CLOSED,EXH
U.S. District Court Western District of Virginia (Abingdon) CIVIL DOCKET FOR CASE #: 1:18-cv-00013-JPJ-PMS

Human Rights Defense Center v. Southwest Virginia Regional Jail Authority et al Assigned to: Judge James P. Jones Referred to: Magistrate Judge Pamela Meade Sargent Cause: 42:1983 Civil Rights Act

Date Filed: 03/28/2018 Date Terminated: 03/25/2020 Jury Demand: Plaintiff Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Plaintiff

Human Rights Defense Center

represented by Bruce E. H. Johnson Davis Wright Tremaine LLP 920 Fifth Avenue, Suite 3300 Seattle, WA 98104-1610 206-757-8069 Fax: 206-757-7069 Email: brucejohnson@dwt.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Chelsea Teresa Kelly Williams & Connolly LLP 725 Twelfth Street, NW Washington, DC 20005 202-434-5297 Fax: 202-434-5029 Email: ckelly@wc.com TERMINATED: 11/19/2018 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

Daniel Marshall Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 561-360-2523 Email: dmarshall@humanrightsdefensecenter.org

LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Masimba Mutamba Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 561-360-2523 Email: mmutamba@pbcgov.org TERMINATED: 01/31/2020 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sabarish P. Neelakanta Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 561-360-2523 Fax: 866-735-7136 Email: sneelakanta@humanrightsdefensecenter.org TERMINATED: 09/24/2019 LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED
Sean Michael Douglass Williams & Connolly LLP 725 Twelfth Street, NW Washington, DC 20005 202-434-5471 Fax: 202-434-5029 Email: sdouglass@wc.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Thomas Stephen Chapman Williams & Connolly LLP 725 Twelfth Street, NW Washington, DC 20005 202-434-5057 Fax: 202-434-5029 Email: tchapman@wc.com LEAD ATTORNEY

PRO HAC VICE ATTORNEY TO BE NOTICED
Thomas G. Hentoff Williams & Connolly LLP 725 Twelfth Street, NW Washington, DC 20005 202-434-5804 Fax: 202-434-5029 Email: thentoff@wc.com LEAD ATTORNEY PRO HAC VICE ATTORNEY TO BE NOTICED

V.
Defendant
Southwest Virginia Regional Jail Authority

represented by Katherine Cabell Londos Frith Anderson & Peake PC 29 Franklin Road, SW Roanoke, VA 24011 540-725-3367 Fax: 540-772-9167 Email: klondos@faplawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Henry Schnetzler Frith Anderson & Peake PC 29 Franklin Road, SW Roanoke, VA 24011 540-725-3371 Fax: 540-772-9167 Email: nschnetzler@faplawfirm.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant

Stephen Clear Superintendent, in his individual and official capacities

represented by Katherine Cabell Londos (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Nathan Henry Schnetzler (See above for address)

Defendant
Does 1-10 in their individual and official capacities TERMINATED: 04/26/2019

LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Nathan Henry Schnetzler (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed # 03/28/2018
1
03/28/2018 2 03/29/2018 3
03/29/2018 4
03/29/2018 5
03/29/2018 6

Docket Text
COMPLAINT against Stephen Clear, Does 1-10, Southwest Virginia Regional Jail Authority (Filing & Administrative fee $ 400, receipt number 0423-2865645.), filed by Human Rights Defense Center. (Attachments: # 1 Civil Cover Sheet, # 2 Exhibit A)(ab) (Entered: 03/29/2018)
Negative Corporate Disclosure Statement by Human Rights Defense Center (ab) (Entered: 03/29/2018)
Electronic Summons Issued as to Stephen Clear, Southwest Virginia Regional Jail Authority NOTICE TO COUNSEL: Please print copies of the electronically issued summons for each defendant as necessary to effectuate service under Fed. R. Civ. P. 4. (Attachments: # 1 Summons Issued)(ab)
MOTION for Preliminary Injunction by Human Rights Defense Center. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean) Modified on 3/29/2018 to remove referral text; Motion not referred (lml).
Brief / Memorandum in Support re 4 MOTION for Preliminary Injunction . filed by Human Rights Defense Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D)(Douglass, Sean)
AFFIDAVIT in Support re 4 MOTION for Preliminary Injunction . filed by Human Rights Defense Center. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H)(Douglass, Sean)

04/11/2018 7 04/11/2018 8 04/11/2018 9 04/11/2018 10 04/11/2018 11 04/11/2018 12 04/11/2018 13 04/11/2018 14 04/12/2018 15 04/12/2018 16

AFFIDAVIT of Service for Complaint, Summons, and Preliminary Injunction Motion and Supporting Documents served on Southwest Virginia Regional Jail Authority on April 5, 2018, filed by Human Rights Defense Center.(Douglass, Sean)
AFFIDAVIT of Service for Complaint, Summons, and Preliminary Injunction Motion and Supporting Documents served on Stephen Clear on April 5, 2018, filed by Human Rights Defense Center.(Douglass, Sean)
MOTION for Chelsea T. Kelly to Appear Pro Hac Vice. by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
MOTION for Thomas G. Hentoff to Appear Pro Hac Vice. by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
MOTION for Sabarish P. Neelakanta to Appear Pro Hac Vice. by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
MOTION for Daniel Marshall to Appear Pro Hac Vice. by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
MOTION for Masimba Mutamba to Appear Pro Hac Vice. by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
MOTION for Bruce E. H. Johnson to Appear Pro Hac Vice. by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
ORDER granting 14 MOTION for Bruce E. H. Johnson to Appear Pro Hac Vice. Signed by Judge James P. Jones on 4/12/2018. (lml)
ORDER granting 11 MOTION for Sabarish P. Neelakanta to Appear Pro Hac Vice. Signed by Judge James P. Jones on 4/12/2018. (lml)

04/12/2018 17 04/12/2018 18 04/12/2018 19 04/12/2018 20 04/19/2018 21 04/19/2018 22 04/19/2018 23
04/19/2018 24
05/03/2018 25
05/29/2018 26
05/29/2018 27

ORDER granting 10 MOTION for Thomas G. Hentoff to Appear Pro Hac Vice. Signed by Judge James P. Jones on 4/12/2018. (lml)
ORDER granting 9 MOTION for Chelsea T. Kelly to Appear Pro Hac Vice. Signed by Judge James P. Jones on 4/12/2018. (lml)
ORDER granting 12 MOTION for Daniel Marshall to Appear Pro Hac Vice. Signed by Judge James P. Jones on 4/12/2018. (lml)
ORDER granting 13 MOTION for Masimba Mutamba to Appear Pro Hac Vice. Signed by Judge James P. Jones on 4/12/2018. (lml)
NOTICE of Appearance by Nathan Henry Schnetzler on behalf of Stephen Clear, Southwest Virginia Regional Jail Authority (Schnetzler, Nathan)
NOTICE of Appearance by Katherine Cabell Londos on behalf of Stephen Clear, Southwest Virginia Regional Jail Authority (Londos, Katherine)
Consent MOTION for Extension of Time to File Answer re 4
MOTION for Preliminary Injunction , 1 Complaint, by Stephen Clear, Southwest Virginia Regional Jail Authority. (Attachments: # 1 Text of Proposed Order)(Schnetzler, Nathan) Modified on 4/19/2018 to remove referral text; Motion not referred (lml).
ORDER granting 23 Motion for Extension of Time to Respond Stephen Clear answer due 5/29/2018; Does 1-10 answer due 5/29/2018. Signed by Judge James P. Jones on 4/19/2918. (lml)
NOTICE of Hearing on Motion 4 MOTION for Preliminary Injunction : (CR) (No Interpreter requested) : Motion Hearing set for 6/25/2018 at 1:30 p.m. in Abingdon before Judge James P. Jones. (flc)
RESPONSE in Opposition re 4 MOTION for Preliminary Injunction . filed by Stephen Clear, Southwest Virginia Regional Jail Authority. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Schnetzler, Nathan)
ANSWER to Complaint 1 by Stephen Clear, Southwest Virginia Regional Jail Authority.(Schnetzler, Nathan)

05/31/2018 28 06/01/2018 29 06/15/2018 30
06/25/2018 31
06/25/2018 32 06/26/2018 33
06/29/2018 34 06/29/2018 35

MOTION for Extension of Time to File Response/Reply as to 4
MOTION for Preliminary Injunction by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
ORDER granting 28 Motion for Extension of Time to File Response/Reply (Responses due by 6/15/2018). Signed by Judge James P. Jones on 6/1/18. (ejs)
REPLY to Response to Motion re 4 MOTION for Preliminary Injunction . filed by Human Rights Defense Center. (Attachments: # 1 Exhibit A- Declaration of John L. Clark, # 2 Exhibit BSupplemental Declaration of Paul Wright, # 3 Exhibit C- U.S. Brief in PLN v. Berkeley County, # 4 Exhibit D- Montcalm Remand Opinion and Order)(Douglass, Sean)
Minute Entry for proceedings held before Judge James P. Jones:
Motion Hearing held on 6/25/2018 re 4 MOTION for Preliminary Injunction filed by Human Rights Defense Center. (Court Reporter: Tracey Aurelio, OCR) (lml) (Entered: 06/26/2018)
Exhibit List - Motion Hearing held 6/25/2018 (lml) (Entered: 06/26/2018)
TRANSCRIPT REQUEST (14 calendar days Service) by Human Rights Defense Center for Hearing on Motion for Preliminary Injunction held on 6/25/2018 reported by Court Reporter Tracey Aurelio before Judge James P. Jones. Transcript Due Deadline will be set when Financial Arrangements are made. (Kelly, Chelsea) (Main Document 33 replaced on 6/27/2018) (sfc). Modified on 6/27/2018 to replace with flattened version of document. Filing attorney being notified. (sfc).
Financial arrangements made (14 calendar days Service) re 33 Transcript Request,, Transcript due by 7/13/2018. (ta)
TRANSCRIPT of Proceedings: Preliminary Injunction Hearing held on 6/25/2018 before Judge James P. Jones. Court Reporter/Transcriber Tracey Aurelio, Telephone number 618-6969780. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely

07/03/2018 36
07/03/2018 37
07/03/2018 38 07/05/2018 39 07/05/2018 40 07/12/2018 41
07/18/2018 42 07/18/2018 43

electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER. Redaction Request due 7/20/2018. Redacted Transcript Deadline set for 7/30/2018. Release of Transcript Restriction set for 9/27/2018. (ta) (Main Document 35 replaced on 6/29/2018 with final corrected version) (sfc). Modified on 6/29/2018 (sfc).
TRANSCRIPT REQUEST (COPY *Only applies if original transcript has been ordered Service) by Stephen Clear, Southwest Virginia Regional Jail Authority for Hearing on Motion for Preliminary Injunction held on 6/25/2018 reported by Court Reporter T. Aurelio before Judge Judge Jones. Transcript Due Deadline will be set when Financial Arrangements are made. (Schnetzler, Nathan)
OPINION AND ORDER granting 4 Motion for Preliminary Injunction. Signed by Judge James P. Jones on 7/3/2018. (lml)
PRELIMINARY INJUNCTION. Signed by Judge James P. Jones on 7/3/2018. (lml) VACATED by 130 PERMANENT INJUCTION dated 3/25/2020 (lml).
Financial arrangements made (14 calendar days COPY Service) re 36 Transcript Request. Transcript due by 7/19/2018. (ca)
Transcript Copy Delivered re 36 Transcript Request. (ca)
NOTICE TO COUNSEL REGARDING SCHEDULING CONFERENCE: (N) Scheduling Conference set for 7/18/2018 02:00 PM by telephone conference call before Magistrate Judge Pamela Meade Sargent. (Bordwine, Robin)
REPORT of Rule 26(f) Planning Meeting (Douglass, Sean)
Minute Entry for proceedings held before Magistrate Judge Pamela Meade Sargent: Scheduling Conference held by telephone conference call with Counsel Kelly, Douglas, Hentoff and Schnetzler on 7/18/2018. Jury trial set before J. Jones in AB on 7/22-26/19. Scheduling Order forthcoming. (PMS)

07/18/2018 44
07/27/2018 45 07/27/2018 46 08/06/2018 47 11/16/2018 48 11/19/2018 49 02/07/2019 50 02/08/2019 51
02/15/2019 52 02/18/2019 53

SCHEDULING ORDER: Jury Trial set for 7/22/2019 thru 7/26/2019 09:00 AM in Abingdon before Judge James P. Jones. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs.. Signed by Magistrate Judge Pamela Meade Sargent on 7/18/18. (ejs)
Consent MOTION to Release Plaintiff's Exhibit 8 by Stephen Clear, Southwest Virginia Regional Jail Authority.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Schnetzler, Nathan)
ORDER granting 45 Motion to Release Exhibit 8 entered into evidence on 6/25/2018 during the preliminary injunction (See ECF No. 32 . Signed by Judge James P. Jones on 7/27/2018. (lml)
Return of Plaintiff's Exhibit #8 pursuant to 46 Order to release exhibit (lml) (Entered: 08/07/2018)
MOTION to Withdraw as Attorney Chelsea T. Kelly by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
ORDER granting 48 Motion to Withdraw as Attorney. Attorney Chelsea Teresa Kelly terminated. Signed by Judge James P. Jones on 11/19/2018. (ab)
MOTION to Amend/Correct 1 Complaint, by Human Rights Defense Center.Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Exhibit A, # 2 Exhibit B)(Douglass, Sean)
MINUTE Order to Respond re 50 MOTION to Amend/Correct 1
Complaint, Defendant shall file any opposition to the Motion by 2/15/2019. Signed by Magistrate Judge Pamela Meade Sargent on 2/8/19. (PMS)
NOTICE by Stephen Clear, Southwest Virginia Regional Jail Authority re 51 , 50 (Schnetzler, Nathan)
MINUTE ORDER granting 50 Motion to Amend/Correct. The Amended Complaint attached to the Motion shall be filed as of the entry of this Minute Otder. Signed by Magistrate Judge Pamela Meade Sargent on 2/18/19. (PMS)

02/18/2019 54 03/04/2019 55 04/12/2019 56 04/12/2019 57
04/12/2019 58 04/12/2019 59

AMENDED COMPLAINT against Southwest Virginia Regional Jail AuthorityStephen Clear, Does 1-10 filed by Human Rights Defense Center. (Attachments: # 1 Affidavit, # 2 Civil Cover Sheet)(lml) (Entered: 02/19/2019)
ANSWER to 54 Amended Complaint by Stephen Clear, Southwest Virginia Regional Jail Authority.(Schnetzler, Nathan)
MOTION for Summary Judgment and Permanent Injunction MOTION for Permanent Injunction by Human Rights Defense Center. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean). Added document part Motion for Permanent Injunction on 3/25/2020 (lml).
Brief / Memorandum in Support re 56 MOTION for Summary Judgment and Permanent Injunction . filed by Human Rights Defense Center. (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 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45)(Douglass, Sean)
MOTION for Summary Judgment by Stephen Clear, Southwest Virginia Regional Jail Authority. (Schnetzler, Nathan)
Brief / Memorandum in Support re 58 MOTION for Summary Judgment . filed by Stephen Clear, Southwest Virginia Regional Jail Authority. (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 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37)(Schnetzler, Nathan)

04/12/2019 60 04/12/2019 61 04/12/2019 62
04/12/2019 63 04/12/2019 64 04/12/2019 65 04/12/2019 66 04/22/2019 67 04/24/2019 68
04/26/2019 69

MOTION Leave to File Brief in Excess of 25 Pages by Stephen Clear, Southwest Virginia Regional Jail Authority. Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Schnetzler, Nathan)
MOTION to Exclude Plaintiff's Expert, John L. Clark by Stephen Clear, Southwest Virginia Regional Jail Authority. (Schnetzler, Nathan) Modified on 4/15/2019 - removed referral text (ejs).
Brief / Memorandum in Support re 61 MOTION to Exclude Plaintiff's Expert, John L. Clark . filed by Stephen Clear, Southwest Virginia Regional Jail Authority. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L)(Schnetzler, Nathan)
MOTION to Dismiss for Lack of Jurisdiction by Southwest Virginia Regional Jail Authority. (Schnetzler, Nathan)
Brief / Memorandum in Support re 63 MOTION to Dismiss for Lack of Jurisdiction . filed by Southwest Virginia Regional Jail Authority. (Schnetzler, Nathan)
MOTION for Judgment on the Pleadings by Does 1-10. (Schnetzler, Nathan)
Brief / Memorandum in Support re 65 MOTION for Judgment on the Pleadings . filed by Does 1-10. (Schnetzler, Nathan)
Minute Order. The parties are directed to provide the undersigned at his chambers in Abingdon with courtesy copies of all briefs and exhibits thereto. Signed by Judge James P. Jones on 4/22/2019. (JPJ)
NOTICE of Hearing on Motion 61 MOTION to Exclude Plaintiff's Expert, John L. Clark, 58 MOTION for Summary Judgment , 56 MOTION for Summary Judgment and Permanent Injunction, 65 MOTION for Judgment on the Pleadings , 63 MOTION to Dismiss for Lack of Jurisdiction : (CR) (No Interpreter requested) : Motion Hearing set for 5/16/2019 at 2:00 p.m. in Abingdon before Judge James P. Jones. (flc)
RESPONSE in Opposition re 56 MOTION for Summary Judgment and Permanent Injunction . filed by Stephen Clear, Southwest Virginia Regional Jail Authority. (Attachments:

04/26/2019 70 04/26/2019 71 04/26/2019 72 04/26/2019 73 04/26/2019 74
04/26/2019 75 04/29/2019 76 04/30/2019 77 05/03/2019 78 05/03/2019 79

# 1 Exhibit 38, # 2 Exhibit 39, # 3 Exhibit 40, # 4 Exhibit 41, # 5 Exhibit 42, # 6 Exhibit 43, # 7 Exhibit 44, # 8 Exhibit 45, # 9 Exhibit 46, # 10 Exhibit 47)(Schnetzler, Nathan)
NOTICE of Voluntary Dismissal by Human Rights Defense Center (Douglass, Sean)
Response re 65 MOTION for Judgment on the Pleadings Regarding Defendants Does 1-10. filed by Human Rights Defense Center. (Douglass, Sean)
Brief / Memorandum in Opposition re 63 MOTION to Dismiss for Lack of Jurisdiction . filed by Human Rights Defense Center. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Douglass, Sean)
Brief / Memorandum in Opposition re 61 MOTION to Exclude Plaintiff's Expert, John L. Clark . filed by Human Rights Defense Center. (Attachments: # 1 Exhibit 1)(Douglass, Sean)
Brief / Memorandum in Opposition re 58 MOTION for Summary Judgment . filed by Human Rights Defense Center. (Attachments: # 1 Exhibit 46, # 2 Exhibit 47, # 3 Exhibit 48, # 4 Exhibit 49, # 5 Exhibit 50, # 6 Exhibit 51, # 7 Exhibit 52, # 8 Exhibit 53, # 9 Exhibit 54)(Douglass, Sean)
MOTION for Thomas S. Chapman to Appear Pro Hac Vice. Filing fee $ 100, receipt number 0423-3131058. by Human Rights Defense Center. Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
ORDER granting 75 MOTION to Appear Pro Hac Vice Attorney Thomas S. Chapman for Human Rights Defense Center added. Signed by Magistrate Judge Pamela Meade Sargent on 04/29/2019. (ar) (Entered: 04/30/2019)
NOTICE of Change of Address by Bruce E. H. Johnson (Johnson, Bruce)
REPLY to Response to Motion re 56 MOTION for Summary Judgment and Permanent Injunction . filed by Human Rights Defense Center. (Douglass, Sean)
REPLY to Response to Motion re 58 MOTION for Summary Judgment . filed by Stephen Clear, Southwest Virginia Regional Jail Authority. (Attachments: # 1 Exhibit 48, # 2 Exhibit 49)(Schnetzler, Nathan)

05/03/2019 80 05/15/2019 81 05/15/2019 82
05/15/2019 83 05/15/2019 84 05/15/2019 85 05/15/2019 86 05/16/2019 87
05/16/2019 88 05/17/2019 89 05/20/2019 90

REPLY to Response to Motion re 63 MOTION to Dismiss for Lack of Jurisdiction . filed by Southwest Virginia Regional Jail Authority. (Schnetzler, Nathan)
MINUTE ORDER granting 60 Motion to file brief in excess of 25 pages. Signed by Judge James P. Jones on 5/15/2019. (JPJ)
MINUTE ORDER denying 65 Motion for Judgment on the Pleadings as to Defendants "Does 1-10" on the ground that Plaintiff has given notice of voluntary dismissal of said defendants pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(i). Signed by Judge James P. Jones on 5/15/2019. (JPJ)
First MOTION in Limine by Stephen Clear, Southwest Virginia Regional Jail Authority. (Schnetzler, Nathan)
Second MOTION in Limine by Stephen Clear, Southwest Virginia Regional Jail Authority. (Schnetzler, Nathan)
MOTION in Limine by Human Rights Defense Center. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
Brief / Memorandum in Support re 85 MOTION in Limine . filed by Human Rights Defense Center. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Douglass, Sean)
Minute Entry for proceedings held before Judge James P. Jones: Motion Hearing held on 5/16/2019 re 58 MOTION for Summary Judgment filed by Stephen Clear, Southwest Virginia Regional Jail Authority, 56 MOTION for Summary Judgment and Permanent Injunction filed by Human Rights Defense Center, 63 MOTION to Dismiss for Lack of Jurisdiction filed by Southwest Virginia Regional Jail Authority. (Court Reporter: Donna Prather, OCR) (flc)
ORAL ORDER taking under advisement 56 Motion for Summary Judgment ; taking under advisement 58 Motion for Summary Judgment ; denying 63 Motion to Dismiss for Lack of Jurisdiction. Entered by Judge James P. Jones on 5/16/19. (flc)
NOTICE of Hearing: (CR) (No Interpreter requested) : Pretrial Conference set for 6/28/2019 at 1:00 p.m. in Abingdon before Judge James P. Jones. (flc)
PRETRIAL ORDER. Signed by Judge James P. Jones on 5/20/19. (flc)

05/29/2019 91 05/29/2019 92 05/29/2019 93 05/31/2019 94
05/31/2019 95 06/05/2019
96 06/05/2019 97 06/07/2019 98

RESPONSE in Opposition re 85 MOTION in Limine . filed by Stephen Clear, Southwest Virginia Regional Jail Authority. (Schnetzler, Nathan)
Brief / Memorandum in Opposition re 83 First MOTION in Limine . filed by Human Rights Defense Center. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3)(Douglass, Sean)
Brief / Memorandum in Opposition re 84 Second MOTION in Limine . filed by Human Rights Defense Center. (Douglass, Sean)
TRANSCRIPT REQUEST (Expedited-7 calendar days Service) by Human Rights Defense Center for Motion Hearing held on May 16, 2019 reported by Court Reporter Donna Prather before Judge Hon. James P. Jones. Transcript Due Deadline will be set when Financial Arrangements are made. (Chapman, Thomas)
Financial arrangements made (Original) (Expedited-7 calendar days Service) re 94 Transcript Request, Transcript due by 6/7/2019. (dp)
OPINION AND ORDER granting in part and denying in part 56 Motion for Summary Judgment ; granting in part and denying in part 58 Motion for Summary Judgment. Signed by Judge James P. Jones on 6/5/2019. (lml)
REPLY to Response to Motion re 85 MOTION in Limine . filed by Human Rights Defense Center. (Douglass, Sean)
TRANSCRIPT of Proceedings: Motion Hearing held on May 16, 2019 before Honorable Judge James P. Jones. Court Reporter Donna Prather, Telephone number 276-628-5116 donnap@vawd.uscourts.gov. NOTICE RE REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER unless a Redacted Transcript has been filed. Redaction Request due 6/28/2019. Redacted Transcript Deadline set for 7/8/2019. Release of Transcript Restriction set for 9/5/2019. (dp)

06/21/2019 99
06/21/2019 100
06/26/2019 101 06/26/2019 102 06/28/2019 103 07/01/2019 104
07/01/2019 105 07/01/2019 106 07/01/2019 107 07/01/2019 108 07/02/2019 109 07/09/2019 110

Consent MOTION for Extension of Time to File Jury Instructions and Verdict Form by Stephen Clear, Southwest Virginia Regional Jail Authority. Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Schnetzler, Nathan)
ORDER granting 99 Motion for Extension of Time to File Document; Amending 90 Pretrial Order such that the parties shall have through and including June 26, 2019 in which to submit their proposed jury instructions and proposed verdict form. Signed by Judge James P. Jones on 6/21/2019. (lml)
Proposed Jury Instructions by Stephen Clear, Southwest Virginia Regional Jail Authority.(Schnetzler, Nathan)
Proposed Jury Instructions by Human Rights Defense Center.(Douglass, Sean)
Minute Entry for proceedings held before Judge James P. Jones: Pretrial Conference held on 6/28/2019. (Court Reporter: Judy Webb, OCR) (lml)
TRANSCRIPT REQUEST (Expedited-7 calendar days Service) by Human Rights Defense Center for Pretrial Conference held on June 28, 2019 reported by Court Reporter Judy Webb before Judge James P. Jones. Transcript Due Deadline will be set when Financial Arrangements are made. (Chapman, Thomas)
Witness List by Stephen Clear, Southwest Virginia Regional Jail Authority.(Schnetzler, Nathan)
Exhibit List by Stephen Clear, Southwest Virginia Regional Jail Authority..(Schnetzler, Nathan)
Witness List by Human Rights Defense Center. (Attachments: # 1 Exhibit 1)(Douglass, Sean)
Exhibit List by Human Rights Defense Center.. (Attachments: # 1 Exhibit 1)(Douglass, Sean)
Financial arrangements made (Original) (Expedited-7 calendar days Service) re 104 Transcript Request, Transcript due by 7/9/2019. (jw) (Entered: 07/09/2019)
TRANSCRIPT of Proceedings: Motion Hearing held on 6/28/2019 before Judge James P. Jones. Court Reporter/Transcriber Judy Webb, Telephone number judyw@vawd.uscourts.gov/540-857-5100 x 5333. NOTICE RE

