IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION

PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
v.
JAMES “J.J.” JONES, Sheriff of Knox County, Tennessee, in his official and individual capacities; RODNEY BIVENS, Assistant Chief Deputy of the Knox County Sheriff’s Office, in his official and individual capacities; and KNOX COUNTY, TENNESSEE,
Defendants.

Case No.: _____________ JURY DEMAND

___________________________________________________________________________________

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF AND FOR DAMAGES

COMES NOW Plaintiff Prison Legal News, a project of the Human Rights Defense Center, by and through undersigned counsel, and states as follows for its Complaint:
1. Plaintiff PRISON LEGAL NEWS (“PLN”), a project of the HUMAN RIGHTS DEFENSE CENTER (“HRDC”), brings this action to enjoin Defendants from censoring mail sent to prisoners at the Rodger D. Wilson Detention Facility, the Knox County Jail, and the Knox County Work Release Center (collectively, the “Knox County Jail” or the “Jail”) from PLN and other senders, in violation of the First Amendment and the Fourteenth Amendment’s Due Process Clause. Defendants have adopted and implemented written mail policies and practices prohibiting delivery of mail from Plaintiff and other senders while also depriving them of due process notice and an opportunity to
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challenge the censorship, and denying senders equal protection as required under the U.S. Constitution. JURISDICTION AND VENUE
2. This action arises under the First and Fourteenth Amendments to the United States Constitution. This Court has jurisdiction over this action under 28 U.S.C. §§ 1331 and 1343, and additionally under 28 U.S.C. § 2201 and 2202.
3. Venue is proper in the Eastern District of Tennessee under 28 U.S.C. § 1391(b)(2) because a substantial part of the events complained of occurred in this District, and because the Defendants reside in this District. Venue is also proper in the Knoxville Division of this Court, as a substantial part of the events complained of occurred in Knox County.
4. Plaintiff’s claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges, and immunities secured to the Plaintiff by the First and Fourteenth Amendments to the U.S. Constitution and the laws of the United States.
5. This Court has jurisdiction over claims seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure, as well as nominal and compensatory damages, against all Defendants.
6. Plaintiff’s claim for attorneys’ fees and costs is predicated upon 42 U.S.C. § 1988, which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983.
7. Plaintiff is informed, believes, and based thereon alleges that the individual Defendants acted as described herein with the intent to injure, vex, annoy, and harass Plaintiff, and subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights with the intention of causing Plaintiff injury and depriving it of its constitutional rights.
8. As a result of the foregoing, Plaintiff seeks compensatory and punitive damages against 2
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the individual Defendants in their individual capacities and against Knox County, Tennessee. PARTIES
9. Plaintiff is a Washington nonprofit corporation and a nonprofit organization under 26 U.S.C. § 501(c)(3). The core of HRDC’s mission is public education, prisoner education, advocacy, and outreach in support of the rights of prisoners and in furtherance of basic human rights. PLN publishes and distributes a monthly 72-page journal of corrections news and analysis, Prison Legal News, as well as certain books about the criminal justice system and legal issues affecting prisoners to prisoners, lawyers, courts, libraries, and the public throughout the country. Prison Legal News has been published continuously since 1990 and has thousands of subscribers nationwide at more than 2,600 correctional facilities across the country, including subscribers in all 50 states. PLN also maintains a website (www.prisonlegalnews.org) and operates an email list. Prisoners of all types, family and friends of prisoners, prisoner advocates, lawyers, and scholars are among the intended beneficiaries of PLN’s activities. Prisoners account for approximately 65% of Prison Legal News’s subscribers. The headquarters, business office, and editorial office of HRDC and PLN are located in Lake Worth, Florida.
10. Defendant JAMES “J.J.” JONES, also known as JIMMY JONES, is, and has been at all times relevant to this litigation, the Sheriff of Knox County, Tennessee. As the final policymaker for the Knox County Sheriff’s Office, Defendant Jones establishes, maintains, and enforces the Knox County Jail’s policies and procedures and is responsible for the Jail’s operations and training and supervision of jail staff who interpret jail mail policies. Defendant Jones is the final policymaker for the Rodger D. Wilson Detention Facility, the Knox County Jail and Work Release Center and for the Knox County Sheriff’s Office. Defendant James “J.J.” Jones is sued in his official and individual capacities.
11. On information and belief, Defendant RODNEY BIVENS is, and has been at all times relevant to this litigation, the Assistant Chief Deputy of the Knox County Sheriff’s Office. As a policymaker for the Knox County Sheriff’s Office, Defendant Bivens is responsible for corrections and
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personnel for Defendant Sheriff Jones and the Sheriff’s Office. Defendant Bivens signed the jail mail policy at issue, Policy 12.2. Defendant Bivens is subject to the supervision, instruction, direction, and training of Defendant Jones and Defendant Knox County, Tennessee. Defendant Rodney Bivens is sued in his official and individual capacities.
12. Defendant KNOX COUNTY, TENNESSEE is a municipality formed under the laws of the State of Tennessee. The Knox County Sheriff’s Office is a municipal agency or department of Defendant Knox County, Tennessee, and operates the Jail in Knox County, Tennessee. The official jail mail policies at issue in this case were the moving force behind the constitutional violations alleged herein. On information and belief, the Knox County Jail facilities house convicted prisoners, pretrial detainees, and federal detainees.
13. All of Defendants’ acts and omissions alleged herein were taken under color of state law and within the scope of their official duties as employees and officers of Knox County and the Knox County Sheriff’s Office and violated PLN’s clearly established constitutional rights. Defendants Knox County and Jones established, maintained, and enforced the policies at issue in this action, which Defendant Bivens implemented and all of them continue to do so to this day.
14. All Defendants are Tennessee residents. FACTUAL ALLEGATIONS
A. Prison Legal News and the Human Rights Defense Center 15. PLN publishes and distributes a soft-cover monthly journal titled Prison Legal News:
Dedicated to Protecting Human Rights, which contains news and analysis about prisons, jails and other detention facilities, prisoners’ rights, judicial decisions, management of prison facilities, prison conditions, and other matters pertaining to the rights and/or interests of incarcerated individuals.
16. PLN has thousands of subscribers in the United States and abroad, including prisoners, attorneys, journalists, public libraries, judges, and members of the general public. PLN distributes its
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monthly publication to prisoners and law librarians in more than 2,600 correctional facilities located across all 50 states, including the Federal Bureau of Prisons and the Tennessee Department of Correction. Plaintiff’s publications are regularly distributed to prisoners on death row units and “supermax” prisons, including the federal Administrative Maximum Facility (also called the “ADX” or “ADMAX”) at Florence, Colorado—the most secure prison in the United States, which houses many high-security federal prisoners, such as Richard Reid (“the shoe bomber”), Zacarias Moussaoui (al-Qaeda), Dzhokhar Tsarnaev (Boston Marathon bombing), Theodore Kaczynski (the Unabomber), Terry Nichols (Oklahoma City bombing), and others.
17. PLN also distributes approximately 50 different books about the criminal justice system, legal reference books, and self-help books of interest to prisoners. These books are designed to foster a better understanding of criminal justice policies and to allow prisoners to educate themselves about related issues, such as legal research, how to write a business letter, health care issues, and similar topics.
18. PLN’s purpose, as stated in HRDC’s Articles of Incorporation, Article III, Part 6, is to educate prisoners and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society.
19. PLN engages in core protected speech and expressive conduct on matters of public concern, such as the operation of prison facilities, prison conditions, prisoner health and safety, and prisoners’ rights. Plaintiff’s monthly journal, as described above, contains political speech and social commentary, which are at the core of First Amendment values and are entitled to the highest protection afforded by the U.S. Constitution.
20. For more than 25 years, the core of PLN’s mission has been public education, advocacy and outreach on behalf of, and for the purpose of, assisting prisoners seeking legal redress for infringements of their constitutionally guaranteed and other basic human rights. PLN’s mission, if realized, has a salutary effect on public safety.
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21. From November 2014 to present, Defendants have refused to deliver every journal, every piece of enveloped mail, every book, and every brochure that Plaintiff has sent to detainees at the Jail. To date, the Knox County Jail has censored at least one-hundred and forty-seven (147) items of mail sent by Plaintiff to individually addressed prisoners. B. Censorship, Equal Protection and Lack of Due Process
22. Defendants’ unconstitutional mail policy, practices, and customs are ongoing, continue to violate PLN’s rights, and were and are the moving force behind the injuries Plaintiff suffered as a direct result of the constitutional violations. As such, PLN has no adequate remedy at law.
23. Due to Defendants’ actions, Plaintiff has suffered damages, and will continue to suffer damages, including, but not limited to: the suppression of Plaintiff’s speech; the impediment of Plaintiff’s ability to disseminate its political message; frustration of Plaintiff’s non-profit organizational mission; the diversion of Plaintiff’s resources; the loss of potential subscribers and customers; and the inability to recruit new subscribers and supporters, among other damages.
24. The accommodation of the free speech, expression, equal protection, and due process rights of Plaintiff with respect to written speech protected by the Constitution will not have any significant impact on the Jail, its staff, or prisoners.
25. Defendants’ actions and inactions were and are motivated by ill motive and intent, and were and are all committed under color of law with reckless indifference to PLN’s rights.
26. Defendants, and other agents of the Jail, are responsible for or personally participated in creating and implementing these unconstitutional policies, practices, and customs, or for ratifying or adopting them. Further, Defendants are responsible for training and supervising the staff persons whose conduct has injured and continues to injure PLN.
27. PLN is entitled to declaratory relief as well as injunctive relief prohibiting Defendants from refusing to deliver publications and correspondence from plaintiff and other senders without any
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legal justification, and prohibiting Defendants from censoring mail without due process of law. Censorship of Prison Legal News
28. From November 2014 to the present, Plaintiff sent individually addressed copies of its eponymous journal to prisoners at the Knox County Jail on at least one-hundred and eleven (111) occasions via U.S. Mail. Defendants and their agents failed to deliver the journal to the prisoneraddressees, and did not provide any notice to Plaintiff of the censorship and/or the reason, if any, for the censorship. Defendants also failed to provide PLN with the means or opportunity to appeal the censorship.
29. On information and belief, Defendants allow periodical publications other than Prison Legal News to be delivered to prisoners at the Knox County Jail.
30. Plaintiff will continue to mail copies of Prison Legal News to subscribers at the Jail. 31. There is no legitimate penological reason for censorship of PLN’s monthly journal.
Censorship of Books 32. PLN is also a book publisher and distributor, specializing in books and materials regarding prisoners’ rights and issues related to the criminal justice and corrections systems. PLN distributes approximately 50 softcover legal and self-help books, some published by Plaintiff and some by other publishers. For some of the books published by others, PLN is the publisher’s exclusive distributor and the books are not available through any other source. These books foster in readers a better understanding of criminal justice policies and allow prisoners to educate themselves about related, practical issues, such as legal research, writing business or employment-related letters, health care, and similar topics. 33. Defendants’ jail mail restrictions have effectively prevented PLN from sending books, such as The Habeas Citebook: Ineffective Assistance of Counsel (ISBN 978-0981938516) (“The Habeas Citebook”), a paperback publication by Brandon Sample. The Habeas Citebook assists prisoners with the procedural and substantive complexities of federal habeas corpus litigation and ineffective assistance
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of counsel claims. The Habeas Citebook is regularly delivered to prisoners across the country, including prisoners housed at the Federal Correctional Institution in Memphis, Tennessee, and county jails across the nation.
34. On information and belief, Defendants have failed and refused to deliver individually addressed copies of The Habeas Citebook to prisoners at the Jail on at least twelve (12) separate occasions since November 2014. Neither Defendants nor their employees or agents provided PLN with any due process notice or an opportunity to appeal.
35. Defendants’ censorship decisions, which were made pursuant to Defendants’ policy, practice, and custom, deprive prisoners of valuable information they need to navigate the legal system, understand their constitutional rights, and further their education via PLN’s guide to correspondence learning programs or PLN’s book about effective writing skills—all of which help prisoners prepare themselves for a productive life beyond bars. Defendants’ censorship also frustrates PLN’s mission, interferes with its constitutional rights, is causing a diversion of resources, and other direct and consequential harms.
36. Plaintiff will continue to mail copies of The Habeas Citebook and other books to subscribers at the Jail.
37. There is no legitimate penological reason for censorship of The Habeas Citebook. Censorship of 2014 Fundraiser
38. Each year, PLN sends out its annual Fundraiser to all its subscribers. The 2014 Fundraiser was mailed to all PLN subscribers in November 2014, including those at the Jail.
39. On information and belief, twelve (12) individually addressed copies of PLN’s 2014 Fundraiser were not delivered to prisoner subscribers at the Jail.
40. Defendants failed to provide PLN with constitutionally adequate due process notice of the censorship or a meaningful opportunity to appeal.
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41. There is no legitimate penological reason for censorship of PLN’s annual Fundraiser. 42. PLN will continue to mail its annual Fundraiser to subscribers imprisoned at the Jail.
Censorship of Informational Brochure Packets 43. Since November 2014, Plaintiff has sent certain prisoners at the Knox County Jail an informational brochure packet about its organization and publications. These informational brochure packets included three one-page items: (1) a brochure about PLN with a subscription order form; (2) a PLN book list; and (3) a published books brochure. PLN sent these brochures directly to individually named prisoners, some of whom requested information about PLN and others identified by PLN as potential subscribers. 44. Plaintiff individually addressed these packets and mailed them via first-class U.S. mail by placing them in plain, white, standard No. 10 envelopes. 45. PLN’s informational brochure packets do not fit on a postcard, and therefore, pursuant to Knox County’s policy, practice, and custom as discussed infra, Defendants refused to deliver these items on twelve (12) separate occasions. 46. Defendants failed to provide Plaintiff with any due process notice or opportunity to appeal their censorship decisions. 47. There is no legitimate penological reason for censorship of PLN’s informational brochure packets. 48. PLN will continue to mail its informational brochure packets to subscribers imprisoned at the Jail. C. Defendants’ Unconstitutional Censorship Policies and Practices 49. Defendants have a formal and informal “postcard-only” policy, which requires all incoming mail addressed to prisoners at the Knox County Jail, with the exception of legal mail, to be in the form of a “standard” postcard.
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50. The Jail’s written policy on inmate mail bans all “personal mail,” which includes books
and publications that do not fit onto a postcard.
51. Knox County Sheriff’s Office Policy 12.2 (attached hereto) provides, in pertinent part:
II. Definitions
Personal Mail: All personal mail will be a standard postcard with printed postage “no physical stamps”, white in color front and back and not to exceed standard measurements. Postcards will be purchased from the Commissary. All personal mail will be inspected for contraband.
. . .
Correspondence: Communication to or from inmates through postcards. . . .
III. Procedures . . .
H. Delivery Mail. . . .
