the fact that prison

15 officials made individual de terminations of the admiss ibility of magazines). Other

16 circuits have surve yed the law across the country

and determined that the

17 unconstitutionality of a blanket ban on ma

gazines and newspa pers was clearly

18 established. See Thomas v. Leslie , 176 F. 3d 489 (10t h Cir. 1999) (collecting cases,

19 determining that right to receive and read newspapers was clearly established); Kincaid v.

20 Rusk, 670 F.2d 737, 744 (7t h Cir. 1982) (wholesale prohibition cannot be justified by

21 need for maintaining security and discipline). The Ninth Circuit has consistently held that

22 prisoners have a right to receive and publishe rs the right to send materials in prisons. See

23 Lehman, 397 F.3d at 699; Hrdlicka, 631 F. 3d at 1049 (describing as “well-established”

24 the “First Amendment interest in distributin g and receiving inf ormation does not depe nd

25 on a recipient’s prior request for that information”), cert. denied, 132 S. Ct. 1544 (2012).

26 A blanket ban on newspapers and magazines violates these well-established principles.

27

Because the blanket ban violated clearly established constitutional law of which a

28 reasonable officer should know, no qualified im munity attaches to the conduct at issue.

- 18 -

1 Consequently, those Defenda nts who were actually involved in the First Amendment 2 violation are liable.15

3

a. Mailroom Staff

4

Detention Aides Romero, Hansley-Salis berry, and McBirnie were individually

5 involved in the deprivation of PLN’s First Amendment rights—they either returned or

6 threw away the materials sent by PLN. They also ca nnot claim qualified i mmunity. I n

7 taking int o account certain subjective factors, e.g., the inade quacy of training that the

8 detention aides received, the fact that they had never received materials from PLN before,

9 and the fac t that they asked their supervisor s for guida nce, it m ay appear tha t they di d

10 everything they should have in the given situation.

11

Nevertheless, the qualified immunity inquiry is principally an objective one that

12 depends upon how cle arly the legal principles were established t hat were violated by the

13 actors. Pearson, 555 U.S. at 244; Wilson, 526 U. S. at 614; Moss, 675 F. 3d at 1222;

14 Hulstedt, 884 F. Supp. 2d at 1000. It is true that the qu alified immunity analysis is

15 sometimes described as having two prongs: (1) whether the law governi ng the state

16 official’s conduct was clearly established, a nd then (2) whether a reasonable s tate official

17 could have believed his conduc t was lawful in light of th e clearly established law. See

18 Jeffers v. Gomez , 267 F.3d 895, 910 (9th Cir. 2001). Th at second step involves an

19 analysis of the given factual situation. The cases where the two-step inquiry come into

20 play, however, involve situations where state officials are making judgment calls that are

21 cabined by constitutional norms , e.g., whether probable cause or exigent circumstances

22 exist in a given situation, see Anderson, 483 U.S. at 640-42; Hunter v. Bryant, 502 U. S.

23 224, 227-29 (1991), or whether a police officer used excessive force, see Hope v. Pelzer,

24 543 U.S. 194 (2004). To dete rmine whether officials viol ated constitutional rights in

25

26

15 The Court has agreed with the Pa

rties’ stipulation r egarding t he

unconstitutionality of the Jail’s application of the publisher- only rule to limit incoming

27

books to those coming from four specific publishers. Yet be cause the prim ary basis for rejecting PLN m aterials according to the reco rd was a believed ban on news papers and

28

magazines, the C ourt evaluates onl y that practice under the “clearly established” standard.

- 19 -

1 those situations absolutely requires detailed analysis of the factual scenario.

2

Here the law was clear at the time re

levant to t his suit—blanket ba ns on

3 newspapers and m agazines in pri sons violate the First Amendment. Accordingly, “[t]he

4 contours of the right [were] sufficiently clea r that every reasonabl e official would have

5 understood that what he [was] doing vi olate[d] that right.” al-Kidd, 131 S.Ct. at 2083 .

6 The Constitution does not afford a range of discretion to detention aides on this matter.

7 The act of refusing all ne wspapers and m agazines was t he violation. It was objectively

8 unreasonable for a detention aide to throw away mail, or refuse to deliver it, based upon a

9 perceived blanket ban on m agazines. The detention aide s were the prim ary drivers of the

10 constitutional injuries that PLN suffered. The fact that Sergeant Delgado and Lieutenant

11 Rushing may have told the detention aides to refuse PLN materials cannot be decisive on

12 the existence or absence of qualified immunity. Defendants have not directed the Court to

13 any cases (nor as the Court found any) wher e qualified immunity attached to otherwise

14 clearly unconstitutional conduct based on a “just following orders” rationale. Likewise,

15 the dete ntion aides c annot claim to have been foll owing offi cial policy because t he

16 mailroom’s official policy did not provide f or a ban on newspa pers and magazines, and

17 there is no evidence that the detention aide s were acting pursua nt to instructions from

18 official pol icymakers. Like wise, there is no evidence that they cons ulted the official

19 policy (w hich di d not expressly ban ne wspapers or m agazines). The dete ntion aides

20 therefore cannot receive qualified immunity and are liable under § 1983 for the First

21 Amendment deprivations.

22

Moving up the ladder, Sergeant Delgado’s actions as super visor of the m ailroom,

23 and Lieute nant R ushing’s actions as her supervisor also establish thei r personal

24 involvement in the First Amen dment viola tions. U pon rece ipt of the PLN materials,

25 Sergeant Delgado’s subordinates came to her and asked her w hat they were supposed t o

26 do with the materials. (Doc. 88, Ex. H (R omero De p.) at 26:22- 25, 27:1- 2; Id., Ex. G

27 (McBirnie Dep.) at 22: 10-13; D oc. 99-1, Ex . C (Hens ley-Salisberry Dep.) at 26:4-25.)

28 The general understanding was that newspapers and m agazines were not allowed. (D oc.

- 20 -

1 88-1, Ex. A (Delga do Dep.) at 52:21-23.) Sergeant Delgado went to Lieutenant Rushing,

2 the previous supervisor of the m ailroom and her direct supervisor, and he told her that he

3 had no ide a what to do. ( Doc. 99- 2, Ex. I (Delgado Dep.) at 76: 6- 77:16.) It does not

4 appear that either Lieutenant Rushing or Sergeant Delgado consulted the mailroom policy

5 or eve n as ked t o l ook at th e m aterials. Nor does it appear that they went to Cmdr.

6 Montano or any of the command staff to determine how to handle this information. (Doc.

7 99-1, Ex. E (Darrin Rus hing D ep.) at 27: 6-29:2.) Instead, after faili ng to get guidance

8 from Lieutenant R ushing, Sergea nt Delgado either gave no direction (D oc. 120, Ex. B

9 (Delgado Dep.) at 58:5-25) or told her staff to send the ma terials back (Doc. 88-1, Ex. G

10 (McBirnie Dep.) at 22: 10-13). In fact, she admitted that it would be unacceptable to

11 allow the detention aides to unilaterally ma ke decisions without any guida nce. (Doc. 99-

12 2, Ex. I (D elgado Dep.) at 137: 9-21.) Bot h Sergeant Delgado and Lieutenant Rushi ng

13 failed to act in the face of clear evidence of a constitutional viol ation were therefore

14 personally involved in the constitutional deprivation.

15

Qualified immunity does not attach to the ir conduct because the rights they

16 violated were clearly established at the tim e. Sergeant Delgado a nd Lieutenant Rushing

17 make arguments for the application of qualif ied immunity along the lines of those made

18 by detention aides. The Court rejects those argum ents pursuant to the reasoning above.

19 Sergeant Delgado and Lieutenant Rushing are liable under § 1983 to PLN.

20

c. Comma nd Staff

21

Specialist Linderholm and Commanders Johnson, V alenzuela, and Monta no

22 reviewed jail policy and had re sponsibility for training. (D oc. 99-1, Ex. D (Linderholm

23 Dep.) at 11:7-15; D oc. 99 ¶ 36; Doc. 87 ¶ 36.) When PLN sent m aterials, the policy i n

24 effect did not expressly ba n newspapers and m agazines, although that was how ground-

25 level staff administered it. After readin g the policy at his deposition, Specialist

26 Linderholm stated that newspape rs and m agazines were allowed. (Doc. 99- 1, Ex. D ,

27 (Linderholm Dep.) at 56:19-59:4.) And in a post-lawsuit email, Sp ecialist Linderholm

28 told Cmdr. Montano that magazines were allowed. (Doc. 99-2, Ex. J.)

- 21 -

1

PLN has failed to pr oduce sufficient evidence of personal involvement to raise an

2 issue of fact as to the command staff’s § 198 3 liability. The only evidence it has cited

3 suggests that the command staff has some in put into policymaking and training. PLN has

4 therefore failed to de monstrate a genuine disp ute of material fact as to the command

5 staff’s involvement in the First Amendment violations. See Celotex Corp. v. Catrett , 477

6 U.S. 317, 323 (1986) (“In our view, the plain language of Rule 56(c) mandates the entry

7 of summary judgment, after adequate time for discovery and upon motion, against a party

8 who fails to make a showing sufficient to es tablish the existence of an element essential

9 to that party's case, an d on which that party will bear the burden of proof at trial.”) For

10 liability to attach under § 1983, the courts require specific facts showing a definite

11 connection between the actions of the official and the injury suffered by the plaintiff. See

12 Jones, 297 F.3d at 934. PLN faile d to produce evidence from which a jury could find the

13 requisite link between the actions of the co mmand staff, the creation of the policy, and

14 the implementation of the policy that led to the rejection of PLN materials. The policy did

15 not expressly ban newspapers and magazines or limit books to those from the “big four,”

16 which were the practices that led to th e First Am endment vi olations. P LN has not

17 produced any evidence that members of the command staff were the source of these 18 practices. Consequently, there can be no § 1983 claim against the command staff.16

19

d. Sheriff Babeu, Deputy Kimble, and Other Defendants

20

As to Sheri ff Babeu and De puty Kimble, PLN cites no evide nce of their personal

21 involvement in the constitutional deprivation. Their role as chief policymakers for the jail

22 does not establish their personal involvement in the First Amendment deprivations for the

23 reasons described above with regard to the command staff. “[Section 1983 liability]

24 arises only upon a showi ng of personal par ticipation by the defendant. A supervisor is

25

26

16 PLN argues that the policy in effect when it sent its mate rials—which did not expressly ban news papers a nd m agazines—was hopelessly vague in light of the pri or

27

policy w hich di d ba n newspa pers and m agazines. PLN, howe ver, also argues that its rights were violated because m ailroom staf f thought the policy w as to ban newspapers

28

and magazines. PLN cannot have it both wa ys. There is no evidence the mailroom staff were consulting official policy.

- 22 -

1 only liable for constitutional viola tions of his subordinates if the supervisor pa rticipated

2 in or directed the violations, or knew of t he violations and failed to act to prevent them.”

3 Taylor v. List , 880 F.2d 1040, 1045 (9t h Cir. 1989). Unlike the evidence pr oduced with

4 respect to Sergeant Delgado and Lie utenant R ushing, P LN has not produce d any

5 evidence of personal participation or knowl edge of t he First Am endment violations on

6 the part of Sheriff B abeu a nd Deputy Ki mbel, and thus no § 1983 claim lies against 7 Sheriff Ba beu a nd D eputy Kim ble. As for the rem aining defenda nts,17 there is no

8 evidence of any personal involvement in th e events that gave rise to this case. There is

9 accordingly no § 1983 liability for those individuals.

10

e. Monell Claim for Pinal County Liability

11

PLN also seeks to hol d Pinal County liable under § 1983. “C ongress intended the

12 term ‘person’ [in § 1983] to include municipalities, ” such as Pinal County. Christie v .

13 Iopa, 176 F.3d 1231, 1234 (9th Cir. 1999). But municipality liability cannot be based in

14 the theory of resp ondeat superior. See Monell v. Dep’t of Soci al Servs. , 436 U.S. 658,

15 689-91 ( 1978). “Inste ad, it is when e xecution of a gover nment’s policy or custom ,

16 whether m ade by its lawm akers or by t hose wh ose edicts or acts may fairly be said to

17 represent official policy, inflicts the injury that the government as an entity is responsible

18 under § 1983.” Id. at 694. PLN advances three general theories to justify § 1983 liability

19 under Monell for Pinal County: its officials were acting in accordan ce with a formal

20 policy, its officials followed a practice or cu stom, and its officials failed to conduct

21 adequate training that would prevent constitutional violations like those suffered by PLN.

22

Because jail staff acted pursuant to an unconstitutional practice or custom , the

23 Court looks only at that theo ry. PLN seeks to establish Monell liability for Pinal County

24 by claiming that there was a widespread practic e and c ustom that dictated de nial of all

25 newspapers and m agazines, period, a nd all books that did not c ome from four s pecific

26 publishers. The birth of a custom is the i nverse of a policy: “ Unlike a ‘ policy,’ whic h

27

28

17 Defendant s Johnst on, McVicker , Valdez, Cha vez, K elley, Martinez, Arnol d, Hawkins, Dennis Rushing, Hull, Gant, McNeely, Hoyos.

- 23 -

1 comes into existence because of the top-dow n affirm ative decision of a poli cymaker, a

2 custom develops from the bottom-up. Thus , the liability of th e municipality for

3 customary constitutional violations derives no t from its creation of the custom, but from

4 its tolerance or acquiescence in it.” Britton v. Maloney, 901 F. Supp. 444, 450 (D. Mass.

5 1995). To establish a cust om sufficient to create Monell liability, the plaintiff must show

6 a “longstanding practice or cu stom which constitutes the stan dard operating procedure of

7 the local gover nment entity.” Gillette v. D elmore, 979 F.2d 1342, 1346- 47 (9th Cir.

8 1992). Tha t practice or custom must be “fou nded upon practices of sufficient duration,

9 frequency and consistency that the conduct ha s become a traditional m ethod of carrying

10 out policy.” Trevino v. Gates, 99 F.3d 911, 918 (9th Cir. 1996).

11 The

uncontroverted evidence conclusively establishes th at, while official policy

12 was mum on newspapers and magazines and what publishers were approved, the de facto

13 policy was to deny al l m agazines and news papers and books that were not from four

14 specific publishers. While PLN appears to be th e first entity to send in publications, the

15 evidence is uniform that the entire mailroom staff, from detention aides to Sergeants to

16 Lieutenants, believed that newspapers and magazines were banned and books could come

17 from onl y four publishers. In that sense, there was a stark disconnect between what

18 upper-level prison policymakers believed was policy, and what the lower-level mailroo m

19 staff actually carried out. Fa ult for that disconnect lies with the supervising jail officials

20 in their official capacity, and therefore th e county. While the of ficial policy i n place

21 during 2011 had elim inated the provision expressly ba nning m agazines or newspapers,

22 jail policymakers did not actually implement th at policy. No official training ever took

23 place on mailroom procedures and no direction was ever provided to mailroom

24 supervisors and staff on w hat m aterials. PLN’ s materials were rep eatedly de nied on a n

25 unconstitutional basis. Consequently, the change in the words of the policy had no effect.

26

Once a plaintiff has provid ed evidence that municipa l employees repeatedly

27 engaged in constitutional viola tions without reprimand, a m unicipality may be liable for

28 that custom “irrespective of whether official policy-makers had actual knowl edge of the

- 24 -

1 practice at issue.” Navarro v. Block , 72 F.3d 712, 714- 15 (9t h Cir. 1995) (internal

2 quotation omitted). Custom lia bility “ens ures that counties are held responsible for

3 widespread abuses or practices that cannot be affirmatively attributed to the decisions or

4 ratification of an official policy-maker ‘but are so pervasive as to have the force of law.’”

5 Hinckley v. Thurston County , CV-06-3067-JPH, 2008 WL 706702 at *7 (E.D. Wash.

6 Mar. 14, 2008) (quoting Thompson, 885 F.2d at 1444), aff’d sub nom. Hinckley v. Yakima

7 County, 356 F. A pp’x 927 (9t h Cir. 2009). This is such a case. The mailroom uniformly

8 enforced a policy t hat (1) banne d all news papers and m agazines and ( 2) allowed books

9 from only four publishers. Defendants have conc eded that bot h pra ctices were

10 unconstitutional. Liability for th at ingrained practice of cons titutional violations lies with

11 Pinal County.

12

There is no genuine dispute of material fact that th e followi ng i ndividuals and

13 entities are liable under § 1983 for the Firs t Amendment violati ons: Detention Aides

14 Romero, Hansley-Salisberry, and McBirnie; Se rgeant Delgado a nd Lieutenant R ushing;

15 and Pi nal County. Li kewise, there is no genu ine dispute of material fact that the

16 command staff, Sheriff Babeu, and Deputy Kimble are not liable under § 1983.

17 2.

Due Process

18

The jail di d not provi de no tice and an opportun ity for a publishe r to appeal the

19 rejection of its materials. The absence of a notice-and-appeal mechanism violated clearly

20 established constitutional law:

21

[T]he decision t o censor or withhold de livery of a particular letter must be

22

accompanied by minimum procedural sa feguards. . . . The District Court required that an inmate be notified of the rejection of a letter written by or

23

addressed to him , that the author of that letter be given a reasonable

24

opportunity to protest that decision, and that com plaints be refe rred to a prison offi cial other than the pers on w ho origi nally disapprove d the

25

correspondence. These requirements do not appear to be unduly

burdensome, nor do appellants so cont end. Accordingly, we affirm the

26

judgment of the District Court with re spect to the De partment's regulations

27

relating to prisoner mail.

28 Procunier v. Martinez , 416 U. S. 396, 417-19 (1974), overruled on ot her grounds by

- 25 -

1 Thornburgh v. Abbott, 490 U.S. 401 (1989); see Krug v. Lutz, 329 F.3d 692, 699 (9th Cir.

2 2003) (“Following Thornburgh, this circuit has repeatedly acknowledged that

3 withholding delivery of inma te m ail m ust be accom panied by t he m inimum proce dural

4 safeguards established in Martinez.”) Accordingly, no qualifie d immunity attaches and

5 examination of the participation of each group of Defendants in the due process violation

6 is necessary.

7

a. Mailroom Staff

8

Sergeant D elgado, Lie utenant Rushing, and Detention Aides R omero, Hensl ey-

9 Salisberry, and McBirnie have § 1983 liability for the due process in jury. They were

10 personally involved—each was aware that they were discarding PLN materials. The

11 Detention Aides threw away or sent back all of the materials at the direction of Sergeant

12 Delgado, who went to Lieutenant Rushing and received no guidance. While none of these

13 members of the m ailroom staff had a ny pers onal involvement in the creation of the

14 deficient policy, they discarded or returned PLN m aterials, and in doing so provi ded no

15 opportunity to contest or ap peal the non-deliver ability decision. Defe ndants are correct

16 that the mailroom policy itself was constituti onally deficient by not providing an express

17 notice-and-appeal pr ovision, but the m ailroom staff filled in the v acuum in a way that

18 violated PLN’s due pr ocess rights. They ca nnot claim qualified imm unity in l ight of the

19 longstanding contours of due process rights in the cont ext of prison m ail. Accordingly,

20 there is no genuine dis pute of material fact that members of the mailroom staff are liable

21 for the due process violation.