07/10/2019 111 07/12/2019 112
07/15/2019 113 09/23/2019 114 09/24/2019 115 11/18/2019 116 11/20/2019 117 11/21/2019 118

REDACTION OF TRANSCRIPTS:The parties have seven (7) calendar days to file with the Court a Notice of Intent to Request Redaction of this transcript. If no such Notice is filed, the transcript will be made remotely electronically available to the public without redaction after 90 calendar days. The policy is located on our website at www.vawd.uscourts.gov Transcript may be viewed at the court public terminal or purchased through Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER unless a Redacted Transcript has been filed. Redaction Request due 7/30/2019. Redacted Transcript Deadline set for 8/9/2019. Release of Transcript Restriction set for 10/7/2019. (jw)
NOTICE OF CANCELLATION of Jury Trial set for 7/22/19 and 7/23/19 at 9:00 a.m. in Abingdon before Judge James P. Jones (No Interpreter requested) (Cancel Court Reporter) (flc)
NOTICE of Hearing: (CR) (No Interpreter requested) : Jury Trial reset for 12/17/2019 and 12/18/2019 at 9:00 a.m. in Abingdon before Judge James P. Jones. Counsel must contact the Clerk's Office no later than five (5) business days before the scheduled trial date for your technology needs. (flc)
SUPPLEMENTAL PRETRIAL ORDER. Signed by Judge James P. Jones on 7/15/2019. (lml)
MOTION to Withdraw as Attorney by Human Rights Defense Center. Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Neelakanta, Sabarish)
ORDER granting 114 Motion to Withdraw as Attorney. Attorney Sabarish P. Neelakanta terminated. Signed by Magistrate Judge Pamela Meade Sargent on 9/24/2019. (lml)
STIPULATION re 113 Pretrial Order by Human Rights Defense Center (Attachments: # 1 Text of Proposed Order)(Douglass, Sean)
NOTICE of Hearing: (N) (No Interpreter requested) Status Conference via conference call set for 11/21/2019 03:00 PM in Abingdon before Judge James P. Jones. (lml)
Minute Entry for proceedings held before Judge James P. Jones: Status Conference via Conference Call held on 11/21/2019. Jury Trial canceled. Order Forthcoming. (flc)

11/21/2019 119 11/22/2019 120 12/20/2019 121 01/10/2020 122
01/30/2020 123
01/31/2020 124
03/16/2020 125 03/16/2020 126 03/16/2020 127 03/16/2020 128 03/25/2020
129 03/25/2020 130

NOTICE OF CANCELLATION of Jury Trial set for 12/17/19 and 12/18/19 at 9:00 a.m. in Abingdon before Judge James P. Jones (No Interpreter requested) (Cancel Court Reporter) (flc)
ORDER in re: cancellation of the Jury Trial set for 12/17/19 and 12/18/19 and all other issues set forth in this order. Signed by Judge James P. Jones on 11/22/19. (flc)
Brief/Memorandum in Opposition to Request for Permanent Injunction. filed by Stephen Clear, Southwest Virginia Regional Jail Authority. (Attachments: # 1 Exhibit A)(Schnetzler, Nathan)
Supplemental Brief / Memorandum in Support re 56 MOTION for Summary Judgment and Permanent Injunction and in Response to 121 Defendants' Supplemental Brief in Opposition to Request for Permanent Injunction. filed by Human Rights Defense Center. (Douglass, Sean)
MOTION to Withdraw as Attorney by Human Rights Defense Center. Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Exhibit Client's Written Consent for Withdrawal)(Mutamba, Masimba)
MINUTE ORDER granting 123 Motion to Withdraw as Attorney. Attorney Masimba Mutamba terminated as counsel for the plaintiff. Signed by Magistrate Judge Pamela Meade Sargent on 1/31/20. (PMS)
MINUTE ORDER finding as moot 85 Motion in Limine Signed by Judge James P. Jones on 3/16/2020. (JPJ)
MINUTE ORDER finding as moot 84 Motion in Limine Signed by Judge James P. Jones on 3/16/2020. (JPJ)
MINUTE ORDER finding as moot 83 Motion in Limine Signed by Judge James P. Jones on 3/16/2020. (JPJ)
MINUTE ORDER finding as moot Motion to Exclude 61 Signed by Judge James P. Jones on 3/16/2020. (JPJ)
OPINION AND ORDER granting 56 Motion for Permanent Injunction. Signed by Judge James P. Jones on 3/25/2020. (lml)
PERMANENT INJUNCTION, Order Vacating 38 Preliminary Injunction. Signed by Judge James P. Jones on 3/25/2020. (lml)

03/25/2020 131 03/30/2020 132 03/31/2020 133 04/22/2020 134 04/22/2020 135
04/24/2020 136
04/24/2020 137 05/20/2020 138 05/27/2020 139 08/24/2020
140

FINAL JUDGMENT in favor of Human Rights Defense Center against Southwest Virginia Regional Jail Authority, Stephen Clear. Signed by Judge James P. Jones on 3/25/2020. (lml)
Consent MOTION for Extension of Time to File Petition for Attorneys Fees and Expenses by Human Rights Defense Center. Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order Proposed Order)(Douglass, Sean)
MINUTE ORDER granting 132 Motion for Extension of Time to File Document. Deadline for filing petition for attorneys' fees extended to 4/22/20. Signed by Magistrate Judge Pamela Meade Sargent on 3/31/20. (PMS)
MOTION for Attorney Fees & Costs by Human Rights Defense Center. (Attachments: # 1 Text of Proposed Order)(Douglass, Sean) Modified on 4/23/2020 (lml). Modified on 4/23/2020 to remove referral text; Motion not referred (lml).
Brief / Memorandum in Support re 134 MOTION for Attorney Fees & Costs . filed by Human Rights Defense Center. (Attachments: # 1 Declaration in Support Declaration of Daniel Marshall (with Exhibits A-I), # 2 Declaration in Support Declaration of Sean Douglass (with Exhibits 1-15), # 3 Declaration in Support Declaration of Brenda E. Castaneda)(Douglass, Sean)
Consent MOTION for Extension of Time to File Response/Reply as to 134 MOTION for Attorney Fees & Costs by Stephen Clear, Southwest Virginia Regional Jail Authority. Motions referred to Judge Pamela Meade Sargent. (Attachments: # 1 Text of Proposed Order)(Schnetzler, Nathan)
ORDER granting 136 Motion for Extension of Time to File Response/Reply Signed by Judge James P. Jones on 4/24/2020. (lml)
RESPONSE in Opposition re 134 MOTION for Attorney Fees & Costs . filed by Stephen Clear, Southwest Virginia Regional Jail Authority. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2)(Schnetzler, Nathan)
Reply re 134 MOTION for Attorney Fees & Costs, 138 Response in Opposition to Motion . filed by Human Rights Defense Center. (Douglass, Sean)
OPINION AND ORDER granting 134 Motion for Attorney Fees Signed by Judge James P. Jones on 8/24/2020. (lml)

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Rogers
1:18-cv-00013-JPJPMS 1.10
Not Exempt

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION

HUMAN RIGHTS DEFENSE CENTER,

Plaintiff, v.

Civil Action No.

SOUTHWEST VIRGINIA REGIONAL JAIL AUTHORITY; STEPHEN CLEAR, Superintendent, in his individual and official capacities; and DOES 1-10, in their individual and official capacities,

COMPLAINT JURY TRIAL DEMANDED

Defendants. ______________________________________

PRELIMINARY STATEMENT

1. Plaintiff, Human Rights Defense Center (“HRDC” or “Plaintiff”), brings this action

to enjoin the Southwest Virginia Regional Jail Authority (the “Jail Authority”) and its employees

from unconstitutionally censoring HRDC’s correspondence to incarcerated persons, and for

damages arising from such censorship.

2. HRDC, a not-for-profit charitable organization, sends books, magazines, and other

correspondence to persons incarcerated in facilities operated by the Jail Authority. These materials

educate incarcerated persons about their legal and civil rights and their options for accessing

education while incarcerated. In communicating with such persons, HRDC engages in core

protected speech and expressive conduct on matters of public concern, which are entitled to the

highest protection afforded by the First Amendment of the U.S. Constitution.

3. Yet since September 2016, and on an ongoing basis, the Jail Authority and

employees of its four facilities in Southwest Virginia have refused to deliver hundreds of HRDC’s

mailings to incarcerated persons, directly violating HRDC’s First Amendment right to free speech

and communication. The Jail Authority either has not notified HRDC when it censored these

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mailings, or simply returned the mailings to HRDC with cryptic markings, such as “NO BOOKS,” “NOT ALLOWED,” “UNAUTHORIZED CORRESPONDENCE,” or “REFUSED”—violating HRDC’s Fourteenth Amendment rights to notice and an opportunity to challenge censorship.
4. Although the Jail Authority asserts that it has an official mail policy in place, its correctional officers arbitrarily enforce any such policy. As a result, incarcerated persons routinely do not receive mail sent to them, including mail from HRDC, and only sometimes receive “confiscation forms” in connection with this censorship. When incarcerated persons file grievances in connection with their undelivered mail, their grievances often go unanswered.
5. Incarcerated persons may spend years in the Jail Authority’s facilities; however, they have extremely limited access to information from the outside world to make productive use of their period of incarceration and successfully prepare for re-entry to the public. Aside from occasional access to a “book cart” that contains a small number of aging books in poor condition, many persons incarcerated in the Jail Authority’s facilities only have access to a single copy of a local daily newspaper to share among a “pod” (which can contain a group of approximately 16 to 24 people) and an electronic kiosk containing very limited legal information.
6. Because of their highly confined access to information inside the Jail Authority’s facilities, incarcerated persons rely on receiving mailings and books from organizations like HRDC to educate themselves and prepare for re-entry. When the Jail Authority prohibits incarcerated persons from receiving outside mail and books, these persons are left in the dark— deprived of the ability to expand their minds through knowledge and education. Curtailing this basic human yearning serves no legitimate penological interest; it only exacerbates the public safety problems associated with inadequately preparing persons for re-entry into society.
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7. Accordingly, to ameliorate the injuries that the Jail Authority (and together with Superintendent Stephen Clear and Does 1–10, “Defendants”) have inflicted on HRDC and its advocacy efforts, HRDC seeks damages for Defendants’ violations and injunctive relief to ensure that Defendants cease their ongoing attacks on HRDC’s constitutional rights.
JURISDICTION AND VENUE 8. This action is brought pursuant to 28 U.S.C. § 1331, as it arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343, as it seeks redress for civil rights violations under 42 U.S.C. § 1983. 9. Venue is proper under 28 U.S.C. § 1391(b). On information and belief, at least one Defendant resides within this judicial district, and the events giving rise to the claims asserted herein occurred within this judicial district. 10. Plaintiff’s claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges, and immunities secured to Plaintiff by the First and Fourteenth Amendments of the U.S. Constitution and the laws of the United States. 11. This Court has jurisdiction over claims seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure, as well as claims seeking nominal and compensatory damages, against all Defendants. 12. Plaintiff’s request for attorneys’ fees and costs is predicated upon 42 U.S.C. § 1988, which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983. 13. Upon information and belief, Defendants acted with the intent to injure, vex, annoy, and harass Plaintiff, and subjected Plaintiff to cruel and unjust hardship in conscious disregard of
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Plaintiff’s rights with the intention of causing Plaintiff injury and depriving it of its constitutional rights. Therefore, Plaintiff seeks compensatory and punitive damages against the individual Defendants—including Superintendent Stephen Clear and Does 1–10 (together, “the Individual Defendants”).
PARTIES 14. HRDC is a not-for-profit charitable organization recognized under § 501(c)(3) of the Internal Revenue Code, incorporated in the state of Washington and with principal offices in Lake Worth, Florida. For more than 27 years, HRDC has focused its mission on public education, advocacy, and outreach on behalf of, and for the purpose of assisting, incarcerated persons who seek legal redress for infringements of their constitutionally guaranteed and other basic human rights. HRDC’s mission, if realized, has a salutary effect on public safety. HRDC publishes books and magazines through its wholly-owned project and publishing arm, Prison Legal News (“PLN”). HRDC, through PLN, engages in core protected speech and expressive conduct on matters of public concern, such as the operation of prison facilities, prison conditions, and the health, safety, and rights of incarcerated people. HRDC’s publications contain political speech and social commentary, which are core First Amendment rights and are entitled to the highest protection afforded by the U.S. Constitution. 15. The Jail Authority is a unit of government organized and existing under the laws of the Commonwealth of Virginia. The Jail Authority operates four (4) detention facilities in Virginia, in the cities of Abingdon, Duffield, Haysi, and Tazewell, which collectively detain nearly 2,000 incarcerated persons (individually, the “Abingdon Facility,” the “Duffield Facility,” the “Haysi Facility,” and the “Tazewell Facility;” and together, the “Jail Authority’s facilities”). The
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Jail Authority is responsible for adopting and implementing mail policies governing incoming mail for incarcerated persons at all four facilities.
16. Defendant Stephen Clear (“Clear”) is the Superintendent of the Jail Authority. Clear is employed by and is an agent of the Jail Authority. He is responsible for overseeing the management and operations of the jail facilities, and for the hiring, screening, training, retention, supervision, discipline, counseling, and control of the personnel of the Jail Authority’s facilities who interpret and apply the mail policy to incarcerated persons. As Superintendent, Clear is a final policymaker for the Jail Authority with respect to the operations of all of the Jail Authority’s facilities, including for policies governing incoming mail for incarcerated persons. He is sued in his individual and official capacities.
17. The true names and identities of Defendants DOES 1 through 10 are presently unknown to HRDC. Each of DOES 1 through 10 are or were employed by and are or were agents of the Jail Authority when some or all of the challenged mail policies and practices at the Jail Authority’s facilities were adopted and/or implemented. Each of DOES 1 through 10 are or were personally involved in the adoption and/or implementation of the Jail Authority’s mail policies for incarcerated persons, and/or are or were responsible for the hiring, screening, training, retention, supervision, discipline, counseling, and/or control of the Jail Authority’s staff who interpret and implement these mail policies. DOES 1 through 10 are sued in their individual and official capacities. HRDC will seek to amend this Complaint when the true names and identities of DOES 1 through 10 have been ascertained.
18. At all times material to this Complaint, the actions of all Defendants as alleged herein were taken under the authority and color of state law.
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FACTUAL ALLEGATIONS I. HRDC’s Publications
19. HRDC, through its publication project, PLN, publishes and distributes a soft-cover
monthly magazine titled Prison Legal News: Dedicated to Protecting Human Rights (“Prison Legal News”), which contains news and analysis about prisons, jails, and other detention facilities, incarcerated persons’ rights, court opinions, management of prison facilities, prison conditions, and other matters pertaining to the rights and/or interests of incarcerated individuals. Each issue of the monthly magazine is published on newsprint and is 72 pages long. HRDC has thousands of subscribers to its monthly magazine in the United States and abroad, including incarcerated persons, attorneys, judges, journalists, libraries, and members of the public. HRDC distributes Prison Legal News to incarcerated persons in approximately 2,600 correctional facilities across the United States, including death row units and institutions within the Federal Bureau of Prisons, such as the federal Administrative Maximum Facility (“ADX” or “Supermax”) in Florence, Colorado—the most secure prison in the United States. Prison Legal News is distributed to prisons and jails within the correctional systems of all 50 states, including to hundreds of incarcerated persons housed in facilities in the Commonwealth of Virginia.
20. Through PLN, HRDC also publishes and/or distributes approximately fifty different softcover books on subjects of interest to incarcerated persons and others who are interested in the criminal justice system. These books are designed to foster a better understanding of criminal justice policies and to allow incarcerated persons to educate themselves about the law and issues related to their imprisonment and/or their pending cases, such as legal research, health care issues, and similar topics. Pertinent to this case, HRDC publishes and distributes the Prisoners’ Guerrilla Handbook to Correspondence Programs in the United States and Canada
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(“Prisoners’ Handbook”), which provides incarcerated persons with information on enrolling at accredited higher educational, vocational, and training schools.
21. In addition to monthly journal issues and books, HRDC also sends incarcerated persons: (a) informational brochure packets—containing a brochure and subscription order form, a book list, and a published books brochure (each of which is a single page); (b) an annual report/fundraising newsletter, which is printed and delivered in the same manner as Prison Legal News; (c) copies of judicial opinions of importance to incarcerated persons; and (d) legal letters in individually-addressed envelopes.
22. HRDC has been trying to send these important materials to persons incarcerated at the Jail Authority’s facilities. Yet Defendants maintain mail and book policies or practices that unconstitutionally prevent HRDC from sending these materials to individuals incarcerated at the Jail Authority’s facilities.
II. Defendants’ Mail and Book Policies and Practices 23. According to statements made by Defendants in court documents publicly filed on
April 26, 2017, the Jail Authority implemented a policy effective March 1, 2015 to no longer accept personal material mailed to incarcerated persons from outside publishers. Defendant Clear asserted that the policy was implemented due to “inappropriate material and lack of space in the property room,” as well as “safety concerns,” such as preventing fire hazards. See Ex. A, Affidavit of Superintendent Stephen Clear in Hardoby v. Southwest Virginia Regional Jail Authority, No. 7:16-cv-00103 (W.D. Va. 2016) (“Clear Affidavit”) ¶¶ 10–12. Defendant Clear stated that the Jail Authority amended its official mail policy on June 1, 2016, to allow incarcerated persons to order books from a publishing company on a case-by-case basis, upon approval from the Jail Administrator or designee. See id. ¶ 12.
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24. Defendant Clear also asserted that the Jail Authority accepts, upon approval, donations to its library. See id. ¶ 13.
25. In reality, the experience of incarcerated persons at the Jail Authority’s facilities does not align with Defendants’ stated policies. Incarcerated persons at the Jail Authority’s facilities are not aware of any official—or consistent—mail policy or practice. They have never heard of the June 1, 2016 policy that Defendants purport allows them to order books through the mail upon approval. Instead, the mail policy at the Jail Authority’s facilities is arbitrary, and depends on which correctional officer is on duty on any given day.
26. Many incarcerated persons in the Jail Authority’s facilities have experienced not receiving mail that they know was sent to them. These individuals only found out that they had not received mail from family members who told them about mailings that were never received.
27. Sometimes incarcerated persons receive confiscation forms from the Jail Authority’s facilities when their mail is taken; other times, they do not. The confiscation forms offer the incarcerated person the difficult choice of—(1) allowing their mail to be destroyed; or (2) returning the mail to the sender at the incarcerated person’s own expense.
28. When incarcerated persons file grievances with the Jail Authority’s facilities when their mail—including mail from HRDC—is confiscated, they often either do not receive a response, or receive unhelpful answers.
29. There is no legitimate penological interest justifying Defendants’ policy or practice of censoring reading materials sent through the mail. Many individuals incarcerated at the Jail Authority’s facilities have not observed security or safety issues, including fire hazards, associated with receiving reading materials. Nor is there any reasonable concern about space
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overcrowding, as the Jail Authority’s facilities contain ample space for reading materials in the cells and common areas.
30. Without the ability to send its publications to incarcerated persons at the Jail Authority’s facilities via mail, HRDC has no alternative means of exercising its right to communicate with these persons. Further, persons incarcerated in the Jail Authority’s facilities have no alternative means of acquiring the type of information that HRDC is attempting to communicate—information regarding their legal and civil rights and access to education while incarcerated.
31. To the contrary, incarcerated persons’ options for receiving books and other reading material inside the Jail Authority’s facilities are meager. None of the Jail Authority’s facilities allow physical access to libraries. While the Jail Authority claims it has a book-donation policy, any such policy has been discontinued.
32. Instead, at the Haysi and Tazewell Facilities, the correctional officers send around “book carts” sporadically, perhaps once or twice a month. The book cart at the Haysi Facility contains 30-40 aging books in poor condition—primarily romance novels that are missing pages and even whole chapters—and the Facility does not refresh the cart with new books. Incarcerated persons are only allowed to possess two books from the book cart at any given time.
33. Instead of providing book carts, the Abingdon and Duffield Facilities provide incarcerated persons with library slips for requesting books. However, the incarcerated persons do not always receive the books they request.
34. Aside from sporadic book carts or library slips, many incarcerated persons only have access to a single copy of a local newspaper to share among a “pod” of approximately 16-24 people, and an electronic kiosk containing limited legal information. These incarcerated persons
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are not guaranteed access to the kiosk on any given day, and are only permitted to use the kiosk for 15 to 30 minutes at a time. Further, many of the persons incarcerated at the Jail Authority’s facilities are not allowed access to a television or radio.
35. Because of these policies and practices at the Jail Authority, incarcerated persons in the Jail Authority’s facilities have no alternative ways to obtain information about their legal and civil rights, other than to receive such information by mail from organizations such as HRDC. The ability to send such information is therefore critically important to HRDC, which aims to advance incarcerated persons’ education and understanding of their legal rights, particularly in criminal cases and applications for post-conviction relief.
III. Defendants’ Censorship of HRDC’s Mail 36. In addition to reports from incarcerated persons at the Jail Authority’s facilities,
HRDC has further evidence of Defendants’ censorship of HRDC’s mailings to incarcerated persons at the Jail Authority’s facilities because many of those mailings have been returned to HRDC.
37. Defendants have censored the following materials sent by HRDC to incarcerated persons held by the Jail Authority: (1) issues of the monthly magazine, Prison Legal News; (2) sample issues of Prison Legal News; (3) the Prisoners’ Handbook; (4) the annual report/fundraising newsletter; (5) legal letters; (6) informational brochure packets; and (7) court opinions. Defendants refused to deliver said items to the incarcerated persons and, in some instances, returned items to Plaintiff’s office via the “Return to Sender” service of the United States Postal Service. Defendants continue to censor many of the items listed above.
38. Altogether, since September 2016, Plaintiff can identify at least two hundred twenty-two (222) pieces of mail sent by HRDC to persons incarcerated at the Jail Authority’s
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facilities, which Defendants refused to deliver to HRDC’s intended recipients. This mail includes one hundred thirty-two (132) issues of Prison Legal News, fourteen (14) sample issues of Prison Legal News, forty-four (44) copies of the Prisoners’ Handbook, ten (10) annual reports, eight (8) legal letters, seven (7) informational packets, and seven (7) court opinions.
39. Such restrictions on written speech sent to persons incarcerated at the Jail Authority’s facilities are not rationally related to any legitimate penological interest and violate HRDC’s First Amendment right to communicate speech to incarcerated persons.
40. On information and belief, a substantial portion of the hundreds of magazines, books, and other communications mailed by HRDC to persons incarcerated in the Jail Authority’s facilities were also censored by Defendants.
41. Defendants’ policies, practices, and customs are unconstitutional, both facially and as applied to HRDC.
42. Further, Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward persons incarcerated at the Jail Authority’s facilities.
43. Plaintiff will continue to mail copies of its books and other publications to subscribers, customers, and other individuals imprisoned in the Jail Authority’s facilities, despite Defendants’ unconstitutional censorship. Plaintiff seeks the protection of this Court to ensure that Defendants cease their unlawful misconduct, and either deliver HRDC’s written speech or satisfy due process by providing HRDC with the basis for any censorship so that HRDC may challenge the censorship.
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a. Censorship at the Abingdon Facility 44. Since September 2016, HRDC can identify at least twenty-nine (29) separate occasions in which Defendants censored individually addressed issues of Prison Legal News magazines, books, and other communications addressed to individual incarcerated persons at the Abingdon Facility. Defendants failed to deliver the foregoing items to the incarcerated persons named by HRDC as recipients. Instead, Defendants returned the mail at HRDC’s expense, with various markings, such as the following:
(1) “RETURN TO SENDER”; (2) “REFUSED”; (3) “NOT ALLOWED”; (4) “RTS” 45. On information and belief, Defendants also censored other magazines, books, and communications that HRDC mailed to persons incarcerated by the Jail Authority at the Abingdon Facility. 46. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC. 47. Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward persons incarcerated in the Jail Authority’s Abingdon Facility. 48. HRDC will continue to mail copies of its publications to subscribers, customers, and other individuals imprisoned at the Abingdon Facility, as well as enveloped correspondence containing informational brochure packets, court opinions, and legal correspondence.
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b. Censorship at the Duffield Facility 49. Since September 2016, HRDC can identify at least one hundred five (105) separate occasions in which Defendants censored individually addressed issues of Prison Legal News magazines, books, and other communications addressed to individual incarcerated persons at the Duffield Facility. Defendants failed to deliver the foregoing items to the incarcerated persons named by HRDC as recipients. Instead, Defendants returned the mail at HRDC’s expense, with various markings, such as the following:
(1) “REFUSED”; (2) “RETURN TO SENDER”; (3) “NO BOOKS” 50. On information and belief, Defendants also censored other magazines, books, and communications that HRDC mailed to persons incarcerated by the Jail Authority at the Duffield Facility. 51. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC. 52. Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward persons incarcerated in the Jail Authority’s Duffield Facility. 53. HRDC will continue to mail copies of its publications to subscribers, customers, and other individuals imprisoned at the Duffield Facility, as well as enveloped correspondence containing informational brochure packets, court opinions, and legal correspondence.
c. Censorship at the Haysi Facility 54. Since September 2016, HRDC can identify at least seventy-six (76) separate occasions in which Defendants censored individually addressed issues of Prison Legal News
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magazines, books, and other communications addressed to individual incarcerated persons at the Haysi Facility. Defendants failed to deliver the foregoing items to the incarcerated persons named by HRDC as recipients. Instead, Defendants returned the mail at HRDC’s expense, with various markings, such as the following:
(1) “REFUSED”; (2) “REF”; (3) “NOT ALLOWED”; (4) “RETURN TO SENDER UNAUTHORIZED CORRESPONDENCE”; (5) “UNABLE TO HAVE @ FACILITY” 55. On information and belief, Defendants also censored other magazines, books, and communications that HRDC mailed to persons incarcerated by the Jail Authority at the Haysi Facility. 56. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC. 57. Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward incarcerated persons at the Jail Authority’s Haysi Facility. 58. HRDC will continue to mail copies of its publications to subscribers, customers, and other individuals imprisoned at the Haysi Facility, as well as enveloped correspondence containing informational brochure packets, court opinions, and legal correspondence.
d. Censorship at the Tazewell Facility 59. Since September 2016, HRDC can identify at least twelve (12) separate occasions in which Defendants censored individually addressed issues of Prison Legal News magazines, books, and other communications addressed to individual incarcerated persons at the Tazewell
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Facility. Defendants failed to deliver the foregoing items to the incarcerated persons named by HRDC as recipients. Further, hardly any items were returned to HRDC from the Tazewell Facility.
60. On information and belief, Defendants censored the majority of, if not all, other monthly magazine issues, books, and communications that HRDC mailed to persons incarcerated by the Jail Authority at the Tazewell Facility.
61. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC.
62. Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward incarcerated persons at the Jail Authority’s Tazewell facility.
63. Plaintiff will continue to mail copies of its publications to subscribers, customers, and other individuals imprisoned at the Jail Authority’s Tazewell facility, as well as enveloped correspondence containing informational brochure packets, court opinions, and legal correspondence.
IV. Defendants’ Failure to Provide Due Process Notice and an Opportunity to Appeal
64. On only two occasions did Defendants provide HRDC any notice that its communications were being censored. On December 19, 2016, HRDC received Confiscation Forms from the Jail Authority’s Haysi Facility regarding the “PUBLICATION BOOK/MAGAZINE ‘PRISON LEGAL NEWS’” sent to incarcerated persons Dallas Crihfield and Trevor Cole. The notices did not specify which publication was being censored.
65. Additionally, on January 23, 2017, HRDC received Confiscation Forms from the Jail Authority’s Haysi Facility regarding the “MAGAZINE/PUBLICATION” sent to incarcerated
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persons Dennis Vandyke, Matthew Harrington, Melissa Milam, Whitney Grubb, and Park Stanley. Again, the notices did not specify which publication was being censored.
66. On both occasions, all of the Confiscation Forms cryptically stated the “REASON FOR CONFISCATION/SEIZURE” as “NOT ALLOWED.” None of the notices gave any more detail as to why the items were being censored, preventing HRDC from meaningfully addressing the censorship in any appeal.
67. Nevertheless, on January 26, 2017, HRDC sent a letter via certified mail to the Jail Authority’s Haysi Facility, appealing the rejection of HRDC’s mail and urging Defendants to reverse their censorship decision.
68. As of the date of filing this Complaint, HRDC has not received a response to that letter.
69. In all other instances of Defendants’ censorship of HRDC’s speech, Defendants violated HRDC’s due process rights under the Fourteenth Amendment by failing to provide any notice to HRDC explaining that its materials were rejected or the reason for rejecting them, and by failing to provide any opportunity for HRDC to challenge the censorship of its mail.
70. Defendants also failed to explain the penological justification for any of their censorship decisions, failed to identify any specific mail policy upon which they relied in making those decisions, and otherwise failed to give any meaningful notice of their censorship.
V. Defendants’ Unconstitutional Mail Policies and Practices Are Causing HRDC Ongoing and Irreparable Harm.
71. Due to Defendants’ actions described above, HRDC has suffered damages, and will continue to suffer damages, including but not limited to: deprivation of its constitutional rights; frustration of its abilities to disseminate its political message, to recruit new subscribers and supporters, and to advance its mission as a not-for-profit organization; significant diversion of its
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resources, including staff time; loss of potential subscribers and customers; damage to its reputation; and significant printing, handling, and mailing costs.
72. Defendants’ actions and omissions were and are motivated by malicious intent, and were and are all committed under color of law and with reckless indifference to HRDC’s rights.
73. Defendants and their agents are responsible for—or personally participated in— creating and implementing these unconstitutional policies, practices, and customs, and/or ratifying or adopting them. Further, Defendants are responsible for training and supervising employees whose conduct has injured and continues to injure HRDC.
74. Defendants’ unconstitutional policies, practices, and customs are ongoing, and continue to violate HRDC’s constitutional rights—causing irreparable harm. Defendants’ unconstitutional policies, practices, and customs will continue unless enjoined. As such, HRDC has no adequate remedy at law.
75. In addition to damages, HRDC is entitled to injunctive relief prohibiting Defendants from unconstitutionally censoring and refusing to deliver HRDC’s mailings and depriving HRDC of due process of law.
CAUSES OF ACTION FIRST CLAIM FOR RELIEF Violation of the First Amendment Right to Free Speech and Communication
Under 42 U.S.C. § 1983 (Brought Against All Defendants) 76. HRDC repeats and re-alleges each and every allegation set forth above, and incorporates them herein by reference. 77. The acts described above constitute violations of HRDC’s rights, the rights of other correspondents who have attempted to or intend to correspond with persons incarcerated in
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the Jail Authority’s facilities, and the rights of persons incarcerated in the Jail Authority’s facilities, under the First Amendment of the U.S. Constitution.
78. HRDC has a constitutionally protected liberty interest in communicating with incarcerated individuals by sending books, information packets, legal letters, court opinions, and magazines to them via U.S. Mail. Defendants’ unconstitutional censorship violates HRDC’s clearly established right to communicate with these individuals.
79. There is no legitimate penological interest justifying Defendants’ unconstitutional censorship; and HRDC has no alternative means of exercising its constitutional right to communicate with individuals incarcerated in the Jail Authority’s facilities. Further, the fact that thousands of correctional facilities in the United States allow HRDC and other publishers to send reading materials to incarcerated persons demonstrates that allowing these materials would not unduly burden Defendants; and Defendants’ censorship is an exaggerated response to prison concerns.
80. Defendants’ conduct is objectively unreasonable and was undertaken recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of others.
81. HRDC’s injuries and the violations of its constitutional rights were directly and proximately caused by Defendants’ policies and practices; and those policies and practices were the moving force behind the violations.
82. The acts described above have caused HRDC to suffer damages, and if not enjoined, will continue to cause HRDC to suffer damages.
83. HRDC seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. HRDC seeks punitive damages against the Individual Defendants in their individual capacities.
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SECOND CLAIM FOR RELIEF Violation of the Fourteenth Amendment Right to Notice and Due Process
Under 42 U.S.C. § 1983 (Brought Against All Defendants) 84. HRDC repeats and re-alleges each and every allegation set forth above, and incorporates them herein by reference. 85. The acts described above constitute violations of HRDC’s rights, the rights of other correspondents who have attempted to or intend to correspond with persons incarcerated in the Jail Authority’s facilities, and the rights of persons incarcerated in the Jail Authority’s facilities, under the Fourteenth Amendment of the U.S. Constitution. 86. HRDC has a clearly established right under the Due Process Clause of the Fourteenth Amendment to receive notice and an opportunity to object and/or appeal Defendants’ decisions to prevent Plaintiff’s mail from reaching incarcerated persons held by the Jail Authority. 87. Defendants’ policy and practice of censoring HRDC’s books, information packets, legal letters, court opinions, and magazines fails to provide Plaintiff with individualized notice of the censorship or an opportunity to be heard. Thus, Defendants are violating HRDC’s clearly established right to due process. 88. Defendants’ conduct is objectively unreasonable and was undertaken recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of others. 89. HRDC’s injuries and the violations of its constitutional rights were directly and proximately caused by Defendants’ policies and practices; and those policies and practices were the moving force behind the violations. 90. The acts described above have caused HRDC to suffer damages, and if not enjoined, will continue to cause HRDC to suffer damages.
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91. HRDC seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. HRDC seeks punitive damages against the Individual Defendants in their individual capacities.
REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests relief as follows:
1. A declaration that Defendants’ policies and practices violate the First and Fourteenth Amendments of the U.S. Constitution;
2. A preliminary and permanent injunction preventing Defendants from continuing to violate the First and Fourteenth Amendments of the U.S. Constitution, and providing other equitable relief;
3. Nominal damages for each violation of HRDC’s rights by Defendants; 4. Compensatory damages against Defendants in an amount to be proved at
trial; 5. Punitive damages against the Individual Defendants in their individual
capacities, in an amount to be proved at trial; 6. An award of costs, including reasonable attorneys’ fees, under 42 U.S.C. §
1988 and other applicable law; and 7. Such further and additional relief as this Court may deem just and equitable.
JURY DEMAND Plaintiff demands a trial by jury on all issues properly tried to a jury.
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Dated: March 28, 2018

