Case 2:13-cv-00424-MSD-TEM Document 1 Filed 07/30/13 Page 1 of 8 PageID# 1
FILED

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

^ JUL 3 0 2013
C! I RK, U S. DIS7RIC1 COURT
MORI OLK, VA

PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
vs.
KEN STOLLE, Sheriff for Virginia Beach, Virginia, sued in his official and individual capacity and John Does 1-10.
Defendants.

COMPLAINT AND JURY DEMAND
& i Civil Action No. 2:13cv

INTRODUCTION
1. Plaintiff Prison Legal News brings this action to enjoin Defendants' censorship of its monthly publication, books and other correspondence mailed to prisoners who are held in
custody at the Virginia Beach Correctional Center, in violation of the First Amendment.
Further, defendants' policies and practices do not afford due process notice and an opportunity to challenge the censorshipas required by the Fourteenth Amendment.

JURISDICTION
2. This action arises under the First and Fourteenth Amendments to the United States Constitution and 42 U.S.C. § 1983. This Court has jurisdiction over this action under 28 U.S.C. §§1331 and 1343(a)(3) and (a)(4) and 28 U.S.C. §§2201 and 2202.

Case 2:13-cv-00424-MSD-TEM Document 1 Filed 07/30/13 Page 2 of 8 PageID# 2
VENUE
3. Venue properly lies in this District pursuant to 28 U.S.C. §§ 1391(b)(2) and Local Civil Rule 3(B) because the Virginia Beach Correctional Center is located in Virginia Beach,
Virginia.
PARTIES
4. Plaintiff Prison Legal News ("PLN") is aproject of the Human Rights Defense Center ("HRDC"), aWashington State 501(c)(3) non-profit corporation with principal offices in Lake Worth, Florida. 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. All prisoners as well as their family, friends, advocates, and
attorneys are among the intended beneficiaries of PLN activities.
5. Defendant Kenneth W. Stolle is the Sheriff of Virginia Beach, Virginia, and is responsible for the operation of the Virginia Beach Correctional Center ("VBCC"). The VBCC is the largest jail in the Commonwealth and holds approximately 1,400 prisoners
on any given day. Defendant Stolle is responsible for the implementation and enforcement ofall VBCC policies and procedures. At all times relevant to this Complaint, he was acting under color ofstate law. He is sued in his individual and
official capacities.
6. Defendants John Does 1-5 are unknown employees of the Virginia Beach Sheriffs office who were responsible for censoring or otherwise refusing to deliver correspondence from
PLN to prisoners at VBCC as set forth hereinafter. At all times relevant to this Complaint, these Defendants were acting under color ofstate law.

Case 2:13-cv-00424-MSD-TEM Document 1 Filed 07/30/13 Page 3 of 8 PageID# 3
7. Defendants John Does 6-10 are unknown employees of the Virginia Beach Sheriffs office who were responsible for notifying publishers that their correspondence had been rejected and who failed to do so with respect to the correspondence from PLN as set forth
hereinafter.
FACTUAL ALLEGATIONS
8. PLN publishes and distributes a64-page monthly journal entitled "Prison Legal News:
Dedicated to Protecting Human Rights," which reports on criminal justice news and
issues. PLN also publishes, sells and distributes books on avariety ofcriminal justice,
human rights and self-help issues. PLN also operates a website
(www.prisonlegalnews.org) containing an extensive database ofcase law, verdicts, settlements, commentary, and other material related to these topics. 9. PLN has published monthly since 1990 and has approximately 7,000 subscribers in all 50 states and abroad. PLN's subscribers include lawyers, journalists, judges, courts, public
libraries, universities and prisoners. The estimated actual readership is 70,000 per month.
PLN's website receives more than 100,000 visitors a month.
10. PLN currently has, and at all times relevant to this Complaint has had, subscribers who
are or were prisoners in the custody of the VBCC; some of these prisoners have since
been transferred to astate prison where PLN is permitted by subscription.
11• Since April 2012, PLN has sent to numerous prisoners in custody ofVBCC :(1) Sample
issues ofPLN mailed in amanila envelope via first class mail; (2) Information Brochure Packets ("Info Packet") detailing book offers and subscription rates mailed in aregularsized envelope via first class mail; (3) the soft cover book Protecting Your Health and

Case 2:13-cv-00424-MSD-TEM Document 1 Filed 07/30/13 Page 4 of 8 PageID# 4
Safety sent via media class mail; (4) Copies ofClement v. California Department of Corrections, et al„ 364 F.3d 1148 (9lh Cir. 2004), sent in a regular-sized envelope via first class mail; and (5) monthly issues of PLN sent from PLN's printer.
12. Since August 2011, PLN has sent more than two hundred of the above items to
approximately 30 separate subscribers in custody at the VBCC. As confirmed by at least one prisoner subscriber at VDCC, PLN correspondence was permitted to be received by
prisoners for several months prior to April 2012. 13. Starting inapproximately April 2012, PLN began receiving returned items it had mailed
to prisoners in VBCC through the U.S. Postal Service's "Return to Sender" process. 14. PLN received back copies ofits magazine, all ofwhich were individually addressed to its
prisoner subscribers. These magazines had a "Return to Sender" stamp on them and handwritten notes stating "Not Here" or "Refused." Acheck ofthe prisoner subscriber's custody status revealed them to be in custody at VBCC at the time the magazines were
returned to PLN, even those marked "Not Here."
15. Informational Brochure Packets were also returned with labels and stamps reading "Not
Here" and "Refused." A check ofthe prisoner subscriber's custody status revealed that
even those marked "Not Here" to be in custody at VBCC at the time the Info Packets
were returned to PLN.
16. PLN has only once been notified by VBCC ofthe rejection ofits correspondence. PLN learned through its subscribers, however, that widespread censorship ofPLN correspondence was occurring. PLN is aware ofat least 67 items of correspondence
censored by VBCC between April 2012 and the present.

Case 2:13-cv-00424-MSD-TEM Document 1 Filed 07/30/13 Page 5 of 8 PageID# 5
17. According to the Mail Restriction Forms given to prisoners at VBCC, and provided to
PLN by its subscribers, monthly PLN issues were censored because it was claimed that its advertisements contain "sexually explicit material." However, PLN's advertisements contain no nudity or depictions of sexual acts.
18. According to the Mail Restriction Forms given to prisoners at VBCC, and provided to PLN by its subscribers, the Info Packets were censored because "ordering forms with
prices, catalogs [and] brochures" are not permitted.
20. The Mail Restriction Forms also state that anappeal process is provided to both the sender and the recipient. However, prisoner subscribers are only notified after PLN has been rejected and placed in their property box.
21. As previously stated, PLN has received only one such Mail Restriction Form from VBCC. That form was taped to the back of an envelope stamped "Return to Sender" and hand marked "Refused." Numerous seizures of PLN correspondence have occurred
without notice to PLN. CAUSES OF ACTION
FIRST CAUSE OF ACTION
(Lack of Timely and Adequate Notification to Publisher) 22. Plaintiff realleges and incorporates by reference paragraphs 1-21 herein. 23. The failure to provide timely notification and adequate reasons for disapproval decisions,
violates PLN's rights protected by the First and Fourteenth Amendments. 24. As a direct and proximate result of the conduct of Defendants, PLN has suffered a loss of
its right to due process and its right to communicate with willing recipients and has also

Case 2:13-cv-00424-MSD-TEM Document 1 Filed 07/30/13 Page 6 of 8 PageID# 6
suffered financial injury.
SECOND CAUSE OF ACTION
(Censorship of Constitutionally Protected Speech) 25. Plaintiff realleges and incorporates by reference paragraphs 1-21 herein. 26. Defendants have disapproved orrefused to deliver publications that contain
constitutionally protected speech.
27. The aforesaid conduct by Defendants, without adequate penological justification, violates
PLN's First Amendment rights.
28. As a direct and proximate result of the aforesaid conduct of Defendants, Plaintiff has suffered a loss of its right to communicate with willing recipients and has also suffered
financial injury.
THIRD CAUSE OF ACTION
(Facial Validity of Rule Prohibiting "Sexually Explicit Material") 29. Plaintiff realleges and incorporates by reference paragraphs 1-21 herein. 30. The rule prohibiting "sexually explicit material," is vague and overbroad and therefore
facially invalid as a violation of the First Amendment.
31. As adirect and proximate result ofthe aforesaid conduct ofDefendants enforcing that rule, Plaintiff has suffered a loss ofits right to communicate with willing recipients and
has also suffered financial injury.
FOURTH CAUSE OF ACTION
(Refusal to allow Information Packets)
32. Plaintiff realleges and incorporates by reference paragraphs 1-21 herein. 33. Prohibiting the receipt by PLN's subscribers and others of information on howto

Case 2:13-cv-00424-MSD-TEM Document 1 Filed 07/30/13 Page 7 of 8 PageID# 7
subscribe to the magazine and about books and other publications for sale by Plaintiff, without adequate penological justification, violates PLN's First Amendment rights. 34. As a direct and proximate result of the conductof Defendants, as described above, PLN has suffered a loss of its right to communicate with willing recipients and has also suffered financial injury.
WHEREFORE, Plaintiff requests the following relief: a. Declaratory judgment that the failure to provide adequate and timely notice of decisions
to disapprove a publication and to provide Plaintiff a timely and adequate opportunity to be heard violates PLN's First Amendment and due process rights;
b. Preliminary and permanent injunction requiring that facilities under the control and direction of Defendant Stolle provide notice to PLN of any proposed decision to disapprove a PLN publication and that the notice indicate what specific article(s) and/or advertisement(s) are at issue and if a book, which pages, an explanation of how the article(s) and/or advertisement(s) or pages in question threaten the valid penological interests of VBCC, and an opportunity to appeal the disapproval to an official other than the one who made the initial censorship decision.
c. Declaratory judgment that thecensorship or refusal to deliver the PLN magazine to prisoners in custody of VBCC violates PLN's First Amendment rights.
d. Preliminary and permanent injunction requiring Defendants to allow receipt of the PLN magazine unless there is a valid penological justification to censorthat particular issue.
e. Declaratory judgment that the rule prohibiting the receipt of "sexually explicit material" is facially invalid as overbroad and vague.

Case 2:13-cv-00424-MSD-TEM Document 1 Filed 07/30/13 Page 8 of 8 PageID# 8

f. Preliminary and permanent injunction prohibiting Defendants from censoring or rejecting
PLN publications based on the simple standard of"sexually explicit." g- Declaratory judgment that the VBCC rule prohibiting "ordering forms with prices,
catalogs, brochures" violates the First Amendment.
h. Preliminary and permanent injunction prohibiting Defendants from refusing to allow
PLN's Information Brochure Packets without penological justification. Awarding PLN nominal, compensatory and punitive damages; Awarding attorney's fees and costs to Plaintiff;
k. Awarding such other and further relief as the Court may deem just and proper.
JURY DEMAND
Plaintiff hereby demands a trial byjury on all issues so triable.

Jeffrey E. Fogel, VSB #75643 Attorney at Law
913 E. Jefferson Street
Charlottesville, VA 22902 434-984-0300 (Tel) 434-220-4852 (Fax) Email: ieff.fo<>el@gmail.com
Steven D. Rosenfield, VSB #16539 Attorney at Law
913 E. Jefferson Street Charlottesville, VA 22902
434-984-0300 (Tel) 434-220-4852 (Fax)
Email: attvrosen@aol.com

Respectfully submitted,
PRISON LEGAL NEWS By Counsel
Lance Weber, Missouri State Bar #49055
(To be admitted pro hac vice) Human Rights Defense Center
General Counsel PO Box 1151 Lake Worth, Florida 33460
561-360-2523 (Tel) 866-228-1681 (Fax)
lwcber@humanrightsdefensecenter.org
Attorneys for Plaintiff

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
Norfolk Division
PRISON LEGAL NEWS, a project
of the HUMAN RIGHTS DEFENSE CENTER,

FILED
SEP "8 2015
CLERK, US DISTRICT COURT
NC-'.FO'-K. VA

Plaintiff,

v.
KEN STOLLE, Sheriff for Virginia Beach, Virginia, et. al,

Civil No. 2:13cv424

Defendants.

OPINION AND ORDER
This matter is before the Court on a motion seeking
attorney's fees and litigation expenses filed by Prison Legal News, a project of the Human Rights Defense Center,
("Plaintiff," or "PLN"). Such motion is filed pursuant to 42 U.S.C. § 1988, and is predicated on Plaintiff's success in
obtaining permanent injunctive relief on its § 1983 claims through summary judgment as well as securing a subsequent negotiated consent decree. Defendant Ken Stolle, the Sheriff of Virginia Beach, Virginia, and the individually named Sheriff's deputies (collectively, "Defendants"), filed a joint brief acknowledging that a fee award is appropriate, but challenge the extent of the award requested by Plaintiff. For the reasons

discussed below, Plaintiff's motion seeking attorney's fees is

GRANTED, although the amount of fees requested is reduced from

the amount sought by Plaintiff.

I. Factual and Procedural Background

The Court incorporates herein the sections entitled

"Factual and Procedural Background" in its December 8, 2014

Opinion and Order and March 31, 2015 Opinion and Order.

ECF

Nos. 65, 84. In short, PLN is the publisher of a monthly

magazine titled "Prison Legal News," which is marketed mainly to

inmates. Over the past several years, inmates at the Virginia

Beach Correctional Center {"VBCC"), which is operated by Sheriff

Stolle and the Virginia Beach Sheriff's Office ("VBSO"), have

not been permitted to receive the monthly Prison Legal News

magazine due to its alleged violation of the VBSO "sexually

explicit" materials policy and "ordering forms" policy.

Plaintiff's lawsuit challenged Defendants' exclusion of Prison

Legal News magazine from VBCC.

In this Court's December 8, 2014 Opinion, the Court ruled

in Defendant's favor regarding the exclusion of Prison Legal

News magazine from VBCC based on the VBSO "ordering forms"

policy, and reserved ruling on the "sexually explicit" materials

policy.1 In this Court's March 31, 2015 Opinion, the Court found

1The Court did, however, conclude that Defendants were shielded by qualified immunity as to money damage claims involving their maintenance/enforcement of the "sexually explicit" materials policy.

that the VBSO had previously maintained an unconstitutionally

overbroad "sexually explicit" materials policy, and although

such policy had been amended during the course of the

litigation, the Court entered a permanent injunction precluding

the VBSO from returning to its former policy. Additionally, the

Court found that Defendants had previously engaged in due

process violations in their handling of magazine censorship

decisions, and although such procedures had been modified and

corrected during the course of the litigation, the Court entered

a permanent injunction precluding the VBSO from returning to its

prior notification and censorship practices. After the issuance

of the Court's March 31, 2015 Opinion, the parties continued to

dispute the degree of nominal damages that should be awarded to

PLN for the due process violations, as well as whether punitive

damages should be awarded. Prior to a bench-trial being

conducted to resolve such remaining dispute, the parties reached

a settlement and a consent decree was entered.

Plaintiff

thereafter filed this motion as the consent decree did not

include an agreement regarding attorney's fees.

II. Standard for Attorney's Fee Award

A. Right to Fees

The instant civil case was filed pursuant to 42 U.S.C.

§ 1983 seeking to remedy the alleged depravation of

constitutional rights, and it is undisputed that: (1) pursuant

to 42 U.S.C. § 198 8, this Court has discretion to award

reasonable attorney's fees and litigation expenses to a

"prevailing party" in a § 1983 action; and (2) that PLN

qualifies as a "prevailing party" in this case and is thus

entitled to at least a partial award of fees, as well as

litigation expenses. 42 U.S.C. § 1988; see S-l & S-2 By &

Through P-1 & P-2 v. State Bd. of Educ. of N. Carolina, 21 F.3d

49, 51 (4th Cir. 1994) (indicating that a "prevailing party" may

be awarded attorney's fees if it obtains "an enforceable

judgment, consent decree, or settlement giving some of the legal

relief sought in a § 1983 action" (citing Farrar v. Hobby, 506

U.S. 103 (1992))). It is well-established that the purpose of

fee shifting under § 1988 is to "'ensure effective access to the

judicial process,' for persons with civil rights grievances."

Lefemine v. Wideman, 758 F.3d 551, 555 (4th Cir. 2014) (quoting

Hensley v. Eckerhart, 461 U.S. 424, 429 (1983)). Accordingly,

"[i]n light of Section 1988's language and purpose, a prevailing

plaintiff 'should ordinarily recover an attorney's fee unless

special circumstances would render such an award unjust.'" Id.

(quoting Hensley, 461 U.S. at 429).

Here, Plaintiff's

entitlement to an award of attorney's fees and litigation

expenses is well-supported by the record, and thus, the only

remaining task is determination of a "reasonable fee award" that

is appropriate in this case. Id. at 559.

B. Calculation of "Reasonable" Fee Award
The Fourth Circuit has outlined a three step framework for
calculating a reasonable attorney's fee:
First, the court must "determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate." Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). To
ascertain what is reasonable in terms of hours
expended and the rate charged, the court is bound to apply the factors set forth in Johnson v. Georgia Highway Express Inc., 488 F.2d 714, 717-19 (5th Cir. 1974). Id. at 243-44. Next, the court must "subtract fees for hours spent on unsuccessful claims unrelated
to successful ones." Id. at 244. Finally, the court
should award "some percentage of the remaining amount,
depending on the degree of success enjoyed by the
plaintiff." Id.
McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013), as amended
(Jan. 23, 2014) (footnote omitted).
The calculation of a lodestar figure is "[t]he most useful
starting point for determining the amount of a reasonable fee,"
because it "provides an objective basis on which to make an
initial estimate of the value of a lawyer's services." Hensley,
461 U.S. at 433; see Perdue v. Kenny A. ex rel. Winn, 559 U.S.
542, 551 (2010) (characterizing the lodestar calculation as "the
guiding light of . . . fee-shifting jurisprudence") (quotation
marks and citation omitted). The fee applicant bears the burden
of proving the reasonableness of the hours expended and the
requested hourly rates, which generally requires submission of
the attorney's own affidavit and timesheets as well as

"'satisfactory specific evidence of the prevailing market rates
in the relevant community for the type of work for which [the
attorney] seeks an award.'" Grissom v. The Mills Corp., 549
F.3d 313, 321 (4th Cir. 2008) (quoting Plyler v. Evatt, 902 F.2d
273, 277 (4th Cir. 1990)). In evaluating the submissions in
order to determine both a reasonable rate and a reasonable
number of hours expended, the lodestar analysis is guided by the
following twelve factors (the "Johnson factors"):
(1) the time and labor expended; (2) the novelty and
difficulty of the questions raised; (3) the skill required to properly perform the legal services rendered; (4) the attorney's opportunity costs in pressing the instant litigation; (5) the customary fee for like work; (6) the attorney's expectations at the outset of the litigation; (7) the time limitations imposed by the client or circumstances; (8) the amount in controversy and the results obtained; (9) the experience, reputation and ability of the attorney; (10) the undesirability of the case within the legal community in which the suit arose; (11) the nature and length of the professional relationship between attorney and client; and (12) attorneys' fees awards
in similar cases.
Barber v. Kimbrell's Inc., 577 F.2d 216, 226 n.28 (4th Cir.
1978) (adopting the twelve factors identified by the Fifth
Circuit in Johnson v. Georgia Highway Express Inc.); cf. Perdue,
559 U.S. at 550-52 (explaining why the objective lodestar
approach is superior to the subjective approach outlined in
Johnson, but failing to hold that it is improper to be informed
by the Johnson factors when performing a lodestar analysis).
Because Fourth Circuit precedent requires this Court to be

guided by the Johnson factors in determining the lodestar figure, "to the extent that any of the Johnson factors has already been incorporated into the lodestar analysis," such
factor(s) should not later be considered a second time to make
an upward or downward adjustment to the lodestar figure because doing so would "inappropriately weigh" such factor. McAfee, 73 8
F.3d at 91.
The second step in the fee calculation requires the Court to exclude fees for counsel's time spent on unsuccessful claims
that are unrelated to the successful claims. Robinson, 560 F.3d
at 244; see Hensley, 461 U.S. at 435 ("The congressional intent to limit awards to prevailing parties requires that [unrelated claims based on different facts and legal theories] be treated as if they had been raised in separate lawsuits, and therefore no fee may be awarded for services on the unsuccessful claim[s]"). The Supreme Court has recognized that "[i]t may well be that cases involving such unrelated claims are unlikely to arise with great frequency," because "[m]any civil rights cases will present only a single claim," and in other cases, the
claims "will involve a common core of facts or will be based on
related legal theories." Hensley, 461 U.S. at 435. In such latter circumstance, "[m]uch of counsel's time will be devoted generally to the litigation as a whole, making it difficult to divide the hours expended on a claim-by-claim basis," with the

nature of the lawsuit precluding it from being "viewed as a
series of discrete claims." Id.
The third and final step, after a lodestar calculation has been made and any unsuccessful efforts on unrelated claims have been excluded, requires the Court to award "'some percentage of the remaining amount, depending on the degree of success enjoyed
by the plaintiff.'" Grissom, 54 9 F.3d at 321 (quoting Johnson v. City of Aiken, 278 F.3d 333, 337 (4th Cir. 2002)). It is appropriate for the Court to reduce an award at the third step of the analysis if "'the relief, however significant, is limited in comparison to the scope of the litigation as a whole.'" McAfee, 738 F.3d at 92 (quoting Hensley, 461 U.S. at 439-40) . "What the court must ask is whether 'the plaintiff achieved a
level of success that makes the hours reasonably expended a
satisfactory basis for making a fee award.'" Id. (quoting Hensley, 461 U.S. at 434) . Accordingly, when "a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole times a reasonable hourly rate may be an excessive amount" even in cases "where the plaintiff's claims were interrelated, nonfrivolous,
and raised in good faith." Hensley, 461 U.S. at 436. An
attorney's fee award under § 1988 is therefore not driven by
whether it was reasonable to file suit or whether plaintiff's
counsel litigated the case "with devotion and skill"; rather,

"the most critical factor is the degree of success obtained."

Id.

III. Discussion

A. Lodestar Analysis

1. Number of Reasonable Hours Expended

As indicted above, it is undisputed that Plaintiff is a

"prevailing party" and Defendants do not contest a reasonable

fee award to compensate Plaintiff's outside counsel in this

case. Defendants do, however, challenge the propriety of any

fee award to Plaintiff's in-house counsel.

Additionally,

Defendants further argue that many of the hours for which

Plaintiff seeks compensation are duplicative hours spent in

conferences, time spent on tasks not sufficiently related to the

litigation, including pre-complaint time, and travel time

inappropriately billed at full hourly rates. Defendants also

seek an overall reduction due to the degree of success obtained

in this case.
In analyzing Defendants' challenges to the hours expended,
the Court considers the relevant Johnson factors, including the
time and labor expended by the attorneys of various skill levels and experience, the difficulty of the questions raised, the skill required to perform the services rendered, and any time limitations imposed by the circumstances of this case. Barber,

577 F.2d at 226 n.28.

a. In-House/Nonprofit Counsel The law establishes that counsel at a nonprofit legal services organization, or in-house counsel, performing litigation related work that is otherwise compensable is entitled to an attorney's fee award at prevailing market rates. See Nat'l Wildlife Fed'n v. Hanson, 859 F.2d 313, 319 (4th Cir. 1988) (addressing "nonprofit legal service organizations" (citing Blum v. Stenson, 465 U.S. 892-96 (1984))); Lake Wright Hospitality, LLC v. Holiday Hospitality Franchising, Inc., No. 2:07cv530, 2009 WL 4841017, at *10 (E.D. Va. Oct. 23, 2009)
(explaining that in-house counsel may be compensated at an hourly fee for litigation tasks "that ordinarily would be performed by outside counsel" but should not be compensated when merely acting as a liaison or corporate contact or representative). Here, Plaintiff's amended complaint selfidentifies PLN as "a project of the Human Rights Defense Center
('HRDC')" and identifies HRDC as a non-profit legal services
organization. Amend. Compl. 2, ECF No. 17. The affidavit submitted by Lance Weber, "general counsel" for HRDC indicates that HRDC provides legal services to PLN without charge. ECF No. 91. Accordingly, while the legal relationship between
entities is somewhat unclear, for simplicity, the HRDC attorneys who worked on this case will be referred to herein as PLN's "in-
house counsel."
10

To the extent Defendants make broad objections to the Court

awarding any attorney's fees to Plaintiff's in-house counsel,

ECF No. 100, at 3-4, 6-7, such argument is rejected as the

record before the Court demonstrates that in-house counsel was

not merely acting as a client liaison, but was instead

performing tasks necessary to the litigation that would

otherwise have been performed by outside counsel, such as

drafting discovery objections, drafting briefs or portions

thereof, performing legal research associated with the case, and

preparing or editing declarations.

Similarly, Defendants'

suggestion that Plaintiff's in-house counsel should not be

compensated because the two outside attorneys were the only

point-of-contact for Defendants' attorneys is not supported by

any citation to case law nor is it otherwise persuasive. Less

experienced attorneys regularly perform compensable legal

research and similar litigation tasks that assist lead counsel,

yet these assisting attorneys may never interact directly with

opposing counsel—indeed if they attended any meetings or

participated in conference calls with opposing counsel, such

contact would likely be subject to attack as constituting

unnecessary duplication of efforts.
Although Defendants' blanket objections are rejected,

consistent with additional arguments advanced by Defendants, the

Court does consider the nature of the activities performed by

11

Plaintiff's in-house counsel (and outside counsel) in making
adjustments to the hours claimed in Plaintiff's motion. As set forth below, such adjustments include consideration of the
number of internal conferences billed, in-house counsel's time
that appears to constitute general monitoring of the case—as contrasted with the performance of necessary litigation tasks, in-house counsel's time that, based on the manner in which it was documented, appears to have been spent performing PLN's or HRDC's general missions, as well as other matters.
b. Pre-Complaint work
Defendants argue in their brief in opposition that the Court should not allow the recovery of fees for work performed prior to the filing of the complaint other than hours specifically devoted to drafting the complaint. ECF No. 100, at
9-10. Defendants are correct that "it is difficult to treat
time spent years before the complaint was filed as having been 'expended on the litigation' or to be fairly comprehended as 'part of the costs' of the civil rights action." Webb v. Bd. of Educ. of Dyer Cnty. , Tenn. , 471 U.S. 234, 242 (1985) . That said, the Supreme Court has likewise recognized that, "[o] f course, some of the services performed before a lawsuit is formally commenced . . . are performed 'on the litigation' . . . [including] the work associated with the development of the
12

theory of the case." Id. at 243. Moreover, in Webb, Justice

Brennan explained as follows in his separately authored opinion:

There is certainly nothing in § 1988 that limits fee

awards to work performed after the complaint is filed

in court.

For example, it is settled that a

prevailing party may recover fees for time spent

before the formal commencement of the litigation on

such

matters

as

attorney-client

interviews,

investigation of the facts of the case, research on

the viability of potential legal claims, drafting of

the complaint and accompanying documents, and

preparation for dealing with expected preliminary

motions and discovery requests. 2 M. Derfner & A.

Wolf, Court Awarded Attorney Fees % 16.02[2][b], p.

16-15 (1984) . This time is "reasonably expended on

the litigation," Hensley v. Eckerhart, 461 U.S. 424,

433 (1983), in part because careful prefiling

investigation of the facts and law is required by the

ethical rules of our profession, the Federal Rules of

Civil Procedure, and the realities of civil rights

litigation.

Id. at 250 (Brennan, J., concurring in part and dissenting in

part) (footnotes omitted).

In addition to the above, as argued here by Plaintiff, to

the extent that Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007),

and its progeny, modified the pleading standard in federal

courts, there is arguably now an even greater need to conduct a

thorough pre-filing investigation. Moreover, subsequent to

Twombly, an opinion from a unanimous Supreme Court favorably

cited Justice Brennan's analysis in Webb, explaining that "[t]he

fact that some of the claimed fees accrued before the complaint

was filed is inconsequential" because "[investigation,

preliminary legal research, drafting of demand letters, and

13

working on the initial complaint are standard preliminary steps toward litigation." Ray Haluch Gravel Co. v. Central Pension Fund of Int'l Union of Operating Engineers & Participating Employers, 134 S. Ct. 773, 782-83 (2014).
Based on the above, to the extent that Defendants advance
a blanket challenge to all pre-filing work other than time spent actually drafting the complaint, such challenge is rejected. That said, the Court agrees with Defendants that certain activities in this case performed by counsel or paralegals more
than a year prior to the filing of the complaint, as documented
on the exhibits before the Court, appear to involve activities that are not reasonably tied to the litigation. Such hours
involve, among other things, exchanging communications with prisoner subscribers, compiling contact information of subscribers, and seeking out new potential subscribers. Accordingly, as set forth below, a review of the case-specific
record reveals that some pre-complaint hours are not
compensable, while other time spent investigating the facts and
researching the law are compensable. c. Reduction of Hours to Reflect Duplication of Efforts, Hours Appearing Unrelated to the Litigation, and Hours Lacking Sufficient Documentation
Although the Court finds that Plaintiff has submitted
sufficient evidence to demonstrate that a fee award is
appropriate as to all counsel that worked on this case, as well
14

as two paralegals, a review of the billing records submitted by
Plaintiff reveals that Plaintiff has failed to demonstrate that
all of the claimed hours are both "reasonable" and performed "on the litigation." In considering the "time and labor expended" by the various attorneys, and the explanation of the tasks performed by such individuals, the Court finds that there was some degree of unnecessary duplication of efforts, certain hours that appear on their face to be unrelated to the litigation, and certain hours for which inadequate documentation was provided.
Having carefully reviewed Plaintiff's evidence, the Court makes the following adjustments to the hours requested in order
to eliminate hours that Plaintiff has failed to demonstrate were
reasonably billed to this case. In making such relatively minor adjustments, the Court notes that Defendants have not specifically identified entries they believe to be improper, nor have they tallied the hours they believe to be improper in order to suggest a specific reduction to the Court. The Court does, however, find that Defendants' blanket objections coupled with this Court's obligation to allow an attorney's fee award only to
the extent it is "reasonable" warrants some degree of adjustment to the hours claimed. Cf. In re A.H. Robins Co., Inc., 86 F.3d 364, 373 (4th Cir. 1996) (noting, in a case outside the § 1983 context, that "[a] court abuses its discretion if it allows a
15

fee without carefully considering the factors relevant to fair compensation." (citing Barber, 577 F.2d at 226)).
i. Jeffery Fogel, Lead Outside Counsel Mr. Fogel requests compensation for 249.8 hours in this matter. The vast majority of the billed time submitted by Mr. Fogel appears well-documented, directly related to the litigation, and reasonable. That said, there are various time entries, some of which predate the complaint, which reference internal conferences with co-counsel Steven Rosenfield ("confer SDR," "emails w/ SDR," etc.). ECF No. 89-1. Such time entries
suggest a degree of duplication of efforts, particularly because both attorneys have approximately forty years of experience. Moreover, many of such entries fail to document what matters were discussed, how they were related to the case, or why they advanced the efficient litigation of this matter. Additionally,
some of the conferences with "SDR" were included within blocks
of time spent on multiple tasks such that the time spent in the internal conference cannot be specifically identified. Accordingly, Mr. Fogel's hours are reduced by a total of 10
hours to account for work that was not adequately documented
and/or suggested a duplication of efforts that a paying client
would likely have reasonably disputed upon receiving a bill.2
2 Plaintiff's outside counsel (Mr. Fogel and Mr. Rosenfield) represent that they reduced their hours by an estimated 10% to account for
16

See Hensley, 461 U.S. at 434 ("Hours that are not properly
billed to one's client also are not properly billed to one's adversary pursuant to statutory authority." (quotation marks and
citation omitted)); Lilienthal v. City of Suffolk, 322 F. Supp.
2d 667, 670 (E.D. Va. 2004) (finding that the "plaintiff's
counsel have not borne their burden of establishing the
reasonableness of the hours claimed" with respect to numerous
conferences between counsel and client); Tlacoapa v. Carregal,
386 F. Supp. 2d 362, 373 (S.D.N.Y. 2005) (factoring into the
court's decision to reduce the hours billed by more than one-
third the fact that the plaintiff's attorneys "billed substantial amounts of time to cursorily described internal
conferences with each other").
ii. Steven Rosenfield, Outside Counsel
Mr. Rosenfield requests compensation for 58.7 hours in this matter. The majority of the billed time submitted by Mr. Rosenfield appears directly related to the litigation. That said, there are multiple time entries in the bills submitted by
Mr. Rosenfield, some of which pre-date the complaint, that are not sufficiently specific to be compensated in this matter or
additional internal conferences, whereas Plaintiff's in-house counsel
has specifically identified timesheet entries, including some multiattorney conferences, for which compensation is not being requested.
The Court considers these facts in making adjustments to the hours
claimed by all of Plaintiff's counsel, but notes that multiple entries for which compensation is requested still lack a sufficient explanation as to the tasks being performed and/or suggest a
duplication of efforts.
17

that reflect internal conferences with Mr. Fogel ("conf w/Jeff,"

"email fr/Jeff," "emails fr/to various PLN people & Jeff,"

etc.).