22

b. Comma nd Staff

23

PLN claims that Specialist Linderholm and Cm drs. Johns on, Valenzuela , and

24 Montano were personally involved in the drafting of the policy. It emphasizes statements

25 by Specialist Linderholm and De puty Kimble that the command staff had some level o f

26 input to the formation of jail policy. (Doc. 87 ¶ 36; D oc. 99 ¶ 36.) As discuss ed above,

27 and c onceded by the Defenda nts, the absenc e of a not ice-and-appeal m echanism in the

28 mailroom policy was a cause of PLN’s due process injury. The question for the command

- 26 -

1 staff is the extent of their involvement in the drafting of the deficient jail policies. The

2 Parties dispute this poi nt. PLN ha s cited te stimony that the com mand staff was involve d

3 in policymaking to some extent. ( Id.) From that evide nce, a jury c ould conclude that the

4 Command Staff drafted the mailroom policy and therefore was personally involved in the

5 constitutional deprivation. That creates a ge nuine dispute of m aterial fact. Summary

6 judgment on this question is therefore inappropriate, and both Parties’ motions are denied

7 with respect to the command staff’s § 1983 liability for the due process violations.

8

c. Sheriff Babeu, Deputy Kimble, and Pinal County

9

Defendants have conceded that Sheriff Babeu and Deputy Kimble, as ultimate

10 policymakers, are liable in thei r official capacities for viola ting the due process rights of

11 PLN. Liability thus lies ultimat ely with Pinal County. “Because the real party in interest

12 in an official-capacity suit is the governmental entity a nd not the named official, the

13 entity’s ‘policy or custom’ must have played a part in the violation of federal law.” Hafer

14 v. Melo , 502 U.S. 21, 25 (1991) . Here, Defendants conceded that t he due pr ocess

15 violation w as caused by t he defective m ailroom policy. Conse quently, Pinal County is

16 liable on PLN’s Monell claim for denying procedural due process.

17

PLN, however, has produced no facts to establish sufficient personal involvement

18 by Sheriff Babeu and Deputy Ki mble to create individual § 1983 liability. Sheriff Babeu

19 delegated authority for running the jail to Deputy Kimble. (Doc. 87 ¶ 33; D oc. 99 ¶ 33.)

20 PLN produced no contrary evidence that Sher iff Babeu was invol ved in the day-t o-day

21 policymaking of the Pinal Coun ty Jail. Deputy Kimble was the ultimate policymaker for

22 the jail. (Doc. 87 ¶¶ 34- 35; Doc. 99 ¶¶ 34- 35.) He ha s re sponsibility for jail policies,

23 including t he mailroom policy. (Doc. 99 ¶ 36.) That responsi bility is sufficient to

24 establish liability in his offi cial capacity. But PLN has not put forth any evidence that

25 Deputy Kimble actually partic ipated in the drafting of th e m ailroom policy, unli ke the

26 evidence cited for the Command Staff. That lack of evidence defeats an effort to establish

27 individual liability. There must be personal participation, and not reliance on “the buck

28 stops here” to establish individual liability. Cf. McMillian v. Monroe Cnty., 520 U.S. 781

- 27 -

1 (1997) (holding that having “final policymak ing authority” establishes liability in an

2 official capacity).

3

In sum, Pinal County policymakers crafted and enforced a constitutionally

4 deficient m ailroom policy t hat violated P LN’s right to procedural due process. With

5 regard to the mailroom staff, th ere is no genuine dispute of material fact that they are

6 liable for the Due Process violation. But on the other hand, there is no genuine dispute of

7 material fact no § 1983 claim lies against Sheriff Ba beu a nd D eputy Kim ble becaus e

8 there is no evidence of personal invol

vement. Finally, summary judgment is

9 inappropriate on the question of the Command Staff’s liability for the due process injury.

10

C. Damages

11

The Defe ndants have m oved for sum mary judgm ent on the issue of dam ages,

12 claiming that PLN is entitled only to nominal damages. PLN opposed and seeks to

13 proceed to trial on the issue of damages.

14

“[T]he basic purpose of § 1983 da mages is to compensate persons for injuries that

15 are caused by the deprivation of constitutional rights.” Memphis Cm nty. Sc h. Dist. v.

16 Stachura, 477 U.S. 299, 307 (1 986) (internal quotations omitted). Com pensatory

17 damages “include not onl y out- of-pocket los s and other m onetary harms, but also such

18 injuries as ‘impairmen t of reputation . . . , personal humiliation, and mental anguish and

19 suffering.’” Id. at 307. The Parties agree th at PL N is not claim ing dam age from lost

20 income. Defendants seize upon that concession and claim that there is no evidence PLN

21 has suffered a ny ot her com pensable loss. In respons e, PLN cit es three categories of

22 damage: inability to communicate its message, diversion of resources to investigate

23 constitutional wrongs, and frustration of mission.

24

1. Lost Opportunity to Communicate

25

PLN advances a theory of “lost opportunity to communicate its message” as a

26 basis for compensatory damages. The Supreme Court has insisted that courts look only to

27 actual damages, and not engage in abstract weighing of constitutional rights. Damages

28 that “focus , not on com pensation for a pr ovable injury, but on th e jury’s subjective

- 28 -

1 perception of the importance of constitutional rights as an abstract matter . . . [are ]

2 impermissible.” Stachura, 477 U.S. at 308. On t he other hand, it i s sim ilarly

3 inappropriate to reject a damage claim just because damages may be difficult to quantify.

4 See id. at 310- 11 (“ When a plaintiff seeks com pensation for an injury that is likely to

5 have occurred but difficult to establish, some form of presumed damages may possibly be

6 appropriate. In those circum stances, pres umed dam ages m ay roughly a pproximate the

7 harm that the plaintiff suffered and thereby compensate for harms that may be impossible

8 to measure.”)

9

In Stachura, the Court rejected jury instructions that “called on the jury to measure

10 damages based on a subjective evaluation of the importance of par ticular constitutional

11 values.” Id. at 311. In a footnote, the Court observed that its decision did not conflict with

12 the line of cases uphol ding money damages for a violation of the r ight to vote. Id. at 311

13 n.14 (citing Nixon v. Herndon , 273 U.S. 536 (1927)). At the same time, it struggled to

14 articulate the difference between the concrete a nd ephemeral with regard to t he “right t o

15 vote” injury, contradictorily stating that that “value of the right . . . is the m oney value of

16 the particular loss that the plaintiff suffered—a loss of which each member of the jury has

17 personal knowledge,” but that “[i]t is not the val ue of the ri ght to vote a s a general ,

18 abstract matter, based on its role in our history or system of government.” Id. at 311 n.14.

19 Ultimately, the Court attributed the award of damages in the right to vote cases to the

20 long line of cases uphol ding such awards. See id. The right to vote line is likely a

21 historical quirk. The m odern trend is to requ ire actual dam ages that can be m easured or

22 traditional non-measurable tort damages, such as mental angui sh and humiliation. See

23 Chalmers v. City of Los Angeles, 762 F.2d 753, 760-61 (9th Cir. 1985).

24

Viewed in that light, PLN’s “los t opport unity to com municate” falls short. One

25 circuit upheld dam age awards in lim ited inst ances that are based on an or ganization’s

26 “inability to disseminate its views.” City of Watseka v. Ill. Public Action Council , 796

27 F.2d 1547, 1558 (7th Cir. 1986), aff’d 479 U.S. 1048 (1987). The Ninth Circuit has never

28 countenanced such an award, however, and such a theory seems much closer to assigning

- 29 -

1 an inherent value to a constitutional right than to compensable injury. In Brooks v.

2 Andolina, 826, F.2d 1266 (3d Cir. 1987), the Third Circuit re versed the lower court’s

3 determination that a prisoner’s unconstituti onal placement in punitive segregation for

4 thirty da ys did not give rise to compensatory da mages. In so doing, the Third Circuit

5 noted that “not all elem ents of dam ages under the pri nciples of t he common law of t orts

6 need be pr oved by s pecific dol lar am ounts” but cited as exam ples m ental anguish,

7 humiliation, and pain and s uffering—traditional “non-measureable” tort damages. Id. at

8 1270. Lost opportunity to communicate does not involve the traditional tort damages that

9 the Stachura Court highlighted. Conseque ntly, that theor y cannot support a dam ages 10 claim.18

11

2. Diversion of Resources

12

PLN next claims that it suffered damages because it was forced to divert resources

13 away from its core mission to investigate the denial of its materials at the jail. In Carey v.

14 Piphus, 435 U.S. 247, 257-59 (1980), the S upreme Court focused on the com mon law of

15 as the guiding star for determ ining what da mages are available under § 1983. To rende r

16 compensation to victims, tort law will allow recovery of the value of losses in staff time

17 and resour ces. See Fair Housing of Marin v. Com bs, 285 F. 3d 899, 905-06 (9t h Cir.

18 2002) (affirming damage award for “diver sion of r esources”). PLN has produce d

19 evidence that its resources were diverted pre-litigation to investigate and remedy the

20 constitutional violations at Pinal County Jail. (Doc. 121 at ¶¶ 2-5; Doc. 120 at ¶¶ 13-15.)

21 That is sufficient to defeat summary judgm ent and allow PLN to proceed to trial on a

22 diversion of resources theory.

23

24

25

18 PLN also cites severa l decisions where compensatory damages were awarded to

26

prisoners where the prison had interfered with their mail. See, e.g., Sallier v. Brooks, 343 F.3d 868 (6th Cir. 2003); Williams v. Brimeyer , 116 F .3d 351 ( 8th Cir. 1997). None of

27

those cases actually review the damage award. Furthermore, Broulette v. Starns , a case from this Court, invo lved an award of dam ages for th e confiscation of the prisoner’ s

28

magazines, whose value was easy to ascertai n, not lost opportunity to communicate. 161 F. Supp. 2d 1021, 1029 (D. Ariz. 2001).

- 30 -

1

3. Frustration of Mission

2

PLN finall y asserts that it has suffered dam ages because its m ission of nati onal

3 education and advocacy for prisoners’ rights wa s frustrated. (Doc. 120 at ¶ 17.) It claims

4 that, as a result of the unconstitutional policies of the jail, it will need to expend resources

5 to counter the policy’ s adverse effects on prisoners, fam ily, and f riends, w ho believe d

6 that such materials were contraband. ( Id. at ¶¶ 18-19.) The Ni nth Circuit has allowed

7 damages on this theor y. See Combs , 285 F .3d at 905 (affirmi ng “frustration of m ission

8 damages, namely for design, printing, and di ssemination of literature aimed at redressing

9 the impact Combs’ discrimination had on t he Marin housing m arket”). Defendants have

10 not c ountered the e vidence put forward by P LN to ju stify p roceeding on th e th eory o f

11 frustration of mission. Consequently, summary judgment is denied and P LN can advance

12 a frustration of mission theory at trial.

13

4.

Nominal Damages

14

Where a party’s constitutional rights have been violated, an award of nominal

15 damages is m andatory. Floyd v. Laws , 929 F.2d 1390, 1402 (9th Cir.1991); see also

16 Carey v. Piphus , 435 U.S. 247, 266 (1978) (holdi ng that nominal damages may be

17 awarded without proof of actual injury). Consequently, if not hing else, PLN is entitled to

18 nominal damages.

19

5. Pu nitive Damages

20

Finally, PLN also seeks pun itive damages. Punitive damages, however, are not

21 available under 42 U.S.C. § 1983 against “local gover ning bodi es” such as Pinal

22 County. See Hammond v. Count y of Made ra, 859 F.2d 797, 803 n.2 (9th Cir. 1988).

23 Consequently, PLN cannot recover punitive damages from Pinal County for its Monell

24 claims.

25

With respect to the indivi dual defendants who are liable under § 1983, 19 punitive

26

27

19 The mailroom staff (detention aides, Sgt. Delgado, and Lt. Rushing) for the First

28

Amendment and due process viol ations, and potentially the Comma nd Staff for the due process violations.

- 31 -

1 damages are available only “whe n the defendant’s conduct is shown to be motivated by

2 evil motive or intent, or when it involves reckless or callous indifference to the federally

3 protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983) . PLN has produced no

4 evidence that would support su ch a findi ng wit h respect to the indi vidual defendant s.

5 Accordingly, the Court grants summary judgment for Defendants on the issue of punitive

6 damages.

7

CONCLUSION

8

Certain Defendants violated P LN’s rights under the Fourteenth A mendment. The

9 Jail’s past practice of banning all news papers and magazines, permitting books from only

10 four specified publishers, and failing to provid e notice of and an opportunity to appeal a

11 rejection were unconstitutional. Summary judgment is granted for PLN on those points.

12

The status of the current publisher-only rule remains in ques tion until Defendants

13 file their Notice and the Court issues its subsequent order. S ummary judgm ent on the

14 constitutionality of that policy and PLN’s Moti on for a Permanent Injunction is therefore

15 deferred. PLN’s Motion for Declaratory Relief is denied.

16

The Court grants summary judgment for PLN on the liability under § 1983 of

17 Detention Aides Romero, Hansley-Salisbe rry, and McBirnie, Sergeant Delgado,

18 Lieutenant Darrin R ushing, and Pinal C ounty f or com pensatory dam ages to P LN f or

19 violating it s First Am endment a nd D ue Pr ocess right s. The C ourt denies both Parties’

20 Motions for Summary Judgment on the lia bility of the Command Staff for the Due

21 Process violation. The Court grants sum mary judgment for all re maining Defendants on

22 the question of § 1983 liability.

23

PLN m ay adva nce da mage theor ies of di version of re sources and frustration of

24 mission at trial, but not inability to communi cate its message. F urther, no party is liable

25 for punitive damages. Defendants’ reque st for su mmary ju dgment on damages is

26 therefore granted in part and denied in part.

27

IT IS THEREFORE ORDERED THAT:

28

1. PLN’s Motion for Partial Summary Ju dgment, Perm anent Injuncti on, a nd

- 32 -

1 Declaratory Judgm ent (Doc. 85) i s granted in part, denied in part, and de ferred in

2 part.

3

2. Defendants’ Motion f or Partial Su mmary Judgment (Doc. 102) is granted

4 in part, denied in part, and deferred in part.

5

3. PLN’s Motion to File a Surreply (Doc. 134) is DENIED.

6

4. Defendants shall supplem ent the record within 14 d ays of this Order with

7 evidence on why each category of PLN m aterial is currently allow ed into the Jail unde r

8 its current policy and any criteria on which such decisions were made. PLN shall then

9 have 14 days to file any Response.

10

Dated this 19th day of March, 2013.

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 33 -

 
 Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 1 of 19

1 ERNEST GALVAN (CA Bar No. 196065)*

KENNETH M. WALCZAK (CA Bar No. 247389)*

2 ROSEN, BIEN & GALVAN, LLP

315 Montgomery Street, 10th Floor

3 San Francisco, California 94104-1823

Telephone: (415) 433-6830

4 Facsimile: (415) 433-7104

Email:

kwalczak@rbg-law.com

5

DANIEL J. POCHODA (No. 021979) ACLU FOUNDATION OF ARIZONA 3707 North 7th Street, Suite 235 Phoenix, Arizona 85014 Telephone: (602) 650-1854 Facsimile: (602) 650-1376 Email: dpochoda@acluaz.org

6

LANCE WEBER (NH Bar No. 19942)* HUMAN RIGHTS DEFENSE CENTER

7

P. O. Box 2420 Brattleboro, VT 05303

8

Telephone: (802) 579-1309 Facsimile: (866) 228-1681

9 Email: lweber@humanrightsdefensecenter.org

10 * Admitted to Practice Pro Hac Vice

11 Attorneys for Plaintiff Prison Legal News

12

IN THE UNITED STATES DISTRICT COURT

13

FOR THE DISTRICT OF ARIZONA

14 PRISON LEGAL NEWS, a project of the HUMAN
RIGHTS DEFENSE CENTER,

15
Plaintiff,

16

v.
17

PAUL BABEU, individually and in his official
18 capacity as Sheriff of Pinal County, Arizona;

19

PINAL COUNTY, ARIZONA; Sergeant TONYA DELGADO, in her individual and official

20 capacities; Detention Aide ALYSSA ROMERO, in
her individual capacity; Detention Aide
21 LAURENDA HENSLEY-SALISBERRY, in her

22

individual capacity; Detention Aide CHERYL MCBIRNIE, in her individual capacity; Detention

23 Aide JOHN JOHNSTON, in his individual
capacity; Detention Aide LAUREN MCVICKER,

24 in her individual capacity; LORETTA VALDEZ, in

her individual capacity; DALTON GAY, in his
25 individual capacity; ERICA CHAVEZ, in her

26

individual capacity; DENA KELLY, in her individual capacity; Sergeant AMADO

27 MARTINEZ, in his individual and official
capacities; Sergeant LEONARD ARNOLD, in his

28 individual and official capacities; Training

Case No. CV 11-01761-PHX-GMS
FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF FOR VIOLATIONS OF 42 U.S.C. § 1983 – FIRST AMENDMENT FREEDOM OF SPEECH AND FREEDOM OF THE PRESS AND DUE PROCESS OF LAW – AND VIOLATIONS OF THE ARIZONA CONSTITUTION
JURY TRIAL DEMANDED

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS
[

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 2 of 19

1 Specialist DAVID LINDERHOLM, in his

2

individual and official capacities; Lieutenant FRANCES HAWKINS, in her individual and

3 official capacities; Lieutenant DENNIS RUSHING,
in his individual and official capacities; Lieutenant

4 MATTHEW HULL, in his individual and official

capacities; Lieutenant DARREN RUSHING, in his
5 individual and official capacities; Lieutenant

6

VERNITA GANT, in her individual and official capacities; Lieutenant MICHELE MCNEELY. in

7 her individual and official capacities; Lieutenant
GILBERT HOYOS, in his individual and official

8 capacities; Captain TERRY JOHNSON, in his

individual and official capacities; Captain JAYME
9 VALENZUELA, in his individual and official

10

capacities; Captain RUBEN MONTAÑO, in his individual and official capacities; and Deputy Chief

11 JAMES KIMBLE, in his individual and official
capacities,

12

Defendants.
13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF
CASE NO. CV 11-01761-PHX-GMS
[

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 3 of 19

[609875-1]

1

COMES NOW Plaintiff PRISON LEGAL NEWS, a project of the Washington

2 nonprofit corporation HUMAN RIGHTS DEFENSE CENTER, and for its complaint

3 against Defendants PAUL BABEU, individually and in his official capacity as Sheriff of

4 Pinal County; PINAL COUNTY; Sergeant TONYA DELGADO, in her individual and

5 official capacities; Detention Aide ALYSSA ROMERO, in her individual capacity;

6 Detention Aide LAURENDA HENSLEY-SALISBERRY, in her individual capacity;

7 Detention Aide CHERYL MCBIRNIE, in her individual capacity; Detention Aide JOHN

8 JOHNSTON, in his individual capacity; Detention Aide LAUREN MCVICKER, in her

9 individual capacity; LORETTA VALDEZ, in her individual capacity; DALTON GAY, in

10 his individual capacity; ERICA CHAVEZ, in her individual capacity; DENA KELLY, in

11 her individual capacity; Sergeant AMADO MARTINEZ, in his individual and official

12 capacities; Sergeant LEONARD ARNOLD, in his individual and official capacities;

13 Training Specialist DAVID LINDERHOLM, in his individual and official capacities;

14 Lieutenant FRANCES HAWKINS, in her individual and official capacities; Lieutenant

15 DENNIS RUSHING, in his individual and official capacities; Lieutenant MATTHEW

16 HULL, in his individual and official capacities; Lieutenant DARREN RUSHING, in his

17 individual and official capacities; Lieutenant VERNITA GANT, in her individual and

18 official capacities; Lieutenant MICHELE MCNEELY. in her individual and official

19 capacities; Lieutenant GILBERT HOYOS, in his individual and official capacities;

20 Captain TERRY JOHNSON, in his individual and official capacities; Captain JAYME

21 VALENZUELA, in his individual and official capacities; Captain RUBEN MONTAÑO,

22 in his individual and official capacities; and Deputy Chief JAMES KIMBLE, in his

23 individual and official capacities, alleges as follows:

24

INTRODUCTORY STATEMENT

25

1. Plaintiff PRISON LEGAL NEWS (“PLN”), a project of the Washington

26 nonprofit HUMAN RIGHTS DEFENSE CENTER (“HRDC”), brings this action pursuant

27

28

1

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 4 of 19

[609875-1]

1 to 42 U.S.C. § 1983 (“Section 1983”) and the Arizona Constitution, to redress the harm

2 caused by Defendants’ censorship of its monthly publication and correspondence mailed to

3 Pinal County prisoners.

4

2. Defendants have adopted and implemented mail policies and practices that

5 unconstitutionally restrict the right to free expression held by PLN and its subscribers, and

6 protected by the United States and Arizona Constitutions. Defendants have adopted and

7 implemented mail policies and practices that unconstitutionally prohibit delivery to

8 prisoners of all magazines, hardcover books, and letters of more than one page in length.