Respectfully submitted,
s/ Sean M. Douglass
WILLIAMS & CONNOLLY LLP Thomas G. Hentoff* Sean M. Douglass (Va. Bar No. 83835) Chelsea T. Kelly* 725 Twelfth Street NW Washington, DC 20005 Telephone: (202) 434-5000 Fax: (202) 434-5029 thentoff@wc.com sdouglass@wc.com ckelly@wc.com
DAVIS WRIGHT TREMAINE LLP Bruce E. H. Johnson* Suite 2200 1201 Third Avenue Seattle, Washington 98101-3045 Telephone: (206) 757-8069 brucejohnson@dwt.com
HUMAN RIGHTS DEFENSE CENTER Sabarish Neelakanta* Daniel Marshall* Masimba Mutamba* P.O. Box 1151 Lake Worth, FL 33460 Telephone: (561) 360-2523 sneelakanta@hrdc-law.org dmarshall@hrdc-law.org mmutamba@hrdc-law.org
S Attorneys for Plaintiff Human Rights Defense Center
*Pro hac vice applications to be filed.

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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION

HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
v.
SOUTHWEST VIRGINIA REGIONAL JAIL AUTHORITY, ET AL.,
Defendants.

) ) ) Case No. 1:18CV00013 ) ) ) OPINION AND ORDER ) ) By: James P. Jones ) United States District Judge ) ) )

Thomas G. Hentoff, Sean M. Douglass, and Chelsea T. Kelly, Williams & Connolly LLP, Washington, D.C., Bruce E. H. Johnson, Davis Wright Tremaine LLP, Seattle, Washington, and Sabarish Neelakanta, Masimba Mutamba, and Daniel Marshall, Human Rights Defense Center, Lake Worth, Florida, for Plaintiff; Katherine C. Londos and Nathan H. Schnetzler, Frith Anderson + Peake, P.C., Roanoke, Virginia, for Defendants.

The plaintiff in this civil action, a nonprofit organization, seeks a

preliminary injunction prohibiting the defendants, a regional jail authority and its

superintendent, from confiscating publications that the plaintiff mails to inmates.

The motion has been fully briefed and I have heard evidence and argument. For

the following reasons, I will grant the plaintiff’s motion and preliminarily enjoin

the defendants from refusing to deliver the plaintiff’s mailings on the grounds that

such publications are printed on colored paper or bound with glue or staples.

Additionally, I will order the defendants to promptly advise the plaintiff of the

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grounds for the rejection of any of its publications and to provide the plaintiff with a reasonable opportunity to be heard regarding any rejections.
I. FINDINGS OF FACT. As required by Federal Rule of Civil Procedure 52(a), I make the following findings based on the evidence presented by the parties at the evidentiary hearing and the affidavits and other evidence filed in support of and in opposition to the plaintiff’s motion.1 Plaintiff Human Rights Defense Center (“HRDC”) is a non-profit organization that, among other things, distributes books, magazines, and other information concerning legal news and prisoners’ rights. HRDC publishes Prison Legal News (“PLN”), a 72-page soft cover monthly magazine printed on black and white newsprint. Thousands of people and institutions subscribe to PLN, including incarcerated persons at approximately 2,600 institutions throughout the United States. HRDC also publishes about 50 soft cover books designed to educate inmates about the legal system and their rights. One example of such a book is called Prisoners’ Guerrilla Handbook to Correspondence Programs in the United
1 A preliminary injunction may be granted on the basis of evidence “that is less complete than in a trial on the merits.” Univ. of Tex. v. Camenisch, 451 U.S. 390, 395 (1981). The court has the discretion to decide the matter entirely on the basis of affidavits or on both live testimony and affidavits. See Fed. R. Civ. P. 43(c). Findings of fact and law made in conjunction with a preliminary injunction are normally not binding at a later trial on the merits. See Camenisch, 451 U.S. at 395.
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States & Canada. In addition to PLN and books, HRDC sends inmates annual report newsletters, brochure packets including order forms, copies of important judicial opinions, and legal letters. HRDC sends inmates who will be incarcerated for a meaningful period of time an initial mail packet and a six-month subscription to PLN at no charge. After the free subscription ends, inmates must order and pay for PLN to continue receiving it.
Defendant Southwest Virginia Regional Jail Authority (“Jail Authority”) operates four jails that are located in Abingdon, Haysi, Duffield, and Tazewell, Virginia. The Jail Authority houses approximately 2,000 inmates across its four facilities, with the largest facility, Abingdon, housing about 820 incarcerated posttrial and pretrial detainees. Some inmates are housed in a Jail Authority facility for only a few days while others are there as long as three years. Inmates at the Jail Authority’s facilities are housed in varying levels of security from minimum to maximum security. The Jail Authority’s facilities have housing units that are single-cell, double-cell, four-person, six-person, and dormitory style housing arrangements. Each housing unit contains 80 to 90 inmates.
HRDC has on a number of occasions attempted to send its publications to inmates at the Jail Authority’s facilities, but rather than delivering the items to the inmates, the Jail Authority has confiscated them. The Jail Authority implemented
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a policy effective March 1, 2015, banning personal material sent to inmates from outside publishers. According to the Jail Authority’s Superintendant Stephen Clear, the policy was adopted because of concerns about inappropriate material; lack of space in the property rooms at the facilities; fire hazards; safety concerns regarding staples, which could be used for weapons or tattooing; and the possibility that colored papers and glue could be laced with drugs. However, no written policy addresses staples or glue, and the Jail Authority has confiscated mailings from HRDC that do not contain glue, staples, or colored paper.
On June 1, 2016, the Jail Authority amended its policy to allow inmates to order books from publishing companies subject to case-by-case approval. The Jail Authority accepts donations of materials to its library, subject to approval. However, one inmate declared that in practice, the Haysi facility stopped accepting library donations around 2013. The Jail Authority’s written policies regarding publications, mail, and donated materials do not list any criteria for determining which items will be accepted and which will be rejected.
Some inmates are unaware that they are allowed to order books. The delivery and confiscation of mail is inconsistent and the policies are applied differently depending on which correctional officers are working. Some inmates have not received mail they know was sent to them by family members and
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friends. Sometimes prisoners receive confiscation forms for confiscated materials, but sometimes they do not. One inmate filed a grievance regarding the confiscation of his mail but did not receive any response to the grievance.
None of the Jail Authority’s facilities allow inmates to physically access jail libraries. Rather, at the Haysi and Tazewell facilities, inmates have access to book carts sporadically, about twice a month. The book carts contain a limited number of books, many of which are missing pages or are otherwise damaged, and the carts are rarely refreshed with new books. Inmates at the Abingdon facility receive library slips with which to request books every two weeks, but they do not always receive the books they have requested. The Abingdon library contains about 5,000 books.
The Jail Authority provides one local newspaper and one national newspaper to be shared among all the inmates in a housing unit. Inmates also have access to an electronic kiosk containing certain court opinions and other limited legal information, but they are only able to use the kiosk for up to 30 minutes at a time and are not guaranteed access to it on any given day. The Jail Authority does not allow inmates to have magazines at all, and inmates are not permitted to receive newspapers other than those provided by the Jail Authority. The Jail Authority restricts newspapers and magazines in an effort to control clutter.
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Inmates are allowed to order books from publishers, subject to certain restrictions. The books must be legal, religious, or educational in nature and cannot have hard covers. Soft cover books are usually bound with glue, but this does not pose a significant risk because books sent directly from a publisher usually do not contain drugs or other contraband. Publications containing colored paper are not allowed because Suboxone strips can be melted onto paper and are difficult to detect on colored paper. This, too, is less of a concern for publications mailed directly from a publisher than for those mailed by individual senders. When an inmate receives a book and the Jail Authority administration is not aware that the inmate ordered the book, an administrator calls the publisher or sender to confirm that the inmate ordered the book.
Inmates have in the past put staples into toothbrushes and other objects to fashion weapons. Inmates sometimes fashion tattoo guns out of found objects including staples. Currently, most of the staples used for these purposes come from documents delivered by attorneys, as magazines containing staples are prohibited in the Jail Authority’s facilities. Tattooing is a problem for the Jail Authority because it can lead to infections and other medical problems that require costly treatment. The Jail Authority’s annual budget is about $45,000,000, and inmate medical costs account for $9,000,000 to $10,000,000 of the budget.
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The Jail Authority limits the number of items of personal property each inmate can have in his or her possession. If an inmate receives items in the mail that exceed that number, the inmate can choose to have the extra items destroyed or returned to the sender at the inmate’s expense. Because of this policy, delivery of HRDC’s publications would not contribute to overcrowding of cells or create a fire hazard. Cells must be searched daily, and a few additional books or magazines per inmate would not increase the number of cell searches. The Jail Authority’s facilities contain ample space for reading materials in the cells and common areas.
The Jail Authority has confiscated issues of PLN, Prisoners’ Guerrilla Handbook, an annual report and fundraising newsletter, legal letters, informational brochure packets, and court opinions. HRDC has identified at least 222 items it sent to persons incarcerated at the Jail Authority’s facilities that were not delivered to the intended recipients. In a few instances, these items were returned to HRDC using the Postal Service’s Return to Sender service because the inmate-recipient had been transferred to another facility or was no longer present at the facility when the mail arrived.
On two occasions, the Jail Authority provided HRDC with confiscation forms identifying the materials it had confiscated. These forms pertained to confiscated copies of PLN. The confiscation forms state that the sender can appeal
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a confiscation decision within ten days. In December 2016, HRDC received a confiscation form but did not appeal the confiscation. In January 2017, HRDC appealed a confiscation decision, but the appeal letter was not received by the Jail Authority within ten days of the confiscation, so the Jail Authority ignored it. It took four and five days for HRDC to receive the confiscation forms, leaving only a few days in the ten-day appeal window for HRDC to respond. The confiscation forms sent to HRDC do not state why the issues of PLN were confiscated.
HRDC has not attempted to send copies of PLN that are free of staples or in an electronic format. Inmates do not have access to computers other than the kiosks, and access to the kiosks is limited in time and not guaranteed. HRDC has not tried to donate its publications to the facility libraries.
One mail clerk works at each of the Jail Authority’s facilities. An administrative worker also assists with mail processing as needed. Each day, the mail clerk goes to the post office to retrieve the mail, returns to the facility, and sorts the inmate mail from the facility mail. The clerk then checks a database to confirm that the inmate to whom the mail is addressed is still located at the facility. If the inmate is at the facility, the clerk writes down the housing unit and bed number. If the inmate is not present, the clerk places a “Return to Sender” stamp on the envelope and sets it aside to be returned to the post office the next day. The
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mail to be delivered to an inmate is then opened, scanned, and screened for contraband, escape plans, or other problematic content. The envelope flap, stamp, and any mailing label are removed, as are any staples. The mail is then sorted into mail bins by housing unit and a correctional officer delivers each housing unit’s mail to the recipient inmates.
When books are donated to the facility libraries, Jail Authority staff members remove any mailing labels from the books and check them for contraband. In addition, they remove the spines from any donated hard cover books. All mail received at the Jail Authority’s facilities must be examined for contraband before being given to an inmate. It is significantly more cumbersome for the Jail Authority to reject an item than to accept it. When a mailroom worker rejects a piece of mail, the worker must complete a confiscation form, package the item, log it, and mail the form, and the decision can be appealed. When a magazine or other publication is accepted, it takes only a few seconds for a mail room worker to process the item.
John Clark, a former official with the federal Bureau of Prisons, testified as an expert on behalf of HRDC. Based on Clark’s testimony, the Jail Authority’s policy of prohibiting staples, colored paper, and glue is highly unusual within correctional facilities. The staples used in PLN are small and flimsy and are
9
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unlikely to be used to tamper with restraints or fashion weapons. PLN is delivered to several maximum-security prisons and to all state prisons in Virginia, and none of these other institutions have raised any concerns about PLN’s use of staples. Numerous everyday items found in jails could theoretically be used as weapons by inmates, but it is not practical to ban all such items. Nearly all jails and prisons have books that contain glue or colored paper.
Giving inmates access to a variety of books, magazines, and newspapers of interest to them serves a rehabilitative function and also helps to prevent the mischief that can proliferate when inmates are idle. At the same time, jail officials have a legitimate interest in keeping certain types of materials out of the hands of inmates, such as content that is likely to incite violence or encourage illegal acts.
HRDC’s publications do not contain colored paper, except on the covers of the paperback books. The paperback books are also the only publications that contain glue. HRDC is unaware of any cost-effective way to bind PLN and its annual report and fundraising newsletter without using staples. These two publications are printed, bound, addressed, and bundled by zip code by a thirdparty printer located on the west coast, while HRDC’s offices are located in Florida. Donating the publications to the library would delay each prisoner’s
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access to the materials, rendering them less relevant and unhelpful in preparing time-sensitive legal filings.
The cost to the Jail Authority of employing an additional correctional officer to sort and deliver mail would be approximately $50,000, and the Jail Authority requests a bond in that amount. However, I find that an additional staff member is not required in order to process HRDC’s publications. HRDC is a relatively small nonprofit organization with 19 employees. It has considerable assets and has received significant sums in court-ordered attorneys’ fees, but those funds are essential for carrying out its educational and advocacy missions. In its 28-year history in which it has obtained dozens of injunctions and consent decrees, HRDC has never been required to post a bond.
II. ANALYSIS. A preliminary injunction is an extraordinary remedy that should only be granted “if the moving party clearly establishes entitlement to the relief sought.” Hughes Network Sys., Inc. v. Interdigital Commc’ns Corp., 17 F.3d 691, 693 (4th Cir. 1994) (internal quotation marks and citation omitted). A preliminary injunction is “never awarded as of right.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24 (2008). “A plaintiff seeking a preliminary injunction must establish that he is likely to succeed on the merits, that he is likely to suffer irreparable harm
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in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.” Id. at 20.
A. Likelihood of Success on the Merits. HRDC contends that the defendants are violating its First Amendment free speech rights by refusing to deliver its publications and its Fourteenth Amendment right to due process by failing to give adequate notice of the confiscations and a reasonable opportunity to respond. “[T]here is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners.” Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). When a jail confiscates a publication sent by a publisher, it must give the publisher notice and an opportunity to respond. See Montcalm Publ’g. Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996). Prison regulations that infringe upon constitutional rights will only be upheld if they are “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Legitimate penological objectives include maintaining safety and security and saving scarce prison resources. United States v. Stotts, 925 F.2d 83, 86 (4th Cir. 1991). A court reviewing a regulation must consider four factors: (1) “whether the governmental objective underlying the
12
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regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective”; (2) “whether there are alternative means of exercising the right that remain open”; (3) “the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison”; and (4) whether there are “obvious, easy alternatives” suggesting that the regulation is an “exaggerated response” to prison concerns. Thornburgh, 490 U.S. at 414, 417, 418 (internal quotation marks and citation omitted).
Regarding the first factor, when a regulation addresses materials coming into the facility, prison authorities are entitled to broad discretion. Id. at 416. That discretion is not without limits, however. Here, the defendants’ stated objectives underlying confiscation of HRDC’s publications are preventing prisoners from obtaining drugs and staples that could be used for tattooing or as weapons. The defendants also assert that the restrictions on publications are intended to promote fire safety. These are legitimate concerns in a prison context, but the restrictions are not rationally related to those objectives because items sent directly from publishers are unlikely to contain drugs and there are other policies in place that minimize fire hazards. The only one of the policies at issue that is rationally related to the stated objective is the Jail Authority’s apparently unwritten policy of prohibiting publications that are bound with staples.
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It also appears that the Jail Authority’s policies are not being applied in a neutral or rational way, as a number of the mailings that have been confiscated do not contain colored paper, glue, or staples. As to the plaintiff’s due process claim, the defendants do not contest that they have failed to comply with their policy requiring notice of confiscations, and the few notices that have been sent to HRDC have not stated the reasons that the subject mailings were confiscated. The defendants have offered no rationale for the short ten-day appeal window, which is unreasonable in light of the time necessary to send and receive the notices and responses by mail.
HRDC has no adequate alternative means of exercising its First Amendment right to communicate with prisoners. The defendants have not offered any evidence showing that materials donated to the facility libraries would reach the intended recipients in a timely fashion, or at all. HRDC has shown that library items are distributed to inmates infrequently and that inmates do not always get the materials they request. Thus, the defendants’ suggestion that HRDC should donate its publications to the facilities rather than sending them directly to inmates is not an adequate alternative. Nor should HRDC be required to incur the substantial additional burden of having publications that will be sent to the Jail Authority separately printed without staples, glue, or colored paper.
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Acceptance of the publications at issue would have a minimal impact on the Jail Authority’s staff or other inmates. Staff members already remove the spines from donated hard cover books and examine all incoming mail and donated items for contraband. Mailroom workers could remove staples from an issue of PLN or remove the colored-ink cover of a book in less time than it would take to complete, log, and mail a confiscation form. These obvious, easy alternatives to rejecting all of HRDC’s mailings outright show that the defendants’ restrictions are an exaggerated response to the stated concerns. I therefore conclude that HRDC is likely to succeed on the merits of its claims.
B. Irreparable Harm. “The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976). HRDC has clearly shown irreparable harm, satisfying the second Winter factor. I find that this element is not undermined by any delay of HRDC in filing suit and seeking a preliminary injunction.
C. Balance of Equities. As indicated in Part II.A, supra, compliance with the preliminary injunction would pose a minimal burden to the defendants. The defendants’ overbroad policies, which are being applied in an unequal fashion that is at best arbitrary and
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at worst discriminatory, call into question the defendants’ motives. HRDC has attempted to comply with the vague written policies to the best of its ability despite the defendants’ lack of communication. I find that the balance of equities favors the plaintiff.
D. Public Interest. The Fourth Circuit has stated that “upholding constitutional rights surely serves the public interest.” Giovani Carandola, Ltd. v. Bason, 303 F.3d 507, 521 (4th Cir. 2002). The public also has an interest in the education and rehabilitation of inmates, an interest which is furthered by allowing them access to books and other publications. Moreover, providing prisoners with timely information about their legal rights serves the important public interest of ensuring meaningful access to the courts and vindication of those rights. Preliminary injunctive relief is therefore in the public interest.
E. Bond. “The court may issue a preliminary injunction . . . only if the movant gives security in an amount that the court considers proper to pay the costs and damages sustained by any party found to have been wrongfully enjoined or restrained.” Fed. R. Civ. P. 65(c). Although I may waive the security requirement, I “must expressly address the issue of security before allowing any waiver and cannot
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disregard the bond requirement altogether.” Pashby v. Delia, 709 F.3d 307, 332 (4th Cir. 2013) (internal quotation marks and citation omitted).
I find that the preliminary injunction will not necessitate the hiring of additional staff or cause the Jail Authority to incur any significant monetary cost. I therefore find a bond unnecessary and will waive the bond requirement.
III. CONCLUSION. For the reasons given, it is ORDERED that the Motion for Preliminary Injunction, ECF No. 4, is GRANTED. A separate Preliminary Injunction will be issued forthwith.
ENTER: July 3, 2018 /s/ James P. Jones United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION

HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
v.
SOUTHWEST VIRGINIA REGIONAL JAIL AUTHORITY, ET AL.,
Defendants.