5. Inmates housed in the Special Management Units of the facility will be allowed to write and receive postcards on the same basis as inmates in the general population. . . .
K. Publications/ /Books [sic]
1. If an inmate cannot find the book they [sic] desire to read, then inmates will be allowed to have publications sent to them through the mail from the publisher while incarcerated in any Knox County Sheriff’s Corrections Facilities. These publications cannot be hardback and has [sic] to meet all criteria of the facility. All such documents must be approved by the Facility Commander or his/her designee.
2. Various publications and books are available to inmates in the facility library.
3. Books may be received through the mail from private donors/sources to the Library Unit and will be coordinated by the Programs Manager under the following provisions: i. No hardbacks allowed ii. Dimensions of the book will be no larger than 6 inch by 9 inch iii. No obscene, offensive or questionable material and/or subject matter
deemed to be a security or threat issue iv. Subject to approval by the mailroom and the library staff v. Mailroom will keep a log of books that have been accepted and data of
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acceptance vi. Only two books allowed in an inmate’s possession/cell at a time
. . .
NOTE: It is understood and agreed to by the inmate, that once he/she has read the book, it will be placed in their property or they can donate the book(s) to the Knox County Sheriff’s Office Correctional Facility Library Unit.
NOTE: Photo copied material from publications will be considered to be originals and not allowed. . . .
If an inmate or a group of inmates desires a certain publication that is not available in the facility library, a written request may be submitted to the Facility Commander for approval.
. . .
M. Delivery of Mail . . .
4. Inmates may only keep ten (10) postcards in their cell at any given time. All other correspondence will be removed from the housing area and placed in the inmate’s property (whereupon, the property may then be released by the inmate to a family member or friend). . . .
N. Specific Restrictions . . .
2. No internet printed material will be accepted without the approval of the Facility Commander or his/her designee.
52. The policy is devoid of any due-process protections for senders, such as the requirement
that the sender receive notice and a meaningful opportunity to challenge the Jail’s censorship decisions.
53. Defendant Bivens signed the policy and also ensured that the policy was implemented by
Jail staff persons in the course and scope of his official duties as senior leadership over the corrections
operations of the Knox County Sheriff’s Office.
54. The policy on books and other “publications” requires the approval of a high-ranking
officer within the Knox County Sheriff’s Office, a requirement not applicable to other kinds of mail,
such as postcards. Moreover, under the policy, prisoners—not publishers—must directly request
permission to receive a certain book or “publication” from the facility’s commander (or designee), but
the policy contains no mechanism for publishers to mail items directly to prisoners.
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55. Additionally, the policy provides no procedure or guidance by which prisoners may request prior approval by the facility commander or designee in order to receive “publications.” The policy lacks sufficient guidelines or safeguards limiting the discretion of the facility commander or designee in approving or rejecting books requested by prisoners and contains no approval procedure for books PLN desires to send to its prisoner-subscribers without coordinating with prisoners to seek the approval of the commander (or designee). The policy also specifically requires prisoners to surrender a book to their property or donate it to a library, rather than being able to retain a reasonable number of books, such as The Habeas Citebook, for ongoing use as a legal reference book or for educational purposes. Consequently, the policy on books frustrates PLN’s mission and causes it harm by prohibiting books mailed by the publisher directly to prisoners, such as The Habeas Citebook, without specific, prior application by a prisoner and approval by the facility commander or designee—through a procedure that is not described in the policy. The policy further restricts delivery of books to prisoners unless they are sent from private donors/sources to the Library Unit, and even then, subject to a very narrow size restriction of 6” x 9.” Such restrictive size dimensions effectively prevents the delivery of books, such as The Habeas Citebook, which slightly exceeds these dimensions, despite its value to prisoners seeking redress of their constitutional rights.
56. On information and belief, each of the Defendants, pursuant to policy, practice, and custom, have permitted and continue to permit other periodical publications into the Jail without following the Jail’s written procedures, while refusing to admit PLN’s publications containing core political speech.
57. In practice, Defendants, their employees, and agents have used Policy 12.2, the Inmate Handbook, and other policies to censor, reject, refuse to deliver, and withhold PLN’s monthly journal, The Habeas Citebook (a paperback book), PLN’s Fundraiser mailing, and PLN’s enveloped mail, including its brochures.
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58. For example, the Jail’s Inmate Handbook specifically bans all publications sent by mail to prisoners. The Inmate Handbook governing Knox County prisoners provides in pertinent part:
10. Publications (magazines, books, newspapers, internet material, photo copies of Publications, etc.) Publications will not be allowed. Various publications/magazines are available to inmates in the facility library. If an inmate or group of inmates desires a certain publication that is not available in the library, a written request may be submitted to the Facility Commander or his/her designee for approval. (emphasis in original). 59. The Jail’s website specifically states that only postcards will be accepted. A true and correct copy of the website is attached hereto. The website states in pertinent part: Inmates may receive correspondence only on a standard postcard, rectangular at least 3-1/2 inches high x 5 inches long x 0.007 inch thick no more than 4-1/4 inches high x 6 inches long x 0.016 inches thick. D. Injunction Allegations 60. On information and belief, Defendants, through their employees and agents, rejected, censored, withheld, and refused to deliver all of Plaintiff’s publications, including its monthly journal, books, informational brochure packets, and enveloped mail pursuant to their mail policy, practice, and custom, and then failed to provide PLN with procedural due process. Instead of delivering these items mailed by PLN to individual prisoner-addressees, Defendants, their agents, and their employees withheld the items and prevented prisoner-addressees from accessing the censored items. The disposition of the vast majority of items PLN has mailed to prisoner-addressees at the Knox County Jail since November 2014 remains unknown to Plaintiff but known to Defendants. Defendants’ conduct constitutes a pattern of violation of PLN’s First and Fourteenth Amendment rights. 61. Defendants’ mail policies and practices, along with Defendants’ implementation of the same, have been used and are being used to censor Plaintiff’s correspondence with prisoners at the Knox County Jail on matters of public concern.
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62. PLN intends to continue sending the above-mentioned items to prisoners at the Knox County Jail, and Defendants’ censorship, which violates the First and Fourteenth Amendments, is causing PLN irreparable injury by diversion of mission, violation of constitutional rights, frustration of purpose, reputational harm, loss of opportunity, and loss of subscriptions. Plaintiff continues to suffer noneconomic and pecuniary harm.
63. Defendants’ actions have frustrated Plaintiff’s mission of education and advocacy, including the dissemination of Plaintiff’s political message, and the reporting and publishing of news regarding the human and legal rights of persons held in prisons and jails. Further, Defendants’ actions have interfered with Plaintiff’s ability to recruit new donors, writers, and supporters and have caused other damages to PLN.
64. Defendants’ actions have violated, continue to violate, and are reasonably expected in the future to violate Plaintiff’s constitutional rights.
65. PLN is entitled to injunctive relief prohibiting Defendants from refusing to deliver PLN’s mail, including publications, books, and other correspondence, without any legal justification, and prohibiting Defendants from censoring mail without due process of law. E. Municipal Liability
66. Defendants Jones and Bivens are official policymakers, who are responsible for and personally participated in the creation and implementation of these unconstitutional policies, practices, and customs, and for ratifying and adopting them. Further, Defendants are each responsible for training and supervising the mail staff and correctional officers involved in the censorship of mail, whose conduct has injured and continues to injure PLN. On information and belief, each Defendant made conscious choices not to conduct sufficient training on the First and Fourteenth Amendment requirements governing prisoner mail sent by non-prisoners. Sheriff Jones, as the ultimate decision-maker, failed to implement a constitutionally sufficient training regime and encouraged the lack of training and
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supervision over correctional employees. Defendants’ failure to conduct adequate training on the constitutional constraints on prisoner mail censorship, including the First Amendment and Due Process Clause, was so deficient as to be plainly insufficient and reckless, and consequently, it was a certainty that correctional officers would violate Plaintiff’s and other correspondents’ rights. Moreover, on information and belief, Defendants failed to conduct adequate continuing education on the constitutional requirements of their duties.
67. Defendant Bivens’s oversight of employees under his command was similarly plainly insufficient and permitted widespread and systematic violations of law. Defendants failed altogether to supervise the constitutional processing of mail at the Jail’s facilities, and their choice not to oversee and supervise mail employees would have prevented the violation of Plaintiff’s rights.
68. Defendants Jones and Bivens were aware or should have been aware of the constitutional requirements of correspondence with publishers, and that a pattern of unconstitutional violations would occur as a result, and they nonetheless intentionally chose a training and supervision program that was so ineffective as to be absent.
69. Consequently, Defendants Jones and Bivens acted with reckless disregard for and was deliberately indifferent to PLN’s constitutional rights.
70. The Jail’s written policies, established, maintained, and enforced by Defendants, as well as the Jail’s practice and custom of censoring PLN’s mail, permitted and continues to permit correctional officers to arbitrarily and unconstitutionally restrict PLN’s right to free expression by censoring mail without providing the sender with adequate notice of the rejection or any opportunity to challenge the rejection. For the vast majority of items PLN sent to prisoners at the Jail, Defendants failed even to return the rejected items to the sender, PLN.
71. Plaintiff has never received any notice from Defendants of procedures available to a sender to challenge the rejection of a book, magazine, letter, or other mail. Such lack of review procedures
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applies to all items PLN has mailed to prisoner-addressees. 72. Punitive damages are warranted against Defendants Jones and Bivens because their
conduct was motivated by evil motive or intent, involved reckless or callous indifference to Plaintiff’s federally protected rights, intentionally violated federal law, and involved ill-will and malice.
CLAIMS FOR RELIEF COUNT I
VIOLATION OF THE FIRST AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION:
UNLAWFUL CENSORSHIP OF PLAINTIFF’S MAIL TO PRISONERS (42 U.S.C. § 1983)
(Against All Defendants) 73. Plaintiff realleges and incorporates by reference all preceding paragraphs. 74. Plaintiff has the constitutional right to correspond with prisoners at the Knox County Jail. 75. Defendants’ conduct of censoring and refusing to deliver the monthly Prison Legal News journal; books, such as The Habeas Citebook; enveloped mail; informational brochure packets; and an annual Fundraiser to addressees at the Knox County Jail violates Plaintiff’s free-speech rights to communicate with the Jail’s prisoners under the First and Fourteenth Amendments. 76. Additionally, Defendants’ arbitrary blanket ban of all PLN’s mailed materials and arbitrary size restrictions constitute impermissible content-based discrimination on speech, as Defendants’ policy, on its face and as applied, arbitrarily and unlawfully treats mailed printed materials differently from other printed materials, such as publications, including books and magazines, curated for or delivered to prisoners by the Jail staff. 77. Defendants’ pervasive censorship of Plaintiff’s brochures, enveloped mail, books, journals, and fundraisers, beginning in about November 2014 and continuing to this day, constitutes an unlawful pattern or practice of interfering with and abridging Plaintiff’s clearly established right to correspond through the mail with prisoners at the Jail.
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78. Defendants’ formal and informal mail policies, customs, and practices, including the “postcard-only” mail policy, are the moving force behind the violation of Plaintiff’s rights.
79. Defendant’s policies, on their face and as applied to Plaintiff, violate PLN’s clearly established constitutional rights.
COUNT II VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION: FAILURE TO PROVIDE PROCEDURAL DUE PROCESS IN THE CENSORSHIP OF PLAINTIFF’S MAIL
(42 U.S.C. § 1983) (Against All Defendants) 80. Plaintiff realleges and incorporates by reference all preceding paragraphs. 81. Plaintiff has a liberty interest in corresponding with prisoners at the Knox County Jail by sending publications and other mail. 82. Plaintiff has the right to procedural due process prior to the deprivation of its liberty interest in communicating with prisoners at the Knox County Jail. 83. The due-process protections present in Policy 12.2 and all other policies, practices, and customs as described herein are facially unconstitutional and fail to provide PLN with notice and an opportunity to appeal. 84. By repeatedly censoring and failing to deliver the Prison Legal News monthly journal; books, such as The Habeas Citebook; Plaintiff’s enveloped mail to prisoners; informational brochure packets; and annual fundraisers to prisoner-addressees at the Jail, and then failing to provide PLN with notice of the rejection and a meaningful opportunity to contest the Jail’s censorship decisions, Defendants have violated and continue to violate Plaintiff’s clearly established Fourteenth Amendment right to procedural due process. 85. Each of the Defendants failed and is failing to: (1) provide PLN adequate notice of the Jail’s censorship decisions; and (2) provide PLN with an opportunity to appeal Defendants’ censorship decisions to someone that did not participate in the initial censorship decision, for at least the following
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pieces of mail: a. The Prison Legal News monthly journal; b. PLN’s books, such as The Habeas Citebook; c. PLN’s enveloped mail to prisoners; d. PLN’s informational brochure packets; and e. PLN’s fundraising packets.
86. The acts described above have caused damages to Plaintiff, and will continue to cause damage.
COUNT III VIOLATION OF THE FOURTEENTH AMENDMENT TO THE UNITED STATES CONSTITUTION:
VIOLATION OF PLAINTIFF’S RIGHT TO EQUAL PROTECTION OF THE LAW (42 U.S.C. § 1983)
(Against All Defendants) 87. Plaintiff realleges and incorporates by reference all preceding paragraphs. 88. Plaintiff has the constitutional right to correspond with prisoners at the Knox County Jail and to equal protection of the law. 89. By prohibiting the delivery of Plaintiff’s publications to prisoner-addressees but allowing the delivery of the publications of others who are similarly situated, Defendants have deprived and continue to deprive Plaintiff of equal protection under the law, in violation of the Fourteenth Amendment to the United States Constitution. 90. The acts described above have caused damages to Plaintiff, and will continue to cause damage.
REQUEST FOR RELIEF WHEREFORE, the Plaintiff requests relief as follows: 1. Enter an order granting Plaintiff’s motion for preliminary injunction, filed contemporaneously herewith, and then a permanent injunction, preventing Defendants from continuing
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to violate the Constitution, and providing other equitable relief; 2. A declaration that Defendants’ policies, practices, and customs violate the Constitution; 3. An award of nominal, punitive, compensatory, and presumed damages for each violation
of Plaintiff’s First Amendment rights to free speech and expression in an amount to be proved at trial; 4. An award of nominal, punitive, and compensatory damages for each violation of Plaintiff’s
Fourteenth Amendment rights to due process in an amount to be proved at trial by a jury; 5. Costs, including reasonable attorney’s and expert fees, under 42 U.S.C. § 1988, and under
other applicable law; 6. Pre-judgment and post-judgment interest; 7. The right to conform the pleadings to the proof and evidence presented at trial by jury; and 8. Such other relief as the Court deems just and equitable.
JURY DEMAND Plaintiff, Prison Legal News, by and through its attorneys, hereby demands a trial by jury pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable.