While some of this time is surely compensable as

appropriate strategic discussions, with the years of experience

of both outside attorneys, as reflected by their claimed billing

rates of $450 per hour, a portion of this time is needlessly

duplicative and/or inadequately documented. Accordingly, Mr.

Rosenfield's hours are reduced by a total of 8 hours to account

for time entries that suggest unnecessary duplication of efforts

and/or lack sufficient detail to demonstrate that they were

reasonably expended on this litigation.

iii. Lance Weber, Lead In-House Counsel

Mr. Weber, an experienced attorney and lead in-house

counsel for Plaintiff, requests compensation for 72 hours in

this matter. A review of his time entries, however, reveal

multiple conferences with other in-house attorneys,

communications with outside counsel that suggest some degree of

general monitoring of the case, entries that are not

sufficiently specific to render them compensable, and pre-

complaint work dating back more than a year before the case was

filed that appears, at least in part, to constitute

administrative monitoring of censorship activities that formed

the factual underpinnings for this case, as contrasted with work

spent preparing for litigation of this case ("review letter from

18

prisoner," "review returned mail from jail," etc.). Considering
all of Mr. Weber's entries and the above stated concerns, Mr. Weber's hours are reduced by a total of 8 hours.
iv. Sabarish Neelakanta, In-House Staff Attorney Ms. Neelakanta requests compensation for 10.5 hours. The bulk of Ms. Neelakanta's time appears to have been spent compiling time records in support of PLN's fee petition,
compiling documents in support of declarations, and assisting in revising a brief. However, it also appears that Ms. Neelakanta spent time in conferences and sent internal emails, to include telephone/conference calls regarding this Court's first ruling on summary judgment, yet she does not appear to have performed any additional work on such matters subsequent to those calls. Accordingly, Ms. Neelakanta's hours are reduced by a total of 1
hour.
v. Robert Jack, In-House Staff Attorney
Mr. Jack, an in-house staff attorney, requests compensation
for 88.3 hours. Mr. Jack's time includes internal conferences,
internal emails, time spent in a settlement conference where he was the second attorney for PLN (Mr. Fogel was present), time spent traveling from Florida to Virginia for the settlement conference, and various hours spent representing PLN in activities associated with censorship of PLN's monthly magazine (such as responding to prisoner correspondence, drafting
19

letters, and appealing censorship decisions) which, while

relevant to this litigation, does not appear to directly advance

the litigation. Stated differently, while Mr. Jack was likely

providing necessary legal services to PLN when he was drafting

appeal notices of individual censorship decisions, drafting such

notices is conceptually distinct, at least to a degree, from

performing research or other tasks that are necessary to advance

or otherwise support the litigation of this case. Considering

all of the above, Mr. Jack's hours are reduced by a total of 12

hours.3

vi. Alissa Hull, In-House Staff Attorney

Ms. Hull, an in-house staff attorney, requests compensation

for 8.2 hours.

All of Ms. Hull's time spent on the case

occurred prior to the filing of the complaint, the bulk of which

involved drafting and editing an internal memorandum regarding

censored materials, a task that is plainly appropriate for a

less experienced attorney to perform to aid more experienced

counsel in drafting a complaint. Although Ms. Hull spent time

in internal conferences and reviewing internal emails, including

a "case strategy" conference that occurred more than a year

before the complaint was filed, it appears that Plaintiff has

already written off a substantial portion of the time Ms. Hull

3 Approximately eight hours of Mr. Jack's time was associated with traveling to Norfolk and participating in, and/or observing, the
settlement conference.
20

recorded on her timesheets. Accordingly, no reduction is made as to the 8.2 hours claimed by Ms. Hull.
vii. Monique Roberts, In-House Staff Attorney Ms. Roberts, an in-house staff attorney, requests
compensation for 21.3 hours. All of Ms. Roberts' time spent on the case occurred after the filing of the complaint, the bulk of which appears to involve document production and discovery requests. While Ms. Roberts appears to have participated in few
internal conferences, she does bill for time that appears to be associated with Plaintiff's overall mission and matters forming
the factual underpinnings for this case, as contrasted with work spent preparing for litigation of this case (such as drafting a
letter to subscribers to inform them of the filed complaint,
researching and updating subscriber addresses, and responding to prisoner mail). Considering the above, Ms. Roberts' hours are
reduced by a total of 3 hours. viii. Paralegals
In-house paralegals Zach Phillips and Jeff Antoniewicz request compensation for 26.3 hours and 19.3 hours, respectively. No affidavit was submitted by either of such individuals seeking to explain their experience or their role in advancing this litigation; rather, their hours are documented on a composite time record submitted by Mr. Jack. ECF No. 91-2. It appears from such record that all of Mr. Phillips time was
21

spent prior to the filing of the complaint, with substantial

time being incurred more than a year prior to the filing of the

complaint. Additionally, numerous time entries for both Mr.

Phillips and Mr. Antoniewicz either include insufficient detail

to demonstrate that such hours are reasonably related to the

litigation, or reveal on their face that they are administrative

in nature and/or lack a clear tie to this litigation ("research

background information re new subscribers," "draft and mail

letter from LW," "Assess and compile contact information for

potential subscribers," "Assemble outreach mailing to new

subscribers; enroll new subscribers for trial subscription").

Considering the above, a substantial reduction of hours is

necessary as to both paralegals as Plaintiff failed to carry its

burden to demonstrate that such time is compensable.

Mr.

Phillips' hours are therefore reduced by 16 hours, and Mr.

Antoniewicz's hours are reduced by 8 hours.

2. Reasonable Rate

As outlined above, a party entitled to recover attorney's

fees under § 198 8 "bears the burden of establishing the

reasonableness of the hourly rates requested."

Spell v.

McDaniel, 824 F.2d 1380, 1402 (4th Cir. 1987). This is
generally accomplished "through affidavits from disinterested

counsel, evidence of awards in similar cases, or other specific

evidence that allows the court to determine 'actual rates which

22

counsel can command in the [relevant] market.'"

Project

Vote/Voting for America, Inc. v. Long, 887 F. Supp. 2d 704,

710 (E.D. Va. 2012) (quoting Spell, 824 F.2d at 1402). "The

relevant market for determining the prevailing rate is

ordinarily the community in which the court where the action is

prosecuted sits." Rum Creek Coal Sales, Inc. v. Caperton, 31

F.3d 169, 175 (4th Cir. 1994).

Here, both parties have

submitted affidavits from disinterested counsel indicating the

hourly rates they purport to be reasonable. Additionally,

Plaintiff has submitted resumes for their in-house attorneys.

In determining the reasonable rates, the Court has

considered the relevant Johnson factors, including the labor

expended, the novelty and difficulty of questions raised, the

skill required to perform the legal services of the various

attorneys (and paralegals), the opportunity costs in pressing

the litigation, the experience and reputation of each attorney,

the asserted (but not proven) undesirability of the case, the

nature and length of the relationship between PLN and outside

counsel, and fee awards in similar cases. Barber, 577 F.2d at

226 n.28.

Having considered all of these factors, the

affidavits from outside counsel, the awards in Project Vote and

Vollette v. Watson, No. 2:12cv231, ECF No. 128 (E.D. Va. July

23, 2013), the following chart documents the requested rate and

the rate determined to be reasonable by the Court:

23

Attorney Name Jeffrey Fogel Steven Rosenfield
Lance Weber Sabarish Neelakanta
Robert Jack
Monique Roberts
Alissa Hull
Zach Phillips (para) Jeff Antoniewicz (para)

Rate Requested $ 450 $ 450 $ 350 $ 275 $ 225 $ 225 $ 225 $ 125 $ 100

Rate Awarded $ 400 $ 400 $ 325 $ 230 $ 200 $ 200 $ 190 $ 100 $ 90

Several of the hourly rates adopted by the Court fall within the overlapping portions of the rate ranges proposed by the disinterested attorneys relied on by the parties. Those rates that fall outside the parties' proposed ranges do so by no
more than twenty dollars per hour.
The above rates apply to all of the hours awarded in this case with the exception of the 33.6 hours that Mr. Fogel seeks
to recover for his travel time. The fact that Mr. Fogel asserts
that he should be compensated $5 0 more per hour than his typical billing rate based on market conditions in this District, yet still seeks compensation at his full hourly rate for the time he spent driving from the Western District of Virginia to the Eastern District, suggests a lack of billing judgment. See
24

Project Vote, 887 F. Supp. 2d at 716 (holding that "counsel
should not recover their full market rate for travel from their
offices in Washington, D.C., to Norfolk and Richmond, and that failure to reduce this time indicates a lack of billing judgment"); see also In re Outsidewall Tire Litig., 52 F. Supp. 3d 777, 790 (E.D. Va. 2014) (noting that the "decision to
compensate an attorney for his or her travel time is within the
district court's discretion," and discussing various approaches
taken by courts to address travel-time billed at full rates). Moreover, Plaintiff's response to Defendants' challenge to the full-rate billing for travel time is uncompelling. Accordingly, the Court hereby reduces Mr. Fogel's hourly fee for travel time from $400 to $200, which adequately compensates him for the time he spent traveling. See Hensley, 461 U.S. at 443-44 (Brennan, J., concurring in part and dissenting in part) ("Section 1988 manifests a finely balanced congressional purpose to provide plaintiffs asserting specified federal rights with 'fees which are adequate to attract competent counsel, but which do not produce windfalls to attorneys.'" (quoting S. Rep. No. 94-1011, 94th Cong., 2d Sess. 6 (1976))). In the instant case, $200 per
hour for travel time strikes an appropriate balance between the task billed, driving a car (which requires no legal skills of
any kind), and counsel's opportunity costs of such travel-time,
25

giving due consideration to the prior relationship between

Plaintiff and Mr. Fogel.

3. Lodestar Summary

The following table reflects the Court's lodestar

calculation, which is the starting point for an attorney's fee

award prior to any adjustments in step two or three of the

required analysis.

Attorney Name Jeffrey Fogel

Hours Req. Hours Award.

249. 84

239.8

Rate
$400

Total
$89,2005

Steven Rosenfield Lance Weber
Sabarish Neelakanta Robert Jack
Alissa Hull
Monique Roberts Zach Phillips (para) Jeff Antoniewicz (para)
TOTALS

58.7 72
10.5 88.3
8.2 21.3 26.3 19.3 554.4

50.7 64 9.5
76.3 8.2 18.3 10.3 11.3
488.4

$400

$20,280

$325

$20,800

$230

$2,185

$200

$15,260

$200

$1,640

$190

$3,477

$100

$1,030

$90

$1,017

n/a $154,889

4 Mr. Fogel's and Mr. Rosenfield's total hours include the time spent

drafting both the opening brief and the reply brief in support of the

instant motion.

Defendants make no objection regarding the

reasonableness of the time spent pursing fees, and it is "well settled

that the time spent defending entitlement to attorney's fees is

properly compensable under § 1988." Trimper v. City of Norfolk, Va.,

58 F.3d 68, 77 (4th Cir. 1995) (citation omitted).

5 Mr. Fogel's lodestar fee calculation of $89,200 includes 206.2 hours compensated at $400 per hour and 33.6 hours of travel time compensated
at $200 per hour.

26

B. Adjustment for Unsuccessful Unrelated Claims

After a lodestar figure is calculated, the Court must

determine whether the fee award should be reduced to reflect the

time counsel spent on unsuccessful claims that are unrelated to

the successful claims.

Robinson, 560 F.3d at 244.

Here,

Defendants do not assert that a fee reduction is required at
this step, likely because they recognize that all of the claims

"involve a common core of facts." Hensley, 461 U.S. at 435.
Notably, because the "ordering forms" ban and the "sexually explicit" materials ban litigated in this case were simultaneously invoked by Defendants to justify exclusion of Plaintiff's monthly magazine from VBCC, the interrelated nature of the facts and claims appear to prevent the case from being effectively "viewed as a series of discrete claims." Id. In

the absence of any argument asserting that a downward adjustment

should be made at the second stage of the analysis, the Court
makes no adjustment and moves on to considering Plaintiff's

overall success on the merits.
C. Adjustment for Degree of Success
The final step in determining a reasonable fee award is calculating a percentage of the lodestar figure that takes into account the "'degree of success enjoyed by the plaintiff.'" Grissom, 549 F.3d at 321 (quoting Johnson, 278 F.3d at 337). As described in greater detail above, when a plaintiff achieves

27

only "partial or limited success," such as in this case, the

lodestar figure may be excessive notwithstanding the fact that

all claims were "interrelated, nonfrivolous, and raised in good

faith." Hensley, 461 U.S. at 436.

In concluding that an

adjustment to the lodestar figure is appropriate in this case,

the Court notes that the Johnson factor addressing the "amount

in controversy and the results obtained" was not subsumed within

the prior analysis determining the lodestar figure. McAfee, 738

F.3d at 89-90 (emphasis added).

Here, it is readily apparent that both Plaintiff and

Defendants succeeded in certain aspects of this litigation.

Defendants demonstrated that they were qualifiedly immune from
money damages resulting from any of their acts associated with

the long-term censorship of Plaintiff's publications through

Defendants' maintenance and application of both the VBSO
"ordering forms" policy and "sexually explicit" materials policy. Moreover, Defendants demonstrated that Plaintiff did

not suffer money damages based on the exclusion of its monthly

magazine from VBCC because the banned issues were

constitutionally excluded pursuant to the VBSO "ordering forms" policy. While, prior to the entry of the consent decree, questions remained as to the amount of nominal damages on

Plaintiff's due process claims and whether punitive damages were

recoverable on such claims, these matters were resolved by

28

consent decree in a manner that avoided any monetary award.
Accordingly, Plaintiff failed to recover any of the nominal,
compensatory, or punitive damages sought in its amended
complaint.6
More central to the litigation, as measured by the relief
sought in the amended complaint, was Defendants' success on the
"ordering forms" policy, as this Court concluded on summary
judgment that such policy provided a valid justification for
Defendants' decision to exclude all monthly issues of Prison
Legal News (and other PLN brochures) from the VBCC. Based on
such ruling, unless Plaintiff was willing to substantially
modify the format of its monthly publication (something the
case-record suggests that it was unwilling to do) , such ruling
would have allowed Defendants to continue to lawfully exclude
Plaintiff's publications from VBCC.
6 Although Plaintiff seeks to downplay its efforts to collect monetary damages, this Court is required to compare "what [the plaintiff] sought with what was awarded." McAfee, 738 F.3d at 93. Here, even as late as April 2015, Plaintiff reiterated its desire to proceed to
trial in an effort to recover both nominal and punitive damages.
Accordingly, while a fair reading of the amended complaint does not suggest that money damages were the motivator behind this litigation, Plaintiff pursued money damages at all stages of the case. Cf. Mercer v. Duke Univ., 401 F.3d 199, 205-06 (4th Cir. 2005) (indicating that while a court must consider "the purpose of the lawsuit" in that it
must examine whether the lawsuit seeks injunctive relief or monetary relief, "the subjective motives of the plaintiff" are not relevant to
"prevailing party" status nor relevant to determining "the extent of
the relief obtained," noting that " [i]f the rule were otherwise, then every plaintiff recovering only nominal damages would claim that the
only thing he was really ever interested in was a liability finding").
29

Notwithstanding these matters where Defendants enjoyed
significant success, it is clear from the record that Plaintiff
is a "prevailing party" based both on its securing of permanent injunctive relief as to two separate unconstitutional VBSO polices and through ultimately succeeding in ending future
censorship of its publication via consent decree. See Mercer v.
Duke Univ. , 401 F.3d 199, 205 (4th Cir. 2005) (noting that when
a § 1983 case seeks injunctive relief, "the relevant comparison, of course," for the purpose of gauging degree of success is "the scope of the injunctive relief sought to the relief actually
granted").7 First, Plaintiff succeeded in establishing that the
VBSO maintained an unconstitutionally broad "sexually explicit"
materials policy which was applied against Plaintiff to exclude issues of Prison Legal News. Through the course of this litigation, the VBSO modified its policy to remove the offending provisions and Plaintiff secured permanent injunctive relief precluding Defendants from returning to the prior policy.
Second, Plaintiff clearly succeeded on its due process
claims associated with the VBSO's publication review policy.
Such policy, as implemented at least for a period of time by the VBSO, violated published Fourth Circuit precedent as Defendants
7 Plaintiff's amended complaint pursues several forms of declaratory
and injunctive relief, including seeking a finding that Defendants
violated the United States Constitution through their publication
review policy and "sexually explicit" materials policy, as well as an injunction requiring Defendants to allow VBCC inmates to receive
future issues of Prison Legal News. Am. Compl. 8-9, ECF No. 17.
30

were not sending notices to Plaintiff, a magazine publisher,

when the VBSO was refusing to deliver monthly magazines to

inmate subscribers.

Additionally, even after the VBSO

publication review policy was modified (during this litigation)

to provide adequate notice, the review/appeal process in place

for a period of time was illusory. Through this litigation,

Plaintiff demonstrated that its due process rights had been

violated in two different ways and secured permanent injunctive

relief precluding Defendants from returning to their prior

unconstitutional policies.

Third, although Plaintiff never recovered any money damages

as to the due process violations, Plaintiff appeared entitled to

nominal damages and had at least the potential to recover

punitive damages. It appears that Plaintiff leveraged its

favorable position as to § 1983 damages on the due process

claims, as well as its intent to appeal this Court's summary

judgment holding as to the constitutionality of the VBSO

"ordering forms" policy, to secure a consent decree whereby

Defendants agreed to permit future issues of Prison Legal News

magazine into the VBCC.

Cf^ Am. Compl. 9, ECF No. 17

(indicating in the prayer for relief that Plaintiff sought

"[p]reliminary and permanent injunction requiring Defendants to

allow receipt of the PLN magazine"). Accordingly, while

Plaintiff does not have a monetary judgment by which to measure

31

its success in dollars and cents, Plaintiff's § 1983 case
ultimately succeeded in putting an end to two separate
unconstitutional policies/practices that applied to all mail and
publications entering the VBCC and obtained a bargained for
settlement that leveraged Plaintiff's position as to its § 1983
claims to secure a consent decree ending the ongoing censorship
of Plaintiff's monthly magazine.8
Considering all of the above, the Court concludes that a
45% reduction in attorney's fees is appropriate in this case to
reflect Plaintiff's tangible and substantial victories on some
of its § 1983 claims, while also taking into account Defendants'
success in avoiding any monetary damages as well as defending
the constitutionality of their prior exclusion of all of
Plaintiff's publications from the VBCC based on the lawful VBSO
"ordering forms" policy. The total attorney's fee award in this
case is therefore reduced from $154,889 to $85,189. Such total
8 There appears to be little doubt that, but for entry of the consent decree, Plaintiff would have succeed in obtaining nominal damages as to the due process violations. In Mercer, 401 F.3d at 203-04, the Fourth Circuit approved and applied the three factor test set forth in
Justice O'Connor's concurrence in Farrar v. Hobby, 506 U.S. 103 (1992)
to determine if a § 1983 plaintiff should recover attorney's fees when the plaintiff's success is limited to nominal damages. Here, although Plaintiff's success was plainly not limited to nominal damages, to the extent the three-part test is still instructive, all three factors favor an award (extent of relief obtained vs. that requested, the
legal import of the claim on which the plaintiff succeeded, and whether the litigation served a public purpose or merely vindicated
the litigant's individual rights).
32

figure represents a fee of $60,214 to outside counsel9 and a fee
of $24,975 to Plaintiff's in-house counsel.
D. Litigation Expenses
"Because meritorious civil rights plaintiffs are private
attorneys general enforcing important congressional policies,
§ 198 8 is intended to encourage them to bring suit by shifting
the costs of litigation to defendants who have been found to be
wrongdoers." Daly v. Hill, 790 F.2d 1071, 1084 (4th Cir. 1986)
(internal quotation marks and citation omitted). Accordingly,
Fourth Circuit precedent "clearly establishes that a prevailing
plaintiff is entitled to compensation for reasonable litigation
expenses under § 1988." Id. Here, Defendants made no challenge
to the recoverability or the reasonableness of the litigation
expenses sought by Plaintiff. As Plaintiff's unchallenged
expenses are supported by affidavits and other evidence, the
9 Although having no bearing on this Court's determination of the appropriate attorney's fee award in this case, this Court observes
that even after the modest reduction in outside counsel's compensable
hours, the reduction to more reasonably compensate Mr. Fogel for his travel time, and the 45% reduction in fees to reflect mixed success, outside counsel is still recovering an effective rate of $195 per hour
for all of the 308.5 hours claimed in this action (including travel time) . As the Fourth Circuit has recently observed, "hourly rates of
court-appointed counsel in federal criminal cases are substantially
less" than the rate sought in most § 1983 cases, and help lend some context, even if not directly relevant. McAfee, 738 F.3d at 91 n.8. During the pendency of this action, appointed federal criminal defense attorneys were compensated at various rates between $110 and $127 per hour, with such rate applying to seasoned attorneys with decades of
experience litigating federal felony cases. Accordingly, "[v]iewed from that perspective," Plaintiff's outside counsel was more than adequately compensated for all hours devoted to this case, especially when considering the fact that only partial success was achieved.
33

Court AWARDS $2,683 to Plaintiff's outside counsel and $6,048.10 to Plaintiff's in-house counsel for litigation expenses,
representing the full amount requested by Plaintiff.
IV. Conclusion
Having performed the required "lodestar analysis," having considered all of the appropriate factors set forth in Barber, and having adjusted the lodestar figure to reflect the "degree of success achieved" by Plaintiff, the Court GRANTS Plaintiff's motion for attorney's fees and litigation expenses. ECF No. 88.
After making a downward adjustment to both the total hours and the hourly rate requested by Plaintiff, the Court hereby AWARDS attorney's fees to Plaintiff in the amount of $85,189. Such total figure represents a fee of $60,214 to Plaintiff's outside counsel and a fee of $24,975 to Plaintiff's in-house counsel. As to litigation expenses, the Court AWARDS $2,683 to
Plaintiff's outside counsel and $6,048.10 to Plaintiff's inhouse counsel.
The Clerk is REQUESTED to send a copy of this Opinion and
Order to all counsel of record.
IT IS SO ORDERED.

Norfolk, Virginia
September 8 2015

/a/mitfe-
Mark S. Davis UNITED STATES DISTRICT JUDGE
34

 
 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA
Norfolk Division
PRISON LEGAL NEWS, a project of the
HUMAN RIGHTS DEFENSE CENTER,

FILED
CLERK, US DISTRICT COURT
.NORFOLK. VA

Plaintiff,
v.
KEN STOLLE, Sheriff for Virginia Beach, Virginia, et. al,

Civil No. 2:13cv424

Defendants.

OPINION AND ORDER
This matter is before the Court on a motion for partial summary judgment filed by Prison Legal News, a project of the Human Rights Defense Center, ("Plaintiff," or "PLN"), and a cross-motion for summary judgment filed collectively by Ken Stolle, Sheriff for Virginia Beach, Virginia ("Sheriff Stolle," or "the Sheriff"), and the eight named defendant employees of the Virginia Beach Sheriff's Office (collectively with the Sheriff, "Defendants"). For the reasons set forth below, the Court TAKES UNDER ADVISEMENT the parties' cross motions for summary judgment as to the constitutionality of Defendants' "sexually explicit materials" policy in order to permit additional briefing on such subject. As to the cross motions

for summary judgment on Defendants' "ordering form policy,"

Defendants' motion is GRANTED and Plaintiff's motion is DENIED.
Additionally, the Court GRANTS Defendants' motion to the extent

Defendants invoke the doctrine of qualified immunity. All other arguments in support of summary judgment contained in the cross

motions are DENIED.

I. Factual and Procedural Background PLN is the publisher of a monthly magazine titled "Prison
Legal News," which includes articles and news about various legal issues, access to courts, prison conditions, mail

censorship, prisoner litigation, visitation rights, religious

freedom, and prison rape, among other things. ECF No. 36, at 1. Contained in the monthly Prison Legal News magazine are

advertisements from various vendors selling adult oriented photographs, which are frequently offered in two versions:

"Nude" and "Non-Nude: Bureau of Prisons Friendly."

Some

advertisements are text only, some include various sized

pictures of women in tight clothing and/or miniskirts, and some

include thumbnail images of women or men wearing skimpy bathing

suits or lingerie or otherwise in a state of undress. None of the images in Prison Legal News display nudity, but some images do include women or men posed in overtly sexual positions with a star shaped censor (hereinafter, "censor star") strategically placed to avoid any technical nudity. Although the censor star

images avoid any technical "nudity," the use of the star is

plainly designed to be suggestive by giving the impression that

the woman or man in the photograph is revealing their genital

area, or alternatively, that the woman is revealing her breasts.

In addition to the monthly Prison Legal News publication,

PLN also publishes and distributes books and periodicals on

issues related to the criminal justice and corrections systems.

Id. From 2012 through the present, PLN advertised for many of

these additional publications in each monthly issue of Prison

Legal News.

Additionally, PLN produces a stand-alone

"informational packet" designed to familiarize prisoners with

various PLN publications. It is undisputed that, during the

time period relevant to the instant litigation, all

informational packets, and all monthly issues of Prison Legal

News, that were sent to inmates at Virginia Beach Correctional

Center ("VBCC") included "ordering forms" with prices

advertising PLN's various written publications.

Since April of 2012, neither the monthly Prison Legal News

magazine nor PLN's informational packet have been permitted

inside VBCC, which is operated by Sheriff Stolle and the

Virginia Beach Sheriff's Office ("VBSO").

According to

Defendants, they have censored issues of Prison Legal News

"pursuant to VBSO policies as PLN's magazines have contained

sexually explicit pictures, which may be intended to arouse

sexual desire, may be deemed offensive, and/or include scantily clothed persons." ECF No. 48, at 2-3. Defendants assert that a policy preventing sexually explicit materials from entering VBCC is necessary to advance jail security and protect the safety of both jail personnel and VBCC inmates.
Separately, Defendants assert that Prison Legal News is not permitted at VBCC because it contains "ordering forms," which are not permitted at VBCC. PLN's informational packets have likewise been excluded from VBCC because they contain ordering forms. Defendants assert in their summary judgment filings that the prohibition on ordering forms "protects the public and
businesses from fraud" because "VBCC inmates do not have cash,
credit cards, or funds available to order or purchase from
outside vendors." Id. at 7.
On July 30, 2013, PLN filed the instant civil action in this Court challenging the "censorship of its monthly publication, books and other correspondence," and further asserting a violation of due process based on Defendants' alleged failure to both timely notify PLN of such censorship and to provide PLN a meaningful opportunity to challenge such censorship. ECF No. 1, 1 1. On March 26, 2014, PLN filed an amended complaint, which continues to assert unlawful censorship and due process violations. ECF No. 17. Defendants, who are all represented by the same counsel, oppose the relief sought in

the amended complaint, and deny that they committed any
constitutional violations. ECF Nos. 23, 28, 32.
In May of this year the parties attended a settlement conference conducted by a United States Magistrate Judge, but attempts at settlement were unsuccessful. PLN thereafter filed its motion for partial summary judgment. Defendants oppose Plaintiff's motion, and separately filed a cross motion seeking summary judgment as to all of Plaintiff's claims. Alternatively, Defendants seek a ruling that they are shielded by qualified immunity as to claims seeking monetary relief. The cross-motions for summary judgment are now fully briefed and
ripe for review.1
II. Standard of Review
The Federal Rules of Civil Procedure provide that a district court shall grant summary judgment in favor of a movant if such party "shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). " [T]he mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986). A
1 The trial of this case has been continued at the request of the parties.

fact is "material" if it "might affect the outcome of the suit," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party."
Id. at 248.
If a movant has properly advanced evidence supporting entry of summary judgment, the non-moving party may not rest upon the mere allegations of the pleadings, but instead must set forth specific facts in the form of exhibits, sworn statements, or other materials that illustrate a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986); Fed. R. Civ. P. 56(c). At that point, "the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249. In doing so, the judge must construe the facts and all "justifiable inferences" in the light most favorable to the non-moving party, and the judge may not make credibility determinations. Id. at 255; T-Mobile Northeast LLC v. City Council of City of Newport News, Va., 674 F.3d 380,
385 (4th Cir. 2012). When confronted with cross-motions for summary judgment,
"the court must review each motion separately on its own merits to determine whether either of the parties deserves judgment as a matter of law." Rossignol v. Voorhaar, 316 F.3d 516, 523 (4th Cir. 2003) (internal quotation marks and citation omitted). As

to each separate motion, the Court must separately resolve factual disputes and competing rational inferences in favor of
the non-movant. Id. III. Discussion
A. Legal Standard Governing Restrictions on Incoming Mail/Publications at a Prison/Jail It is well-established that "the First Amendment plays an
important, albeit somewhat limited, role in the prison context."
Montcalm Publ'g Corp. v. Beck, 80 F.3d 105, 107 (4th Cir. 1996). As described in detail in the Fourth Circuit's Montcalm opinion, the contours of the legal standard governing a jail's censorship
of incoming and outgoing mail has changed over time. Montcalm Publ'g, 80 F.3d at 107-08. The standard now applicable to regulations that censor incoming publications was established by the United States Supreme Court in Turner v. Safley, 482 U.S. 78 (1987), and later expressly extended to incoming publications in
Thornburgh v. Abbott, 490 U.S. 401, 413 (1989).
As explained by the Supreme Court in Turner, "[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution"; however, the complexities of incarceration are such that " [r] unning a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive

branches of government." Turner, 482 U.S. 84-85. Accordingly,
the Turner opinion "specifically rejected the application of [a]
strict scrutiny" standard applicable to prison regulations that
impinge on constitutional rights, adopting instead a four-part
test "to guide the review process" that gives "deference to the
judgments of prison administrators faced with difficult
problems." Montcalm Publ'g, 80 F.3d at 108. Such test requires
the Court to consider:
(1) whether there is a "valid, rational connection" between the prison regulation or action and the
interest asserted by the government, or whether this interest is "so remote as to render the policy arbitrary or irrational"; (2) whether "alternative means of exercising the right . . . remain open to prison inmates" . . . ; (3) what impact the desired accommodation would have on security staff, inmates, and the allocation of prison resources; and (4) whether there exist any "obvious, easy alternatives" to the challenged regulation or action, which may suggest that it is "not reasonable, but is [instead] an exaggerated response to prison concerns."
Lovelace v. Lee, 472 F.3d 174, 200 (4th Cir. 2006) (quoting
Turner, 482 U.S. 89-92) (first omission in original).
Further articulating the deference owed to prison
administrators, the Fourth Circuit has repeated the Supreme
Court's warning that "'courts are ill equipped to deal with the
increasingly urgent problems of prison administration.'" Id. at
199 (quoting Procunier v. Martinez, 416 U.S. 396, 405 (1974),
overruled by Thornburgh, 490 U.S. at 413-14). Accordingly,
"courts must accord deference to the officials who run a prison,

overseeing and coordinating its many aspects, including security, discipline, and general administration." Id.; see In re Long Term Administrative Segregration of Inmates Designated as Five Percenters, 174 F.3d 464, 469 (4th Cir. 1999) (noting that "the evaluation of penological objectives is committed to the considered judgment of prison administrators, who are actually charged with and trained in the running of the
particular institution under examination," and that "[w]hen a
state correctional institution is involved, the deference of a
federal court is even more appropriate") (internal quotation marks and citations omitted). Such deference is, in part, built
into the Turner test as such test "is less restrictive than the
test ordinarily applied to alleged infringements of fundamental constitutional rights." Lovelace, 472 F.3d at 200; see United States v. Stotts, 925 F.2d 83, 86 (4th Cir. 1991) (describing
the role of courts in this context as "one of caution").
In applying the Turner test, it is the party challenging the prison regulation that "bears the burden of showing that the [challenged] regulations . . . are not reasonably related to legitimate penological objectives, or that they are an 'exaggerated response' to such concerns." Prison Legal News v. Livingston, 683 F.3d 201, 215 (5th Cir. 2012) (citing Overton v.
Bazzetta, 539 U.S. 126, 132 (2003); Turner, 482 U.S. at 87).
Although such burden falls squarely on PLN in the instant case,