) ) ) Case No. 1:18CV00013 ) ) ) PRELIMINARY INJUNCTION ) ) By: James P. Jones ) United States District Judge ) ) )

For the reasons stated in the Opinion and Order entered this day, the Southwest Virginia Regional Jail Authority (“Jail Authority”) and its officers, agents, and employees, are hereby ORDERED, DIRECTED, and ENJOINED from disapproving or rejecting the receipt by an inmate in a Jail Authority facility of the soft cover monthly magazine published and distributed by Human Rights Defense Center (“HRDC”) titled Prison Legal News, or the other publications published and distributed by HRDC as introduced by HRDC exhibits 2 through 6 at the evidentiary hearing held on June 25, 2018, on the grounds that such publications are printed on colored paper or are bound with glue and/or staples. In addition, in the event that the Jail Authority determines to disapprove or reject such publication on any ground in any instance, the Jail Authority is hereby ORDERED,

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DIRECTED, and ENJOINED to promptly advise HRDC of the grounds for such disapproval or rejection and give it a reasonable opportunity to be heard as to such rejection or disapproval. This directive does not prevent the Jail Authority from imposing rules as to the quantity of such publications possessed by individual inmates at any one time, reasonably consistent with appropriate security concerns and facility resources.
The Jail Authority is further ORDERED to take all reasonable steps to promptly advise its officers, agents, and employees of the terms of this Preliminary Injunction. This Preliminary Injunction remains in effect until further order of this Court.
ENTER: July 3, 2018 /s/ James P. Jones United States District Judge
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 Case 1:18-cv-00013-JPJ-PMS Document 140 Filed 08/24/20 Page 1 of 27 Pageid#: 4233

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION

HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
v.
SOUTHWEST VIRGINIA REGIONAL JAIL AUTHORITY, ET AL.,
Defendants.

) ) ) ) Case No. 1:18CV00013 ) ) OPINION AND ORDER ) ) By: James P. Jones ) United States District Judge ) ) )

Thomas G. Hentoff, Sean M. Douglass, and Thomas S. Chapman, WILLIAMS & CONNOLLY LLP, Washington, D.C., Bruce E. H. Johnson, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, and Daniel Marshall, HUMAN RIGHTS DEFENSE CENTER, Lake Worth, Florida, for Plaintiff; Katherine C. Londos and Nathan H. Schnetzler, FRITH ANDERSON + PEAKE, P.C., Roanoke, Virginia, for Defendants.

In this suit by a prisoners’ rights organization against a jail authority and its

superintendent under 42 U.S.C. § 1983, I previously granted summary judgment for

the plaintiff on its First Amendment claim against the jail authority and on its due

process claim against both defendants. The parties stipulated to compensatory

damages in the amount of $1,500, and the plaintiff agreed to waive its demand for

punitive damages against the superintendent on the due process claim. I then entered

a permanent injunction. The plaintiff has now moved for an award of attorneys’ fees

and costs pursuant to 42 U.S.C. § 1988. For the reasons that follow, I will award the

plaintiff its fees and costs, but in a reduced amount.

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I. The plaintiff in this case, Human Rights Defense Center (“HRDC”), is a nonprofit organization that, among other things, distributes books, magazines, and other information concerning legal news, prisoners’ rights, and current events to prisoners. Defendant Southwest Virginia Regional Jail Authority (“Jail Authority”) prohibited all inmates in its several jails in this area of Virginia from obtaining any magazine or from obtaining a book without prior permission to order the book in question. The facts of this case are set forth in detail in my opinion granting in part and denying in part the plaintiff’s motion for summary judgment. Human Rights Def. Ctr. v. Sw. Va. Reg’l Jail Auth., 396 F. Supp. 3d 607 (W.D. Va. 2019). In summary, I held that the Jail Authority had violated HRDC’s First Amendment rights by (1) prohibiting inmates from receiving books except those preapproved by the Jail Authority; and (2) prohibiting inmates from receiving any magazines. I further held that the Jail Authority and Superintendent Stephen Clear had violated HRDC’s due process rights under the Fourteenth Amendment by rejecting or confiscating HRDC’s mailings to prisoners without providing adequate notice of the reason for the rejection and an opportunity for HRDC to appeal the decision. HRDC began sending publications to Jail Authority inmates in 2016. HRDC, which frequently litigates cases similar to this one, employs four or five in-house
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attorneys and several paralegals. Its in-house attorneys began recording time related to the Jail Authority dispute on May 23, 2016. HRDC retained the law firm of Williams & Connolly LLP (“W&C”), based in Washington, D.C., in December 2017, and attorneys from that firm began recording time related to the dispute on January 30, 2018. HRDC filed its Complaint on March 28, 2018.
HRDC seeks an award of fees for the work of ten attorneys and three paralegals. These timekeepers include Thomas Hentoff, Partner, W&C (41.8 hours); Sean Douglass, Associate, W&C (614.5 hours); Chelsea Kelly, former Associate, W&C (66.6 hours); Thomas Chapman, Associate, W&C (164.1 hours); Daniel Marshall, General Counsel, HRDC (236.5 non-travel hours plus 12.5 travel hours); Lance Weber, former General Counsel, HRDC (2.3 hours); Sabarish Neelakanta, former General Counsel, HRDC (5.0 hours); Eric Taylor, Staff Attorney, HRDC (8.7 hours); Deborah Golden, former Staff Attorney, HRDC (11.3 hours); Masimba Mutamba, former Staff Attorney, HRDC (10.1 hours); and HRDC Paralegals, (172.2 hours). It seeks payment at the following hourly rates: $390 for Hentoff; $250 for Douglass; $225 for Kelly; $200 for Chapman; $380 for Marshall’s nontravel time and $190 for his travel time; $390 for Weber; $350 for Neelakanta; $350 for Taylor; $380 for Golden; $250 for Mutamba; and $125 for the HRDC paralegals. HRDC asserts that it has removed from its request hundreds of hours expended on
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this case and has reduced the usual rates of the W&C attorneys by more than half. HRDC further requests reimbursement of expenses in the amount of $16,053.59,1 a number that likewise reflects significant reductions from the actual expenses incurred in the course of litigating this matter.
The defendants object on numerous grounds to both the number of hours and the hourly rates sought by HRDC, as well as to certain expenses HRDC seeks to recover. The motion for fees and costs has been fully briefed and is ripe for decision.
II. In a federal civil rights action such as this one, “the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney’s fee as part of the costs.” 42 U.S.C.A. § 1988(b). A fee is reasonable if it would be “sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Purdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552 (2010). The first step in determining a reasonable fee is to calculate the so-called lodestar figure, which consists of a reasonable number of hours expended on the litigation multiplied by a reasonable hourly rate. McAfee v. Boczar, 738 F.3d 81, 88
1 HRDC initially requested costs of $18,621.60, but in its reply brief, it agreed to reduce its request in response to certain objections raised by the defendants.
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(4th Cir. 2013). In the Fourth Circuit, “[t]o 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. The Johnson factors are:
(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. McAfee, 738 F.3d at 88 n.5.
In determining the reasonable number of hours, I should exclude any recorded
hours that were not reasonably expended. “Cases may be overstaffed, and the skill
and experience of lawyers vary widely.” Hensley v. Eckerhart, 461 U.S. 424, 434
(1983). “Hours that are not properly billed to one’s client also are not properly billed
to one’s adversary pursuant to statutory authority.” Id. (internal quotation marks
and citation omitted). The Fourth Circuit has recognized the “need to avoid the use
of multiple counsel for tasks where such use is not justified by the contributions of
each attorney” and has noted that “[g]eneralized billing by multiple attorneys on a
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large case often produces unacceptable duplication.” Rum Creek Coal Sales, Inc. v. Caperton, 31 F.3d 169, 180 (4th Cir. 1994).
The party seeking fees bears the burden of proving that the hourly rate sought is reasonable. McAfee, 738 F.3d at 91. “The relevant market for determining the prevailing rate is ordinarily the community in which the court where the action is prosecuted sits.” Rum Creek, 31 F.3d at 175. “In circumstances where it is reasonable to retain attorneys from other communities, however, the rates in those communities may also be considered.” Id. The prevailing party bears the burden of proving “what attorneys earn from paying clients for similar services in similar circumstances.” Depaoli v. Vacation Sales Assocs., L.L.C., 489 F.3d 615, 622 (4th Cir. 2007) (quoting Rum Creek, 31 F.3d at 175).
“[T]he lodestar method produces an award that roughly approximates the fee that the prevailing attorney would have received if he or she had been representing a paying client who was billed by the hour in a comparable case.” Purdue, 559 U.S. at 551. The goal in calculating a fee award “is to do rough justice, not to achieve auditing perfection.” Fox v. Vice, 563 U.S. 826, 838 (2011). Thus, “courts may take into account their overall sense of a suit, and may use estimates in calculating and allocating an attorney’s time.” Id.
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After determining the lodestar figure, I must deduct fees for any hours spent on unsuccessful claims that are unrelated to successful claims. Hudson v. Pittsylvania Cty., 774 F.3d 231, 237 (4th Cir. 2014). I should then award a percentage of the remaining fee amount based on the plaintiff’s degree of success in the litigation. Id.
Here, as is often the case, attorney’s fees will not be paid by the individuals who violated the plaintiff’s rights. It is therefore important to calculate a fee that is adequate but that does not create “windfalls to attorneys.” City of Riverside v. Rivera, 477 U.S. 561, 580 (1986) (internal quotation marks and citation omitted).
III. A. Lodestar Figure.
1. Hours. The time records submitted by HRDC reveal that overstaffing clearly resulted in an excessive expenditure of time on this case. The large number of timekeepers working on this matter was due in part to turnover at HRDC and W&C rather than intentional staffing decisions. Nevertheless, the defendants should not be required to pay fees incurred due to the duplication of effort that inevitably happens when so many attorneys and paralegals work on a case.
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W&C Partner Thomas Hentoff and W&C Associate Sean Douglass were involved in this case from the time W&C was first retained, which was approximately three months prior to the filing of the Complaint. Hentoff and Douglass together recorded most of the hours claimed by W&C. This case was not particularly complex, and I find that it would have been reasonable for a firm to staff the matter with one partner and one associate. To eliminate excess hours billed by W&C Associates due to duplication of effort, a need to bring them up to speed on the matter, and their limited experience, I will disallow the hours recorded by Kelly and Chapman.
Similarly, I find it appropriate to award fees for the work of only the two most involved in-house attorneys, General Counsel Daniel Marshall and former Staff Attorney Deborah Golden. Marshall’s work on the case began on March 31, 2017, a year before the Complaint was filed, and continued through briefing of the motion for attorneys’ fees. I will therefore disallow the relatively small number of hours recorded by Weber, Taylor, Neelakanta, and Mutamba. While these other attorneys may have made meaningful contributions to the case, I conclude that restricting fees to the hours expended by two in-house counsel and two outside counsel — four attorneys rather than ten — provides an appropriate starting point for determining
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the number of hours reasonably expended on this case. I will also award fees for the work of the three HRDC paralegals, subject to the reductions indicated below.
Douglass performed most of the legal research, brief writing, and other drafting in this case on behalf of HRDC. HRDC filed briefs in support of its Motion for Preliminary Injunction, its Motion for Summary Judgment and Permanent Injunction, and supplemental briefing in support of a permanent injunction. In addition, HRDC submitted briefs in opposition to the defendants’ Motion for Summary Judgment, Motion to Dismiss for Lack of Jurisdiction, and Motion to Exclude Plaintiff’s Expert. Both parties filed and briefed motions in limine. Douglass edited the Complaint, prepared responses to discovery requests, and drafted discovery requests, various affidavits, correspondence to opposing counsel, and jury instructions. He conducted witness interviews and prepared for and participated in two hearings, a telephonic status conference, and several depositions. He also briefed the motion for fees and costs. HRDC seeks compensation for 614.5 hours of Douglass’ time.
While Douglass performed high-quality work in this case, it appears that the amount of time he expended was due in part to his limited experience and in part to unnecessarily reinventing the wheel. HRDC has litigated numerous similar cases throughout the country. Marshall’s declaration in support of the motion for fees lists
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30 examples of federal cases since the year 2000 in which HRDC or its predecessor, Prison Legal News, was the plaintiff, and which involved the First Amendment rights of prisoners and their correspondents. This case asserted two straightforward constitutional claims. It would have been reasonable for Douglass to use pleadings, motions, briefs, and instructions from HRDC’s prior cases as a starting point for the work he did in this case, which should have significantly reduced the number of hours required for research and drafting. I therefore find that a 25% reduction in Douglass’ hours is appropriate. I will reduce Douglass’ hours from 614.5 to 460.9. That number is the equivalent of nearly three months of full-time work on this case over a period of approximately two and a half years, which I find to be adequate given that HRDC will also be compensated for the work of three additional attorneys and three paralegals.
The defendants argue that once W&C was retained and the Complaint was filed, HRDC’s in-house attorneys primarily served as client liaisons to outside counsel and performed little compensable legal work. The defendants request a reduction in an unspecified percentage to all time recorded by HRDC’s in-house attorneys after the filing of the Complaint. I have reviewed all the submitted postComplaint time entries recorded by Marshall and Golden, and I reject the defendants’ contention. Both attorneys performed substantive legal work, such as
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revising pleadings and motions and preparing for depositions. I decline to reduce the number of hours expended by Marshall and Golden on that basis.
The defendants request an unspecified reduction in the hours recorded by HRDC’s paralegals due to block billing, billing for internal conferences, and billing for clerical tasks and tasks not directly in support of the litigation, such as updating subscriber lists. Block billing, where a timekeeper lists more than one task under the same time entry, makes it difficult to distinguish compensable tasks from noncompensable tasks. Purely clerical tasks such as mailing items and scheduling are generally considered part of an attorney’s overhead and typically are not compensable at a paralegal rate. Missouri v. Jenkins ex rel. Agyei, 491 U.S. 274, 288 n.10 (1989). Examples of compensable paralegal tasks include “factual investigation, including locating and interviewing witnesses; assistance with depositions, interrogatories, and document production; compilation of statistical and financial data; checking legal citations; and drafting correspondence.” Id.
The time records of HRDC’s paralegals contain several entries for mailing items to co-counsel and inmates, a number of block-billed entries, and entries for activities like verifying prisoner custody status and updating databases. In many cases, it is difficult to determine whether the paralegals’ activities were conducted as part of preparing pleadings, exhibits, or briefs to be filed with the court, or whether
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they were simply part of HRDC’s normal operations of sending materials to incarcerated persons. In addition, the paralegals recorded a large number of time entries for very brief internal meetings. Often, no specific task was performed immediately following such a meeting. It is unclear whether these meetings represent status updates or meetings where an attorney simply gave a paralegal an assignment. Because of these various issues with the time entries of the HRDC paralegals, I will apply a 25% reduction to all paralegal time for which HRDC seeks compensation.
The aforementioned reductions produce the following numbers of hours reasonably expended:
x Thomas Hentoff, Partner, W&C: 41.8 hours; x Sean Douglass, Associate, W&C: 460.9 hours; x Daniel Marshall, General Counsel, HRDC: 236.5 non-travel hours
plus 12.5 travel hours; x Deborah Golden, former Staff Attorney, HRDC: 11.3 hours; and x HRDC Paralegals: 129.15 hours, for a total of 750.5 attorney non-travel hours, 12.5 attorney travel hours, and 129.15 paralegal hours.
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The defendants request an 80% reduction in the number of hours recorded prior to the filing of the Complaint. They contend that it was improper for HRDC to spend more than a year and a half and in excess of 160 hours working on this case before filing suit. The reductions in hours I have already applied have the effect of reducing the pre-Complaint hours from 161.3 to 93.3, or approximately 58% of the pre-Complaint hours for which HRDC requested compensation. While this reduction is not as large as that requested by the defendants, I find that no further reduction in the number of pre-suit hours is appropriate. HRDC was required to gather factual information about confiscations at four Jail Authority facilities, communicate with numerous inmates, submit appeal forms, and attempt informal resolution before it could file its Complaint. The fact that this work occurred over a lengthy period of time is not in itself a sufficient reason to disallow compensation for hours incurred in 2016 and 2017, before W&C was retained and the case was ultimately filed.
Several of the Johnson factors support my conclusion that the numbers of attorney and paralegal hours listed above represent reasonable hours expended. Regarding the first Johnson factor, the starting point for calculating these numbers was the number of hours for which HRDC sought compensation, which I then adjusted downward to account for duplicative, excessive, and unclear billing.
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HRDC represents that it already removed hundreds of hours from its time logs. While HRDC had a duty to exercise billing judgment prior to submitting its request for fees, its efforts in that regard do not prevent me from further reducing its recorded time in order to reach a number that I find reasonable given the facts and circumstances of the case. Applying the second Johnson factor, as I noted above, this case did not present particularly novel or difficult legal questions that would justify a larger expenditure of time. Rather, HRDC had previously litigated many similar cases. Similarly, this straightforward litigation did not demand the kind of special skills contemplated by the third Johnson factor. Considering these factors, I find that the number of hours produced by my stated reductions is a reasonable number of hours expended on this litigation. To the extent the defendants request elimination or reduction of specific line items on HRDC’s time logs, I find that no further reductions are warranted.
2. Rates. HRDC requests compensation for its attorneys and paralegals at the following hourly rates:
x $390 for Hentoff; x $250 for Douglass; x $380 for Marshall’s non-travel time, and $190 for his travel time;
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x $380 for Golden; and x $125 for HRDC Paralegals. In support of these rates, HRDC has filed a declaration of Brenda E. Castañeda, a civil rights attorney who practices with the Legal Aid Justice Center and teaches at the University of Virginia School of Law, both located in Charlottesville, Virginia. She has also practiced with Blue Ridge Legal Services in Harrisonburg, Virginia. In addition, Douglass declares that the rates sought by him and Hentoff are less than half of their usual hourly rates. HRDC also cites a number of cases within the Western District of Virginia in which attorneys with similar levels of experience were awarded fees at hourly rates similar to those they request. The defendants contend that the rates sought by HRDC are excessive. They instead propose the following rates: x $350 for Hentoff; x $175 for Douglass; x $225 – 250 for Marshall’s non-travel time, and no compensation for his travel time; and x $250 – 300 for Golden. In support of these rates, the defendants have submitted a declaration of Lori J. Bentley, a Roanoke-based attorney who has represented the Jail Authority in the
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past and whose firm appears to currently represent the Jail Authority. This apparent conflict of interest undermines the credibility of Bentley’s opinions. Nevertheless, she notes that she previously advised similar hourly rates in another case in which HRDC was the plaintiff and which did not involve the Jail Authority. See Aff. of Lori J. Bentley, Prison Legal News v. Nw. Reg’l Jail Auth., No. 5:15-CV-00061 (W.D. Va. Jan. 31, 2020), ECF No. 133-1.
Hentoff has 29 years of experience, including significant experience litigating cases involving 42 U.S.C. § 1983 and First Amendment claims. He co-chairs W&C’s First Amendment and Media practice group and also works in the areas of intellectual property litigation and complex civil litigation. He has led teams that won Washington Lawyers’ Committee Outstanding Achievement Awards for their pro bono representation of clients in prisoners’ rights matters.
Douglass has 8 years of experience, including three years of judicial clerkships in federal district and appellate courts, two years with the U.S. Department of Justice’s Office of Legal Policy, and approximately three years with W&C.
Marshall has 17 years of experience, mostly in the realm of criminal defense. He joined HRDC in 2017 and became General Counsel in 2019.
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Golden has 21 years of experience, including extensive experience in civil rights litigation and prisoners’ rights litigation in particular. In addition to her work with several other civil rights-focused non-profit organizations, she served four years as the director of the DC Prisoners’ Project of the Washington Lawyers’ Committee for Civil Rights & Urban Affairs. She has lectured and taught at the University of Virginia School of Law and the Georgetown University Law Center.
I find that the relevant community for determining rates in this case is southwest Virginia, where this court sits. As this case was not particularly complex or undesirable, I conclude it would have been possible for HRDC to obtain counsel located in the Abingdon or Roanoke divisions of the Western District of Virginia. Having considered the opinions of Castañeda and Bentley, my own knowledge of customary rates in the southwest Virginia legal community, the particular needs of this case, and fee awards in similar cases, I find the following hourly rates to be reasonable and will apply them in calculating the lodestar figure:
x $350 for Hentoff; x $225 for Douglass; x $300 for Marshall’s non-travel time and $150 for his travel time; x $300 for Golden; and x $125 for paralegals.
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While Hentoff has significant experience and a national reputation (Johnson factor nine), this case did not present novel or difficult questions (Johnson factor two) or require specialized skills (Johnson factor three). There is no indication that Hentoff’s involvement in this matter came with any significant opportunity costs (Johnson factor four). While he supervised the W&C Associates who worked on this case, his direct involvement in the matter was relatively minimal. The case posed no unusual time limitations (Johnson factor seven). Contrary to the opinion of Castañeda, I do not find this case to have been particularly undesirable within the relevant legal community (Johnson factor ten).
Regarding the fifth and twelfth Johnson factors, five years ago, I found $300 to be a reasonable hourly rate for a partner-level attorney in an employment discrimination case against a government entity in southwest Virginia. Atkins v. Va. Dep’t of Transp., No. 1:13CV00057, 2015 WL 858870, at *3 (W.D. Va. Feb. 27, 2015). The attorneys in that case had approximately one third as many years of experience as Hentoff, so I conclude that an upward adjustment is appropriate here. Two years ago, in a civil rights case by a former inmate against the Virginia Department of Corrections, I again found that $300 an hour was a reasonable rate for a partner-level attorney in this geographic area. Latson v. Clarke, No. 1:16CV00039, 2018 WL 5802473, at *2 (W.D. Va. Nov. 6, 2018). That attorney
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had about half as many years of experience as Hentoff, and I find that Hentoff’s additional experience justifies the higher rate of $350 here. An hourly rate of $350 for Hentoff also mirrors the partner-level rate awarded last year in an employment case against another public entity in the Roanoke division of the Western District of Virginia. Stultz v. Virginia, No. 7:13CV00589, 2019 WL 4741315, at *5 (W.D. Va. Aug. 15, 2019) R. & R. adopted in relevant part, 2019 WL 4740241 (Sept. 27, 2019).2
Douglass has practiced with W&C for approximately three years and had only recently joined the firm when this case was filed. While he undoubtedly gained significant knowledge and experience in his three years of federal clerkships and two years with the Department of Justice, he appears to have had little actual litigation experience when he began working on this case. His resume does not reveal any specialized knowledge or experience in the areas of First Amendment, prisoners’ rights, or civil rights litigation (Johnson factor nine). I therefore find the requested hourly rate of $250 to be excessive for the relevant legal market. A rate of $225 is
2 HRDC cites Quesenberry v. Volvo Grp. N. Am., Inc., No. 1:09CV00022, 2010 WL 2836201, at *8 (July 20, 2010), R. & R. adopted, 2010 WL 3521996 (W.D. Va. Sept. 3, 2010), in support of its request for a higher rate for Hentoff. Quesenberry was a class action asserting claims under the Labor Management Relations Act and the Employee Retirement Income Security Act. It was a significantly more complex case than this one and required a greater degree of skill. I find that the rates deemed reasonable in Quesenberry do not support awarding fees at the same rates in this case.
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reasonable in this geographic area for an attorney of Douglass’ experience level. See Latson, 2018 WL 5802473 at *2 (finding rate of $225 to be reasonable for associate attorney with five years of experience); Stultz, 2019 WL 4741315 at *5 (awarding rate of $225 for associate attorneys).
Marshall has extensive experience as a litigator, although his experience in civil cases is more limited. While as General Counsel with 17 years of experience, I consider him to be a partner-level attorney, he is far less experienced than Hentoff, particularly in First Amendment and prisoners’ rights litigation. I find that a rate of $300 per hour is appropriate for Marshall. This rate reflects his experience and reputation (Johnson factor nine) and is in line with the rates I have found reasonable for attorneys of similar experience in similar cases in this legal market (Johnson factors five and twelve). See Latson, 2018 WL 5802473 at *2; Atkins, 2015 WL 858870 at *3. In accord with customary practice and HRDC’s request, I find that Marshall’s travel time should be compensated at half his usual rate, or $150 per hour.
Golden has extensive experience in the realm of prisoners’ rights litigation and has more years of overall experience than Marshall, albeit fewer years of experience than Hentoff. Her tenure at HRDC as a Staff Attorney was brief, and her involvement in this case was limited. While the role of Staff Attorney is not
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equivalent to a partner-level position, I find a rate of $300 per hour to be reasonable for Golden based on her significant experience (Johnson factor nine).
Finally, HRDC requests a rate of $125 per hour for each of its paralegals which the defendants do not contest.
Applying these rates to the reasonable hours expended, I find a total fee of $210,691.25 to be appropriate in this case.
My calculation of the lodestar figure incorporates most of the Johnson factors. I do not find that any of the remaining Johnson factors warrants an enhancement or reduction in the lodestar amount. HRDC contends that its pursuit of this litigation prevented it from pressing other litigation elsewhere in the country (Johnson factor four), but I am unpersuaded by that assertion given that it was actively litigating several other cases at the same time as this one, including one in the Roanoke division of this court. The amount in controversy in this case was not particularly large, but HRDC sought and obtained preliminary and permanent injunctive relief as well as declaratory relief (Johnson factor eight). Nonetheless, I do not believe HRDC’s success in this regard warrants any enhancement of the lodestar figure. I find that the lodestar figure of $210,91.25 represents a reasonable number of hours expended on this litigation multiplied by reasonable hourly rates for the listed attorneys and paralegals.
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B. Adjustments for Unsuccessful Claims and Degree of Success Achieved. HRDC was successful at virtually every stage of this litigation. At the summary judgment stage, I found that defendant Clear was entitled to qualified immunity on HRDC’s First Amendment claim. That holding, however, does not detract from HRDC’s success because the claim against Clear was inextricably intertwined with the First Amendment claim against the Jail Authority. All the claims asserted in this case shared a common core of facts and cannot be considered unrelated to one another. Thus, no adjustment to the lodestar is warranted to account for unsuccessful claims. In considering the degree of success obtained, I am required to compare the amount of damages sought to the amount recovered. McAfee, 738 F.3d at 93. The Complaint in this case did not seek a specified amount of damages; rather, it demanded nominal, compensatory, and punitive damages in amounts to be proved at trial. In an effort to streamline the litigation, HRDC ultimately agreed to waive its claim for punitive damages, and the parties agreed to compensatory damages of $750 for the First Amendment claim and $750 for the due process claim. HRDC also sought declaratory relief and a preliminary and permanent injunction, both of which it obtained. In my view, securing declaratory and injunctive relief was HRDC’s primary goal in this suit. It therefore achieved a high
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degree of success. I thus conclude that it is entitled to receive 100% of the lodestar amount of $210,691.25.
This fee would be adequate to induce a competent attorney in the relevant market to undertake representation of a case like this. I therefore conclude that $210,691.25 is a reasonable attorney’s fee under § 1988 and satisfies the purposes of the fee-shifting statute.
C. Expenses. Under § 1988, a prevailing plaintiff in a civil rights action is entitled to recover “those reasonable out-of-pocket expenses incurred by the attorney which are normally charged to a fee-paying client, in the course of providing legal services.” Spell v. McDaniel, 852 F.2d 762, 771 (4th Cir. 1988) (citation omitted); see also Daly v. Hill, 790 F.2d 1071, 1083–84 (4th Cir. 1986). HRDC seeks reimbursement for postage, airfare, hotel lodging, meals, taxis, rental cars, gasoline, parking fees, tolls, the filing fee for the Complaint, court reporter fees, and process server fees. The travel expenses sought are related to counsel’s attendance at witness interviews, court hearings, and depositions. HRDC asserts that it has already eliminated numerous expenses it incurred in litigating this case and seeks payment of only select essential costs.
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The defendants argue that HRDC is not entitled to reimbursement for airfare, car rentals, and gasoline expenses for travel from Washington, D.C. to hearings, interviews, and depositions that took place within the Western District of Virginia. Instead, the defendants contend that this travel should be reimbursed at the thenapplicable government mileage rate. The defendants also argue that the airfare prices for W&C counsel’s flights from Washington, D.C. to Tucson, Arizona, and Fort Lauderdale, Florida, are unreasonably expensive. In addition, they assert that local travel expenses to and from airports and rental car facilities, such as taxi fares and parking fees, are not compensable. In response to these objections, “HRDC amends its request to further reduce airfare costs for W&C attorneys by half (from $3,991.22 to $1,995.61) and car rental and gasoline costs to apply Defendants’ proposed mileage rate (from $751.56 to $697.16).” Pl.’s Reply Br. 21, ECF No. 139. I will accept HRDC’s concession as reasonable.
The defendants contest the travel costs incurred by HRDC’s corporate designee Paul Wright to attend the organization’s deposition. Wright is based in Florida and flew to Washington, D.C., to testify at HRDC’s Rule 30(b)(6) deposition. The defendants first contend that Wright was a party to the case, and the costs of witnesses who are parties are not reimbursable. Alternatively, they argue that the presumptive location of a corporate deposition is the place in which the suit
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Case 1:18-cv-00013-JPJ-PMS Document 140 Filed 08/24/20 Page 25 of 27 Pageid#: 4257
was filed. They therefore contend that HRDC is not entitled to reimbursement for any of Wright’s travel costs related to attendance at the deposition. HRDC responds that Wright was not a party to the case and that it was the defendants’ decision to depose HRDC in Washington, DC, rather than in Abingdon.
The defendants object to Marshall’s travel costs to attend the summary judgment hearing on the ground that other attorneys represented HRDC at the hearing and Marshall did not actively participate in orally arguing the pending motions. In response, “to minimize disputes and further streamline the issues before the Court, HRDC amends its request for litigation expenses incurred by HRDC’s General Counsel to eliminate from the HRDC Expense Record the round-trip cost of his flight to the hearing ($518.00).” Id. at 22.
The defendants object to Hentoff’s travel costs to attend the preliminary injunction hearing and summary judgment hearing on the same grounds as Marshall’s. HRDC counters that Hentoff contributed by advising the associates who examined witnesses and argued the motions.
I reject the defendants’ arguments regarding the travel expenses of Hentoff and Wright. I find that Wright’s travel to HRDC’s Rule 30(b)(6) deposition in Washington, D.C. was reasonable. I further find that it was reasonable for Hentoff,
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Case 1:18-cv-00013-JPJ-PMS Document 140 Filed 08/24/20 Page 26 of 27 Pageid#: 4258
as a supervising partner, to attend the preliminary injunction and summary judgment hearings. I will therefore award travel-related expenses for Wright and Hentoff.
While HRDC has withdrawn its request for reimbursement of Marshall’s airfare to travel to the summary judgment hearing, it has not withdrawn its request for reimbursement of his rental car, gasoline, airport parking, and meal expenses. I find that Marshall’s attendance at the summary judgment hearing was reasonable and will allow the expenses.
As I have held that no fees will be awarded for the hours recorded by Kelly and Chapman, I will also decline to award reimbursement of their airfare and lodging expenses.
The allowed expenses total $14,871.89. I will require the defendants to reimburse HRDC for reasonable litigation expenses in that amount.
IV. For the reasons given, it is ORDERED that the plaintiff’s Motion for Attorneys’ Fees and Costs, ECF No. 134, is GRANTED as modified by this Opinion and Order. Defendants Southwest Virginia Regional Jail Authority and Stephen Clear shall pay plaintiff Human Rights Defense Center attorneys’ fees in the amount of $210,691.25 and expenses in the amount of $14,871.89, for a total of $225,563.14.
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Case 1:18-cv-00013-JPJ-PMS Document 140 Filed 08/24/20 Page 27 of 27 Pageid#: 4259
ENTER: August 24, 2020 /s/ JAMES P. JONES United States District Judge
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 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION

HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
v.
SOUTHWEST VIRGINIA REGIONAL JAIL AUTHORITY, ET AL.,
Defendants.

) ) ) ) Case No. 1:18CV00013 ) ) OPINION AND ORDER ) ) By: James P. Jones ) United States District Judge ) ) )

Thomas G. Hentoff, Sean M. Douglass, and Thomas S. Chapman, WILLIAMS & CONNOLLY LLP, Washington, D.C., Bruce E. H. Johnson, DAVIS WRIGHT TREMAINE LLP, Seattle, Washington, and Daniel Marshall, HUMAN RIGHTS DEFENSE CENTER, Lake Worth, Florida, for Plaintiff; Katherine C. Londos and Nathan H. Schnetzler, FRITH ANDERSON + PEAKE, P.C., Roanoke, Virginia, for Defendants.
In this suit by a prisoners’ rights organization against a jail authority and its
superintendent under 42 U.S.C. § 1983, I previously granted summary judgment for
the plaintiff on its First Amendment claim against the jail authority and on its due
process claim against both defendants. Earlier in the case, I had entered a
preliminary injunction, which remains in effect. Following the entry of summary
judgment, the parties agreed to an amount of compensatory damages, and the
plaintiff renewed its request for a permanent injunction. For the reasons that follow,
I will grant the plaintiff’s request and enter a permanent injunction.

I. The facts of this case are set forth in detail in my opinion granting in part and denying in part the plaintiff’s motion for summary judgment. Human Rights Def. Ctr. v. Sw. Va. Reg’l Jail Auth., 396 F. Supp. 3d 607 (W.D. Va. 2019). In summary, I held that the Southwest Virginia Regional Jail Authority (“Jail Authority”) had violated plaintiff Human Rights Defense Center’s (“HRDC”) First Amendment rights by (1) prohibiting inmates from receiving books except those preapproved by the Jail Authority; and (2) prohibiting inmates from receiving any magazines. I further held that the Jail Authority and Superintendent Stephen Clear had violated HRDC’s due process rights under the Fourteenth Amendment by rejecting or confiscating HRDC’s mailings to prisoners without providing adequate notice of the reason for the rejection and an opportunity for HRDC to appeal the decision. Based on these rulings, HRDC seeks a permanent injunction that orders as follows: a. Defendants shall deliver to incarcerated persons publications that
are mailed to them, subject to a reasonable inspection to ensure that any such publication does not present a threat to a legitimate penological interest. Defendants may remove any items in the mail that present a threat to a legitimate penological interest. Defendants may place reasonable limits on personal property that incarcerated persons possess in cells or common areas.
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b. If Defendants refuse for any reason to deliver any publication mailed to an incarcerated person, Defendants shall provide written notice to the sender within three (3) business days of the rejection, and shall provide the sender with an opportunity to appeal the rejection within at least fifteen (15) days from receipt of written notification of the rejection. Such written notice shall include, at minimum: (i) the name and address of the sender as well as the name of the intended recipient, (ii) a specific description of the refused publication, including reference to a specific issue if the publication is a periodical, (iii) a citation to the objectionable portion of the publication, (iv) an explanation why the publication threatens a legitimate penological interest; and (v) information regarding the sender’s right to appeal the rejection decision, including the name and address of the person to whom such an appeal should be addressed and the date by which any appeal must be submitted.
Pl.’s Proposed Order & Permanent Inj. 2–3, ECF No. 56-1.
The defendants argue that HRDC has not met its burden of showing that it is
entitled to a permanent injunction. They have submitted a declaration of
Superintendent Clear describing significant contemplated policy changes regarding
the Jail Authority’s handling of prisoner mail and publications. The defendants say
these planned changes undermine HRDC’s claim that it will suffer irreparable harm
in the absence of an injunction.
Specifically, Clear avers that approximately four months ago, the Jail
Authority “began negotiations with a third-party vendor for the purpose of
processing inmate mail off-site and delivery of inmate mail in electronic form via
tablets and kiosks in the facility housing units.” Defs.’ Mem. Opp’n Req. for
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Permanent Inj. Ex. A ¶ 4, ECF No. 121-1. The Jail Authority is currently involved in the procurement process and hopes to enter into a contract with the vendor this spring. The vendor will scan mailings to inmates in a high-resolution color format and send them to the Jail Authority, which will then inspect them and release them to inmates for electronic viewing.
Because inmates will possess significantly less paper mail under this system1 they will be permitted to receive a greater quantity of books shipped from publishers or checked out from a facility book room. “Books received at the facilities directly from a publisher will be inspected for contraband and reviewed for security concerns and then delivered to the inmate.” Id. at ¶ 9. Clear does not define contraband or indicate what security concerns might warrant rejecting a book; thus, it appears that the person inspecting each book will retain significant discretion in deciding whether to approve or reject the book. According to Clear, “[i]nmates no longer must obtain preapproval in order to receive books directly from a publisher.” Id. at ¶ 10. HRDC notes that the written policies in the record still require preapproval, and the defendants have not submitted any adopted or proposed written policy that does not require preapproval.
1 Mail from attorneys will still be sent directly to the Jail Authority facility where the inmate is housed, but attorneys will also have the option of emailing inmates.
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Additionally, Clear states that publications such as HRDC’s periodicals, which are sent directly from a publisher, will be processed by the third-party vendor like other inmate mail. Inmates will be able to access these publications on an electronic kiosk or tablet, which will also contain a messaging function similar to email. The kiosks and tablets will contain education courses, self-help materials, religious materials, and other content, along with a virtual law library, which inmates will be able to access for free. The tablets and kiosks will further offer streaming entertainment media. The Jail Authority “plans to supply tablets to each housing unit on a ratio of 1 tablet to 6 inmates.” Id. at ¶ 16.
II. To obtain a permanent injunction, “A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, 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.” Christopher Phelps & Assocs., LLC v. Galloway, 492 F.3d 532, 543 (4th Cir. 2007) (quoting eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006)). Whether to grant an injunction is a decision within the court’s equitable discretion. Id.
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“As to irreparable injury, it is well established that the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Legend Night Club v. Miller, 637 F.3d 291, 302 (4th Cir. 2011) (internal quotation marks, alterations, and citation omitted). “Moreover, monetary damages are inadequate to compensate for the loss of First Amendment freedoms.” Id. I therefore find that HRDC has satisfied the first two factors.
The record reveals no indication that the proposed injunction would result in any hardship to the defendants, who have already been complying with a similar preliminary injunction for more than a year and a half. See Prelim. Inj., July 3, 2018, ECF No. 38. As I found in my summary judgment opinion, “[t]here is no evidence that there have been any problems related to books within the Jail Authority’s facilities since the court’s preliminary injunction went into effect.” Human Rights Def. Ctr., 396 F. Supp. 3d at 619. Likewise, there is no evidence showing any significant burden or safety issue related to delivery of magazines since the entry of the preliminary injunction. Id. at 622. I find that the third factor, the balance of hardships, weighs in favor of entering a permanent injunction.
“[U]pholding constitutional rights is in the public interest.” Legend Night Club, 637 F.3d at 303. Furthermore, as I previously noted, “[p]roviding adequate reading material to inmates serves the interest of rehabilitating inmates and of
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preventing security problems by avoiding idleness, boredom, and disruptive behavior.” Human Rights Def. Ctr., 396 F. Supp. 3d at 616. HRDC has met its burden as to the fourth consideration for entry of a permanent injunction, and the defendants have not offered any evidence to show that the proposed injunction is likely to adversely affect any interest of the public.
The defendants argue that HRDC has not shown that they are likely to violate its rights in the future because of the contemplated policy changes regarding mail delivery and because they have instituted a confiscation appeal period of fourteen days. They also argue that Clear’s entitlement to qualified immunity on the First Amendment claim counsels against the entry of an injunction, although the reasoning behind that argument is not well-explained.
While the defendants do not specifically frame their position in terms of mootness, they appear to argue that their voluntary change in policy moots any need for an injunction. In order for the defendants’ voluntary cessation to moot the request for an injunction, the defendants would have to show that “it is absolutely clear the allegedly wrongful behavior could not reasonably be expected to recur.” Porter v. Clarke, 852 F.3d 358, 360 (4th Cir. 2017) (quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190 (2000)). “In the context of conditions of confinement cases, in particular, courts have found that a change
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that completely and irrevocably eradicates the effects of the condition or policy subject to challenge renders an action moot.” Id. at 364 (internal quotation marks, alterations, and citations omitted). “By contrast, a defendant fails to meet its heavy burden to establish that its allegedly wrongful behavior will not recur when the defendant retains the authority and capacity to repeat an alleged harm.” Id. (internal quotation marks and citation omitted). “In the context of litigation regarding the policies governing prisoners’ conditions of confinement, in particular, courts have refused to find a challenge to an abandoned policy or practice moot when the prison refuses either to promise not to resume the prior practice . . . or to otherwise unambiguously terminate the challenged practice.” Id. at 365 (internal quotation marks, alterations, and citations omitted).
I find the defendants’ arguments unpersuasive, primarily because the anticipated policy and procedural changes have not yet been implemented. Moreover, even if they are implemented in short order, the defendants retain the right to change them at any time. The expected changes described by Clear thus do not provide adequate protection of HRDC’s rights at the present time.
The defendants also assert that the $1,500 in compensatory damages to which they have agreed, along with an as-yet-undetermined award of attorneys’ fees and costs in this case and the prospect of future litigation costs, provide adequate
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deterrence to prevent them infringing HRDC’s rights in the same way in the future. Of this, too, I am unpersuaded. While these litigation-related expenses surely do provide some deterrent effect, I find that a clear directive is needed to ensure that HRDC’s rights are not violated again in the future.
The defendants argue that the requested relief is overly broad and insufficiently specific, essentially directing them to follow the law. I disagree. Federal Rule of Civil Procedure 65(d)(1) requires that an injunction must “state its terms specifically” and “describe in reasonable detail — and not by referring to the complaint or another document — the act or acts restrained or required.” HRDC’s proposed injunction satisfies this rule. It does not merely tell the defendants that they must comply with the law. It includes exceptions for delivery of publications designed to protect the Jail Authority’s legitimate penological and security interests, rendering it narrowly tailored, and it sets forth in detail the requirements for all rejection notices.
The defendants complain that HRDC’s proposed injunction “places an undue burden on jail officials to determine when a sender ‘receives’ notice of a rejection.” Defs.’ Mem. Opp’n Req. for Permanent Inj. 7, ECF No. 121. That concern can be remedied by starting the appeal period on the date the Jail Authority sends the confiscation notice and extending the length of the appeal period beyond fourteen
9

calendar days to account for potential delays in mail delivery. I will craft the portion
of the permanent injunction addressing appeals accordingly.
Finally, the defendants argue that the proposed injunction does not comply
with the Prison Litigation Reform Act (“PLRA”). HRDC counters that the PLRA
does not apply to actions seeking to vindicate the civil rights of non-prisoners.
The PLRA provides,
Prospective relief in any civil action with respect to prison conditions shall extend no further than necessary to correct the violation of the Federal right of a particular plaintiff or plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that such relief is 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. The court shall give substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the relief. 18 U.S.C. § 3626(a). The PLRA applies to civil actions “with respect to the
conditions of confinement or the effects of actions by government officials on the
lives of persons confined in prison.” 18 U.S.C. § 3626(g)(2). “The PLRA
unambiguously applies to only those suits filed by prisoners.” Doe ex rel. Doe v.
Washington Cty., 150 F.3d 920, 924 (8th Cir. 1998).
Because this suit was not brought by a prisoner, but rather by HRDC to
vindicate its own constitutional rights, any injunction entered is not required to
comply with the PLRA. Even if the PLRA did apply here, I would find that the
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injunction to be entered does satisfy its requirements, as it is no broader than necessary to prevent the further violation of HRDC’s constitutional rights.
III. For the reasons given, it is ORDERED that the plaintiff’s motion for a permanent injunction is GRANTED. A separate Permanent Injunction and a Final Judgment will enter herewith.
ENTER: March 25, 2020 /s/ James P. Jones United States District Judge
11

 
 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA
ABINGDON DIVISION

HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
v.
SOUTHWEST VIRGINIA REGIONAL JAIL AUTHORITY, ET AL.,
Defendants.

) ) ) Case No. 1:18CV00013 ) ) ) OPINION AND ORDER ) ) By: James P. Jones ) United States District Judge ) ) )

Sean M. Douglass and Thomas S. Chapman, Williams & Connolly LLP, Washington, D.C., and Daniel Marshall, Human Rights Defense Center, Lake Worth, Florida, for Plaintiff; Nathan H. Schnetzler, Frith Anderson + Peake, P.C., Roanoke, Virginia, for Defendants.

The defendant jail authority prohibited prisoners in its jails from obtaining

magazines or other periodicals or from obtaining books unless the prisoner

received prior permission to order the book in question. A prisoners’ rights

organization sued under 42 U.S.C. § 1983, asserting that these policies violated its

First Amendment and due process rights as a publisher of magazines and books,

and seeking damages and injunctive relief. On cross motions for summary

judgment, I find sufficient evidence that the plaintiff’s rights were violated as

alleged, although I find that the jail authority’s superintendent is entitled to

qualified immunity as to the plaintiff’s First Amendment claim. The case will

proceed to a jury trial on damages, with a later hearing before the court to determine injunction relief.1
I. The following facts are taken from the summary judgment record and are undisputed except where noted. Plaintiff Human Rights Defense Center (“HRDC”) is a non-profit organization that, among other things, distributes to inmates books, magazines, and other information concerning legal news, prisoners’ rights, and current events. It is a small organization with approximately 19 employees. HRDC publishes two monthly magazines, Prison Legal News (“PLN”) and Criminal Legal News (“CLN”), which are both printed on black and white newsprint and bound with staples. PLN is 72 pages long and CLN is 48 pages long. The printer of the magazines prints individual addressee and pre-paid mailing information directly onto each issue and delivers bundles of the magazines, sorted by ZIP Code, to the United States Postal Service for delivery. Over the past 29 years, more than one million copies of PLN have been printed and delivered to inmates at more than 3,000 correctional facilities, including all state prisons in Virginia. In addition,
1 Suit was filed on March 28, 2018. The court entered a preliminary injunction on July 3, 2018, which prohibited the defendants from rejecting the plaintiff’s publications under certain circumstances.
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HRDC publishes an annual report that is printed and mailed in the same format as PLN and CLN.
HRDC also publishes and distributes a number of soft-cover books, which are printed in black-and-white with colored covers, bound with glue, and sent to recipients in cardboard boxes with mailing addresses printed directly on the boxes. Two such books are at issue in this litigation: Prisoners’ Guerrilla Handbook to Correspondence Programs in the United States and Canada (“Prisoners’ Guerrilla Handbook”), which provides information on educational and vocational programs available to inmates, and The Habeas Citebook: Ineffective Assistance of Counsel (“Habeas Citebook”), which contains legal analysis related to habeas corpus actions with citations to cases and statutes.
Defendant Southwest Virginia Regional Jail Authority (“Jail Authority”) operates four jails that house nearly 2,000 pretrial detainees and inmates serving short sentences. About 800 prisoners are held at the Abingdon facility, about 600 are held at the Duffield facility, about 300 are held at the Haysi facility, and about 200 are held at the Tazewell facility. The Jail Authority houses inmates of varying security levels ranging from minimum to maximum. The average length of stay at the Tazewell facility is 50 days, and the average length of stay at the other three facilities is 100 days. Many offenders are housed at one of the Jail Authority’s
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facilities for only a brief time, from several days to several weeks. The inmates are housed in housing units that each hold between eight and 90 prisoners. The Abingdon facility is the only facility with a housing unit that can hold 90 inmates, and that housing unit is not always filled. Defendant Stephen Clear, the Jail Authority’s superintendant, adopts policies governing the management and operations of the four jail facilities.
Each of the four facilities has a book room where donated books are stored. Prisoners are not permitted to visit the book rooms, and they are not given a list of the books contained in the book rooms. They can, however, request to borrow up to two books at a time every two weeks. They can ask staff whether certain books are available. Prisoners do not always receive each book they request to borrow, even if a prisoner’s family member donated the book with the intention of it reaching that particular prisoner.
Prisoners may order books from publishers or retailers through a preapproval process. Orders are approved only for books that the Jail Authority deems to be religious, legal, or educational. There is no written list of criteria for determining whether a book falls into one of these categories. PLN is considered non-legal mail, but the Jail Authority considers Habeas Citebook to be legal. Prisoners are given a canvas bag and can possess as many pieces of mail or books
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as will fit in the bag. There is no specific number of books that a prisoner is allowed to possess at one time, although Jail Authority personnel at the Abingdon facility have limited prisoners to two or four books. Each prisoner is allowed to possess no more than ten photographs.
Magazines are prohibited in the Jail Authority’s facilities. Prisoners may not order them, and the book rooms do not contain any for prisoners to borrow. Nor are prisoners allowed to order newspapers. The Jail Authority provides a daily copy of a national newspaper and a weekly copy of a local newspaper to each housing unit. The Jail Authority asserts that it does not have the staff resources to deliver newspapers and magazine subscriptions to individual inmates daily. However, HRDC suggests that delivering its mailings would require no greater expenditure of staff time than rejecting them, which is a cumbersome process. It further asserts that accumulation of newspaper and magazine subscriptions would create a fire hazard. In addition, inmates have frequently stuck newspaper and magazine clippings to cell walls and used them to cover vents.
Each of the facilities has a computer law cart, which is loaded with cases, statutes, and other legal materials provided by a third-party contractor. The law cart computers are not connected to the internet. Prisoners must request to use the law cart in advance and are allowed to use it once per day for 30 minutes, with
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longer periods of use occasionally permitted when there are no other prisoners waiting to use it. Sometimes prisoners have been scheduled to use the law carts but have not been given the opportunity to do so. The law carts are only available for inmates to access on weekdays. The law carts contain software called Casemaker, which offers federal and 50-state primary law coverage. Prisoners can purchase printed copies of materials from the law carts for 15 cents per page. The law carts are not used to their full capacity by inmates and often are not accessed for days at a time.
The Jail Authority generally rejects all publications mailed to prisoners in its custody, although employees have in their discretion permitted some publications to be delivered. A written policy titled “Inmate Communications” governs the acceptance or rejection of mail sent to prisoners. The version of the policy in effect from October 2017 through July 2018 contains the following provisions relevant to this action:
[Contraband is] [a]ny item or article in the possession of an inmate that they are not allowed to possess. For the purpose of this policy, contraband may be any item received through the mail that inmates are not allowed to possess.
. . . . Written notice of seizure of all inmate mail shall be given to the inmate and sender, whose mail is found to contain contraband. Such notice will contain the reason for the seizure. The sender shall have
6