9

3. On dozens of occasions, Defendants have prohibited subscribers and

10 correspondents from receiving mail sent by PLN. Defendants have undertaken this blanket

11 suppression of speech without any reference to or justification in, safety concerns or any

12 other correctional necessity.

13

4. Defendants’ policies and practices do not provide constitutionally adequate

14 due process protections to senders of mail, such as notice of the Defendants’ decision to

15 censor mail and an opportunity to challenge the censorship.

16

5. Defendants’ actions therefore violate PLN’s rights to freedom of speech,

17 freedom of the press and freedom of association under the First Amendment and its right

18 to due process of law and equal protection under the Fourteenth Amendment to the United

19 States Constitution, and PLN’s rights under Article II, Sections 4 and 6 of the Arizona

20 Constitution. Plaintiff seeks damages in an amount to be proved at trial, and injunctive

21 and declaratory relief, pursuant to 42 U.S.C. § 1983.

22

DEMAND FOR JURY TRIAL

23

6. Plaintiff respectfully demands a jury trial on all causes of action set forth

24 herein.

25

JURISDICTION AND VENUE

7. This action arises under 42 U.S.C. § 1983, which provides for recovery of 26

damages for violations of the First and Fourteenth Amendments to the United States 27

28

2

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 5 of 19

[609875-1]

1 Constitution, and under the Arizona Constitution. This Court has jurisdiction, including

2 diversity jurisdiction, over this action under 28 U.S.C. §§ 1331, 1332 and 1343. This

3 Court has supplemental jurisdiction over Plaintiff’s state law claims pursuant to 28 U.S.C.

4 § 1367. This Court is authorized to grant declaratory relief pursuant to 28 U.S.C. §§2201

5 and 2202 and Fed. R. Civ. P. 57, and is further empowered to grant injunctive relief

6 pursuant to Fed. R. Civ. P. 65.

7

8. Venue is proper in the District of Arizona under 28 U.S.C. § 1391(b) because

8 the Defendants reside in and a substantial part of the events complained of occurred in this

9 District. PARTIES
10 9. Plaintiff PRISON LEGAL NEWS is a project of the Human Rights Defense
11 Center, a Washington non-profit corporation.
12 10. For the past 21 years, the core of PLN’s mission has been public education,
13 advocacy and outreach in support of the rights of prisoners and in furtherance of basic
14 human rights. PLN maintains a website, operates an email list, publishes and distributes
15 books about the criminal justice system and legal issues affecting prisoners, and publishes
16 and distributes a monthly journal of corrections news and analysis, Prison Legal News, to
17 prisoners, lawyers, courts, libraries, and the public throughout the country. Prisoners, their
18 family, friends and advocates are among the intended beneficiaries of PLN’s activities.
19 11. Defendant PINAL COUNTY is a municipal corporation formed under the
20 laws of the State of Arizona.
21 12. Defendant PAUL BABEU is the Sheriff of Pinal County. Sheriff Babeu is
22 employed by and is an agent of Pinal County and the Pinal County Sheriff’s Department.
23 As the Sheriff, he is the final decision maker for Pinal County for jail operations, practices,
24 and policies. He is sued in his individual and official capacities and was acting under color
25 of state law at all times relevant hereto.
26

27

28

3

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 6 of 19

[609875-1]

1

13. Defendant Sergeant TONYA DELGADO is employed by the Pinal County

2 Sheriff’s Department at Pinal County Jail. From January 2006 to the present, her duties

3 have included handing or processing mail, and deciding whether or not to deliver incoming

4 mail, addressed to detainees at Pinal County Jail. Pursuant to her duties, she has returned

5 to sender or refused to deliver books, magazines, and/or letters sent to detainees by Prison

6 Legal News, and decided to prohibit delivery of Prison Legal News publications from the

7 Jail. She has also been responsible for training and supervising Pinal County Jail staff in

8 handling and processing inmate mail. She is sued in her individual and official capacities

9 and was acting under color of state law at all times relevant hereto.

10

14. Defendant Detention Aide ALYSSA ROMERO is employed by the Pinal

11 County Sheriff’s Department at Pinal County Jail. From April 2010 to the present, her

12 duties have included handing or processing mail, and deciding whether or not to deliver

13 incoming mail, addressed to detainees at Pinal County Jail. Pursuant to her duties, she has

14 returned to sender or refused to deliver books, magazines, and/or letters sent to detainees

15 by Prison Legal News, and decided to prohibit delivery of Prison Legal News publications

16 from the Jail. She is sued in her individual capacity, for actions under color of state law.

17

15. Defendant Detention Aide LAURENDA HENSLEY-SALISBERRY is or

18 was employed by the Pinal County Sheriff’s Department at Pinal County Jail. From April

19 2007 to January 2012, her duties included handing or processing mail, and deciding

20 whether or not to deliver incoming mail, addressed to detainees at Pinal County Jail.

21 Pursuant to her duties, she has returned to sender or refused to deliver books, magazines,

22 and/or letters sent to detainees by Prison Legal News, and decided to prohibit delivery of

23 Prison Legal News publications from the Jail. She is sued in her individual capacity, for

24 actions under color of state law.

25

16. Defendant Detention Aide CHERYL MCBIRNIE is employed by the Pinal

26 County Sheriff’s Department at Pinal County Jail. From May 2006 to the present, her

27 duties have included handing or processing mail, and deciding whether or not to deliver

28

4

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 7 of 19

[609875-1]

1 incoming mail, addressed to detainees at Pinal County Jail. Pursuant to her duties, she has

2 returned to sender or refused to deliver books, magazines, and/or letters sent to detainees

3 by Prison Legal News, and decided to prohibit delivery of Prison Legal News publications

4 from the Jail. She is sued in her individual capacity, for actions under color of state law.

5

17. Defendant Detention Aide JOHN JOHNSTON is employed by the Pinal

6 County Sheriff’s Department at Pinal County Jail. From December 2011 to the present,

7 his duties have included handing or processing mail, and deciding whether or not to deliver

8 incoming mail, addressed to detainees at Pinal County Jail. He is sued in his individual

9 capacity, for actions under color of state law.

10

18. Defendant Detention Aide LAUREN MCVICKER is employed by the Pinal

11 County Sheriff’s Department at Pinal County Jail. From December 2011 to the present,

12 her duties have included handing or processing mail, and deciding whether or not to

13 deliver incoming mail, addressed to detainees at Pinal County Jail. She is sued in her

14 individual capacity, for actions under color of state law.

15

19. Defendant LORETTA VALDEZ is employed by the Pinal County Sheriff’s

16 Department at Pinal County Jail. From September 2011 to the present, her duties have

17 included handing or processing mail, and deciding whether or not to deliver incoming

18 mail, addressed to detainees at Pinal County Jail. She is sued in her individual capacity,

19 for actions under color of state law.

20

20. Defendant DALTON GAY is employed by the Pinal County Sheriff’s

21 Department at Pinal County Jail. From December 2011 to the present, his duties have

22 included handing or processing mail, and deciding whether or not to deliver incoming

23 mail, addressed to detainees at Pinal County Jail. He is sued in his individual capacity, for

24 actions under color of state law.

25

21. Defendant ERICA CHAVEZ is employed by the Pinal County Sheriff’s

26 Department at Pinal County Jail. From December 2011 to the present, her duties have

27 included handing or processing mail, and deciding whether or not to deliver incoming

28

5

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 8 of 19

[609875-1]

1 mail, addressed to detainees at Pinal County Jail. She is sued in her individual capacity,

2 for actions under color of state law.

3

22. Defendant DENA KELLY is employed by the Pinal County Sheriff’s

4 Department at Pinal County Jail. From December 2011 to the present, her duties have

5 included handing or processing mail, and deciding whether or not to deliver incoming

6 mail, addressed to detainees at Pinal County Jail. She is sued in her individual capacity,

7 for actions under color of state law.

8

23. Defendant Sergeant AMADO MARTINEZ was employed by the Pinal

9 County Sheriff’s Department at Pinal County Jail, during times relevant to this Complaint.

10 His responsibilities included training Pinal County Jail staff in handling and processing

11 inmate mail. He is sued in his individual and official capacities and was acting under color

12 of state law at all times relevant hereto.

13

24. Defendant Sergeant LEONARD ARNOLD is employed by the Pinal County

14 Sheriff’s Department at Pinal County Jail. From December 2011 to the present, his duties

15 have included deciding whether or not to deliver incoming mail addressed to detainees at

16 Pinal County Jail. He has been responsible for training and supervising Pinal County Jail

17 staff in handling and processing inmate mail. He is sued in his individual and official

18 capacities and was acting under color of state law at all times relevant hereto.

19

25. Defendant Training Specialist DAVID LINDERHOLM is employed by the

20 Pinal County Sheriff’s Department. He has been responsible for training Pinal County Jail

21 staff in handling and processing inmate mail. He is sued in his individual and official

22 capacities and was acting under color of state law at all times relevant hereto.

23

26. Defendant Lieutenant FRANCES HAWKINS is employed by the Pinal

24 County Sheriff’s Department. She has been responsible for training Pinal County Jail staff

25 in handling and processing inmate mail. She is sued in her individual and official

26 capacities and was acting under color of state law at all times relevant hereto.

27

28

6

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 9 of 19

[609875-1]

1

27. Defendant Lieutenant DENNIS RUSHING is employed by the Pinal County

2 Sheriff’s Department. He has been responsible for training Pinal County Jail staff in

3 handling and processing inmate mail. He is sued in his individual and official capacities

4 and was acting under color of state law at all times relevant hereto.

5

28. Defendant Lieutenant MATTHEW HULL is employed by the Pinal County

6 Sheriff’s Department. He has been responsible for training Pinal County Jail staff in

7 handling and processing inmate mail. He is sued in his individual and official capacities

8 and was acting under color of state law at all times relevant hereto.

9

29. Defendant Lieutenant DARREN RUSHING is employed by the Pinal

10 County Sheriff’s Department. He has been responsible for training Pinal County Jail staff

11 in handling and processing inmate mail. He is sued in his individual and official capacities

12 and was acting under color of state law at all times relevant hereto.

13

30. Defendant Lieutenant VERNITA GANT is employed by the Pinal County

14 Sheriff’s Department. She has been responsible for training Pinal County Jail staff in

15 handling and processing inmate mail. She is sued in her individual and official capacities

16 and was acting under color of state law at all times relevant hereto.

17

31. Defendant Lieutenant MICHELE MCNEELY is employed by the Pinal

18 County Sheriff’s Department. She has been responsible for training Pinal County Jail staff

19 in handling and processing inmate mail. She is sued in her individual and official

20 capacities and was acting under color of state law at all times relevant hereto.

21

32. Defendant Lieutenant GILBERT HOYOS is employed by the Pinal County

22 Sheriff’s Department at Pinal County Jail. From December 2011 to the present, his duties

23 have included deciding whether or not to deliver incoming mail addressed to detainees at

24 Pinal County Jail. He has also been responsible for training and supervising Pinal County

25 Jail staff in handling and processing inmate mail. He is sued in his individual and official

26 capacities and was acting under color of state law at all times relevant hereto.

27

28

7

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 10 of 19

[609875-1]

1

33. Defendant Captain TERRY JOHNSON is employed by the Pinal County

2 Sheriff’s Department at Pinal County Jail. From March 2009 to the present, his duties

3 have included deciding whether or not to deliver incoming mail addressed to detainees at

4 Pinal County Jail. He has also been responsible for training Pinal County Jail staff in

5 handling and processing inmate mail. He is sued in his individual and official capacities

6 and was acting under color of state law at all times relevant hereto.

7

34. Defendant Captain JAYME VALENZUELA is employed by the Pinal

8 County Sheriff’s Department at Pinal County Jail. From January 2009 to the present, his

9 duties have included deciding whether or not to deliver incoming mail addressed to

10 detainees at Pinal County Jail. He has also been responsible for training and supervising

11 Pinal County Jail staff in handling and processing inmate mail. He is sued in individual

12 and official capacities and was acting under color of state law at all times relevant hereto.

13

35. Defendant Captain RUBEN MONTAÑO is employed by the Pinal County

14 Sheriff’s Department at Pinal County Jail. From August 2009 to the present, his duties

15 have included deciding whether or not to deliver incoming mail addressed to detainees at

16 Pinal County Jail. He has also been responsible for training Pinal County Jail staff in

17 handling and processing inmate mail. He is sued in his individual and official capacities

18 and was acting under color of state law at all times relevant hereto.

19

36. Defendant Deputy Chief JAMES KIMBLE is employed by the Pinal County

20 Sheriff’s Department at Pinal County Jail. From January 2009 to the present, his duties

21 have included deciding whether or not to deliver incoming mail addressed to detainees at

22 Pinal County Jail. He has also been responsible for training and supervising Pinal County

23 Jail staff in handling and processing inmate mail. He is sued in his individual and official

24 capacities and was acting under color of state law at all times relevant hereto.

25

FACTUAL ALLEGATIONS

26

37. Prison Legal News (“PLN”) publishes and distributes Prison Legal News, a

27 monthly journal of corrections news and analysis regarding prisoners’ rights, court rulings,

28

8

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 11 of 19

[609875-1]

1 management of prison and jail facilities and conditions of confinement. PLN also

2 distributes books about the criminal justice system and legal issues affecting prisoners.

3

38. PLN engages in core protected political speech and expressive conduct on

4 matters of public concern.

5

39. PLN has approximately 7,000 subscribers throughout the United States and

6 abroad, including prisoners, pre-trial detainees, attorneys, journalists, public libraries,

7 judges, and other members of the public.

8

40. Defendants have written, instituted and implemented policies at the Pinal

9 County Jail that prohibit delivery to prisoners of all magazines, hardcover books, and

10 letters of more than one page.

11

41. As of August 18, 2011, the Frequently Asked Questions page of the Pinal

12 County Jail website reads, in pertinent part:

13

How do I send mail to an inmate?

14

You may send post cards no larger than 5X7 mailed via United States Postal

15

Service Only.

16

…

17

Magazines of any kind or hard cover books are not permitted, however

18

paperback books (limited to 3) may be sent via a publisher or publishing

19

company only using the address listed.

20 See

21 http://pinalcountyaz.gov/DEPARTMENTS/SHERIFF/ADULTDETENTIONCENTER/Pa

22 ges/FAQ.aspx#2008-02-26%2009:33:53 (last accessed 8/18/11).

23

19. Pursuant to this and other policies, Defendants have improperly and illegally

24 censored PLN’s publications, books, brochures, and other correspondence sent to prisoners

25 at the Pinal County Jail. Defendants have improperly and illegally refused to deliver

26 paperback copies of the publication Protecting your Health and Safety, sent by PLN to

27 prisoners at the Pinal County Jail.

28

9

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 12 of 19

[609875-1]

1

20. Since at least February 2011 and continuing to the present day, Defendants

2 have censored at least three different types of publications distributed by PLN: the monthly

3 publication Prison Legal News and subscription notices for said publication; PLN’s

4 “Informational Brochure Pack” and individual brochures contained therein (including a

5 Prison Legal News Brochure and Subscription Order Form, a Book List, and an

6 Educational Courses Brochure); and the paperback book Protecting Your Health and

7 Safety. The censorship took the form of failing to deliver the mailed material to the

8 addressee.

9

(a) Prison Legal News: This is PLN’s monthly journal of corrections

10 news and analysis regarding prisoners’ rights, court rulings, management of prison and jail

11 facilities and conditions of confinement.

12

(b) Informational Brochure Pack: This includes 3 items: (1) a Prison

13 Legal News subscription order form and brochure about the topics covered in PLN’s

14 monthly magazine and a description of three books available for purchase or included with

15 a subscription (Protecting Your Health & Safety, With Liberty for Some: 500 Years of

16 Imprisonment in America, and Prison Profiteers: Who Makes Money from Mass

17 Incarceration); (2) a book list including a description of 42 dictionaries, resource materials

18 and books available for purchase, with information about a variety of topics, including: the

19 basic health and safety rights of prisoners, the criminal justice system, finding the right

20 lawyer, DNA testing, issues related to imprisoned women, self-representation in court,

21 developing a successful re-entry plan upon release from prison, searching for a job, crime

22 and poverty, and the mental health crisis in U.S. prisons and jails; and (3) an educational

23 courses brochure including detailed information about and an order form for a book on

24 high school, vocational, paralegal, undergraduate, and graduate courses available through

25 correspondence study, as well as detailed information about and an order form for a book

26 on ineffective assistance of counsel and habeas corpus litigation.

27

28

10

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 13 of 19

[609875-1]

1

(c) Protecting Your Health and Safety: This book, published by the

2 Southern Poverty Law Center and distributed by PLN, is an easy to read, plain language

3 guide prisoners can use to identify and litigate federal civil rights claims against prison

4 officials. Despite the language on the Pinal County Jail website suggesting that paperback

5 books may be sent, Defendants prohibited delivery of the paperback edition of this book

6 on numerous occasions.