Defendants are nevertheless required to articulate a rationale in support of the disputed polices such that the Court can perform a meaningful review of the policy under Turner. Beard v. Banks, 548 U.S. 521, 535 (2006) (plurality opinion); see Van den Bosch v. Raemisch, 658 F.3d 778, 786 {7th Cir. 2011) ("While the burden of persuasion is on the [plaintiff] to disprove the validity of a [prison] regulation, defendants must still articulate their legitimate governmental interest in the regulation.") (citations omitted); Livingston, 683 F.3d at 215 (noting that in order for prison administrators to be "entitled to summary judgment, . . . the record must be 'sufficient to demonstrate that the Policy is a reasonable one'" (quoting Beard, 548 U.S. at 533)).
B. Parties' Summary Judgment Claims PLN's motion for partial summary judgment and supporting memoranda challenge Defendants' polices banning from VBCC "sexually explicit" photos or publications, which at VBCC extends not only to what is traditionally considered "pornography," but also to "any writings [or] pictures . which may be deemed offensive" as well as to "material dealing with or displaying . . . scantily clothed persons." ECF No. 484. Separately, PLN challenges the VBSO policy banning incoming mail containing "ordering forms with prices." Id. Although PLN's amended complaint also alleges due process violations
10

based on Defendants' handling of censored PLN publications, PLN does not pursue such issue on summary judgment. ECF No. 36, at
11 n.8.
Defendants' summary judgment motion and supporting memoranda oppose Plaintiff's constitutional challenge to the two jail policies at issue, and assert that Defendants are entitled to summary judgment on such issues because the sexually explicit material and order form restrictions are constitutionally proper under Turner. Defendants also assert that they are entitled to summary judgment on Plaintiff's due process claim, arguing that PLN was afforded sufficient notice, and an opportunity to challenge, the rejection of its publications. Additionally, to the extent PLN's amended complaint seeks money damages, as contrasted with declaratory or injunctive relief, Defendants seek summary judgment on such monetary claims based on their qualified immunity. The Sheriff also asserts that summary judgment should be entered in his favor because Plaintiff's claims against him are improperly based on Respondeat Superior liability.
C. Analysis 1. Challenge to Ordering Form Ban Considering first the VBSO ban on incoming publications containing "ordering forms," Defendants' policy states: "Newspaper clippings, lyrics, poems, calendars, ordering forms
11

with prices, catalogs, brochures, any information printed from the internet, checks or cash will not be accepted." ECF No. 484, 1 6 (emphasis added); ECF No. 48-13 (banning "Mail containing" the above listed items). Defendants assert in their summary judgment filings that because inmates at VBCC have no access to money, the order form ban is designed to protect the public from fraud, further stating that there have in the past been investigations into VBCC inmates fraudulently using credit cards to purchase goods from outside vendors, as well as problems with inmates using stamps as currency to purchase items from outside vendors. ECF No. 48-3, M 12, 16-17. PLN responds by arguing that the Sherriff failed to articulate "fraud" as a justification for such policy during his deposition, and separately arguing that the disputed policy is not a rational means of achieving such goal. Having considered each motion for summary judgment, resolving factual disputes and competing rational inferences in favor of the non-movant, Rossignol, 316 F.3d at 523, the Court GRANTS summary judgment in favor of
Defendants on this issue.
a. Fraud as the asserted Penological Goal As noted above, Defendants' position is that the ban on incoming mail containing "ordering forms" is in place at VBCC to
prevent inmates from committing fraud on the public, and PLN concedes that the prevention of fraud is in fact a valid
12

penological goal. ECF No. 52, at 8. Notwithstanding its

concession, PLN highlights in its summary judgment filings that:

(1) the Sheriff did not articulate the prevention of fraud as a

basis for the ban on catalogs and ordering forms with prices

during his January 2014 deposition; and (2) the Sheriff further

stated during such deposition that he was "not sure" that there

would be a benefit to denying inmates access to certain types of

catalogs if such catalogs were intended to be used by the inmate

to identify to loved ones which permissible items the inmate

would like as a gift. ECF No. 36-3, at 16-18. Although the

Sheriff did not mention "fraud" in the deposition excerpts that

were provided to the Court, he did say that the reason the VBSO

censors "ordering forms with prices, catalogs, brochures" is

that inmates "have no way to pay" for such items and are not

permitted to "purchase anything outside of the [VBCC] canteen."

Id.

Moreover, "fraud" was identified as the Defendants'

penological motivation for the ban on ordering forms in

discovery responses provided to Plaintiff two months prior to

the Sheriff's deposition. ECF No. 48-6, at 8. Additionally,

the Sheriff subsequently provided an affidavit more fully

explaining his view on the risk of VBCC inmates committing fraud

on the public if they have access to ordering forms. ECF No.

48-3. Accordingly, based on the current record, the Court finds

both that "fraud" is a valid penological goal and that it is the

13

penological goal articulated by Defendants that must be analyzed
by this Court in its analysis of the Turner factors.2
b. Ordering Form Ban satisfies Turner test
This Court begins its analysis under Turner by reiterating
the clear and controlling rule of law mandating that this Court
afford deference to prison administrators in the difficult arena
of managing a prison. Lovelace, 472 F.3d at 199; see Stotts, 925
F.2d at 86 (explaining that heightened scrutiny would result in
unworkable intertwinement of the courts in difficult
institutional judgments, and therefore, the proper approach for
a reviewing court is "one of caution"). Separately, the Court
reiterates that the burden is "not on [Defendants] to prove the
2 Although prison authorities must articulate the goal or goals that a policy is aimed at achieving in order for a Court to apply the test articulated in Turner, the subjective viewpoint of any one administrator is not controlling because the better interpretation of
Turner is that it is an objective test that turns on the reasonableness of the policy itself, not the personal viewpoint of any one actor. See Hammer v. Ashcroft, 570 F.3d 798, 803 (7th Cir. 2009)
(indicating that the Turner test involves "an objective inquiry"); Lovelace, 472 F.3d at 200 (rejecting an approach that focused "entirely on the defendants' state of mind" because such inquiry did not resolve the question of whether the prison's policy, "by its own terms" violates the Constitution). Arguably, any other approach would be unworkable because even if a policy was struck down by a Court due to evidence of improper subjective motivation, it could be readopted by the jail the very next day on the proffered objectively valid ground that would have otherwise satisfied the Turner test. Alternatively, consistent with the conclusion reached earlier this year by the United States Court of Appeals for the District of
Columbia Circuit, even if this Court assumes that "motive" plays some
part in the Turner inquiry and that "some quantum of evidence of an unlawful motive can invalidate a policy that would otherwise survive the Turner test," this Court finds that the record developed by PLN in
this case "is too insubstantial to do so." Hatim v. Obama, 760 F.3d 54, 61 (D.C. Cir. 2014).
14

validity of prison regulations but on the [Plaintiff] to disprove it." Overton, 539 U.S. at 132.
i. Rational Connection
The first step of the Turner analysis requires the Court to
consider whether, based on the record before it, there is a "valid, rational connection" between the ordering form ban and
the prevention of fraud on the public, or whether such penological goal is "so remote as to render the policy arbitrary
or irrational." Lovelace, 472 F.3d at 200. Because the current
record suggests two different interpretations of the disputed ordering from ban, the Court first articulates the difference in interpretations and then analyzes each alternative.
Although the disputed policy states, on its face, that it bans "ordering forms with prices," there is conflicting evidence in the record as to whether such policy, was/is applied at VBCC to exclude: (1) any incoming publication that includes an actual
"order form" that can be filled out and returned to a vendor; or
(2) any incoming publication that does not include a "per se order form," but does include a product advertisement with a price, as well as sufficient additional information to permit an individual to order such product from the advertising vendor. Compare ECF No. 36-5, at 6-8 (deposition testimony from VBSO employee Captain Lori Harris indicating that written publications are permitted at VBCC if they include
15

advertisements with prices as long as there is not a per se
"order form" that can be mailed back to the vendor) , with ECF
No. 48-3, 1 10 (affidavit from the Sheriff stating that the policy "encompasses all solicitations, ordering forms, catalogs, brochures, whether print or from the internet, which offer inmates the opportunity to make purchases from outside vendors," and that " [o] ffers without ordering forms per se, but which contain information required to make such purchases, are included in this policy"). Although the precise contours of the disputed policy are unclear from the current record, as evidenced by the analysis that follows, such lack of clarity does not constitute a "genuine dispute as to a material fact" because the penological objective advanced by Defendants would
be adequately served by either version of the policy, one version of the policy would simply appear to be more effective than the other at achieving such goal.3
* Per Se Ordering Forms * First, assuming the policy to ban only "per se" order forms
that can be filled out and returned to a vendor, PLN does not
dispute the fact that the banned issues of Prison Legal News and
3 Although not squarely addressed in the briefs before the Court, to the extent the VBSO banned only "per se" ordering forms, logic would suggest that jail authorities could reasonably determine that VBSO resources would be unduly taxed by scouring the fine print in all incoming publications to determine if "ordering information" was included, as contrasted with conducting a more limited search for easily identifiable "order forms."
16

the banned PLN informational packets all included such "per se"
order forms. ECF No. 38, 1M 6, 8, 25. The question for the
Court is therefore limited to whether the ban on "per se"
ordering forms has a valid and rational connection to reducing
fraud. A review of relevant case law reveals few instructive
cases on prison policies aimed at combating fraud on the public,
see, e.g., Woods v. Commissioner of the Ind. Dept. of
Corrections, 652 F.3d 745 (7th Cir. 2011), and an apparent
dearth of case law involving regulations designed to prevent
prisoners from accessing vendor information in an effort to
combat fraud.4 However, regardless of whether there exist any
factually similar policies at other jails or prisons aimed at
similar penological concerns, the law is clear that PLN "bears
the burden of showing that the [challenged] regulations . . .
are not reasonably related to legitimate penological
objectives." Livingston, 683 F.3d at 215. PLN argues that excluding publications containing ordering
forms from VBCC is not an effective means to achieve the goal of
4 This Court is unaware of any federal case addressing a ban on "ordering forms" contained within other publications adopted for the
purpose of combatting fraud, with the exception being a case barring magazine inserts that permit a prisoner to renew a magazine subscription on the promise of future payment. See Klein v. Skolnik, No. 3:08cvl77, 2010 WL 745418, *3-4 (discussing the prison's policy of removing magazine renewal inserts prior to delivering magazines to
inmates). Other courts have acknowledged the appropriateness of bans
on catalogs and other unsolicited "junk mail" designed to alleviate the heavy burden on prison mail rooms. See, e.g., Morrison v. Hall,
261 F.3d 896, 905 (9th Cir. 2001).
17

reducing fraud on the public. Specifically, PLN argues that

VBCC inmates cannot commit mail order fraud because they do not

have money (or stamps as a substitute to money) , VBCC rules

prohibit them from purchasing mail order items, and all incoming

mail at VBCC is screened for contraband (presumably suggesting

that most mail order items would never be delivered to VBCC if

ordered). ECF No. 52, at 8. Such argument, however, "seems to

be that the regulation in question is unnecessary" in PLN's

opinion, rather than remote or arbitrary. Woods, 652 F.3d at

749.

Although Defendants' ban on "ordering forms" might

constitute only one of several policies aimed at deterring

additional crimes and/or reducing fraud on the public, there is

no constitutional or prudential requirement that a jail policy

alone root out all evil for it be "reasonable" in its pursuit of

a valid penological objective. To the contrary, controlling law

clearly provides that a jail "does not need actually to

demonstrate that its regulations" succeed in achieving the

penological goals at which they are aimed; the regulations must

instead merely have a rational relationship to the stated goals.

Stotts, 925 F.2d at 87 (citations omitted); see Amatel v. Reno,

156 F.3d 192, 202-03 (D.C. Cir. 1998) (indicating that the
question of whether a federal statute regulating incoming

publications at a prison is constitutional under Turner does not

require the court to ask if such rule "will advance the prisons'

18

rehabilitative project, but whether Congress could reasonably

have believed that it would do so").

Accordingly, PLN's

suggestion that the disputed policy is not rational or necessary

because it arguably overlaps other VBSO rules carries little

weight.

Although Plaintiff seeks to cast the VBSO policy as

ineffective and suggests that the risk of fraud is very low, it

offers no evidence to such points, and instead advances several

arguments that seemingly attempt to shift the burden to

Defendants. For example, Plaintiff argues that Defendants have

not demonstrated an evidentiary link between past instances of

inmate fraud and such inmates' access to order forms. Such

arguments, however, miss the mark because Defendants have no

obligation to prove that their policy is responsive to past

misuse of order forms. It is well-documented in the law that a

jail must adopt regulations in anticipation of future events,

and the Turner "reasonableness" standard is designed to: (1)

"ensure[] the ability of corrections officials to anticipate

security problems and to adopt innovative solutions to the

intractable problems of prison administration"; and (2) "avoid[]

unnecessary intrusion of the judiciary into problems

particularly ill suited to resolution by decree." O'Lone v.

Estate of Shabazz, 482 U.S. 342, 349-50 (1987) (internal

quotation marks and citations omitted). Moreover, although it

19

is arguably unclear what degree of evidentiary proof a defendant must advance in defense of a jail regulation, here, Defendants have advanced evidence demonstrating that fraud is a real, and not artificial, concern at VBCC through the introduction of an affidavit stating that there have been "multiple investigations of [VBCC] inmates involving the fraudulent use of credit cards to purchase goods from outside vendors or to generate profits from the use of credit/debit cards, and possible bank fraud and check writing schemes," with one such investigation leading to criminal convictions for credit card fraud. ECF No. 48-3, H 16. Defendants have also presented evidence demonstrating that VBCC inmates have previously purchased items from vendors outside the
approved channels by using stamps as currency.5 Id. % 17.
Considering these facts together, Defendants have advanced a reasonable relationship between the "ordering form" ban and the goal of combatting fraud.
Associated with the above arguments, PLN asserts that the "ordering form" ban is arbitrary because inmates have access to television and newspapers. First, as to television, the fact that prisoners may have fleeting access to a certain television advertisement for a product does not undercut the rationality of the VBSO ban on print materials containing ordering forms.
5 Many of the "ordering forms" contained in issues of Prison Legal News expressly invite readers to pay for advertised products through
postage stamps.
20

Unlike television, print materials can more readily be previewed by authorities in order to exclude materials that pose a risk. Moreover, unlike television, print ads are static and present a more long-term opportunity to facilitate fraud. As to PLN's suggestion that other print materials, such as newspapers, that contain "per se" order forms were admitted into VBCC during the relevant time period, such contention is speculative and not supported by the record as Plaintiff has not introduced a single newspaper edition or magazine issue that was admitted into VBCC
during the relevant period that contained ordering forms.6
Accordingly, the Court finds that Defendants have articulated a valid rational connection between the ban on per se ordering forms and the penological goal of combating fraud and PLN has failed to undercut such connection. Notably, " [a]

6 There appears to be some legal support for the proposition that

inconsistent application of a prison policy may serve to undercut the

claimed link between the policy and the asserted penological goal.

See Couch v. Jabe, 737 F. Supp. 2d 561, 569 (W.D. Va. 2010) (noting

that when a publication that plainly violates a prison regulation is

nevertheless permitted, "the argument by [the defendants] that there

is a logical connection between the broad scope of the regulation and

their legitimate goals is fundamentally weakened"). However, PLN did

not introduce as an exhibit any newspapers or other publications

allegedly permitted into VBCC during the relevant period in an effort

to demonstrate that Defendants were not applying the policy in a

neutral fashion.

Plaintiff did ask questions of one deposition

witness about the "Virginia[n] Pilot" newspaper generally, and also

asked questions about a specific issue of a sports magazine that

appears to have belonged to a lawyer involved in this case, but PLN

did not ultimately introduce those materials in support of, or

opposition to, one of the pending summary judgment motions. ECF Nos.

36-5, 52-1. PLN has therefore failed to demonstrate that the manner

in which the policy was applied could serve to undercut the logical

connection between such policy and the stated goal of combatting

fraud.

21

prohibition on [ordering forms] relates fairly directly to the
goal of preventing fraud since it cuts off the inmates' access
to potential victims." Woods, 652 F.3d at 749.
* Ordering Information *
Assuming, arguendo, that the policy at issue bans not only
advertisements with "per se" ordering forms, but also those ads
which contain sufficient information required to purchase the
advertised product, PLN likewise fails to demonstrate that such
policy lacks a "valid rational connection" to reducing fraud.
To the contrary, such a policy would likely be more effective at
combatting fraud because it would restrict more incoming
publications from VBCC, and thus would reduce the likelihood of
fraud being committed by a more resourceful inmate who, in the
absence of an "ordering form," is willing to draft a letter or
use other means to perpetrate a fraudulent transaction.7
Accordingly, the conflict in the record as to precisely how the
VBSO's policy is applied is not material to the determination of
whether the policy at issue is rationally connected to reducing
7 To the extent that the record suggests that newspapers are allowed at VBCC, and common familiarity with newspapers reveals that they often contain ads selling products, if the VBSO's ban extends to all "ordering information," PLN might be in a better position to
demonstrate, as PLN at least suggests through its current filings, that PLN's publications were subject to unequal treatment at VBCC.
However, as stated in the preceding footnote, PLN has not introduced any newspapers or other magazines as exhibits in an effort to support its "suggestion" of differential treatment, and it is therefore impossible to determine without resorting to speculation whether PLN's publications were treated differently.
22

fraud—it is so connected under either interpretation of the
ordering form policy.
The Court therefore reincorporates the above analysis and
alternatively finds that, on the current record, Defendants have
articulated a valid rational connection between a ban on
"ordering information" and the penological goal of combating
fraud.8
ii. Alternative Means
The second Turner factor requires the Court to consider
whether there are alternative methods for PLN, and VBCC inmates,
to exercise their constitutional rights. Lovelace, 472 F.3d at
200. The constitutional right at issue in this case, defined
expansively,9 appears to include PLN's ability as a publisher to
communicate with inmates at VBCC, and the inmates' intertwined
8 Although the lack of clarity in the record is immaterial to ruling on this issue, it appears that Defendants have an obligation to provide inmates, the public, and VBSO staff with sufficient information such that the controlling policy is understood by all. The Court would hope that, to the extent Defendants intend on applying their policy to ban all "ordering information," regardless of whether there is an "ordering form with prices," they make the effort to modify their written policy. Additionally, whatever version of the policy is applied going forward, Defendants should anticipate the fact that they may find themselves back in this very Court if such policy is not applied consistently across different publications.
9 The Supreme Court has cautioned against a narrow interpretation of "the right" in question, finding that it must be "viewed sensibly and expansively." Thornburgh, 490 U.S. at 417. Accordingly, prison mail restrictions that limit certain publications from entering the prison, yet still "permit a broad range of publications to be sent, received, and read" favor the constitutionality of the challenged restriction.
Id. at 418.
23

right to receive written materials from PLN and other
publishers. The current record presents little question that
this factor cuts in Defendants' favor because VBCC inmates may
permissibly receive written materials mailed directly from PLN,
and other publishers, to include any books or other written
publications that do not include order forms and do not
otherwise violate VBCC policy. Specifically, the record reveals
that at least one book published by PLN is permitted at VBCC,
and PLN is not precluded by VBSO policy from otherwise
communicating with inmates. Inmates likewise have access to a
lending library and may receive newspapers and magazines from
PLN and other publishers that comply with VBSO policies.
Accordingly, the limits on PLN's ability to mail publications to
VBCC inmates that include "ordering information" advertising for
other mail order products does not eliminate PLN's ability to
communicate with VBCC inmates.10
10 Although VBSO rules prohibit inmates from receiving ordering forms with prices, as suggested by the Sheriff's deposition testimony, it appears that PLN, as a publisher, may be permitted to mail a publication to VBCC inmates that does not include pricing or other "ordering information" but does include enough details about PLN's educational publications such that the inmate could ask a friend or family member to seek out PLN to discover the necessary ordering information. Moreover, to the extent PLN wants to provide inmates
access to the articles in the monthly issues of Prison Legal News, PLN appears to retain the ability to either publish and provide a free version of Prison Legal News that does not include the banned
advertisements, or to publish a separate paid version of its monthly publication (the subscription to be paid for by friends or family of a
VBCC inmate) that excludes the banned advertisements. Although such alternatives may not be desirable to PLN or its business model, the
24

iii. Impact of the desired accommodation

The third Turner factor requires the Court to consider the

likely impact on VBSO staff, inmates, and prison resources if

the challenged regulation is struck down. Most relevant to such

inquiry in this case "is whether lifting the ban would re-open a

channel of communication" that would create the reasonable

potential for future frauds to occur. Woods, 652 F.3d at 750.

Consistent with the prior discussion herein, this Court believes

that striking down the ban on ordering forms would create such

risk. As in Woods, here, there is record evidence that the

Sheriff has utilized investigative resources to root out prior

frauds at least similar to those targeted by the policy in dispute, and dedicating resources to investigate past crimes "is

not the type of activity prison officials should regularly have

to conduct"; rather, they should endeavor to implement policies

to curtail such illegal behavior before it occurs.

Id.

Accordingly, because Defendants in this case were "rational in

their belief that, if left unchecked, an activity will lead to

fraud," restricting that activity "does not violate inmates'

First Amendment rights." Id.

fact that such alternatives appear to exist, further support a finding
in favor of Defendants on the second Turner factor.
25

iv. Obvious Alternatives

The fourth Turner factor requires the Court to consider

whether there are "any obvious, easy alternatives to the

challenged regulation or action, which may suggest that it is

not reasonable, but is [instead] an exaggerated response to

prison concerns."

Lovelace, 472 F.3d at 200.

Stated

differently, the Court considers whether an alternative

regulation, or no regulation at all, "would fully accommodate

the [Plaintiff's] First Amendment rights at a de minimus cost to

legitimate penological interests." Woods, 652 F.3d at 750. PLN

does not present any evidence that an alternative regulation

would sufficiently achieve the same penological goals, but does

argue that the regulation is unnecessary because other VBSO

polices prevent fraud through limiting inmates abilities to

purchase outside items. Even assuming that such other rules or

practices help reduce the potential for fraud, they "can hardly

be said to eradicate it." Id. PLN does not appear to consider

the possibility that inmates could commit fraud through using

false credit card information or forged checks. Similarly, PLN

does not appear to consider the possibility that products not

permitted at VBCC could be purchased through a mail order fraud

scheme launched from within the jail walls with the products

arranged to be shipped to a friend or family member outside the

walls of VBCC. Accordingly, because "no single regulation can

26

serve as a catchall for eliminating the potential for fraud," based on the current record, the appropriate course is to "defer to the judgment of the prison administrators when it comes to deciding whether a ban on [ordering forms] is also necessary."
Id.
Having considered all of the Turner factors, the Court finds that Defendants' ordering form policy survives scrutiny under such test, noting again that the burden was on PLN to demonstrate the unconstitutionality of the disputed policy, and
on the current record, no reasonable factfinder could conclude that PLN carried such burden. The fact that PLN is purportedly
widely permitted in jails and prisons across the country is not itself a reason to declare the more restrictive VBSO policies unconstitutional. Evidence advanced by a plaintiff is necessary to prove such fact, and such evidence is not currently before this Court. Defendants' summary judgment motion is therefore
GRANTED on this issue.
2. Challenge to Sexually Explicit Materials Ban Plaintiff's amended complaint seeks monetary damages, equitable relief, and declaratory judgment, associated with VBSO's rule prohibiting publications containing "sexually explicit material." PLN contends that such rule is vague and overbroad, and that it was unconstitutionally applied to PLN. ECF No. 17, at 9. The parties have filed cross motions for
27

summary judgment on this issue; however, in light of the above ruling on the ordering form ban, the Court takes this matter UNDER ADVISEMENT pending additional briefing.
It appears undisputed that every issue of Prison Legal News and every PLN "informational packet" that was excluded from VBCC during the relevant time period contained per se "ordering forms," and thus, PLN cannot establish that the exclusion of such publications from VBCC violated the Constitution. Because all excluded PLN materials were permissibly excluded for
containing ordering forms, it appears that a question exists as
to whether one or more of PLN's challenges to the VBSO's
"sexually explicit" materials policy have been rendered moot. The parties should therefore provide supplemental briefing addressing the following two matters: (1) which of Plaintiff's claims, if any, remain a live controversy; and (2) to the extent any of PLN's claims survive or potentially survive the instant ruling, the parties should separately address the law governing each type of claim (facial challenge vs. as applied challenge), and should provide individualized supplemental arguments as to how the Court should rule on each type of surviving or potentially surviving claim.
3. Alleged Due Process Violations In addition to the above issues on which cross-motions for summary judgment were filed, Defendants move for summary
28

judgment as to Plaintiff's claim that PLN was unconstitutionally denied due process when it was not timely notified of Defendants' rejection of PLN publications, or the actual reasons for such rejections, and was also not provided a meaningful opportunity to challenge such censorship decisions. For the reasons discussed below, Defendants' summary judgment motion is
denied on this issue.
In Montcalm Publ'g, the Fourth Circuit expressly held that a magazine publisher "has a constitutional interest in communicating with its inmate-subscribers" and is therefore entitled to some degree of process when a publication is censored. Montcalm Publ'g, 80 F.3d at 109; see also Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (agreeing with
the holding in Montcalm Publ'g). Although the Fourth Circuit did not expressly define the precise contours of the process necessary to satisfy the Constitution, it "h[e]ld that publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate subscribers," and appeared to discuss with favor a procedure that would provide publishers a written rejection notice and an opportunity to respond in writing. Id. at 106, 109.
Here, it appears undisputed that Defendants first notified PLN of a rejection of an issue of Prison Legal News in April of 2012, and did not thereafter notify PLN of subsequent rejections
29

of any PLN publications until late 2013, after the instant
lawsuit was filed.11 Moreover, the record demonstrates that
during a period of time in late 2013 when PLN was receiving
notice from Defendants of censorship decisions and seeking a
review of such decisions, the "review procedure" merely involved
a VBSO employee reviewing whether the rejection form was
properly filled out; it did not involve a review of the rejected
publication to determine whether it actually violated VBSO
rules. ECF No. 52-2, at 2-5; see Jordan v. Sosa, 577 F. Supp.
2d 1162, 1172-73 (D. Colo. 2008) (concluding that a BOP program
statement was unconstitutional "to the extent it permits the
institution to return the [rejected] publication ... to the
publisher prior to completion of the administrative review")
(emphasis added).
During the time period relevant to this case, the VBSO has
twice amended its policy associated with providing notice and an
opportunity to be heard, the first amendment appearing to ensure
that "notice" is properly provided, and the second appearing to
11 Defendants' assertion that PLN received sufficient notice of the
VBSO's ongoing censorship of each Prison Legal News monthly publication during 2012 and early 2013 because VBCC inmates made complaints to PLN does not appear to be supported by the law of this Circuit. See Montcalm Publ'g, 80 F.3d at 109 (noting that "while the inmate is free to notify the publisher and ask for help in challenging the prison authorities' decision, the publisher's First Amendment right must not depend on that"). Moreover, Defendants acknowledge that some issues of Prison Legal News were being delivered by a certain VBSO employee during the relevant time frame, further suggesting that PLN may not have known when issues were delivered, and when they were censored.
30

ensure that a publisher be given the opportunity to be heard as
part of a meaningful review procedure.12 Although it appears
from the current record that the VBSO's procedures currently in force provide constitutionally adequate notice and a sufficient
opportunity to participate in a meaningful review of a censorship decision, such recent changes in policy do not undercut PLN's ability to obtain injunctive relief as to the prior practices applied during the period relevant to this
litigation and challenged in PLN's amended complaint.13 See Wall
v. Wade, 741 F.3d 492, 497 (4th Cir. 2014) (noting that the "heavy burden" of demonstrating that "the challenged conduct cannot reasonably be expected to start up again lies with the
party asserting mootness," and that the Fourth Circuit has "previously held that when a defendant retains the authority and capacity to repeat an alleged harm, a plaintiff's claims should
not be dismissed as moot") (internal citations omitted). This
is particularly the case because Defendants do not in any way acknowledge that their prior practices were unconstitutional, and instead portray their recent policy revisions as
"clarifications." To the extent that Defendants maintain that
their prior procedures were lawful, PLN's injunctive claim is
12 Among the recent revisions in procedure, Defendants now retain a copy of the excluded publication until the review process is complete. 13 It appears from the record that PLN also seeks nominal damages and punitive damages for the alleged past violations.
31

not moot, as claimed by Defendants, because there is no impediment to Defendants returning to their past practices.
Accordingly, because the current record, when viewed in PLN's favor, could plainly support a finding that Defendants failed to provide PLN with constitutionally adequate notice, a constitutionally adequate opportunity to be heard, or both, Defendants' summary judgment motion is DENIED as to this issue.
IV. Immunity Defendants move for summary judgment on Plaintiff's claims
seeking money damages as to both the "ordering forms" policy and the "sexually explicit materials" policy on the basis of both Eleventh Amendment immunity and qualified immunity. For the reasons discussed below, Defendants' summary judgment motion is GRANTED as to their assertion of qualified immunity.
A. Eleventh Amendment Immunity The Eleventh Amendment to the Constitution of the United States immunizes the individual states against suits seeking money damages. U.S. Const, amend. XI; see Vollette v. Watson,
937 F. Supp. 2d 706, 713-16 (E.D. Va. 2013) (discussing the fact that Virginia Sheriffs are state constitutional officers and are
therefore immune from suit under the Eleventh Amendment for
"official capacity" claims seeking money damages, but are not immune from suit for claims seeking injunctive relief). However, here, in light of the parties' positions on summary
32

judgment, there is no dispute that Eleventh Amendment immunity

is not applicable to the claims pending in this case. Notably,

while Defendants effectively argue that they are shielded from

liability by the Eleventh Amendment for claims seeking money

damages against them in their "official capacity," ECF No. 48 at

29-30, PLN concedes in its responsive brief that Plaintiff's

"official capacity" claims are limited to seeking injunctive

relief, ECF No. 52, at 18-19. Accordingly, as PLN makes clear

that it does not advance any "official capacity" money damages

claims in this case, and the law clearly provides that Eleventh

Amendment immunity does not extend to claims seeking injunctive

relief, no further ruling is required by the Court on this

issue. Bland v. Roberts, 730 F.3d 368, 390-91 (4th Cir. 2013)."