the opportunity to appeal the decision to the Jail Administrator, unless the Seizure is held for criminal investigation.
. . . .
Magazines, newspapers, periodicals, or other such correspondence are disallowed. These items may be provided from the library.
. . . .
When deemed necessary to remove any item from incoming mail the Chief of Security or designee will be notified immediately. A written record shall be made in the form of an incident report in JMS. Such record shall include:
a. Inmate’s name and booking number. b. Description of the item in question. c. Description of the action taken and the reason for same. d. Disposition of the item involved.
. . . .
When contraband is found which is not otherwise illegal, but is not allowed in the possession of an inmate, a notice shall be sent to the inmate and the sender with a written reason for the seizure. The sender will be allowed the opportunity to appeal and challenge the seizure before the Chief of Security. Unless is it needed for a criminal investigation or prosecution, property which can legally be possessed outside the facility shall be returned to sender, placed in the inmate’s property to be returned upon release, or destroyed. The notice shall indicate the nature of the contraband and why it is being denied.
. . . .
If the original sender does not reply within a reasonable amount of time about the seizure within 5 business days, all such items described in # 3 above will be shipped to an address provided by the inmate at the inmates [sic] expense or destroyed at the inmates [sic] request.
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. . . Packages shall not be accepted. All packages shall be marked, “Return to Sender”, and placed in the outgoing mail (with the exception of Work Release inmates). Mem. in Supp. of Pl.’s Mot. for Summ. J. & Permanent Inj. Ex. 14 at 3-4, 6-7, ECF No. 57-14. The Inmate Communications policy was signed by Clear on October 10, 2017, and remained in place until July 2018, when this court issued a preliminary injunction in this case. The previous version of the policy, which was signed by Clear in 2013, was not materially different. The policies surrounding books were inconsistently communicated to inmates. One employee told an inmate that only religious materials sent directly from the publisher were allowed. Another employee told an inmate he could request legal materials from the library by writing to his counselor. Some inmates were told by staff that they were not allowed to order any books at all. In March 2016, a nearby jail authority entered into a consent decree with HRDC regarding similar issues, and Clear referenced that decree in an email in March 2016. Regarding the consent decree, Clear wrote, “Take a look at the decree, basically says we cannot stop magazines and books.” Id. at 2, ECF No. 5724. Clear contacted administrators of a number of other correctional facilities in
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Virginia and learned that many of them allow inmates to order books and magazines.
HRDC has sent publications to Jail Authority inmates since 2016, some solicited and some unsolicited. HRDC has a practice of sending complimentary sample copies of its magazines and books to inmates, who then have the option to subscribe to the magazines or purchase additional books. Various prisoners wrote to HRDC to say that they had not received the publications that were sent to them. The Jail Authority had confiscated many of the publications and had marked others “Return to Sender.”
When a Jail Authority mailroom employee decides to accept mail for delivery to a prisoner, the employee only needs to place it in a mail cart for distribution. When an employee decides to confiscate mail, however, the employee must place it in a bag, complete and file a confiscation form, send the form to the sender, await a response, and destroy the mail if no response is received. When mail is returned to the sender, the employee is supposed to write on the packaging the reason for its return.
At least 50 of HRDC’s books and magazines were confiscated across three of the Jail Authority’s four facilities, including 31 issues of PLN, 12 issues of CLN, six copies of Prisoners’ Guerrilla Handbook, and one copy of the Habeas
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Citebook. These confiscations are reflected in confiscation forms. No confiscation forms exist for confiscations at the Tazewell facility, although mailings were confiscated or rejected at that facility.
Before filing the instant suit, HRDC received seven confiscation forms from the Haysi facility, all of which pertained to confiscations of PLN. Two of the forms were dated December 15, 2016, and were received by HRDC four days later. The other five were dated January 18, 2017, and received by HRDC five days later. All seven forms stated the reason for confiscation as “NOT ALLOWED,” with no further elaboration. The forms stated that the confiscated magazines would be destroyed if no response was received within 10 days of the date of confiscation. HRDC did not appeal or attempt to contact the Jail Authority about the confiscations within the 10-day window. One form stated that the Jail Authority had destroyed an issue of PLN the day after it was confiscated because neither the sender nor the inmate had yet responded.
On February 22, 2016, the Chief of Security at the Duffield Facility issued a memorandum informing inmates that effective March 1, 2016, the facility would “no longer accept books from outside vendors” and that all books received at the facility after that date would be returned to the sender. Id. at Ex. 27 at 28, ECF No. 57-27. The Jail Authority adopted a policy in 2015 prohibiting books from outside
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vendors due to concerns about overcrowding and safety concerns. On June 1, 2016, the Jail Authority amended its policy to allow books to be ordered subject to preapproval on a case-by-case basis.
On January 26, 2017, HRDC sent the Jail Authority a letter appealing the confiscation of PLN issues to inmates at the Haysi facility. The letter did not reference a specific prisoner or issue, but rather referred to the broader “decision to censor PLN which was sent to numerous prisoner-subscribers.” Id. at Ex. 30 at 3, ECF No. 57-30. On the day the Jail Authority received the letter, Clear asked two employees whether the Jail Authority’s facilities allowed prisoners to receive PLN. He then discussed the letter with employees at each facility. The Jail Authority did not send a response to the letter.
Two to three months after the filing of this lawsuit, the Jail Authority completed 32 additional confiscation forms for HRDC’s mailings, which stated that the mailings had been confiscated because they were books, magazines, contained staples, or were “NOT ALLOWED FOR SECURITY REASONS.” Id. at Ex. 29 at 27, ECF No. 57-29. HRDC received only 11 of these 32 additional forms. Some forms stated that the sender could appeal within five business days, while others set an appeal deadline of 10 days.
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The Jail Authority sometimes returned mailings because the recipient was no longer housed at the facility, in which case an employee would write a message communicating that fact on the mail itself. Sometimes mail was refused and returned for no stated reason or for a vague reason such as “not allowed.” Id. at Ex. 3 at 56, ECF No. 57-3. HRDC indicates that it has received at least 176 returned mailings from the Jail Authority since 2016.
According to the Jail Authority, more than 200 pieces of mail were returned to HRDC because they were undeliverable as addressed. HRDC did not revise its subscription database after receiving notices that recipients were no longer housed at the facility identified. HRDC did not attempt to contact the facility to verify address information. HRDC looked up inmate locations on a Virginia Department of Corrections database, but the Jail Authority contends it has no control over that database and cannot guarantee its accuracy. According to the Jail Authority, HRDC could have used the Jail Authority’s own inmate locator database or contacted the Jail Authority directly, but it did not do so.
Providing adequate reading material to inmates serves the interest of rehabilitating inmates and of preventing security problems by avoiding idleness, boredom, and disruptive behavior. The Jail Authority has stated that it prohibits magazines and books because possession of them by inmates can pose a fire risk.
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Other Jail Authority policies restrict the amount of paper items and personal property an inmate can possess. Inmates are permitted to store a limited amount of property in the facilities’ property rooms, and when an inmate exceeds that limit, the inmate can choose to have the extra items destroyed or sent home at the inmate’s expense. Inmates may also possess as many mail items as will fit in a Jail Authority-issued canvas bag.
The Jail Authority has stated that it prohibits magazines because the staples used to bind them pose security risks. Inmates use the staples to fashion tattooing guns, weapons, and tampering devices. Fifty to 75% of the Jail Authority’s inmates have Hepatitis C, which can be spread through tattooing. Treating Hepatitis C is very costly for the Jail Authority. Injuries caused by staples and other sharp objects, inflicted on inmates by themselves or other inmates, can result in increased medical costs for the Jail Authority.
Jail Authority employees remove staples from legal mail before giving it to prisoners. Despite prohibiting staples in the facilities, inmates have managed to obtain staples, most often from documents brought to them by their attorneys. Other items regularly possessed by inmates can also pose security risks when used improperly, such as pens, and razors, and even socks.2
2 A common prison weapon is fashioned by placing a heavy object, such as a 13

HRDC is unaware of an alternative means of binding PLN and CLN that does not involve staples. If such a method existed, it would probably be costprohibitive. The Jail Authority notes, however, that HRDC could print its magazines tabloid-style, without staples, which it contends would be cheaper than binding them with staples. Were HRDC required to remove staples from the magazines, place the magazines in envelopes, and mail them separately to inmates at the Jail Authority, it would incur significantly more costs in doing so. Currently, the magazines are sent directly from the printer using a bulk mail rate.
The Jail Authority also contends that it has rejected HRDC’s softcover books because they contain colored paper and binding glue. The only colored ink appears on the covers of some of the softcover books. The concern with binding glue is that it could contain drugs. Typically, when an inmate orders a book from a publisher and the book is bound with glue, the Jail Authority allows the book to be delivered because books sent directly from publishers do not pose the same risks of drug smuggling as books sent from friends and family members. Similarly, colored ink is a concern because certain drugs can be melted onto the paper and colored ink makes the drugs particularly hard to detect. This, too, is not a
lock, in the toe of a sock, and swinging the sock like a flail. See Binns v. Virginia, No. 1:13CV00086, 2015 WL 1477910, at *1 (W.D. Va. Mar. 30, 2015) (describing a “lock in a sock”).
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significant concern with books sent directly from the publisher. Mailroom employees attempt to discern whether a book was sent from a publisher or from an individual by examining the return address and packaging.
The Jail Authority removes the spines and covers from donated hardcover books, and it removes any glue or stickers from books and mail items before delivering them to inmates. As recently as January 2017, the Jail Authority allowed inmates at the Duffield facility to possess Reader’s Digest, which is bound with glue. Assistant Superintendant Lockhart testified in the Jail Authority’s Rule 30(b)(6) deposition that it had not been a problem to allow the prisoners to have this glue-bound publication. Inmates are allowed to have up to 10 photographs in their cells, and these photographs contain colored ink which can also be used for smuggling drugs.
On April 10, 2018, Lockhart sent an email to various Jail Authority employees, copying Clear, in which he instructed the employees, “If you get any mail in that comes from PLN (Prison Legal News), please hold this and let me and Steve look at it. Thanks.” Pl.’s Mem. Supp. Ex. 38, ECF No. 57-38. On May 15, 2018, Lockhart emailed three jail administrators, copying Clear, stating, “I still have not received your letters containing the procedures your mail room goes by in dealing with what they allow in and or why they don’t allow something in. I need
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this by Friday so a policy can start to be formed.” Id. at Ex. 40, ECF No. 57-40. Major Brian Parks, administrator of the Duffield jail, wrote in response that magazines and periodicals are not allowed and are thus confiscated. Major Johnny Billiter, administrator of the Haysi jail, wrote that staples are removed from religious mail and that “BOOKS RECEIVED THAT ARE NOT BIBLE STUDIES ARE CONFISCATED AND PUT IN THE INMATE’S PROPERTY.” Id. at Ex. 42 at 3, ECF No. 57-42. Major J.R. Stanley of the Tazewell jail wrote that his facility also did not allow staples or colored ink and that “[w]e are going to start doing what Abingdon is doing in regards to books even religious.” Id. at Ex. 43, ECF No. 57-43.
In August 2018, after this court had entered a preliminary injunction, the Jail Authority amended its Inmate Communications policy. The amended policy states that newspapers and periodicals are prohibited, but that “[a]lternative reading materials may be ordered from a publishing company on a case by case basis, upon approval from the Jail Administrator or designee.” Id. at Ex. 44 at 4, ECF No. 5744. The current policy no longer calls for the rejection of all packages, but rather states that packages shall be opened and their contents reviewed for approval by the Jail Administrator on a case-by-case basis. The appeal deadline is now listed as 10 days rather than five.
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When inmate mail is received, a mail clerk must look up each offender to determine whether the offender is still housed at the facility. Mail is delivered to inmates by corrections officers. The Jail Authority asserts that a substantial increase in mail will mean the officers have less time available to focus on safety and security. Because HRDC’s magazines are published monthly, an inmate who subscribes to them may be released before receiving the first issue. If an inmate does not notify the publisher of his release or transfer, the magazines will continue to be sent, resulting in wasted time spent sorting mail. The Jail Authority does not have the staff resources to search every cell every day to uncover violations of property limits. The Jail Authority suggests that HRDC could provide PDF versions of its magazines and other publications to be printed within the jails for distribution to inmate subscribers; however, the Jail Authority has not explained how this would work logistically. The Jail Authority currently maintains PDF versions of its publications but does not distribute the publications in electronic format.
II. The court is required to grant a motion for summary judgment “if the movant 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). In ruling
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on cross-motions for summary judgment, the court must, “[w]ith respect to each side’s motion, . . . view the facts and all justifiable inferences arising therefrom in the light most favorable to the nonmoving party.” Kolbe v. Hogan, 849 F.3d 114, 130 (4th Cir. 2017). “Rule 56 expressly contemplates the availability of summary judgment to a claimant. That a movant bears the ultimate burden of proof or persuasion . . . is no obstacle to a summary judgment award in favor of that party, so long as the requirements of Rule 56 are otherwise satisfied.” Bouchat v. Balt. Ravens Football Club, Inc., 346 F.3d 514, 521–22 (4th Cir. 2003) (citations omitted). Summary judgment is not a disfavored procedural shortcut, but an important mechanism for weeding out claims and defenses that have no factual basis. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). It is the affirmative obligation of the trial judge to prevent factually unsupported claims and defenses from proceeding to trial. Drewitt v. Pratt, 999 F.2d 774, 778-79 (4th Cir. 1993).
III. On the record summarized above, each side contends it is entitled to judgment as a matter of law on both the First Amendment claim and the due process claim. Clear asserts that he is entitled to qualified immunity on both claims.
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“[T]here is no question that publishers who wish to communicate with those who, through subscription, willingly seek their point of view have a legitimate First Amendment interest in access to prisoners.” Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). When a jail confiscates a publication sent by a publisher, it must give the publisher notice and an opportunity to respond. Montcalm Publ’g. Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996).
Prison regulations that infringe upon constitutional rights will only be upheld if they are “reasonably related to legitimate penological interests.” Turner v. Safley, 482 U.S. 78, 89 (1987). Legitimate penological objectives include maintaining safety and security and saving scarce prison resources. United States v. Stotts, 925 F.2d 83, 86 (4th Cir. 1991). A court reviewing a regulation must consider four factors: (1) “whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective”; (2) “whether there are alternative means of exercising the right that remain open”; (3) “the impact that accommodation of the asserted constitutional right will have on others (guards and inmates) in the prison”; and (4) whether there are “obvious, easy alternatives” suggesting that the regulation is an “exaggerated response” to prison concerns. Thornburgh, 490 U.S. at 414, 417, 418 (internal quotation marks and citation omitted).
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The first factor of the Turner test is perhaps the most important. If a policy or practice is “arbitrary or irrational” under Turner’s first factor, then it is unconstitutional “irrespective” of other factors. Shaw v. Murphy, 532 U.S. 223, 229–30 (2001). When a regulation addresses items coming into a correctional facility, prison authorities are entitled to broad discretion. Thornburgh, 490 U.S. at 416. That discretion, however, is not without limits.
A. First Amendment — Books. HRDC asserts that it has established all four elements of the Turner test. It argues that the policy prohibiting books except those that are preapproved is not rationally related to a legitimate penological interest in safety or security because it is both overinclusive and underinclusive. The Jail Authority allows inmates to possess other paper items that could pose a fire risk and has allowed inmates to possess other publications that contain colored paper and glue, such as Reader’s Digest, as well as photographs, which could be used for smuggling drugs. The record contains no evidence that drugs have been smuggled into the Jail Authority’s facilities via binding glue. A policy limiting the quantity of books and periodicals an inmate can possess addresses concerns about accumulation of flammable paper items in cells. Likewise, mailroom staff are already in the practice of removing glue and stickers from inmate mail. There is no evidence that
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there have been any problems related to books within the Jail Authority’s facilities since the court’s preliminary injunction went into effect almost a year ago.
Moreover, there are no clear criteria for deciding which books will be preapproved. A Jail Authority official reviews the content of a requested book to decide whether to approve it. The reviewing official has great discretion in deciding which books to allow. The various policies regarding possession and preapproval of books are inconsistently communicated and applied. HRDC further asserts that alternatives newly suggested by the Jail Authority, such as communicating with inmates by letter or telephone, are not adequate means for HRDC to communicate their information to inmates.
As to the second Turner prong, HRDC argues that it has no alternative means of getting its books to inmates because donated books are not guaranteed to reach the intended recipient, and inmates do not always receive the books they ask to borrow. There is no procedure by which a publisher can request preapproval; rather, the procedure contemplates an inmate requesting preapproval to order a book. According to HRDC, this process interferes with the publisher’s right to send unsolicited books to inmates. HRDC argues that its First Amendment rights cannot hinge upon a third-party inmate’s compliance with a preapproval process.
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Regarding the third Turner prong, HRDC asserts that any burden on Jail Authority staff in delivering HRDC’s books would be minimal, as the process for rejecting a book takes a significant amount of time and HRDC does not send a cumbersome number of books to inmates at the Jail Authority. Finally, regarding the fourth prong of the Turner test, HRDC contends that enforcing existing policies concerning property possession and mail inspection is an easy, obvious alternative to a policy banning all book orders except those that have been preapproved. This suggests that prohibiting books sent by outsiders is an exaggerated response to perceived problems. See Turner, 482 U.S. at 90-91.
The Jail Authority asserts that HRDC has never attempted to donate books to any correctional facility library and has not offered to provide PDF versions of its books to the Jail Authority for dissemination to inmates. It cites several other facilities in Virginia and elsewhere that do not allow inmates to order books. The Jail Authority proffers that it provides inmates with numerous other reading materials, which are underutilized. According to the Jail Authority, inmates routinely break the rules regarding how much property they may possess, and jail staff do not have the time to search every cell every day to ensure compliance.
In Thornburgh, 490 U.S. at 403, the Supreme Court considered the constitutionality of a policy that broadly allowed prisoners to receive publications
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(including books) but allowed prison officials to reject publications posing security risks. The policy contained a list of reasons that might justify rejecting a publication, but officials were given broad discretion in deciding whether to accept or reject an item. Id. at 405 n. 5. The reasons listed in the policy pertained to the contents of the publication and included concerns such as encouraging violence or detailing how to construct weapons. Id.
The Court held that on its face, the policy satisfied the four prongs of the Turner test. Id. at 419. The policy was targeted at the plainly legitimate interest of protecting security. Id. at 415. The issue of content-neutrality was a close one, but the Court held that when “prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are ‘neutral’ in the technical sense in which we meant and used that term in Turner.” Id. at 415-16. The Court further concluded that the discretion afforded officials was rationally related to the kind of security risks contemplated. Id. at 416. As to the alternative means prong of the Turner test, the Court noted that “the regulations at issue . . . permit a broad range of publications to be sent, received, and read.” Id. at 418. Although the Court held that the policy was facially constitutional, it remanded the case for determination of whether the policy had been constitutionally applied. Id. at 419.
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The book policy in this case differs from that at issue in Thornburgh in several important ways. First, the Jail Authority’s stated reasons for its blanket ban of books have to do with the physical attributes of the books, not their contents. Other Jail Authority policies and procedures address concerns about fire risks and drug smuggling. Inmates are only permitted to possess a certain amount of property, and incoming items are thoroughly searched. Spines and covers are removed from donated hardcover books. Books sent directly from publishers pose little risk of drug smuggling, and HRDC’s books do not contain colored paper or ink except on their covers. The Jail Authority’s interests in preventing fires and drug smuggling are certainly legitimate, but the undisputed evidence shows that a complete ban on books sent from publishers is not rationally related to those interests.
Nor does the record evidence demonstrate that the preapproval policy is applied neutrally. It is undisputed that officials consider the contents of books in deciding whether to preapprove book orders, but there is no written policy setting forth any criteria for determining which books will be permitted and which will not. Thus, the Jail Authority officials essentially have unfettered discretion to approve or reject books as they wish, for any reason. Such a policy invites
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arbitrary decisions that are driven by individual officials’ biases and do not bear a rational relationship to legitimate penological interests.
Importantly for this case, there is no procedure by which a publisher can request preapproval of a book it wishes to send to an inmate. Thus, a publisher is not permitted to send any unsolicited book to any inmate, regardless of its contents and even if it poses no security risk. The Jail Authority suggests that HRDC should ask inmates to request preapproval of books before HRDC sends them, but HRDC’s First Amendment right to communicate with prisoners cannot depend upon the prisoner going through the preapproval process. Such a requirement essentially negates HRDC’s right to send unsolicited books. See Hrdlicka v. Reniff, 631 F.3d 1044, 1049 (9th Cir. 2011) (noting that publisher’s “First Amendment interest in distributing and receiving information does not depend on a recipient’s prior request for that information.”) While in theory HRDC could call an inmate on the phone to convey information contained in the books or mail copies of book pages in an envelope with a letter, I find that these are not adequate alternatives to communicating the books’ valuable and time-sensitive legal, healthrelated, and educational information to inmates. It is further undisputed that donated books are unlikely to reach their intended recipients in a timely fashion and may not reach them at all. HRDC has met its burden of demonstrating that the
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Jail Authority’s book ban and preapproval process leaves open no alternative means for HRDC to exercise its right communicate with prisoners.
Having found for the plaintiff on the first and second Turner prongs, it is unnecessary to consider the third and fourth prongs. Nevertheless, I note that there is no evidence that permitting books sent by HRDC would likely pose a security threat. The record is devoid of evidence that books sent to Jail Authority inmates have caused problems since the preliminary injunction has been in effect. The Jail Authority has easy alternatives to the book ban — namely, continuing to enforce its other policies and procedures governing property limits and inspection and processing of mail and books. Instead of rejecting all unsolicited books sent by HRDC, the Jail Authority could instead accept the books and remove their spines and covers, as it already does for books donated to the library. HRDC sends a relatively small number of books to Jail Authority inmates, and there is no evidence that processing its books in this way would burden the Jail Authority’s resources.
Based on the undisputed record evidence, HRDC has met its burden of proving that the policy prohibiting books except those for which an inmate obtains preapproval fails to satisfy the four-part Turner test and thus violates HRDC’s rights under the First Amendment. The Jail Authority, on the other hand, has not
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shown that it is entitled to judgment as a matter of law. I will therefore grant HRDC’s Motion for Summary Judgment and deny the Jail Authority’s Motion for Summary Judgment on the issue of the outside book ban and preapproval process.
B. First Amendment — Magazines. The Jail Authority states that it prohibits magazines because it is concerned about the security and safety risks posed by the staples used to bind them. In addition, as with books, the Jail Authority asserts that overaccumulation of paper items in cells creates fire risks and housekeeping hazards. HRDC asserts that the magazine ban, like the book ban, is both overinclusive and underinclusive because other policies and procedures address the cited concerns and other items permitted in the facilities can pose the same risks that the magazine ban claims to address. HRDC notes that the Jail Authority removes staples from legal mail before delivering it to inmates. Again, it asserts that there are already limits on how many items of property inmates can possess, as well as rules prohibiting them from hanging magazine clippings on the walls and over vents. HRDC further asserts that accepting magazines would take less time than properly rejecting them, which is a multi-step process that involves completing and sending a confiscation form. HRDC points to the lack of evidence showing any significant burden or safety issues arising out of the preliminary
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injunction, under which the Jail Authority has been removing staples and
delivering PLN and CLN for nearly a year now.
The Jail Authority points to record evidence of the harms that can be inflicted by staples in the hands of inmates.3 The Jail Authority asserts that it
removes staples from legal mail because that mail is entitled to greater protections
than other kinds of mail. It points to other correctional facilities, both within and
outside of Virginia, that prohibit inmates from subscribing to magazines. It argues
that permitting magazine subscriptions would lead to a flood of periodicals that
would overwhelm employees and divert attention from other security measures.
The Jail Authority notes that it already offers inmates a wide variety of reading
materials, including two newspaper subscriptions for each housing unit. It reminds
the court that it is due significant deference in identifying risks to safety and
security and in deciding the best ways to address those risks.
Regarding alternatives available to HRDC, the Jail Authority contends that
HRDC already sends sample packets of its publications in envelopes from its
Florida headquarters, rather than directly from the printer, so it should be able to
3 Some of this evidence is disputed by the plaintiff’s expert, John Clark, whose testimony the defendants have moved to exclude. I have taken that motion under advisement and have not yet ruled on it. Counsel for HRDC appeared to concede at oral argument that staples do pose risks to safety and security within the jails. Viewing the record in the light most favorable to the defendants, there is ample evidence from which a jury could conclude that staples pose serious risks in jails and that the defendants have a legitimate interest in preventing inmates from acquiring them.
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send staple-free versions of its magazines this way to inmates held at the Jail Authority’s facilities. The Jail Authority also suggests that printing PLN and CLN tabloid-style, without staples, should be less expensive for HRDC than its current printing method. It further asserts that HRDC could send electronic copies of its publications to the Jail Authority, which could then distribute them to inmates.
The Jail Authority relies heavily on Hause v. Vaught, 993 F.2d 1079 (4th Cir. 1993), in which the Fourth Circuit ruled against a pretrial detainee who challenged a detention center’s policy prohibiting outside publications. Hause is distinguishable from this case, however. First, it dealt with the rights of the detainee rather than the publisher. Second, the plaintiff there conceded that the policies at issue were rationally related to a legitimate interest in preventing fires and contraband. Id. at 1083. Third, the court focused on the fact that the plaintiff had produced “no evidence” that he would have received the requested publications during his short periods of incarceration and found that because his detention was “quite brief,” any limitation on his First Amendment right was “minimal.” Id. The holding in Hause was expressly limited to its facts: “On the facts before us, which involve a short-term detainee seeking damages for limitations placed on the exercise of his constitutional rights during previous periods of short-term confinement, we conclude that the Detention Center’s ban on
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outside publications was reasonably related to penological interests, and hence constitutional.” Id. at 1084. For these reasons, the Hause decision is not particularly instructive in this case.
I conclude that based on the undisputed facts, and giving jail officials the significant deference to which they are entitled, the Jail Authority has demonstrated that it has a legitimate interest in preventing staples from entering its jails. However, a complete ban of magazines is not rationally related to that interest, nor is it rationally related to the Jail Authority’s interest in reducing fire hazards. I reach this conclusion largely because of the existence of the easy, obvious alternative of having Jail Authority employees remove the staples when processing the mail. That alternative, along with the fact that other policies address accumulation of inmate property and prohibit hanging clippings in cells, suggests that the magazine ban is an exaggerated response by the Jail Authority. Simply removing staples from an issue of PLN or CLN takes no more time than completing and sending a confiscation form. In other words, rejecting these publications poses an equal or greater burden than accepting them and removing the staples. The undisputed evidence is that PLN and CLN are monthly publications sent to a relatively small number of Jail Authority inmates. The Jail
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Authority’s stated fear that it will be required to deliver numerous daily periodicals to hundreds of inmates is overblown and unsupported by the evidence of record.
There is a dispute of fact as to whether the Jail Authority would accept donated subscriptions of PLN and CLN for addition to the facility book rooms. This dispute is immaterial, however, because even if HRDC could donate subscriptions to the book rooms, it is undisputed that the issues may never make their way to their intended recipients, let alone in a timely manner that would allow the inmates to use the information contained therein to attempt to vindicate their legal rights. I find that donating the magazines to the book rooms is a not an adequate alternative means of communicating with inmates.
I also conclude that HRDC should not be required to redesign its entire printing and distribution process — at great cost — in order to deliver staple-free versions solely to the Jail Authority’s facilities. HRDC estimates that separately printing and mailing staple-free issues to Jail Authority inmates would cause it to incur as much as five times the cost it now pays to print and distribute its magazines. While that figure is disputed and the Jail Authority suggests it would be cheaper for HRDC to print and send all of its issues without staples, the undisputed evidence is that HRDC has been printing and mailing its issues using the current method for many years, distributing in excess of a million copies to
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more than 3,000 correctional facilities across the country. Requiring HRDC to alter its printing and distribution process solely to comply with the Jail Authority’s staple ban would be impractical and would place an unfair burden on HRDC. Moreover, until the preliminary injunction was entered, the Jail Authority prohibited all magazines, not limited to those bound with staples. Thus, there is no indication that even staple-free, tabloid-style versions of PLN and CLN would have been accepted for delivery.
I have considered each party’s evidence in the light most favorable to the nonmoving party. I find that HRDC has established that the undisputed facts show that the blanket magazine ban fails to satisfy the Turner test, and HRDC is entitled to judgment as a matter of law. I will therefore grant the plaintiff’s Motion for Summary Judgment as to its claim that the Jail Authority’s magazine ban violates HRDC’s rights under the First Amendment. As to the defendants’ motion, I conclude that the defendants have failed to show that the undisputed facts entitle them to judgment as a matter of law with respect to the magazine ban, and I will therefore deny their Motion for Summary Judgment on this issue.
C. Due Process. In support of its due process claim, HRDC asserts that on more than 200 occasions, the Jail Authority rejected or confiscated its mailings without providing
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adequate or any notice of the reason for rejection. A number of the confiscation forms that the Jail Authority generated were never sent to HRDC. Many of the forms that were sent to HRDC contained vague statements of reasons for confiscation or listed no reasons at all. HRDC was given only five or ten days to appeal, and in at least one case, a mailing was destroyed just one day after it was confiscated because HRDC had not yet responded to notice of the confiscation. HRDC notes that in its briefs, the Jail Authority fails to address at least 50 specific confiscations of books and magazines for which no notice was sent. All of the confiscation forms it received pertained to PLN; it never received a confiscation form for CLN, Prisoners’ Guerrilla Handbook, Habeas Citebook, or the annual report.
The Jail Authority argues that once it gave notice of the reason for rejecting one issue of PLN, it was no longer required to send subsequent notices when it confiscated other issues for the same content-neutral reason. It asserts that HRDC failed to timely or properly appeal the confiscations or rejections and that in most cases, a five- to ten-day appeal window would be adequate for most senders. It notes that HRDC could have contacted the Jail Authority by telephone, email, or fax in order to appeal, but it did not do so.
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The Fourth Circuit has held that under the Fourteenth Amendment’s Due Process Clause, “publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate subscribers.” Montcalm Publ’g Corp., 80 F.3d at 106. Most of the confiscation notices that the Jail Authority sent to HRDC were plainly inadequate, stating no reason for the confiscation beyond simply stating that the publication was not allowed. For most confiscations and rejections, no notice was given at all. This unquestionably violated the Fourth Circuit’s directive in Montcalm. Even assuming that one adequate confiscation notice was sufficient to cover all subsequent confiscations of PLN, a doubtful proposition, the Jail Authority was still required to provide notice for the other publications it confiscated or rejected.
Given the evidence that HRDC did not receive confiscation notices for several days after they were sent, I find that the five-day appeal window set forth in many of the forms and the former version of the Inmate Communications policy did not grant HRDC an adequate opportunity to be heard. The 10-day appeal window that applied to other confiscations would be reasonable only if the sender’s ability to appeal via telephonic or electronic means had been explained on the forms. A 10-day window would not be adequate where the sender must wait for the notice to arrive via the postal service and then allow several days for a
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written appeal to be delivered to the Jail Authority by mail. Here, the confiscation forms stated only that the decision could be appealed to the Chief of Security; the available means of submitting an appeal were not listed. In light of that omission, I conclude that the 10-day appeal window was also unreasonable.
HRDC was entitled to notice and an opportunity to be heard regarding the defendants’ interference with its First Amendment right to communicate with prisoners. The undisputed facts show that the defendants violated the plaintiff’s due process rights as set forth in Montcalm by failing to give notice of confiscations, giving inadequate notice, and not providing a reasonable opportunity to appeal. I will therefore grant HRDC’s Motion for Summary Judgment as to its due process claim, and I will deny the Jail Authority’s Motion for Summary Judgment as to the due process claim.
D. Qualified Immunity. Clear invokes qualified immunity as to HRDC’s claims against him in his individual capacity. HRDC asserts its First and Fourteenth Amendment claims through the vehicle of 42 U.S.C. § 1983. A claim under 42 U.S.C. § 1983 requires proof of the following three elements: “(1) the deprivation of a right secured by the Constitution or a federal statute; (2) by a person; (3) acting under color of state law.” Jenkins v. Medford, 119 F.3d 1156, 1159–60 (4th Cir. 1997). Government
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officials sued in their individual capacities are “persons” within the meaning of the statute, but they may be entitled to qualified immunity. Hafer v. Melo, 502 U.S. 21, 25, 31 (1991).
Qualified immunity “shields government officials from liability for civil damages, provided that their conduct does not violate clearly established statutory or constitutional rights within the knowledge of a reasonable person.” Meyers v. Baltimore Cty., 713 F.3d 723, 731 (4th Cir. 2013). A defendant asserting qualified immunity has the burden of proving the defense. Id. Qualified immunity is immunity from suit rather than merely immunity from liability; therefore, the question of qualified immunity should be decided before trial. Id.
A court deciding the applicability of qualified immunity must determine not only “whether a constitutional violation occurred,” but also “whether the right violated was clearly established” at the time of the events in question. Tobey v. Jones, 706 F.3d 379, 385 (4th Cir. 2013). This is so because “[o]fficials are not liable for bad guesses in gray areas; they are liable for transgressing bright lines.” Raub v. Campbell, 785 F.3d 876, 881 (4th Cir. 2015) (citations omitted). Courts are free to “skip ahead to the question whether the law clearly established that the [defendant’s] conduct was unlawful in the circumstances of the case.” Adams v. Ferguson, 884 F.3d 219, 226 (4th Cir. 2018) (quoting Pearson v. Callahan, 555
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U.S. 223, 232 (2009)). A defendant cannot be said to have violated clearly established law unless “‘existing precedent . . . placed the . . . constitutional question beyond debate.’” Id. (quoting Reichle v. Howards, 566 U.S. 658, 664 (2012)). The protection of qualified immunity extends to “all but the plainly incompetent or those who knowingly violate the law.” Raub, 785 F.3d at 881 (citation omitted).
I find that Clear is entitled to qualified immunity on the First Amendment claim because existing precedent did not clearly establish that the Jail Authority’s book and magazine policies were unconstitutional. Although the Hause decision is distinguishable from this case, a reasonable person in Clear’s position could have concluded from that decision that the Jail Authority’s policy prohibiting outside publications complied with the First Amendment. Additionally, the Supreme Court upheld a ban on outside publications under different circumstances in Beard v. Banks, 548 U.S. 521 (2006). HRDC has not pointed the court to any controlling case law that would have alerted Clear that the Inmate Communications policy violated publishers’ First Amendment rights. Therefore, I will grant Clear’s Motion for Summary Judgment as to the First Amendment claim.
On the due process claim, however, I conclude that Clear is not entitled to qualified immunity. In Montcalm, 80 F.3d at 106, the Fourth Circuit stated, “We
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hold that publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate subscribers.” Yet the policy signed and implemented by Clear only allowed for an unreasonable five-day appeal window. Moreover, while the policy states that notices will be sent when mail is confiscated, it does not expressly require such notice with respect to magazines or packages. At least in the wake of the filing of this suit and the entry of the preliminary injunction, the undisputed evidence demonstrates that Clear knew the policy was not being consistently followed or applied in a way that complied with the requirements of Montcalm. I therefore conclude that Clear violated HRDC’s clearly established right to notice and an opportunity to be heard regarding the rejection of its mailings, and he is not entitled to qualified immunity on the due process claim.
E. Personal Involvement of Clear. Clear contends that there is insufficient evidence of his personal involvement to justify holding him liable for violation of HRDC’s due process rights. Under § 1983, “[g]overnment officials may not be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat superior.” Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Rather, “a plaintiff must
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[show] that each Government-official defendant, through the official’s own
individual actions, has violated the Constitution.” Id.
For supervisory prison officials to be held liable under § 1983 for constitutional injuries inflicted by their subordinates, an inmate must establish that: (1) the supervisor had actual or constructive knowledge that his subordinate was engaged in conduct that posed a ‘pervasive and unreasonable’ risk of constitutional injury; (2) the supervisor’s response to this knowledge was so inadequate as to show ‘deliberate indifference or tacit authorization’ of the offensive practices; and (3) there was an ‘affirmative causal link’ between the supervisor’s inaction and the particular constitutional injury suffered. Wilkins v. Upton, 639 F. App’x. 941, 945 (4th Cir. 2016) (unpublished) (citing
Shaw v. Stroud, 13 F.3d 791, 799 (4th Cir. 1994)).
As evidence of his personal involvement, HRDC notes that Clear signed
policies imposing unreasonable appeal timelines; learned of the January 26, 2017,
letter from HRDC and discussed it with his subordinates but did not respond or
direct his subordinates to respond; and intended to personally review with Lockhart
all of HRDC’s mailings after this litigation commenced. While Clear undertook
some investigation of the policies and practices at the Jail Authority’s facilities,
there is no evidence that he took any action to prevent further due process
violations prior to the entry of the preliminary injunction.
I find that the undisputed facts demonstrate that Clear was personally
involved in the deprivation of HRDC’s due process rights. I will therefore deny
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his Motion for Summary Judgment as to the due process claim and will grant HRDC’s Motion for Summary Judgment as to the due process claim against Clear.
F. Punitive Damages. Finally, in the Defendants’ Motion for Summary Judgment, the defendants argue that the evidence is insufficient to support any award of punitive damages. The defendants note that other jails across the country had policies similar to the Jail Authority’s policies, so Clear was not on notice that they were doing anything wrong. HRDC counters that a jury could find Clear liable for punitive damages because he acted with reckless disregard for HRDC’s rights, in the face of a perceived risk that his actions would violate HRDC’s rights. According to HRDC, Clear’s subjective state of mind is at issue, which is a matter for the jury to determine. The defendants note that Clear adopted a revised policy providing a 10-day appeal window after this court expressly held that a 10-day window was unreasonable. Punitive damages are available in a § 1983 action when the public official’s “conduct is shown to be motivated by evil motive or intent, or when it involves reckless or callous indifference to the federally protected rights of others.” Smith v. Wade, 461 U.S. 30, 56 (1983). I find that at this stage of the case the plaintiff
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has produced evidence sufficient to allow a jury to decide — based on all of the evidence — whether Clear acted with reckless indifference toward HRDC’s due process rights. I will therefore deny the Defendants’ Motion for Summary Judgment as to punitive damages.
IV. For the reasons given, it is ORDERED as follows:
1. Plaintiff’s Motion for Summary Judgment and Permanent Injunction, ECF No. 56, is GRANTED IN PART and DENIED IN PART; a. The motion is granted as to the First Claim for Relief against the Southwest Virginia Regional Jail Authority on the issue of liability; b. The motion is denied as to the First Claim for Relief against Stephen Clear; c. The motion is granted as to the Second Claim for Relief against both defendants on the issue of liability;
2. Defendants’ Motion for Summary Judgment, ECF No. 58, is GRANTED IN PART AND DENIED IN PART; a. The motion is granted as to the plaintiff’s First Claim for Relief against Stephen Clear; and
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b. The motion is otherwise denied. 3. A jury trial will be held on the issue of damages; and 4. Following the jury trial, the court will schedule a hearing as to
injunctive relief. ENTER: June 5, 2019 /s/ James P. Jones United States District Judge
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 Case 1:18-cv-00013-JPJ-PMS Document 54 Filed 02/18/19 Page 1 of 22 Pageid#: 1016