7

21. As described below, Defendants have censored materials from PLN on at

8 least 65 occasions from February 2011 to the present.

9

22. The methods by which Defendants have censored PLN publications being

10 sent to prisoners held in custody in the Pinal County Jail (“Jail”) include refusing to deliver

11 said items to the prisoners and/or returning items to PLN’s offices via the Return To

12 Sender (“RTS”) service of the United States Postal Service.

13

23. When Defendants have censored and returned PLN’s mailings, Defendants

14 have often have often drawn a red line through the addressee information on the mailings,

15 marking the outside of various items with red pen notations of “RTS,” and writing the

16 words “NOT ALLOWED,” “ONLY 1 PAGE LETTERS ALLOWED,” or “NOT FROM

17 AN APPROVED PUBLISHER” near the recipient’s address.

18

24. From February to June 2011, PLN sent a sample issue of Prison Legal News,

19 in a manila envelope via first-class mail, to each of more than 60 prisoners. During the

20 same period, PLN sent the same prisoners copies of the informational brochure pack,

21 under separate cover in a standard #10 sized envelope via first-class mail. During the same

22 period, PLN sent the same prisoners a new copy of the paperback book Protecting Your

23 Health & Safety via Media Mail. All items were addressed to specific, individual inmates

24 using the format:

25

[Inmate Name] [Inmate Number]

26

Pinal County Jail

27

P.O. Box 2610

28

11

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 14 of 19

[609875-1]

1

Florence, AZ 85132

2 All items bore a return address of:

3

Prison Legal News

4

PO Box 2420

5

W. Brattleboro, VT 05303.

6

25. Beginning in February 2011 and monthly thereafter, PLN has sent current

7 issues of Prison Legal News directly from its printer addressed individually to several

8 individual prisoners in Defendants’ custody.

9

26. As a result of Defendants’ policies and practices, this mail was not received

10 by its intended recipients at the Pinal County Jail.

11

27. In April and June 2011, counsel for PLN sent single-page letters to more

12 than 60 prisoners in Defendants’ custody, listing the items that had been mailed under

13 separate cover, and asking “for confirmation of your receipt of these three (3) items which

14 have all been mailed separately. … If you have not received all three of the items

15 mentioned above within the next few weeks, please write to us and let us know.”

16

28. At least 7 of these prisoners wrote back via postcards, to say that they had

17 not received any correspondence other than the letter from PLN’s counsel. No letters or

18 postcards were received from any prisoner in Pinal County Jail confirming his or her

19 receipt of a sample issue of Prison Legal News, the informational brochure pack, or

20 Protecting Your Health and Safety.

21

29. To date, PLN has received returns of at least: 50 issues of Prison Legal News

22 marked “RTS not allowed” or “Refused”; 31 paperback copies of Protecting Your Health

23 and Safety marked “RTS” or “RTS not allowed” or “RTS not from an approved

24 publisher”; 29 envelopes containing the informational brochure pack, marked “RTS only 1

25 page letters allowed” or “RTS not allowed” or “RTS only a 1 page letter allowed;” and 17

26 letters related to subscription renewal or cancellations, marked “RTS not allowed.”

27

28

12

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 15 of 19

[609875-1]

1

30. Defendants did not provide Plaintiff with constitutionally adequate notice

2 nor with any opportunity to appeal the decision to censor or exclude any of its

3 correspondence or publications.

4

31. Defendants’ conduct prohibiting PLN from mailing its publications,

5 informational brochures, books, and subscription renewal letters to prisoners confined at

6 the Jail violates the First Amendment by censoring these expressive activities and has a

7 chilling effect on future speech and expression directed at prisoners confined there.

8

32. Defendants’ policy governing incoming mail does not provide notice or an

9 opportunity for the sender or the intended recipient to appeal the Jail’s censorship

10 decisions.

11

33. In adopting and implementing the above censorship policies, Defendants

12 have knowingly violated, continue to violate, and are reasonably expected to violate in the

13 future, PLN’s constitutional rights, and have caused PLN serious and irreparable harm

14 including, but not limited to: suppression of its political message, frustration of its

15 organizational mission, lost ability to recruit new supporters, subscribers and writers, lost

16 subscriptions, lost opportunities for purchases and sales of its publications, lost

17 opportunities for book sales, and diversion of its resources. Absent intervention by this

18 Court these actions will continue and PLN will be subjected to the same irreparable and

19 serious injuries.

20

34. The above violations of PLN’s rights and the harms to PLN were caused by

21 mail and censorship policies adopted or approved by Defendant BABEU in his capacity as

22 Sheriff of Pinal County.

23

35. The individual Defendants named herein are responsible for, or personally

24 participated in, creating and implementing these unconstitutional mail and censorship

25 policies, practices, and customs, and for training and supervising the mail staff at the Pinal

26 County Jail who carry out these policies and whose conduct has injured and continues to

27 injure PLN.

28

13

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 16 of 19

[609875-1]

1

36. Defendants’ unconstitutional policy, practices, and customs are ongoing and

2 continue to violate PLN’s rights, and as such PLN has no adequate remedy at law.

3

37. PLN is entitled to injunctive relief prohibiting Defendants from refusing to

4 deliver or refusing to allow delivery of publications, books, informational brochures and

5 catalogs, and other correspondence from Prison Legal News, and prohibiting Defendants

6 from censoring mail without due process of law.

7

CLAIMS FOR RELIEF

8

FIRST CLAIM FOR RELIEF

9

(For Violations of the First Amendment, As Incorporated Through the Fourteenth Amendment, Under Color Of

10

State Law – Free Speech; Section 1983)

11

38. Plaintiff realleges and incorporates by reference the preceding paragraphs.

12

39. The acts described above constitute violations of Plaintiff’s rights to freedom

13 of the press, to freedom of speech, and Plaintiff’s right to be free of government

14 censorship, under the First Amendment to the United States Constitution through 42

15 U.S.C. § 1983, and have caused damages to Plaintiff, and will continue to cause damage.

16

40. Plaintiff seeks declaratory and injunctive relief and compensatory damages

17 against all Defendants. Plaintiff also seeks punitive damages solely against the individual

18 Defendants. 19

SECOND CLAIM FOR RELIEF (For Violations of Article 2, Section 6 of the Arizona
Constitution Under Color of State Law)

20

41. Plaintiff realleges and incorporates by reference the preceding paragraphs.

21

42. The censorship policies and practices complained of herein violate Plaintiff’s

22 right to freedom of expression as guaranteed by Article 2, Section 6 of the Arizona

23 Constitution.

24

43. To remedy these violations of Plaintiff’s constitutional rights, and to ensure

25 that such violations do not recur, Plaintiff seeks declaratory and injunctive relief against all

26 Defendants.

27

28

14

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 17 of 19

[609875-1]

THIRD CLAIM FOR RELIEF

1

(For Violations of Fourteenth Amendment Due Process

Clause Under Color of State Law, Actionable Through 42

2

U.S.C. § 1983)

3

44. Plaintiff realleges and incorporates by reference the preceding paragraphs.

4

45. By failing to give Plaintiff sufficient notice of the censorship of its

5 publications, and an opportunity to be heard with respect to that censorship, Defendants

6 have deprived and continue to deprive Plaintiff of liberty and property without due process

7 of law, in violation of the Fourteenth Amendment to the United States Constitution

8 through 42 U.S.C. § 1983.

9

46. As a direct and proximate result of Defendants’ conduct in violation of

10 Plaintiff’s rights as set forth above, Plaintiff has suffered, and continues to suffer,

11 damages.

FOURTH CLAIM FOR RELIEF

12

(For Violations of the Due Process Clause in Article 2,

Section 4 of the Arizona Constitution) 13

47. Plaintiff realleges and incorporates by reference the preceding paragraphs.

14

48. By failing to give Plaintiff sufficient notice of the censorship of its

15

publications, and an opportunity to be heard with respect to that censorship, Defendants

16

have deprived and continue to deprive Plaintiff of liberty and property without due process

17

of law, in violation of the Article 2, Section 4 of the Arizona Constitution.

18

49. To remedy these violations of Plaintiff’s constitutional rights, and to ensure

19

that such violations do not recur, Plaintiff seeks declaratory and injunctive relief against all

20

Defendants.

21

22

DAMAGES

50. Plaintiff realleges and incorporates by reference the preceding paragraphs. 23

Paragraphs 51 and 52 below refer only to Plaintiff’s claims under the United States 24

Constitution and 42 U.S.C. § 1983, i.e., Plaintiff’s First and Third Claims for Relief. 25

51. As a direct and proximate result of the infringement of Plaintiff’s rights in 26

each of the above claims for relief, Plaintiff sustained and continues to sustain substantial 27

28

15

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 18 of 19

[609875-1]

1 injuries including but not limited to: suppression of its political message, frustration of its

2 organizational mission, lost ability to recruit new supporters, subscribers and writers,

3 diversion of resources, lost business income, lost business goodwill, and a chilling effect

4 on future exercise of Plaintiff’s rights. Plaintiff is entitled to compensation for the harms

5 resulting from the unconstitutional and illegal acts by Defendants.

6

52. As set forth above, the individual Defendants’ actions demonstrated a

7 reckless disregard for the rights and interests of Plaintiff. On information and belief,

8 Defendants will continue to act in this manner absent legal deterrents. Exemplary damages

9 are required as punishment and to deter Defendants from repeating these harmful and

10 illegal acts in the future.

11

PRAYER FOR RELIEF

12

The conduct previously alleged, unless and until enjoined by order of this Court,

13 will cause great and irreparable injury to Plaintiff. Further, a judicial declaration is

14 necessary and appropriate at this time so that all parties may know their respective rights

15 and act accordingly.

16 WHEREFORE, Plaintiff prays for judgment as follows:

17

1. A declaration that Defendants’ policies, practices, and customs violate the

18 United States and Arizona Constitutions as set forth herein;

19

2. A preliminary and permanent injunction preventing Defendants and their

20 employees, agents, and any and all persons acting in concert with them from continuing to

21 violate the United States and Arizona Constitutions;

22

3. An order awarding compensatory and punitive damages in amounts to be

23 proven at trial for each incident that violated Plaintiff’s rights under the United States

24 Constitution, as actionable under 42 U.S.C. § 1983;

25

4. An order awarding Plaintiff its reasonable attorney’s fees, litigation expenses

26 and costs under 42 U.S.C. § 1988, under the Arizona private attorney general doctrine, as

27

28

16

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

Case 2:11-cv-01761-DJH Document 44 Filed 03/11/12 Page 19 of 19

[609875-1]

1 recognized in Arnold v. Arizona Dept. of Health Services, 775 P.2d 521 (Ariz. 1989), and

2 any other applicable law; and

3

5. Such other relief as the Court deems just and proper.

4

PLAINTIFF DEMANDS A JURY TRIAL.

5 DATED: March 11, 2012

Respectfully submitted,

6 By 7
8
9

s/ Kenneth Walczak

.

Kenneth M. Walczak ROSEN, BIEN & GALVAN, LLP

Attorneys for Plaintiff Prison Legal News

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

17

FIRST AMENDED COMPLAINT FOR DAMAGES AND DECLARATORY AND INJUNCTIVE RELIEF

CASE NO. CV 11-01761-PHX-GMS

 
 Case 2:11-cv-01761-DJH Document 202 Filed 09/23/14 Page 1 of 2

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 PRISON L EGAL NE WS, a project of the
HUMAN RIGHTS DEFENSE CENTER,

No. CV-11-01761-PHX-DJH

10

JUDGMENT

Plaintiff,

11

v. 12

PAUL BABEU, individually and in his official
13 capacity as Sheriff of Pinal County, Arizona;

14

PINAL COUNTY, ARIZONA; Sergeant TONYA DELGADO, in her individual and

15

official capacities; Detention Aide ALYSSA ROMERO, in her individual capacity; Detention

16

Aide LAURENDA HENSLEY-SALISBERRY, in her individual capacity; Detention Aide

17

CHERYL MCBIRNIE, in her individual capacity; Detention Aide JOHN JOHNSTON, in

18

his individual capacity; Detention Aide LAUREN MCVICKER, in her individual

19

capacity; LORETTA VALDEZ, in her individual capacity; DALTON GAY, in his

20 individual capacity; ERICA CHAVEZ, in her
individual capacity; DENA KELLY, in her

21 individual capacity; Sergeant AMADO
MARTINEZ, in his individual and official

22 capacities; Sergeant LEONARD ARNOLD, in

his individual and official capacities; Training
23 Specialist DAVID LINDERHOLM, in his

individual and official capacities; Lieutenant
24 FRANCES HAWKINS, in her individual and

official capacities; Lieutenant DENNIS
25 RUSHING, in his individual and official

26

capacities; Lieutenant MATTHEW HULL, in his individual and official capacities; Lieutenant

27

DARREN RUSHING, in his individual and official capacities; Lieutenant VERNITA

28

GANT, in her individual and official capacities; Lieutenant MICHELE MCNEELY, in her

Case 2:11-cv-01761-DJH Document 202 Filed 09/23/14 Page 2 of 2

1 individual and official capacities; Lieutenant

GILBERT HOYOS, in his individual and

2 official capacities; Captain TERRY JOHNSON,

in his individual and official capacities; Captain

3 JAYME VALENZUELA, in his individual and

official capacities; Captain RUBEN
4 MONTAÑO, in his individual and official

5

capacities; and Deputy Chief JAMES KIMBLE, in his individual and official capacities,

6

Defendants.

7

8

Plaintiff Prison Legal News is hereby aw arded judgm ent for nom inal da mages

9 against Defendants Pinal County, Paul Babe u (in his official capacity), James Kimble (in

10 his official capacity), Darrin Rushing, Tonya Delga do, Al yssa R omero, La urenda

11 Hensley-Salisberry, Cheryl McBirnie, jointl y and severally, in the amount of Two

12 Hundred Forty-three and 00/1 00 Dollars $243.00, plus pos t-judgment interest from the

13 date of entry of this judgment, established by 28 U.S.C §1961.

14

Dated this 23rd day of September, 2014.

15

16

17

18

19

20

21

22

23

24

25

26

27

28

- 2 -

 
 Case 2:11-cv-01761-DJH Document 201 Filed 09/23/14 Page 1 of 2

1

2

3

4

5

6

IN THE UNITED STATES DISTRICT COURT

7

FOR THE DISTRICT OF ARIZONA

8

9 PRISON L EGAL NE WS, a project of the
HUMAN RIGHTS DEFENSE CENTER,

No. CV-11-01761-PHX-DJH

10

ORDER

Plaintiff,

11

v. 12

PAUL BABEU, individually and in his official
13 capacity as Sheriff of Pinal County, Arizona;

14

PINAL COUNTY, ARIZONA; Sergeant TONYA DELGADO, in her individual and

15

official capacities; Detention Aide ALYSSA ROMERO, in her individual capacity; Detention

16

Aide LAURENDA HENSLEY-SALISBERRY, in her individual capacity; Detention Aide

17

CHERYL MCBIRNIE, in her individual capacity; Detention Aide JOHN JOHNSTON, in

18

his individual capacity; Detention Aide LAUREN MCVICKER, in her individual

19

capacity; LORETTA VALDEZ, in her individual capacity; DALTON GAY, in his

20 individual capacity; ERICA CHAVEZ, in her
individual capacity; DENA KELLY, in her

21 individual capacity; Sergeant AMADO
MARTINEZ, in his individual and official

22 capacities; Sergeant LEONARD ARNOLD, in

his individual and official capacities; Training
23 Specialist DAVID LINDERHOLM, in his

individual and official capacities; Lieutenant
24 FRANCES HAWKINS, in her individual and

official capacities; Lieutenant DENNIS
25 RUSHING, in his individual and official

26

capacities; Lieutenant MATTHEW HULL, in his individual and official capacities; Lieutenant

27

DARREN RUSHING, in his individual and official capacities; Lieutenant VERNITA

28

GANT, in her individual and official capacities; Lieutenant MICHELE MCNEELY, in her

Case 2:11-cv-01761-DJH Document 201 Filed 09/23/14 Page 2 of 2

1 individual and official capacities; Lieutenant

GILBERT HOYOS, in his individual and

2 official capacities; Captain TERRY JOHNSON,

in his individual and official capacities; Captain

3 JAYME VALENZUELA, in his individual and

official capacities; Captain RUBEN
4 MONTAÑO, in his individual and official

5

capacities; and Deputy Chief JAMES KIMBLE, in his individual and official capacities,

6

Defendants.

7

The Court has reviewed the parties’ Amended Stipulation (Doc. 200) seeking

8 entry of a nominal damages judgment and extension of time for any filing for awards of

9 taxable costs and/or attorneys’ fees. Good cause appearing, the Court grants the parties’
10 Amended Stipulation.
11 Accordingly,
12 IT IS HEREBY ORDERED that:
13 1. The trial date in this matter is vacated and the case shall be closed. The
14
15 Court, however, will retain jurisdiction over this matter until the parties’ claims for

16 attorneys’ fees and costs are resolved.

17

2. Defendants Terry Johnson, Jayme Valenzuela, David Linderholm, Ruben

18 Montano, Loretta Valdez, Dalton Gay, Erica Chavez, Dena Kelly, Amado Martinez,

19 Frances Hawkins, Matthew Hull, Dennis Rushing, Vernita Gant, Michele McNeely, John

20 Johnston, Lauren McVicker, Gilbert Hoyos and Leonard Arnold are hereby dismissed

21 with prejudice.

22

3. The time for filing requests for taxa ble cos ts and/or attorneys’ fees and

23 costs in this matter is extended to ninety (90) days after entry of judgment.

24

Dated this 23rd day of September, 2014.

25

26

27

28

- 2 -

 
 Case 2:11-cv-01761-DJH Document 200 Filed 09/19/14 Page 1 of 5

[1311214-1]

1 ERNEST GALVAN – Cal. Bar No. 196065*

BLAKE THOMPSON – Cal. Bar No. 255600*

2 ROSEN BIEN GALVAN & GRUNFELD LLP

315 Montgomery Street, Tenth Floor

3 San Francisco, California 94104-1823

Telephone: (415) 433-6830

4 Facsimile: (415) 433-7104

Email:

egalvan@rbgg.com

5

LANCE WEBER – Fla. Bar No. 104550*

6 HUMAN RIGHTS DEFENSE CENTER

P.O. Box 1151

7 Lake Worth, Florida 33460

Telephone: (561) 360-2523

8 Facsimile: (866) 735-7136

Email:

lweber@humanrightsdefensecenter.org

9

*Admitted to Practice Pro Hac Vice 10

Attorneys for Plaintiff PRISON LEGAL NEWS 11

DANIEL J. POCHODA – No. 021979

ACLU FOUNDATION OF ARIZONA

3707 North 7th Street, Suite 235

Phoenix, Arizona 85014-5077

Telephone: (602) 650-1854

Facsimile: (602) 650-1376

Email:

dpochoda@acluaz.org

12

UNITED STATES DISTRICT COURT

13

DISTRICT OF ARIZONA

14 PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
15 Plaintiff,
16 v.
17 PAUL BABEU, individually and in his official
18 capacity as Sheriff of Pinal County, Arizona; PINAL COUNTY, ARIZONA; Sergeant TONYA
19 DELGADO, in her individual and official capacities; Detention Aide ALYSSA ROMERO, in
20 her individual capacity; Detention Aide LAURENDA HENSLEY-SALISBERRY, in her
21 individual capacity; Detention Aide CHERYL MCBIRNIE, in her individual capacity; Detention
22 Aide JOHN JOHNSTON, in his individual capacity; Detention Aide LAUREN MCVICKER,
23 in her individual capacity; LORETTA VALDEZ, in her individual capacity; DALTON GAY, in his
24 individual capacity; ERICA CHAVEZ, in her individual capacity; DENA KELLY, in her
25 individual capacity; Sergeant AMADO MARTINEZ, in his individual and official
26 capacities; Sergeant LEONARD ARNOLD, in his individual and official capacities; Training
27 Specialist DAVID LINDERHOLM, in his individual and official capacities; Lieutenant
28 FRANCES HAWKINS, in her individual and

Case No. 2:11-cv-01761-DJH
AMENDED STIPULATION FOR ENTRY OF JUDGMENT FOR NOMINAL DAMAGES
Judge: Hon. Diane J. Humetewa

AMENDED STIPULATION FOR ENTRY OF JUDGMENT FOR NOMINAL DAMAGES

Case 2:11-cv-01761-DJH Document 200 Filed 09/19/14 Page 2 of 5

[1311214-1]

1 official capacities; Lieutenant DENNIS RUSHING, in his individual and official
2 capacities; Lieutenant MATTHEW HULL, in his individual and official capacities; Lieutenant
3 DARREN RUSHING, in his individual and official capacities; Lieutenant VERNITA GANT, in her
4 individual and official capacities; Lieutenant MICHELE MCNEELY. in her individual and
5 official capacities; Lieutenant GILBERT HOYOS, in his individual and official capacities; Captain
6 TERRY JOHNSON, in his individual and official capacities; Captain JAYME VALENZUELA, in
7 his individual and official capacities; Captain RUBEN MONTAÑO, in his individual and official
8 capacities; and Deputy Chief JAMES KIMBLE, in his individual and official capacities,
9 Defendants.
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28
AMENDED STIPULATION FOR ENTRY OF JUDGMENT FOR NOMINAL DAMAGES

Case 2:11-cv-01761-DJH Document 200 Filed 09/19/14 Page 3 of 5

[1311214-1]

1

In its March 20, 2013 summary judgment Order, the Court found that Plaintiff

2 Prison Legal News’s (“PLN’s”) First Amendment and Due Process rights were violated,

3 and that PLN was entitled to, at a minimum, nominal damages. See Docket No. 143.

4

The Court has set trial for November 18-21, 2014 on the two remaining issues in the

5 case - the amount of PLN’s damages and the liability of four individual defendants for the

6 due process violations. Docket Nos. 143, 188.

7

The parties have agreed to settle all remaining claims in this matter on the following

8 terms:

9

(1) The parties shall jointly request that the Court enter judgment in favor of

10 Plaintiff PLN for nominal damages against Defendants Pinal County, Paul Babeu (in his

11 official capacity), James Kimble (in his official capacity), Darrin Rushing, Tonya Delgado,

12 Alyssa Romero, Laurenda Hensley-Salisberry, Cheryl McBirnie in the total amount of

13 Two Hundred Forty-three and 00/100 Dollars ($243.00), which sum was arrived at by

14 multiplying $1.00 for each of the 243 instances in which PLN’s First Amendment or Due

15 Process rights were violated.

16

(2) All claims against Defendants Terry Johnson, Jayme Valenzuela, David

17 Linderholm, Ruben Montano, Loretta Valdez, Dalton Gay, Erica Chavez, Dena Kelly,

18 Amado Martinez, Frances Hawkins, Matthew Hull, Dennis Rushing, Vernita Gant, and

19 Michele McNeely, John Johnston, Lauren McVicker, Gilbert Hoyos and Leonard Arnold

20 shall be dismissed with prejudice.

21

(3) The parties shall attempt to resolve Plaintiff’s claims for attorney’s fees and

22 costs under 42 USC §1988, and Defendants’ claims for taxable costs pursuant to Rule 68

23 Fed.R.Civ.P. by stipulation. To allow time for the parties to reach such a stipulation, and

24 to allow for the mandatory pre-filing consultation required by Local Rule Civ. 54.2(d)(1),

25 the parties jointly request an extension of time for filing Defendants’ request for costs and

26 Plaintiff’s request for fees. The parties jointly request the Court to extend the deadline for

27 such filings to 90 days after the entry of judgment.

28

(4) The parties agree that for purposes of Plaintiff’s claims for attorney’s fees and

1
AMENDED STIPULATION FOR ENTRY OF JUDGMENT FOR NOMINAL DAMAGES

Case 2:11-cv-01761-DJH Document 200 Filed 09/19/14 Page 4 of 5

[1311214-1]

1 costs, and defendants’ claims for taxable costs, the operative Rule 68 offer is the offer

2 served on November 22, 2011. The parties agree and stipulate that they may challenge, as

3 unreasonable, any fees or costs sought by the opposing party.

4

THE PARTIES HEREBY STIPULATE AND REQUEST THE COURT TO:

5

• vacate the trial date and enter judgment for nominal damages for Plaintiff

6

Prison Legal News against Defendants Pinal County, Paul Babeu (in his

7

official capacity), James Kimble (in his official capacity), Darrin Rushing,

8

Tonya Delgado, Alyssa Romero, Laurenda Hensley-Salisberry, Cheryl

9

McBirnie in the total amount of Two Hundred Forty-three and 00/100

10

Dollars ($243.00);

11

• dismiss Defendants Terry Johnson, Jayme Valenzuela, David Linderholm,

12

Ruben Montano, Loretta Valdez, Dalton Gay, Erica Chavez, Dena Kelly,

13

Amado Martinez, Frances Hawkins, Matthew Hull, Dennis Rushing, Vernita

14

Gant, and Michele McNeely, John Johnston, Lauren McVicker, Gilbert

15

Hoyos and Leonard Arnold with prejudice.

16

• extend the time for any costs or attorney’s fees filings in this case to ninety

17

(90) days after the entry of the Court’s Order awarding Plaintiff nominal

18

damages as described above.

19 DATED: September 19, 2014

ROSEN, BIEN & GALVAN, LLP

20

By: /s/ Ernest Galvan

21

Ernest Galvan

22

Attorneys for Plaintiff PRISON LEGAL NEWS

23

24 DATED: September 19, 2014

JONES, SKELTON & HOCHULI, P.L.C.

25

By: /s/ Georgia Staton

26

Georgia Staton

27

Attorneys for Defendants

28

2
AMENDED STIPULATION FOR ENTRY OF JUDGMENT FOR NOMINAL DAMAGES

Case 2:11-cv-01761-DJH Document 200 Filed 09/19/14 Page 5 of 5

[1311214-1]

1

CERTIFICATE OF SERVICE

2

I hereby certify that on the 19th day of September, 2014, I caused the foregoing

3 document to be filed electronically with the Clerk of Court through the CM/ECF System

4 for filing; and served on counsel of record via the Court’s CM/ECF system.

5

6

/s/ Ernest Galvan

7

Ernest Galvan

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

3
AMENDED STIPULATION FOR ENTRY OF JUDGMENT FOR NOMINAL DAMAGES

 
 11/2/2017

CM/ECF - azd
U.S. District Court DISTRICT OF ARIZONA (Phoenix Division) CIVIL DOCKET FOR CASE #: 2:11-cv-01761-DJH

CLOSED,STD

Prison Legal News v. Babeu et al Assigned to: Judge Diane J Humetewa Case in other court: Ninth Circuit Court of Appeals, 13-15965 Cause: 42:1983 Civil Rights Act

Date Filed: 09/07/2011 Date Terminated: 09/23/2014 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff
Prison Legal News a project of: other Human Rights Defense Center

represented by Blake Thompson Rosen Bien Galvan & Grunfeld LLP 50 Fremont St., 19th Fl. San Francisco, CA 94105-2235 415-433-6830 Fax: 415-433-7104 Email: bthompson@rbgg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Daniel Joseph Pochoda ACLU - Phoenix, AZ 3707 N. 7th St., Ste. 235 Phoenix, AZ 85014 602-650-1854 Fax: 602-650-1376 Email: dpochoda@acluaz.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Ernest Galvan Rosen Bien Galvan & Grunfeld LLP 50 Fremont St., 19th Fl. San Francisco, CA 94105-2235 415-433-6830 Fax: 415-433-7104 Email: egalvan@rbgg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

Kenneth M Walczak Rosen Bien Galvan & Grunfeld LLP 50 Fremont St., 19th Fl. San Francisco, CA 94105-2235 415-433-6830 Fax: 415-433-7104 Email: kwalczak@rbg-law.com TERMINATED: 04/29/2014 LEAD ATTORNEY
1/28

11/2/2017

CM/ECF - azd
ATTORNEY TO BE NOTICED
Lance Theodore Weber Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 561-360-2523 Fax: 866-735-7136 Email: lance.weber@newlinlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Leslie Chambers Mehta Rosen Bien Galvan & Grunfeld LLP 50 Fremont St., 19th Fl. San Francisco, CA 94105-2235 415-433-6830 Fax: 415-433-7104 Email: lmehta@rbgg.com TERMINATED: 10/09/2013 LEAD ATTORNEY ATTORNEY TO BE NOTICED

V.
Defendant
Paul R Babeu named as: Paul Babeu/ individually and in his ofﬁcial capacity as Sheriff of Pinal County, Arizona

represented by Eileen Dennis GilBride Jones Skelton & Hochuli PLC 2901 N Central Ave., Ste. 800 Phoenix, AZ 85012 602-263-1700 Fax: 602-200-7827 Email: egilbride@jshﬁrm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia A Staton Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602-263-1700 Fax: 602-200-7854 Email: gstaton@jshﬁrm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Marie Iafrate Iafrate & Associates 649 N 2nd Ave. Phoenix, AZ 85003 602-234-9775 Fax: 602-234-9733 Email: miafrate@iafratelaw.com

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

2/28

11/2/2017
Defendant Pinal, County of
Defendant Unknown Parties named as: Does 1-20 in their individual capacities TERMINATED: 03/11/2012
Defendant Tonya Delgado Sergeant, in her individual and ofﬁcial capacities

CM/ECF - azd

TERMINATED: 11/21/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Molinario Jones Skelton & Hochuli PLC 40 N Central Ave., Ste. 2700 Phoenix, AZ 85004 602-263-1746 Fax: 602-200-7831 Email: mmolinario@jshﬁrm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Marie Iafrate (See above for address) TERMINATED: 11/21/2011 LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

3/28

11/2/2017
Defendant Alyssa Romero Detention Aide, in her individual capacity
Defendant Laurenda Hensley-Salisberry Detention Aide, in her individual capacity
Defendant Cheryl McBirnie Detention Aide, in her individual capacity

CM/ECF - azd

Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

4/28

11/2/2017
Defendant John Johnston Detention Aide, in his individual capacity TERMINATED: 09/23/2014

CM/ECF - azd

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Lauren McVicker Detention Aide, in her individual capacity TERMINATED: 09/23/2014

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Loretta Valdez in her individual capacity TERMINATED: 09/23/2014

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
5/28

11D/2/e20f1e7ndant Dalton Gay in his individual capacity TERMINATED: 09/23/2014
Defendant Erica Chavez in her individual capacity TERMINATED: 09/23/2014
Defendant Dena Kelly in her individual capacity TERMINATED: 09/23/2014
Defendant Amado Martinez in his individual and ofﬁcial capacities TERMINATED: 09/23/2014

CM/ECF - azd
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

6/28

11/2/2017
Defendant Leonard Arnold Sergeant, in his individual and ofﬁcial capacities TERMINATED: 09/23/2014
Defendant David Linderholm Specialist, in his individual capacity TERMINATED: 09/23/2014
Defendant Frances Hawkins Lieutenant, in her individual and ofﬁcial capacities TERMINATED: 09/23/2014

CM/ECF - azd

Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

7/28

11/2/2017
Defendant Dennis Rushing Lieutenant, in his individual and ofﬁcial capacities TERMINATED: 09/23/2014

CM/ECF - azd

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Matthew Hull Lieutenant, in his individual and ofﬁcial capacities TERMINATED: 09/23/2014

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Darren Rushing Lieutenant, in his individual and ofﬁcial capacities

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
8/28

11D/2/e20f1e7ndant Vernita Gant Lieutenant, in her individual and ofﬁcial capacities TERMINATED: 09/23/2014
Defendant Michele McNeely Lieutenant, in her individual and ofﬁcial capacities TERMINATED: 09/23/2014
Defendant Gilbert Hoyos Lieutenant, in his individual and ofﬁcial capacities TERMINATED: 09/23/2014
Defendant Terry Johnson Captain, in his individual and ofﬁcial capacities TERMINATED: 09/23/2014

CM/ECF - azd
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

9/28

11/2/2017
Defendant Jayme Valenzuela Captain, in his individual and ofﬁcial capacities TERMINATED: 09/23/2014
Defendant Ruben Montano Captain, in his individual and ofﬁcial capacities TERMINATED: 09/23/2014
Defendant James Kimble Deputy Chief, in his individual and ofﬁcial capacities

CM/ECF - azd

Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

represented by Eileen Dennis GilBride (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Georgia A Staton (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Michele Molinario (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

10/28

11/2/2017

CM/ECF - azd

Date Filed

# Docket Text

09/07/2011

1 COMPLAINT. Filing fee received: $350.00, receipt number PHX 0970-5784285, ﬁled by Prison Legal News (submitted by Daniel Pochoda). (Attachments: # 1 Civil Cover Sheet) (REK) (Entered: 09/07/2011)

09/07/2011

2 SUMMONS Submitted by Prison Legal News (submitted by Daniel Pochoda). (Attachments: # 1 Summons)(REK) (Entered: 09/07/2011)

09/07/2011

3 Filing fee paid, receipt number PHX 0970-5784285. This case has been assigned to the Honorable G. Murray Snow. All future pleadings or documents should bear the correct case number: CV 11-01761-PHX-GMS. Notice of Availability of Magistrate Judge to Exercise Jurisdiction form attached. (REK) (Entered: 09/07/2011)

09/07/2011

4 Corporate Disclosure Statement by Prison Legal News (submitted by Daniel Pochoda). (REK) (Entered: 09/07/2011)

09/07/2011

5 Summons Issued as to Paul Babeu, Pinal, County of. (Attachments: # 1 Summons)(REK). *** IMPORTANT: When printing the summons, select "Document and stamps" or "Document and comments" for the seal to appear on the document. (Entered: 09/07/2011)

09/15/2011

6 *Summons Returned Executed by Prison Legal News Paul Babeu served on 09/08/11 (Pochoda, Daniel) Modiﬁed on 9/16/2011 *Entry modiﬁed from "certiﬁcate of service" (ESL). (Entered: 09/15/2011)

09/15/2011

7 AFFIDAVIT of Service for Summons, Complaint served on Pinal County on 9/8/2011, ﬁled by Prison Legal News. (Pochoda, Daniel) (Entered: 09/15/2011)

09/15/2011

8 MOTION for Admission Pro Hac Vice as to attorney Lance T Weber on behalf of Prison Legal News. (BAS) (Entered: 09/16/2011)

09/16/2011

PRO HAC VICE FEE PAID. $ 50, receipt number PHX113733 as to Lance T Weber. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/16/2011)

09/16/2011

9 ORDER pursuant to General Order 09-08 granting 8 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has ﬁve (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/16/2011)

09/28/2011

10 MOTION for Admission Pro Hac Vice as to attorney Kenneth M Walczak on behalf of Prison Legal News. (BAS) (Entered: 09/28/2011)

09/28/2011

11 MOTION for Admission Pro Hac Vice as to attorney Ernest Galvan on behalf of Prison Legal News. (BAS) (Entered: 09/28/2011)

09/28/2011

12 MOTION for Admission Pro Hac Vice as to attorney Kenneth M Walczak on behalf of Prison Legal News. (BAS) (Entered: 09/28/2011)

09/28/2011

PRO HAC VICE FEE PAID. $ 100, receipt number PHX114159 as to Ernest Galvan, Kenneth M Walczak. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (BAS) (Entered: 09/28/2011)

09/28/2011

13 ORDER pursuant to General Order 09-08 granting 10 Motion for Admission Pro Hac Vice; granting 11 Motion for Admission Pro Hac Vice; terminating 12 Motion for Admission Pro Hac Vice (duplicate of docket 10). Per the Court's Administrative Policies and Procedures Manual, applicant has ﬁve (5) days in which to register as a user of the

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

11/28

11/2/2017

CM/ECF - azd
Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 09/28/2011)

09/28/2011

14 NOTICE of Appearance by Michele Marie Iafrate on behalf of Paul R Babeu, Pinal, County of (Iafrate, Michele) (Entered: 09/28/2011)

09/29/2011

15 Joint MOTION for Extension of Time to File Answer (First Request) by Prison Legal News. (Walczak, Kenneth) (Entered: 09/29/2011)

10/03/2011

16 ORDER, granting the Motion 15 and extending the time in which Defendants may ﬁle an answer to the Complaint, to and including, November 28, 2011. No further extensions shall be granted absent good cause. Signed by Judge G Murray Snow on 10/3/2011. (KMG) (Entered: 10/03/2011)

11/21/2011

17 *MOTION to Substitute Attorney: Attorney Georgia A. Staton appearing for Paul R Babeu, Pinal, County of. (Attachments: # 1 Exhibit 1 and 2, # 2 Text of Proposed Order) (Staton, Georgia) *Entry modiﬁed on 11/22/2011 from "Notice of Attorney Substitution" to "MOTION to Substitute Attorney." (KMG). (Entered: 11/21/2011)

11/22/2011

18 ORDER re 17 Notice (Motion) of Substitution of Counsel, substituting Georgia A. Staton of the law ﬁrm of Jones, Skelton & Hochuli, P.L.C. as counsel for Defendants Paul Babeu and Pinal County, in the place and stead of Michele Iafrate of IAFRATE & ASSOCIATES, 649 North 2nd Avenue, Phoenix, Arizona 85003. Signed by Judge G Murray Snow on 11/22/11.(ESL) (Entered: 11/22/2011)

11/22/2011

19 ANSWER to 1 Complaint with Jury Demand by Paul R Babeu, Pinal, County of.(Staton, Georgia) (Entered: 11/22/2011)

11/22/2011

20 DEMAND for Trial by Jury by Paul R Babeu, Pinal, County of. (Staton, Georgia) (Entered: 11/22/2011)

11/22/2011

21 NOTICE re Service of Defendants' Offer of Judgment to Plaintiff by Paul R Babeu, Pinal, County of . (Staton, Georgia) (Entered: 11/22/2011)

11/22/2011

22 ORDER Setting Rule 16 Case Management Conference for 1/13/2012 at 08:30 AM in Courtroom 602, 401 West Washington Street, Phoenix, AZ 85003 before Judge G Murray Snow (see order for complete details). Signed by Judge G Murray Snow on 11/22/11. (REW) (Entered: 11/22/2011)

12/19/2011

23 NOTICE re Service of Defendants' Offer of Judgment dated December 19, 2011 by Paul R Babeu, Pinal, County of . (Staton, Georgia) (Entered: 12/19/2011)

12/21/2011

24 REPORT of Rule 26(f) Planning Meeting by Paul R Babeu, Pinal, County of. (Staton, Georgia) (Entered: 12/21/2011)

12/21/2011

25 IT IS ORDERED that the Scheduling Conference, presently set for 1/13/12 at 8:30 a.m. before Judge Snow is VACATED. A Case Managment Order will follow. Ordered by Judge G Murray Snow.(ADG)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 12/21/2011)

12/21/2011

26 CASE MANAGEMENT ORDER: Discovery due by 6/8/2012. Dispositive motions due by 11/21/2012. (See Order for full details). Signed by Judge G Murray Snow on 12/21/2011. (KFZ) (Entered: 12/21/2011)

01/10/2012

27 NOTICE re Service of Defendants' Initial Disclosure Statement by Paul R Babeu, Pinal, County of . (Staton, Georgia) (Entered: 01/10/2012)

01/10/2012

28 NOTICE re of Service of Plaintiff's Initial Disclosures by Prison Legal News . (Walczak, Kenneth) (Entered: 01/10/2012)

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

12/28

11/2/2017
01/31/2012 02/01/2012 02/03/2012 02/14/2012 02/20/2012 02/20/2012 02/20/2012
02/24/2012 02/27/2012
03/02/2012 03/02/2012
03/05/2012 03/05/2012 03/06/2012 03/09/2012

CM/ECF - azd
29 NOTICE re Service of Defendants' Discovery to Plaintiff by Paul R Babeu, Pinal, County of . (Staton, Georgia) (Entered: 01/31/2012)
30 NOTICE re Notice of Service of Plaintiff's Discovery to Defendants by Prison Legal News . (Galvan, Ernest) (Entered: 02/01/2012)
31 NOTICE re Notice of Association of Counsel by Paul R Babeu, Pinal, County of . (Molinario, Michele) (Entered: 02/03/2012)
32 NOTICE re Service of Defendants' Partial Responses to Plaintiff's Non-Uniform Interrogatories 1 through 8 by Paul R Babeu, Pinal, County of . (Staton, Georgia) (Entered: 02/14/2012)
33 *First MOTION to Amend/Correct Motion for Leave to Amend Complaint by Prison Legal News. (Walczak, Kenneth) *Modiﬁed to reﬂect that the strike out verison of the amended complaint is attached to (Doc. 34) on 2/21/2012 (TLJ). (Entered: 02/20/2012)
34 DECLARATION of Kenneth M. Walczak re 33 First MOTION to Amend/Correct Motion for Leave to Amend Complaint by Plaintiff Prison Legal News. (Walczak, Kenneth) (Entered: 02/20/2012)
35 *Additional Attachment to Main Document (Proposed Order) re: 33 First MOTION to Amend/Correct Motion for Leave to Amend Complaint Proposed Order Granting Leave to Amend by Prison Legal News. (Walczak, Kenneth) *Modiﬁed to correct event type on 2/21/2012 (TLJ). (Entered: 02/20/2012)
36 RESPONSE to Motion re 33 First MOTION to Amend/Correct Motion for Leave to Amend Complaint ﬁled by Paul R Babeu, Pinal, County of. (Staton, Georgia) (Entered: 02/24/2012)
37 ORDER granting 33 Motion to Amend/Correct: Plaintiff shall ﬁle and serve the First Amended Complaint on all parties under Rule 5 of the Federal Rules of Civil Procedure within fourteen (14) days of the date of this Order. Within sixty (60) days after the First Amended Complaint is ﬁled, Defendants shall ﬁle their Answer to the First Amended Complaint. Signed by Judge G Murray Snow on 2/27/12.(SJF) (Entered: 02/27/2012)
38 *JOINT MOTION for Reference to Magistrate Judge by Paul R Babeu, Pinal, County of. (Staton, Georgia) *Modiﬁed on 3/2/2012 to Change from Report to Motion (MAP)*. (Entered: 03/02/2012)
39 ORDER that this matter is referred to United States Magistrate Judge Michelle H. Burns for a settlement conference re: pursuant to 38 the parties' Joint Motion for Reference to Magistrate Judge for Mediation. Signed by Judge G Murray Snow on 3/2/12.(TLJ) (Entered: 03/02/2012)
40 NOTICE re of Service of Defendants Second Request for Production by Paul R Babeu, Pinal, County of . (Molinario, Michele) (Entered: 03/05/2012)
41 NOTICE re service of Plaintiff's Discovery Responses by Prison Legal News . (Galvan, Ernest) (Entered: 03/05/2012)
42 NOTICE re Notice of Service of Defendants Response to Plaintiff's NUI and RFP by Paul R Babeu, Pinal, County of . (Molinario, Michele) (Entered: 03/06/2012)
43 SETTLEMENT CONFERENCE ORDER - All parties and their counsel who are responsible for the case SHALL physically appear before the undersigned Settlement Judge, Courtroom 303, Sandra Day O'Connor U. S. Courthouse, 401 West Washington, Phoenix, Arizona on 04/05/12 at 9:30 a.m.. Signed by Magistrate Judge Michelle H Burns on 03/09/12. (See attached pdf for complete details) (ESL) (Entered: 03/09/2012)

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

13/28

11/2/2017
03/11/2012

CM/ECF - azd
44 AMENDED COMPLAINT First Amended Complaint against All Defendants, ﬁled by Prison Legal News.(Walczak, Kenneth) (Entered: 03/11/2012)

03/19/2012

45 WAIVER OF SERVICE Returned Executed by James Kimble, Alyssa Romero, Laurenda Hensley-Salisberry, Frances Hawkins, Amado Martinez, Paul R Babeu, Tonya Delgado, Dennis Rushing, Dalton Gay, David Linderholm, Matthew Hull, John Johnston, Michele McNeely, Terry Johnson, Lauren McVicker, Dena Kelly, Unknown Parties, Vernita Gant, Loretta Valdez, Pinal, County of, Erica Chavez, Darren Rushing, Ruben Montano, Cheryl McBirnie, Gilbert Hoyos, Leonard Arnold, Jayme Valenzuela. All Defendants. (Staton, Georgia) (Entered: 03/19/2012)

03/23/2012

46 NOTICE re Noticer of Service of Discovery to Plaintiff by Paul R Babeu, Pinal, County of Arizona. (Staton, Georgia) (Entered: 03/23/2012)

04/05/2012

47 Minute Order. Proceedings held before Magistrate Judge Michelle H Burns: Settlement Conference held on 4/5/2012. Present were: Ernest Galvan, attorney for and with plaintiff; Georgia Staton, attorney for defendants. A court reporter was not present. The settlement conference was not recorded and settlement was not reached. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MHB,emc) (Entered: 04/05/2012)

04/13/2012

48 BRIEF Re Depo of Sheriff by Plaintiff Prison Legal News. (Galvan, Ernest) (Entered: 04/13/2012)

04/13/2012

49 DECLARATION of Ernest Galvan re 48 Brief (Non Appeal) re Depo of Sheriff by Plaintiff Prison Legal News. (Attachments: # 1 Exhibit)(Galvan, Ernest) (Entered: 04/13/2012)

04/13/2012

50 MEMORANDUM OF LAW RE APEX DOCTRINE AND ITS APPLICABILITY TO SHERIFF BABEU by Defendants Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 Exhibit) (Molinario, Michele) (Entered: 04/13/2012)

04/16/2012

51 ANSWER to 44 Amended Complaint by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda HensleySalisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Lauren McVicker, Ruben Montano, Pinal, County of, Prison Legal News, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela.(Molinario, Michele) (Entered: 04/16/2012)

04/16/2012

52 NOTICE re Service by Prison Legal News Plaintiff's Response to Defendants' 2nd RFPD. (Galvan, Ernest) (Entered: 04/16/2012)

04/16/2012

53 NOTICE re Service by Prison Legal News Plaintiff's Discovery for Defs Paul Babeu and Pinal County. (Galvan, Ernest) (Entered: 04/16/2012)

04/17/2012

54 MOTION for Admission Pro Hac Vice as to attorney Leslie C Mehta on behalf of Prison Legal News. (BAS) (Entered: 04/17/2012)

04/17/2012

55 MOTION for Admission Pro Hac Vice as to attorney Robert B Thompson on behalf of Prison Legal News. (BAS) (Entered: 04/17/2012)

04/17/2012

PRO HAC VICE FEE PAID. $ 100, receipt number PHX121074 as to Leslie C Mehta, Robert B Thompson. This is a TEXT ENTRY ONLY. There is no PDF document

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

14/28

11/2/2017

CM/ECF - azd
associated with this entry. (BAS) (Entered: 04/17/2012)

04/17/2012

56 ORDER pursuant to General Order 09-08 granting 54 Motion for Admission Pro Hac Vice; granting 55 Motion for Admission Pro Hac Vice. Per the Court's Administrative Policies and Procedures Manual, applicant has ﬁve (5) days in which to register as a user of the Electronic Filing System. Registration to be accomplished via the court's website at www.azd.uscourts.gov. (BAS)(This is a TEXT ENTRY ONLY. There is no.pdf document associated with this entry.) (Entered: 04/17/2012)

04/17/2012

57 ORDER. The Court after having considered the submissions of the parties at Docs. 48-50 determines that, while Plaintiff may take the deposition of Sheriff Babeu if it wishes to do so, based upon the representations made by Sheriff Babeu in the afﬁdavit in doc. 50, and to which he will be bound in this litigation, Plaintiff is required to ﬁrst take the deposition of Deputy Chief James Kimble. Signed by Judge G Murray Snow on April 17, 2012. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (GMS) (Entered: 04/17/2012)

04/19/2012

58 NOTICE re Service by Prison Legal News Notice and Amended Notice of Deposition. (Galvan, Ernest) (Entered: 04/19/2012)

04/24/2012

59 NOTICE re Service by Prison Legal News Plaintiff's Set One Special Interrogatories to Defendants. (Thompson, Blake) (Entered: 04/24/2012)

04/24/2012

60 NOTICE re Service by Prison Legal News Plaintiff's Set One Request for Production of Documents to Defendants. (Thompson, Blake) (Entered: 04/24/2012)

04/27/2012

61 NOTICE re Service by Prison Legal News Plaintiff's Discovery, Discovery Responses and Deposition Notices. (Thompson, Blake) (Entered: 04/27/2012)

05/15/2012

62 * NOTICE of Deposition of Prison Legal News, ﬁled by Paul R Babeau, Pinal, County of (Molinario, Michele) * Modiﬁed to correct ﬁlers on 5/16/2012 (LAD). (Entered: 05/15/2012)

05/15/2012

63 * NOTICE of Deposition of Paul Wright, ﬁled by Paul R Babeu, Pinal, County of. (Molinario, Michele) * Modiﬁed to correct ﬁlers on 5/16/2012 (LAD). (Entered: 05/15/2012)

05/16/2012

64 * NOTICE of Deposition of Rule 30(b) Prison Legal News, ﬁled by Paul R Babeu, Pinal County of. (Molinario, Michele) * Modiﬁed to reﬂect correct ﬁlers on 5/17/2012 (LAD). (Entered: 05/16/2012)

05/16/2012

65 * NOTICE of Deposition of Paul Wright (Amended), ﬁled by Paul R Babeau, Pinal, County of. (Molinario, Michele) * Modiﬁed to reﬂect correct ﬁlers on 5/17/2012 (LAD). (Entered: 05/16/2012)

05/17/2012

66 NOTICE re Service by Prison Legal News Notices of Depositions David Linderholm and Leonard Arnold. (Thompson, Blake) (Entered: 05/17/2012)

05/18/2012

67 NOTICE re Service of Supplemental Disclosure and First Supplemental Response to RFP by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela . (Molinario, Michele) (Entered: 05/18/2012)

05/18/2012

68 NOTICE re of Service of Defendants Response to Plaintiff's First RFA by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson,

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

15/28

11/2/2017

CM/ECF - azd
John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela . (Molinario, Michele) (Entered: 05/18/2012)

05/22/2012

69 NOTICE re Service by Prison Legal News Notices of Deposition. (Galvan, Ernest) (Entered: 05/22/2012)

05/22/2012

70 NOTICE re Service by Prison Legal News Plaintiff's Supplemental Response to Defendants' 2nd Set Non-Uniform Interrogatories. (Galvan, Ernest) (Entered: 05/22/2012)

05/25/2012

71 NOTICE re Service of Defendants' Responses to Plaintiff's First Set of NUIS to Defendant Pinal County and Responses to Plaintiff's 2nd RFP to Defendants by Paul R Babeu, Pinal, County of . (Staton, Georgia) (Entered: 05/25/2012)

05/29/2012

72 NOTICE re of Service of First Request for Production and Special Interrogatories by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela . (Molinario, Michele) (Entered: 05/29/2012)

05/30/2012

73 NOTICE re Service by Prison Legal News Plaintiff's Supplemental Production of Responsive Documents. (Galvan, Ernest) (Entered: 05/30/2012)

05/31/2012

74 NOTICE re Service by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela . (Molinario, Michele) (Entered: 05/31/2012)

06/04/2012

75 STIPULATION to Extend Time to Resolve Discovery Disputes by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Galvan, Ernest) (Entered: 06/04/2012)

06/05/2012

76 NOTICE re Service by Prison Legal News Plaintiff's Supplemental Responses and Production of Documents. (Galvan, Ernest) (Entered: 06/05/2012)

06/05/2012

77 ORDER pursuant to the Parties' 75 Stipulation; extending the Discovery Deadline to resolve any remaining disputes, to and including, 6/22/12; all other deadlines in the Case Management Order 26 shall remain the same. Signed by Judge G Murray Snow on 6/5/12. (REW) (Entered: 06/05/2012)

06/08/2012

78 * NOTICE of Service of Discovery by Paul R Babeu and Pinal, County of. (Molinario, Michele) * Modiﬁed to correct ﬁlers on 6/11/2012 (LAD). (Entered: 06/08/2012)

06/15/2012

79 NOTICE re of Service by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela . (Molinario, Michele) (Entered: 06/15/2012)

06/15/2012

80 NOTICE re Service of Defendants Expert Disclosure Statement by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

16/28

11/2/2017

CM/ECF - azd
Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela . (Molinario, Michele) (Entered: 06/15/2012)

06/18/2012

81 NOTICE re of Service of Def. 5th Supplemental Disclosure Statement by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez . (Molinario, Michele) (Entered: 06/18/2012)

06/18/2012

82 NOTICE re Service by Prison Legal News Plaintiff's Expert Disclosure and Third Supplemental Response. (Thompson, Blake) (Entered: 06/18/2012)

06/21/2012

83 ORDER. The Court met with the parties this afternoon on certain items of disputed discovery. After discussion with the parties, Plaintiff shall provide a privilege log indicating the privileged documents that it reviewed in reconstructing the ﬁnancial damages it seeks in this case. It has thirty days in which to do so. Defendant shall review and provide, in a redacted form if necessary, the County's communications with nonattorneys in which the County policy was discussed. If the Defendant believes that there is a deliberative process privilege in both state and federal law that would prevent such disclosure, it has until June 27 to ﬁle a three page document with the court to that effect. Plaintiff has until July 5 to ﬁle a three page response. Defendant need not research the two backup tapes for documents as requested by the Plaintiff. Signed by Judge G Murray Snow on June 21, 2012. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (GMS) (Entered: 06/21/2012)

07/02/2012

84 NOTICE re of Service by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela . (Molinario, Michele) (Entered: 07/02/2012)

07/06/2012

85 MOTION for Partial Summary Judgment, MOTION for Permanent Injunction, MOTION for Declaratory Judgment by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Galvan, Ernest) (Entered: 07/06/2012)

07/06/2012

86 MEMORANDUM of Points and Authorities in Support of 85 MOTION for Partial Summary Judgment MOTION for Permanent Injunction MOTION for Declaratory Judgment by Plaintiff Prison Legal News. (Galvan, Ernest) (Entered: 07/06/2012)

07/06/2012

87 STATEMENT of Undisputed Facts In Support of Plaintiff's Motion for Partial Summary Judgment by Plaintiff Prison Legal News. (Galvan, Ernest) (Entered: 07/06/2012)

07/06/2012

88 DECLARATION of Ernest Galvan re 85 MOTION for Partial Summary Judgment, MOTION for Permanent Injunction, MOTION for Declaratory Judgment by Plaintiff Prison Legal News. (Attachments: # 1 Exhibit Index and Exhibits A-J, # 2 Exhibit K, # 3 Exhibit L, # 4 Exhibits M-N, # 5 Exhibits O-Q, # 6 Exhibits R-S, # 7 Exhibits T-V, # 8 Exhibits W-CC, # 9 Exihibits DD-GG)(Galvan, Ernest) (Entered: 07/06/2012)

07/06/2012

89 DECLARATION of Paul Wright re 85 MOTION for Partial Summary Judgment MOTION for Permanent Injunction MOTION for Declaratory Judgment by Plaintiff Prison Legal News. (Attachments: # 1 Exhibit Index and Exhibits A-F)(Galvan, Ernest) (Entered: 07/06/2012)

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

17/28

11/2/2017

CM/ECF - azd

07/06/2012

90 NOTICE re of Service by Prison Legal News re 85 MOTION for Partial Summary Judgment MOTION for Permanent Injunction MOTION for Declaratory Judgment . (Galvan, Ernest) (Entered: 07/06/2012)

07/09/2012

91 NOTICE re Service of Defendants' Sixth Supplemental Disclosure Statement and Fourth and Fifth Supplemental Responses to Plaintiff's First Request for Production of Documents by Paul R Babeu, Pinal, County of . (Staton, Georgia) (Entered: 07/09/2012)

07/17/2012

92 REPORT of Joint Settlement Talks by Plaintiff Prison Legal News. (Galvan, Ernest) (Entered: 07/17/2012)

07/25/2012 93 NOTICE re Service by Prison Legal News . (Thompson, Blake) (Entered: 07/25/2012)

08/03/2012 94 NOTICE re Service by Prison Legal News . (Thompson, Blake) (Entered: 08/03/2012)

08/08/2012

95 STIPULATION re 85 MOTION for Partial Summary Judgment MOTION for Permanent Injunction MOTION for Declaratory Judgment, 86 Memorandum (Stipulation and Request for Extension of Time to File Summary Judgment Response and Reply) by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (GilBride, Eileen) (Entered: 08/08/2012)