B. Qualified Immunity

Defendants separately assert that the claims seeking money

damages against Defendants in their "individual capacities"

based on the "ordering form" ban and the "sexually explicit

materials" ban are barred based on the doctrine of qualified

immunity. As recently explained by the Fourth Circuit:

A government official who is sued in his individual

capacity may invoke qualified immunity. See Ridpath

[v. Board of Governors Marshall Univ.], 447 F.3d

[292,] 306 [(4th Cir. 2006)].

"Qualified immunity

protects government officials from civil damages in a

14 Defendants' summary judgment motion would be granted on this issue to the extent that PLN did assert claims seeking money damages against Defendants in their "official capacities." Bland, 730 F.3d at 390-91.
33

§ 1983 action insofar as their conduct does not

violate

clearly

established

statutory

or

constitutional rights of which a reasonable person

would have known." Edwards v. City of Goldsboro, 178

F.3d 231, 250 (4th Cir. 1999) (internal quotation

marks omitted). In determining whether a defendant is

entitled to qualified immunity, a court must decide

(1) whether the defendant has violated a

constitutional right of the plaintiff and (2) whether

that right was clearly established at the time of the

alleged misconduct. See Walker v. Prince George's

Cnty. , 575 F.3d 426, 429 (4th Cir. 2009) . However,
"judges of the district courts and the courts of

appeals [are] permitted to exercise their sound

discretion in deciding which of the two prongs of the qualified immunity analysis should be addressed first

in light of the circumstances in the particular case

at hand."

Pearson v. Callahan, 555 U.S. 223, 236

(2009).

In analyzing whether the defendant has violated a constitutional right of the plaintiff, the court should identify the right "at a high level of particularity." Edwards, 178 F.3d at 251. For a plaintiff to defeat a claim of qualified immunity, the contours of the constitutional right "must be sufficiently clear that a reasonable official would understand that what he is doing violates that right." Hope v. Pelzer, 536 U.S. 730, 739 (2002) (internal quotation marks omitted).

Bland, 730 F.3d at 391. In determining whether a defendant is

entitled to summary judgment on the basis of qualified immunity,

the Court must consider the facts "'in the light most favorable

to the party asserting the injury.'" Tolan v. Cotton, 134 S.

Ct. 1861, 1865 (2014) (quoting Saucier v. Katz, 533 U.S. 194,

201 (2001)).
Because qualified immunity is an affirmative defense,

"'[t]he burden of proof and persuasion with respect to a defense

34

of qualified immunity rests on the official asserting that
defense.'" Durham v. Jones, 737 F.3d 291, 299 (4th Cir. 2013)
(quoting Meyers v. Baltimore Cnty., Md., 713 F.3d 723, 731 (4th Cir. 2013)). Accordingly, here, in order to prevail on summary judgment, Defendants must "'show either that there was no
constitutional violation or that the right violated was not clearly established.'" Id. (quoting Gregg v. Ham, 678 F.3d 333, 341 n.7 (4th Cir. 2012)).
1. "Order Forms"
As discussed in detail above, this Court finds that PLN fails to demonstrate that a constitutional violation occurred
through the VBSO's maintenance of an ordering form ban and/or its application of such ban to PLN's publications. Accordingly,
as no constitutional violation occurred, Defendants have
demonstrated that they are shielded by the doctrine of qualified immunity as to this issue. Durham, 737 F.3d at 299.
Alternatively, even if this Court had denied summary judgment on the merits of the "ordering form" dispute, it would have granted the Defendants qualified immunity on the basis that the right at issue is not "clearly established." Id. The Court agrees with Defendants that the current state of the law would not put them on notice that it was unconstitutional to ban ordering forms in an effort to reduce fraud. Although a lack of "on point" case law does not automatically support a finding of
35

qualified immunity, such lack of "on point" law, considered in conjunction with cases approving catalog bans or other policies implemented in an effort to prevent fraud on the public clearly support a finding that Defendants are immune from damages on this issue. See, e.g., Woods, 652 F.3d at 749 (upholding policy banning inmate pen-pal solicitations in an effort to reduce fraud); Klein v. Skolnik, No. 3:08cvl77, 2010 WL 745418, *3-4 (D. Nev. Jan. 22, 2010) (upholding the constitutionality of a prison's policy of removing magazine subscription renewal "order form" inserts to combat fraud); Dixon v. Kirby, 210 F. Supp. 2d 792, 795, 800-01 (S.D. W. Va. 2002) (upholding as constitutional a policy that banned all "mail order catalogs" but appeared to permit magazines even if they included "advertisements").
2. "Sexually Explicit Materials" A survey of case law clearly demonstrates the unremarkable
fact that prisons and jails can constitutionally restrict "pornography" and "sexually explicit" writings and photographs in the name of promoting institutional order and security, which are indisputably valid penological goals. See, e.g., Jordan v. Sosa, 654 F.3d 1012, 1016-17 (10th Cir. 2011) (explaining that federal prison facilities ban publications that include "a pictorial depiction of actual or simulated sexual acts including
sexual intercourse," and those that "feature" nudity, which is
defined by regulation as "a pictorial depiction where genitalia
36

or female breasts are exposed"); Bahrampour v. Lampert, 356 F.3d 969, 976 (9th Cir. 2004) (upholding as constitutional a regulation that prohibited inmates from receiving publications that contained images portraying actual or simulated sexual acts or sexual contact, but that permitted some nude images). Here, this Court in no way questions the Sheriff's "common sense"
explanation of the risks associated with allowing "sexually explicit" materials into VBCC; however, questions remain as to whether the VBSO's conception of "sexually explicit" materials
is constitutionally permissible. Although this Court takes the parties' cross-motions for
summary judgment on the VBSO's sexually explicit material policy under advisement to permit additional briefing, even considering all disputed facts and reasonable inferences in favor of PLN,
the Court finds that Defendants have demonstrated that they are
entitled to qualified immunity on this issue. Notably, even if
this Court assumes that Defendants committed a constitutional
violation through censoring monthly issues of Prison Legal News based on the application of the VBSO "sexually explicit materials" policy, the "contours of the constitutional right . . . [were not] 'sufficiently clear [such] that a reasonable
official would understand that what he [was] doing violates that
right.'" Bland, 730 F.3d at 391 (quoting Hope v. Pelzer, 536
U.S. 730, 739 (2002)) .
37

Although the VBSO policy appears to restrict a broader range of materials than policies at issue in similar cases, such fact does not alone support a finding that such policy is unconstitutional, let alone support a finding that such policy violates a "clearly established" constitutional right. Notably, issues of Prison Legal News that were barred from VBCC during
2012 and the first half of 2013 included photographs of women
and men in lingerie, skimpy swimsuits, or other revealing clothing with the subjects posed in a manner overtly designed to connote that, absent a strategically placed "censor star," the subject was revealing his or her genitals and/or her breasts.
Even if this Court assumes that Defendants lacked a valid
penological justification for censoring such materials,
Defendants have carried their burden to prove the absence of law that would have put Defendants on notice that their conduct was unconstitutional. See Durham v. Horner, 690 F.3d 183, 190 (4th Cir. 2012) (explaining that the "qualified immunity standard gives ample room for mistaken judgments" and is designed to "protect[] public officials from bad guesses in gray areas") (internal quotation marks and citations omitted). Notably, not only is there a lack of controlling precedent demonstrating that censoring Prison Legal News based on such images violated the Constitution, but there is at least some non-binding case law holding that arguably similar acts of censorship were
38

constitutional. See Elfand v. County of Sonoma, No. C-ll-0863, 2013 WL 1007292, at *4 (N.D. Cal. Mar. 13, 2013) (upholding the
constitutionality of a jail's censorship of issues of Maxim Magazine and GQ Magazine that displayed pictures of woman and men in "underwear, bikinis, and tight and scant clothing revealing breasts and buttocks" to include an image of a woman in a "see-through bra and 'thong' underwear with her buttocks
raised"). Because the state of the relevant law, both in 2012, 2013,
and today, does not indicate that a jail is prohibited from excluding all incoming publications containing revealing images of individuals in sexual poses overtly intended to sexually arouse the viewer, Defendants' summary judgment motion is
GRANTED to the extent that Defendants invoke the doctrine of
qualified immunity to shield them from money damages associated with the exclusion of the April 2012 through June 2013 issues of Prison Legal News. See Woods v. Director's Review Committee, No. H-ll-1131, 2012 WL 1098365, at *1, (S.D. Tex. Mar. 30, 2012) (concluding that the defendants were entitled to qualified immunity in a case challenging a Texas prison's censorship of nude photos that had been "blurred in such a way as to disguise or cover up any exposed nudity," noting that there was "no clear statement" in the law that would put an official on notice that
it was unlawful to ban such images).
39

Although a closer question, the Court also finds that Defendants have satisfied their burden to demonstrate that they are protected by qualified immunity as to PLN's challenge to the issues of Prison Legal News that no longer included advertisements with "censor star" images (July 2013 through April 2014). After the removal of such images, every monthly issue of Prison Legal News issued between July 2013 and April of 2014 continued to include images of women in tight fitting clothing, including short skirts and short shorts, tight pants, and clothing that at least appears to be "lingerie." Additionally, some issues contained an image of a woman wearing an erotic top that appears to expose her breasts; however, she is holding up the book being promoted for sale in a manner that obscures the majority of her breasts. Although most of these images are quite small, it is apparent that at least some of the images are designed to either draw attention to the amount of skin being displayed, or to emphasize the subject's buttocks. Additionally, the fact that such images are often included in ads promoting "(non-nude) sexy photos," to include "various backshots & positions" increases the sexual connotation of the images. These images, therefore, could reasonably be viewed as "sexually suggestive," and there is an absence of case law establishing clear lines between sexually oriented materials that can be constitutionally restricted from a jail or prison
40

and those that cannot. See Tolan, 134 S. Ct. at 1866 ("'[T]he
salient question ... is whether the state of the law' at the time of an incident provided 'fair warning' to the defendants 'that their alleged [conduct] was unconstitutional.'" (quoting Hope, 536 U.S. at 739) (omission and alteration in original));
see also North v. Clarke, No. 3:llcv211, 2012 WL 405162, at *9-
10 (E.D. Va. Feb. 7, 2012) (concluding that the defendants were
entitled to qualified immunity in a case where the court granted summary judgment in favor of the plaintiff based on the unconstitutionality of the challenged prison regulation).
Defendants have therefore carried their burden to
demonstrate that they lacked "fair warning" that their decision to adopt and apply a broad policy aimed in part at sexually "suggestive" materials was unconstitutional. Tolan, 134 S. Ct. at 1866; see Hunter v. Bryant, 502 U.S. 224, 229 (1991) (noting that "[t]he qualified immunity standard 'gives ample room for mistaken judgments' by protecting 'all but the plainly incompetent or those who knowingly violate the law'" (quoting Malley v. Briggs, 475 U.S. 335, 341, 343 (1986))); Ashcroft v. al-Kidd, 131 S. Ct. 2074, 2083 (2011) (explaining that "[a] Government official's conduct violates clearly established law" when existing precedent "placed the statutory or constitutional question beyond debate"). Defendants' summary judgment motion
is GRANTED to the extent that Defendants invoke the doctrine of
41

qualified immunity to shield them from money damages associated with the exclusion of the April 2012 through June 2013 issues of Prison Legal News based on the pictures contained therein.
3. Due Process
As previously noted, Plaintiff does not seek summary judgment on its due process claim. Defendants seek summary
judgment on such constitutional claim on the merits, but did not advance an argument contending that Defendants are shielded from damages based on qualified immunity, apparently on the belief that PLN was not pursuing money damages on such claim. ECF No. 48, at 24. PLN thereafter indicated in its filings that while it was not pursing compensatory damages on this claim, it is pursuing nominal damages and/or punitive damages. ECF No. 52, at 18. Defendants' subsequent responsive brief does not address such statement in the context of qualified immunity, but instead continues to challenge the merits of Plaintiff's due process
claim.
Based on the foregoing, it does not appear that Defendants move for summary judgment on the basis of qualified immunity as to Plaintiff's due process claim, and no ruling is therefore necessary at this time. Alternatively, to the extent that Defendants' filings can be interpreted to seek qualified immunity on this issue, the Court finds that Defendants fail to carry their burden, and summary judgment is therefore DENIED as
42

to such matter. Notably, the governing law appears to be
clearly established on this issue, Montcalm Publ'g, 80 F.3d
105,1S and the questions of fact will dictate whether the policy
previously in place at VBCC, either with respect to the alleged
failure to provide notice in 2012 and 2013, or alleged failure
to conduct a meaningful review of censorship decisions in late
2013, violated such clearly established law.
V. Respondeat Superior
The Sheriff briefly argues in his summary judgment filings
that he is shielded from liability to the extent that he is
being sued for damages in his individual capacity only on the
theory of respondeat superior. See Harris v. City of Virginia
Beach, VA, 11 F. App'x 212, 215 (4th Cir. 2001) ("[A]
plaintiff's § 1983 action against a particular defendant must be
dismissed if the plaintiff's reason for naming the defendant is
based solely upon the theory of respondeat superior" (citing
Vinnedge v. Gibbs, 550 F.2d 926, 928 (4th Cir. 1977)). However,
15 Although the Fourth Circuit's opinion in Montcalm Publ'g declined to expressly define the procedure necessary in order to ensure that a sufficient degree of "process" is provided, the Court made the following clear statements:
(1) "We hold that publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate subscribers"; and (2) "An inmate who cannot even see the publication can hardly mount an effective challenge to the decision to withhold that publication, and while the inmate is free to notify the publisher and ask for help in challenging the prison authorities' decision, the publisher's First Amendment right must not depend on that."
Montcalm Publ'g, 80 F.3d at 106, 109.
43

for the reasons set forth in PLN's responsive brief, ECF No. 52, at 22, the Court finds that there is sufficient record evidence
indicating that the Sheriff was directly involved in relevant events such that the remaining damages claim against him (the due process claim) is not based solely on the theory of respondeat superior. Notably, when viewed in Plaintiff's favor,
the record reveals that the Sheriff, at least for a time,
participated in the appeal process and acted as the final
decision maker as to whether a publication would be barred from VBCC. ECF No. 36-3, at 11-13. Defendants' motion for summary judgment is therefore DENIED as to such claim.
VI. Additional Settlement Discussions
The Court's award of partial summary judgment on the "ordering form" ban and its finding in Defendants' favor as to qualified immunity on both the "ordering form" ban and the "sexually explicit materials" ban resolve a large portion of this case in favor of Defendants. That said, although not resolved in the instant motion, and not prejudged in any way, the current record suggests that PLN has a strong position on
its due process claim.16 Jordan, 577 F. Supp. 2d at 1172-73.
16 PLN has not moved for summary judgment on its due process claim, but because the parties' request to postpone trial has left sufficient time for additional motions practice, if there is an alleged absence of disputed material facts relevant to this issue, the Court would entertain a request by PLN to file a second summary judgment motion on its due process claim.
44

Moreover, if not moot, Plaintiff has a potentially meritorious

argument on its facial challenge to Defendants' "sexually

explicit materials" policy to the extent such policy broadly

bans "any writings [or] pictures . . . which may be deemed

offensive."17

ECF No. 48-4.

Arguably, even under the

deferential Turner standard, it is unconstitutional for a jail

to exclude publications based on a broad undefined standard

whose text does not tie it to any penological concerns, thus

leaving it open to being invoked merely because a prison

official is personally displeased with the content of "any

writing or picture." Cf^ Abbott, 490 U.S. at 404-05, 419

(upholding the facial validity of the federal Bureau of Prisons'

restrictions against publications deemed "detrimental to the

security, good order, or discipline of the institution,"

expressly noting that such restrictions prohibit the rejection

of a publication "solely because its content ... is unpopular

or repugnant") (emphasis added). A similar argument can be made

to the extent that the VBSO policy broadly bans any "material

dealing with or displaying . . . scantily clothed persons,"

because on its face such policy: (1) can be (and arguably has

been) applied to ban written text discussing or in any way

17 From the current record, it is unclear what the broad and undefined term "offensive" means, although there is at least some record
evidence indicating that "offensive" means "sexually offensive." ECF
No. 36-5, at 3.
45

"dealing with," in less than graphic detail, a person wearing underwear or a bathing suit; and (2) can be (and arguably has been) applied to ban any image of a person in a bathing suit regardless of the sexual connotation of such image and regardless of the image's likely impact on penological concerns. Cf. Couch v. Jabe, 737 F. Supp. 2d 561, 567-71 (W.D. Va. 2010) (indicating that the "expansive reach" of a Virginia Department of Corrections prohibition on all explicit descriptions of sexual acts, to include "[a]ny sexual acts in violation of state
or federal law" is overbroad even under the undemanding Turner reasonableness standard because it reaches a wealth of written
material, including great literary works of art, that could not "have any effect on the security, discipline, and good order of the prison"); Aiello v. Litscher, 104 F. Supp. 2d 1068, 1079-82 (W.D. Wis. 2000) (denying the defendants' summary judgment motion, recognizing that although there is surely a rational connection between a prison ban on explicit pornography and advancing legitimate penological goals, the defendants had not
demonstrated a valid rational connection between such goals and
the broadly sweeping regulation at issue, specifically noting
that the record "reveals no debate among scholars or experts on the effect on rehabilitation of great works of art and literature, [such as nude images from the Sistine Chapel] . . . and common sense suggests none") (emphasis added).
46

In light of the fact that Defendants have prevailed on a substantial portion of this case, yet Plaintiff remains in a position where it could prevail on one or more outstanding issues, counsel for both parties are INSTRUCTED to meet and confer to discuss whether a resumption of the previously conducted settlement conference may prove fruitful. As in all civil disputes, this Court encourages the parties to seriously consider the benefits of a negotiated settlement, noting that in this case in particular the current record suggests a potential benefit to both parties in reaching such a stipulated resolution, as the record at least suggests that both parties
may have an interest in the VBSO improving its sexually explicit materials policy (as it twice revised and improved its due process policy associated with rejected publications) in order to more closely tie the text of the policy to the goal of excluding materials that might affect internal safety and
associated penological concerns.
VII. Conclusion For the reasons set forth in detail above, the Court TAKES
UNDER ADVISEMENT the parties' cross motions for summary judgment as to the constitutionality of Defendants' "sexually explicit materials" policy in order to permit additional briefing on such subject. As to the cross motions for summary judgment on Defendants' "ordering form policy," Defendants' motion is
47

GRANTED and Plaintiff's motion is DENIED. Additionally, the

Court GRANTS Defendants' motion for summary judgment to the

extent Defendants invoke the doctrine of qualified immunity as to both the ordering form ban and sexually explicit materials

ban. All other arguments in support of summary judgment

contained in the cross motions are DENIED.
Counsel for both parties are INSTRUCTED to meet and confer in person within 21 days of the issuance of this Opinion and

Order to discuss whether the resumption of the settlement

conference previously conducted in this case would prove fruitful. The parties shall file with the Court, jointly or separately, a "status update" no later than Wednesday, January

7, 2015, indicating their position on whether a briefing

schedule should be set by the Court for supplemental summary judgment briefs or whether the parties would prefer to resume settlement discussions with a Magistrate Judge prior to being

ordered to submit further briefing on the issue of summary

judgment. The Clerk is REQUESTED to send a copy of this Opinion and

Order to all counsel of record.

IT IS SO ORDERED.

/s/
Mark S. Davis
United States District Judge

December %O , 2014

United States District Judge
48

 
 UNITED STATES DI STRICT COURT EASTERN DISTRICT OF VIRGINIA
Norfolk Division
PRI SON LEGAL NEWS, a proje c t of the HUMAN RIGHTS DEFENSE CENTER,

FILED
~
CU:ht\, u:: :::!S :-n CT COURT
i1 GP::-CLK, VA

Plaintiff,

v.

Civil No. 2 :13cv424

KEN STOLLE, Sheriff for Virginia Beach, Virginia, et . a l ,

Def endants.

OPINION AND ORDER Thi s ma t ter i s be f ore t he Court o n a s econ d motion for partial summary judgment filed by Prison Legal News, a project of the Human Rights Defense Center, ( "Plaintiff,u or "PLNu), ECF No . 77 , as well as a reserved issue in Plai ntif f' s o r iginal motion for partial summary judgment, ECF No . 35 . Also pending i s a previous ly res erved portion of a cross motion for summary judgme n t filed co l lectively by Ken Stolle, Sheriff fo r Virginia Beach, Virginia ( "the Sheriffu), and the eight named defendant employees of the Virginia Beach Sheriff ' s Office (c ollect ively with the Sheriff , " Defendantsu) . ECF No . 4 9 . On December 8 , 2014, this Court issue d a detailed Opinion and Order resolving the majority of the parties ' i nitial cross mo t ions for s u mmary judgment, but reserved ruling on the parties' dispute related to

the constitutionality of the "sexually explicit materials"

policy adopted by the Sheriff and implemented by Defendants at

the Virginia Beach Correctional Center ( "VBCC")

The Court

having now rec eived add it ional briefing on the reserved issue,

and having conducted an on-the-record conference call with the

parties on March 17, 2015, the prior motions on the sexually

explicit materials policy, as well as Plaintiffs ' more recently

filed motion seeking summary judgment on a due process c l aim,

are ripe for review.

I . Factual and Procedural Background

This Court previously outlined the relevant factual and

procedural background in detail in its December 8, 2014 Opinion

and Order, and such background is incorporated by reference

herein . In short, PLN is the publisher of a monthly magazine

titled " Prison Legal News," which is marketed mainly t o inmates .

Over the pas t several years, inmates at VBCC, which is operated

by Sheriff Stolle and the Virginia Beach Sheriff's Office

( "VBSO"), have no t been permitted to receive the month l y Prison

Legal News magaz ine . This Court's prior Opinion upheld the

constitutionality of Defendants' decision not to allow past

issues of s uch magazine into the VBCC based on the VBSO ban on

all incoming publications that contain "ordering forms" with

prices . The Court reserved ruling on the alternative reason for

rejection of past i ssues of Prison Legal News based on va rious

2

non -expl ici t , but a rguab ly " sexually sugges t ive, " advertisements

contained t herei n , with such ads displaying varying degrees of

sexually suggestive photographs across different issues of

Prison Legal News .

Subsequent to this Court's December 2014 Opinion, both

parties

filed

supplemental

briefs

regarding

the

constitutionality of the VBSO sexually explicit materials

policy, and the bri efs address whether such legal issue is moot

in light of either : (1) this Court ' s pri or r uling on the

ordering form policy ; and/or (2) the VBSO's recent adoption of a

new sexually explicit materials policy . Additionally , PLN

requested, and was granted, leave to file a second motion

seeking partial summary judgment, the second motion focusing on

PLN's allegations that the VBSO's notice and review policy

associated with censoring incoming publications (hereinafter

"publication r eview policy") was unconstitutional a s it fai l ed

to provide publ ishers with adequate notice and/or an adequate

opportunity to be heard when the VBSO prohibited a certain

publication from entering the VBCC. Notably, while the instant

action was pending, the VBSO has twice amended its publication

review policy, with both voluntary changes occurring prior to

this Court ' s issuance of its December 8, 2014 Opinion .

Notwi thstanding the fact that compensatory damages are no

longer at issue in this case , and the fact t hat Defendants have

3

modified, and unques tionably improved from a cons titutional standpoint, both the VBSO sexually explicit materials policy and the VBS O publication review policy, as confirmed during the March 17, 2015 conf erence call, the parties are unable to resol ve their disputes as to the now-abandoned policies . This Court the refore now p roceeds to r esol ving t he pendi ng mot ions.
II . Standard o f Review The Federal Rul es of Civil Procedure provide that a d istrict court shall g rant summary judgment i n favor of a movant if such party "shows that there is no genuine dispute as to any material f ac t and the movant is entitled t o judgment a s a matter o f law. " Fed . R. Civ . P . 56(a) "[T)he mere existence of some alleged factual dispute between the parties will not defeat an o therwise p roperly s u p ported motion for summary judgment i the requirement is that t here be no genuine issue of ma t erial fact . "
Anderson v . Liberty Lobby Inc . , 477 u . s. 242, 247 - 48 (1986) . A
fact is "mater i al" if it "might a ffect the ou tcome of the suit ," and a dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." I d . at 248 .
If a movant has properly advanced evidence supporting entry of summary judgment, the non-moving party may not rest upon the mere a llega t i ons of the pleadings , but instead mus t set forth specific facts in the form of exhibits, sworn statements, or
4

other materials that i l lustrate a genuine i s sue for trial.

Ce l otex Corp . v . Catrett, 477 U.S . 3 17, 322 - 24 (1986); Fed . R.

Civ. P . 56(c)

At that point, "the judge's function is not

himself to weigh the evi dence and determine the truth of the

ma tt er but to d e termi ne whether there is a genuine issue for

trial ." Anders on, 477 U. S . at 249 . In doi ng s o, the judge must

construe the facts and all "justifiable inferences" in the light

most favorable to the non-moving party, and the judge may not

make credibility determinations. Id. at 255; T-Mobile Northeast

LLC v . City Counc il of City of Newport News, Va . , 674 F.3d 380,

38 5 (4th Cir . 2012 ).

When confronted with cross motions for summary judgment ,

"the court must review each motion separately on its own merits

to determine whether either of the parties deserves judgment as

a matter of l aw ." Rossignol v. Voorhaar, 316 F . 3d 51 6, 523 (4th

Cir. 200 3) (i ntern al quot a tion marks and citation o mitted) . As

to each sep arate mo tion , the Cou rt must sepa rat e ly r esolve

factual disputes and competing rational inferences i n favor of

the non-movant . Id.

III . Discussion

A. Legal Standard Governing Restrictions on I n comi ng Publi cat i o n s at a Pris on/ Jail

This Court's prior Opinion in this case provided a detailed

sur vey o f t he applicable law governing the const itut ionality of

5

censoring incoming publications at a prison or jail, ECF No . 65,

at 7-10, and such analysis is incorporated by reference herein .

In short, it is well-established in the Fourth Circuit that,

notwithstanding "the First Amendment's somewhat limited reach in

the prison context,u publishers have a First Amendment right to

communicate with inmate subscribers . Montcalm Publ' g Corp . v .

Beck , 80 F . 3d 105 , 109 (4 th Cir . 1996) . That said , distric t

courts are required to give substantial deference to prison

officials in all matters of institutional management, with the

standard for reviewing a challenge to a prison policy requiring

the Court to consider :

(1) whether there is a "valid, rational connectionu

between the prison regulation or action and the

interest asserted by the government, or whether this

interest is "so remote as to render the policy

arbitrary or irrationalu; (2) whether "alternative

means of exercising the right

remain open to

prison inmatesu

(3) what impact the desired

accommodation would have on security staff, inmates,

and the allocation of prison resources; and (4)

whether there exist any "obvious, easy alternativesu

to the chall enged regulation or action, which may

suggest that it is "not reasonable , but is [instead]

an exaggerated respon se to prison concerns .u

Lovelace v. Lee, 472 F . 3d 174, 200 (4th Cir. 2006) (quoting

Turner v. Safley, 482 U. S . 78, 89-92 (1987)) (first omission in

original) (hereinafter "the Turner testu).

In applying the

Turner test, it is the party challenging the prison regulation

that "bears the burden of showing that the [chal lenged]

regulations

are not reasonably related to legitimate

6

penological objectives, or that they are an 'exaggerated response' to such concerns . " Prison Legal News v. Livingston, 683 F . 3d 201, 215 (5th Cir . 2012) (citing Overton v. Bazzetta, 539 U. S . 126, 132 (2003); Turner, 482 U.S. at 87)) . Although such burden falls squarely on PLN in this case, Defendants are required to at least articulate a rationale in support of the disputed pol ices such that the Court can perform a meaningful review of the challenged policy under Turner. Beard v . Banks, 548 U.S. 521, 535 (2006) (plurality opinion); see Van den Bosch v. Raemisch, 658 F.3d 778, 786 (7th Cir. 2011) ( "1-lhile the burden of persuasion is on the [plaintiff] to disprove the validity of a [prison] regulation, defendants must still articulate their legitimate governmental interest in the regulation . ") (citations omitted) .
B. Outst and ing Summary J u dgment Cl a ims PLN's first motion for partial summary judgment challenges the former VBSO policy banning from VBCC "sexually explicit" publications, which extended to photos and writings deemed "offensive" and material s dealing with "scantily clothed persons." ECF No . 48- 4 . PLN's second motion for partial summary judgment challenges the former VBSO publication review policy, arguing that it failed to provide constitutionally adequate "notice" and an "opportunity to be heard" after an incoming publication was rejected by the VBSO.
7

Defendants ' cross motion for partial summary judgment opposes PLN's const itut i onal challenge to t he former VBSO sexually explicit materials policy, asserting t hat Defendants are entitled to summary judgment on such issue because the former policy was constitutionally prope r under Turner. Defendants' cross motion for summary judgment on t he former VBSO publication review policy is no longer pending as it was denied i n this Court ' s Decembe r 8 , 2014 Opinion and Order .
C. Analysis 1. Mootness This Court previously invited the parties to address whether or not the dispute over the former VBSO sexually explicit materials policy was "moot" due to the Court's ruling in favor of Defendants on the VBSO "order ing f orm" policy in l ight of t he fact that it is undisputed that every relevant issue of Prison Legal News that was excluded from the VBCC contained ordering forms. Addit ionally, as noted above, the VBSO adopted a new sexually explicit materials pol i cy after this Court issued its prior Opinion, and Defendants t herefore argue tha t the adoption of s uch new policy constitutes separate grounds for finding this issue to be moot. Having carefully considered the parties' supplemental filings, the Court fi nds that Defendan ts , the part ies asserting mootness , have failed to demonstrate either that this Court's
8

prior ruling, or the VBSO' s adoption of new sexually explicit

materials and publication review policies, have mooted the

d isputes remaining in this case. As to the change in policies,

which is the primary focus of the parties' briefs, Defendants

have failed to demonstrate that, subsequent to the terminat ion

of this litigation, they will not re-implement the challenged

policies. No tably, as recently explained by the Fourth Circuit:

It is well established that a defendant's "voluntary

cessation of a challenged practice" moots an action

only if "subsequent events made it absolutely clear

that the allegedly wrongful behavior coul d not

reasonably be expected to recur." Friends of the

Earth, Inc. v. Laidlaw Envtl. Servs., Inc ., 528 U.S.

167, 189; see Knox v . Service Employees Int' 1 Union,

Local 1000, 132 s . Ct . 2277 , 2287 (2012) ("The

voluntary cessation of challenged conduct does not

ordinarily render a case moot because a dismissal for

mootness would permit a resumption of the challenged

conduct as soon as the case is dismissed.") . Were it

otherwise, "courts would be compelled to leave ' [t] he

defendant

free to return to his old ways.'"

City of Mesquite v . Aladdin's Castle, 455 U. S. 283,

289 n.10 (1982) (quoting United States v . W. T . Grant

Co., 345 U.S. 629, 632 (1953)) "The ' heavy burden of

persua[ding]' the court that the challenged conduct

cannot reasonably be expected to start up again l ies

with the party asserting mootness ." Laidlaw, 528 U.S.

at 189 , (quoting United States v. Concentrated

Phosphate Export Ass'n , 393 U.S. 199, 203 (1968 )) .

Wall v. Wade, 741 F.3d 492, 497 (4th Cir . 2014) (alterations in

original) .

Here, Defendants have never acknowledged that the prior

VBSO policies are unconstitutional, nor has the Sheriff, or any

other Defendant, submitted an affidavit stating, even without

9

admitting the unconstitutionality of the prior policies, that

the prior policies are at least constitutionally suspect, and

therefore, will never be reimplemented by the VBSO .