Dated: October 6, 2015

Respectfully submitted,
s/ Tricia Herzfeld Tricia Herzfeld (BPR No. 26014) Elliott Ozment (BPR No. 4331) William P. York II (BPR No. 30546)1 OZMENT LAW 1214 Murfreesboro Pike Nashville, TN 37217 (615) 321-8888 tricia@ozmentlaw.com

1 Application for admission submitted.
19 Case 3:15-cv-00452-TAV-CCS Document 1 Filed 10/06/15 Page 19 of 20 PageID #: 19

Gena Lewis (BPR No. 25020) LAW OFFICE OF GENA LEWIS 400 Ellis Ave. P.O. Box 6004 Maryville, TN 37802 (865) 268-9911 maryeugenialewis@yahoo.com Lance Weber (Florida No. 104550)2 Sabarish Neelakanta (Florida No. 26623) 3 HUMAN RIGHTS DEFENSE CENTER PO Box 1151 Lake Worth, FL 33460 (561) 360-2523 lweber@hrdc-law.org
Attorneys for Plaintiff Prison Legal News
2 Application for admission pro hac vice forthcoming. 3 Application for admission pro hac vice forthcoming.
20 Case 3:15-cv-00452-TAV-CCS Document 1 Filed 10/06/15 Page 20 of 20 PageID #: 20

Prison Legal News v. Jones et al, Docket No. 3:15-cv-00452 (E.D. Tenn. Oct 06, 2015), Court Docket
General Information

Court
Federal Nature of Suit Docket Number

United States District Court for the Eastern District of Tennessee; United States District Court for the Eastern District of Tennessee
Civil Rights - Other[440]
3:15-cv-00452

© 2015 The Bureau of National Affairs, Inc. All Rights Reserved. Terms of Service // PAGE 21

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TENNESSEE
KNOXVILLE DIVISION

PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
Plaintiff/Counter Defendant,
v.
JAMES “J.J.” JONES, Sheriff of Knox County, Tennessee, in his official and individual capacities; RODNEY BIVENS, Assistant Chief Deputy of the Knox County Sheriff’s Office, in his official and individual capacities; and KNOX COUNTY, TENNESSEE,
Defendants/Counter-Plaintiffs.

Case No.: 3:15-CV-452-TAV-CCS Chief Judge Varlan Magistrate Judge Shirley
JURY DEMAND

PLAINTIFF/COUNTER-DEFENDANT’S MOTION TO DISMISS DEFENDANTS’ COUNTER-CLAIMS FOR DECLARATORY JUDGMENT
NOW COMES Plaintiff/Counter-Defendant, PRISON LEGAL NEWS, a project of the not-for-profit Human Rights Defense Center (“PLN” or “Plaintiff”), by and through its attorneys, pursuant to Fed. R. Civ. P. 12(b)(6), and respectfully moves this Court for a dismissal of Defendants’ counter-claims.1 In support of this motion, Plaintiff states as follows:

1 Defendants have pled the following two counterclaims: (1) A declaration “that their policies and procedures including Knox County’s Electronic Inmate Communications System satisfy the First Amendment rights of publishers to communicate with Knox County’s inmates;” and (2) A declaration that their policies and procedures including Knox County’s Electronic Inmate Communications System satisfy the Fourteenth Amendment due process rights of publishers to notice from Knox County of any decision to censor communications to inmates based upon content, and any right of administrative and judicial review. See Defendants’ Answer and Counter-Claim for Declaratory Judgment, Dkt. No. 25, p. 17 at ¶¶ 2-3.
1 Case 3:15-cv-00452-TAV-CCS Document 29 Filed 01/08/16 Page 1 of 6 PageID #: 1027

I.

INTRODUCTION

The instant case seeks declaratory and injunctive relief (along with damages and attorneys’

fees) based upon Defendants’ unconstitutional censorship of Plaintiff’s mail to prisoners at the

Knox County Jail (“Jail”) in violation of the First Amendment, and Defendants’ failure to provide

due process notice and an opportunity to appeal the censorship decisions, and denial of equal

protection in violation of the Fourteenth Amendment. Defendants have counter-claimed seeking

declaratory relief that their mail policies and procedures do not violate either the First or Fourteenth

Amendment. Defendants seek no other affirmative relief, declaratory or otherwise, and introduce

no independent issue or controversy other than those made in Plaintiff’s Complaint.2

II. MOTION TO DISMISS STANDARD

A Rule 12(b)(6) motion attacks the legal sufficiency of the complaint, and tests whether

the party has pleaded cognizable claims. See FED. R. CIV. P. 12(b)(6); Scheid v. Fanny Farmer

Candy Shops, Inc., 859 F.2d 434, 436 (6th Cir. 1988). The Court, therefore, can dismiss a claim

or controversy on the basis of a dispositive issue of law, if it is meritless, wastes judicial

resources, or results in unnecessary discovery. Nietzke v. Williams, 490 U.S. 319, 326-27 (1989).

A complaint must provide “‘a short and plain statement of the claim’ that will give the

defendant fair notice of what the plaintiff’s claim is and the grounds upon which it rests.” Conley

v. Gibson, 355 U.S. 41, 47 (1957), abrogated by Bell Atl. Corp. v. Twombly, 550 U.S. 544, 545

(2007); see also FED. R. CIV. P. 8(a). The Court must accept as true all factual allegations, and

construe them in the light most favorable to the filing party. Id. Notably, a counter-claim must

not “be directed at the allegations of the complaint” but instead must contain “an independent

2 Compare Plaintiff’s Complaint for Declaratory and Injunctive Relief and for Damages, Dkt. No. 1, pp. 16-17 at ¶¶ 73-86.
2 Case 3:15-cv-00452-TAV-CCS Document 29 Filed 01/08/16 Page 2 of 6 PageID #: 1028

claim for relief.” Erickson v. Brock & Scott, PLLC, 2009 U.S. Dist. LEXIS 114331, 2009 WL 4884424 (W.D. Tenn. 2009), quoting 27A FEDERAL PRACTICE LAWYER'S EDITION § 62:201; see also 5 MOORE’S FEDERAL PRACTICE § 41.09.
III. ARGUMENT Defendants seek nothing more than the reverse of the declaratory relief Plaintiff seeks. Such “mirror-image” counter-claims cannot stand, as they merely restate legal or factual issues already put before the Court in Plaintiff’s complaint. Defendants are merely asking the Court to declare that it has a valid defense to Plaintiff’s claims, which is not a proper basis for an independent claim for declaratory relief. Defendants have pled no independent controversy on the claims at issue, and the issues and legal theories at play in Defendants’ counter-claims are identical to those in Plaintiff’s complaint. Indeed, Defendants’ counter-claims will be rendered moot upon adjudication of Plaintiff’s complaint. Defendants’ counter-claims are redundant and superfluous, need not be entertained by this Court, and are due for dismissal.
Defendants’ counter-claims merely restate the controversies set forth in Plaintiff’s complaint, serve no useful purpose, and will be rendered moot upon adjudication of Plaintiff’s complaint. Redundant or duplicative counterclaims should be dismissed. See Richmond v. Centurion Exteriors, Inc. v. Centurion Exteriors, Inc., 2010 U.S. Dist. LEXIS 107054 * 5-6 (M.D. Tenn. 2010) (dismissing redundant counter-claim because factual and legal issues are identical to those in complaint, and the counter-claim will be rendered moot upon adjudication of the complaint); Emma, Inc. v. Microstrategy, Inc., 2012 U.S. Dist. LEXIS 3560 at * 4 (M.D. Tenn. 2012) (same); Erickson v. Brock & Scott, PLLC, 2009 U.S. Dist. LEXIS 114331 at * 13-14 (W.D. Tenn. 2009) (same); Pettrey v. Enter. Title Agency, Inc., 2006 U.S. Dist. LEXIS 83957, 2006 WL 3342633 at *3 (N.D. Ohio 2006) (citing Aldens, Inc. v. Israel Packel, 524 F.2d 38, 51-52 (3d Cir.1975))
3 Case 3:15-cv-00452-TAV-CCS Document 29 Filed 01/08/16 Page 3 of 6 PageID #: 1029

(same). Such “mirror-image” counter-claims have primarily been allowed to proceed in limited circumstances such as patent infringement suits, or suits “seek[ing] declaratory judgments for issues beyond the scope of plaintiff’s complaint.” Erickson, 2009 U.S. Dist. LEXIS 114331 at * 6-12 (reviewing district court opinions on redundant counterclaims). Accordingly, when deciding whether to dismiss a redundant counterclaim seeking a declaratory judgment, courts consider whether the relief sought by Defendants serves “any useful purpose.” Id. at 8 (citing Wright, Miller & Kane, 6 FEDERAL PRACTICE & PROCEDURE 2d. § 1406). A counter-claim that will be rendered moot upon adjudication of Plaintiff’s complaint serves no useful purpose. Id. at * 11-12.
Defendants’ counter-claims raise no new factual and legal issues other than those stated in Plaintiff’s complaint. Defendants further lack Article III standing to sue, because there is no “case or controversy” set forth by Defendants in their counter-claims that would not otherwise be rendered moot upon adjudication of Plaintiff’s complaint. See Richmond, 2010 U.S. Dist. LEXIS 107054 at *5-6 (“Defendants have not identified any case or controversy that would remain for adjudication so that Defendants would have standing to proceed and the Court would possess jurisdiction to render a proper decision, and not an advisory opinion”) (citing Fieger v. Michigan Supreme Court, 553 F.3d 955, 961 (6th Cir. 2009)) (holding Article III and Declaratory Judgment Act allow district court to enter declaratory relief only in case of actual controversy where plaintiff has standing). Defendants’ counter-claims cannot form the basis of a separate suit in equity, and posit no case or controversy requiring declaratory judgment separate and distinct from Plaintiff’s well-pled censorship and due process claims. Defendants’ counter-claims are redundant and superfluous, and should be dismissed. See, e.g., Richmond v. Centurion Exteriors, Inc., No. 3:10cv-734, 2010 WL 3940592, *2 (M.D. Tenn. Oct. 6, 2010) (concluding that “Defendants' counterclaim raises factual and legal issues identical to those stated in the complaint, and the
4 Case 3:15-cv-00452-TAV-CCS Document 29 Filed 01/08/16 Page 4 of 6 PageID #: 1030

counterclaim will be rendered moot upon adjudication of the complaint,” noting the lack of an Article III case or controversy, and dismissing counterclaims under “mirror image” doctrine pursuant to Rule 12(b)(6)); Emma, Inc. v. Microstrategy, Inc., No. 3:11-cv-926, 2012 WL 90405 (M.D. Tenn. Jan. 11, 2012); Malibu Media, LLC v. Doe, No. 2:14-cv-821, 2015 WL 471010 (S.D. Ohio Feb. 4, 2015).
WHEREFORE, Plaintiff respectfully requests that this Court dismiss Defendants’ counterclaims because they are redundant, serve no useful purpose and will be rendered moot upon adjudication of Plaintiff’s complaint.

Dated: January 8, 2016

Respectfully submitted,
s/Tricia Herzfeld Tricia Herzfeld (BPR No. 26014) Elliott Ozment (BPR No. 4331) William Patrick York II (BPR No. 30546) OZMENT LAW 1214 Murfreesboro Pike Nashville, TN 37217 (615) 321-8888 (office) (615) 321-5230 (fax) tricia@ozmentlaw.com will@ozmentlaw.com
Gena Lewis (BPR No. 025020) LAW OFFICE OF GENA LEWIS 400 Ellis Ave. P.O. Box 6004 Maryville, TN 37802 (865) 888-6946 (office) (865) 300-1495 (cell) maryeugenialewis@yahoo.com
Lance Weber (Florida No. 104550) Sabarish Neelakanta (Florida No. 26623) HUMAN RIGHTS DEFENSE CENTER P.O. Box 1151 Lake Worth, FL 33460

5 Case 3:15-cv-00452-TAV-CCS Document 29 Filed 01/08/16 Page 5 of 6 PageID #: 1031

(561) 360-2523 lweber@hrdc-law.org sneelakanta@hrdc-law.org Attorneys for Plaintiff PLN
CERTIFICATE OF SERVICE I, Tricia Herzfeld, one of Plaintiff’s attorneys, certify that I caused a copy of the foregoing document to be served by operation of the Court’s Case Management/Electronic Case Files (CM/ ECF) system upon the following attorney(s) on January 8, 2016: David S. Wigler, Deputy Knox County Law Director Suite 61, City-County Building 400 Main St., Ste. 612 Knoxville, TN 37902 (865) 215-2327
s/Tricia Herzfeld Tricia Herzfeld (BPR No. 26014) One of Plaintiff’s Attorneys
6 Case 3:15-cv-00452-TAV-CCS Document 29 Filed 01/08/16 Page 6 of 6 PageID #: 1032

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

PRISON LEGAL NEWS, a project of the

)

HUMAN RIGHTS DEFENSE CENTER,

)

)

Plaintiff,

)

)

v.

) No.: 3:15-CV-452-TAV-CCS

)

JAMES “J.J.” JONES, Sheriff of Knox County, )

Tennessee, in his official and individual

)

capacities; RODNEY BIVENS, Assistant

)

Chief Deputy of the Knox County Sheriff’s

)

Office, in his official and individual capacities; )

and KNOX COUNTY, TENNESSEE,

)

)

Defendants.

)

ORDER This civil action is before the Court on the Motion of Defendants for Order Compelling Judicial Conference or Mediation and to Stay Proceedings Pending Same [Doc. 32] and Plaintiff’s Motion to Stay Proceedings Pending Private Alternative Dispute Resolution and Response to Defendant’s Motion Compelling Judicial Settlement Conference or Mediation and to Stay [Doc. 33]. According to plaintiff’s submission, the parties all agree that the Court should stay this action so that they can engage in private mediation, but that the stay should not extend beyond March 31, 2016. In light of the parties’ agreement, the Court hereby STAYS this action until March 31, 2016, so that the parties may engage in mediation. Accordingly, the Motion of Defendants for Order Compelling Judicial Conference or Mediation and to Stay Proceedings Pending Same [Doc. 32] is hereby GRANTED in part and DENIED in

Case 3:15-cv-00452-TAV-CCS Document 34 Filed 02/03/16 Page 1 of 2 PageID #: 1173

part, and Plaintiff’s Motion to Stay Proceedings Pending Private Alternative Dispute Resolution and Response to Defendant’s Motion Compelling Judicial Settlement Conference or Mediation and to Stay [Doc. 33] is GRANTED. All other pending motions are hereby DENIED with leave to refile upon the lifting of the stay. The Clerk of Court is DIRECTED to LIFT the stay on April 1, 2016. On or before April 8, 2016, the parties shall FILE a report consistent with Local Rule 16.4(m).
IT IS SO ORDERED. s/ Thomas A. Varlan CHIEF UNITED STATES DISTRICT JUDGE
2 Case 3:15-cv-00452-TAV-CCS Document 34 Filed 02/03/16 Page 2 of 2 PageID #: 1174

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

PRISON LEGAL NEWS, a project of the )

HUMAN RIGHTS DEFENSE CENTER, )

)

Plaintiff,

)

)

v.

)

)

JAMES “J.J.” JONES, Sheriff of

)

Knox County, Tennessee, et al.,

)

)

Defendants.

)

No.: 3:15-CV-452-TAV-CCS

ORDER This matter is before the Court on the Motion of Defendants for Hearing on Plaintiff’s Preliminary Injunction Motion [Doc. 38]. In this motion, defendants move the Court for a hearing on plaintiff’s motion for a preliminary injunction [Doc. 2]. The Court notes that in its order staying this case [Doc. 34], the Court denied all pending motions— including plaintiff’s preliminary injunction motion—with leave to refile upon the lifting of the stay. The stay in this case has since been lifted, and plaintiff has not refiled its motion for a preliminary injunction. Accordingly, the Court DENIES defendants’ motion [Doc. 38] as MOOT. IT IS SO ORDERED.

s/ Thomas A. Varlan CHIEF UNITED STATES DISTRICT JUDGE

Case 3:15-cv-00452-TAV-CCS Document 42 Filed 04/13/16 Page 1 of 1 PageID #: 1187

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

PRISON LEGAL NEWS, a project of the )

HUMAN RIGHTS DEFENSE CENTER, )

)

Plaintiff,

)

)

v.

)

)

KNOX COUNTY, TENNESSEE,

)

)

Defendant.

)

No.: 3:15-CV-452-TAV-CCS

MEMORANDUM OPINION AND ORDER This civil action is before the Court on the two motions of defendant Knox County, Tennessee,1 to compel a judicial settlement conference [Docs. 50, 59]. The Court previously stayed these proceedings to permit the parties to engage in private mediation, which was unsuccessful [Doc. 34]. On July 11, 2017, however, defendant filed a motion requesting that the Court order the parties to participate in mediation before a United States Magistrate Judge and stay these proceedings pending the outcome of that mediation [Doc. 50]. Plaintiff responded in opposition, claiming that a judicial settlement conference is unlikely to prove fruitful [Doc. 52]. Then, apparently dissatisfied with the speed at which the Court was considering its motion, defendant filed yet another motion seeking identical relief—i.e., an order staying these proceedings and directing the parties to participate in

1 The Court notes that former defendants James “J.J.” Jones and Rodney Bivens, sued both in their individual and official capacities, have been dismissed from this action by stipulation of the parties [Doc. 48 ¶ 1], pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). Thus, Knox County is the only remaining defendant at the time of entry of this opinion.
Case 3:15-cv-00452-TAV-DCP Document 65 Filed 10/24/17 Page 1 of 5 PageID #: 1345

judicial mediation [Doc. 59]. Plaintiff responded once more in opposition, on the same grounds [Doc. 64].2 The Court has carefully considered the matter and, for the reasons explained below, will deny defendant’s motions.
Eastern District of Tennessee Local Rule 16.4(a) provides that, “[w]ith or without the agreement of the parties in any civil action . . . , the Court may refer all or part of the underlying dispute to [m]ediation.” That authority is discretionary, unless the parties show that the action is “not suitable for mediation” under Local Rule 16.3. AquaShield, Inc. v. Sonitec Vortisand, Inc., No. 1:13-cv-119, 2014 WL 12704705, at *2 (E.D. Tenn. Mar. 3, 2014). In making this determination, the Court should consider its prior rulings, the best interests of all parties, and the need to promote judicial economy and the efficient resolution of the controversy. See AMC Demolition Specialists, Inc. v. Bechtel Jacobs Co., No. 3:04-cv-466, 2006 WL 2792401, at *24 (E.D. Tenn. Sept. 26, 2006). Ultimately, however, the decision whether to order mediation rests within the Court’s discretion.
In support of its motions, defendant submits that the entire posture of this matter has changed since the last, unsuccessful attempt at mediation. Notably, the parties have now stipulated that: (1) plaintiff’s claims against all defendants but Knox County should be
2 The Court notes that, due to the disruption Hurricane Irma caused plaintiff’s counsel’s operations in Florida, the Court previously granted an extension of time [Doc. 61] for plaintiff to respond to both defendant’s renewed motion to compel [Doc. 59] and its pending motion for summary judgment [Doc. 58]. Plaintiff filed a response to the latter motion within the extended time permitted by the Court, but neglected to respond to the former until October 16, 2017 [Doc. 64]. Plaintiff apologizes for the late filing and submits that, because its response raises no new legal or factual arguments, defendant will not be prejudiced by its tardiness [Id. at 2 n.1]. The Court agrees and will thus consider plaintiff’s response timely filed.
2
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dismissed with prejudice; (2) plaintiff sustained compensatory damages in the amount of $25,000 due to defendant’s actions; and (3) the first two stipulations resolve all issues in this litigation except for plaintiff’s entitlement to injunctive relief, attorney’s fees, and costs [Doc. 48]. Defendant asserts that it is ready and willing to attempt to resolve these remaining issues in good faith. Furthermore, defendant asserts that, because of an earlier offer of judgment under Federal Rule of Civil Procedure 68, the resolution of plaintiff’s pending motion for a permanent injunction [Doc. 49] “will have a great impact upon the amount of [plaintiff’s] attorney fee claim” [Doc. 50 p. 2]. Defendant thus asserts—without further elaboration—that it has reason to believe that a conflict between the interests of plaintiff and its counsel may be preventing a successful resolution of this dispute. As such, defendant argues that a U.S. Magistrate Judge could serve as an effective neutral.
Plaintiff responds that defendant has failed to articulate any compelling reason to stay these proceedings and order another round of mediation. Plaintiff submits that the parties remain unchanged in their positions concerning injunctive relief despite multiple attempts to reach agreement. Specifically, plaintiff submits that defendant has refused to be subject to a court order enjoining it from reverting to its unconstitutional practices in the future, while plaintiff is unwilling to terminate this litigation without such an order. Plaintiff notes that it has already provided a stipulated injunction to defendant, which was squarely rejected. To that end, plaintiff has filed a motion for a permanent injunction [Doc. 49], which it asserts turns solely on the issue whether the voluntary cessation exception to mootness applies here. See City News & Novelty, Inc. v. City of Waukesha, 531 U.S. 278,
3
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284 n.1 (2001) (noting “the principle that a party should not be able to evade judicial review, or to defeat a judgment, by temporarily altering questionable behavior”).
In addition, regarding defendant’s allegation of a conflict of interest, plaintiff asserts that to make such a serious accusation of a breach of ethical duty without any evidence is both inappropriate and unprofessional. Moreover, plaintiff submits that no such conflict exists—it has always taken the position that injunctive relief is necessary to prevent defendant from returning to its unconstitutional practices. Plaintiff also notes that this issue is ancillary to the issue of attorney’s fees, to which plaintiff is entitled under 42 U.S.C. § 1988 as the “prevailing party” regardless whether a permanent injunction enters. Indeed, plaintiff argues that “the Supreme Court has read [§ 1988] as mandatory where the plaintiff prevails and special circumstances are absent.” Déjà Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., 421 F.3d 417, 420 (6th Cir. 2005).
After carefully considering the parties’ arguments, and in light of plaintiff’s opposition to mediation, the Court will not order that the case be mediated at this time, although this conclusion does not preclude future consideration of such an order. The Court finds that compelled mediation before a U.S. Magistrate Judge is unlikely to prove fruitful, given that the parties appear to remain fundamentally at odds regarding plaintiff’s entitlement to injunctive relief, attorney’s fees, and costs. Furthermore, the Court has already stayed these proceedings once to permit mediation, and, while the posture of the case has changed somewhat since that time, the Court finds that the need for a prompt and efficient resolution of this controversy outweighs the possibility of a successful resolution
4
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through mediation. Indeed, the parties’ pending motions for a permanent injunction [Doc. 49] and for summary judgment [Doc. 58] present distinct legal issues appropriate for the Court to resolve as a matter of law. And finally, the Court finds that defendant has provided no evidence to substantiate its claim that plaintiff’s counsel has experienced a conflict of interest that is actually impeding the settlement of this dispute. Nonetheless, the Court would strongly encourage the parties to continue to pursue methods of settlement negotiation, including private mediation, as a settlement reached through their mutual cooperation will ultimately be more palatable than one imposed by the Court.
Accordingly, for the reasons stated above, defendant’s two motions to compel a judicial settlement conference [Docs. 50, 59] are hereby DENIED. The Scheduling Order in this matter [Doc. 44] will thus remain fully in effect.
IT IS SO ORDERED. s/ Thomas A. Varlan CHIEF UNITED STATES DISTRICT JUDGE
5 Case 3:15-cv-00452-TAV-DCP Document 65 Filed 10/24/17 Page 5 of 5 PageID #: 1349

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TENNESSEE

PRISON LEGAL NEWS, a project of the )

HUMAN RIGHTS DEFENSE CENTER, )

)

Plaintiff,

)

)

v.

)

)

KNOX COUNTY, TENNESSEE,

)

)

Defendant.

)

No.: 3:15-CV-452-TAV-CCS

MEMORANDUM OPINION AND ORDER This civil action is before the Court on plaintiff’s Motion and Memorandum in Support of Injunctive Relief [Doc. 49] and defendant’s Motion for Summary Judgment and Response in Opposition to Plaintiff’s Motion for Permanent Injunction [Doc. 58]. The parties have also filed further responses and replies [Docs. 62–63]. The parties’ motions are therefore fully briefed and ready for disposition. See E.D. Tenn. L.R. 7.1(a). For the reasons explained below, the Court will deny plaintiff’s motion for a preliminary injunction and will deny defendant’s motion for summary judgment as moot. I. Background This case concerns allegations that the defendant municipality violated plaintiff’s First and Fourteenth Amendment rights to freedom of speech, due process, and equal protection by unlawfully censoring the books, magazines, and other mail plaintiff sent to prisoners at the Knox County Jail [Doc. 1]. The Court will first outline the factual allegations underlying this case before summarizing the relevant procedural history.