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF VIRGINIA ABINGDON DIVISION

HUMAN RIGHTS DEFENSE CENTER,

Plaintiff, v.

Civil Action No. 1:18-cv-00013-JPJ-PMS

SOUTHWEST VIRGINIA REGIONAL JAIL AUTHORITY; STEPHEN CLEAR, Superintendent, in his individual and official capacities; and DOES 1-10, in their individual and official capacities,

AMENDED COMPLAINT JURY TRIAL DEMANDED

Defendants. ______________________________________

PRELIMINARY STATEMENT

1. Plaintiff, Human Rights Defense Center (“HRDC” or “Plaintiff”), brings this action

to enjoin the Southwest Virginia Regional Jail Authority (the “Jail Authority”) and its employees

from unconstitutionally censoring HRDC’s correspondence to incarcerated persons, and for

damages arising from such censorship.

2. HRDC, a not-for-profit charitable organization, sends books, magazines, and other

correspondence to persons incarcerated in facilities operated by the Jail Authority. These materials

educate incarcerated persons about their legal and civil rights and their options for accessing

education while incarcerated. In communicating with such persons, HRDC engages in core

protected speech and expressive conduct on matters of public concern, which are entitled to the

highest protection afforded by the First Amendment of the U.S. Constitution.

3. Yet since September 2016, and on an ongoing basis, the Jail Authority and

employees of its four facilities in Southwest Virginia have refused to deliver hundreds of HRDC’s

mailings to incarcerated persons, directly violating HRDC’s First Amendment right to free speech

and communication. The Jail Authority either has not notified HRDC when it censored these