Accord ingly , Defend ants do no t poin t to any legal or practical

barrier preve nting them fr om readopting the disputed policies,

and they have fai led to even offer a bald conclusory pledge not

to re turn to such policies. See id . ("[W] hen a defendant

retains the a uthority and capacity to repeat an alleged harm, a

p laintiff ' s c laims should not be dismissed as moot . u ) .

As a

result, Defendants have clearly failed to meet their "heavy

burden, n and this Court will proceed to consider the merits of

PLN' s claims as to both the former VBSO sexually explic it

material s policy and former VBSO publication review pol i cy . 1

2. Former VBSO Sexually Explicit Ma teria ls Policy

PLN's initial motion for par ti al summary j u dgment and

supporting memoranda chall enge Defendants' policy banning from

VBCC "sexually exp lic it 11 photos or publications, which under the

former VBSO policy, extended not only to what is tradit ionally

1 This Court's earlier concern regarding mootness based on its prior ruling centered on whether PLN's "as applied~~ challenge to the sexually expl ic it materials policy was moot in light of the fact that this Court already concluded that the exclusion of the same issues of Prison Legal News, that form the basis for this claim, was constitutional on other grounds. Defendants ' briefs , however , f ail to demonstrate that this Court' s prior ruling renders such issue moot. Moreover , even if the "as applied" chal lenge were deemed moot, as described above , in light of the Sherif f 's failure to acknowledge under oath that he is prohibited from returning to the prior sexually explicit materials policy on constitutional grounds, the facial challenge to such policy would plainly remain a live controversy .
10

considered "pornography ," but also to "any writings [or]

pictures

which may be deemed off e nsive" as well as to

"material dealing with or displaying

scantily c l othed

persons." ECF No. 48-4 . PLN advances both a "fac ial" challenge

t o such policy and an "as applied" challenge, a nd does not

dispute Defendants' assertion that the Turner test applies to

both types of challenges. See Bahrampour v. Lampert , 356 F. 3d

969, 975 (9th Cir . 2004) ("The Turner analysis applies equally

to fac ial and ' as applied' challenges ." ); Wardell v . Duncan, 470

F. 3d 954 , 963 (lOth Ci r . 20 06) (applying Turner to an inmate's

"as applied" challenge to a mail restriction) ; see also

Educational Media Co . at Virg inia Tech, Inc. v . Insle y, 731 F.3d

291, 298 n . 5 (4 th Cir . 20 1 3) (describing , in a case not

involving the prison context, that the "difference between a

facial chall enge and an as-applied challenge lies in the s cope

of the constitutional inquiry ," with the firs t focusing on the

policy "without regard" to its impact on the plaintiff, and the

second focusing on how such policy is applied to a specific

person or entity)

Defendants oppose PLN' s motion and

separately seek summary judgment in their favor on t his issue,

argu ing that the fo r mer VBSO sexually exp lici t mat e rials policy

was constitutional in light of the wide-latitude t hat prison

official s are afforded in this arena.

11

A survey of case law on the issue of prison regulations on

sexually themed materials plainly demonstrates that,

notwithstanding a private citizen's First Amendment right to

possess what can be generally categorized as "adult

pornography,~~

prison

and

jail

administrators

can

constitutionally restrict pornography and similar "sexually

explicit 11 writings and photographs. See, e.g . , Bahrampour, 356

F . 3d at 976 (upholding as constitutional an Oregon Department of

Corrections regulation that prohibited inmates from receiving

publications that contained images portraying actual or

simulated sexual acts or sexual contact, but that permitted nude

images); Jones v . Salt Lake County, 503 F . 3d 1147, 1155 - 56 (lOth

Cir. 2007) (upholding as constitutional a county jail 's ban on

"sexually explicit material" that included a ban on photographs

of exposed "breasts and genitals 11 but did not extend to

"sexually explicit prose or pictures of clothed women/menn) . As

to federal prison facilities, the Federal Bureau of Prisons

( "BOP11 ) applies a statue passed by Congress in 1996 known as the

"Ensign Amendment, 11 which precludes federal prisons from

distribut ing or making available to prisoners "any commercially

published i nformation or material that is sexually explicit or

features nudity." 28 U.S.C. § 530C(b) (6). "In response to the

Ensign Amendment, the BOP promulgated an implementing regulation

that narrows the scope of the statute by defining key statutory

12

terms," and interprets t he Ensign Amendment as applying only to pictorial representations. 2 Jordan v . Sosa, 654 F . 3d 1012 , 1016-

17 (lO t h Cir. 20 11) (citing 28 C . F.R. § 540.72).

Such

regulation defines "nudity" as "a pictorial depiction where

genitalia or female breasts are exposed," and defines "sexually

explicitu as "a pictorial depiction of actual or simulated

sexual acts including sexual intercourse , oral sex, or

mas t urbation ."

28 C. F . R. § 540 . 72(b).

Additionally, the

regulation defines "features," as used in the Ensign Amendment,

to mean that the "publication contains depictions of nudity or

sexuall y explicit conduct on a routine or regular basis or

promotes itself based upon such depictions in the case of

individual one-time issues," and includes an exception for

"[p)ublications containing nudity illustrative of medical,

educational, or anthropological content." Id . ; see Amatel v.

Reno, 156 F.3d 192, 202 (D .C. Cir . 1998) (finding "that the

[Ensign Amendment) and regulation satisfy [Turner v . ) Safley's

demand for reasonableness, scoring adequately on all four

factorsu) . The currently in force BOP "Program Statement"

governing "Incoming Publications" further discusses BOP

requirements, noting that a warden must consider each

2 Although the implementing regulation limits the Ensign Amendment to pictures that are sexually explicit or contain nudity, a separate BOP regulation can be invoked to exclude a sexually explicit writing that "by its nature or content poses a threat to the security, good order, or discipline of the institution, or facilitates criminal activity . " 28 C. F .R. § S40 . 71 (b) (7); see Jordan, 654 F.3d at 1017 .
13

publication on an issue-by- issue basis before it is rejected,

and provides examples of publ i cations that are general l y

allowed, such as : (1) National Geographic, even if it contains

nudity; and ( 2) "Sports Illustrated swimsuit issues" and

" Lingerie catalog s ," unless they contain nudity. BOP Program

Statement

5266 . 11,

Nov .

9,

2011,

availabl e

at

http://www.bop.gov/policy/progstat/52 66_011.pdf. 3

Although not applicable t o the VBCC, the Virginia

Department of Corrections ( "Virginia DOC") appears to apply a

more lenient standard than the federa l BOP, as it does not

expressly prohibit "nudity," but instead excludes publications

that "emphasize[] explicit or graphic depictions or descriptions

of sexual acts . "

Virginia DOC Operating Procedure 803 . 2:

Incoming Publi cat i ons § IV . G, effective Jan . 1, 2015, available

at

https : //vadoc . v irginia . gov/about/procedures/documents/800/

8 03-2 . pdf . 4 The Virginia DOC rule is followed by a "Note" that

3 The federal BOP program statement was not expressly r elied on by the parties to this case . However, it was cited within prior federal op inions on this issue , and wa s considered by this Court in the context of fully understanding the reasoning of such prior opini ons .
4 The Court notes that , on March 17 , 2015 , the Governor of Virginia s igne d HB 19 58 which relates to the powers and duties o f the "Board of Directors" o f the Virginia DOC as well as the "Director" of the DOC . Such newly enacted law provides that the DOC Board of Directors and the DOC Direc tor have the power a nd duty to adopt , promulgate, and enforce "regulations prohibiting the possession of obscene materials, as defined and described in Article 5 (§ 18 . 2-372 et . seq . ) of Chapter 8 of Ti tle 18 . 2 , by prisoners incarcerated in state correctional facil i ties." Va. Acts of Assembly-2015 Session, Chapter 293, H 1958 (approved March 17, 2015) , available at https : I /lis .virginia .govI cgi-
14

clarifies : "This criterion shall not be used to exclude

publications that describe sexual acts in the context of a story

or moral teaching unless the description of such acts is the

primary purpose of the publication . No publicat i on generally

recognized as having artistic or literary value should be

excluded under this criterion .

II Id.; cf . Couch v . Jabe,

73 7 F . Supp . 2d 561 1 567 (W.D . va. 2010) (rejecting as

unconstitutional under Turner a prior version of Virginia

Operating Procedure 803 . 2 as it excluded all publications that

included any "descriptions of sexual acts," explaining that "it

is unlikely that a cogent argument could be advanced which would

explain how a regul a tion which forbids James Joyce 's Ulysses ,

but permits Hugh Hefner ' s Playboy, has a rational re l at i onship"

to maintaining the "security, discipline, and good order in the

facility").

The Court has considered the parties' briefs and an array

of federal ca ses a ppl ying the Turner test to the various

approaches taken by federal, state, and local pri son and jail

bin/legp604 . exe?151 +ful+CHAP02 93+pdf. As the contemplated regulations have not yet been adopted , it is impossible to predict the future Virginia DOC standard for regulati ng incom ing publications that contain material that is sexual in nature. That said, the newly enacted law ' s cross-reference to § 18 . 2-372, which defines obscenity, arguably suggests that any such regulation will not ban images that display non- sex act nudity, as the Virginia Supreme Court has longrecognized that t.he Virginia statute defining obscenity "limits the class of works which might be found obscene to portrayals of sexual activi ty or excretion , not including mere nudity , which go beyond the customary limits of candor in representing such matters . " Price v. Commonwealth, 214 Va. 490 , 493 (1974) (emphasis added) .
15

facilities to regulate sexually explicit ma t erials and/or nude

images (to include broad definitions of "nudityn).

After

carefully considering the case- specific facts in the record as

presented to this Court , the Court finds that , even taking the

evidence in a light most favorable to Defendants, as is required

when analyzing PLN' s summary judgment motion, the challenged

former policy lacks a rat ional connection to a valid penological

goal because it was so broad as written, and as applied to PLN,

that it allowed for the exclusion of publications based on an

amorphous sta ndard untethered to valid prison concerns .

Although Defendants surely assert valid penological objectives

for banning sexually explicit images, the record demonstrates

that the fo rmer VBSO p o licy was so broad that it lacked a

"valid, rational connectionu to such objectives, and "a

regulation cannot be sustained where the logical connection

between the regulation a nd the asserted goal is so remote as to

render the policy arbitrary or irrational. n Turner, 482 U.S .

89 - 90 . Although a discussion of all four Turner factors follows

be low , the Co urt provides the most in depth discussion of the

first factor, as relevant case law and common sense both suggest

that "the first factor looms especially large," and that such

i nqu iry may in some circumstances "tend[ ] to encompa ss the

remaining factors.u Amatel, 156 F . 3d at 196; see Van den Bosch

v . Raemisch, 658 F. 3d 778, 785 n.6 (7th Cir. 2011) (noting that,

16

"though each of the factors is relevant in assessing the

reasonabl eness of a regulation

the first factor serves as

a threshold") (internal quotation marks and citations omitted) .

a. Rational Co nne c ti on

This Court begins its analysis under Turner by reiterating

that it affords substantial deference to administrators in the

exceedingly difficult arena of managing a jail or prison.

Lovelace, 472 F . 3d at 199 ; see United States v. Stotts, 925 F.2d

83, 86 (4th Cir . 1991) (explaining that a heightened scrutiny

standard would result in unworkable intertwinement of the courts

in difficult institutional judgments, and t herefore, the proper

approach for a reviewing court is "one of caution"). Moreover,

the Court reiterates that the burden is "not on [Defendants] to

prove the validity of prison regulations but on the [Plaintiff]

to disprove it. " Overton, 539 U. S . at 132 . That said, the

Court is mindful of the Supreme Court's "confidence" that the

Turner reasonableness standard, while not particularly onerous,

"is not toothless . " Thornburgh v. Abbott, 4 90 U. s . 4 01, 414

(1989) 0

The first step of the Turner analysis requires the Court to

consider whether, based on the record before it, there is a

"valid, rational connection" between the former VBSO sexually

explicit materials policy and a valid penological goal, or

whether the goal is "so remote as to render the policy arbitrary

17

or irrational .'' Turner, 482 U. S. at 89-90 . When applied to

pictures or text, the broad VBSO former policy allowed for

censorship based on the content being deemed "offensive" or

because it merely dealt with "scantily c lothed persons." Such

standard was not tied in any way to the context of the

photograph or writing, nor was ic written in a manner that tied

censorship to institutional security concerns . The first part

of the former standard appears on its face to allow for

viewpoint - based censorship of photos or writings as a

publication could be rejected merely because a jail official was

personally displeased wi t h t he content of "any writing or

picture" and thus deemed it "offe nsive." 5 Cf. Abbott, 490 U.S.

at 404-05, 419 (upholding the facial validity of the federal BOP

restriction prohibiting publications deemed "detrimental to the

security, good order, or discipline of the institution,"

expressly noting that such res trictions prohibit the rejection

of a publication "solely because its content

is unpopular

or repugnant" ) (emphasis added) . The second part of the VBSO

standard, broadly banning any "material dealing with or

5 There is no evidence in this case that such standard was actually applied in a manner intended to suppress any specific viewpoint, and the Court does not intimate in any way that Defendant s targeted any person, entity, or group . Moreover, the record indicates that such standard was not authored by the current Sheriff , but was instead adopted from the rule in place from the prior adminis tration . That said, the face of the policy does not withstand constitutional scrutiny.
18

displaying

scantily clothed persons," did not

different iate between a graphic photograph of a nude or near

nude model in an overtly sexual position and a picture of a

family in bathing suits at the beach , or a reproduction of a

centuries old oil painting depicting a non-nude, but "scantily

clothed," subj ect in a non-sexual context . Accordingly, the

forme r VB SO policy : (1) can be (and has been) applied at VBCC to

ban written text "dealing with," in non-graphic detail, a naked

or scantily clothed person; 6 and (2) can be (and apparently has

been) applied to ban any image of a person in a bathing suit

regardless of the context. 7 Cf . Couch, 737 F. Supp. 2d at 567 - 71

(indica t ing that the "expansive reach" of a Virginia DOC

prohibition on all expli cit descriptions of sexual acts, to

inc lude " [a]ny sexual acts in violation of state or federal

law ," is overbroad even under the undemanding Turner

reasonableness standard because it reaches a weal th of written

material, including literary works of art , that could not "have

any effect on the security, discipline , and good order of the

6 After the instant l awsuit was fil e d, certain advertisements in later issues of Prison Legal News that discussed photographs of nude models or near-nude models were identified as prohibited under the former VBSO sexually explicit ma terial s po l icy even though they contained no pictures . See ECF Nos. 43-2 , at 2 , 42 - 1, at 27.
7 The record indicates that magazines including any images of "scantily clad women" were not permitted t o e nter the VBCC under the former policy . See ECF No . 36-6 at 5 (indicating that issues of ESPN Magazin e a nd Sports Illustrated Maga zine were banned for having "scantily clad women," which included images "even in a bathing suit") .
19

prison"); Aiel lo v . Litscher, 104 F. Supp. 2d 1068 , 1079-82 (W.O. Wis. 2000) (denying the defendants' summary judgment motion, recognizing that although there is surely a rational connection between a prison ban on explicit pornography and advancing legitimate penological goals, the defendants had not demonstrated a valid rational connection between such goals and the broadly sweeping regulation at issue, specifically noting that the record "reveals no debate among scholars or experts on the effect on rehabilitation of great works of art and literature, [such as nude images from the Sistine Chapel] and common sense suggests none") (emphasis added).
As discussed in this Court ' s prior Opinion addressing Defendants' qualified immunity as to money damages on this issue , the Cou rt h as no reason to question Defendants' goodfaith efforts to seek to bar sexually explicit materials from VBCC . Howev er, t h e former VBSO policy, as appl ied to PLN, banned: (1) issues of Prison Legal News based on images of women in mini-skirt s or tight clothing ; and (2) issues of Prison Legal News based on text-only ads that included no photos of any kind . See ECF Nos . 41-2, 42-1 , 43-2, 48-18, 48-19 (demonstrati ng that certain issues of Prison Legal News were rejected by Defendants on the basis of the inclusion of "sexually suggesti ve ads" based
20

on images of women i n short skirts or tight fitting clothing) ; 8
ECF No s. 43 -2, at 2, 42 -1, at 27 (demonstrating that certain
issues of Prison Legal News were rejected by Defendants, in
part, for containing "sexually suggestive ads " when t he ads were
text-only and described catalogs/pictures of "gorgeous ladies"
and "beauties posing just for you," available for purchase in
eithe r "nude " or "BOP friendly" non-nude formats wi thout further
describing the actual images in any degree of detail .
This Court, in agreeme nt wit h PLN 's characterization of the
relevant federal law on this i ssue , is unaware of any other
federal court upholding the constitutionality of such a broad
restriction on "scantily clothed" individuals, to include those
i n a bath ing s u it , regardless of context. 9 Moreover, even with
It appears tha t one or two of the thumbnail i mage s in certain advertisements in issues of Pri son Legal News in l ate 2013 and early 2014 arguably could be described as not just short ski rts, but as " lingeri e . " See , e . g ., ECF No . 42-1, at 9 , 25 . However , such images measure only approximately ~ inch tall by ~ inch wide . The si ze and di f ficultly in making out what such images even depict f urther suggests t hat barring Prison Legal News on the basis of such thumbnail images was an "exaggerated response ." Cf . Smith v . Roy, No . 10 - 2193,
2012 WL 1004 985 , at * 10 (D . Minn . Jan. 2 5, 2012) (noting that only
publications that "feature " nudity were banned by t he relevant regulation , and that such determination "is based in part on the ratio of nude images to the total number o f pages of t he publication [and] the manner in which the nude images are displayed (including size) " ) .
9 One of the broadest restrictions on publications of which this Court i s aware that has been upheld as constitutional is a Kansas DOC administrative regulation that precludes inmates from possessing material if : (1) "the purpose of the material is sexual arousal or gratification"; and (2) t he material contains either display or simulation of sex acts or "[c]ontains nudity" which is defined as "the depiction or display of any state of undress in which the human genitals, pubic region, buttock, or female breast at a point below the
21

the substantial deference owed to prison authorities, multiple district court opinions support this Court's finding that

Defendants' former policy fail s to pass constitutional muster as it permitted censorship based on images o r writings involving

top of the aerola [sic] is less than completely and opaquely covered."

Kan. Admin . Regs. 44-12-313 . In Strope v . Collins, 492 F. Supp. 2d

1289 (D . Kan. 2007) the district court denied cross mot i ons for

summary judgment filed on an undeveloped r ecord , noting that "in the

absence of any meaningful argument from the parties under the f our

Turner factors, a genuine issue of material fact exist s precluding

summary judgment in favor o f either party about whether the r egulation

is reasonably related t o legi timate penological interests ." Id . at

12 96 . The Court further explained that d enial of the cross motions

was particularly appropria te because "there appears to be no precedent

upholding the constitutionality of a regulation that contains as broad

of a prohibition as the KDOC regulation in the manner in which it is

being applied in this case, " which involved "the censorship of entire

publica t ions because they contain what appears to be a few photographs

of women's partially bare buttocks ." Id . Later i n that same case,

the Court granted summa ry judgment in favor of the defendants after

the record was further developed and the Court received an affidavit

from the "Secretary" o f the Kansas Department of Corrections

specifically outlining the penological concerns associated with

"materials containing depictions of bare buttocks."

Strope v.

Collins / No . 06-3150-JWL , 2008 WL 2435560 , at *2-3 (D . Kan . June 12,

2008) . In reaching this conclusion, the dist.rict. court acknowl edged

t hat the material at issue in that case "included images of women

weari ng various types of underwear (thong- style, high cut , e tc . ) in

such a way as to reveal their partially bare buttocks" which "would

more accurately be chara c t eri zed as sexy , revealing images rather than

pure pornography, in the more t.radit.ional sense of that word" but

neverthe less concluded that , in line with the regulation, "the only

plausi ble purpose for the censored images is sexual pleasure . " I d . at

*6 ; see a lso Elfand v. County of Sonoma/ No. C-11-0863, 2013 WL

1007292 , a t *2 (N . D. Cal . Mar . 13, 2013) (banning images that have

"the purpose of arousing s e xual stimulation i n i ts intended audience"

if prison authorities have a "reasonable belief" that the banned

images would jeopardize "safety , security , rehabilitation or other
legit i mate Facility interests") ; Smith , 2 012 WL 1004 985 , a t *7 , * 10

(upholding the constitutionality of a correctional facility policy

banning publications that feature "nudity," to include woman in

swimsuits or lingerie that are "see - through" or otherwise display "a

substantial portion of the [female] breast below the nipple," but

noting as part of the Turner analysis that prisoners "can receive a

publicat ion t hat contains a nude photograph because publications are

only prohibited if they ' f eature' nudity, " and that "photographs that

show only c leavage or buttocks are not prohibited").

22

"scantily clothed" persons regardless of any sexual connotac.ion

and making no exception for materials widely accepted as having

educational and/or artistic value, and it permitted viewpoint

based censorship stemming from the censor's decision that an

image or writing was "offensive ." See Prison Legal News v.

County of Ventura, No. 14 -0773, 2014 WL 2736103 , at *9 n.6, *9-

10 (C . D. Cal. June 16, 2014) (indicating that not only did the

defendants concede that their past practice of barring all

"sexually suggestive" images was unconstitutional, but that the

district court subjected such prior practices to its own

analysis and conc luded that a preliminary injunction was

warranted to preclude the county jail from "refus[ing] to

deliver copies of publications from Plaintiff or other

publishers on account of sexually 'suggestive' content unless

the publication contains actual nudity or graphic depictions of

sexual acts"); Boyd v. Stalder, No. 03-1249-P, 2006 vlL 3813711,

at *6 (W . D. La. Dec. 27, 2006) (denying cross motions for

summary judgment as to a prison's then- abandoned policy of

banning "all publications that featured women in 'sexy poses'

even if they were fully clothed," noting t hat Defendants "devote

scant a ttention to this aspect of Pl aintiff's claims, and they

cite no authority that would authorize such a broad

. ban in

the general population of a prison") ; 10 Abbott, 490 U.S. at 404-

10 In Boyd, after a jury trial re s ul ted in a hung jury , the district
23

05 , 419 (upholding the facial validity of the federal BOP's

image restriction expressly tied to "security" and "good order"

of the prison, expressly noting that such res tric tions prohibit

the rejection of a publication "solely because its content

is unpopular or repugnant "); Aiel l o, 104 F . Supp . 2d at 1079-82

(denying the defendants' summary judgment motion in a case

involving a prison's broadly sweeping censorship policy, noting

that while there is "no doubt that defendants could craft and

implement a regulation" c e nsoring sexual ly explicit photographs,

the regulation in question "in effect sweeps so broadly as to

capture muc h pictorial and writ t en material for which there is

no

rational connection" to prison security or

rehabilitation) . Notably, here, Defendants have not arti cul ated

any basis for treating a picture of a woman or man in a bathing

suit, or a p icture of a woman in a mini - skirt , or great works of

art portraying a subject with minimal clothing, or a written

paragraph describing a "scantily clothed" individual , the same

court denied a renewed motion for summary judgment seeking qualified

immunity, explaining that the warden's testimony failed to establish a

"valid rational connection" between the ban on "all general population

inmates receiving .

publications with non-obscene matters such as

pictures of women in bikinis or miniskirts . " Boyd v . Stalder , No. 03-

1249 - P , 200 8 WL 2977363 , at *3 (W . D. La . Aug . 1 , 2008) . While thi s

Court specifically does not adopt the qualified immunity analysis set

forth therein, such opinion evidences the lack of authority upholding

as constitutional broad bans on publications because they contain

pictures of women in "short skir ts " or " tight pants . " Id . a t *5 .

24

as a publication f eaturing traditional "pornography . " 11 To the contrary, Defendants essentially rest t hei r penological just ificat ion for the former VBSO policy on t h e assertion that

11 There is an inherent difficul ty in a ttempting to portray the

contours and t enor of the images at issue in this case through words

alone . See F . C . C . v. CBS Corp., 132 S . Ct . 2677, 267 8 (20 12 )

(Robe rt s, C. J . , concurring in the denial of certiorar i) ( "As every

schoolchild knows, a pictu re is worth a thousand words

.") .

That said, borrowing f rom what is likely f amil iar te r minology to any

reader , the court characterizes the images included in the late 2013

and early 2014 issues of Prison Legal News as "thumbnail" images best

descri bed as con si s tent with a "PG" rating, whereas the chal l enged

policy (and limited explanation for such policy) appears to have

treated such ima ges no differently than a full page "R" rat ed image .

Two s uch advert isement s are reproduced below in a format that

approximates the size/format in which they appeared in multiple issues

of Prison

1 News.

ECF No . 42-1, at 9 , 25 .

W\TH pURCHASE

INMATES MUST SEKO $10

TO GET YOUR OWN UULTH'...OE

CATALOGI'MAGAZIHE TO ORDER

HUHDREDS Of LOVELY LADIES PHOTOS

m liiii!!Jii!i!~!l!jiJiil & OTHER SERVIC6 FOR "THE IIICAACERATED _...

.J 1 •••..:t •R");t_ l. ~

0_,.. L.l a--r.O ON O UM ..........-&.. e t ' T •

w

w~ w" . CpOhLuD toC_

RI
, _,_,

D.c
I n fo

orn
•lon

g

v--•" .....,.,..,.-.• .,.• ., ,,. .....,.,._.,. •30 .-or 1 ..-ua...L

•o 0 "

f•.....,.••• •:SO flO' .-.....,.,.. , L.l•• •f' wp
o r o wr roul••- ~•d

.S._.O ._..,_.,._,...... ,..,-••••

111:.\L
'lAMtS

~ ) - . -_ $17;~o- Unlimited Calls

l~llfhIOICHJi=d~~ F.~.~$~1~,5~O~~N~E~fni~M~Iv:~A~cFll~v<~~t~i~Cmn:FYutur

NOW INMATES CAN ORDER THEIROWN NUMBERS!
MAKE EVERY CALL HOME A LOCAL CALL
NO MORE RUNN 1NG OUT OF MINUTE S!
SEND $3 FOR PHONE PLAN APPLICATION FORM

OO HT OI!UY
ORDER THE NEW PEN PAL LIST OF 50 REAL ADDRESSES TO
LES WAITING TO CORRESPOND TO PRISONERS
RECENT PHOTOS INCLUDED!
SEND $49.95
L~-~4r-~\,~~"
ltvr<!tes post 'fJ.I ~<il ~ Pen Pel "ebslle
www.PrlsonOtflclal.com 2 year membership ·Send $30
2SOm ltn~l ~SA.SEb-rell.rnolyospll()ll)

r: :rc·::~
COL.DO'WUB PO BOX 882407
FR..A.NKLJ:N TN 370

Send Facility Checks/Money Orders To:

MUST AOOS2 SIH PRISON OFFICIAL

TOALLORDERS

P.O. BOX 1427

WARRENVILLE IL 60555

25

it should be "obvious" why any visual depiction of a scantily

clothed person must be banned.

However, in light of the

widespread existence of far more lenient policies in all federal

and Virginia DOC facilities located within the Commonwealth of

Virginia, which either allow nude or "near-nude" non- sex a ct

photos , the pen ologica l justification for the VBSO policy

prohibiting photos of i ndividuals "even in a bathing suit" is anything but obviou s . 12 See Wolf v. Ashcroft, 297 F . 3d 305, 308-

09 (3d Cir. 2002) ("Whether the requisite connection [between

the policy and the penological goal] may be f o und solely on the

basis of 'common sense' will depend o n the nature of the right,

the nature of the interest asserted, the nature of the

12 When the Sherriff was a s ked in his deposition why sexually explicit

materials were not allowed in the VBCC under the former policy, his

response revealed that, in his opinion, it was obvious that allowing

what he considered to be sexually explicit material s would be a bad

idea, and that it would increase rapes and fights, and "eve rything

sexually related." ECF No . 36 - 3, at 15. Ho we ve r , the Sheri ff ' s

testimony , whi c h appears to re l y p ri marily on common sense , offers no

targeted explana tion as to the claimed justification for banning a

wr itten publication based o n the inclusion of one or more

advertisements with images, regardless of their size or context, of

individuals in a bathing suit, tight shirt , or mini-skirt . In other

words, the connection between the vaso' s valid concern about s exually

explicit materials entering the facility, and ban on publications with

images (particularly thumbnail images) of persons in bathing suits,

tight clothing or mini-skirts, was not articulated by Defendants .

Moreover, no explanation was offered for the policy's broad ban on

photos or writings deemed "offensive."

Although the burden to

demonstrate t hat the challenged policy is unconstitut ional falls

squarely on PLN, Defendants must at least articulate their

justification for the broad policy in order for the Court to

effectively apply the Turner test and determine whe ther PLN has

carried its burden . Absent some articulation, the Court wi ll not

merel y assume t hat a s uffi cient connection exists to warrant such a

b road policy because "common sense" does not s uggest such a

connection.

26

prohibition, and the obviousness of its connection t o t he proffered intere st . The showing required wi ll vary depending on how close the court perceives the connection to be . ") ; Aiello, 104 F. Supp . 2d at 1080 (indicating that neither record evidence nor common s ense suggests that legitimate prison objectives are advanced by banning "great works of art a nd l iterature") ; see also Cox v . Denning, No. 12-2571-DJW, 2014 WL 4843951, at *17-18 (D. Kan . 2014) (granting, in part, t he plaintiff 's cross motion for summary judgment challenging a detention center's incoming mail policies, finding that the defendants had "fail[ed] to present a credible explanation" linking the policy to the stated goal of avoiding the introduction of contraband into the jail, further explaining that "[m)erely accepting Defendants' argument of a rational relationship without any evidence or a l ogical explanation of why the [challenged] policy advances a particular legitimate penological interest would render the standard toothless, which the Supreme Court has cautioned against . " (citing Abbott , 490 U.S . at 414) (emphasis added)) .
For all the reasons discussed above, the Court finds that the firs t Turner factor strongly favors PLN as to both its "facial" challenge and "as applied" challenge to the former VBSO sexually explicit materials policy, as: (1) Defendants have failed to articulate a rational connection between the broad former policy and a valid penological goal; and (2) there is no
27

obvious rational connection between the broad former policy and
valid penological goals such as institutional safety and
security. b. Alternative Means
The second Turner factor requires the Court to consider whe t her there are alternative methods for PLN, and VBCC inmates, to exercise their First Amendment rights . Lovel ace, 472 F .3d at 200. The constitutional right at issue in this case, defined expansively, 13 appears to include PLN's ability as a publisher to communicate with inmates at VBCC, and the inmates' intertwined right to receive written materials from PLN and other publishers. As discussed below, this factor can be argued to favor either PLN or Defendants, but appears to slightly favor
Defendants. In PLN ' s favor, the fo rmer VBCC policy was so broad as
written that it would appear to prohibit every magazine with a
single advertisement for Hanes underwear, or other advertisement that included a woman, man, or child in less than full clothing
(such as a beach scene), which in an era where some form of "sex symbol" i s used to advertise an ever growing number of products,
13 The Supreme Court has cautioned against a narrow interpretation of "the right11 in question, finding that it must be "viewed sensibly and expans ively." Abbott, 490 U . S. at 417. Accordingly, prison mail restrictions that limit certain publications from entering the prison, yet still "permit a broad range of publications to be sent, received, and read" favor the consti tut ionali ty of the challenged restriction . Id . at 418 .
28

such rul e , if f a ithfully applied as written, would appear to

cover a substantial percentage of magazines. See Ginzburg v.

United States, 383 u . s. 463, 482 (1966) (Douglas, J. I

dissenting) (recognizing nearly fifty years ago that using "sex

symbols to sell" is an "advertising technique as old as

history," and that "[t) he advertisements of our best magazines

are chock- full o f t h igh s , ankles, calves , (and) boso ms .

to

draw the potential buyer's at tent ion to lotions, tires, food,

liquor, clothing, autos, and even insurance policies")

In

contrast , in De f endants' favor, even while such policies were in

place , the record suggests that the VBSO permitted "a broad

range of publications to be sent , received, and read" at VBCC .

Abbott , 490 U.S. at 418. This element therefore appears to

slightly favor Defendants .

c. Impact of the Desired Accommodation

The third Turner factor requires the Court to consider the

likely impact on VBSO staff, inmates, and prison resou rces if

the challenged regulation is struck down . Lovelace, 472 F . 3d at

200 . Here, in light of the Sheriff 's voluntary decision to

update and improve the VBSO sexually explicit materials policy

in advance of a Court ruling on this issue clearly demonstrates

that th i s factor favors PLN . The new policy stil l permits the

restriction of pornography and other materials that truly

qualify as "sexually explicit," but it is far more targeted and

29

includes exceptions for "patently medical, artistic, anthropological or educational commercial publications ." ECF No . 76-2, at 21. Plainly , Defendants do not view the ne w policy, which was adopted without compulsion , to constitute too great of a drain on jail resources or too great of a risk to institutional security . Moreover, "the desired accommodation" sought by PLN i s not to f orce a new policy on Def endants, but to preclude them from returning to the prior overb road policy. As there is no evidence suggesting that precluding Defendants from returning t o an abandoned policy would have any negative i mpact on jail resources, the third element of the Turner test strongly favors PLN .
d . Obv i o u s Al t e r n a t i v es The fou r th Turner factor requ ires the Court to consider whether there are any "'obvious, easy alternatives' t o the challenged regulation or action , which may suggest that it is ' not reasonable, but i s [instead] an exaggerated response to prison concerns. ' " Lovelace, 472 F.3d at 200 (quoting Turner, 482 U.S at 90) (alteration in original) . Stated differently, the Court considers whether an alternative r e gulation, or no regulation at all, "would fully accommodate the [Plaintiff Is] First Amendme nt rights at a de minim[i)s cost to legitimate penological interests ." Woods v. Commissioner of the Ind . Dept. of Corrections , 652 F. 3d 745, 750 (7th Cir. 2011). For the same
30

reasons discussed immediately above in anal yz i ng the third

factor, Defendants' voluntary adoption of a new demonstrates that this factor strongly favors PLN . 14

policy

For all the reasons analyzed herein, most notably, three of

the four Turner factors (including the first) strongly favoring

PLN, the Court GRANTS PLN's motion for summary judgment as to

the VBSO ' s former policy on sexually explicit materials and

DENIES Defendants ' cross motion for summa ry j udgmen t. However,

having previously determined t h at Def e n d ant s are ent itled to

qualif i ed immunity on such issue , the only r el i e f available to

PLN comes in t h e form of a declarat i on t h at the f o rmer pol icy ' s

overbreadth r u ns afoul of the Constitution, as well as an

injunction precluding Defendants from reinstating such former

policy . 15

The Court finds that an injunction precluding

H As stated on the March 17, 2015 conference call in this case, the Court commends the Sheriff for voluntarily changing the VBSO sexua lly explicit materials policy and adopting a new policy that appears t o fall in the heartland of jail/ prison policies that have been upheld by federa l courts in the face of constitutional challenges . Such action speaks volumes to the Sheriff's desire to manage important penological concerns but at the same time respect the guarantees of the United States Constitution . Although the Sheriff's decision to adopt such modified policy impacts the Turner analysis, it should be noted that even if such action had not been taken, the apparently widespread existence of policies at jails and prisons across the Commonwealth and the country that are far less broad than the VBSO ' s former policy supports a finding that "obvious alternatives" existed to the former policy .
15 Although not briefed by the parties , the we l l-established standard for injunctive relief requires that a plaintiff demonstrate :
(1) that it has suffered an irreparable injury i (2) that remedies available at law , such as monetary damages, are inadequate to compensate for that injury i ( 3) that,
31

Defendants from returning to a specific prior policy that is no
longer i n forc e and has been found to be unconstitutional
comports with the requirement set forth in 18 U. S . C. § 3626 (a)
that prospective relief associated with prison conditions be
"narrowly drawn, extends no further than necessary to correct
the violation of the Federal right, and is the least intrusive
means necessary to correct the violation of the Federal right."
3. Forme r VBSO Public at ion Review Policies
Currently pending before the Court is PLN ' s recently-filed
motion for summary judgment on the former VBSO publication
review policy . This Court previously denied Defendants' summary
judgment mo t ion on this same issue , explaining as follows :
In Montcal m Publ' g , the Fourth Circuit expressly held that a magazine publisher "has a constitutional interest in communicating with its inmate-subscribers" and is t herefore entitled to some degree of process when a publication is censored. Montcalm Publ' g, 80 F.3d at 109; see also Jackl ovich v. Simmons, 392 F . 3d 420 , 433 (lOth Cir. 2004) (agreeing with the holding in Montcalm Publ'g) . Although the Fourth Circuit did not expressl y define the precise con tours of the process necessary to satisfy the Constitution, it
considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted ; and (4) that the public interest would not be disserved by a permanent injunction . Le gend Night Club v . Miller, 637 F.3d 291, 297 (4th Cir . 2011) (quoting eBay Inc. v. MercExchange , L .L.C., 547 U . S . 388 , 391 (2006)) . The Court has cons idered all of such factors and finds that PLN has carried its burden to demonstrate that injunctive relief is appropriate in this case, as is demonstrated in part by the fact that the "'loss of Fi rst Amendment freedoms, for even mini mal periods of time , unquestionably constitutes irreparable injury.'" Id . at 302 (quoting Elrod v. Burns, 427 u.s. 347, 373 (1976) (plurality opinion}) .
32

"h[e]ld that publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate subscribers," and appeared to discuss with favor a procedure that would provide publishers a written rejection notice and an opportunity to respond in writing. Id . at 106, 109.
Here, it appears undisputed that Defendants first notified PLN of a rejection of an issue of Prison Legal News in April of 2012, and did not thereafter notify PLN of subsequent rejections of any PLN publications until late 2013, after the instant lawsuit was filed. Moreover, the record demonstrates that during a period of time in late 2013 when PLN was receiving notice from Defendants of censorship decisions and seeking a review of such decisions, the "review procedure" merely involved a VBSO employee reviewing whether the rejection form was properly filled out; it did not involve a review of the rejected publication to determine whether it actually violated VBSO rules. ECF No. 52-2, at 2 - 5; see Jordan v. Sosa, 577 F. Supp . 2d 1162, 1172-73 (D. Colo. 2008) (concluding that a BOP program statement was unconstitutional "to the extent it permits the institution to return the [rejected] publication to the publisher prior to completion of the administrative review") (emphasis added)
During the time period relevant to this case, the VBSO has twice amended its policy associated with providing notice and an opportunity to be heard, the first amendment appearing to ensure that "notice" is properly provided, and the second appearing to ensure that a publisher be given the opportunity to be heard as part of a meaningful review procedure.
Accordingly, because the current record, when viewed in PLN' s favor, could plainly support a finding that Defendants failed to provide PLN with constitutionally adequate notice, a constitutionally adequate opportun ity to be heard, or both, Defendants• summary judgment motion is DENIED as to this issue.
ECF No. 65, at 29-32 (footnote omitted).
33

Subsequent to this Court's decision denying Defendants'
motion for summary judgment on this issue, the Court granted
PLN's motion for leave to file a second motion seeking partial
summary judgment, and allowing PLN to assert, for the first
time, that PLN is entitled to judgment as a matter of law on
this issue. See ECF No. 74 (granting ECF No . 72) . Having fully
considered the parties ' briefs on PLN's second motion for
summary judgment, the Court finds that PLN has demonstrated that
the prior VBSO policies infringed on PLN's due process rights as
to both "noticeu and an "opportunity to be heard.u
As to "notice,u it is undisputed that Defendants first sent
PLN a "Mail Restriction Formu rejecting a single copy of a
single issue of Prison Legal News in April of 2012. ECF No . 81-
1. Defendants do not dispute the fact that they did not
thereafter send another notice of rejection to PLN until October
of 2013, although all the monthly issues of Prison Lega l News
were being censored during this time. 16 The April 19, 2012 form,
16 The Sheriff admits, without providing dates, that one of his mailroom employees, at least for a time, was failing to foll ow VBSO policy as he was de livering copies of Prison Legal News to inmates. Stolle Aff . , 8, ECF No . 48-3 . l\s suggested in this Court's prior Opinion, if such deliveries were occurring between April 2012 and October of 2013, such fact undercuts Defendants' assertion that PLN was "on not iceu that its magazine was being consistently censored . However, even assuming that no "outside o f policyu deliveries were made between April 2012 and October of 2013, it is undisputed that Defendants' individualized censorship decisions during this time period were not communicated by Defendants to PLN , as the Sheriff acknowledges that, rather than returning a "sei zedu mail i tern to the sender with a notice of rej ection, on some occasions prior to the
34

which contains some handwriting that is difficult to read, indicates tha t a single copy of an issue of Prison Legal News17
was rejected by the VBSO for containing "ordering forms with prices" and "sexually explicit materials," and that the
publication was "Returned to Sender . " Id . Such form indicates
on the bottom that the sender of the rejected mail can
"challenge the seizure of the mailed contraband" and provides a
phone number of the "Property Division" which can be called by
the sender to challenge the seizure. Id. The "Reason/Comments"
section of such form was left entirely blank, and the form does
not otherwise identify the objectionable material, such as by providing a description or page number . Id.
Although Defendants assert that summary judgment in PLN' s
favor is not appropriate because there are disputed facts as to
whether constitutionally adequate "notice" was provided to PLN between May of 2012 (immediately after the April 2012 rejection
notice) and October of 2013 (when Defendants began sending rejection notices to PLN each month), Defendants present no
filing of this lawsuit, "the pink copy of the Mail Restri ction Form, designated to the sender, was placed with the seized item in the inmate's property box awaiting return to the inmate upon release, rather than being sent to the sender." Id. ~ 21. The failure to notify PLN upon non - delivery is further documented in an email r eceived by PLN from Defendants in August of 2012, which is discussed in greater detail below . ECF No. 81 -2 . 17 Although unclear from the face of the difficult to read form, it is undisputed that the Apri l 2012 "Mail Restriction Form" rejected an issue of Prison Legal News. ECF Nos . 81 , 81-1 .
35

evidence indicating that they notified PLN in May, June, or July of 2012 that the VBSO was continuing to censor issues of Prison Legal News. To the contrary, the evidence be f ore the Court indicates that on August 17, 2012 , one of the Defendants named in this case informed PLN via email that the practice being followed by the VBSO was to seize issues of Prison Legal News and keep them in the inmates' "property box" for an indeterminate amount of time until that inmate was released from VBCC. ECF No . 81- 2 . In light of the fact that it is undisputed that Defendants were not sending "Mail Restriction Forms" to PLN during this time period, the email corroborates the fact that Defendants were taking no steps between May and August of 2012 to notify PLN either of Defendants' decision to deny delivery to inmate subscribers, but retain in VBCC, the May 2012, June 2012, and July 2012 issues of Prison Legal News or the basis for Defendants' individualized decisions to censor such issues. Additionally, because the April 2012 "Mail Restriction Form" did not include any page numbers or other descriptions that specifically identified the allegedly offending material in the banned issue, such form did not provide PLN adequate notice that future issues of its monthly publication would also be barred from the VBCC.
Viewing the facts in Defendants' favor for the purposes of resolving PLN' s summary judgment motion, it appears that
36

communicat ions between Defendants and PLN in mid - August of 2012

retroact i v e ly p u t PLN on notice that monthly i ssues of Prison

Legal News had bee n barred from VBCC the las t severa l months .

However , even assuming, without d eciding , t ha t t he August

commun ications were sufficient to put PLN on n o tice tha t the

VBSO wou l d continue to b an future iss u e s of Pri s on L ega l News if

they contained s imilar content, there is still no evidence that

PLN was a t t h a t t ime informed of its r ight to participate in a

review o f t he pas t censorship decis i o ns.

Therefore, even

v i ewin g the facts in Defendants' favo r , PLN has demonstrated

tha t De f e ndants , at leas t for a short time , fa i l ed to sa t isfy

t h e requirements o f Montcalm Pu b l'g by providing PLN, a

p ub lishe r, adequa t e notice that its monthl y maga z ine was being

banned d ur ing t h e summer of 2012 and a deq ua t e notice of how PLN

could challe nge s uch censorship . As noted i n t h i s Court's prior order, the fac t that PLN may have sus pected, 18 or may have

18 PLN admits t hat " starting in approximately Ap ril 2012 " it began receivi ng s ome items ma iled to VBCC inmates " r et urned to it through the Un i t e d States Pos t a l Servi ce ' s ' Return to Sender' p rocess ." ECF No . 38 ~ 15 . Even a ssuming that one or more of t he May , J une , or July 2012 issues we re returned to PLN through such posta l process , it is undisputed t ha t Defendants were holding other copies of PLN ' s magazine in inmate ' s property boxes during that time period without giving notice to PLN that such magazines were not being delivered . ECF No . 81-2; see ECF No . 48-14 . Accordingly, buttressed by the fact that VBCC is a city jail with a transitory popu l ation, an item marked "Return to Sender" received subsequent: to a single notice that Defendants censored a single copy of a single edition of Prison Legal News is insufficient to put PLN on notice ei t her that Defendants made a jail-wide decis ion to stop delivering all issues of Prison Legal News or to inform PLN how it could challenge such decision . On this
37

actually been aware , that such issues were being rejected based
o n communications from inmates to PLN appears largely irrelevant
because "while [an] inmate is free to not ify the publisher [of
censorship] and ask for help in challenging the prison
authorities' decision, the publisher's First Amendment right
must not depend on that ." 19 Montcalm Publ'g, 80 F .3d at 109.
point, the instant facts are readily distinguishable from the facts of Van Den Bosch v . Raemisch, No . 09cv62-bbc, 2009 WL 4663134, at *3 (W . D. Wis . Dec . 1, 2009), cited by Defendants , as in that case, no due process violat ion was found when the publisher received from the defendants 35 notices of non- delivery out of the approximately 250 copies of a s ingl e edition of a newsletter that was sent to prisoners in Wisconsin state prisons . Not only did Van Den Bosch involve more than thirty notices of t:he rejection of the exact same publication, but "[m) any of the notices stated explicitly that the decision was a 'DOC WIDE DENIAL ."' Id . at *4. In contras t, here, PLN sen t different monthly issues to VBCC inmates between April and Augus t of 2012 and received from t he VBSO only a singl e rejection notice with respect to a singl e copy of a single issue , such notice failing to indicate that other identical copies of the same issue had been censored, and failing to indicate that future issues would also be censored .
19 It appears that, at various times in April of 2012 and thereafter, some VBCC inmates not only wrote letters to PLN about rejected PLN mail , but attached copies of the "Mail Restriction Form" the VBSO provided to that inmate . ECF No. 48-14 . As noted a bove, cont rolling pre cedent indicates that such secondary communications from inmates cannot satisfy Defendants' duty to notify a publisher of a censorship decision . Moreover, the copies of the notices before the Court do not clearly indicate what t:ype of publication was rejected, and even assuming that those rejection forms that reference "sexually explicit materials" refer to issues of Prison Legal News, such forms do not indicate which monthly issue was rejected. Id. Although VBCC inmates suppli ed PLN with copies of VBSO rejection forms c lear ly dated in April and May of 2012 that reference "sexually explicit materials," the two forms legibly dated in June of 2012 do not reference a rej ection based on sexually explicit materials, and thus, may refer to PLN publications other than Prison Legal News . Id . Moreover, there are no forms legibly dated July or August of 2012. Accordingly, the secondary presentation of such forms by inmates does not alter the conclusions reached by t he Court herein .
38

To better illustrate the above finding, the Court turns to

a case relied on by Defendants for the proposition that "notice"

is not required each and every time a censorship decision is

made by jail authorities. Prison Legal News v . Livingston/ 683

F.3d 201, 224-25 (5th Cir . 2012) . In Livingston, the Fifth

Circuit concluded that when a prior decision to exclude a static

publication has been finalized (a book was at issue in that

case, not a monthly magazine), a prison has no obligation to

provide a second "review" process of the identical publication,

and thus, the sender has neither a right to notice or a right to

be heard on future censorship decisions as to that exact same

publication . I d. In rejecting the plaintiff ' s argument that it

was at least entitled to "notice" of a subsequent censorship

decision of the static publication even absent the right to a

subsequent review process, the Fifth Circuit explained as

follows :

Due process perta ins to the right to participate in

government decision making. The "notice" required by

due process is notice of when, where, and how one can

be heard before a decision becomes final . See

Londoner v . Denver, 210 U . S . 373 1 385 (1908) ("[D]ue

process of law requires that

[a party] shall

have an opportunity to be heard, of which he must have

notice .

. ") . The right to receive notice exists

only to effectuate the right to be heard, and

therefore is inapplicable where a party has no right

to participate in the decision-making process .

Id . at 224 (emphasis added) .

39

The facts of the ins tant case are clearly distinguishable
from Livingston because this case involves censorship of
discrete issues of a monthly non-static publication , and Defendan ts have failed to cite any case suggesting that PLN was not entitled to notice and a right to be heard as to each
denial. Moreover , there i s no evidence in the instant record
suggesting that Defendants ever provided PLN with notice of "when , where, and how" they could be heard as to the
indi vidualized decisions rejecting PLN' s May 2012, June 2012,
and July 2012 monthly magazines before such censorship decisions became final . 20 Id . Accordingly , the Court finds that disputed fac ts need not be resolved in order to determine that, at least
for a short time , Defendants fa iled t o provide adequate notice
to PLN that its monthly magazine was being censo red . As to an "opportunity to be heard," there is no e vidence
before the Court suggesting that PLN was ever provided a n
opportunity to challenge the censorship of its May 2012, June
2012, or July 2012, issues of Prison Legal News . Cf . Prison Lega l News v . Cheshire , No. 1 :04cv173, 2 006 WL 1868307, at *10
(D . Utah June 30, 2006) (finding t hat even though a let ter sent
20 It appears to be unclear from the record whether the "Mail Restriction Form" dated April 19 , 2012 was associated with the April 2012 issue or May 20 12 issue of Prison Legal News. However, even assum ing that the referenced issue was t he May 2012 issue , there is no evidence that Defendants informed PLN that the June and July issues had been rejected prior to the August discussion, which may have retroactively made such announcement, but did not provide any suggestion that such prior decisions were still subject to appeal .
40

from the defendant s to PLN in January of 2005 was arguably "not

sent contemporaneously" with the jail's prior rejection of the

October, November, and December 2004 issues of Prison Legal

News, such letter "provided [PLN] with an opportunity to appeal

the prior rejections" and thus, PLN "received all the process it

was required to receive in this context") Accordingly, as to

those months, PLN has demonstrated both inadequate notice and

the associated failure to provide an opportunity to be heard.

t-Yoreover, even if the evidence demonstrated that PLN did

receive a dequate notice and an adequate opportunity to be heard

(whic h it never invoked) as to the Ma y 2012 through August 2012

timeframe, the r ecord clearly demonstrates that in late 2013,

Defendants provided a deficient review process that wholly

undercut any meaningfulness of the review of a prior censorship

decision, effectively denying PLN th e right to be heard.

Specifically, in October of 2013, after PLN filed suit,

Defendants began providing PLN with notice each month indicating

that the monthly issue of Prison Legal News had been barred from

the VBCC . PLN then began utilizing the review procedure set

forth on the notice form, and each time PLN was heard on a

censorship decision , the decision to prohibit t he challenged

issue was upheld . However, it is undisputed that, at least for

a period of time, the VBSO was no t reta i ning a copy of the

censored Prison Legal News publication .

Accordingly, the

41

undisputed facts demonstrate that the VBSO "review" procedure

was not a review to see if the censored content actually

violated VBSO policies, but was instead merely a review to make

sure that the VBSO "l...Yail Restriction Form" was properly filled

out. Stated differently, the entire review process consisted of

a second set of eyes reviewing a copy of the "Mail Restriction

Form" to see if the person who had completed such form claimed

that there was a basis for censorship . It is readily apparent

that such review procedure deprived PLN of a meaningful

opportunity to be heard. See Jordan, 577 F . Supp. 2d at 1172-73

(awarding declaratory and injunctive relief in the plaintiff's

favor based on the finding that the disputed BOP "Program

Statement" was unconstitutional "to the extent it permits the

institution to return the publication rejected [for containing

nudity]

to the publisher prior to completion of the

administrative review") (emphasis added) .

Similar to the VBSO' s sexually explicit materials policy,

the apparent infirmities with the VBSO publication review policy

that came to light during the pendency of this case were swiftly

rectified by the Sheriff, and he should be commended for his

actions of twice amending the VBSO notice and review procedure.

The first modification appears to have been aimed at ensuring

that VBSO employees were consistently providing notice to

publishers of rejected publications, and the second modification

42

appears to have been aimed at ensuring that censored materials
are retained for a sufficient period of time to permit a
meaningful review process. 21 That said, the question currently
before this Court is whether the Defendants ' prior policies and
practices violated the Constitution, and based on the
controlling standard articulated by the Fou rth Circuit holding
that publishers are entitled to both "notice and an opportunity
to be heard when their publications are disapproved for receipt
by inmate subscribers," Montcalm Publ' g, 80 F. 3d at 106, and as
illustrated best by the well-reasoned and squarely on-point
opinion from the Colorado District Court in Jordan, 577 F . Supp.
2d at 1172-73 , this Court finds that PLN has demonstrated that a
due process violation occurred when PLN was denied a meaningful
opportunity to be heard for a period of several months beginning
in October of 2013.
21 According to the Sheriff's affidavit, the first amendment occurred in September of 2013 and involved the revision of an internal directive to ensure that the "pink copy of the [VBSO] Mail ~estriction Form would be sent to the sender " of the censored publication . ECF No. 48-3 ~ 22 . Subsequently , in April of 2014 , a "VBSO Policy and Procedure General Order" was modified in order to clarify that "seized mail items are to be retained for 30 days to allow for their review in the event of a challenge to the seizure . 11 Id . ~ 25; see id. ~ 24 (setting forth the language of the current policy which provides : (1) notice to both the sender and the inmate; (2) the reason for the seizure will be offered; (3) a 30 day appeal period will follow during which both "(t] he inmate and sender are allowed the opportunity to challenge the seizure"; (4) the review of a seizure will be provided by an individual that did not make the initial decision and who has authority to overturn such decision ; and (5) that after the review period, the seized item will be stored, returned to sender, or destroyed) .
43

Although the Sheriff has long-since implemented a corrected policy that on its face pro vides adequate notice and an opportunity to be heard, the declaratory and injunctive relief requested by PLN on this issue remains a live controversy in light of Defendants' failure to acknowledge that either version of their prior policy/ practices was unconstitutional, or even constitutionally suspect. See Wall, 741 F . 3d at 497 (noting that the "heavy burden" of demonstrating that "the challenged conduct cannot reasonably be expected to start up again lies with the party asserting mootness," and that "when a defendant retains the authority and capacity to repeat an alleged harm, a plaintiff's claims should not be dismissed as moot") (internal citations omitted) . Because the Sheriff retains the ability to change the VBSO policy on this issue at any time , and he has not submitted an affidavit recognizing any impediment to returning to either of the former policies/ practices, the Court hereby GRANTS PLN's second motion for summary judgment. In so ruling, the Court grants PLN' s request for a judgment declaring that PLN 's due process r igh ts were violated during a period of months in the middle of 2012, and v i olated in a different way for a period of months beginning in October of 2013 . The Court likewise grants PLN's request for injunctive relief, and the Sheriff is hereby ENJOINED from returning to the prior policies/practices that failed to provide publishers adequate
44

notice or an opportunity to be heard "when the i r publ ica tions

[were] disapproved for receipt by inmate subscribers . " Montcalm

Publ' g, 80 F.3d at 106 . 22

In compliance with 18 U. S . C.

§ 3626(a), requiring that prospective relief ordered i n any

civil action associated with prison conditions be "the least

intrusive me ans necessary to correct the violation of the

Federal right, " this Court dec l ines to issue an inj u n ction

including language similar to that requested in the Amended

Complaint as doing so appears more intrusive than necessary

becau se i t would improperly interfer e with the Sh eriff ' s a bil ity to maintain appropriate pol icies and procedures at VBCC . 23

IV. Mone t a ry Dama ge s

A. Initial Summary Judgment Motion

Monetary damages are not available to PLN as to the

sexually explicit materials policy based on this Court's prior

rul ing t h at De fendants were qualifiedly immu ne f o r money damages

22 As in the previ ous section of this Opinion analy zing the former VBSO sexua lly explicit materials policy, the Court finds that PLN has carried its burden to demonstrate that an injunction is proper under the four-part test articulated by the Supreme Court in eBay, 547 U.S. at 391 .
23 The Amended Complaint requests an injunction requiring that rejection notices specifically identify both the page numbers of objectionable material as well as the penological just ification claimed to be threatened by such material. ECF No . 17. PLN , however, failed to demonstrate that when it did receive notice of censorship decisions from Defendants , such notice lacked sufficient particularity to allow for a meaningful right to be heard as to that specific rejection decision. Absent such showing , a broader injunction is not appropriate. Moreover, it is notable that Defendants at some point began specifically identifying the objectionable material, clearly a better practice regardless of whether it is constitutionally required .
45

on this issue . ECF No . 65, at 33-42. Accordingly, there are no outstanding issu es as to damages with resp ect to s uc h mo t i on.
B. PLN's Second Summary Judgment Motion As t o PLN' s due p rocess claim , PLN asser t s that it is entitled to "nominal damages" and "punitive damages" in the event that summary judgment is granted in PLN's f a vor as to its second motion for part i al summary judgment . ECF No . 83, at 3 n.l. It appears from Defendants' post conference call informal status u pdate to t he Cou rt that Defendants ' pos ition is t ha t PLN is entitled to no more than one dollar in nominal damages, and i s not entitled to punitive damages based on the absence of evidentiary support . As the pa rties have requested the opportunity to reach agreement on damages in the event that summary judgment was granted in favor of PLN on its due process claim, the parties are hereby affor ded fourt een ( 1 4) a ddi tiona l days to confer on this issue . If the parties have not reached an agreement by the end of t he fourteen (14) day period , they shall , separat ely or collectively, fi l e a "Status Update" on the record.
v. Conclus ion
For the reasons set forth in detail above, PLN' s original motion for summary judgment is GRANT ED as to the reserved issue regarding the constitutionality of Defendants ' former policy on sexually explicit materials. ECF No. 35 . Such former policy is
46

declared unconstitutional as it is overbroad pursuant to the Turner analysis discussed in detail herein . The Sheri ff and other name d Defendants are hereby permanently ENJOINED from reverting to such policy . Defendants' cross motion for summary judgment on t his issue is DENIED. ECF No. 49 .
PLN's second motion for summary judgment is GRANTED, and it is hereby declared that Defendants' former publication review policies were unconstitutional as they failed to provide adequate notice and an opportunity to be heard as to decisions made by t he VBSO to censor a unique mont hly publication sent to inmate subscribers . ECF No . 77 . Such ruling is based both on the fi nding that PLN demonstrated that it was denied due process during a period of mon ths in t h e middl e of 2012 , and violated in a different way for a period of months beginning in October of 2013. The Court likewise grants PLN' s request for injunctive relief, a nd the She r iff and o the r named Defendants are hereby permanently ENJOINED from r everting to the prior policie s that failed to provide publishers adequate notice and an opportunity to be h eard "whe n their pu blicat ions [we ] r e disapproved for receipt by inmate subscribers ." Montcalm Publ' g, 80 F.3d at 106 .
As i ndicated a bove, at the parties ' request, the parties are hereby afforded fourteen (14) additiona1 days to confe r on the issue of monetary damages, and the Court strongly encourages
47

t h e part i e s t o mee t in person i f they are having di f f iculty reaching an agreement . Should the parties desire t o schedule a continuation of settlement discussions with a Magistrate Judge of this Court , t h ey should not hesi tate to c ontact t he deputy clerk responsibl e for scheduling matters with the Magistrate J udge that previously handled settlement dis cussions in this c ase . If the parties h ave not re a c h ed an agre e ment by t h e end of the fourteen (14) day p eriod , they shal l, separatel y or collectively, file a "Status Update" on the record i nc l uding comments on whether a continuance of the se tt l e ment conf erence has been scheduled and, if not, whether PLN wi s hes to proceed to a jury trial on the issue of nominal and/or punitive damage s .
The Clerk i s REQUESTED t o send a copy o f thi s Opinio n and Order to all counsel of record.
IT IS SO ORDERED.

Norfolk , Vir g i nia March ~ ' 201 5

/s/~
Ma rkS . Davis United Stat es District Judge

48

 
 Case 2:13-cv-00424-MSD-TEM Document 87 Filed 05/05/15 Page 1 of 2 PageID# 3143

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION
PRISON LEGAL NEWS, INC.,

FILED
MAY -4 2015
CLEfl • • '• :." court

Plaintiff,

vs.

Civil Action No. 2:13cv424

KEN STOLLE, Sheriff and High Constable for Virginia Beach, Virginia,
sued in his official and personal capacity,
et al.,

Defendants.

JOINT CONSENT ORDER

The parties, through their counsel, represent to the Court that they have entered into an Agreement settling all issues, except an award of costs and attorney fees, which they ask be submitted to the Court for resolution. The parties ask the Court to adopt the attached Agreement (Exh. A) as part of its Order.

Upon due consideration, the Court adopts the Agreement submitted by the parties as part

of this Order and schedules the time by which the parties have to address the ice petition as

follows: the plaintiff shall have until May 20, 2015 to file their petition for costs and fees, the

defendant shall have until June 10, 2015 to submit a response, and the plaintiff shall have until

June 17, 2015 to submit any reply.

TshtSrY

IT IS SO ORDERED.

Mark S- Davis United States District Judge

Norfolk, Virginia April- . 2Q4-»
Mao H-J&OI5

Honorable Mark S. Davis
United States District Judg&ve

Case 2:13-cv-00424-MSD-TEM Document 87 Filed 05/05/15 Page 2 of 2 PageID# 3144

We ask for this:

_/s/

p.d.

Jeff W.Rosen, Esq.

Virginia Bar No. 22689

Pender & Coward

222 Central Park Avenue

Virginia Beach, VA 23462

(757) 490-3000/Fax: (757) 502-7351

irosen@pendercoward.com

Attorneyfor Defendants

Isl

-pq-

Jeffrey E. Fogel, Esq.

Virginia Bar No. 75643

913 E. Jefferson Street

Charlottesville, VA 22902

(434) 984-0300/Fax (434) 220-4852

Jeff.fogel@gmail.com
Attorneysfor Plaintiff

CERTIFICATE OF SERVICE

I hereby certify that on the 30th day of April. 2015. Iwill electronically file the foregoing Proposed Joint

Consent Order to the Clerk of Court using the CM/ECF system, which will then send a notification of such filing

(NEF) to thefollowing:

6

Jeffrey E. Fogel, Esq. Steven David Rosenfeld, Esq.
913 E. Jefferson Street Charlottesville. VA 22902 ieff.fogcl@gmail.dom
auvroseii@aol.coni
Attorneysfor Plaintiff

_/s/ Jeff W. Rosen
Va. Bar Number 22689
Attorney for Defendants
Pender & Coward 222 Central Park Avenue
Virginia Beach, VA 23462 (757) 490-3000/(757) 502-7351 irosen@pendeiciwiird.cPin

 
 Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 1 of 10 PageID# 71

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF VIRGINIA
NORFOLK DIVISION

.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. ..

:

PRISON LEGAL NEWS, a project of the :

HUMAN RIGHTS DEFENSE CENTER, :

:

Plaintiff,

:

:

vs.

:

:

KEN STOLLE, Sheriff for Virginia Beach, :

Virginia, sued in his official and individual :

capacity, G. Havens, V. Ogden, A. Torno, :

V. Harris, M. Brittingham, Matthew Wilson, :

E. Rodriguez and Darlene Moore,

:

:

Defendants.

:

:

.. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. .. :

FIRST AMENDED COMPLAINT
AND JURY DEMAND
Civil Action No. 2:13cv424

INTRODUCTION

1. Plaintiff Prison Legal News brings this action to enjoin Defendants’ censorship of its

monthly publication, books and other correspondence mailed to prisoners who are held in

custody at the Virginia Beach Correctional Center, in violation of the First Amendment.

Further, defendants’ policies and practices do not afford due process notice and an

opportunity to challenge the censorship as required by the Fourteenth Amendment.

JURISDICTION

2. This action arises under the First and Fourteenth Amendments to the United States

Constitution and 42 U.S.C. § 1983. This Court has jurisdiction over this action under 28

U.S.C. §§1331 and 1343(a)(3) and (a)(4) and 28 U.S.C. §§2201 and 2202.

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 2 of 10 PageID# 72
VENUE 3. Venue properly lies in this District pursuant to 28 U.S.C. §§ 1391(b)(2) and Local Civil
Rule 3(B) because the Virginia Beach Correctional Center is located in Virginia Beach, Virginia.
PARTIES 4. Plaintiff Prison Legal News (“PLN”) is a project of the Human Rights Defense Center
(“HRDC”), a Washington State 501(c)(3) non-profit corporation with principal offices in Lake Worth, Florida. 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. All prisoners as well as their family, friends, advocates, and attorneys are among the intended beneficiaries of PLN activities. 5. Defendant Kenneth W. Stolle is the Sheriff of Virginia Beach, Virginia, and is responsible for the operation of the Virginia Beach Correctional Center (“VBCC”). The VBCC is the largest jail in the Commonwealth and holds approximately 1,400 prisoners on any given day. Defendant Stolle is responsible for the implementation and enforcement of all VBCC policies and procedures. At all times relevant to this Complaint, he was acting under color of state law. He is sued in his individual and official capacities. 6. Defendant G. Havens is an employee of the Virginia Beach Sheriff’s Office who works at the Virginia Beach Correctional Center. He was responsible for rejecting at least one issue of PLN as set forth herein. He was also responsible for notifying PLN of that rejection but failed to do so.
2

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 3 of 10 PageID# 73
7. Defendant V. Ogden is an employee of the Virginia Beach Sheriff’s Office who works at the Virginia Beach Correctional Center. He or she was responsible for rejecting a number of issues of PLN as set forth herein. He or she was also responsible for notifying PLN of those rejections but failed to do so.
8. Defendant A. Torno is an employee of the Virginia Beach Sheriff’s Office who works at the Virginia Beach Correctional Center. He or she was responsible for rejecting several issues of PLN as set forth herein. He or she was also responsible for notifying PLN of those rejections but failed to do so.
9. Defendant V. Harris is an employee of the Virginia Beach Sheriff’s Office who works at the Virginia Beach Correctional Center. He or she was responsible for rejecting at least one issue of PLN as set forth herein. He or she was also responsible for notifying PLN of that rejection but failed to do so.
10. Defendant M. Brittingham is an employee of the Virginia Beach Sheriff’s Office who works at the Virginia Beach Correctional Center. He or she was responsible for rejecting at least one issue of PLN as set forth herein. He or she was also responsible for notifying PLN of that rejection but failed to do so.
11. Defendant Matthew Wilson is an employee of the Virginia Beach Sheriff’s Office who works at the Virginia Beach Correctional Center. He or she was responsible for rejecting a number of issues of PLN as set forth herein. He or she was also responsible for notifying PLN of those rejections but failed to do so.
12. Defendants E. Rodriguez is an employee of the Virginia Beach Sheriff’s Office who works at the Virginia Beach Correctional Center. He or she was responsible for rejecting
3

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 4 of 10 PageID# 74
at least one issue of PLN as set forth herein. He or she was also responsible for notifying PLN of that rejection but failed to do so. 13. Defendant Darlene Moore is an employee of the Virginia Beach Sheriff’s Office who works at the Virginia Beach Correctional Center. She was and is responsible for considering appeals from senders of rejected correspondence and/or publications. Since the initiation of this action, she has upheld numerous decisions to reject PLN correspondence and publications without conducting an independent review of those decisions.
FACTUAL ALLEGATIONS 14. PLN publishes and distributes a 64-page monthly journal entitled “Prison Legal News:
Dedicated to Protecting Human Rights,” which reports on criminal justice news and issues. PLN also publishes, sells and distributes books on a variety of criminal justice, human rights and self-help issues. PLN also operates a website (www.prisonlegalnews.org) containing an extensive database of case law, verdicts, settlements, commentary, and other material related to these topics. 15. PLN has published monthly since 1990 and has approximately 7,000 subscribers in all 50 states and abroad. PLN’s subscribers include lawyers, journalists, judges, courts, public libraries, universities and prisoners. The estimated actual readership is 70,000 per month. PLN’s website receives more than 100,000 visitors a month. 16. PLN currently has, and at all times relevant to this Complaint has had, subscribers who are or were prisoners in the custody of the VBCC; some of these prisoners have since
4

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 5 of 10 PageID# 75
been transferred to a state prison where PLN is permitted by subscription. 17. Since April 2012, PLN has sent to numerous prisoners in custody of VBCC : (1) Sample
issues of PLN mailed in a manila envelope via first class mail; (2) Information Brochure Packets (“Info Packet”) detailing book offers and subscription rates mailed in a regularsized envelope via first class mail; (3) the soft cover book Protecting Your Health and Safety sent via media class mail; (4) Copies of Clement v. California Department of Corrections, et al,, 364 F.3d 1148 (9th Cir. 2004), sent in a regular-sized envelope via first class mail; and (5) monthly issues of PLN sent from PLN’s printer. 18. Since August 2011, PLN has sent more than two hundred of the above items to approximately 30 separate subscribers in custody at the VBCC. As confirmed by at least one prisoner subscriber at VDCC, PLN correspondence was permitted to be received by prisoners for several months prior to April 2012. 19. Starting in approximately April 2012, PLN began receiving returned items it had mailed to prisoners in VBCC through the U.S. Postal Service’s “Return to Sender” process. 20. PLN received back copies of its magazine, all of which were individually addressed to its prisoner subscribers. These magazines had a “Return to Sender” stamp on them and handwritten notes stating “Not Here” or “Refused.” A check of the prisoner subscriber’s custody status revealed them to be in custody at VBCC at the time the magazines were returned to PLN, even those marked “Not Here.” 21. Informational Brochure Packets were also returned with labels and stamps reading “Not Here” and “Refused.” A check of the prisoner subscriber’s custody status revealed that even those marked “Not Here” to be in custody at VBCC at the time the Info Packets
5

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 6 of 10 PageID# 76
were returned to PLN. 22. PLN has only once been notified by VBCC of the rejection of its correspondence. PLN
learned through its subscribers, however, that widespread censorship of PLN correspondence was occurring. PLN is aware of at least 67 items of correspondence censored by VBCC between April 2012 and the filing of this action. 23. According to the Mail Restriction Forms given to prisoners at VBCC, and provided to PLN by its subscribers, monthly PLN issues were censored because it was claimed that its advertisements contain “sexually explicit material.” However, PLN’s advertisements contain no nudity or depictions of sexual acts. 24. According to the Mail Restriction Forms given to prisoners at VBCC, and provided to PLN by its subscribers, the Info Packets were censored because “ordering forms with prices, catalogs [and] brochures” are not permitted. 20. The Mail Restriction Forms also state that an appeal process is provided to both the sender and the recipient. However, prisoner subscribers are only notified after PLN has been rejected and placed in their property box. 21. As previously stated, PLN has received only one such Mail Restriction Form from VBCC prior to the filing of this action. That form was taped to the back of an envelope stamped “Return to Sender” and hand marked “Refused.” Numerous seizures of PLN correspondence have occurred without notice to PLN. 22. Since the initiation of this action, PLN has started to receive notice of the rejection of its correspondence and publications . In each such instance, PLN has appealed the decision and in each case Defendant Sergeant Darlene Moore has upheld the rejection. However, Sgt. Moore does not undertake an independent review of the rejected correspondence but
6

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 7 of 10 PageID# 77
only checks to see if the correct boxes on the rejection notices are checked. CAUSES OF ACTION
FIRST CAUSE OF ACTION (Lack of Timely and Adequate Notification to Publisher) 23. Plaintiff realleges and incorporates by reference paragraphs 1- 22 herein. 24. The failure to provide timely notification and adequate reasons for disapproval decisions, violates PLN’s rights protected by the First and Fourteenth Amendments. 25. As a direct and proximate result of the conduct of Defendants, PLN has suffered a loss of its right to due process and its right to communicate with willing recipients and has also suffered financial injury.
SECOND CAUSE OF ACTION (Censorship of Constitutionally Protected Speech) 26. Plaintiff realleges and incorporates by reference paragraphs 1- 22 herein. 27. Defendants have disapproved or refused to deliver publications that contain constitutionally protected speech. 28. The aforesaid conduct by Defendants, without adequate penological justification, violates PLN’s First Amendment rights. 29. As a direct and proximate result of the aforesaid conduct of Defendants, Plaintiff has suffered a loss of its right to communicate with willing recipients and has also suffered financial injury.
THIRD CAUSE OF ACTION (Facial Validity of Rule Prohibiting “Sexually Explicit Material”) 30. Plaintiff realleges and incorporates by reference paragraphs 1-22 herein. 31. The rule prohibiting “sexually explicit material,” is vague and overbroad and therefore
7

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 8 of 10 PageID# 78
facially invalid as a violation of the First Amendment. 32. As a direct and proximate result of the aforesaid conduct of Defendants enforcing that
rule, Plaintiff has suffered a loss of its right to communicate with willing recipients and has also suffered financial injury.
FOURTH CAUSE OF ACTION (Refusal to allow Information Packets) 33. Plaintiff realleges and incorporates by reference paragraphs 1- 22 herein. 34. Prohibiting the receipt by PLN’s subscribers and others of information on how to subscribe to the magazine and about books and other publications for sale by Plaintiff, without adequate penological justification, violates PLN’s First Amendment rights. 35. As a direct and proximate result of the conduct of Defendants, as described above, PLN has suffered a loss of its right to communicate with willing recipients and has also suffered financial injury.
FIFTH CAUSE OF ACTION (Lack of Adequate Appeal Process) 36. Plaintiff realleges and incorporates by reference paragraphs 1-22 herein. 37. The failure to conduct an independent review of censorship decisions violates the First and Fourteenth Amendments. 38. As a direct and proximate result of the conduct of Defendant Moore, as described herein, PLN has suffered a loss of its right to due process and to communicate with willing recipients and has suffered financial injury.
WHEREFORE, Plaintiff requests the following relief: a. Declaratory judgment that the failure to provide adequate and timely notice of decisions
8

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 9 of 10 PageID# 79
to disapprove a publication and to provide Plaintiff a timely and adequate opportunity to be heard violates PLN’s First Amendment and due process rights; b. Declaratory judgment that the failure to conduct an independent review of censorship decisions violates the First and Fourteenth Amendments; c. Preliminary and permanent injunction requiring that facilities under the control and direction of Defendant Stolle provide notice to PLN of any proposed decision to disapprove a PLN publication and that the notice indicate what specific article(s) and/or advertisement(s) are at issue and if a book, which pages, an explanation of how the article(s) and/or advertisement(s) or pages in question threaten the valid penological interests of VBCC, and an opportunity to appeal the disapproval to an official other than the one who made the initial censorship decision who conducts an independent review of that initial censorship decision. d. Declaratory judgment that the censorship or refusal to deliver the PLN magazine to prisoners in custody of VBCC violates PLN’s First Amendment rights. e. Preliminary and permanent injunction requiring Defendants to allow receipt of the PLN magazine unless there is a valid penological justification to censor that particular issue. f. Declaratory judgment that the rule prohibiting the receipt of “sexually explicit material” is facially invalid as overbroad and vague. g. Preliminary and permanent injunction prohibiting Defendants from censoring or rejecting PLN publications based on the simple standard of “sexually explicit.” h. Declaratory judgment that the VBCC rule prohibiting “ordering forms with prices, catalogs, brochures” violates the First Amendment. i. Preliminary and permanent injunction prohibiting Defendants from refusing to allow
9

Case 2:13-cv-00424-MSD-TEM Document 17 Filed 03/26/14 Page 10 of 10 PageID# 80

PLN’s Information Brochure Packets without penological justification. j. Awarding PLN nominal, compensatory and punitive damages; k. Awarding attorney’s fees and costs to Plaintiff; l. Awarding such other and further relief as the Court may deem just and proper.
JURY DEMAND Plaintiff hereby demands a trial by jury on all issues so triable.

s/Jeffrey E. Fogel Jeffrey E. Fogel, VSB #75643 Attorney at Law 913 E. Jefferson Street Charlottesville, VA 22902 434-984-0300 (Tel) 434-220-4852 (Fax) Email: jeff.fogel@gmail.com
Steven D. Rosenfield, VSB #16539 Attorney at Law 913 E. Jefferson Street Charlottesville, VA 22902 434-984-0300 (Tel) 434-220-4852 (Fax) Email: attyrosen@aol.com
Lance Weber, Missouri State Bar #49055 (To be admitted pro hac vice) Human Rights Defense Center General Counsel PO Box 1151 Lake Worth, Florida 33460 561-360-2523 (Tel) 866-228-1681 (Fax) lweber@humanrightsdefensecenter.org
Attorneys for Plaintiff

Respectfully submitted,
PRISON LEGAL NEWS By Counsel

10

 
 Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 1 of 9 PageID# 3371

UNPUBLISHED UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-2197
PRISON LEGAL NEWS, a project of the Human Rights Defense Center, Plaintiff - Appellant,
v. KEN STOLLE, Sheriff for Virginia Beach, Virginia sued in his official and individual capacity; G. HAVENS; V. OGDEN; A. TORNO; V. HARRIS; M. BRITTINGHAM; MATTHEW WILSON; E. RODRIGUEZ; DARLENE MOORE,
Defendants – Appellees, and JOHN DOES 1-10,
Defendant.

Appeal from the United States District Court for the Eastern District of Virginia, at Norfolk. Mark S. Davis, District Judge. (2:13-cv-00424-MSD-TEM)

Argued: December 8, 2016

Decided: March 6, 2017

Before TRAXLER, FLOYD, and THACKER, Circuit Judges.

Affirmed by unpublished per curiam opinion.

Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 2 of 9 PageID# 3372 ARGUED: Jeffrey Edward Fogel, Charlottesville, Virginia, for Appellant. Jeff W. Rosen, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees. ON BRIEF: Steven D. Rosenfield, Charlottesville, Virginia, for Appellant. Lisa Ehrich, PENDER & COWARD, PC, Virginia Beach, Virginia, for Appellees. Unpublished opinions are not binding precedent in this circuit.
2

Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 3 of 9 PageID# 3373
PER CURIAM: Prison Legal News (PLN) filed suit against Sheriff Kenneth Stolle and several of
his subordinates (collectively, the “Defendants”) alleging that PLN’s First and Fourteenth Amendment rights were violated by policies and practices that prohibited PLN’s publication from entering the jail operated by Sheriff Stolle. PLN’s suit was partially successful. At the conclusion of litigation, the district court awarded attorneys’ fees to PLN, but reduced that fee award by 45% based on the limited nature of PLN’s success. Finding no abuse of discretion in the court’s award, we affirm.
I. PLN is the publisher of a monthly magazine, Prison Legal News: Dedicated to Protecting Human Rights (“Prison Legal News”), which reports on criminal justice issues and is marketed primarily to inmates. Over the past several years, inmates at the Virginia Beach Correctional Center (VBCC)—operated by Sheriff Stolle and the Virginia Beach Sheriff’s Office (VBSO)—have not been permitted to receive the monthly Prison Legal News magazine due to the magazine’s alleged violation of the VBSO’s “sexually explicit” materials and “ordering forms” policies. PLN’s suit challenged the Defendants’ exclusion of its magazine from the VBCC. On December 8, 2014, the district court ruled in favor of the Defendants based on the VBSO “ordering forms” policy, but reserved judgment on the “sexually explicit” materials policy. The court also concluded that money damages were not available to
3

Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 4 of 9 PageID# 3374
PLN as to the “sexually explicit” materials policy because the Defendants were shielded by qualified immunity, but that injunctive relief remained a viable option.
The district court entered an opinion and order on March 31, 2015, which found that the VBSO had previously maintained an unconstitutionally overbroad “sexually explicit” materials policy. See Prison Legal News v. Stolle (Stolle I), No. 2:13-cv-424, 2015 WL 1487190, at *10 (E.D. Va. Mar. 31, 2015). Although this policy had been amended during the course of the litigation, the court entered a permanent injunction precluding the VBSO from returning to its former policy. Id. Additionally, the court found that the Defendants had previously engaged in due process violations in their handling of magazine censorship decisions. Id. at *15. Again, although such procedures had been modified and corrected during the course of the litigation, the court entered a permanent injunction precluding the VBSO from returning to its prior practices. Id.
The opinion and order appealed here were entered on September 8, 2015, and granted attorney’s fees to PLN. Prison Legal News v. Stolle (Stolle II), 129 F. Supp. 3d 390 (E.D. Va. 2015). The district court found that PLN qualified as a “prevailing party” in this case, and thus was entitled to at least a partial award of fees and litigation expenses. Id. at 395. The court then applied our three-step framework for calculating a reasonable attorney’s fee award established in McAfee v. Boczar, 738 F.3d 81, 88 (4th Cir. 2013).
Applying the first two McAfee steps, the district court analyzed in detail the number of hours billed, the rates billed, and the type of work conducted, then reduced hours for duplicative work, and ultimately produced a lodestar summary graph that was
4

Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 5 of 9 PageID# 3375
not disputed by the parties. Stolle II, 129 F. Supp. 3d at 397–405. The primary
contention on appeal revolves around the third McAfee step, the court’s adjustment for
degree of success, which the court analyzed as follows.
The court found that both PLN and the Defendants succeeded in the litigation. Id.
at 405–07. The Defendants demonstrated that they were qualifiedly immune from money
damages resulting from long-term censorship of PLN’s publications through maintenance
and application of both the VBSO “ordering forms” policy and “sexually explicit”
materials policy. Id. at 405. Moreover, the Defendants demonstrated that PLN did not
suffer money damages based on the exclusion of its monthly magazine from VBCC,
because the banned issues were constitutionally excluded pursuant to the VBSO’s
“ordering forms” policy. Id. The court noted that “prior to the entry of the consent
decree, questions remained as to the amount of nominal damages on [PLN]’s due process
claims and whether punitive damages were recoverable on such claims, [however,] these
matters were resolved by consent decree in a manner that avoided any monetary award.
Id. Accordingly, PLN failed to recover any of the nominal, compensatory, or punitive
damages it sought in its amended complaint. The court noted that:
Although [PLN] seeks to downplay its efforts to collect monetary damages, this Court is required to compare “what [the plaintiff] sought with what was awarded.” McAfee, 738 F.3d at 93. Here, even as late as April 2015, [PLN] reiterated its desire to proceed to trial in an effort to recover both nominal and punitive damages. Accordingly, while a fair reading of the amended complaint does not suggest that money damages were the motivator behind this litigation, [PLN] pursued money damages at all stages of the case. Cf. Mercer v. Duke Univ., 401 F.3d 199, 205–06 (4th Cir. 2005) (indicating that while a court must consider “the purpose of the lawsuit” in that it must examine whether the lawsuit seeks injunctive relief or monetary relief, “the subjective motives of the plaintiff” are not relevant
5

Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 6 of 9 PageID# 3376
to “prevailing party” status nor relevant to determining “the extent of the relief obtained,” noting that “[i]f the rule were otherwise, then every plaintiff recovering only nominal damages would claim that the only thing he was really ever interested in was a liability finding”). Id. at 405 n.6. Additionally, the district court pointed to the Defendants’ success in defending its “ordering forms” policy. Id. at 406. Based on the court’s summary judgment ruling, “such policy provided a valid justification for Defendants’ decision to exclude all monthly issues of PLN’s magazine from the VBCC.” Id. The district court found that despite the Defendants’ success, PLN was the prevailing party because it secured permanent injunctive relief for two VBSO policies and ultimately succeeded in ending future exclusion of its publication via consent decree. Id. at 406. The court made three observations regarding PLN’s success: (1) PLN “succeeded in establishing that the VBSO maintained an unconstitutionally broad sexually explicit materials policy” applied against PLN’s magazine; (2) PLN “succeeded on its due process claims associated with the VBSO’s publication review policy,” because required notices were not sent to publishers informing that their publications were refused; and (3) PLN “appeared entitled to nominal damages and had at least the potential to recover punitive damages,” but leveraged that advantage into a consent decree whereby future issues of its magazine would be delivered to the VBSO. Id. Finally, taking into account each party’s success and failure, the district court concluded that a 45% reduction in attorney’s fees was appropriate, and reduced the fee award from $154,889 to $85,189. Id. at 407. PLN timely appealed.
6

Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 7 of 9 PageID# 3377
II. We review a district court’s award of attorney’s fees for an abuse of discretion. Robinson v. Equifax Info. Servs., LLC, 560 F.3d 235, 243 (4th Cir. 2009). “Our review of the district court’s award is sharply circumscribed” in light of the district court’s “close and intimate knowledge of the efforts expended and the value of the services rendered.” Id. (internal quotation marks omitted). Accordingly, “we will only reverse such an award if the district court is ‘clearly wrong’ or has committed an ‘error of law.’” McAfee, 738 F.3d at 88 (quoting Brodziak v. Runyon, 145 F.3d 194, 196 (4th Cir. 1998)). Although the district court has discretion in its award of attorney’s fees, it remains important for the court to “provide a concise but clear explanation of its reasons for the fee award.” Hensley v. Eckerhart, 461 U.S. 424, 437 (1983). Moreover, “[w]hen an adjustment is requested on the basis of either the exceptional or limited nature of the relief obtained by the plaintiff, the district court should make clear that it has considered the relationship between the amount of the fee awarded and the results obtained.” Id. Calculating a reasonable attorney’s fee award requires a three-step process. McAfee, 738 F.3d at 88. A court must (1) “determine the lodestar figure by multiplying the number of reasonable hours expended times a reasonable rate;” (2) “subtract fees for hours spent on unsuccessful claims unrelated to successful ones;” and (3) “award some percentage of the remaining amount, depending on the degree of success enjoyed by the plaintiff.” Id. (internal quotation marks omitted). In analyzing the third McAfee step, a court should reduce an award if the relief is limited in comparison to the scope of the litigation as a whole, with a court asking
7

Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 8 of 9 PageID# 3378
whether the plaintiff achieved a level of success that makes the hours reasonably expended a satisfactory basis for making a fee award. Hensley, 461 U.S. at 434, 438–40; McAfee, 738 F.3d at 92. Accordingly, when a plaintiff has achieved only partial or limited success, the product of hours reasonably expended on the litigation as a whole, times a reasonable hourly rate, may be an excessive amount “even where the plaintiff’s claims were interrelated, nonfrivolous, and raised in good faith.” Hensley, 461 U.S. at 436. An attorney’s fee award under § 1988 is therefore not driven by whether it was reasonable to file suit or whether plaintiff’s counsel litigated the case with devotion and skill. Rather, “the extent of a plaintiff’s success is ‘the most critical factor.’” McAfee, 738 F.3d at 92 (quoting Hensley, 461 U.S. at 436).
III. PLN argues on appeal that the district court abused its discretion in reducing the fee award by 45%, noting that it “achieved excellent results in the litigation.” Appellant’s Br. at 6. PLN puts forward two arguments in support of its conclusion. First, PLN contends that it did not primarily seek money damages, and therefore the court unfairly accounted for its lack of damages in reducing the fee award. Second, PLN argues that the 45% reduction was arbitrary. We disagree with PLN’s arguments that the district court’s calculation was unfair or arbitrary. As noted above, the court explained in detail the damages sought, the relief obtained in the case, and its reasoning for reducing the fee award. The court specifically—and correctly—pointed out that PLN unsuccessfully “pursued money
8

Case 2:13-cv-00424-MSD-TEM Document 109 Filed 03/06/17 Page 9 of 9 PageID# 3379

damages at all stages of the case.” Stolle II, 129 F. Supp. 3d at 405 n.6. In its final analysis, the court clearly weighed “[PLN]’s tangible and substantial victories on some of its § 1983 claims, while also taking into account Defendants’ success in avoiding any monetary damages as well as defending the constitutionality of their prior exclusion of all of [PLN]’s publications from the VBCC based on the lawful VBSO ‘ordering forms’ policy.” Id. at 407. In other words, the court adequately “provide[d] a concise but clear explanation of its reasons,” and “ma[de] clear that it has considered the relationship between the amount of the fee awarded and the results obtained.” Hensley, 461 U.S. at 437.
PLN fails to show—and nothing in the record indicates—that the 45% reduction was “clearly wrong” or that the district court has committed an “error of law.” Nor does PLN meet the demanding burden of establishing an abuse of discretion on appeal. Given the civil rights issues involved in this case, another judge may have reasonably ordered a higher fee award. However, the reduction applied by the district court was not unreasonable and was well within the bounds of the court’s broad discretion.

IV. Accordingly, the district court’s attorney’s fee award is

AFFIRMED.

9

 
 Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 1 of 11
CLOSED,JURY
U.S. District Court Eastern District of Virginia − (Norfolk) CIVIL DOCKET FOR CASE #: 2:13−cv−00424−MSD−TEM

Prison Legal News v. Stolle et al Assigned to: District Judge Mark S. Davis Referred to: Magistrate Judge Tommy E. Miller Case in other court: 4CCA Case Manager Barbara H. Rowe,
15−02197 Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 07/31/2013 Date Terminated: 09/08/2015 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Prison Legal News a project of the Human Rights Defense Center

represented by Jeffrey E. Fogel 913 E. Jefferson Street Charlottesville, VA 22902 434−984−0300 Fax: 434−220−4852 Email: jeff.fogel@gmail.com ATTORNEY TO BE NOTICED

Lance Theodore Weber Human Rights Defense Center P. O. Box 1151 Lake Worth, FL 33460 **NA** (561) 360−2523 Fax: (866) 228−1681 Email: lweber@hrdc−law.org PRO HAC VICE ATTORNEY TO BE NOTICED

Robert Erle Jack Human Rights Defense Center P. O. Box 1151 Lake Worth, FL 33460 **NA** (561) 360−2523 Fax: (866) 735−7136 Email: rjack@hrdc−law.org TERMINATED: 09/10/2014 PRO HAC VICE ATTORNEY TO BE NOTICED

Steven David Rosenfield 913 East Jefferson St Charlottesville, VA 22902 434−984−0300 Email: attyrosen@aol.com ATTORNEY TO BE NOTICED

Defendant
Ken Stolle Sheriff for Virginia Beach, Virginia, sued in his official and inidivual capacity

represented by Jeff Wayne Rosen Pender & Coward PC 222 Central Park Ave Suite 400 Virginia Beach, VA 23462−3027 (757) 490−6293 Email: jrosen@pendercoward.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 2 of 11

Defendant
John Does 1−10 TERMINATED: 03/26/2014

Defendant G Havens

represented by Jeff Wayne Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant V Ogden

represented by Jeff Wayne Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant A Torno

represented by Jeff Wayne Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant V Harris

represented by Jeff Wayne Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant M Brittingham

represented by Jeff Wayne Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Matthew Wilson

represented by Jeff Wayne Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant E Rodriguez

represented by Jeff Wayne Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant Darlene Moore

represented by Jeff Wayne Rosen (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/30/2013

# Docket Text
1 COMPLAINT against John Does 1−10, Ken Stolle ( Filing fee $ 400, receipt number 24683020313.), filed by Prison Legal News. (Attachments: # 1 Civil Cover Sheet, # 2 Letter, # 3 Receipt)(afar) (Entered: 07/31/2013)

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 3 of 11

07/30/2013 07/31/2013 08/14/2013 08/23/2013 09/11/2013 09/12/2013 09/13/2013 09/16/2013
09/20/2013 09/23/2013 10/15/2013 10/28/2013 10/29/2013
11/04/2013 02/05/2014 02/05/2014
02/17/2014 02/17/2014

2 Financial Interest Disclosure Statement (Local Rule 7.1) by Prison Legal News. (afar) (Entered: 07/31/2013)
3 Summons Issued as to Ken Stolle. (afar) (Entered: 07/31/2013)
4 NOTICE of Appearance by Jeff Wayne Rosen on behalf of Ken Stolle (Rosen, Jeff) (Entered: 08/14/2013)
5 AGREED ORDER that defendant Stolle has until 9/16/13 to file his response to the complaint. Signed by District Judge Mark S. Davis on 8/23/13. (afar) (Entered: 08/27/2013)
6 ANSWER to 1 Complaint and Affirmative Defenses by Ken Stolle.(Rosen, Jeff) (Entered: 09/11/2013)
Refer for 16(b) (afar) (Entered: 09/12/2013)
7 First Motion to appear Pro Hac Vice by Lance Weber and Certification of Local Counsel Jeffrey E. Fogel Filing fee $ 75, receipt number 0422−3667652. by Prison Legal News. (Fogel, Jeffrey) (Entered: 09/13/2013)
Notice of Correction re 7 First Motion to appear Pro Hac Vice by Lance Weber and Certification of Local Counsel Jeffrey E. Fogel: The document does not contain the signature of the applicant. Local counsel must file a corrected motion and attach a new document with the actual written signature of the applicant. Counsel should not pay a second fee. (tlev, ) (Entered: 09/16/2013)
8 Motion to appear Pro Hac Vice by Lance Weber and Certification of Local Counsel Jeffrey E. Fogel by Prison Legal News. (Fogel, Jeffrey) (Entered: 09/20/2013)
9 ORDER granting 8 Motion for Pro hac vice for Lance Theodore Weber as to Prison Legal News. Signed by District Judge Mark S. Davis on 09/23/13. (tlev, ) (Entered: 09/25/2013)
10 RULE 26(f) PRETRIAL ORDER: 16(b) Scheduling Conference set for 10/28/2013 at 09:00 AM in Norfolk. Signed by Magistrate Judge Douglas E. Miller on 10/8/13, filed 10/15/13. (vwar) (Entered: 10/15/2013)
Scheduling Conference − Rule 16b held on 10/28/2013. (vwar) (Entered: 10/28/2013)
11 Order Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that the Final Pretrial Conference set for 6/13/2014 at 11:00 AM in Norfolk. Jury Trial set for 6/24/2014 at 10:00 AM in Norfolk Courtroom 5 before District Judge Mark S. Davis. Signed by District Judge Mark S. Davis on 10/28/13, filed 10/29/13. (vwar) (Entered: 10/29/2013)
Settlement Conference set for 2/11/2014 at 11:00 AM in Chambers before Magistrate Judge Douglas E. Miller. (lwoo) (Entered: 11/04/2013)
Reset Hearings: Settlement Conference set for 4/10/2014 at 11:00 AM in Chambers before Magistrate Judge Douglas E. Miller. (cdod, ) (Entered: 02/05/2014)
12 Settlement Conference Order that all parties and their lead counsel are required to appear at the U.S. District Court, 600 Granby Street, Norfolk, VA at 11:00 a.m. on 4/10/2014for the purpose of conducting discussions towards a compromised resolution of this case; EACH PARTY MUST BRING TO THE SETTLEMENT CONFERENCE A PERSON WITH FULL AND COMPLETE AUTHORITY TO SETTLE THE CASE; directing the parties to submit a brief memorandum of five pages or less to chambers (do not file in the clerk's office) on 4/8/2014 by noon. (See Order for Specifics). Signed by Magistrate Judge Douglas E. Miller on 2/5/14. (afar) (Entered: 02/05/2014)
13 First MOTION to Amend/Correct Complaint by Prison Legal News. (Fogel, Jeffrey) (Entered: 02/17/2014)
14 Brief in Support to 13 First MOTION to Amend/Correct Complaint filed by Prison Legal News. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D)(Fogel, Jeffrey) (Entered: 02/17/2014)