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A. Factual History The critical facts in this case are not in dispute.1 Plaintiff is a Washington nonprofit corporation, headquartered in Florida, that aims to promote education, advocacy, and outreach in support of the rights of federal and state prisoners [Doc. 1 ¶ 9]. Plaintiff publishes a monthly journal of corrections news and analysis, Prison Legal News, as well as various books about the criminal justice system and legal issues affecting prisoners, who account for sixty-five percent of plaintiff’s subscribers [Id.]. Plaintiff distributes these publications to prisoners and libraries in more than 2,600 federal and state correctional facilities in the United States [Id. ¶ 16]. Plaintiff asserts that these publications contain “core protected speech and expressive conduct on matters of public concern, such as the operations of prisons facilities, prison conditions, prisoner health and safety, and prisoners’ rights,” as well as “the destructive nature of racism, sexism, and the economic and social costs of prisons to society” [Id. ¶¶ 18–19]. Defendant is a Tennessee municipality that operates the Knox County Jail (the “Jail”), primarily under the supervision of the Knox County Sheriff’s Office [Id. ¶ 12]. At the time this litigation began, defendant maintained a written policy concerning the forms of incoming mail that detainees at the Jail were permitted to receive [Id. ¶ 49]. This policy effectively required all incoming mail, with the exception of legal mail, to be in the form
1 The Court draws this summary from the factual allegations in plaintiff’s complaint [Doc. 1] that are now undisputed in light of defendant’s amended answer [Doc. 46] and the parties’ stipulations as to liability and damages [Doc. 48]. The Court also notes that the legal issues it addresses in this opinion largely do not turn on questions of disputed fact.
2
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of “a standard postcard with printed postage” [Doc. 1-1 p. 1]. The Sheriff’s Office website further provided that “[i]nmates may receive correspondence only on a standard postcard, rectangular at least 3-1/2 inches high x 5 inches long x 0.007 inch thick[,] no more than 41/4 inches high x 6 inches long x 0.016 inches thick” [Doc. 1-2 p. 3]. Defendant likewise characterizes this as a “post-card only inmate mail policy” [Doc. 46 p. 2].
As for books and other publications, the policy provided that if the Jail’s library lacked a book or publication a prisoner wished to read, the prisoner could receive the item through the mail, subject to the Facility Commander’s discretionary approval [Doc. 1-1 p. 5]. Books were subject to specific requirements—i.e., they had to be paperback and no larger than 6 inches by 9 inches, prisoners could only keep two books in their cell at a time, and once a prisoner had read a book, it had to be placed with the prisoner’s personal property or donated to the library [Id.]. Additionally, the Jail’s 2011 Inmate Handbook expressly stated that outside “publications will not be accepted,” absent the Facility Commander’s prior approval of an inmate’s request [Doc. 3-7 p. 8]. Finally, these rules allowed only prisoners—not outside senders—to request approval to transmit books and publications [Doc. 1 ¶ 54]. Plaintiff thus asserts that this policy deprived outside senders of any procedural protections at all, such as notice or meaningful opportunity to contest a discretionary decision by the Facility Commander [Id. ¶ 52].
Plaintiff claims that, from November 2014 to at least October 2015, the Jail refused to accept and deliver to prisoners every journal, book, brochure, and piece of enveloped mail plaintiff sent to the Jail—amounting to 147 items [Id. ¶ 21]. This figure includes: (1)
3
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at least 111 copies of Prison Legal News [Id. ¶ 28]; (2) at least twelve copies of The Habeas Citebook: Ineffective Assistance of Counsel, a paperback instructional guide published by plaintiff [Id. ¶¶ 33–34]; (3) twelve copies of plaintiff’s 2014 Fundraiser [Id. ¶ 39]; and (4) twelve informational brochure packets concerning plaintiff’s mission and publications [Id. ¶¶ 43–45]. Plaintiff asserts that such censorship has frustrated its mission of education and advocacy, has interfered with its ability to recruit new donors, writers, and supporters, and can reasonably be expected to continue in the future [Id. ¶¶ 63–64]. Plaintiff further submits that defendant failed to provide it with notice of or opportunity to contest these censorship decisions [Id. ¶¶ 28, 34, 40, 46]. As such, plaintiff argues that defendant violated plaintiff’s First and Fourteenth Amendment rights to freedom of speech, due process, and equal protection [Id. ¶¶ 73–90].
B. Procedural History The procedural history of this case is lengthy and complex, yet ultimately relevant to the subject matter of this opinion. Plaintiff filed its complaint on October 6, 2015, seeking monetary, injunctive, and declarative relief against defendants Knox County, Tennessee, Knox County Sheriff James “J.J.” Jones, and Assistant Chief Deputy of the Knox County Sheriff’s Office Rodney Bivens [Doc. 1]. Plaintiff simultaneously filed a motion for a preliminary injunction [Doc. 2]. Defendants filed an answer on December 18, 2015, and included a counterclaim for a declaratory judgment [Doc. 25]. Defendants also responded in opposition to plaintiff’s preliminary injunction motion [Doc. 26]. Plaintiff then sought dismissal of defendants’ counterclaim under Federal Rule of Civil Procedure
4
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12(b)(6) [Doc. 29]. On February 3, 2016, upon cross-motions by the parties concerning the possibility of mediating this dispute [Docs. 32–33], the Court stayed these proceedings to permit the parties to participate in private mediation [Doc. 34]. Those efforts ultimately proved unsuccessful [Doc. 37].
Nevertheless, on October 13, 2016, defendants filed an amended answer in which they admitted liability on plaintiffs’ First and Fourteenth Amendments claims under 42 U.S.C. §§ 1983 and 1988, stated that they had revised the Jail’s inmate mail policy to avoid further constitutional violations, and withdrew their counterclaim [Doc. 46]. Defendants noted that, having reviewed similar lawsuits initiated by plaintiff throughout the country, they had decided not to contest the constitutionality of the Jail’s mail policy [Id. at 2–3]. Defendants also attached a copy of the revised policy, which removes the restrictions that formed the basis for plaintiff’s constitutional challenges [Doc. 46-1]. Then, on June 26, 2017, the parties filed a joint stipulation agreeing that: (1) plaintiffs’ claims against defendants Jones and Bivens should be dismissed with prejudice; (2) plaintiff sustained $25,000 in compensatory damages as a result of defendant’s unconstitutional practices, and summary judgment should be granted in plaintiff’s favor in that amount; and (3) the first two stipulations resolve all issues in this litigation except for plaintiff’s entitlement to injunctive relief, attorney’s fees, and costs [Doc. 48].
Plaintiff then moved for a permanent injunction to prevent a resumption of defendant’s admittedly unconstitutional practices in the future [Doc. 49]. Defendant responded by moving the Court to compel a judicial settlement conference, contending that
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mediation could dispose of the only remaining issues in this litigation [Doc. 50]. Defendant also moved the Court to treat plaintiff’s motion for a permanent injunction as an amended complaint [Doc. 51]. The Court referred this latter motion to Magistrate Judge C. Clifford Shirley, Jr. [Doc. 54], and, finding defendant’s motion meritless, Magistrate Judge Shirley ordered defendant to respond to plaintiff’s motion by September 8, 2017 [Doc. 56]. Defendant did so, but in opposing plaintiff’s motion, defendant also moved for summary judgment under Federal Rule of Civil Procedure 56 on plaintiff’s permanent injunction claim [Doc. 58]. Defendant also filed a second, “renewed” motion to compel a judicial settlement conference, on the same grounds [Doc. 59].
In support of its summary judgment motion, defendant attached sworn declarations of former defendants Jones and Bivens, as well as Knox County Law Director Richard B. Armstrong, Jr. [Docs. 57-1, 57-2, 57-3]. Jones avers that: (1) he is in his final year of his term as Sheriff; (2) he concurred in the decision to admit liability after being advised of the clearly established requirements of the First and Fourteenth Amendments; and (3) he knows he may be subject to personal liability in the future—including for punitive damages—if he reinstates the former unconstitutional policy [Doc. 57-1]. Bivens, the senior official in charge of correctional policies, plans to retire at the time of Jones’s departure and likewise notes his awareness that he could be subject to personal liability in the future if the Jail resumes its unlawful practices [Doc. 57-2]. Finally, Armstrong avers that defendant’s voluntary cessation of its unconstitutional conduct is genuine [Doc. 57-3 ¶ 2]. In support of this claim, Armstrong provides that: (1) this case has been extremely
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expensive for Knox County taxpayers; (2) returning to the former unconstitutional policies would be irrational as a waste of taxpayer resources; (3) such a decision would also expose the pertinent policymakers to personal liability for punitive damages, for which defendant is barred by county ordinance from indemnifying them; (4) by county ordinance, the Law Director has discretion to furnish counsel for Knox County officials and employees when sued; and (5) Armstrong intends to meet with the new Sheriff, once sworn in, and explain both the clear requirements of the First and Fourteenth Amendments and that his office will not furnish counsel for any policymaker who adopts or reinstates written policies that contravene those requirements [Doc. 57-3 ¶¶ 3–8].
Plaintiff responded on October 6, 2017, arguing that that no local or federal rule permits a party to subsume a dispositive motion—here, a motion for summary judgment— within its response to another party’s dispositive motion [Doc. 62 p. 2]. Plaintiff further asserts that, even if this were not the case, defendant did not file its motion until eight days after the dispositive motion deadline of September 1, 2017 [See Doc. 44 ¶ 6(b)]. Finally, plaintiff argues that, in any event, it is entitled to a permanent injunction on the merits [Doc. 62 pp. 3–6]. Plaintiff did not attach any Rule 56(c) materials, or other supporting evidence, to its response brief. Defendant then filed a reply, asserting that it had previously granted plaintiff a two-week extension to respond to certain discovery requests on the condition that plaintiff would “extend the same courtesy to [defendant] in responding to any discovery or motions” [Doc. 63 p. 2]. Defendant attached email correspondence between the parties’ counsel substantiating this explanation [Doc. 63-1]. Defendant thus
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apologizes for failing to file a joint motion for extension of time and requests relief from its eight-day delay in moving for summary judgment [Doc. 63 p. 2].
Finally, on October 24, 2017, the Court entered an order denying both of defendant’s motions to compel a judicial settlement conference [Doc. 65]. According to a subsequent joint status report, the parties believe that the chances of settlement via private mediation on the remaining two issues are poor [Doc. 66 ¶ 5]. Thus, the Court will proceed to determine whether plaintiff is entitled to injunctive relief at this time. II. Analysis
The Court will first consider plaintiff’s motion for a permanent injunction against defendant’s concededly unconstitutional practices [Doc. 49]. The propriety of injunctive relief in this case turns on two questions: (1) whether defendant’s admission of the illegality of the old mail policy and voluntary termination of such practices has rendered plaintiff’s request for injunctive relief moot; and (2) if not, whether plaintiff is entitled to an injunction under ordinary principles of equity. As explained further below, the Court need only address the first question because it agrees with defendant that the voluntary cessation exception to mootness does not apply in this case. The Court will then consider defendant’s corresponding motion for summary judgment, which the Court will deny as moot in light of its ruling on plaintiff’s motion for injunctive relief.
A. Plaintiff’s Motion for a Permanent Injunction First, defendant argues that, because the question of plaintiff’s entitlement to injunctive relief is now moot, the Court lacks authority under Article III of the Constitution
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to resolve that issue [Doc. 58 pp. 7–14]. Anticipating this argument, plaintiff argues in its motion that the “voluntary cessation” exception to mootness applies, such that this Court does have authority to enter plaintiff’s requested injunction [Doc. 49 pp. 10–13].
Article III of the United States Constitution extends the federal judicial power to only a limited set of enumerated “cases” and “controversies.” U.S. Const. art. III, § 2. The Supreme Court has long interpreted this language to hold that “federal courts are without power to decide questions that cannot affect the rights of litigants in the case before them.” North Carolina v. Rice, 404 U.S. 244, 246 (1971). In addition to the standing, ripeness, political question, and advisory opinion doctrines, this means that federal courts lack authority to hear actions that, while once involving a live case or controversy, have since become moot. City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). “Simply stated, a case is moot when the issues presented are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Los Angeles County v. Davis, 440 U.S. 625, 631 (1979) (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). The parties here do not dispute that, on this definition alone, plaintiff’s request for ongoing injunctive relief is moot as a result of defendant’s discontinuance of its unconstitutional practices.
There are, however, several recognized exceptions to the mootness doctrine. As the Supreme Court observed in City of Mesquite v. Aladdin’s Castle, Inc., “[i]t is well settled that a defendant’s voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice.” 455 U.S. 283, 289 (1992); accord United States v. W.T. Grant Co., 345 U.S. 629, 632 (1953). “Otherwise, a defendant
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could engage in unlawful conduct, stop when sued to have the case declared moot, then pick up where he left off, repeating this cycle until he achieves all his unlawful ends.” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013). The fact that “[t]he defendant is free to return to his old ways, . . . together with a public interest in having the legality of the practices settled, militates against a mootness conclusion” in such circumstances. W.T. Grant Co., 345 U.S. at 632. On the other hand, the exception does not apply if “subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 189 (2000) (quoting United States v. Concentrated Phosphate Export Ass’n, 393 U.S. 199, 203 (1968)). The party claiming mootness—here, defendant—bears the “‘heavy burden of persua[ding]’ the court that the challenged conduct cannot reasonably be expected to start up again.” Adarand Constructors, Inc. v. Slater, 528 U.S. 216, 222 (2000) (alteration in original) (quoting Friends of the Earth, 528 U.S. at 189).
These general principles are well-settled. What the parties dispute is how stringent a showing the Sixth Circuit requires under the particular circumstances of this case—i.e., where the voluntary cessation comes at the hands of a governmental entity or official, rather than a private actor. Common sense suggests that the decision of such a defendant to admit wrongdoing and change its ways is entitled to greater confidence than in an ordinary dispute among private litigants. See 13C Charles Alan Wright et al., Federal Practice and Procedure § 3533.7 (3d ed. 2002) (“Courts are more apt to trust public officials than private defendants to desist from future violations.”). As such, “cessation of . . . allegedly illegal
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conduct by government officials has been treated with more solicitude by the courts than similar action by private parties.” Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003) (quoting Mosley v. Hairston, 920 F.2d 409, 415 (6th Cir. 1990)). “[S]uch self-correction provides a secure foundation for a dismissal based on mootness so long as it appears genuine.” Bench Billboard Co. v. City of Cincinnati, 675 F.3d 974, 981 (6th Cir. 2012) (Varlan, J.) (quoting Mosley, 920 F.2d at 415); accord Fed’n of Adver. Indus. Reps., Inc. v. City of Chicago, 326 F.3d 924, 929 (7th Cir. 2003) (noting that Friends of the Earth “is the appropriate standard for cases between private parties, but this is not the view [courts] have taken toward acts of voluntary cessation by government officials”).
Defendant asserts that it has carried its burden of showing that its change of policy was genuine, such that the issue of injunctive relief is indeed moot. Defendant first cites to Bench Billboard, where a manufacturer of advertising benches sued the City of Cincinnati to challenge the legality of an ordinance that limited the manufacturer’s ability to place its benches on public and private property. 675 F.3d at 977. The parties settled the dispute and the City granted Bench Billboard a special exemption from the ordinance, which the City later revoked. Id. Bench Billboard then filed a second suit, but the City amended the relevant ordinance multiple times during the pendency of litigation. Id. at 977–78. The last such amendment, occurring after the parties cross-moved for summary judgment, entirely prohibited advertisements on bus stops and on benches in public rightsof-way. Id. at 979. Relying on Kentucky Right to Life, Inc. v. Terry, 108 F.3d 637 (6th Cir. 1997), and Brandywine, Inc. v. City of Richmond, 359 F.3d 830 (6th Cir. 2004), the
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Sixth Circuit affirmed the district court’s finding that this amendment mooted Bench Billboard’s First Amendment claims. 675 F.3d at 981–82.
The court distinguished Aladdin’s Castle on the ground that “[c]ritical to the holding [in that case] . . . ‘was the City’s announced intention to reenact the unconstitutional ordinance if the case was dismissed as moot.’” Id. at 981 (quoting Ky. Right to Life, 108 F.3d at 645). The court also distinguished Friends of the Earth on the ground that, while a stricter showing is necessary in litigation between private parties, the final amendment in Bench Billboard “was years in the making, . . . attempted to provide a framework for private uses of the public rights-of way within the City[,] and . . . appear[ed] genuine.” Id. at 982. Moreover, the City never conceded that its prior practices were unconstitutional and had entirely replaced the repealed ordinance with a new statutory structure, which did not seem to raise any constitutional issues. Id. The court therefore found that Bench Billboard’s claims for injunctive and declaratory relief were moot. Id.2
Defendant next cites to Love v. Johnson, No. 15-11834, 2016 WL 4437667 (E.D. Mich. Aug. 23, 2016), a decision concerning a challenge to the Michigan Secretary of State’s requirements for changing one’s gender on a state-issued ID card. The court there held that the Secretary’s decision to amend its policy and accept U.S. passports to validate an applicant’s gender rendered the action moot. Id. at *4. Relying on Brandywine and
2 However, this finding “did not nullify Bench Billboard’s claim for money damages.” Bench Billboard, 675 F.3d at 980 n.2. In other words, a case may be moot with respect to certain forms of relief, but not others. See Brandywine, 359 F.3d at 836. This is true here as well—the parties have already agreed that plaintiff is entitled to compensatory damages [Doc. 48 ¶ 2].
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Bench Billboard, the court found that the Secretary’s decision appeared genuine because she had not expressed any intent of reverting to the old policy. Id. at *3. Furthermore, “[r]eincarnating the old [p]olicy would be a significant waste of state resources and, as a practical matter, a fool’s errand,” given the court’s earlier decision that the policy implicated strict scrutiny. Id. Finally, the court rejected the plaintiff’s argument that unlike Bench Billboard and Brandywine, which involved legislative repeals of challenged laws, here an executive official had “exercised her unfettered discretion in unilaterally changing the policy” and was “completely unconstrained from changing it back again.” Id. Drawing such a sharp line between legislative and executive action would “render voluntary governmental compliance meaningless outside of the legislative sphere,” contrary to “what the Sixth Circuit intended by specifically distinguishing self-corrective measures adopted by government officials from private parties.” Id.3
Defendant argues that this case is analogous to Brandywine, Bench Billboard, and Love. Defendant notes that the relevant Knox County policymakers have now declared to the Court, under oath, that they will not reinstate the Jail’s former mail policy. These officials have also indicated their awareness that doing so would expose them again to
3 Defendant also cites to Lyda v. City of Detroit (In re City of Detroit), where the Sixth Circuit held that a procedural due process claim arising out of the City of Detroit’s termination of water services was mooted by the City’s alteration of those procedures after litigation began. 841 F.3d 684, 693–94 (6th Cir. 2016). The plaintiffs in Lyda did not ask the court to apply the voluntary cessation exception. Id. at 694 n.4. The court nonetheless noted that the exception would not apply in any event because “[v]oluntary cessation of a disputed procedure negates mootness only when ‘legislators . . . publicly expressed an intention to re-enact the offending legislation.’” Id. (omission in original) (quoting Brandywine, 359 F.3d at 836).
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personal liability—including for punitive damages—and that the Law Director’s office would not furnish them counsel in such litigation. Defendant asserts that, while these officials could theoretically reinstate the old policy in the future, doing so “would fly in the face of their sworn declarations to this Court” and would make little legal or practical sense [Doc. 58 p. 13]. Defendant further notes that it is undisputed that the old policy is no longer in effect, and plaintiff has admitted that the new policy is constitutional [See Doc. 57-5 pp. 3–4 (“[Plaintiff] is currently unaware of any additional constitutional violations committed . . . after October 13, 2016.”)]. Defendant argues that, under these circumstances, the Court can no longer “affect the legal relations between the parties,” and thus plaintiff’s request for injunctive relief is moot. Love, 2016 WL 4437667, at *3 (quoting Cam I, Inc. v. Louisville/Jefferson Cty. Metro Gov’t, 460 F.3d 717, 719–20 (6th Cir. 2006)).
Plaintiff argues, by contrast, that the voluntary cessation exception to mootness applies in this case. Plaintiff first notes that, as a general rule, “[t]he voluntary cessation of challenged conduct does not ordinarily render a case moot.” Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307 (2012). Plaintiff further argues that defendant here cannot meets its “formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Friends of the Earth, 528 U.S. at 190. Specifically, plaintiff claims that defendant must demonstrate it entered into an “unconditional and irrevocable” agreement with plaintiff that it would not revert to its unconstitutional practices to meet its burden. Already, LLC, 568 U.S. at 93. Instead, according to plaintiff, defendant has refused to consent to a permanent injunction despite
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admitting liability to all three claims in plaintiff’s complaint. Further, while recognizing the greater solicitude courts have afforded voluntary cessation by government officials, Bench Billboard, 675 F.3d at 981, plaintiff argues that “this does not alleviate [defendant] from the heavy burden of showing that the case is mooted” [Doc. 49 p. 12 (citing Ammex, Inc. v. Cox, 351 F.3d 697, 705 (6th Cir. 2003))].
Plaintiff relies primarily on two Sixth Circuit decisions in support of its argument. First, plaintiff cites to Akers v. McGinnis, 352 F.3d 1030 (6th Cir. 2003), where employees of the Michigan Department of Corrections challenged a rule barring all “non-work-related contact with prisoners, parolees, probationers . . . , their relatives and visitors,” id. at 1033. After the employees brought suit, the Department amended this rule to clarify certain definitions and permit employees to request exemptions under specific circumstances. Id. at 1034. The Sixth Circuit held that this amendment did not moot the case for two primary reasons: (1) “the promulgation of work rules appear[ed] to be solely within the discretion of the [Department]”; and (2) “the plaintiffs could [have been] entitled to money damages and the purging of their disciplinary records if the old version of the [r]ule were found to be unconstitutional even if the current version was constitutional,” thus requiring the court to examine all versions of the rule. Id. at 1035.
Plaintiff next cites to A. Phillip Randolph Institute v. Husted, 838 F.3d 699 (6th Cir. 2016), where activists claimed that Ohio’s method for purging voters no longer eligible to vote from the rolls violated federal law, id. at 702. During the pendency of litigation, the Secretary of State issued a revised confirmation notice form that remedied all but one of
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the plaintiffs’ concerns. Id. at 703–04. The court noted that it is a “rare instance” when defendants will be able to carry the burden of proving that their allegedly wrongful behavior cannot reasonably be expected to recur. Id. at 712 (quoting League of Women Voters of Ohio v. Brunner, 548 F.3d 463, 473 (6th Cir. 2008)). Further, while recognizing the special solicitude afforded government officials in this context, the court stated that “such solicitude does not carry much of an official’s burden.” Id. at 713 (citing Aladdin’s Castle, 455 U.S. at 289). In light of these principles, the court held that the case was not moot. Id. at 713. The court distinguished Bench Billboard on the ground that the Secretary had issued the new notice form at his own directive, rather than by legislative process, and had revised this form on a relatively frequent basis—i.e., four times in the prior nine years. Id. Moreover, as an elected official, the next Secretary might well change the form again. Id. But most notably, the Secretary’s voluntary cessation did not appear genuine because “he issued [the] form on the same day as the parties’ final merits briefs were due . . . , attaching the form as an exhibit to his brief and only then presenting his mootness argument.” Id. Such timing “d[id] not inspire confidence in his assurances regarding the likelihood of recurrence.” Id.4
4 Plaintiff also cites to a Fourth Circuit decision, Porter v. Clark, where the court noted that “a governmental entity’s change to a challenged policy does not moot an action when the government retains authority to ‘reassess . . . at any time’ the change and revert to the challenged policy.” 852 F.3d 358, 365 (4th Cir. 2017) (omission in original) (quoting Pashby v. Delia, 709 F.3d 307, 316–17 (4th Cir. 2013)). The same opinion notes, however, that such a change does moot the action “when the governmental entity ‘has not asserted its right to enforce [the challenged policy] at any future time.’” Id. at 364 (alteration in original) (quoting Telco Commc’ns, Inc. v. Carbaugh, 885 F.2d 1225, 1231 (4th Cir. 1989)). Thus, the Court finds Porter consistent with the principles of Sixth Circuit law discussed above.
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After reviewing the arguments advanced and authorities cited by both parties, the Court finds that defendant has carried its burden of showing that it will not readopt an unconstitutional mail policy in the future. At the outset, the Court notes that the various Sixth Circuit decisions cited by the parties are, at least on their face, somewhat inconsistent. In other words, these decisions appear to require showings of varying levels of stringency from government officials or entities that voluntarily cease unlawful practices. Yet, despite this apparent inconsistency, the Court finds that these decisions are in fact reconcilable. The critical consideration is whether the government has come forward with sufficient evidence to convince the Court that its policy reversal is genuine, candid, and intended as permanent, rather than designed merely to defeat the instant litigation. If so, the Sixth Circuit has repeatedly emphasized that “such self-correction provides a secure foundation for a dismissal based on mootness.” Bench Billboard, 675 F.3d at 981. Accordingly, the contrasting results in the cases discussed above are best explained by differing practical assessments of the sincerity of the governmental actor’s decisionmaking.
With that in mind, the Court finds that this case more closely parallels the decisions in Brandywine, Bench Billboard, Lyda, and Love, than those in Ammex, Inc., Akers, and A. Phillip Randolph. As in Bench Billboard, defendant has now entirely replaced the Jail’s former policy concerning inmate mail with a new set of written standards [Doc. 46-1], which plaintiffs have never claimed raise any constitutional concerns. And, while this decision came from executive officials rather than the legislative process, those officials have provided sworn declarations admitting the unconstitutionality of the former policy
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and promising not to return to such practices in the future. Like in Bench Billboard, Lyda, and Love, the officials here have never expressed any intention of reverting to the old policy should the case be deemed moot—quite the contrary. As such, the skepticism concerning the sincerity of the government’s decisionmaking that the Supreme Court expressed in Aladdin’s Castle is simply not present here. See Ky. Right to Life, 108 F.3d at 645 (holding that the exception discussed in Aladdin’s Castle “properly applies only when a recalcitrant legislature clearly intends to reenact the challenged regulation”). This conclusion is further reinforced by Law Director Armstrong’s sworn declaration that his office will not provide counsel for any official who adopts an unconstitutional mail policy, and that he will explain this to Jones’s and Bivens’s successors. Moreover, Armstrong’s acknowledgments that this litigation has been quite expensive for Knox County and that reverting to an unlawful mail policy would be an irrational waste of taxpayer resources instill further confidence in the Court as to the sincerity of defendant’s admissions.
In addition, the Court finds the two cases cited by plaintiff as factually analogous— Akers and A. Phillips Randolph—to be distinguishable. Unlike in Akers, there is no need here for the Court to scrutinize the constitutionality of the old mail policy because the parties have already stipulated to its illegality. And, while the relevant officials in this case have discretion, as in Akers, to alter the policy again in the future, the officials here have been notified that the Law Director’s office will not defend them in the litigation that would inevitably arise were they to readopt an unconstitutional policy. This, along with the officials’ likely personal liability for punitive damages and Knox County’s legal inability
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to indemnify payments for such damages, will disincentivize any return to wrongdoing in the future. In addition, this case is distinguishable from A. Phillip Randolph both for the same reasons just discussed and because the policy here has not been the subject of frequent revisions. Indeed, the Jail’s mail policy has undergone even fewer revisions than in Bench Billboard, thus warranting a higher degree of confidence in the officials’ sworn declarations that Knox County will not revert to an unconstitutional mail policy.5
But most importantly, all of the evidence here suggests that Knox County’s decision to admit wrongdoing and replace the old policy is genuine. Unlike A. Phillip Randolph, defendant here did not issue the revised policy at the eleventh hour and only then claim mootness. Rather, of its own accord, defendant filed an amended answer explaining its reasons for adopting the old policy in the first place, admitted that the shortcomings in this system had produced constitutional violations, and attached a new policy fully addressing plaintiff’s concerns [Docs. 46, 46-1]. Defendant then filed extensive documentation to demonstrate the sincerity of its reversal [Docs. 57-1–57-6]. Under these circumstances, the Court finds it highly improbable that defendant will reinstate an unconstitutional inmate mail policy for the Jail once this litigation concludes. Therefore, the Court is convinced that “there is no reasonable expectation that the wrong will be repeated” in the future. W.T. Grant Co., 345 U.S. at 633.
5 In addition, the Court notes that Already, LLC’s requirement of an “unconditional and irrevocable” agreement against future wrongdoing, 568 U.S. at 93, does not apply here because that case concerned a dispute between private litigants.
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In sum, because defendant’s voluntary termination of its unlawful practices mooted plaintiff’s motion for a permanent injunction, the Court lacks Article III authority to furnish the relief that plaintiff seeks. As such, the Court need not consider the parties’ arguments as to whether plaintiff is entitled to a permanent injunction under ordinary principles of equity [See Doc. 49 pp. 13–15; Doc. 58 pp. 4–6; Doc. 62 pp. 3–4; Doc. 63 pp. 2–3].6 The Court will accordingly deny plaintiff’s motion for a permanent injunction.
B. Defendant’s Motion for Summary Judgment The Court next considers defendant’s motion for summary judgment on plaintiff’s claims to equitable relief [Doc. 58]. At the outset, the Court notes the variety of procedural defects that might otherwise prevent it from ruling on this motion. First, defendant filed this motion eight days after the dispositive motion deadline passed and requested an extension of time to file the motion only after plaintiff brought defendant’s tardiness to the Court’s attention. Second, even if the Court were inclined to grant defendant’s request for a retroactive extension of time, defendant included this motion in its response to plaintiff’s motion for a permanent injunction. Plaintiff asserts that this is procedurally improper, and defendant has cited to no federal rule or statute permitting this tactic. And
6 The Court notes that, in any event, the chief source of dispute between the parties on the merits of plaintiff’s entitlement to injunctive relief is whether plaintiff has made an adequate showing of future irreparable harm. But that issue is, in this context, really one and the same with the mootness question. While it is true that, “[w]hen constitutional rights are threatened or impaired, irreparable injury is presumed,” Obama for Am. v. Husted, 697 F.3d 423, 436 (6th Cir. 2012), the likelihood that such impairment will occur in the future is inextricably bound up with the question whether defendant’s voluntary cessation of its illegal practices is genuine. The Court’s decision on that point thus resolves the irreparable harm issue as well.
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finally, because plaintiff’s entitlement to injunctive relief is an issue the Court may resolve upon plaintiff’s motion and the parties’ briefings, the procedural structure of Federal Rule of Civil Procedure 56 does not really help resolve the critical legal question at hand. As plaintiff puts the matter in its response brief, defendant’s motion for summary judgment “does nothing to advance the legal issue before Court,” i.e., whether plaintiff’s claim for equitable relief is moot [Doc. 62 p. 3].
Regardless, as discussed above, the Court lacks authority under Article III to grant any relief on plaintiff’s motion for a permanent injunction because that issue has become moot. This includes granting defendant the relief it seeks in its summary judgment motion. But because the Court will deny plaintiff’s motion, defendant has obtained the relief it seeks in any event. Thus, the Court will deny defendant’s motion as moot. III. Conclusion
Accordingly, for the reasons explained above, the Court DENIES plaintiff’s motion for a permanent injunction [Doc. 49], and DENIES as moot defendant’s motion for summary judgment [Doc. 58]. The Court notes, however, that this holding does not close this case. The parties have yet to file motions or briefs concerning plaintiff’s entitlement to attorneys’ fees under 42 U.S.C. § 1988—the sole remaining issue in dispute in this case [See Doc. 48 ¶ 3]. The Court encourages the parties to do so promptly, or to otherwise resolve that issue by mutual agreement.
The Court further notes that the appropriateness and amount of an award of attorney’s fees are issues for the Court, not a jury, to resolve. See Hensley v. Eckerhart,
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461 U.S. 424, 429–38 (1983) (providing the framework for district courts to apply in calculating a reasonable attorney’s fee award under § 1988); see also City of Riverside v. Rivera, 477 U.S. 561, 567 (1986) (noting that § 1988 “authorize[s] the district courts to award reasonable attorney’s fees to prevailing parties in specified civil rights litigation”). As such, there is no longer any need to conduct a jury trial in this matter. Both the jury trial scheduled for January 29, 2018, and the final pretrial conference scheduled for January 22, 2018, are therefore CANCELED.
IT IS SO ORDERED. s/ Thomas A. Varlan CHIEF UNITED STATES DISTRICT JUDGE
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Prison Legal News v. Jones et al (TV1) Assigned to: Chief District Judge Thomas A Varlan Referred to: Magistrate Judge C Clifford Shirley, Jr Cause: 28:1331 Federal Question: Other Civil Rights
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Date Filed: 10/06/2015 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

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represented by Harry Elliott Ozment Ozment Law 1214 Murfreesboro Pike Nashville, TN 37217 615−321−8888 Fax: 615−321−5230 Email: elliott@ozmentlaw.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lance Weber Human Rights Defense Center Post Office Box 1151 Lake Worth, FL 33460 603−903−3410 Fax: 866−735−7136 Email: lance@lanceweber.com TERMINATED: 12/30/2016 LEAD ATTORNEY PRO HAC VICE

Sabarish P Neelakanta Human Rights Defense Center Post Office Box 1151 Lake Worth, FL 33460 561−360−2523 Email: sneelakanta@hrdc−law.org LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Mary Eugenia Lewis Law Office of Gena Lewis P.O. Box 6004 Maryville, TN 37802 865−888−6946 Fax: 865−978−6605 Email: maryeugenialewis@yahoo.com TERMINATED: 04/05/2016

William Patrick York , II Ozment Law 1214 Murfreesboro Pike Nashville, TN 37217 615−321−8888 Fax: 615−321−5230 Email: will@ozmentlaw.com ATTORNEY TO BE NOTICED

Tricia Herzfeld Branstetter, Stranch & Jennings, PLLC
Case 3:15-cv-452 Doc <docnum> Filed <datefiled> Page 1 of 8

223 Rosa L. Parks Avenue Suite 200 Nashville, TN 37203 615−254−8801 Fax: 615−250−3937 Email: triciah@bsjfirm.com ATTORNEY TO BE NOTICED

V.
Defendant
James "J.J.&quot Jones Sheriff of Knox County, Tennessee in his official capacity also known as Jimmy "JJ" Jones

represented by David S Wigler Knox County Law Director's Office 400 W. Main Street Suite 612 Knoxville, TN 37902 865−215−2327 Fax: 865−215−2936 Email: lawdir@knoxcounty.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Rodney Bivens Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity

represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Knox County, Tennessee

represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
James "J.J.&quot Jones Sheriff of Knox County, Tennessee in his individual capacity TERMINATED: 06/26/2017

represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant
Rodney Bivens Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity TERMINATED: 06/26/2017

represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Counter Defendant Prison Legal News

represented by Harry Elliott Ozment (See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Lance Weber (See above for address) TERMINATED: 12/30/2016 LEAD ATTORNEY PRO HAC VICE

Sabarish P Neelakanta Case 3:15-cv-452 Doc <docnum> Filed <datefiled> Page 2 of 8

Counter Claimant Knox County, Tennessee
Counter Claimant James "J.J.&quot Jones Sheriff of Knox County, Tennessee in his official capacity
Counter Claimant Rodney Bivens Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity TERMINATED: 06/26/2017
Counter Claimant James "J.J.&quot Jones Sheriff of Knox County, Tennessee in his individual capacity TERMINATED: 06/26/2017
Counter Claimant Rodney Bivens Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity

(See above for address) LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Mary Eugenia Lewis (See above for address) TERMINATED: 04/05/2016
William Patrick York , II (See above for address) ATTORNEY TO BE NOTICED
Tricia Herzfeld (See above for address) ATTORNEY TO BE NOTICED
represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by David S Wigler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 10/06/2015
10/06/2015

# Docket Text
1 COMPLAINT for Declaratory and Injunctive Relief and for Damages against All Defendants ( Filing fee $ 400 receipt number 0649−2932685.), filed by Prison Legal News. (Attachments: # 1 Exhibit 1 − Policy 12.2, # 2 Exhibit 2 − Knox County Sheriff's Office Website, # 3 Other Civil Cover Sheet, # 4 Other Plaintiff's Corporate Disclosure Statement, # 5 Summons Def. James "J.J." Jones, # 6 Summons Def. Rodney Bivens, # 7 Summons Def. Knox County, Tennessee)(Herzfeld, Tricia) (Entered: 10/06/2015)
2 MOTION for Preliminary Injunction by Prison Legal News. (Herzfeld, Tricia) (Entered: 10/06/2015)

Case 3:15-cv-452 Doc <docnum> Filed <datefiled> Page 3 of 8

10/06/2015
10/09/2015 10/09/2015 10/12/2015 10/13/2015
10/19/2015 10/19/2015
10/20/2015
10/26/2015 10/26/2015 11/04/2015 11/04/2015 11/05/2015 11/20/2015

3 MEMORANDUM in Support of Motion re 2 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit A − Decl. of Paul Wright, # 2 Exhibit A1 − August 2015 edition of Prison Legal News, # 3 Exhibit A2 − The Habeas Citebook, # 4 Exhibit A3 − 2014 PLN Fundraiser Letter, # 5 Exhibit A4 − Information Brochure Packet, # 6 Exhibit B − Policy 12.2, # 7 Exhibit C − Knox County Sheriff's Office Inmate Handbook, # 8 Exhibit D − Defendants' Mail Rejection Notices, # 9 Exhibit E − Decl. of John Brown, # 10 Exhibit F − Decl. of Thomas Davis, # 11 Exhibit G − Decl. of Gregory Barner, # 12 Exhibit H − PLN v. Cnty. of San Diego, # 13 Exhibit I − PLN v. Lewis Cnty., # 14 Exhibit J − PLN v. Cnty. of Ventura, # 15 Exhibit K − PLN v. Spokane Cnty., # 16 Exhibit L − From the Classroom to the Community: Exploring the Role of Education during Incarceration and Reentry (The Urban Institute 2009), # 17 Exhibit M − ABA Standards for Criminal Justice: Treatment of Prisoners (3d ed.), # 18 Exhibit N − ICE Policy 5.1, # 19 Exhibit O − Decl. of John Clark, # 20 Exhibit O1 − Curriculum Vitae (John Clark), # 21 Exhibit P − Decl. of Greg Simcox, # 22 Exhibit Q − Tennessee Corrections Institute Standards (2015 ed.), # 23 Exhibit R − PLN v. Sullivan Cnty., Tenn., # 24 Exhibit S − PLN v. Stolle)(Herzfeld, Tricia) (Entered: 10/06/2015)
4 MOTION for Leave to Appear Pro Hac Vice as to Lance T. Weber, Esq. ( Filing fee $ 90 receipt number 0649−2936319.) by Prison Legal News. (Herzfeld, Tricia) (Entered: 10/09/2015)
5 MOTION for Leave to Appear Pro Hac Vice as to Sabarish P. Neelakanta ( Filing fee $ 90 receipt number 0649−2936320.) by Prison Legal News. (Herzfeld, Tricia) (Entered: 10/09/2015)
6 NOTICE of Appearance by Mary Eugenia Lewis on behalf of All Plaintiffs (Lewis, Mary) (Entered: 10/12/2015)
Clerk's Verification of PHV Requirements is complete regarding document: 5 MOTION for Leave to Appear Pro Hac Vice as to Sabarish P. Neelakanta ( Filing fee $ 90 receipt number 0649−2936320.) filed by Prison Legal News, 4 MOTION for Leave to Appear Pro Hac Vice as to Lance T. Weber, Esq. ( Filing fee $ 90 receipt number 0649−2936319.) filed by Prison Legal News (ABF) (Entered: 10/13/2015)
Chief District Judge Thomas A Varlan and Magistrate Judge C Clifford Shirley, Jr added. (KMK, ) (Entered: 10/19/2015)
7 Summons Issued as to Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his official capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee. (Attachments: # 1 Other Summons, # 2 Other Summons)(KMK) (Entered: 10/19/2015)
8 ORDER granting 4 Motion for Leave to Appear Pro Hac Vice and granting 5 Motion for Leave to Appear Pro Hac Vice. You MUST register as a CM/ECF user here: http://www.tned.uscourts.gov/RegistrationForm.php. Signed by Magistrate Judge C. Clifford Shirley, Jr. on 10/20/15. (This entry constitutes the complete Order of the Court.) (LWM) Modified on 10/21/2015 to indicate c/m (ABF). (Entered: 10/20/2015)
9 NOTICE of Appearance by Sabarish P Neelakanta on behalf of Prison Legal News (Neelakanta, Sabarish) (Entered: 10/26/2015)
10 NOTICE of Appearance by Harry Elliott Ozment on behalf of Prison Legal News (Ozment, Harry) (Entered: 10/26/2015)
11 Summons Returned Unexecuted by Prison Legal News as to Knox County, Tennessee. (Herzfeld, Tricia) (Entered: 11/04/2015)
12 NOTICE by Prison Legal News alias SUMMONS to be issued as to Knox County, Tennessee (Herzfeld, Tricia) (Entered: 11/04/2015)
13 Alias Summons Issued as to Knox County, Tennessee. (ABF) (Entered: 11/05/2015)
14 NOTICE of Appearance by William Patrick York, II on behalf of Prison Legal News (York, William) (Entered: 11/20/2015)

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11/20/2015 11/20/2015 11/20/2015 11/25/2015
11/25/2015 11/30/2015 12/09/2015 12/18/2015
12/18/2015
12/18/2015
12/18/2015

15 SUMMONS Returned Executed by Prison Legal News. James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his official capacity) served on 11/4/2015; James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his individual capacity) served on 11/4/2015. (York, William) (Entered: 11/20/2015)
16 SUMMONS Returned Executed by Prison Legal News. Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity) served on 11/5/2015; Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity) served on 11/5/2015. (York, William) (Entered: 11/20/2015)
17 SUMMONS Returned Executed by Prison Legal News. Knox County, Tennessee served on 11/9/2015. (York, William) (Entered: 11/20/2015)
18 [WITHDRAWN PER NOTICE 24 ] MOTION to Dismiss by Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his official capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee. (Wigler, David) Modified on 12/18/2015 (ABF, ). (Entered: 11/25/2015)
19 ORDER: The parties are ordered to confer and return the attached form within the time provided.Signed by Chief District Judge Thomas A Varlan on 11/25/15. (Attachments: # 1 Other Notice of Consent/Non−Consent) (ABF) (Entered: 11/25/2015)
20 NOTICE of Change of Address by Mary Eugenia Lewis (Lewis, Mary) (Entered: 11/30/2015)
21 RESPONSE in Opposition re 18 MOTION to Dismiss filed by Prison Legal News. (Attachments: # 1 Exhibit 1 − Newby v. Sharp, # 2 Exhibit 2 − Prison Legal News v. Bezotte, # 3 Exhibit 3 − Washington Business Licensing Serv. Query, # 4 Exhibit 4 − Compl., Newby v. Sharp)(York, William) (Entered: 12/09/2015)
22 [REFILED PER CLERICAL ERROR as doc 23 NOTICE by Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his official capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee of filing Declaration of Rodney P. Bivens (Wigler, David) Modified on 12/18/2015 (ABF). (Entered: 12/18/2015)
23 NOTICE by Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee of Filing Declaration of Rodney P. Bivens (Attachments: # 1 Other Declaration of Rodney P. Bivens with attachments)(Wigler, David) (Entered: 12/18/2015)
24 NOTICE by Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee re 18 MOTION to Dismiss (of Withdrawal of Motion to Dismiss) (Wigler, David) (Entered: 12/18/2015)
25 ANSWER to 1 Complaint,, (and Counter−Claim for Declaratory Judgment), COUNTERCLAIM against Prison Legal News by Knox County, Tennessee, James "J.J." Jones(Sheriff of Knox County, Tennessee in his official capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity).(Wigler, David) Modified text on 12/18/2015 (ABF). (Entered: 12/18/2015)

Case 3:15-cv-452 Doc <docnum> Filed <datefiled> Page 5 of 8

12/18/2015
12/22/2015 12/28/2015 01/08/2016 01/11/2016 01/11/2016 01/11/2016
01/29/2016
02/02/2016 02/03/2016
04/04/2016 04/04/2016 04/05/2016

26 RESPONSE in Opposition re 2 MOTION for Preliminary Injunction filed by Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee. (Wigler, David) (Entered: 12/18/2015)
27 Unopposed MOTION for Extension of Time to File Response/Reply as to 26 Response in Opposition to Motion,, by Prison Legal News. (York, William) (Entered: 12/22/2015)
28 ORDER granting 27 Motion for Extension of Time to File Response/Reply. There is no document associated with this order. Signed by Chief District Judge Thomas A. Varlan on 12/28/2015. (JEM) (Entered: 12/28/2015)
29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Counterclaims) by Prison Legal News. (Herzfeld, Tricia) (Entered: 01/08/2016)
NOTICE OF FAILURE TO FILE Consent/Non−Consent to Magistrate Judge as required by prior court order (ABF) (Entered: 01/11/2016)
30 NOTICE OF NONCONSENT by Prison Legal News (York, William) (Entered: 01/11/2016)
31 REPLY to Response to Motion re 2 MOTION for Preliminary Injunction filed by Prison Legal News. (Attachments: # 1 Exhibit 1 − Decl. of Thomas Davis, # 2 Exhibit 2 − Inmate Mail Rejection Notice (Davis), # 3 Exhibit 3 − Decl. of Charles Mundy, # 4 Exhibit 4 − Decl. of Jeffrey Wooten, # 5 Exhibit 5 − Our Daily Bread Subscription Website, # 6 Exhibit 6 − Reply Decl. of Paul Wright, # 7 Exhibit 7 − Email to Knox County Law Director, # 8 Exhibit 8 − Select Knox Cnty. Jail Policies)(York, William) (Entered: 01/11/2016)
32 MOTION for Order Compelling Judicial Settlement Conference or Mediation and to Stay Proceedings Pending Same by Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his official capacity), James "J.J." Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee. (Wigler, David). Added MOTION to Stay on 1/29/2016 (ABF). (Entered: 01/29/2016)
33 Cross MOTION to Stay Proceedings Pending Private Alternative Dispute Resolution and RESPONSE to 32 MOTION for Order Compelling Judicial Settlement Conference or Mediation and to Stay Proceedings Pending Same by Prison Legal News. (York, William) Modified text on 2/3/2016 (ABF). (Entered: 02/02/2016)
34 ORDER that the Court hereby STAYS this action until March 31, 2016, so that the parties may engage in mediation. Accordingly, the Motion of Defendants for Order Compelling Judicial Conference or Mediation and to Stay Proceedings Pending Same 32 is hereby GRANTED in part and DENIED in part, and Plaintiffs Motion to Stay Proceedings Pending Private Alternative Dispute Resolution and Response to Defendants Motion Compelling Judicial Settlement Conference or Mediation and to Stay 33 is GRANTED. All other pending motions are hereby DENIED with leave to refile upon the lifting of the stay. The Clerk of Court is DIRECTED to LIFT the stay on April 1, 2016. On or before April 8, 2016, the parties shall FILE a report consistent with Local Rule 16.4(m). Signed by Chief District Judge Thomas A Varlan on 2/3/16. (ABF) (Entered: 02/03/2016)
STAY LIFTED per Order 34 (ABF) (Entered: 04/04/2016)
35 MOTION to Withdraw as Attorney for Plaintiff by Prison Legal News. (Lewis, Mary) (Entered: 04/04/2016)
36 ORDER granting 35 Motion to Withdraw as Attorney. Attorney Mary Eugenia Lewis is RELIEVED of her duties as counsel in this matter. Signed by Magistrate Judge C Clifford Shirley, Jr on 4/5/16. (ABF) (Entered: 04/05/2016)

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04/08/2016 04/12/2016
04/12/2016 04/13/2016
04/13/2016 04/13/2016 04/21/2016 08/15/2016
08/15/2016 10/13/2016
12/29/2016 06/26/2017 06/26/2017 07/11/2017 07/11/2017
07/18/2017 07/18/2017

37 REPORT of Mediation (Herzfeld, Tricia) (Entered: 04/08/2016)
38 MOTION for Hearing on Plaintiff's Preliminary Injunction Motion by Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his individual capacity), Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee. (Wigler, David) (Entered: 04/12/2016)
39 RESPONSE to Motion re 29 MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM (Counterclaims) and in support of Knox County's Counterclaim filed by Knox County, Tennessee. (Wigler, David) (Entered: 04/12/2016)
40 (Vacated per Order, doc. 41) ORDER REFERRING MOTION: 38 MOTION for Hearing on Plaintiff's Preliminary Injunction Motion filed by Knox County, Tennessee, Rodney Bivens, James "J.J." Jones referred to the Honorable C. Clifford Shirley, Jr., USMJ.Signed by Chief District Judge Thomas A Varlan on 4/13/16. (ABF) Modified on 4/13/2016 (KMK, ). (Entered: 04/13/2016)
41 ORDER re 40 Order Referring Motion for Hearing [Doc. 38] is hereby VACATED. Signed by Chief District Judge Thomas A Varlan on 04/13/2016. (LPG) (Entered: 04/13/2016)
42 ORDER denying as moot 38 Motion for Hearing. Signed by Chief District Judge Thomas A Varlan on 4/13/2016. (KMK, ) (Entered: 04/13/2016)
43 REPORT of Rule 26(f) Planning Meeting. (Herzfeld, Tricia) (Entered: 04/21/2016)
44 SCHEDULING ORDER: Jury Trial set for 1/29/2018 09:00 AM in Courtroom 4 − Knoxville before Chief District Judge Thomas A Varlan. Final Pretrial Conference set for 1/22/2018 03:00 PM in Courtroom 4 − Knoxville before Chief District Judge Thomas A Varlan.Signed by Chief District Judge Thomas A Varlan on 8/15/16. (ABF) (Entered: 08/15/2016)
45 Order Governing Depositions. Signed by Chief District Judge Thomas A Varlan on 8/15/16. (ABF) (Entered: 08/15/2016)
46 Amended and Restated ANSWER to 25 Answer to Complaint, Counterclaim,,,, by Rodney Bivens(Assistant Chief Deputy of the Knox County Sheriff's Office in his official capacity), James "J.J.&quot Jones(Sheriff of Knox County, Tennessee in his individual capacity), Knox County, Tennessee. (Attachments: # 1 Exhibit 1 Inmate mail policy)(Wigler, David) (Entered: 10/13/2016)
47 NOTICE by Prison Legal News of Withdrawal of Attorney Lance Weber (Weber, Lance) (Entered: 12/29/2016)
48 STIPULATION by Prison Legal News. (Herzfeld, Tricia) (Entered: 06/26/2017)
49 MOTION for Permanent Injunction and Memorandum in Support by Prison Legal News. (Herzfeld, Tricia) (Entered: 06/26/2017)
50 MOTION to Compel Judicial Settlement Conference, MOTION to Stay Proceedings Pending Same by Knox County, Tennessee. (Wigler, David) (Entered: 07/11/2017)
51 MOTION To Treat Plaintiff's Motion for Permanent Injunction as an Amended Complaint re 49 MOTION for Permanent Injunction and Memorandum in Support or for, MOTION for Extension of Time to File Response/Reply as to 49 MOTION for Permanent Injunction and Memorandum in Support by Knox County, Tennessee. (Wigler, David) (Entered: 07/11/2017)
52 RESPONSE to Motion re 50 MOTION to Compel Judicial Settlement Conference MOTION to Stay Proceedings Pending Same filed by Prison Legal News. (Herzfeld, Tricia) (Entered: 07/18/2017)
53 RESPONSE to Motion re 51 MOTION To Treat Plaintiff's Motion for Permanent Injunction as an Amended Complaint re 49 MOTION for Permanent Injunction and Memorandum in Support or for MOTION for Extension of Time to File Response/Reply as to 49 MOTION for Permanent Injunction and Memorandum in

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07/26/2017
08/17/2017 08/18/2017
09/08/2017 09/08/2017 09/11/2017 09/13/2017 09/15/2017 10/06/2017 10/10/2017 10/16/2017 10/24/2017 10/31/2017

Support filed by Prison Legal News. (Herzfeld, Tricia) (Entered: 07/18/2017)
54 ORDER REFERRING MOTION: 51 MOTION To Treat Plaintiff's Motion for Permanent Injunction as an Amended Complaint re 49 MOTION for Permanent Injunction and Memorandum in Support or for MOTION for Extension of Time to File Response/Reply as to 49 MOTION for Permanent Injunction and Memorandum in Support filed by Knox County, Tennessee referred to the Honorable C. Clifford Shirley, Jr., USMJ. Signed by Chief District Judge Thomas A Varlan on 7/26/17. (ABF) (Entered: 07/26/2017)
55 CERTIFICATE OF SERVICE by Prison Legal News (Neelakanta, Sabarish) (Entered: 08/17/2017)
56 ORDER: The Motion of Knox County to Treat Plaintiffs Motion for Permanent Injunction as an Amended Complaint Subject to the Scheduling Order, or for Extension of Time to Respond to Plaintiffs Motion for Permanent Injunction 51 is GRANTED IN PART AND DENIED IN PART. The Defendant SHALL file its response to the Plaintiffs Motion for Permanent Injunction 49 on or before September 8, 2017. Signed by Magistrate Judge C Clifford Shirley, Jr on 8/18/17. (ABF) (Entered: 08/18/2017)
57 NOTICE by Knox County, Tennessee of Filing Documents in Support of its Motion for Summary Judgment (Attachments: # 1 Exhibit 1 Declaration of JJ Jones, # 2 Exhibit 2 Declaration of R. Bivens, # 3 Exhibit 3 Declaration of R. Armstrong, # 4 Exhibit 4, # 5 Exhibit 5, # 6 6)(Wigler, David) (Entered: 09/08/2017)
58 MOTION for Summary Judgment and Response in Opposition to Plaintiff's Motion for Permanent Injunction by Knox County, Tennessee. (Wigler, David) (Entered: 09/08/2017)
59 MOTION to Compel Judicial Settlement Conference, MOTION to Stay Proceedings pending same by Knox County, Tennessee. (Wigler, David) (Entered: 09/11/2017)
60 Unopposed MOTION for Extension of Time to File Response/Reply as to 59 MOTION to Compel Judicial Settlement Conference MOTION to Stay Proceedings pending same, 58 MOTION for Summary Judgment and Response in Opposition to Plaintiff's Motion for Permanent Injunction by Prison Legal News. (Herzfeld, Tricia) (Entered: 09/13/2017)
61 ORDER granting 60 Motion for Extension of Time to File Response/Reply. Plaintiff shall have up to and including October 6, 2017, to file responses to defendant Knox County's motions for summary judgment and to compel a judicial settlement conference [Docs. 58, 59]. Signed by Chief District Judge Thomas A Varlan on 9/15/17. (JBR) (Entered: 09/15/2017)
62 PLAINTIFF'S RESPONSE IN OPPOSITION TO DEFENDANTS' MOTION 58 FOR SUMMARY JUDGMENT AND REPLY TO PLAINTIFF'S MOTION FOR PERMANENT INJUNCTION 49 and Memorandum in Support filed by Prison Legal News. (Neelakanta, Sabarish) Modified text and links on 10/10/2017 (ADA). (Entered: 10/06/2017)
63 REPLY to Response to Motion re 58 MOTION for Summary Judgment and Response in Opposition to Plaintiff's Motion for Permanent Injunction filed by Knox County, Tennessee. (Attachments: # 1 Other copy of counsel's email chain)(Wigler, David) (Entered: 10/10/2017)
64 RESPONSE to Motion re 59 MOTION to Compel Judicial Settlement Conference MOTION to Stay Proceedings pending same filed by Prison Legal News. (Neelakanta, Sabarish) (Entered: 10/16/2017)
65 MEMORANDUM, OPINION AND ORDER: Defendant's two motions to compel a judicial settlement conference 50 , 59 are hereby DENIED. The Scheduling Orderin this matter 44 will thus remain fully in effect. Signed by Chief District Judge Thomas A Varlan on 10/24/17. (ABF) (Entered: 10/24/2017)
66 STATUS REPORT Joint by Prison Legal News. (Herzfeld, Tricia) (Entered: 10/31/2017)

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