08/08/2012

96 ORDER granting 95 Stipulation. Defendants' Response to the Motion for Partial Summary Judgment 85 is extended to and including, August 13, 2012. Plaintiff's Reply in support of its Motion for Partial Summary Judgment shall be due on or before September 10, 2012. Signed by Judge G Murray Snow on 8/8/2012. (KFZ) (Entered: 08/08/2012)

08/13/2012

97 *MOTION re: Request for Enlargement of Page Limit by Defendants Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 Text of Proposed Order)(GilBride, Eileen) *Modiﬁed to motion type on 8/14/2012 (TLJ). (Entered: 08/13/2012)

08/13/2012

98 *LODGED Proposed Defendants' Response to Plaintiff's Motion for Summary Judgment and Cross-Motion for Partial Summary Judgment re 97 . Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (GilBride, Eileen) *Modiﬁed to link to document on 8/14/2012 (TLJ). (Entered: 08/13/2012)

08/13/2012

99 *LODGED Proposed Defendants' Responses and Objections to Plaintiff's Statement of Facts and Defendants' Separate Statement of Facts re 97 . Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

18/28

11/2/2017
08/15/2012 08/15/2012 08/15/2012 08/15/2012 08/15/2012
08/15/2012 08/20/2012 09/07/2012

CM/ECF - azd
Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 Exhibit A-E, # 2 Exhibit F-K)(GilBride, Eileen) *Modiﬁed to link to document on 8/14/2012 (TLJ). (Entered: 08/13/2012)
100 ORDER granting 97 Defendants' Request for Enlargement of Page Limit. ORDER directing the Clerk of Court to ﬁle Defendants' lodged Response to Plaintiff's Motion for Partial Summary Judgment and Cross-Motion for Partial Summary Judgment 98 and Defendants' lodged Responses and Objections to Plaintiff's Statement of Facts and Separate Statement of Facts 99 . Signed by Judge G Murray Snow on 8/14/12.(TLJ) (Entered: 08/15/2012)
101 RESPONSE to Motion re 85 MOTION for Partial Summary Judgment by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Loretta Valdez, Jayme Valenzuela. (TLJ) (Entered: 08/15/2012)
102 Cross-Motion for Partial Summary Judgment by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda HensleySalisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Loretta Valdez, Jayme Valenzuela. (same pdf as doc. 101) (TLJ) (Entered: 08/15/2012)
103 RESPONSE and OBJECTION re 87 Statement by Defendants Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Loretta Valdez, Jayme Valenzuela. (TLJ) (Entered: 08/15/2012)
104 STATEMENT of Facts re 103 Response, 102 MOTION for Partial Summary Judgment, 101 Response to Motion for Partial Summary Judgment, by Defendants Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Loretta Valdez, Jayme Valenzuela. (same pdf as doc. 103) (TLJ) (Entered: 08/15/2012)
105 Additional Attachments to Main Document re 104 Statement by Defendants Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 attachment, # 2 attachment)(TLJ) (Entered: 08/15/2012)
106 NOTICE re Law Firm Name Change by Prison Legal News . (Attachments: # 1 Certiﬁcate of Service)(Thompson, Blake) (Entered: 08/20/2012)
107 NOTICE re of Service by Paul R Babeu, Pinal, County of (Notice of Service of Defendants' Expert Disclosure Statement). (Molinario, Michele) (Entered: 09/07/2012)

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

19/28

11/2/2017
09/10/2012 09/10/2012 09/10/2012
09/10/2012 09/10/2012
09/10/2012
09/10/2012
09/10/2012 09/11/2012 09/11/2012 09/11/2012 09/11/2012

CM/ECF - azd
108 NOTICE re Service by Prison Legal News . (Thompson, Blake) (Entered: 09/10/2012)
109 *MOTION for Leave to File Excess Pages by Plaintiff Prison Legal News. (Thompson, Blake) *Modiﬁed to correct event type on 9/11/2012 (LFIG). (Entered: 09/10/2012)
110 *LODGED Proposed Plaintiff's Reply in Support of 85 Motion for Partial Summary Judgment, Declaratory Judgment, and Permanent Injunction, and Plaintiff's Opposition to Defendants' 102 Cross-Motion for Partial Summary Judgment. Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Prison Legal News. (Thompson, Blake) *Modiﬁed to edit text on 9/11/2012 (LFIG). (Entered: 09/10/2012)
111 *LODGED Proposed Plaintiff's Response to Defendants' 104 Separate Statement of Facts. Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Prison Legal News. (Thompson, Blake) *Modiﬁed to edit linkage on 9/11/2012 (LFIG). (Entered: 09/10/2012)
112 LODGED Proposed Reply Declaration of Paul Wright In Support of Plaintiff's Motion for Partial Summary Judgment, Declaratory Judgment, and Permanent Injunction and In Opposition to Defendants' Motion for Partial Summary Judgment re: 102 MOTION for Partial Summary Judgment, 85 MOTION for Partial Summary Judgment MOTION for Permanent Injunction MOTION for Declaratory Judgment. Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Prison Legal News. (Thompson, Blake) (Entered: 09/10/2012)
113 LODGED Proposed Declaration of Zach Phillips in Support of Plaintiff's Reply on Motion for Partial Summary Judgment, Declaratory Judgment, and Permanent Injunction, and Plaintiff's Opposition to Defendants' Motion for Partial Summary Judgment re: 102 MOTION for Partial Summary Judgment, 85 MOTION for Partial Summary Judgment MOTION for Permanent Injunction MOTION for Declaratory Judgment. Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Prison Legal News. (Thompson, Blake) (Entered: 09/10/2012)
114 LODGED Proposed Reply Declaration of Ernest Galvan In Support of Plaintiff's Motion for Partial Summary Judgment, Declaratory Judgment, and Permanent Injunction and Plaintiff's Opposition to Defendants' Cross-Motion for Partial Summary Judgment re: 102 MOTION for Partial Summary Judgment, 85 MOTION for Partial Summary Judgment MOTION for Permanent Injunction MOTION for Declaratory Judgment. Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Prison Legal News. (Galvan, Ernest) (Entered: 09/10/2012)
115 CERTIFICATE OF SERVICE by Prison Legal News re 110 Lodged Proposed Document, 112 Lodged Proposed Document, 109 Request, 113 Lodged Proposed Document,, 114 Lodged Proposed Document, 111 Lodged Proposed Document, (Thompson, Blake) (Entered: 09/10/2012)
116 ORDER granting Plaintiff's 109 Request for Enlargement of Page Limit. IT IS FURTHER ORDERED directing the Clerk of Court to ﬁle Plaintiff's lodged Reply, Separate Statement of Facts and Declarations (Docs. 110 - 114 ). Signed by Judge G Murray Snow on 9/11/2012.(LFIG) (Entered: 09/11/2012)
117 REPLY to Response to Motion re 85 MOTION for Partial Summary Judgment, MOTION for Permanent Injunction, MOTION for Declaratory Judgment ﬁled by Prison Legal News. (LFIG) (Entered: 09/11/2012)
118 RESPONSE to Motion re 102 MOTION for Partial Summary Judgment (same PDF as Doc. 117 ) ﬁled by Prison Legal News. (LFIG) (Entered: 09/11/2012)
119 Plaintiff's RESPONSE to Defendants' 104 Separate Statement of Facts ﬁled by Prison

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

20/28

11/2/2017
09/11/2012 09/11/2012 09/11/2012 09/21/2012
09/24/2012 09/25/2012 10/08/2012 10/08/2012 10/08/2012
10/08/2012

CM/ECF - azd
Legal News. (LFIG) (Entered: 09/11/2012)
120 DECLARATION of Paul Wright re 118 Response to Motion for Partial Summary Judgment, 117 Reply to Response to Motion by Prison Legal News. (LFIG) (Entered: 09/11/2012)
121 DECLARATION of Zach Phillips re 118 Response to Motion for Partial Summary Judgment, 117 Reply to Response to Motion by Prison Legal News. (LFIG) (Entered: 09/11/2012)
122 DECLARATION of Ernest Galvan re 118 Response to Motion for Partial Summary Judgment, 117 Reply to Response to Motion by Prison Legal News. (LFIG) (Entered: 09/11/2012)
123 MOTION for Extension of Time to File Response/Reply as to 110 Lodged Proposed Document, 102 MOTION for Partial Summary Judgment ("Unopposed Request for Extension to File Reply in Support of Cross-Motion for Partial Summary Judgment") by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 Text of Proposed Order Proposed Order) (GilBride, Eileen) (Entered: 09/21/2012)
124 ORDER granting 123 Motion for Extension of Time to File Response/Reply. Defendants shall have to and including 10/9/12 in which to ﬁle a Reply in Support of its CrossMotion for Partial Summary Judgment 102 . Signed by Judge G Murray Snow on 9/24/12.(TLJ) (Entered: 09/24/2012)
125 *NOTICE of Service by Paul R Babeu, Pinal, County of. (Molinario, Michele) *Modiﬁed to remove non-ﬁlers on 9/26/2012* (REW). (Entered: 09/25/2012)
126 First MOTION for Extension of Time to Complete Discovery by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Thompson, Blake) (Entered: 10/08/2012)
127 NOTICE re Service by Prison Legal News re 126 First MOTION for Extension of Time to Complete Discovery . (Thompson, Blake) (Entered: 10/08/2012)
128 MOTION for Leave to File Excess Pages for Reply in Support of Cross-Motion for Partial Summary Judgment "Request for Enlargement of Page Limit" by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 Text of Proposed Order)(GilBride, Eileen) (Entered: 10/08/2012)
129 *LODGED Proposed Defendants' Reply in Support of Their Cross-Motion for Partial Summary Judgment re: 128 MOTION for Leave to File Excess Pages. Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez,

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

21/28

11/2/2017

CM/ECF - azd
Jayme Valenzuela. (GilBride, Eileen) *Modiﬁed to correct document number/link on 10/9/2012* (REW). (Entered: 10/08/2012)

10/08/2012

130 *LODGED Proposed Defendants' Supplemental Statement of Facts re: 128 MOTION for Leave to File Excess Pages. Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (GilBride, Eileen) *Modiﬁed to correct document number/link on 10/9/2012* (REW). (Entered: 10/08/2012)

10/11/2012

131 ORDER, denying the 126 Stipulation for Extension of Time to Complete Discovery; granting the 128 Motion for Leave to File Excess Pages and directing the Clerk to ﬁle the lodged Reply and Supplemental Statement of Facts. Signed by Judge G Murray Snow on 10/11/12.(REW) (Entered: 10/11/2012)

10/11/2012

132 REPLY to Response to Motion re 102 CROSS-MOTION for Partial Summary Judgment ﬁled by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Loretta Valdez, Jayme Valenzuela. (REW) (Entered: 10/11/2012)

10/11/2012

133 SUPPLEMENTAL STATEMENT OF FACTS re 132 Reply to Response to Motion, by Defendants Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Loretta Valdez, Jayme Valenzuela. (REW) (Entered: 10/11/2012)

10/12/2012 134 MOTION for Leave to File Surreply by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Galvan, Ernest) (Entered: 10/12/2012)

10/12/2012

135 LODGED Proposed Surreply in Response to Defendants' Reply on Cross-Motion for Summary Judgment re: 134 MOTION for Leave to File Surreply . Document to be ﬁled by Clerk if Motion to Leave to File or Amend is granted. Filed by Prison Legal News. (Galvan, Ernest) (Entered: 10/12/2012)

10/12/2012 136 NOTICE re Certiﬁcate of Service by Prison Legal News re 134 MOTION for Leave to File Surreply , 135 Lodged Proposed Document, . (Galvan, Ernest) (Entered: 10/12/2012)

10/15/2012

137 RESPONSE in Opposition re 134 MOTION for Leave to File Surreply ﬁled by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (GilBride, Eileen) (Entered: 10/15/2012)

10/16/2012

138 STIPULATION AND REQUEST FOR EXTENSION TO COMPLETE THE DEPOSITION OF PLAINTIFFS EXPERT JOHN CLARK by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda HensleySalisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

22/28

11/2/2017

CM/ECF - azd
McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 Text of Proposed Order)(Molinario, Michele) (Entered: 10/16/2012)

10/22/2012

139 ORDER granting the Parties' 138 Stipulation and extending the deadline to complete the deposition of Plaintiff's expert John Clark until 11/21/12Dat. Signed by Judge G Murray Snow on 10/22/12. (REW) (Entered: 10/22/2012)

10/22/2012 140 NOTICE re Service by Prison Legal News . (Thompson, Blake) (Entered: 10/22/2012)

11/05/2012

141 NOTICE of Deposition of JOHN CLARK (VIDEO CONFERENCE), ﬁled by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Molinario, Michele) (Entered: 11/05/2012)

03/05/2013 142 NOTICE re Service by Prison Legal News . (Thompson, Blake) (Entered: 03/05/2013)

03/20/2013

143 ORDER, PLN's Motion for Partial Summary Judgment, Permanent Injunction, and Declaratory Judgment 85 is granted in part, denied in part, and deferred in part; Defendants' Motion for Partial Summary Judgment 102 is granted in part, denied in part, and deferred in part; PLN's Motion to File a Surreply 134 is denied; Defendants shall supplement the record within 14 days of this Order with evidence on why each category of PLN material is currently allowed into the Jail under its current policy and any criteria on which such decisions were made; PLN shall then have 14 days to ﬁle any Response. Signed by Judge G Murray Snow on 3/19/13. (REW) (Entered: 03/20/2013)

04/02/2013

144 NOTICE re DEFENDANTS NOTICE OF SUPPLEMENTING THE RECORD IN COMPLIANCE WITH THE COURT ORDER DATED MARCH 20, 2013 [DOC. 143] by Paul R Babeu, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda HensleySalisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Loretta Valdez, Jayme Valenzuela . (Attachments: # 1 Exhibit) (Molinario, Michele) (Entered: 04/02/2013)

04/02/2013

145 MOTION for Reconsideration of March 20, 2013 Summary Judgment Order by Prison Legal News. (Attachments: # 1 Afﬁdavit of Ernest Galvan in Support of Plaintiff's Motion for Reconsideration of March 20, 2013 Summary Judgment Order)(Galvan, Ernest) (Entered: 04/02/2013)

04/05/2013 146 ORDER, Defendants shall respond to the 145 MOTION for Reconsideration within 14 days. Signed by Judge G Murray Snow on 4/4/13. (REW) (Entered: 04/05/2013)

04/12/2013

147 RESPONSE to Motion re 145 MOTION for Reconsideration of March 20, 2013 Summary Judgment Order ﬁled by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda Hensley-Salisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 Exhibit Exhibit A)(GilBride, Eileen) (Entered: 04/12/2013)

04/16/2013

148 NOTICE re Plaintiff's Record Supplement and Response to Defendants' Supplement in Compliance with the March 20, 2013 Summary Judgment Order by Prison Legal News . (Attachments: # 1 Afﬁdavit of Ernest Galvan in Support of Plaintiff's Record Supplement

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

23/28

11/2/2017

CM/ECF - azd
and Response to Defendants' Supplement in Compliance with the March 20, 2013 Summary Judgment Order, # 2 Afﬁdavit of John L. Clark in Support of Plaintiff's Record Supplement and Response to Defendants' Supplement in Compliance with the March 20, 2013 Summary Judgment Order, # 3 Afﬁdavit of Jody Holmes in Support of Plaintiff's Record Supplement and Response to Defendants' Supplement in Compliance with the March 20, 2013 Summary Judgment Order)(Galvan, Ernest) (Entered: 04/16/2013)

04/24/2013

149 MOTION to Strike 148 Notice, (Motion to Strike PLN'S "Record Supplement" and Contingent Motion for Leave to File Reply) by Leonard Arnold, Paul R Babeu, Erica Chavez, Tonya Delgado, Vernita Gant, Dalton Gay, Frances Hawkins, Laurenda HensleySalisberry, Gilbert Hoyos, Matthew Hull, Terry Johnson, John Johnston, Dena Kelly, James Kimble, David Linderholm, Amado Martinez, Cheryl McBirnie, Michele McNeely, Lauren McVicker, Ruben Montano, Pinal, County of, Alyssa Romero, Darren Rushing, Dennis Rushing, Unknown Parties, Loretta Valdez, Jayme Valenzuela. (Attachments: # 1 Text of Proposed Order)(GilBride, Eileen) (Entered: 04/24/2013)

05/01/2013

150 ORDER, PLN's Motion for Permanent Injunction 85 is denied; Defendants' Motion to Strike 149 is granted in part and denied in part as described in this order; PLN's Motion for Reconsideration 145 is denied ). Signed by Judge G Murray Snow on 5/1/13.(REW) (Entered: 05/01/2013)

05/02/2013

151 ORDER Setting Final Pretrial Conference set for 7/12/2013 at 09:00 AM in Courtroom 602, 401 West Washington Street, Phoenix, AZ 85003 before Judge G Murray Snow; Proposed Final Pretrial Order due by 6/21/2013 (see order for complete details). Signed by Judge G Murray Snow on 5/2/13. (REW) (Entered: 05/02/2013)

05/13/2013

152 NOTICE OF INTERLOCUTORY APPEAL to 9th Circuit, as to 150 Order on Motion for Reconsideration,, Order on Motion to Strike, by Prison Legal News. Filing fee received: $ 455.00, receipt number 0970-9123693. (Galvan, Ernest) Modiﬁed on 5/13/2013 (TLJ). (Entered: 05/13/2013)

05/13/2013 153 Representation Statement by Prison Legal News re: 152 Notice of Appeal . (Galvan, Ernest) (Entered: 05/13/2013)

05/13/2013 154 CERTIFICATE OF RECORD TRANSMITTED TO 9TH CIRCUIT COURT OF APPEALS re: 152 Notice of Interlocutory Appeal. (TLJ) (Entered: 05/13/2013)

05/14/2013 155 Ninth Circuit Court of Appeals Case Number 13-15965 for 152 Notice of Appeal. (TLJ) (Entered: 05/14/2013)

05/21/2013 156 TRANSCRIPT REQUEST by Prison Legal News. (Thompson, Blake) (Entered: 05/21/2013)

06/03/2013

157 In light of Plaintiff's Notice of Appeal, IT IS ORDERED that the Final Pretrial Conference, presently set for 7/12/13 at 9:00 a.m. before Judge Snow is VACATED. Ordered by Judge G Murray Snow. (ADG)(This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry.) (Entered: 06/03/2013)

10/04/2013 158 NOTICE OF ATTORNEY'S CHANGE OF ADDRESS/FIRM NAME by Lance Theodore Weber. (Weber, Lance) (Entered: 10/04/2013)

10/09/2013 159 *NOTICE of Substitutuion of Counsel re: Leslie C. Mehta by Prison Legal News. (Galvan, Ernest) *Modiﬁed from Notice on 10/10/2013* (REW). (Entered: 10/09/2013)

02/12/2014 160 NOTICE re: Dates of Unavailability for Trial by Prison Legal News . (Galvan, Ernest) (Entered: 02/12/2014)

02/18/2014 161 MANDATE of USCA: The ruling of the District Court is AFFIRMED re 13-15965, 152 Notice of Appeal. (Attachments: # 1 Memorandum, # 2 NDA) (Copies sent by the Ninth

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

24/28

11/2/2017

CM/ECF - azd
Circuit)(LFIG) (Entered: 02/19/2014)

02/20/2014

162 ORDER SETTING FINAL PRETRIAL CONFERENCE: Final Pretrial Conference is set for 5/9/2014 at 9:00 AM in Courtroom 602, 401 West Washington Street, Phoenix, AZ 85003 before Judge G Murray Snow. Proposed Pretrial Order due by 5:00 PM on 4/25/2014. (See attached order for details). Signed by Judge G Murray Snow on 2/19/2014. (KFZ) (Entered: 02/20/2014)

04/25/2014

163 NOTICE of Filing - Proposed Pretrial Order ﬁled by Prison Legal News Joint Submission Pursuant to Order of Feb. 20, 2014. (Attachments: # 1 Joint Proposed Pretrial Order, # 2 Exhibit List (Plaintiff and Defendants), # 3 Voir Dire Questions, # 4 Appendix Attach. A to Voir Dire--Written Questionnaire, # 5 Appendix Attach. B to Voir Dire--Master Witness List, # 6 Proposed Jury Instructions, # 7 Stipulated Description of Case)(Galvan, Ernest) Modiﬁed on 4/28/2014 (REW). (Entered: 04/25/2014)

04/25/2014

164 *Proposed Verdict Form by Paul R Babeu, Pinal, County of. (Attachments: # 1 Text of Proposed Order)(Molinario, Michele) *Modiﬁed from Notice on 4/28/2014* (REW). (Entered: 04/25/2014)

04/25/2014

165 MOTION in Limine to Allow Impeachment Evidence by Paul R Babeu, Pinal, County of. (Attachments: # 1 Exhibit A, # 2 Text of Proposed Order)(Molinario, Michele) (Entered: 04/25/2014)

04/25/2014

166 MOTION in Limine to Preclude Evidence That Other Organizations' Materials Were Rejected by Paul R Babeu, Pinal, County of. (Attachments: # 1 Text of Proposed Order) (Molinario, Michele) (Entered: 04/25/2014)

04/25/2014

167 MOTION in Limine Excluding Use of Exhibits Nos. 1-243 by Paul R Babeu, Pinal, County of. (Attachments: # 1 Text of Proposed Order 1 of 2, # 2 Text of Proposed Order 2 of 2)(Molinario, Michele) (Entered: 04/25/2014)

04/25/2014 168 TRIAL BRIEF by Paul R Babeu, Ruben Montano, Pinal, County of. (Attachments: # 1 Exhibit)(Staton, Georgia) (Entered: 04/25/2014)

04/25/2014

169 MOTION in Limine to Preclude Certain Items of Damage by Paul R Babeu, Pinal, County of. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Text of Proposed Order)(Molinario, Michele) (Entered: 04/25/2014)

04/25/2014

170 *PROPOSED Verdict Form by Prison Legal News. (Attachments: # 1 Proposed Verdict Form)(Galvan, Ernest) *Modiﬁed from Notice on 4/28/2014* (REW). (Entered: 04/25/2014)

04/25/2014 171 MOTION in Limine re: Exclude Evidence of Outside Audits of Jail by Prison Legal News. (Galvan, Ernest) (Entered: 04/25/2014)

04/25/2014 172 MOTION in Limine re: Exclude Evidence of Mitigation of Damages by Prison Legal News. (Galvan, Ernest) (Entered: 04/25/2014)

04/25/2014 173 MOTION in Limine re: Exclude Evidence re Any Good Faith Defense by Prison Legal News. (Galvan, Ernest) (Entered: 04/25/2014)

04/25/2014

174 *DECLARATION of Ernest Galvan re: 171 , 172 , 173 ISO Plaintiff's Motions in Limine by Plaintiff Prison Legal News. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Galvan, Ernest) *Modiﬁed to add document numbers/links on 4/28/2014* (REW). (Entered: 04/25/2014)

04/29/2014 175 NOTICE of Attorney Withdrawal Kenneth Walczak ﬁled by Blake Thompson. (Thompson, Blake) (Entered: 04/29/2014)

05/02/2014 176 MOTION for Leave to File Excess Pages for Plaintiff's Opposition to Defendants' Motion

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

25/28

11/2/2017
05/02/2014 05/02/2014 05/02/2014
05/02/2014 05/02/2014 05/02/2014 05/02/2014 05/06/2014 05/06/2014 05/06/2014 05/09/2014

CM/ECF - azd
in Limine to Preclude Certain Items of Damages by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Galvan, Ernest) (Entered: 05/02/2014)
177 RESPONSE to Motion re: 171 MOTION in Limine re: Exclude Evidence of Outside Audits of Jail Defendants' Response to Plaintiff's Motion in Limine #1 - Regarding Jail Audits ﬁled by Paul R Babeu, Pinal, County of. (Molinario, Michele) (Entered: 05/02/2014)
178 RESPONSE to Motion re: 172 MOTION in Limine re: Exclude Evidence of Mitigation of Damages Defendants' Response to Plaintiff's Motion in Limine #2 - Re Exhaustion of Administrative Remedies and/or Mitigation of Damages ﬁled by Paul R Babeu, Pinal, County of. (Attachments: # 1 Exhibit 1)(Molinario, Michele) (Entered: 05/02/2014)
179 FILED at Doc. 185 LODGED Proposed Plaintiff's Opposition to Defendants' Motion in Limine to Preclude Certain Items of Damages re: 176 MOTION for Leave to File Excess Pages for Plaintiff's Opposition to Defendants' Motion in Limine to Preclude Certain Items of Damages . Document to be ﬁled by Clerk if Motion or Stipulation for Leave to File or Amend is granted. Filed by Prison Legal News. (Attachments: # 1 Afﬁdavit of Paul Wright in Support of Plaintiff's Opposition to Defendants' Motion in Limine to Preclude Certain Items of Damages, # 2 Afﬁdavit of Alan Ellis in Support of Plaintiff's Opposition to Defendants' Motion in Limine to Preclude Certain Items of Damages, # 3 Afﬁdavit of Laura Rovner in Support of Plaintiff's Opposition to Defendants' Motion in Limine to Preclude Certain Items of Damages, # 4 Text of Proposed Order)(Galvan, Ernest) Modiﬁed on 5/6/2014 (LFIG). (Entered: 05/02/2014)
180 RESPONSE to Motion re: 173 MOTION in Limine re: Exclude Evidence re Any Good Faith Defense Defendants' Response to Plaintiff's Motion in Limine #3 - Re The "Deliberate Indifference" Standard Under Section 1983 ﬁled by Paul R Babeu, Pinal, County of. (Molinario, Michele) (Entered: 05/02/2014)
181 RESPONSE in Opposition re: 167 MOTION in Limine Excluding Use of Exhibits Nos. 1243 ﬁled by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Galvan, Ernest) (Entered: 05/02/2014)
182 RESPONSE in Opposition re: 166 MOTION in Limine to Preclude Evidence That Other Organizations' Materials Were Rejected ﬁled by Prison Legal News. (Attachments: # 1 Text of Proposed Order)(Galvan, Ernest) (Entered: 05/02/2014)
183 RESPONSE in Opposition re: 165 MOTION in Limine to Allow Impeachment Evidence ﬁled by Prison Legal News. (Attachments: # 1 Afﬁdavit of Paul Wright in Support of Plaintiff's Opposition to Defendants' Motion in Limine to Allow Impeachment Evidence, # 2 Text of Proposed Order)(Galvan, Ernest) (Entered: 05/02/2014)
184 ORDER granting Plaintiff's 176 Motion to Exceed Page Limit. ORDERED directing the Clerk of Court to ﬁle the lodged Response/Opposition to Defendant's Motion in Limine to Preclude Certain Items of Damages. Signed by Judge G Murray Snow on 5/6/2014. (LFIG) (Entered: 05/06/2014)
185 RESPONSE in Opposition re: 169 MOTION in Limine to Preclude Certain Items of Damage ﬁled by Prison Legal News. (Attachments: # 1 Declaration of Paul Wright, # 2 Declaration of Alan Ellis, # 3 Declaration of Laura Rovner, # 4 Proposed Order)(LFIG) (Entered: 05/06/2014)
186 TRIAL BRIEF by Prison Legal News. (Attachments: # 1 Exhibit Exhibits A-H)(Galvan, Ernest) (Entered: 05/06/2014)
187 MINUTE ENTRY for proceedings held before Judge G Murray Snow. Final Pretrial Conference held on 5/9/2014. Order to follow.

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

26/28

11/2/2017

CM/ECF - azd

05/09/2014
05/09/2014 05/09/2014 05/12/2014 05/12/2014 05/12/2014 06/04/2014
07/01/2014
07/25/2014 07/28/2014 07/30/2014

APPEARANCES: Ernest Galvan and Daniel Pochoda for Plaintiff. Michele Molinario for Defendants. (Court Reporter Merilyn Sanchez.) Hearing held 9:09 AM to 10:06 AM. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (KFZ) (Entered: 05/09/2014)
188 ORDER: Trial shall begin on November 18, 2014 at 9:00 AM in Courtroom 602, 401 West Washington Street, Phoenix, AZ 85003 before Judge G Murray Snow. A Final Pretrial Conference shall be held on November 7, 2014 at 9:00 AM before Judge G Murray Snow. Plaintiff's 171 MOTION in Limine is denied without prejudice to reasserting its substance at trial. Plaintiff's 172 MOTION in Limine is granted. Plaintiff's 173 MOTION in Limine is denied without prejudice. Defendants' 165 MOTION in Limine is denied. Defendants' 166 MOTION in Limine, 167 MOTION in Limine are denied without prejudice. Defendants' 169 MOTION in Limine is granted in part and denied in part without prejudice. Signed by Judge G Murray Snow on 5/9/2014. (See Order for details.)(LFIG) (Entered: 05/09/2014)
189 FINAL PRETRIAL ORDER. Signed by Judge G Murray Snow on 5/9/2014. (LFIG) (Entered: 05/09/2014)
190 TRANSCRIPT REQUEST Final Pretrial Conference by Prison Legal News for proceedings held on 5/9/2014, Judge G Murray Snow hearing judge(s). (Galvan, Ernest) (Entered: 05/09/2014)
191 TRANSCRIPT REQUEST of Final Pretrial Conference by Pinal, County of for proceedings held on May 9, 2014, Judge G Murray Snow hearing judge(s). (Staton, Georgia) (Entered: 05/12/2014)
192 TRANSCRIPT REQUEST by Paul R Babeu, Pinal, County of for proceedings held on 5/9/2014, Judge G Murray Snow hearing judge(s). (Molinario, Michele) Cancelled by doc 193 Modiﬁed on 5/12/2014 (VPB). (Entered: 05/12/2014)
193 NOTICE of Errata re: 192 Transcript Request for proceedings held on 5/9/2014 by Defendants Paul R Babeu, Pinal, County of.. (Molinario, Michele) (Entered: 05/12/2014)
194 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Pretrial Conference Proceedings held on 5/9/2014, before Judge Snow. Court Reporter Merilyn Sanchez. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber by ﬁling a Transcript Order Form on the docket before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 6/25/2014. Redacted Transcript Deadline set for 7/7/2014. Release of Transcript Restriction set for 9/2/2014. (VPB) (Entered: 06/10/2014)
195 Minute Order: NOTICE OF REASSIGNMENT. This matter is reassigned to Judge Diane J Humetewa for all further proceedings. All documents ﬁled in this action should bear the initials DJH as part of the complete case number (see revised case number above). All pending deadlines and hearings are AFFIRMED unless reset by separate order. This is a TEXT ENTRY ONLY. There is no PDF document associated with this entry. (MAP) (Entered: 07/01/2014)
196 MOTION to Reassign Case by Pinal, County of. (Attachments: # 1 Text of Proposed Order)(Staton, Georgia) (Entered: 07/25/2014)
197 RESPONSE in Opposition re: 196 MOTION to Reassign Case ﬁled by Prison Legal News. (Galvan, Ernest) (Entered: 07/28/2014)
198 ORDER denying 196 Motion to Reassign Case. Signed by Judge Diane J Humetewa on 7/30/2014.(VPB) (Entered: 07/30/2014)

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

27/28

11/2/2017
09/18/2014 09/19/2014 09/23/2014
09/23/2014
10/01/2014 12/15/2014 12/16/2014

CM/ECF - azd
199 STIPULATION for Entry of Judgment for Nominal Damages by Prison Legal News. (Attachments: # 1 Text of Proposed Order, # 2 Proposed Judgment)(Galvan, Ernest) (Entered: 09/18/2014)
200 STIPULATION for Entry of Judgment for Nominal Damages - Amended by Prison Legal News. (Attachments: # 1 Text of Proposed Order, # 2 Proposed Judgment)(Galvan, Ernest) (Entered: 09/19/2014)
201 ORDER, granting the Parties' 200 Amended Stipulation; the trial date in this matter is vacated and the case shall be closed; the Court, however, will retain jurisdiction over this matter until the Parties' claims for attorneys' fees and costs are resolved; Defendants Terry Johnson, Jayme Valenzuela, David Linderholm, Ruben Montano, Loretta Valdez, Dalton Gay, Erica Chavez, Dena Kelly, Amado Martinez, Frances Hawkins, Matthew Hull, Dennis Rushing, Vernita Gant, Michele McNeely, John Johnston, Lauren McVicker, Gilbert Hoyos and Leonard Arnold are hereby dismissed with prejudice; the time for ﬁling requests for taxable costs and/or attorneys' fees and costs in this matter is extended to 90 days after entry of judgment. Signed by Judge Diane J Humetewa on 9/23/14. (REW) (Entered: 09/23/2014)
202 JUDGMENT, Plaintiff Prison Legal News is hereby awarded judgment for nominal damages against Defendants Pinal County, Paul Babeu (in his ofﬁcial capacity), James Kimble (in his ofﬁcial capacity), Darrin Rushing, Tonya Delgado, Alyssa Romero, Laurenda Hensley-Salisberry, Cheryl McBirnie, jointly and severally, in the amount of $243.00, plus post-judgment interest from the date of entry of this judgment, established by 28 U.S.C §1961. Signed by Judge Diane J Humetewa on 9/23/14. (REW) (Entered: 09/23/2014)
203 SATISFACTION OF JUDGMENT by Prison Legal News. (Galvan, Ernest) (Entered: 10/01/2014)
204 STIPULATION of Dismissal With Prejudice by Pinal, County of. (Attachments: # 1 Text of Proposed Order)(Staton, Georgia) (Entered: 12/15/2014)
205 ORDER, the Parties' Stipulation for Dismissal with Prejudice 204 is granted; this action is dismissed with prejudice. Signed by Judge Diane J Humetewa on 12/16/14. (REW) (Entered: 12/16/2014)

PACER Service Center
Transaction Receipt

11/02/2017 18:28:19

PACER Login:

hs0328:2563377:0 Client Code:

Description: Docket Report

Search Criteria:

Billable Pages: 27

Cost:

2:11-cv-01761DJH
2.70

https://ecf.azd.uscourts.gov/cgi-bin/DktRpt.pl?103784065000341-L_1_0-1

28/28

 
 Prison Legal News v. Babeu, 552 Fed.Appx. 747 (2014)

552 Fed.Appx. 747 (Mem) This case was not selected for publication in the
Federal Reporter. Not for Publication in West’s Federal Reporter See
Fed. Rule of Appellate Procedure 32.1 generally governing citation of judicial decisions issued on or after Jan. 1, 2007. See also Ninth Circuit Rule 36-3.
(Find CTA9 Rule 36-3) United States Court of Appeals,
Ninth Circuit.
PRISON LEGAL NEWS, a project of the Human Rights Defense Center, Plaintiff–Appellant, v.
Paul R. BABEU, individually and in his official capacity as Sheriff of Pinal County, Arizona; Pinal
County, Arizona; Tonya Delgado, Sgt., in her individual and official capacities; Alyssa Romero; Laurenda Hensley–Salisberry; Cheryl McBirnie;
John Johnston; Lauren McVicker, Detention Aides, in their individual capacities; Loretta Valdez; Dalton Gay; Erica Chavez; Dena Kelly, in their individual capacities; Amado Martinez, Sgt., in his individual and official capacities; Leonard
Arnold, Sgt., in his individual and official capacities; David Linderholm, Training Specialist,
in his individual and official capacities; Frances Hawkins, Lt., in her individual and official
capacities; Dennis Rushing; Matthew Hull, Lt., in his individual and official capacities; Darren Rushing, Lt., in his individual and official
capacities; Vernita Gant, Lt., in her individual and official capacities; Michele McNeely, Lt., in her individual and official capacities; Gilbert Hoyos, Lt., in his individual and official capacities; Terry Johnson, Captain, in his individual and official capacities; Jayme Valenzuela, Captain, in his
individual and official capacities; Ruben Montano, Captain, in his individual and official capacities; James Kimble, Deputy Chief, in his individual and official capacities, Defendants–Appellees.
No. 13–15965. | Argued and Submitted Jan. 13, 2014. | Filed Jan. 22, 2014.
Attorneys and Law Firms
	  

Ernest Galvan, Blake Thompson, Rosen Bien Galvan & Grunfeld, LLP, San Francisco, CA, Dan Pochoda, ACLU of Arizona, Phoenix, AZ, Lance Weber, West Brattleboro, VT, for Plaintiff–Appellant.
Eileen Dennis Gilbride, Esquire, Michele Molinario, Georgia Ann Staton, Esquire, Jones, Skelton & Hochuli, P.L.C., Phoenix, AZ, for Defendants–Appellees.
Appeal from the United States District Court for the District of Arizona, G. Murray Snow, District Judge, Presiding. D.C. No. 2:11–cv–01761–GMS.
*748 Before: ALARCÓN, TALLMAN, and IKUTA, Circuit Judges.

MEMORANDUM*

*

This disposition is not appropriate for publication and is

not precedent except as provided by Ninth Cir. R. 36–3.

Prison Legal News appeals the district court’s denial of its motion for a permanent injunction against the defendants, who operate the Pinal County Jail. Jurisdiction lies under 28 U.S.C. § 1292(a)(1) and we review for abuse of discretion. Cummings v. Connell, 316 F.3d 886, 897 (9th Cir.2003). Finding none, we affirm.
“Perhaps the most significant single component in the judicial decision whether to exercise equity jurisdiction and grant permanent injunctive relief is the court’s discretion.” Charles Alan Wright et al., 11A Fed. Pract. & Proc. § 2942 & n. 3 (2d ed.2013) (collecting cases). Here, the district court took the extraordinarily cautious step of seeking additional briefing and evidence on the motion before concluding that a permanent injunction was unnecessary. In light this attention and the extraordinary deference we must show, we cannot find an abuse of discretion here.
AFFIRMED.
	  

	  

1