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 4 of 11

03/17/2014 03/24/2014
03/24/2014
03/26/2014 03/31/2014 04/03/2014 04/03/2014 04/04/2014 04/07/2014 04/07/2014 04/07/2014
04/08/2014 04/09/2014 04/10/2014

Set/Reset Deadlines as to 13 First MOTION to Amend/Correct Complaint. Telephonic Motion Hearing set for 3/24/2014 at 02:00 PM in Chambers before Magistrate Judge Douglas E. Miller. (afor) (Entered: 03/17/2014)
15 Minute Entry for telephonic motion hearing re 13 First MOTION to Amend held 3/24/14 before Magistrate Judge Douglas E. Miller. Jeffrey Fogel appeared on behalf of Plaintiff. Jeff Rosen appeared on behalf of Defendant Stolle. Argument of counsel heard. Comments of the Court. Court GRANTS the Motion to Amend. Court to prepare Order. Court in recess. (Court Reporter Janet Collins, OCR.)(lwoo) (Entered: 03/24/2014)
16 ORDER granting 13 Motion to Amend/Correct The Court GRANTS Plaintiff's Motion for Leave to File Amended Complaint. Plaintiff is DIRECTED to refile the Amended Complaint (ECF No. 14−1) by CM/ECF and prepare the appropriate service copies and summonses for service on the eight newly−identified defendants, and deliver the copies and summonses to the Clerk's Office of this Court to be prepared for service. The Defendant, Ken Stolle, Sheriff for Virginia Beach, shall respond to the Amended Complaint within fourteen (14) days from the date of service through CM/ECF. IT IS SO ORDERED. Signed by Magistrate Judge Douglas E. Miller and filed on 3/24/14. Copies distributed to all parties 3/25/14. (ldab, ) (Entered: 03/25/2014)
17 AMENDED COMPLAINT against All Defendants, filed by Prison Legal News.(Fogel, Jeffrey) (Entered: 03/26/2014)
18 Eight Summons Issued as to M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson and mailed to counsel for service. (Attachments: # 1 Magistrate Notice and Judge's Instructions)(bgra) (Entered: 03/31/2014)
19 MOTION to Continue by Ken Stolle. (Rosen, Jeff) (Entered: 04/03/2014)
20 Memorandum in Support re 19 MOTION to Continue filed by Ken Stolle. (Rosen, Jeff) (Entered: 04/03/2014)
21 Memorandum in Opposition re 19 MOTION to Continue filed by Prison Legal News. (Fogel, Jeffrey) (Entered: 04/04/2014)
22 RESPONSE in Opposition re 19 MOTION to Continue Defendant Stolle's Reply to Plaintiff's Opposition to Motion to Continue filed by Ken Stolle. (Rosen, Jeff) (Entered: 04/07/2014)
23 ANSWER to Complaint Defendant Sheriff Kenneth W. Stolle's Answer to First Amended Complaint by Ken Stolle.(Rosen, Jeff) (Entered: 04/07/2014)
24 ORDER: The settlement conference is hereby REMOVED from the docket and Counsel only are DIRECTED to appear by telephone at 11:00 a.m. on April 10, 2014 for a status conference to discuss the need for newly added parties to participate, and to reschedule the conference, if necessary. Signed by Magistrate Judge Douglas E. Miller and filed on 4/7/2014. (bgra) (Entered: 04/07/2014)
Set as to 19 MOTION to Continue . Motion Hearing/ telephone conference set for 4/10/2014 at 11:00 AM before Magistrate Judge Douglas E. Miller. (cdod, ) (Entered: 04/08/2014)
25 NOTICE of Appearance by Jeff Wayne Rosen on behalf of M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Matthew Wilson (Rosen, Jeff) (Entered: 04/09/2014)
26 Minute Entry for proceedings held before Magistrate Judge Douglas E. Miller:Motion Hearing held on 4/10/2014 re 19 MOTION to Continue filed by Ken Stolle. Matter came on for telephone conference on pending motion to continue trial (#19). Present by telephone were Jeffrey Fogel on behalf of the plaintiff and Jeff Rosen on behalf of the defendants. It appears that Mr. Rosen has now made an appearance on behalf of all new defendants with the exception of A. Torno. There may not be proper service as to Ms. Torno, and she is not currently represented. Mr. Fogel argues why the case would not need to be continued and Mr. Rosen responds. The Court made rulings on the record.The motion to continue is GRANTED. The trial and final pretrial conference in this matter are removed from the calendar. Counsel are directed to contact the

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 5 of 11

04/11/2014
04/18/2014 04/22/2014 04/25/2014
05/02/2014 05/02/2014 05/06/2014 05/14/2014 05/16/2014 05/20/2014 05/20/2014
05/20/2014 05/21/2014
05/21/2014 05/21/2014

courtroom deputy for Judge Davis to reschedule these dates no later than ten days after the last defendant has filed an answer or other responsive pleading. After the trial date is reset a revised 16b order will be prepared. The Court directs counsel to confer with their clients regarding a settlement conference in late May or early June and to contact the court by May 5, 2014 to set a settlement conference to be held in person. The Court directs that each party shall be represented by someone with true settlement authority at the conference. An order will be prepared in this matter. (Court Reporter Janet Collins, OCR.)(cdod, ) (Entered: 04/11/2014)
27 ORDER granting 19 Motion to Continue. The trial date of June 24,2014 and the Final Pretrial Date of June 13, 2014 are REMOVED from the Court's docket and the parties are DIRECTED to contact the District Judge's Courtroom Deputy no later than 10 days after the last Defendant has answered, or otherwise responded to the Complaint, to select a new trial date. Signed by Magistrate Judge Douglas E. Miller and filed on 4/10/2014. (bgra) (Entered: 04/11/2014)
28 ANSWER to Complaint by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Matthew Wilson.(Rosen, Jeff) (Entered: 04/18/2014)
30 One Summons with one copy reissued as to A. Torno and mailed to counsel for service. (Attachments: # 1 Magistrate Judge Notice and Judge's Instructions)(bgra) (Entered: 04/25/2014)
29 Amended Order Rule 16(b) Scheduling Order − Pursuant to the Rule 16(b) Conference it is ordered that the Final Pretrial Conference reset for 11/14/2014 at 10:00 AM in Norfolk. Jury Trial reset for 12/2/2014 at 10:00 AM in Norfolk Courtroom 5 before District Judge Mark S. Davis. Signed by District Judge Mark S. Davis on 4/24/14, filed 4/25/14. (vwar) (Entered: 04/25/2014)
Settlement Conference set for 5/28/2014 at 02:00 PM in Chambers before Magistrate Judge Douglas E. Miller. (lwoo) (Entered: 05/02/2014)
31 Settlement Conference Order. Signed by Magistrate Judge Douglas E. Miller on 5/2/14 and filed on 5/2/14. (tbro) (Entered: 05/02/2014)
32 ANSWER to Complaint Answer of Defendant A. Torno to First Amended Complaint by A Torno.(Rosen, Jeff) (Entered: 05/06/2014)
33 Motion to appear Pro Hac Vice by Robert Erle Jack and Certification of Local Counsel Jeffrey E. Fogel Filing fee $ 75, receipt number 0422−3963141. by Prison Legal News. (Fogel, Jeffrey) (Entered: 05/14/2014)
34 ORDER granting 33 Motion for Pro hac vice for Robert Erle Jack as to Prison Legal News. Signed by District Judge Mark S. Davis on 05/16/14. (tlev, ) (Entered: 05/19/2014)
35 MOTION for Summary Judgment on Plaintiff's First Amendment claims by Prison Legal News. (Fogel, Jeffrey) (Entered: 05/20/2014)
36 Memorandum in Support re 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims filed by Prison Legal News. (Attachments: # 1 Exhibit Exhibit A, # 2 Exhibit Exhibit B, # 3 Exhibit Exhibit C, # 4 Exhibit Exhibit D, # 5 Exhibit Exhibit E, # 6 Exhibit Exhibit F, # 7 Exhibit Exhibit G, # 8 Exhibit Exhibit H)(Fogel, Jeffrey) (Entered: 05/20/2014)
37 AFFIDAVIT in Support re 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims filed by Prison Legal News. (Fogel, Jeffrey) (Entered: 05/20/2014)
38 AFFIDAVIT in Support re 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims filed by Prison Legal News. (Attachments: # 1 Exhibit Exhibit 1, # 2 Exhibit Exhibit 2, # 3 Exhibit Exhibit 3, Part 1, # 4 Exhibit Exhibit 3, Part 2)(Fogel, Jeffrey) (Entered: 05/21/2014)
39 EXHIBIT to Wright Declaration by Prison Legal News.. (Attachments: # 1 Exhibit Exhibit 3, Part 4, # 2 Exhibit Exhibit 3, Part 5)(Fogel, Jeffrey) (Entered: 05/21/2014)
40 EXHIBIT to Wright Declaration by Prison Legal News.. (Attachments: # 1 Exhibit Exhibit 3, Part 7, # 2 Exhibit Exhibit 3, Part 8)(Fogel, Jeffrey) (Entered: 05/21/2014)

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 6 of 11

05/21/2014 05/21/2014 05/21/2014 05/23/2014 05/23/2014
05/27/2014 05/28/2014 05/28/2014
05/28/2014 05/28/2014 06/16/2014
06/16/2014 06/16/2014

41 EXHIBIT to Wright Declaration by Prison Legal News.. (Attachments: # 1 Exhibit Exhibit 3, Part 10, # 2 Exhibit Exhibit 3, Part 11)(Fogel, Jeffrey) (Entered: 05/21/2014)
42 EXHIBIT to Wright Declaration by Prison Legal News.. (Attachments: # 1 Exhibit Exhibit 3, Part 13, # 2 Exhibit Exhibit 3, Part 14)(Fogel, Jeffrey) (Entered: 05/21/2014)
43 EXHIBIT to Wright Declaration by Prison Legal News.. (Attachments: # 1 Exhibit Exhibit 5, # 2 Exhibit Exhibit 6, # 3 Exhibit Exhibit 7, # 4 Exhibit Exhibit 8, # 5 Exhibit Exhibit 9)(Fogel, Jeffrey) (Entered: 05/21/2014)
44 MOTION for Extension of Time to File Response/Reply as to 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit A)(Rosen, Jeff) (Entered: 05/23/2014)
45 Memorandum in Support re 44 MOTION for Extension of Time to File Response/Reply as to 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit A)(Rosen, Jeff) (Entered: 05/23/2014)
MOTIONS REFERRED to Magistrate Judge: Douglas E. Miller. 44 MOTION for Extension of Time to File Response/Reply as to 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims (bgra) (Entered: 05/27/2014)
46 AGREED ORDER granting 44 Motion for Extension of Time to File Response to the Motion for Partial Summary Judgment. It is ORDERED that defendants' time to respond be extended to 6/16/2014. Signed by Magistrate Judge Douglas E. Miller on 5/28/14. (afar) (Entered: 05/28/2014)
47 ORDER DIRECTING the Clerk to assign this case to another Magistrate Judge in this division for purposes of resolving nondispositive or pretrial matters ordinarily referred to magistrate judges in this court. The undersigned shall remain available to the parties for further settlement discussions and conferences as necessary. Signed by Magistrate Judge Douglas E. Miller on 5/28/14. (afar) (Entered: 05/28/2014)
Case Reassigned to Magistrate Judge Tommy E. Miller. Magistrate Judge Douglas E. Miller no longer assigned to the case. (afar) (Entered: 05/28/2014)
Settlement Conference held on 5/28/2014 before Magistrate Judge Douglas E. Miller. (lwoo) (Entered: 05/29/2014)
48 Memorandum in Opposition re 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 7−1, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 9−2, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 14−1, # 18 Exhibit 14−2, # 19 Exhibit 14−3, # 20 Exhibit 15, # 21 Exhibit 16, # 22 Exhibit 17, # 23 Exhibit 18, # 24 Exhibit 19, # 25 Exhibit 20)(Rosen, Jeff) (Entered: 06/16/2014)
49 MOTION for Summary Judgment Defendants' Motion for Summary Judgment by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Rosen, Jeff) (Entered: 06/16/2014)
50 Memorandum in Support re 49 MOTION for Summary Judgment Defendants' Motion for Summary Judgment filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 7−1, # 9 Exhibit 8, # 10 Exhibit 9, # 11 Exhibit 9−2, # 12 Exhibit 10, # 13 Exhibit 11, # 14 Exhibit 12, # 15 Exhibit 13, # 16 Exhibit 14, # 17 Exhibit 14−1, # 18 Exhibit 14−2, # 19 Exhibit 14−3, # 20 Exhibit 15, # 21 Exhibit 16, # 22 Exhibit 17, # 23 Exhibit 18, # 24 Exhibit 19, # 25 Exhibit 20)(Rosen, Jeff) (Entered: 06/16/2014)

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 7 of 11

06/16/2014
06/23/2014
06/23/2014 06/23/2014 06/23/2014 06/23/2014 06/24/2014 06/27/2014
08/11/2014 08/12/2014 09/10/2014 10/29/2014 11/03/2014 11/03/2014 11/03/2014 11/05/2014 12/08/2014

51 Request for Hearing by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson re 49 MOTION for Summary Judgment Defendants' Motion for Summary Judgment (Rosen, Jeff) (Entered: 06/16/2014)
52 REPLY to Response to Motion re 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims, 49 MOTION for Summary Judgment Defendants' Motion for Summary Judgment , Memorandum in Opposition to Defendants' Motion for Summary Judgment filed by Prison Legal News. (Attachments: # 1 Exhibit Exhibit I, # 2 Exhibit Exhibit J)(Fogel, Jeffrey) (Entered: 06/23/2014)
53 EXHIBIT K by Prison Legal News.. (Fogel, Jeffrey) (Entered: 06/23/2014)
54 EXHIBIT L by Prison Legal News.. (Fogel, Jeffrey) (Entered: 06/23/2014)
55 EXHIBIT M by Prison Legal News.. (Fogel, Jeffrey) (Entered: 06/23/2014)
56 AFFIDAVIT in Opposition re 49 MOTION for Summary Judgment Defendants' Motion for Summary Judgment filed by Prison Legal News. (Fogel, Jeffrey) (Entered: 06/23/2014)
57 EXHIBIT M(2) by Prison Legal News.. (Fogel, Jeffrey) (Entered: 06/24/2014)
58 REPLY to Response to Motion re 49 MOTION for Summary Judgment Defendants' Motion for Summary Judgment filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Rosen, Jeff) (Entered: 06/27/2014)
59 First MOTION to Withdraw as Attorney by Prison Legal News. (Fogel, Jeffrey) (Entered: 08/11/2014)
MOTION REFERRED to Magistrate Judge Tommy E. Miller. 59 First MOTION to Withdraw as Attorney (ldab, ) (Entered: 08/12/2014)
60 ORDER granting 59 Motion to Withdraw as Attorney. Attorney Robert Erle Jack terminated. Signed by Magistrate Judge Tommy E. Miller on 9/10/2014. (Miller, Tommy) (Entered: 09/10/2014)
61 First MOTION to Continue Trial date for 90 days by Prison Legal News. (Attachments: # 1 Affidavit Declaration of Jeffrey E. Fogel)(Fogel, Jeffrey) (Entered: 10/29/2014)
62 Consent MOTION to Continue Trial by Prison Legal News. (Rosenfield, Steven) (Entered: 11/03/2014)
63 ORDER granting 62 Plaintiff's Renewed Consent Motion for Continuance of Trial. Trial is continued to April 14, 2015. Signed by District Judge Mark S. Davis on 11/03/2014. (Davis, Mark) (Entered: 11/03/2014)
64 ORDER finding as moot 61 Motion to Continue Trial based on the Court's ruling on ECF No. 62. Signed by District Judge Mark S. Davis on 11/03/2014. (Davis, Mark) (Entered: 11/03/2014)
Final Pretrial Conference reset for 5/1/2015 at 10:00 AM in Norfolk. Jury Trial reset for 5/20/2015 at 10:00 AM in Norfolk Courtroom 5 before District Judge Mark S. Davis. (vwar) (Entered: 11/05/2014)
65 OPINION AND ORDER re 35 MOTION for Summary Judgment on Plaintiff's First Amendment claims filed by Prison Legal News, 49 MOTION for Summary Judgment Defendants' Motion for Summary Judgment filed by V Ogden, Matthew Wilson, M Brittingham, E Rodriguez, A Torno, Darlene Moore, Ken Stolle, G Havens, V Harris. The Court TAKES UNDER ADVISEMENT the parties' cross motions for summary judgment as to the constitutionality of Defendants' "sexually explicit materials" policy in order to permit additional briefing on such subject. As to the cross motions for summary judgment onDefendants' "ordering form policy," Defendants' motion is GRANTED and Plaintiff's motion is DENIED. The Court GRANTS Defendants' motion for summary judgment to the extent Defendants invoke the doctrine of qualified immunity as to both the ordering form ban and sexually explicit materials ban. All other arguments in support of summary judgment contained in the cross

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 8 of 11

12/30/2014 01/05/2015
01/12/2015 01/13/2015 01/16/2015 01/21/2015 01/23/2015 02/03/2015
02/06/2015 02/06/2015 02/23/2015 02/25/2015 02/25/2015
03/02/2015

motions are DENIED. Counsel for both parties are INSTRUCTED to meet and confer in person within 21 days of the issuance of this Opinion and Order to discuss whether the resumption of the settlement conference previously conducted in this case would prove fruitful. The parties shall file with the Court, jointly or separately, a "status update" no later than Wednesday, January 7, 2015, indicating their position on whether a briefing schedule should be set by the Court for supplemental summary judgment briefs or whether the parties would prefer to resume settlement discussions with a Magistrate Judge prior to being ordered to submit further briefing on the issue of summary judgment. Copies distributed as directed on 12/9/2014. Signed by District Judge Mark S. Davis on 12/8/2014 and filed on 12/8/2014. (bgra) (Entered: 12/09/2014)
66 NOTICE by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson re 65 Order (Attachments: # 1 Exhibit A)(Rosen, Jeff) (Entered: 12/30/2014)
67 ORDER: It is ORDERED that the time for counsel to meet and confer be extended to January 8, 2015; It is further ORDERED that parties shall file with the Court, jointly or separately, a "status update" no later than January 15, 2015, indicating their position on whether a briefing schedule should be set by the Court for supplemental summary judgment briefs or whether the parties would prefer to resume settlement discussions with a Magistrate Judge prior to being ordered to submit further briefing on the issue of summary. Signed by District Judge Mark S. Davis on 1/5/2014. (bgra) (Entered: 01/06/2015)
68 Letter Status update. (Rosen, Jeff) (Entered: 01/12/2015)
69 Letter Status update. (Rosenfield, Steven) (Entered: 01/13/2015)
Settlement Conference set for 1/23/2015 at 02:00 PM in Norfolk Judges Chamber before Magistrate Judge Douglas E. Miller. (lwoo) (Entered: 01/16/2015)
70 Settlement Conference Order. Signed by Magistrate Judge Douglas E. Miller on 1/16/2015. (bgra) (Entered: 01/21/2015)
Minute Entry for proceedings held before Magistrate Judge Douglas E. Miller:Continuation of Settlement Conference held on 1/23/2015. (cdod, ) (Entered: 01/23/2015)
71 ORDER: Plaintiff and Defendants are instructed to file a supplemental summary judgment brief on this issue no later than February 25, 2015. Reply briefs, if any, shall be filed no later than March 4, 2015. (See order for Specifics). Signed by District Judge Mark S. Davis on 2/3/2015. (bgra) (Entered: 02/04/2015)
72 First MOTION Leave to file second partial summary judgment on due process claims by Prison Legal News. (Fogel, Jeffrey) (Entered: 02/06/2015)
73 Brief in Support to 72 First MOTION Leave to file second partial summary judgment on due process claims filed by Prison Legal News. (Fogel, Jeffrey) (Entered: 02/06/2015)
74 ORDER granting 72 Plaintiffs' Motion for Leave to File Second Summary Judgment Motion. Signed by District Judge Mark S. Davis on 02/23/2015. (Davis, Mark) (Entered: 02/23/2015)
75 Brief in Support to 36 Memorandum in Support, Supplemental filed by Prison Legal News. (Attachments: # 1 Exhibit Exhibit A)(Fogel, Jeffrey) (Entered: 02/25/2015)
76 Brief in Support to 48 Memorandum in Opposition,, Defendants' Supplemental Brief Re Sexuallty Explicit Materials Policy filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Rosen, Jeff) (Entered: 02/25/2015)
77 Second MOTION for Summary Judgment on due process claims by Prison Legal News. (Fogel, Jeffrey) (Entered: 03/02/2015)

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 9 of 11

03/02/2015 03/04/2015 03/04/2015 03/12/2015 03/16/2015 03/17/2015 03/19/2015 03/31/2015
04/09/2015 04/30/2015 05/05/2015

78 Memorandum in Support re 77 Second MOTION for Summary Judgment on due process claims filed by Prison Legal News. (Fogel, Jeffrey) (Entered: 03/02/2015)
79 Reply to 75 Brief in Support Defendants' Reply to Plaintiff's Supplemental Memorandum of Law in Support of its Motion for Partial Summary Judgment filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 1−1, # 3 Exhibit 2)(Rosen, Jeff) (Entered: 03/04/2015)
80 Reply to 76 Brief in Support, and opposition to defendants' supplemental brief filed by Prison Legal News. (Fogel, Jeffrey) (Entered: 03/04/2015)
81 Opposition to 77 Second MOTION for Summary Judgment on due process claims filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 9−1)(Rosen, Jeff) (Entered: 03/12/2015)
Telephone Conference set for 3/17/2015 at 11:30 AM in Norfolk Judges Chamber before District Judge Mark S. Davis. (vwar) (Entered: 03/16/2015)
82 Telephone Conference held on 3/17/2015 before District Judge Mark S. Davis. Present on the Telephone: Jeff Fogel, on behalf of the Plaintiff; Jeff Rosen, on behalf of the defendants. Paul McManus, OCR. Comments of Court and counsel.Counsel is directed to send an email to the Courts Clerk by 3/31/15 re: status of issues discussed. (vwar) (Entered: 03/17/2015)
83 REPLY to Response to Motion re 77 Second MOTION for Summary Judgment on due process claims filed by Prison Legal News. (Fogel, Jeffrey) (Entered: 03/19/2015)
84 OPINION AND ORDER granting 35 Motion for Summary Judgment; denying 49 Motion for Summary Judgment; granting 77 Motion for Summary Judgment. PLN's original motion for summary judgment is GRANTED as to the reserved issue regarding the constitutionality of Defendants ' former policy on sexually explicit materials. ECF No. 35. Such former policy is declared unconstitutional as it is overbroad pursuant to the Turner analysis discussed in detail herein. The Sheriff and other named Defendants are hereby permanently ENJOINED from reverting to such policy. Defendants' cross motion for summary judgment on this issue is DENIED. ECF No. 49. PLN's second motion for summary judgment is GRANTED, and it is hereby declared that Defendants' former publication review policies were unconstitutional as they failed to provide adequate notice and an opportunity to be heard as to decisions made by the VBSO to censor a unique monthly publication sent to inmate subscribers. ECF No. 77. The Court likewise grants PLN' s request for injunctive relief, and the Sheriff and other named Defendants are hereby permanently ENJOINED from reverting to the prior policies that failed to provide publishers adequate notice and an opportunity to be heard "when their publications [we]re disapproved for receipt by inmate subscribers." Montcalm Publ' g, 80 F.3d at 106. The parties are hereby afforded fourteen (14) additional days to confer on the issue of monetary damages, and the Court Strongly encourages the parties to meet in person if they are having difficulty reaching an agreement. If the parties have not reached agreement by the end of the fourteen (14) day period, they shall, separately or collectively, file a "Status Update" on the record including comments on whether a continuance of the settlement conference has been scheduled and, if not, whether PLN wish to proceed to a jury trial on the issue of nominal and/or punitive damages. Copies provided as directed.Signed by District Judge Mark S. Davis on 3/31/2015. (bgra) (Entered: 03/31/2015)
85 Letter Joint status update from plaintiff and defendants. (Rosen, Jeff) (Entered: 04/09/2015)
86 SETTLEMENT AGREEMENT by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Rosen, Jeff) # 3 Proposed Order) (Entered: 04/30/2015)
87 JOINT CONSENT ORDER: The Court adopts the Agreement submitted by the parties as part of this Order and schedules the time by which the parties have to address the fee petition as follows: the plaintiff shall have until May 20, 2015 to file their petition for costs and fees, the defendant shall have until June 10, 2015 to submit a response,

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 10 of 11

05/20/2015 05/20/2015 05/20/2015 05/20/2015 05/20/2015 05/20/2015 05/20/2015 05/20/2015 05/20/2015 05/20/2015 05/20/2015 05/20/2015 06/09/2015
06/17/2015 06/17/2015 06/17/2015
06/30/2015

and the plaintiff shall have untilJune 17, 2015 to submit any reply. Signed by District Judge Mark S. Davis on 5/4/2015. (Attachments: # 1 Exhibit A)(bgra) (Entered: 05/05/2015)
88 MOTION for Attorney Fees & Costs by Prison Legal News. (Rosenfield, Steven) (Entered: 05/20/2015)
89 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Attachments: # 1 Exhibit Time, # 2 Exhibit Invoice)(Rosenfield, Steven) (Entered: 05/20/2015)
90 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Attachments: # 1 Exhibit Time)(Rosenfield, Steven) (Entered: 05/20/2015)
91 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Attachments: # 1 Exhibit Resume, # 2 Exhibit Time, # 3 Exhibit Expenses)(Rosenfield, Steven) (Entered: 05/20/2015)
92 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Attachments: # 1 Exhibit Time, # 2 Exhibit Resume)(Rosenfield, Steven) (Entered: 05/20/2015)
93 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Attachments: # 1 Exhibit Time, # 2 Errata Resume)(Rosenfield, Steven) (Entered: 05/20/2015)
94 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Attachments: # 1 Exhibit Time, # 2 Exhibit Resume)(Rosenfield, Steven) (Entered: 05/20/2015)
95 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Attachments: # 1 Exhibit Time, # 2 Exhibit Resume)(Rosenfield, Steven) (Entered: 05/20/2015)
96 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Rosenfield, Steven) (Entered: 05/20/2015)
97 Declaration re 88 MOTION for Attorney Fees & Costs by Prison Legal News. (Rosenfield, Steven) (Entered: 05/20/2015)
98 Memorandum in Support re 88 MOTION for Attorney Fees & Costs filed by Prison Legal News. (Rosenfield, Steven) (Entered: 05/20/2015)
99 EXHIBIT 3.Supplement to Weber Decl. by Prison Legal News.. (Rosenfield, Steven) (Entered: 05/20/2015)
100 Opposition to 88 MOTION for Attorney Fees & Costs filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4)(Rosen, Jeff) (Entered: 06/09/2015)
101 MOTION for Extension of Time to File Response/Reply as to 87 Order,, by Prison Legal News. (Attachments: # 1 Proposed Order)(Rosenfield, Steven) (Entered: 06/17/2015)
MOTIONS REFERRED to Magistrate Judge: Tommy E. Miller. 101 MOTION for Extension of Time to File Response/Reply as to 87 Order,, (bgr ) (Entered: 06/17/2015)
102 ORDER granting 101 Motion for Extension of Time to File Response/Reply. TheCourt hereby GRANTS Plaintiffs motion and sets the deadline for July 1, 2015. re 88 MOTION for Attorney Fees & Costs filed by M Brittingham, V Harris, G Havens, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson by which it may file a Reply. Signed by Magistrate Judge Tommy E. Miller on 6/17/2015. (bgra) (Entered: 06/17/2015)
103 REPLY to Response to Motion re 88 MOTION for Attorney Fees & Costs filed by Prison Legal News. (Rosenfield, Steven) (Entered: 06/30/2015)

Case: 2:13-cv-424 As of: 10/21/2018 10:52 PM EDT 11 of 11

06/30/2015 06/30/2015 09/08/2015
10/05/2015 10/07/2015 10/08/2015 03/06/2017 03/06/2017 03/28/2017 04/03/2017 04/13/2017

104 AFFIDAVIT in Support re 88 MOTION for Attorney Fees & Costs filed by Prison Legal News. (Attachments: # 1 Exhibit Time log)(Rosenfield, Steven) (Entered: 06/30/2015)
105 AFFIDAVIT in Support re 88 MOTION for Attorney Fees & Costs filed by Prison Legal News. (Attachments: # 1 Exhibit Time log)(Rosenfield, Steven) (Entered: 06/30/2015)
106 OPINION AND ORDER: granting 88 Motion for Attorney Fees. After making a downward adjustment to both the total hours and the hourly rate requested by Plaintiff, the Court hereby AWARDS attorney's fees to Plaintiff in the amount of $85,189. Such total figure represents a fee of $60,214 to Plaintiff's outside counsel and a fee of $24,975 to Plaintiff's in−house counsel. As to litigation expenses, the Court AWARDS $2,683 to Plaintiff's outside counsel and $6,048.10 to Plaintiff's in house counsel. Copies distributed as directed. Signed by District Judge Mark S. Davis on 9/8/2015. (bgra) (Entered: 09/09/2015)
107 NOTICE OF APPEAL by Prison Legal News. Filing fee $ 505, receipt number 0422−4666509. (Fogel, Jeffrey) (Entered: 10/05/2015)
Transmission of Notice of Appeal to US Court of Appeals re 107 Notice of Appeal (All case opening forms, plus the transcript guidelines, may be obtained from the Fourth Circuit's website at www.ca4.uscourts.gov) (bgra) (Entered: 10/07/2015)
108 USCA Case Number 15−2197 4CCA Case Manager Barbara H. Rowe for 107 Notice of Appeal filed by Prison Legal News. (15−2197) (bgra) (Entered: 10/19/2015)
109 Unpublished Opinion of USCA (Copy) : AFFIRMED re 107 Notice of Appeal attached copy of judgment will not take effect until issuance of the mandate. (15−2197) (bgra) (Entered: 03/06/2017)
110 USCA JUDGMENT: In accordance with the decision of this court, the order of the district court is affirmed. This judgment shall take effect upon issuance of this court's mandate in accordance with Fed. R. App. P. 41. re 107 Notice of Appeal filed by Prison Legal News. (15−2197) (bgra) (Entered: 03/06/2017)
111 USCA Mandate re 107 Notice of Appeal: The judgment of this court, entered March 6, 2017, takes effect today. This constitutes the formal mandate of this court issued pursuant to Rule 41(a) of the Federal Rules of Appellate Procedure. (15−2197) (bgra) (Entered: 03/28/2017)
112 NOTICE by M Brittingham, V Harris, G Havens, John Does 1−10, Darlene Moore, V Ogden, E Rodriguez, Ken Stolle, A Torno, Matthew Wilson (Rosen, Jeff) (Entered: 04/03/2017)
113 SATISFACTION OF JUDGMENT Notice by Prison Legal News. (Fogel, Jeffrey) (Entered: 04/13/2017)