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mailings, or simply returned the mailings to HRDC with cryptic markings, such as “NO BOOKS,” “NOT ALLOWED,” “UNAUTHORIZED CORRESPONDENCE,” or “REFUSED”—violating HRDC’s Fourteenth Amendment rights to notice and an opportunity to challenge censorship.
4. Although the Jail Authority asserts that it has an official mail policy in place, its correctional officers arbitrarily enforce any such policy. As a result, incarcerated persons routinely do not receive mail sent to them, including mail from HRDC, and only sometimes receive “confiscation forms” in connection with this censorship. When incarcerated persons file grievances in connection with their undelivered mail, their grievances often go unanswered.
5. Incarcerated persons may spend years in the Jail Authority’s facilities; however, they have extremely limited access to information from the outside world to make productive use of their period of incarceration and successfully prepare for re-entry to the public. Aside from occasional access to a “book cart” that contains a small number of aging books in poor condition, many persons incarcerated in the Jail Authority’s facilities only have access to a single copy of a local daily newspaper to share among a “pod” (which can contain a group of approximately 16 to 24 people) and an electronic kiosk containing very limited legal information.
6. Because of their highly confined access to information inside the Jail Authority’s facilities, incarcerated persons rely on receiving mailings and books from organizations like HRDC to educate themselves and prepare for re-entry. When the Jail Authority prohibits incarcerated persons from receiving outside mail and books, these persons are left in the dark— deprived of the ability to expand their minds through knowledge and education. Curtailing this basic human yearning serves no legitimate penological interest; it only exacerbates the public safety problems associated with inadequately preparing persons for re-entry into society.
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7. Accordingly, to ameliorate the injuries that the Jail Authority (and together with Superintendent Stephen Clear and Does 1–10, “Defendants”) have inflicted on HRDC and its advocacy efforts, HRDC seeks damages for Defendants’ violations and injunctive relief to ensure that Defendants cease their ongoing attacks on HRDC’s constitutional rights.
JURISDICTION AND VENUE 8. This action is brought pursuant to 28 U.S.C. § 1331, as it arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343, as it seeks redress for civil rights violations under 42 U.S.C. § 1983. 9. Venue is proper under 28 U.S.C. § 1391(b). On information and belief, at least one Defendant resides within this judicial district, and the events giving rise to the claims asserted herein occurred within this judicial district. 10. Plaintiff’s claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges, and immunities secured to Plaintiff by the First and Fourteenth Amendments of the U.S. Constitution and the laws of the United States. 11. This Court has jurisdiction over claims seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure, as well as claims seeking nominal and compensatory damages, against all Defendants. 12. Plaintiff’s request for attorneys’ fees and costs is predicated upon 42 U.S.C. § 1988, which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought pursuant to 42 U.S.C. § 1983. 13. Upon information and belief, Defendants acted with the intent to injure, vex, annoy, and harass Plaintiff, and subjected Plaintiff to cruel and unjust hardship in conscious disregard of
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Plaintiff’s rights with the intention of causing Plaintiff injury and depriving it of its constitutional rights. Therefore, Plaintiff seeks compensatory and punitive damages against the individual Defendants—including Superintendent Stephen Clear and Does 1–10 (together, “the Individual Defendants”).
PARTIES 14. HRDC is a not-for-profit charitable organization recognized under § 501(c)(3) of the Internal Revenue Code, incorporated in the state of Washington and with principal offices in Lake Worth, Florida. For more than 27 years, HRDC has focused its mission on public education, advocacy, and outreach on behalf of, and for the purpose of assisting, incarcerated persons who seek legal redress for infringements of their constitutionally guaranteed and other basic human rights. HRDC’s mission, if realized, has a salutary effect on public safety. HRDC publishes books and magazines through its wholly-owned project and publishing arm, Prison Legal News (“PLN”). HRDC, through PLN, engages in core protected speech and expressive conduct on matters of public concern, such as the operation of prison facilities, prison conditions, and the health, safety, and rights of incarcerated people. HRDC’s publications contain political speech and social commentary, which are core First Amendment rights and are entitled to the highest protection afforded by the U.S. Constitution. 15. The Jail Authority is a unit of government organized and existing under the laws of the Commonwealth of Virginia. The Jail Authority operates four (4) detention facilities in Virginia, in the cities of Abingdon, Duffield, Haysi, and Tazewell, which collectively detain nearly 2,000 incarcerated persons (individually, the “Abingdon Facility,” the “Duffield Facility,” the “Haysi Facility,” and the “Tazewell Facility;” and together, the “Jail Authority’s facilities”). The
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Jail Authority is responsible for adopting and implementing mail policies governing incoming mail for incarcerated persons at all four facilities.
16. Defendant Stephen Clear (“Clear”) is the Superintendent of the Jail Authority. Clear is employed by and is an agent of the Jail Authority. He is responsible for overseeing the management and operations of the jail facilities, and for the hiring, screening, training, retention, supervision, discipline, counseling, and control of the personnel of the Jail Authority’s facilities who interpret and apply the mail policy to incarcerated persons. As Superintendent, Clear is a final policymaker for the Jail Authority with respect to the operations of all of the Jail Authority’s facilities, including for policies governing incoming mail for incarcerated persons. He is sued in his individual and official capacities.
17. The true names and identities of Defendants DOES 1 through 10 are presently unknown to HRDC. Each of DOES 1 through 10 are or were employed by and are or were agents of the Jail Authority when some or all of the challenged mail policies and practices at the Jail Authority’s facilities were adopted and/or implemented. Each of DOES 1 through 10 are or were personally involved in the adoption and/or implementation of the Jail Authority’s mail policies for incarcerated persons, and/or are or were responsible for the hiring, screening, training, retention, supervision, discipline, counseling, and/or control of the Jail Authority’s staff who interpret and implement these mail policies. DOES 1 through 10 are sued in their individual and official capacities. HRDC will seek to amend this Complaint when the true names and identities of DOES 1 through 10 have been ascertained.
18. At all times material to this Complaint, the actions of all Defendants as alleged herein were taken under the authority and color of state law.
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FACTUAL ALLEGATIONS I. HRDC’s Publications
19. HRDC, through its publication project, PLN, publishes and distributes a soft-cover
monthly magazine titled Prison Legal News: Dedicated to Protecting Human Rights (“Prison Legal News”), which contains news and analysis about prisons, jails, and other detention facilities, incarcerated persons’ rights, court opinions, management of prison facilities, prison conditions, and other matters pertaining to the rights and/or interests of incarcerated individuals. Each issue of the monthly magazine is published on newsprint and is 72 pages long. HRDC has thousands of subscribers to its monthly magazine in the United States and abroad, including incarcerated persons, attorneys, judges, journalists, libraries, and members of the public. HRDC distributes Prison Legal News to incarcerated persons in approximately 2,600 correctional facilities across the United States, including death row units and institutions within the Federal Bureau of Prisons, such as the federal Administrative Maximum Facility (“ADX” or “Supermax”) in Florence, Colorado—the most secure prison in the United States. Prison Legal News is distributed to prisons and jails within the correctional systems of all 50 states, including to hundreds of incarcerated persons housed in facilities in the Commonwealth of Virginia. HRDC also publishes a soft-cover monthly magazine titled Criminal Legal News, which focuses on review and analysis of individual rights, court rulings, and news concerning criminal justice-related issues.
20. Through PLN, HRDC also publishes and/or distributes approximately fifty different softcover books on subjects of interest to incarcerated persons and others who are interested in the criminal justice system. These books are designed to foster a better understanding of criminal justice policies and to allow incarcerated persons to educate themselves about the law and issues related to their imprisonment and/or their pending cases, such as legal research, health
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care issues, and similar topics. Pertinent to this case, HRDC publishes and distributes the Prisoners’ Guerrilla Handbook to Correspondence Programs in the United States and Canada (“Prisoners’ Handbook”), which provides incarcerated persons with information on enrolling at accredited higher educational, vocational, and training schools, and The Habeas Citebook: Ineffective Assistance of Counsel (“Habeas Citebook”), which describes the procedural and substantive complexities of federal habeas corpus litigation with the goal of identifying and litigating claims involving ineffective assistance of counsel.
21. In addition to monthly journal issues and books, HRDC also sends incarcerated persons: (a) informational brochure packets—containing a brochure and subscription order form, a book list, and a published books brochure (each of which is a single page); (b) an annual report/fundraising newsletter, which is printed and delivered in the same manner as Prison Legal News and Criminal Legal News; (c) copies of judicial opinions of importance to incarcerated persons; and (d) legal letters in individually-addressed envelopes.
22. HRDC has been trying to send these important materials to persons incarcerated at the Jail Authority’s facilities. Yet Defendants maintain mail and book policies or practices that unconstitutionally prevent HRDC from sending these materials to individuals incarcerated at the Jail Authority’s facilities.
II. Defendants’ Mail and Book Policies and Practices 23. According to statements made by Defendants in court documents publicly filed on
April 26, 2017, the Jail Authority implemented a policy effective March 1, 2015 to no longer accept personal material mailed to incarcerated persons from outside publishers. Defendant Clear asserted that the policy was implemented due to “inappropriate material and lack of space in the property room,” as well as “safety concerns,” such as preventing fire hazards. See Ex. A, Affidavit
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of Superintendent Stephen Clear in Hardoby v. Southwest Virginia Regional Jail Authority, No. 7:16-cv-00103 (W.D. Va. 2016) (“Clear Affidavit”) ¶¶ 10–12. Defendant Clear stated that the Jail Authority amended its official mail policy on June 1, 2016, to allow incarcerated persons to order books from a publishing company on a case-by-case basis, upon approval from the Jail Administrator or designee. See id. ¶ 12.
24. Defendant Clear also asserted that the Jail Authority accepts, upon approval, donations to its library. See id. ¶ 13.
25. In reality, the experience of incarcerated persons at the Jail Authority’s facilities does not align with Defendants’ stated policies. Incarcerated persons at the Jail Authority’s facilities are not aware of any official—or consistent—mail policy or practice. They have never heard of the June 1, 2016 policy that Defendants purport allows them to order books through the mail upon approval. Instead, the mail policy at the Jail Authority’s facilities is arbitrary, and depends on which correctional officer is on duty on any given day.
26. Many incarcerated persons in the Jail Authority’s facilities have experienced not receiving mail that they know was sent to them. These individuals only found out that they had not received mail from family members who told them about mailings that were never received.
27. Sometimes incarcerated persons receive confiscation forms from the Jail Authority’s facilities when their mail is taken; other times, they do not. The confiscation forms offer the incarcerated person the difficult choice of—(1) allowing their mail to be destroyed; or (2) returning the mail to the sender at the incarcerated person’s own expense.
28. When incarcerated persons file grievances with the Jail Authority’s facilities when their mail—including mail from HRDC—is confiscated, they often either do not receive a response, or receive unhelpful answers.
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29. There is no legitimate penological interest justifying Defendants’ policy or practice of censoring reading materials sent through the mail. Many individuals incarcerated at the Jail Authority’s facilities have not observed security or safety issues, including fire hazards, associated with receiving reading materials. Nor is there any reasonable concern about space overcrowding, as the Jail Authority’s facilities contain ample space for reading materials in the cells and common areas.
30. Without the ability to send its publications to incarcerated persons at the Jail Authority’s facilities via mail, HRDC has no alternative means of exercising its right to communicate with these persons. Further, persons incarcerated in the Jail Authority’s facilities have no alternative means of acquiring the type of information that HRDC is attempting to communicate—information regarding their legal and civil rights and access to education while incarcerated.
31. To the contrary, incarcerated persons’ options for receiving books and other reading material inside the Jail Authority’s facilities are meager. None of the Jail Authority’s facilities allow physical access to libraries. While the Jail Authority claims it has a book-donation policy, any such policy has been discontinued.
32. Instead, at the Haysi and Tazewell Facilities, the correctional officers send around “book carts” sporadically, perhaps once or twice a month. The book cart at the Haysi Facility contains 30-40 aging books in poor condition—primarily romance novels that are missing pages and even whole chapters—and the Facility does not refresh the cart with new books. Incarcerated persons are only allowed to possess two books from the book cart at any given time.
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33. Instead of providing book carts, the Abingdon and Duffield Facilities provide incarcerated persons with library slips for requesting books. However, the incarcerated persons do not always receive the books they request.
34. Aside from sporadic book carts or library slips, many incarcerated persons only have access to a single copy of a local newspaper to share among a “pod” of approximately 16-24 people, and an electronic kiosk containing limited legal information. These incarcerated persons are not guaranteed access to the kiosk on any given day, and are only permitted to use the kiosk for 15 to 30 minutes at a time. Further, many of the persons incarcerated at the Jail Authority’s facilities are not allowed access to a television or radio.
35. Because of these policies and practices at the Jail Authority, incarcerated persons in the Jail Authority’s facilities have no alternative ways to obtain information about their legal and civil rights, other than to receive such information by mail from organizations such as HRDC. The ability to send such information is therefore critically important to HRDC, which aims to advance incarcerated persons’ education and understanding of their legal rights, particularly in criminal cases and applications for post-conviction relief.
III. Defendants’ Censorship of HRDC’s Mail 36. In addition to reports from incarcerated persons at the Jail Authority’s facilities,
HRDC has further evidence of Defendants’ censorship of HRDC’s mailings to incarcerated persons at the Jail Authority’s facilities because many of those mailings have been returned to HRDC.
37. Defendants have censored the following materials sent by HRDC to incarcerated persons held by the Jail Authority: (1) issues of the monthly magazine, Prison Legal News; (2) sample issues of Prison Legal News; (3) issues of the monthly magazine, Criminal Legal News;
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(4) a sample issue of Criminal Legal News; (5) the Prisoners’ Handbook; (6) the Habeas Citebook; (7) the annual report/fundraising newsletter; (8) legal letters; (9) informational brochure packets; and (10) court opinions. Defendants refused to deliver said items to the incarcerated persons and, in some instances, returned items to Plaintiff’s office via the “Return to Sender” service of the United States Postal Service. Defendants continue to censor many of the items listed above.
38. Altogether, since September 2016, Plaintiff can identify at least two hundred and forty-four (244) pieces of mail sent by HRDC to persons incarcerated at the Jail Authority’s facilities, which Defendants refused to deliver to HRDC’s intended recipients. This mail includes one hundred and forty-one (141) issues of Prison Legal News, fifteen (15) sample issues of Prison Legal News, six (6) issues of Criminal Legal News, one (1) sample issue of Criminal Legal News, forty-seven (47) copies of the Prisoners’ Handbook, one (1) copy of the Habeas Citebook, ten (10) annual reports, eight (8) legal letters, eight (8) informational packets, and seven (7) court opinions.
39. Such restrictions on written speech sent to persons incarcerated at the Jail Authority’s facilities are not rationally related to any legitimate penological interest and violate HRDC’s First Amendment right to communicate speech to incarcerated persons.
40. On information and belief, a substantial portion of the hundreds of magazines, books, and other communications mailed by HRDC to persons incarcerated in the Jail Authority’s facilities were also censored by Defendants.
41. Defendants’ policies, practices, and customs are unconstitutional, both facially and as applied to HRDC.
42. Further, Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward persons incarcerated at the Jail Authority’s facilities.
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43. Plaintiff will continue to mail copies of its books and other publications to subscribers, customers, and other individuals imprisoned in the Jail Authority’s facilities, despite Defendants’ unconstitutional censorship. Plaintiff seeks the protection of this Court to ensure that Defendants cease their unlawful misconduct, and either deliver HRDC’s written speech or satisfy due process by providing HRDC with the basis for any censorship so that HRDC may challenge the censorship.
a. Censorship at the Abingdon Facility 44. Since September 2016, HRDC can identify at least thirty-one (31) separate occasions in which Defendants censored individually addressed issues of Prison Legal News and Criminal Legal News magazines, books, and other communications addressed to individual incarcerated persons at the Abingdon Facility. Defendants failed to deliver the foregoing items to the incarcerated persons named by HRDC as recipients. Instead, Defendants returned the mail at HRDC’s expense, with various markings, such as the following:
(1) “RETURN TO SENDER”; (2) “REFUSED”; (3) “NOT ALLOWED”; (4) “RTS” 45. On information and belief, Defendants also censored other magazines, books, and communications that HRDC mailed to persons incarcerated by the Jail Authority at the Abingdon Facility. 46. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC.
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47. Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward persons incarcerated in the Jail Authority’s Abingdon Facility.
48. HRDC will continue to mail copies of its publications to subscribers, customers, and other individuals imprisoned at the Abingdon Facility, as well as enveloped correspondence containing informational brochure packets, court opinions, and legal correspondence.
b. Censorship at the Duffield Facility 49. Since September 2016, HRDC can identify at least one hundred and fourteen (114) separate occasions in which Defendants censored individually addressed issues of Prison Legal News and Criminal Legal News magazines, books, and other communications addressed to individual incarcerated persons at the Duffield Facility. Defendants failed to deliver the foregoing items to the incarcerated persons named by HRDC as recipients. Instead, Defendants returned the mail at HRDC’s expense, with various markings, such as the following:
(1) “REFUSED”; (2) “RETURN TO SENDER”; (3) “NO BOOKS” 50. On information and belief, Defendants also censored other magazines, books, and communications that HRDC mailed to persons incarcerated by the Jail Authority at the Duffield Facility. 51. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC. 52. Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward persons incarcerated in the Jail Authority’s Duffield Facility.
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53. HRDC will continue to mail copies of its publications to subscribers, customers, and other individuals imprisoned at the Duffield Facility, as well as enveloped correspondence containing informational brochure packets, court opinions, and legal correspondence.
c. Censorship at the Haysi Facility 54. Since September 2016, HRDC can identify at least eighty-three (83) separate occasions in which Defendants censored individually addressed issues of Prison Legal News and Criminal Legal News magazines, books, and other communications addressed to individual incarcerated persons at the Haysi Facility. Defendants failed to deliver the foregoing items to the incarcerated persons named by HRDC as recipients. Instead, Defendants returned the mail at HRDC’s expense, with various markings, such as the following:
(1) “REFUSED”; (2) “REF”; (3) “NOT ALLOWED”; (4) “RETURN TO SENDER UNAUTHORIZED CORRESPONDENCE”; (5) “UNABLE TO HAVE @ FACILITY” 55. On information and belief, Defendants also censored other magazines, books, and communications that HRDC mailed to persons incarcerated by the Jail Authority at the Haysi Facility. 56. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC. 57. Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward incarcerated persons at the Jail Authority’s Haysi Facility.
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58. HRDC will continue to mail copies of its publications to subscribers, customers, and other individuals imprisoned at the Haysi Facility, as well as enveloped correspondence containing informational brochure packets, court opinions, and legal correspondence.
d. Censorship at the Tazewell Facility 59. Since September 2016, HRDC can identify at least fifteen (15) separate occasions in which Defendants censored individually addressed issues of Prison Legal News and Criminal Legal News magazines, books, and other communications addressed to individual incarcerated persons at the Tazewell Facility. Defendants failed to deliver the foregoing items to the incarcerated persons named by HRDC as recipients. Further, hardly any items were returned to HRDC from the Tazewell Facility. 60. On information and belief, Defendants censored the majority of, if not all, other monthly magazine issues, books, and communications that HRDC mailed to persons incarcerated by the Jail Authority at the Tazewell Facility. 61. Defendants’ policies, practices, and customs are unconstitutional both facially and as applied to HRDC. 62. Defendants’ censorship policies, practices, and customs have a chilling effect on HRDC’s future speech and expression directed toward incarcerated persons at the Jail Authority’s Tazewell facility. 63. Plaintiff will continue to mail copies of its publications to subscribers, customers, and other individuals imprisoned at the Jail Authority’s Tazewell facility, as well as enveloped correspondence containing informational brochure packets, court opinions, and legal correspondence.
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IV. Defendants’ Failure to Provide Due Process Notice and an Opportunity to Appeal
64. On only a few occasions did Defendants provide HRDC any notice that its communications were being censored. On December 19, 2016, HRDC received Confiscation Forms from the Jail Authority’s Haysi Facility regarding the “PUBLICATION BOOK/MAGAZINE ‘PRISON LEGAL NEWS’” sent to incarcerated persons Dallas Crihfield and Trevor Cole. The notices did not specify which publication was being censored.
65. Additionally, on January 23, 2017, HRDC received Confiscation Forms from the Jail Authority’s Haysi Facility regarding the “MAGAZINE/PUBLICATION” sent to incarcerated persons Dennis Vandyke, Matthew Harrington, Melissa Milam, Whitney Grubb, and Park Stanley. Again, the notices did not specify which publication was being censored.
66. On both occasions, all of the Confiscation Forms cryptically stated the “REASON FOR CONFISCATION/SEIZURE” as “NOT ALLOWED.” None of the notices gave any more detail as to why the items were being censored, preventing HRDC from meaningfully addressing the censorship in any appeal.
67. Nevertheless, on January 26, 2017, HRDC sent a letter via certified mail to the Jail Authority’s Haysi Facility, appealing the rejection of HRDC’s mail and urging Defendants to reverse their censorship decision.
68. As of March 28, 2018, the date HRDC filed the Complaint in this action, HRDC had not received a response to that letter.
69. On May 29, 2018, HRDC received additional Confiscation Forms from the Jail Authority’s Haysi Facility regarding “1 PUBLICATION WITH STAPLES “PRISON LEGAL NEWS” sent to incarcerated persons Carla Powell, Paul Hampton, and William Walker. The notices did not specify which issues of Prison Legal News were being censored, and stated the
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“REASON FOR CONFISCATION/SEIZURE” as “PULICATIONS [sic] AND STAPLES NOT ALLOWED.”
70. On or about June 22, 2018, HRDC received Confiscation Forms from the Jail Authority’s Haysi Facility regarding “1 PUBLICATION WITH STAPLES “PRISON LEGAL NEWS” sent to incarcerated persons Paul Hampton, Carla Powell, and James Harris. On or about June 26, 2018, HRDC received confiscation forms from the Jail Authority’s Duffield Facility regarding “1 - PRISON LEGAL NEWS” sent to incarcerated persons Jermaine Johnson, Franklin Mullins, Mary Pipes, Aaron Baker, and Chad Smith. The notices did not specify which issues of Prison Legal News were being censored, and stated the “REASON FOR CONFISCATION/SEIZURE” as “NOT ALLOWED”, “NOT ALLOWED FOR SECURITY REASONS”, or “STAPLES NOT PERMITTED.”
71. In all other instances of Defendants’ censorship of HRDC’s speech, Defendants violated HRDC’s due process rights under the Fourteenth Amendment by failing to provide any notice to HRDC explaining that its materials were rejected or the reason for rejecting them, and by failing to provide any opportunity for HRDC to challenge the censorship of its mail.
72. Defendants also failed to explain the penological justification for any of their censorship decisions, failed to identify any specific mail policy upon which they relied in making those decisions, and otherwise failed to give any meaningful notice of their censorship.
V. Defendants’ Unconstitutional Mail Policies and Practices Are Causing HRDC Ongoing and Irreparable Harm.
73. Due to Defendants’ actions described above, HRDC has suffered damages, and will continue to suffer damages, including but not limited to: deprivation of its constitutional rights; frustration of its abilities to disseminate its political message, to recruit new subscribers and supporters, and to advance its mission as a not-for-profit organization; significant diversion of its
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resources, including staff time; loss of potential subscribers and customers; damage to its reputation; and significant printing, handling, and mailing costs.
74. Defendants’ actions and omissions were and are motivated by malicious intent, and were and are all committed under color of law and with reckless indifference to HRDC’s rights.
75. Defendants and their agents are responsible for—or personally participated in— creating and implementing these unconstitutional policies, practices, and customs, and/or ratifying or adopting them. Further, Defendants are responsible for training and supervising employees whose conduct has injured and continues to injure HRDC.
76. Without intervention by this Court, Defendants’ unconstitutional policies, practices, and customs would be ongoing, and would continue to violate HRDC’s constitutional rights—causing irreparable harm. Defendants’ unconstitutional policies, practices, and customs will continue unless enjoined. As such, HRDC has no adequate remedy at law.
77. In addition to damages, HRDC is entitled to injunctive relief prohibiting Defendants from unconstitutionally censoring and refusing to deliver HRDC’s mailings and depriving HRDC of due process of law.
CAUSES OF ACTION FIRST CLAIM FOR RELIEF Violation of the First Amendment Right to Free Speech and Communication
Under 42 U.S.C. § 1983 (Brought Against All Defendants) 78. HRDC repeats and re-alleges each and every allegation set forth above, and incorporates them herein by reference. 79. The acts described above constitute violations of HRDC’s rights, the rights of other correspondents who have attempted to or intend to correspond with persons incarcerated in the Jail
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Authority’s facilities, and the rights of persons incarcerated in the Jail Authority’s facilities, under the First Amendment of the U.S. Constitution.
80. HRDC has a constitutionally protected liberty interest in communicating with incarcerated individuals by sending books, information packets, legal letters, court opinions, and magazines to them via U.S. Mail. Defendants’ unconstitutional censorship violates HRDC’s clearly established right to communicate with these individuals.
81. There is no legitimate penological interest justifying Defendants’ unconstitutional censorship; and HRDC has no alternative means of exercising its constitutional right to communicate with individuals incarcerated in the Jail Authority’s facilities. Further, the fact that thousands of correctional facilities in the United States allow HRDC and other publishers to send reading materials to incarcerated persons demonstrates that allowing these materials would not unduly burden Defendants; and Defendants’ censorship is an exaggerated response to prison concerns.
82. Defendants’ conduct is objectively unreasonable and was undertaken recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of others.
83. HRDC’s injuries and the violations of its constitutional rights were directly and proximately caused by Defendants’ policies and practices; and those policies and practices were the moving force behind the violations.
84. The acts described above have caused HRDC to suffer damages, and if not enjoined, will continue to cause HRDC to suffer damages.
85. HRDC seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. HRDC seeks punitive damages against the Individual Defendants in their individual capacities.
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SECOND CLAIM FOR RELIEF Violation of the Fourteenth Amendment Right to Notice and Due Process
Under 42 U.S.C. § 1983 (Brought Against All Defendants) 86. HRDC repeats and re-alleges each and every allegation set forth above, and incorporates them herein by reference. 87. The acts described above constitute violations of HRDC’s rights, the rights of other correspondents who have attempted to or intend to correspond with persons incarcerated in the Jail Authority’s facilities, and the rights of persons incarcerated in the Jail Authority’s facilities, under the Fourteenth Amendment of the U.S. Constitution. 88. HRDC has a clearly established right under the Due Process Clause of the Fourteenth Amendment to receive notice and an opportunity to object and/or appeal Defendants’ decisions to prevent Plaintiff’s mail from reaching incarcerated persons held by the Jail Authority. 89. Defendants’ policy and practice of censoring HRDC’s books, information packets, legal letters, court opinions, and magazines fails to provide Plaintiff with individualized notice of the censorship or an opportunity to be heard. Thus, Defendants are violating HRDC’s clearly established right to due process. 90. Defendants’ conduct is objectively unreasonable and was undertaken recklessly, intentionally, willfully, with malice, and with deliberate indifference to the rights of others. 91. HRDC’s injuries and the violations of its constitutional rights were directly and proximately caused by Defendants’ policies and practices; and those policies and practices were the moving force behind the violations. 92. The acts described above have caused HRDC to suffer damages, and if not enjoined, will continue to cause HRDC to suffer damages.
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93. HRDC seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. HRDC seeks punitive damages against the Individual Defendants in their individual capacities.
REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests relief as follows:
1. A declaration that Defendants’ policies and practices violate the First and Fourteenth Amendments of the U.S. Constitution;
2. A preliminary and permanent injunction preventing Defendants from continuing to violate the First and Fourteenth Amendments of the U.S. Constitution, and providing other equitable relief;
3. Nominal damages for each violation of HRDC’s rights by Defendants; 4. Compensatory damages against Defendants in an amount to be proved at
trial; 5. Punitive damages against the Individual Defendants in their individual
capacities, in an amount to be proved at trial; 6. An award of costs, including reasonable attorneys’ fees, under 42 U.S.C. §
1988 and other applicable law; and 7. Such further and additional relief as this Court may deem just and equitable.
JURY DEMAND Plaintiff demands a trial by jury on all issues properly tried to a jury.
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Dated: February 6, 2019

Respectfully submitted,
s/ Sean M. Douglass
WILLIAMS & CONNOLLY LLP Thomas G. Hentoff* Sean M. Douglass (Va. Bar No. 83835) 725 Twelfth Street NW Washington, DC 20005 Telephone: (202) 434-5000 Fax: (202) 434-5029 thentoff@wc.com sdouglass@wc.com
DAVIS WRIGHT TREMAINE LLP Bruce E. H. Johnson* Suite 2200 1201 Third Avenue Seattle, Washington 98101-3045 Telephone: (206) 757-8069 brucejohnson@dwt.com
HUMAN RIGHTS DEFENSE CENTER Sabarish Neelakanta* Daniel Marshall* Masimba Mutamba* P.O. Box 1151 Lake Worth, FL 33460 Telephone: (561) 360-2523 sneelakanta@hrdc-law.org dmarshall@hrdc-law.org mmutamba@hrdc-law.org
Attorneys for Plaintiff Human Rights Defense Center
*Admitted pro hac vice.

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JS 44 (Rev. 06/17)

CIVIL COVER SHEET

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS

DEFENDANTS

Human Rights Defense Center
(b) County of Residence of First Listed Plaintiff Palm Beach County, FL
(EXCEPT IN U.S. PLAINTIFF CASES)

Southwest Virginia Regional Jail Authority, Stephen Clear, and Does 1-10
County of Residence of First Listed Defendant Washington County, VA
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number)

Attorneys (If Known)

Sean M. Douglass, Williams & Connolly LLP, 725 Twelfth Street NW, Washington, DC 20005, (202) 434-5000

Nathan H. Schnetzler, Frith Anderson & Peake PC, 29 Franklin Road SW, Roanoke, VA 24011, (540) 772-4600

II. BASIS OF JURISDICTION (Place an “X” in One Box Only)

u 1 U.S. Government Plaintiff

u 3 Federal Question (U.S. Government Not a Party)

III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

u 4 Diversity (Indicate Citizenship of Parties in Item III)

Citizen of Another State

u 2 u 2 Incorporated and Principal Place of Business In Another State

u 5 u5

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

u 6 u6

IV. NATURE OF SUIT (Place an “X” in One Box Only)

Click here for: Nature of Suit Code Descriptions.

CONTRACT

TORTS

FORFEITURE/PENALTY

BANKRUPTCY

OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

u 120 Marine

u 310 Airplane

u 130 Miller Act

u 315 Airplane Product

u 140 Negotiable Instrument

Liability

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

u 151 Medicare Act

u 330 Federal Employers’

u 152 Recovery of Defaulted

Liability

Student Loans

u 340 Marine

(Excludes Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 196 Franchise

Injury

u 362 Personal Injury -

PERSONAL INJURY u 625 Drug Related Seizure

u 365 Personal Injury -

of Property 21 USC 881

Product Liability

u 690 Other

u 367 Health Care/

Pharmaceutical

Personal Injury

Product Liability

u 368 Asbestos Personal

Injury Product

Liability

PERSONAL PROPERTY

LABOR

u 370 Other Fraud

u 710 Fair Labor Standards

u 371 Truth in Lending

Act

u 380 Other Personal

u 720 Labor/Management

Property Damage

Relations

u 385 Property Damage

u 740 Railway Labor Act

Product Liability

u 751 Family and Medical

u 422 Appeal 28 USC 158 u 423 Withdrawal
28 USC 157
PROPERTY RIGHTS u 820 Copyrights u 830 Patent u 835 Patent - Abbreviated
New Drug Application u 840 Trademark
SOCIAL SECURITY u 861 HIA (1395ff) u 862 Black Lung (923) u 863 DIWC/DIWW (405(g)) u 864 SSID Title XVI u 865 RSI (405(g))

Medical Malpractice

Leave Act

REAL PROPERTY

CIVIL RIGHTS

PRISONER PETITIONS u 790 Other Labor Litigation

FEDERAL TAX SUITS

u 210 Land Condemnation

u 440 Other Civil Rights

Habeas Corpus:

u 791 Employee Retirement

u 870 Taxes (U.S. Plaintiff

u 220 Foreclosure

u 441 Voting

u 463 Alien Detainee

Income Security Act

or Defendant)

u 230 Rent Lease & Ejectment u 240 Torts to Land u 245 Tort Product Liability u 290 All Other Real Property

u 442 Employment

u 510 Motions to Vacate

u 443 Housing/

Sentence

Accommodations

u 530 General

u 445 Amer. w/Disabilities - u 535 Death Penalty

IMMIGRATION

u 871 IRS—Third Party 26 USC 7609

Employment

Other:

u 446 Amer. w/Disabilities - u 540 Mandamus & Other

Other

u 550 Civil Rights

u 448 Education

u 555 Prison Condition

u 560 Civil Detainee -

u 462 Naturalization Application u 465 Other Immigration
Actions

Conditions of

Confinement

u 375 False Claims Act u 376 Qui Tam (31 USC
3729(a)) u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 490 Cable/Sat TV u 850 Securities/Commodities/
Exchange u 890 Other Statutory Actions u 891 Agricultural Acts u 893 Environmental Matters u 895 Freedom of Information
Act
u 896 Arbitration u 899 Administrative Procedure
Act/Review or Appeal of
Agency Decision u 950 Constitutionality of
State Statutes

V. ORIGIN (Place an “X” in One Box Only)

u 1 Original

u 2 Removed from

Proceeding

State Court

u 3 Remanded from Appellate Court

u 4 Reinstated or u 5 Transferred from

Reopened

Another District

(specify)

u 6 Multidistrict Litigation Transfer

u 8 Multidistrict Litigation Direct File

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):

VI.

CAUSE OF ACTION

42 U.S.C. Sec. 1983
Brief description of cause:

Denial of free speech and due process by jails in prohibiting inmates from receiving plaintiff's publications via mail.

VII. REQUESTED IN COMPLAINT:

u CHECK IF THIS IS A CLASS ACTION
UNDER RULE 23, F.R.Cv.P.

DEMAND $ ,QMXQFWLRQ GDPDJHV

CHECK YES only if demanded in complaint: JURY DEMAND: u Yes u No

VIII. RELATED CASE(S)

IF ANY

(See instructions):
JUDGE

DOCKET NUMBER

DATE
02/07/2019
FOR OFFICE USE ONLY

SIGNATURE OF ATTORNEY OF RECORD
s/ Sean M. Douglass

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE