IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

BOBBIE Y. LANE d/b/a CAGED POTENTIAL, )

)

Plaintiff,

)

)

v.

)

)

GEORGE LOMBARDI, in his official capacity )

as Director, Missouri Department of Corrections, )

)

DAVE DORMIRE, in his official capacity

)

as Director, Division of Adult Institutions, and )

)

MARIANN ATWELL, in her official capacity )

as Director, Division of Offender Rehabilitative )

Services,

)

)

Defendants.

)

Case No. 12-4219

CLASS-ACTION COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF

1. Plaintiff Bobbie Y. Lane brings this action to enjoin the censorship of books or other

publications mailed to prisoners held in custody by the Missouri Department of Corrections (MODOC)

without affording the sender notice of non-delivery and the opportunity to be heard. Defendants have

adopted and implemented policies, customs, or practices that censor written materials without affording

the sender of the censored mail notice of non-delivery and an opportunity to challenge the censorship

as required by the Due Process Clause of the Fourteenth Amendment. The failure to provide due

process is not in any way related to a legitimate penological purpose.

JURISDICTION AND VENUE

2. This action arises under the Constitution of the United States and the provisions of 42

U.S.C. § 1983. The jurisdiction of this court is invoked pursuant to 28 U.S.C. §§ 1331 and 1343(a),

and pursuant to 42 U.S.C. § 1983.

3. Venue is proper in this Court pursuant to 28 U.S.C. § 1391 as the events giving rise to this

Complaint occurred in this judicial district and because Defendants reside in this district.

Case 2:12-cv-04219-NKL Document 1 Filed 08/09/12 Page 1 of 7

4. Venue is proper in the Central Division, 28 U.S.C. § 105(b)(4), because Defendants reside in Cole County and the claim for relief arises from policies, practices, and customs established in Cole County.
PARTIES 5. Plaintiff lives in, and operates a sole proprietorship book publishing and distribution business from, Wyandotte County, Kansas. 6. Defendant George Lombardi is the Director of MODOC and is being sued in his official capacity only. Defendant Lombardi is employed by and is an agent of MODOC and the State of Missouri and maintains his office in Jefferson City, Cole County, Missouri. He is responsible for the operations of MODOC, including adopting, approving, and implementing the policies – including inmate mail policies – applicable to the prisons that MODOC operates throughout the State of Missouri. Upon information and belief, Director Lombardi is the final policymaker for MODOC’s policy governing mail for prisoners. 7. Defendant Dave Dormire is the Director of the Division of Adult Institutions at MODOC and is being sued in his official capacity only. Defendant Dormire is employed by and is an agent of MODOC and the State of Missouri and maintains an office in Jefferson City, Cole County, Missouri. He is responsible for the management of the twenty-one correctional centers in MODOC, including, according to Title 14, Divisions 20, Chapter 1 of the Code of State Reulations, managing, supervising and directing all adult correctional rehabilitative and training activities, providing for the protection, care, discipline, instruction and suitable quartering of all persons in his jurisdiction and operating programs and activities designed to release persons as useful productive and law-abiding citizens. Director Dormire has an integral role in establishing and carrying out MODOC’s policy governing mail for prisoners. 8. Defendant Mariann Atwell is the Director of the Division of Offender Rehabilitative
2 Case 2:12-cv-04219-NKL Document 1 Filed 08/09/12 Page 2 of 7

Services at MODOC and is being sued in her official capacity only. Defendant Atwell is employed by and is an agent of MODOC and the State of Missouri and maintains an office in Jefferson City, Cole County, Missouri. She is responsible for developeing and delivering services necessary for offenders to correct their criminal behavior and prepare for successful reintegration into the community, including academic and vocational education and support persons with issues such as literacy and employability to provide a successful transition to the community as law abiding and productive citizens. Director Atwell has an integral role in carrying out MODOC’s policy governing information, particularly mail, for prisoners.
FACTUAL ALLEGATIONS 9. Each of the acts and omissions of Defendants alleged herein was within the scope of their official duties as employees of MODOC and the State of Missouri. Such acts and omissions by defendants were undertaken under color of state law. 10. Plaintiff operates a publishing and book distribution business under the name of “Caged Potential.” Specifically, plaintiff publishes and distributes a novel entitled So Far from Paradise (“the novel”), written by plaintiff’s cousin, Sultan Lane, who is incarcerated at a prison operated by MODOC. 11. When an order is placed directly with Caged Potential, plaintiff ships the book(s) to the customer(s) directly using the United States Postal Service or other shipping companies. 12. By publishing and distributing the novel, plaintiff d/b/a Caged Potential is engaged in protected political and literary speech and expressive conduct on matters of public concern. 13. On November 22, 2010, plaintiff sent copies of the novel to seven inmates confined at a prison within the MODOC system. 14. None of the seven inmates to whom plaintiff sent a copy of the novel on November 22, 2010, received the copy of the novel that plaintiff mailed. On information and belief, the mailroom
3 Case 2:12-cv-04219-NKL Document 1 Filed 08/09/12 Page 3 of 7

staff intercepted the copies of the novel and refused to deliver them to the inmate-addressees. There was no legitimate purpose – penological or otherwise – for refusing to deliver the copies of the novel to the inmate-addressees.
15. On December 3, 2010, plaintiff sent a copy of the novel to another inmate at a prison within the MODOC system. On information and belief, the novel was received by the inmateaddressee without delay.
16. On December 15, 2010, plaintiff sent a copy of the novel to an additional inmate at a prison within the MODOC system. On information and belief, the novel was received by the inmateaddressee without delay.
17. After mailing copies of the novel to the seven inmates who did not receive the copies mailed to them by plaintiff, plaintiff never received any notice from MODOC that those mailings had been intercepted and censored by MODOC employees.
18. After mailing copies of the novel to the seven inmates who did not receive the copies plaintiff mailed to them, plaintiff never received any legal process affording an opportunity to challenge the interception and censorship of those mailings by MODOC employees.
19. MODOC’s current Offender Mail Procedures, IS13-1.1, took effect on March 9, 2012, and were approved and signed off on by defendants Dormire and Atwell. Those procedures do not require MODOC’s employees who are responsible for implementing the Offender Mail Procedures to give publishers or distributors notice of the interception or censorship of written materials mailed to inmates or an opportunity to contest such interception or censorship of such written materials.
20. The failure to provide plaintiff with notice and the opportunity to be heard was in furtherance of the policies, customs, and practices of MODOC not to provide notice or the opportunity to be heard to senders of publications that are intercepted and censored by MODOC officials.
21. As a result of the policy, custom, and practice of failing to provide notice or the
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opportunity to be heard to senders of written material that is censored by MODOC officials, plaintiff has suffered and will continue to suffer irreparable harm for which there is no adequate remedy at law.
22. Accommodation of the due process rights of plaintiff with respect to materials protected by the Constitution will not have any significant impact on MODOC’s prisons.
PLAINTIFF CLASS ALLEGATIONS 23. The named plaintiff is a member of a class of current and future book publishers, distributors, and authors of written materials who mail books, publications, or other written materials to inmates incarcerated in prisons operated by MODOC. 24. There are questions of law and fact that are common to the Class, including, but not limited to the legal questions of whether defendants’ inmate mail policies, customs, and practices impermissibly infringe the class members’ rights under the Due Process Clause of the Fourteenth Amendment. 25. The claims of the named plaintiff that defendants’ inmate mail policies, customs, and practices impermissibly infringe the class members’ rights under the Due Process Clause of the Fourteenth Amendment are typical of the claims of the Class. 26. As a current publisher and distributor of a book of interest to prison inmates, the named plaintiff will fairly and adequately protect the interests of the Class. 27. Defendants’ inmate mail policies, practices, and customs require MODOC officials and employees subordinate to defendants to act on grounds generally applicable to the class, thereby making it appropriate for this court to grant injunctive and any corresponding declaratory relief to the Class as a whole.
CLAIM FOR VIOLATION OF DUE PROCESS 28. Plaintiff realleges and reincorporates the preceding allegations as though fully set forth here.
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29. Defendants’ policy, practice, and custom of banning the books distributed by plaintiff failed to provide plaintiff with individualized notice that its publications were being banned and failed to give plaintiff an opportunity to be heard on the issue of the censorship of plaintiff’s book distribution to inmates incarcerated at prisons operated by MODOC.
30. The Due Process Clause of the Fourteenth Amendment to the United States Constitution gives plaintiff the right to receive notice and the opportunity to be heard when defendants or their subordinates prevent plaintiff’s books from reaching their intended recipients.
31. The acts described above violated plaintiff’s rights under the Fourteenth Amendment to the United States Constitution, have harmed plaintiff, and, unless enjoined, will continue to cause harm to plaintiff.
PRAYER FOR RELIEF WHEREFORE, plaintiff requests relief as follows: a. a declaration, pursuant to 42 U.S.C. § 1983, that defendant’s policies, practices, and customs violate the Constitution; b. a preliminary and permanent injunction preventing defendants, in their official capacities, and their officers, agents, servants, and employees, from continuing to violate the Constitution, and providing other equitable relief; c. costs, including reasonable attorney’s fees under 42 U.S.C. § 1988, and under other applicable law; and d. such other and further relief as the court deems just and equitable.
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Respectfully submitted,
Stephen Douglas Bonney, Ks. Bar #12322 ACLU Foundation of Kansas & Western Missouri 3601 Main Street Kansas City, MO 64111 Tel. (816) 994-3311 Fax: (816) 756-0136 E-mail: dbonney@aclukswmo.org /s/ Anthony E. Rothert ANTHONY E. ROTHERT, #44827 GRANT R. DOTY, #60788 AMERICAN CIVIL LIBERTIES UNION OF
EASTERN MISSOURI 454 Whittier Street St. Louis, Missouri 63108 (314) 652-3114 FAX: (314) 652-3112 tony@aclu-em.org grant@aclu-em.org
COUNSEL FOR PLAINTIFF
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 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

BOBBIE Y. LANE

)

d/b/a CAGED POTENTIAL,

Plaintiff,

)

v.

)

GEORGE LOMBARDI, et al.,

Defendants.

)

) )
) Case No. 2:12-cv-4219-NKL
) ) )

ORDER

Pending before the Court is Plaintiff Bobbie Lane’s Motion to Certify Class [Doc.

# 4]. For the reasons stated below, the Court GRANTS Plaintiffs’ Motion.

I. Background

Plaintiff Bobbie Lane owns and operates a publishing company, Caged Potential.

This company has published a novel, So Far from Paradise, written by Sultan Lane,

Plaintiff’s cousin and an inmate at the Crossroads Correctional Facility (“Crossroads”) in

Cameron, Missouri, which is administered by Defendants George Lombardi, Dave

Dormire, Mariann Atwell, and the Missouri Department of Corrections (“MODOC”).

Defendants are responsible for the operations of MODOC, including adopting,

approving, and implementing mail and censorship policies.

Caged Potential received orders for So Far from Paradise from nine Crossroads

inmates, and mailed copies of the novel to those inmates in November 2010 and January

2011. However, these shipments were seized by staff at Crossroads pursuant to

1
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MODOC’s Censorship Procedure, IS 13-1.2. Defendants did not notify Plaintiff as to the seizure and non-delivery of the books. MODOC’s policies do not require that mailroom staff provide notice to publishers and other senders that publications have been seized and not delivered to recipients.
Plaintiff alleges that MODOC’s policy not to give notice or the opportunity to appeal to senders regarding censorship decisions deprives senders of due process under the Fourteenth Amendment. She seeks prospective relief under 42 U.S.C. § 1983 requiring Defendants to provide her and all other distributors of publications notice and opportunity to be heard when material mailed to inmates is censored or withheld. Plaintiff seeks certification of a Class pursuant to Federal Rule of Civil Procedure 23(b)(2), including current and future book publishers, distributors, and authors of written materials who mail books, publications, or other written materials to inmates in prisons operated by MODOC. II. Discussion
Whether or not to certify a class is generally a matter of the district court’s discretion. Coley v. Clinton, 635 F.2d 1364, 1378 (8th Cir. 1980). In ruling on a motion for class certification, the Court must conduct a two-part analysis. First, the Court must assess whether the movant has demonstrated that the proposed Class meets the requirements of Rule 23(a). These requirements are as follows:
1) The class is so numerous that joinder of all members is impracticable; 2) There are questions of law or fact common to the class; 3) The claims or defenses of the representative parties are typical of the claims or
defenses of the class; and
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4) The representative parties will fairly and adequately protect the interest of the class.
Fed. R. Civ. P. 23(a); Amchem Products, Inc. v. Windsor, 521 U.S. 591, 613, 117 S. Ct.
2231, 2245 (1997).
Secondly, the movant must demonstrate that the proposed class meets the
requirements of Rule 23(b). The movant must show that the action:
1) Creates a risk of establishing incompatible standards of conduct through inconsistent adjudications or substantially impair the interests of individuals not party to the litigation;
2) Involves a party opposing the class who acted on grounds that apply to the class generally; or
3) Involves questions of law or fact that are common to class members and that predominate over individual questions, and that a class action is “superior to other methods for fairly and efficiently adjudicating the controversy.”
Fed. R. Civ. P. 23(b); Amchem Products, Inc., 521 U.S. at 614, 117 S. Ct. at 2246 (1997).
The movant bears the burden of showing that the Rule 23 requirements have been met.
Coleman v. Watt, 40 F.3d 255, 258 (8th Cir. 1994).
A. Rule 23(a)
1. Numerosity
The first requirement of Rule 23 is that the proposed class be “so numerous that
joinder of all members is impracticable.” Fed. R. Civ. P. 23(a)(1). In assessing
impracticability, “[i]n addition to the size of the class, the court may also consider the
nature of the action, the size of the individual claims, the inconvenience of trying
individual suits, and any other factor relevant to the practicability of joining all the
putative class members.” Paxton v. Union Nat. Bank, 688 F.2d 552, 559-60 (8th Cir.
1982). Joinder of all members may be impracticable where the class includes individuals
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who may become members in the future, but are currently unidentifiable. See, e.g., Phillips v. Joint Legislative Comm. on Performance & Expenditure Review of State of Miss., 637 F.2d 1014, 1022 (5th Cir. 1981) (finding that “joinder of unknown individuals is certainly impracticable”); Skinner v. Uphoff, 209 F.R.D. 484, 488 (D. Wyo. 2002); Shariff v. Goord, 235 F.R.D. 563, 570 (W.D.N.Y. 2006); Twarog v. Allen, 2007 WL 2228635 at *5 (M.D. Ala. July 31, 2007).
Plaintiff’s proposed Class consists of current and future book publishers, distributors and authors of written materials who mail books, publications, or other written materials to inmates incarcerated in prisons operated by MODOC. This class is potentially quite large, and includes present as well as future senders of materials. Joinder of so many individual actors would be impracticable. Therefore, the numerosity requirement is met.
2. Commonality Defendants argue that Plaintiff’s proposed Class members, consisting of publishers, distributors, and authors, are not similarly situated and so the commonality requirement is not met. However, this misstates the commonality requirement. The issue is not whether the class members are similarly situated, but whether the action presents “questions of law or fact common to the class.” Fed. R. Civ. P. 23(a)(2). Commonality is satisfied “when the legal question linking the class members is substantially related to the resolution of the litigation.” DeBoer v. Mellon Mortg. Co., 64 F.3d 1171, 1174 (8th Cir. 1995) (quoting Paxton, 688 F.2d at 561) (internal quotes omitted). Commonality is not a heavy burden, but may be satisfied “where the question of law linking the class
4
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members is substantially related to the resolution of the litigation even though the individuals are not identically situated.” Paxton, 688 F.2d at 561 (internal quotes omitted). Regardless of any differences among publishers, distributors, or authors with regards to the interests they have in communicating with prisoners via written materials, Defendants’ alleged failure to provide due process protecting the First Amendment right to communicate free of censorship is an issue common across the different groups of actors, and the relief sought is the same. DeBoer, 64 F.3d at 1174-75. Therefore, the commonality requirement is satisfied.
3. Typicality To meet the typicality requirement, a plaintiff must show that “there are other members of the class who have the same or similar grievances as the plaintiff.” Donaldson v. Pillsbury Co., 554 F.2d 825, 830 (8th Cir. 1977). The typicality requirement “is generally considered to be satisfied if the claims or defenses of the representatives and the members of the class stem from a single event or are based on the same legal or remedial theory.” Paxton, 688 F.2d at 561-62 (internal quotes omitted). The burden is “fairly easily met so long as other class members have claims similar to the named plaintiff.” Alpern v. UtiliCorp United, Inc., 84 F.3d 1525, 1540 (8th Cir. 1996) (quoting DeBoer, 64 F.3d at 1174). Plaintiff’s § 1983 claim is based on the same policy and proposed conduct of Defendants as the claims of other senders of written material to prison inmates would be. Accordingly, the typicality requirement is met.
4. Adequacy
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The focus of the adequacy requirement is whether “the representative parties will fairly and adequately protect the interests of the class.” U.S. Fid. & Guar. Co. v. Lord, 585 F.2d 860, 873 (8th Cir. 1978); Fed. R. Civ. P. 23(a)(4). Two factors must be satisfied in this inquiry: “(a) the plaintiff's attorney must be qualified, experienced, and generally able to conduct the proposed litigation, and (b) the plaintiff must not have interests antagonistic to those of the class.” U.S. Fid. & Guar. Co., 585 F.2d at 873 (internal quotes omitted). “In the absence of proof to the contrary, courts presume that Class counsel is competent and sufficiently experienced to vigorously prosecute the class action.” Johnson v. W. Pub. Corp., 2011 WL 3490187 at *7 (W.D. Mo. Aug. 9, 2011). Here, Plaintiff’s counsel is certainly qualified. Additionally, Plaintiff’s claims are not antagonistic to those of the class; rather, in addressing the generally constitutionality of Defendant’s lack of a procedure notifying senders of censorship decisions, Plaintiff’s claims can only be helpful to other present or future actors attempting to send written materials to inmates.
B. Rule 23(b) 1. Predominance & Superiority
A court may certify a class action if it “finds that the questions of law or fact common to class members predominate over any questions affecting only individual members,” Avritt v. Reliastar Life Ins. Co., 615 F.3d 1023, 1029 (8th Cir. 2010), and if “a class action is superior to other available methods for the fair and efficient adjudication of the controversy.” Fed. R. Civ. P. 23(b)(3). Of central importance “is the issue of whether the defendant's liability to all plaintiffs may be established with common
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evidence.” Avritt, 615 F.3d at 1029. Class action certification is suitable “when the issues involved are common to the class as a whole and when they turn on questions of law applicable in the same manner to each member of the class.” Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 155, 102 S. Ct. 2364, 2369 (1982) (quoting Califano v. Yamasaki, 442 U.S. 682, 701, 99 S. Ct. 2545, 2557 (1979))(internal quotes omitted). A class action is “an especially appropriate vehicle for civil rights actions” seeking declaratory relief in the prison rights context. Coley, 635 F.2d at 1378. In the instant case, Defendants’ alleged denial of due process affects all senders of written materials to prisoners. The due process issues are common to the class of current and future senders of written material to inmates, and this constitutional question predominates over any individual factual distinctions. As such, the class action is a superior method of adjudication. III. Conclusion
When certifying a class action the Court “must define the class and the class claims, issues or defenses . . . .” Fed. R. Civ. P. 23(c)(1)(B). For the above stated reasons, the Court finds that class certification is appropriate in this case. Accordingly, Plaintiff’s Motion [Doc. # 4] is GRANTED. Pursuant to Fed. R. Civ. P. 23(c), the Court certifies the following class:
All current and future publishers, distributors, and authors of written materials, who mail books, publications, or other written materials to inmates incarcerated in prisons operated by MODOC. Pursuant to Fed. R. Civ. P. 23(g), the Court appoints Grant R. Doty and Anthony E. Rothert, of the ACLU of Eastern Missouri, and Stephen Douglas Bonney, of the ACLU of Kansas & Western Missouri, as Class counsel.
7
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NANETTE
Dated: November 8, 2012 Jefferson City, Missouri

s/ Nanette K. Laughrey K. LAUGHREY
United States District Judge

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 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

BOBBIE Y. LANE

)

d/b/a CAGED POTENTIAL,

Plaintiff,

)

v.

)

GEORGE LOMBARDI, et al.,

Defendants.

)

) )
) Case No. 2:12-cv-4219-NKL
) ) )

ORDER

Pending before the Court is Plaintiff Bobbie Lane’s Motion for a Preliminary

Injunction [Doc. # 2] requiring Defendants Lombardi, et al., to provide notice and

opportunity to be heard to senders of materials censored by Defendants. For the reasons

stated below, the Court GRANTS Plaintiff’s Motion.

I. Background

Plaintiff Bobbie Lane owns and operates a publishing company, Caged Potential.

This company has published a book, So Far from Paradise, written by Sultan Lane,

Plaintiff’s cousin and an inmate at the Crossroads Correctional Facility (“Crossroads”).

Defendants are the Missouri Department of Corrections (“MODOC”) and its

administrators, George Lombardi, Dave Dormire and Mariann Atwell. Caged Potential

received orders for So Far from Paradise from nine Crossroads inmates, and mailed

copies of the novel to those inmates in November 2010 and January 2011. However,

these shipments were seized by staff at Crossroads pursuant to MODOC’s Censorship

1
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Procedure, IS 13-1.2. Defendants did not notify Plaintiff as to the seizure and nondelivery of the books. MODOC’s policies do not require that mailroom staff provide notice to publishers and other senders that publications have been seized and not delivered to recipients.
Plaintiff alleges that MODOC’s policy not to give notice or the opportunity to appeal to senders regarding censorship decisions deprives senders of due process under the Fourteenth Amendment. Plaintiff has requested an injunction requiring Defendants to notify senders of censorship decisions and provide them with an opportunity to be heard. II. Discussion
In considering whether to issue a preliminary injunction, courts apply a four-factor test that examines (1) the likelihood that the movant will succeed on the merits; (2) the threat of irreparable harm to the movant in the absence of the requested injunction; (3) the balance between the harm to the movant if the injunction is denied and any harm to the other parties if the injunction is granted; and (4) the public interest. Dataphase Sys., Inc. v. C L Sys., Inc., 640 F.2d 109, 113 (8th Cir. 1981).
A. Likelihood of Success The Eighth Circuit has held that there are two possible standards in reviewing “likelihood of success” under the Dataphase test. Planned Parenthood Minnesota, N. Dakota, S. Dakota v. Rounds, 530 F.3d 724, 732 (8th Cir. 2008). The first, more rigorous standard of “likely to prevail on the merits” applies to injunctions brought to prevent implementation of a statute that was the product of the democratic legislative process. Id; see also Aventure Communications Tech., L.L.C. v. Iowa Utilities Bd., 734 F. Supp. 2d
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636, 655 (N.D. Iowa 2010). However, where the injunction is sought to enjoin state action that is not based on “the full play of the democratic process” the lower standard of “fair chance of success” applies. Rounds, 530 F.3d at 732 n.6. The “fair chance of success” does not require the Court to assess the “mathematical probability” of the movant’s success; rather, “where the balance of other factors tips decidedly toward plaintiff[,] a preliminary injunction may issue if movant has raised questions so serious and difficult as to call for more deliberate investigation.” Dataphase Sys., Inc., 640 F.2d at 113.
To establish a procedural due process violation, a plaintiff must first demonstrate the deprivation of a protected liberty or property interest. Senty-Haugen v. Goodno, 462 F.3d 876, 886 (8th Cir. 2006).
1. Protected Liberty Interest As the Supreme Court has made clear, “[t]he interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a ‘liberty’ interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment.” Procunier v. Martinez, 416 U.S. 396, 418, 94 S. Ct. 1800, 1814 (1974), overruled on other grounds by Thornburgh v. Abbott, 490 U.S. 401, 109 S. Ct. 1874 (1989). This liberty interest applies to both senders and receivers:
Both parties to the correspondence have an interest in securing [communication], and censorship of the communication between them necessarily impinges on the interest of each. Whatever the status of a prisoner’s claim to uncensored correspondence with an outsider, it is plain that the latter's interest is grounded in the First Amendment’s guarantee of
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freedom of speech. And this does not depend on whether the nonprisoner correspondent is the author or intended recipient of a particular letter, for the addressee as well as the sender of direct personal correspondence derives from the First and Fourteenth Amendments a protection against unjustified governmental interference with the intended communication. Id. at 408-09, 1809; see also Thornburgh, 490 U.S. at 408, 109 S. Ct. at 1879 (“[T]here is no question that publishers who wish to communicate with those who… willingly seek their point of view have a legitimate First Amendment interest in access to prisoners.”); Trudeau v. Wyrick, 713 F.2d 1360, 1364 (8th Cir. 1983) (“[I]t is clear that the sender of a letter to an inmate has a right, grounded in the Constitution, to have that letter delivered to the inmate free of unjustified interference by state officials.”). The Eight Circuit has emphasized that “the reasoning of Procunier applies to all forms of correspondence addressed to an inmate…. Thus, whenever prison officials restrict that right by rejecting the communication, they must provide minimum procedural safeguards, which include notice to an inmate that the correspondence was rejected.” Bonner v. Outlaw, 552 F.3d 673, 677 (8th Cir. 2009); see also Trudeau, 713 F.2d at 1365. The question before the Court is whether a publisher is entitled to notice and an opportunity to be heard before the publisher’s First Amendment rights are limited by prison censorship. All four circuit courts that have considered the issue have found a due process violation. In Montcalm Pub. Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996), the Fourth Circuit held that a magazine publisher had a First Amendment interest in communicating with inmate-subscribers, and that it was entitled to some degree of process when prisoners were prevented from receiving their subscriptions. In Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001), the Ninth Circuit similarly held that
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“publishers who wish to communicate with inmates by sending requested subscriptions have a ‘legitimate First Amendment interest in access to prisoners.’” Prison Legal News, at 1149 (quoting Thornburgh v. Abbott, 490 U.S. 401, 408, 109 S. Ct. 1874 (1989)). The court further determined that because the publishers and prisoners had a constitutional right to receive subscription mail, “such mail must be afforded the same procedural protections as first class and periodicals mail under Department regulations.” Id. at 1153. Relying on Montcalm and Prison Legal News, the Tenth Circuit, in Jacklovich v. Simmons, 392 F.3d 420 (10th Cir. 2004), also held that “there 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,” and that “both inmates and publishers have a right to procedural due process when publications are rejected.” Jacklovich, 392 F.3d at 433 (internal quotes omitted). Finally, the Sixth Circuit in Martin v. Kelly, 803 F.2d 236 (6th Cir. 1986), held that “the First Amendment rights of free citizens” who wished to send letters to prisoners “were implicated by the censorship of prisoners’ mail,” and that the defendant prison’s “mail censorship regulation is insufficient because it fails to require that notice and an opportunity to protest the decision be given to the author of the rejected letter.” Martin, 803 F.2d at 243-44.
2. Process Required Given that a protected liberty interest in communication with prisoners exists, the next question is the amount of process due to protect that interest. Bonner v. Outlaw, 552 F.3d at 676. Defendants argue that the appropriate analysis for determining whether
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MODOC’s policy provides due process is that laid out in Turner v. Safley, 482 U.S. 78, 87, 107 S. Ct. 2254, 2260-61 (1987). In Turner, the Supreme Court stated that in cases involving infringements on prisoners’ constitutional rights, the standard of review is not strict scrutiny; rather, the relevant inquiry is “whether a prison regulation that burdens fundamental rights is ‘reasonably related’ to legitimate penological objectives, or whether it represents an ‘exaggerated response’ to those concerns.” Id.; see also Thornburgh, 490 U.S. at 409, 109 S. Ct. at 1879. In determining the reasonableness of a regulation restricting a prisoner’s constitutional right, the court should consider: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) whether there are “alternative means of exercising the right that remain open to prison inmates”; (3) what impact accommodation of the constitutional right will “have on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether there are “ready alternatives for furthering the government interest available.” Beard v. Banks, 548 U.S. 521, 529, 126 S. Ct. 2572, 2578 (2006) (quoting Turner, 482 U.S. at 89-90, 107 S. Ct. at 2260-61).
However, in Bonner v. Outlaw, which involved a prison policy that returned prisoners’ packages without giving the inmates notice, the Eighth Circuit expressed doubt about the applicability of Turner “to the restriction of a specific constitutional right, e.g., notice, the Supreme Court has already declared applicable in a given situation.” Bonner v. Outlaw, 552 F.3d at 678. The Court noted that Turner was particularly ill-suited to cases involving procedural due process rights that the Supreme Court has already
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recognized, since recognition of those rights involves “weighing the exact same considerations – governmental interest, alternative means of exercising the right, and additional burdens – as are also relevant in determining whether a prison regulation is reasonable under Turner, and were already considered by the Supreme Court in declaring such a right to exist in the first place.” Id. The Court instead stated that “the amount of process due [the movant] is determined by balancing the specific interest affected, the likelihood the challenged action would result in an erroneous deprivation of that right, and the burden of providing additional procedures, including administrative costs and burdens.” Id. at 676. The Eighth Circuit proceeded to analyze Bonner’s claims under the Procunier v. Martinez standard, finding that “whenever prison officials restrict [the prisoner’s liberty interest in uncensored communication] by rejecting the communication, they must provide minimum procedural safeguards, which include notice to an inmate that the correspondence was rejected.” Id. at 677. However, the Court also stated that even if Turner applied, there was no government interest advanced by the regulation, no alternative means for inmates to receive notice, and no additional burdens on the prison officials by requiring that notice be given. Id. at 678; see also Prison Legal News v. Cook, 238 F.3d 1145, 1151 (9th Cir. 2001) (applying Turner to publishers’ rights to send material to prisoners, but finding that a ban on standard mail was not rationally related to a legitimate penological objective).
a. Bonner-Procunier Analysis The Court agrees that the Bonner-Procunier analysis is applicable in this case. As noted above, the Supreme Court has already recognized that prisoners and their
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correspondents have a constitutional liberty interest in uncensored communication. It follows that some form of procedural due process is required in order to protect this right. Procunier, 416 U.S. at 418-19, 94 S. Ct. at 1814 (procedural safeguards include notice, opportunity to be heard, and opportunity for appeal to prison official who was not involved in original censorship decision). As noted above, the Fourth, Sixth, Ninth, and Tenth Circuits have held that due process requires prison officials to notify senders of the seizure or censorship of written material mailed to prisoners. See Montcalm Pub. Corp., 80 F.3d at 109; Martin, 803 F.2d at 244; Prison Legal News, 238 F.3d at 1153; Jacklovich, 392 F.3d at 433. Failure to provide due process regarding a censorship decision – here, notification and an appeals process – interferes with the protected liberty rights of both senders and inmate recipients. See Thornburgh, 490 U.S. at 408, 109 S. Ct. at 1879. Furthermore, without minimum procedural safeguards, such as notice, the decision to censor or withhold delivery of a communication may be arbitrary or erroneous. Procunier, 416 U.S. at 397, 94 S. Ct. at 1803. Finally, there is no indication that providing senders with notice and an opportunity to appeal the censorship decision is unduly burdensome on prisons. See Bonner, 552 F.3d at 676; Procunier, 416 U.S. at 419. Defendants argue that requiring notification of senders will increase administrative costs, namely for postage. However, other courts to consider the issue have found that this burden is not substantial enough to justify infringements on First and Fourth Amendment rights. See, e.g., Procunier, 416 U.S. at 419, 94 S. Ct. at 1814 (determining that requiring notice to inmates and opportunity to appeal does “not appear to be unduly burdensome”); Montcalm Pub. Corp., 80 F.3d at 109 (finding that “providing a copy of this notice to
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publishers of disapproved publications and allowing the publishers to respond in writing would pose a minimal burden on corrections officials.”); Jacklovich, 392 F.3d at 434 (“providing adequate individualized notice to the publisher would appear to impose a minimal burden”). Therefore, under the Bonner-Procunier analysis, Plaintiff has articulated a due process right to sender notification of censorship decisions. Under current precedent, Plaintiff has a fair chance of success on the merits.
b. Turner Analysis Even if the Court were to apply the Turner analysis, however, Plaintiff would still have a fair chance of prevailing on the merits. The first Turner consideration is whether there is a rational connection between the prison regulation and the governmental interest. Defendants argue that the policy of not informing senders that their material has been censored is rationally related to inmate safety and security and the achievement of rehabilitative goals. However, they have offered no evidence that their refusal to notify senders of non-delivery due to censorship promotes these penological interests. The second Turner consideration asks whether an alternative means for exercising the right in question exists. Defendants argue that prisoners are informed of censorship decisions and have the option of filing a grievance, and that senders may object to censorship decisions, once they are informed of them by the prisoners, by calling or writing to prison officials. However, as the Fourth Circuit has noted, “[a]n inmate who cannot even see the publication can hardly mount an effective challenge to the decision to withhold that publication, and while the inmate is free to notify the publisher and ask for help in challenging the prison authorities' decision, the publisher's First Amendment right
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must not depend on that.” Montcalm Pub. Corp., 80 F.3d at 109; see also Jacklovich, 392 F.3d at 433 (holding that “the publisher's rights must not be dependent on notifying the inmate…. [Otherwise,] the publisher may never know (or know well after the fact) that the publication has been rejected by the facility.”).
The third Turner consideration is the impact on prison staff and inmates if notice and a hearing is required. Defendants argue that providing notice to the sender will somehow conflict with the inmate’s property rights. However, they have cited no cases in support of this claim, and the Court finds it unlikely that such a conflict exists. The publisher seeks only a hearing on the issue of censorship, not the return of the publication. If anything, providing an appeals process for the sender would bolster the inmate’s claim to the censored material. As the Fourth Circuit noted, the sender is in a better position to challenge the censorship decision than the recipient, because the sender will actually know the content of the material. Montcalm Pub. Corp., 80 F.3d at 109. Defendants also argue that providing notification to senders will be unduly costly. However, as noted above, other courts that have considered the issue have found that the cost of providing notice and an appeals process to protect a constitutional liberty interest is at most a minimal burden, given the interests at stake.
The final Turner factor involves whether alternatives for furthering the government interest exist. Defendants argue that it is Plaintiff’s burden to show a less costly alternative. Plaintiff points to the Federal Bureau of Prisons’ policy upheld in Thornburgh as regulations that “provide procedural safeguards for both the recipient and the sender.” Thornburgh, 490 U.S. at 406. The censorship policy in Thornburgh set out
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a list of criteria by which the warden was to assess the content of publications; required the warden to advise the inmate promptly in writing of the decision to reject; obliged the warden to provide the publisher or sender with a copy of the rejection letter referring to the specific article or material considered objectionable; and permitted the sender to obtain an independent review of the warden’s decision from a third party. Id. at 405, 1878. Importantly, the Supreme Court upheld the policy in Thornburgh after applying the Turner analysis. Id. at 419. The Thornburgh policy is in marked contrast to the policy at issue in this case, which provides no notice or appeals process for the sender at all. Therefore, even if the Turner analysis applied in this case, the Court finds that Plaintiff would still have a fair chance of prevailing on the merits of her due process claim.
B. Irreparable Harm The Supreme Court has held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct. 2673, 2690 (1976); see also Marcus v. Iowa Pub. Television, 97 F.3d 1137, 1140 (8th Cir. 1996) (holding that where a movant’s “First Amendment rights have been violated, this constitutes an irreparable harm”); Nichols v. Nix, 810 F. Supp. 1448, 1468 (S.D. Iowa 1993) (denial of religion publication to inmate “constitutes ongoing irreparable injury”), aff'd, 16 F.3d 1228 (8th Cir. 1994). Where “such injury was both threatened and occurring at the time of [movant’s] motion” and the movant “sufficiently demonstrated a probability of success on the merits,” a preliminary injunction is appropriate. Elrod, 427 U.S. at 374, 96 S. Ct. at 2690. In the instant case,
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the alleged deprivation of the Plaintiff’s liberty interest in uncensored communication without due process, in violation of her First and Fourteenth Amendment rights, constitutes an ongoing irreparable harm.
C. Balance of Harm As noted above, based on Defendants’ lack of evidence and the findings of other courts that have considered this issue, the Court has determined that providing notice and opportunity to appeal for senders whose material is censored is not unduly burdensome. Although requiring the Department of Corrections to implement additional procedures may cause some increase in administrative costs, where negligible administrative costs pair off against an alleged constitutional violation, the balance of equities favors the latter. See Phelps-Roper v. Nixon, 545 F.3d 685, 690 (8th Cir. 2008) (stating that “[t]he balance of equities… generally favors the constitutionally-protected freedom of expression”), overruled on other grounds by Phelps-Roper v. City of Manchester, Mo., 2012 WL 4868215 (8th Cir. Oct. 16, 2012). Therefore, the balance of harm favors the Plaintiff. D. Public Interest The Eighth Circuit has made clear that “it is always in the public interest to protect constitutional rights.” Nixon, 545 F.3d at 690 (8th Cir. 2008); see also Connection Distrib. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998). As the Supreme Court has noted, this is true even when the constitutional rights are claimed by prison inmates: “federal courts must take cognizance of the valid constitutional claims of prison inmates…. Prison walls do not form a barrier separating prison inmates from the protections of the
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Constitution.” Turner, 482 U.S. at 84, 107 S. Ct. at 2259. The Court finds that providing due process protection for the liberty interest of prisoners and their correspondents in uncensored communication constitutes an important public interest. III. Conclusion
Plaintiff has demonstrated that she has a fair chance of success on the merits; that harm to Plaintiff outweighs any comparable harm to Defendants; and that injunctive relief would be in the public interest. For the above stated reasons, therefore, Plaintiff’s Motion for a Preliminary Injunction [Doc. # 2] is GRANTED. Defendants are required to provide notice and an opportunity to appeal to senders whose communications with prisoners are censored or seized by Defendants or their officers, agents, or subordinate employees.

NANETTE
Dated: November 15, 2012 Jefferson City, Missouri

s/ Nanette K. Laughrey K. LAUGHREY
United States District Judge

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 SETTLEMENT AGREEMENT The parties to this agreement are “All current and future publishers, distributors, and authors of written materials, who mail books, publications, or other written materials to inmates incarcerated in prisons operated by MODOC” (hereinafter “Plaintiff Class”) and George Lombardi, Director of the Missouri Department of Corrections, Dave Dormire, Director of the Division of Adult Institutions and Matt Sturm, Director of the Division of Offender Rehabilitative Services, and their successors in office (hereinafter “Defendants”). Plaintiff, Bobbie Y. Lane, d/b/a Caged Potential, filed a Complaint on her own behalf and as representative of the class, Bobbie Y. Lane d/b/a Caged Potential v. George Lombardi et al., W.D. Mo. Case No. 12-4219-CV-CNKL (“the Lawsuit”) alleging, inter alia, that the Missouri Department of Corrections was not providing senders of books and other publications to prisoners with notice of censorship decisions and the opportunity to appeal. On November 15, 2012, the district court granted Plaintiff’s motion for preliminary injunction against Defendants. Plaintiffs enter into this agreement by and through their attorneys, Stephen Douglas Bonney, Anthony E. Rothert, and Grant R. Doty. Defendants enter into this agreement by and through their attorneys,
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Case 2:12-cv-04219-NKL Document 36-1 Filed 03/27/14 JPOaIgNeT1 EofX2H8IBIT 1

Elizabeth Callahan and Emily A. Dodge, Assistant Attorneys General of the State of Missouri.
For due and good consideration recited herein, the parties agree and state as follows:
1. Scope of Agreement. This Agreement embodies the entire agreement and understanding of the parties with respect to the subject matter contained herein. The parties hereby declare and represent that no promise, inducement, or agreement not herein expressed has been made, and the parties acknowledge that the terms and conditions of this Agreement are contractual and not a mere recital.
2. Non-Admission. No actions taken by the parties hereto, or any of them, either previously or in connection with this Agreement shall be deemed or construed to be an admission of the truth or falsity of any matter pertaining to any claim or defense asserted on behalf of the parties, or an acknowledgment by any of the parties hereto of any liability to the other parties or to any person for any other claim, demand, or action, all liability being expressly denied by the parties.
3. Approval of Class Settlement and Dismissal of Claims. The parties hereto stipulate and agree that under Federal Rules of Civil Procedure 23(e) and 41(a)(2) the United States District Court for the Western District of Missouri, Central Division, must approve this Agreement.
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The parties stipulate that they will take such steps as are necessary to obtain from that Court an order substantially in the form of Exhibit A hereto approving this Agreement and dismissing the claims of the Plaintiffs in their entirety under Rule 41(a)(2) of the Federal Rules of Civil Procedure with prejudice. Upon the Court’s final approval of this Agreement, Plaintiffs shall be deemed to have released all claims against Defendants that were presented in the Lawsuit, and all such claims against the State of Missouri, and any current or former employee of the Missouri Department of Corrections.
4. Notice to Senders. Defendants agree to notify senders of books, publications, personal correspondence, pictures, and recorded materials that are censored by the Missouri Department of Corrections of censorship decisions and their opportunity to appeal those decisions as set forth in the procedure attached as Exhibit B to this Agreement, IS 13-1.2 Censorship Procedure. The Notification of Appeal letters that are Attachments C, D and E to the Censorship Procedure will be sent in order to fulfill the Defendants’ notice obligations under the terms of this Agreement.
Defendants agree that any future revision to its censorship procedure will maintain a requirement to provide written notification of censorship decisions to senders. Defendants agree to continue to provide such notification to senders. The parties agree that, for a period of five years after
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the district court’s final approval of this Agreement, Plaintiffs’ counsel will have the opportunity to review and comment on any proposed change to the procedure for notifying senders of censorship decisions and the appeal process available to them.
5. Notice to Offenders. Defendants agree to notify the offenders within its correctional facilities that senders of censored publications, personal correspondence, and pictures will receive notice of censorship decisions.
6. Release. Plaintiff Bobbie Y. Lane does hereby release, acquit, and forever discharge Defendants, the State of Missouri, and any employee or former employee of the State of Missouri of all and from any liability, claims, actions, causes of action, demands, rights, damages, cost, interest, loss of service, expenses, and compensation whatsoever, whether or not now known or contemplated, which Plaintiff Lane now has, or which may hereafter accrue, against Defendants, the State of Missouri, and any employee or former employee of the State of Missouri based on or arising out of conditions, incidents, or occurrences taking place before the date of this Agreement that relate to notice, or lack of notice, of censorship decisions and her opportunity to appeal. The remaining Plaintiffs do hereby release all claims against Defendants that were presented in the Lawsuit, which were claims for only prospective relief, and do hereby release all such claims against the State of
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Missouri, and any current or former employee of the Missouri Department of Corrections.
7. Attorney’s Fees, Costs and Expenses. In exchange for the payment of $33,479.45, representing compensation for attorneys’ fees and expenses, it is agreed between and among the parties to this Agreement that no party is a “prevailing party” within the meaning of 42 U.S.C. §1988, or any other statute, rule, or other provision of law which is or may be in any way applicable thereto in connection with their representation of any party in the Lawsuit. All other attorneys’ fees, costs, and expenses are hereby waived.
8. Court Costs. The parties will bear their own court costs. 9. Non-Assignment. Plaintiffs hereby represent, acknowledge, and warrant that they have not at any time heretofore, either collectively or individually, assigned to any other person or entity all or any portion of any claim or potential claim whatsoever that they may have, or may have had, against one or more Defendants based on or arising out of the allegations contained in the Lawsuit. 10. Binding Effect. The persons signing this Agreement represent that they have the authority to enter into this Agreement on behalf of the respective parties that they represent and that this Agreement shall be binding upon, and inure to the benefit of the heirs, personal representatives, successors, and assigns of the parties hereto.
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11. Preparation of Documents. This Agreement is the joint work product of the parties hereto and, in the event of any ambiguity herein, no inference shall be drawn against a party by reason of document preparation.
12. Forum Selection. The parties recognize and agree that any action to enforce this Agreement after the dismissal of the Lawsuit must be pursued in the Circuit Court of Cole County, Missouri.
13. Further Execution. Each party hereto shall execute any and all documents as are necessary or desirable to consummate the transactions contemplated hereby.
14. Execution in Counterparts. This Agreement may be executed in two or more counterparts, each of which shall constitute an original instrument and all of which together shall constitute one and the same Agreement.
15. Governing Law.This Agreement shall be governed by and construed in accordance with the laws of the State of Missouri.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in their respective capacities as described below.
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State of Missouri County of _______

) ) ss )

Before me, a notary of public for the State of Missouri, personally appeared Stephen Douglas Bonney, who did upon his oath state that he is an attorney for the Plaintiff Class with respect to the matter set forth in this Agreement, that he is authorized to execute this Agreement on behalf of the Plaintiff Class, and that he executed this Agreement as his free act and deed.

________________________________ Stephen Douglas Bonney
Subscribed and sworn to before me on this ____ day of March, 2014.

_________________________________ Notary of Public
My commission expires on __________________.

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State of Missouri County of _______

) ) ss )

Before me, a notary of public for the State of Missouri, personally appeared Anthony E. Rothert, who did upon his oath state that he is an attorney for the Plaintiff Class with respect to the matter set forth in this Agreement, that he is authorized to execute this Agreement on behalf of the Plaintiff Class, and that he executed this Agreement as his free act and deed.

________________________________ Anthony E. Rothert
Subscribed and sworn to before me on this ____ day of March, 2014.

_________________________________ Notary of Public
My commission expires on __________________.

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State of Missouri County of _______

) ) ss )

Before me, a notary of public for the State of Missouri, personally appeared Grant R. Doty, who did upon his oath state that he is an attorney for the Plaintiff Class with respect to the matter set forth in this Agreement, that he is authorized to execute this Agreement on behalf of the Plaintiff Class, and that he executed this Agreement as his free act and deed.

________________________________ Grant R. Doty
Subscribed and sworn to before me on this ____ day of March, 2014.

_________________________________ Notary of Public
My commission expires on __________________.

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State of Missouri County of Cole

) ) ss )

Before me, a notary of public for the State of Missouri, personally appeared Elizabeth Callahan, who did upon her oath state that she is an attorney for the Defendants with respect to the matter set forth in this Agreement, that she is authorized to execute this Agreement on behalf of the Defendants, and that she executed this Agreement as her free act and deed.

________________________________ Elizabeth Callahan
Subscribed and sworn to before me on this ____ day of March, 2014.

_________________________________ Notary of Public
My commission expires on __________________.

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State of Missouri County of Cole

) ) ss )

Before me, a notary of public for the State of Missouri, personally appeared Emily A. Dodge, who did upon her oath state that she is an attorney for the Defendants with respect to the matter set forth in this Agreement, that she is authorized to execute this Agreement on behalf of the Defendants, and that she executed this Agreement as her free act and deed.

________________________________ Emily A. Dodge
Subscribed and sworn to before me on this ____ day of March, 2014.

_________________________________ Notary of Public
My commission expires on __________________.

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 IN THE UNITED STATES DISTRICT COURT WESTERN DISTRICT OF MISSOURI CENTRAL DIVISION

BOBBIE Y. LANE d/b/a CAGED POTENTIAL, Plaintiff,
v. GEORGE LOMBARDI, et al.
Defendants.

) ) ) ) ) ) Case No. 12-4219-CV-C-NKL ) ) ) )

ORDER

Plaintiff Bobbie Lane filed this class action lawsuit pursuant to 42 U.S.C. § 1983

seeking to enjoin the censorship of books or other publications mailed to inmates held in

the custody of the Missouri Department of Corrections (MODOC) without affording the

sender notice of non-delivery and the opportunity to be heard. [Doc. 1]. In November

2012, the Court granted Lane’s Motion to Certify Class. The Rule 23(b)(2) class is

defined as:

All current and future publishers, distributors, and authors of written materials, who mail books, publications, or other written materials to inmates incarcerated in prisons operated by MODOC.

[Doc. 22]. The Parties executed a Settlement Agreement, which requires the MODOC to

provide notice to the sender of censored materials, an opportunity to be heard, and review

by a prison official who did not originally withhold the material. While the original

Complaint only sought these procedural safeguards for written material, the settlement

extends beyond the Complaint to provide safeguards for recorded materials as well.

After notice to class members and a fairness hearing, the Parties seek approval of the settlement terms pursuant to the requirements in Federal Rule of Civil Procedure 23(e). After reviewing the Settlement Agreement, conducting two fairness hearings pursuant to Rule 23(e)(2), considering class member objections, and hearing argument from the Parties and objector Prison Legal News, the Court finds that the proposed Settlement Agreement is fair, reasonable, and adequate.
I. Background The Parties notified the Court of settlement in March 2014. The Court reviewed
and approved class notice of the proposed settlement, and notice was published in the St. Louis Dispatch, the Kansas City Star, and Prison Legal News. [Doc. 37]. Class members were given ninety days to object to the proposed settlement. After the close of the objection period, a settlement fairness hearing occurred on July 1, 2014. [Doc. 61]. The Court considered the submissions of thirteen written objections. Counsel for one objector, Prison Legal News, appeared at the hearing to object on various grounds, discussed below.
Around the same time, the Parties brought to the Court’s attention that they now believed inmates in the custody of the MODOC were also class members. Notice was not originally directed to inmates because the Parties believed that inmates were not allowed to send mail to other inmates and that therefore, they were not class members. Supplemental notice was provided to inmates in the custody of the MODOC by posting the settlement notice in the library of each MODOC facility. Additional time was given for inmates to file objections. [Doc. 65]. A second fairness hearing was held on
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September 5, 2014, to address additional objections raised by inmates. [Doc. 70]. The Court considered the three additional written objections from incarcerated objectors. The Parties further addressed objections raised by Prison Legal News.
II. Discussion A. Objections by Inmates in the Custody of the MODOC
Twelve written objections were filed by inmates in the custody of the Missouri Department of Corrections. Many of the objections have overlapping themes and will be addressed collectively. The first common objection was that inmates were not adequately provided notice of the settlement terms. See e.g., [Docs. 40-42]. However, these objections were filed prior to the supplemental notice that was provided to inmates. Notice of the settlement was posted in each library within the MODOC, and inmates were provided additional time to object. Another common objection was that inmates do not receive mail or that mail is delivered in an untimely fashion. See e.g., [Docs. 41-42, 45, 54, 68-69]. These objections are outside the scope of this lawsuit, which seeks to provide relief to the sender of material, not the receiver. A receiver’s ability to pursue claims related to not receiving mail is not barred by the settlement of this case. The last common objection is that notice to senders of mail is not provided in a timely manner. This objection is discussed below because Prison Legal News raised the same objection.
B. Objections by Prison Legal News Prison Legal News raised four objections to the Parties’ proposed Settlement Agreement. First, Prison Legal News argues that the Settlement Agreement fails to require proper and timely due process to class members. The MODOC’s policy – which
3

was revised in accordance with the terms of the Parties’ Settlement Agreement – provides notice to a sender after both a censorship committee and a majority of deputy division directors upholds an initial censorship decision made by mailroom personnel. Prison Legal News argues that censorship occurs at the moment mailroom personnel withhold mail for further review and that the sender is entitled to notice at the time of the initial withholding. In support of its argument, Prison Legal News points to Procunier v. Martinez, 416 U.S. 396 (1974). However, Procunier does not prescribe a timeline for notification to the sender, and Prison Legal News has pointed to no other case law requiring immediate notice to the sender when correspondence is withheld for further review and a final censorship decision. Further, this litigation and the settlement address the MODOC’s failure to provide notice to the sender of censored materials. The timeliness of providing that notice is not the subject of this litigation, is not addressed in the settlement or in the MODOC’s revised policy, and is therefore not precluded from later litigation.
Second, Prison Legal News argues that the forum selection clause in the Settlement Agreement – which requires that enforcement actions be pursued in the Circuit Court of Cole County, Missouri – renders the settlement effectively unenforceable because the attorney’s fees normally recoverable to a prevailing party in federal court for the time spent on post-judgment enforcement and monitoring under 42 U.S.C. § 1988 would not be available for substantively similar actions in state court. [Doc. 57, at p. 910]; [Doc. 63, at p. 1]. However, “[a] class action settlement, like an agreement resolving any other legal claim, is a private contract negotiated between the parties,” and a private
4

settlement is enforceable only through a new action for breach of contract. Christina A. v. Bloomberg, 315 F.3d 990, 992-93 (8th Cir. 2003) (citing Moore’s Fed. Prac. § 23.82[1] (3d ed. 2000)). Any class member seeking to enforce this private settlement would have to bring a breach of contract action, which as Prison Legal News concedes, does not entitle that party to attorney’s fees. As a result, even if this Court or some other federal court retained jurisdiction for the enforcement of this settlement, the party bringing the action would not be entitled to attorney’s fees under § 1988. While Plaintiffs could have pursued a consent judgment in an effort to be classified as a “prevailing party” under § 1988, Plaintiffs stated that it is the State of Missouri’s policy not to enter into consent judgments, so private settlement was the trade-off for achieving the purpose of the litigation without the further time and expense of litigating it to its conclusion. That a party may have to pursue a breach of contract action out-of-pocket is not a sufficient reason to deny this settlement.
Third, Prison Legal News contends that notice of settlement to class members was inadequate. Prison Legal News asserts that the class members are a global class and that notice in 15-20 metropolitan newspapers, on the Internet, and publisher trade journals is appropriate. However, Federal Rule of Civil Procedure 23(e)(1) requires that notice be directed “in a reasonable manner.” Notice was provided by publication in two of Missouri’s major newspapers, The Kansas City Star and St. Louis Post-Dispatch, in a case that involves people who send materials to Missouri inmates. Notice was also provided by posting in the library of all MODOC facilities and by publication in Prison
5

Legal News, which is a national publication. The Court finds this method of dissemination of notice to be a “reasonable manner” as required by Rule 23(e)(1).
Finally, Prison Legal News argues that the factors in Grunin v. Int’l House of Pancakes, 513 F.2d 114 (8th Cir. 1975), weigh against approving the settlement. “The district court must consider a number of factors in determining whether a settlement is fair, reasonable, and adequate: the merits of the plaintiff’s case, weighed against the terms of the settlement; the defendant’s financial condition; the complexity and expense of further litigation; and the amount of opposition to the settlement.” Van Horn v. Trickey, 840 F.2d 604, 607 (8th Cir. 1988). Prison Legal News contends that there is very little chance Plaintiffs would not prevail in this case and that further litigation would not be complex. While Plaintiffs would very likely succeed in their claims given the legal precedent surrounding this issue, the Settlement Agreement gives Plaintiffs more benefits than they asked for, and full litigation of this case may risk loss of these additional benefits. The Parties and Prison Legal News agree that the MODOC’s financial condition is irrelevant. Finally, the amount of opposition to this settlement is relatively low. Just over a dozen objections were filed – many of which were entirely irrelevant to the claims in this case or were resolved by providing supplemental notice to inmates in the custody of the MODOC.
After review of the terms of the Settlement Agreement and considering all objections and arguments, the Court finds that the Settlement Agreement proposed by the Parties is fair, reasonable, and adequate. The Court finds that the Settlement Agreement provides substantial benefits to the class members, protects the interests of the class
6

members, and that the interests of the class members would not be prejudiced by the proposed settlement and release.
III. Conclusion For the reasons set forth above, the proposed Settlement Agreement is approved.
It is further ordered that pursuant to Federal Rule of Civil Procedure 41(a)(2), Plaintiffs’ claims are dismissed with prejudice.

Dated: October 22, 2014 Jefferson City, Missouri

s/ Nanette K. Laughrey NANETTE K. LAUGHREY United States District Judge

7

 
 U.S. District Court Western District of Missouri (Jefferson City) CIVIL DOCKET FOR CASE #: 2:12−cv−04219−NKL

CLOSED,EAPJ

Lane d/b/a Caged Potential v. Lombardi et al Assigned to: District Judge Nanette K. Laughrey Demand: $0 Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 08/09/2012 Date Terminated: 10/22/2014 Jury Demand: None Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Bobbie Y. Lane d/b/a Caged Potential

represented by Andrew McNulty American Civil Liberties Union of Missouri Foundation−StL 454 Whittier Street St. Louis, MO 63108 314−669−3418 Email: amcnulty@aclu−mo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Grant R. Doty United States Equal Employment Opportunity Commission − Stl 1222 Spruce Street Room 8.100 St. Louis, MO 63103 314−539−7918 Fax: 314−539−7895 Email: grant.doty@eeoc.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Stephen Douglas Bonney ACLU Foundation of Kansas 3601 Main St. Kansas City, MO 64111 (816) 994−3311 Email: dbonney@aclukswmo.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

Gillian R. Wilcox American Civil Liberties Union of Missouri Foundation−KCMO 406 W. 34th Street Suite 420 Kansas City, MO 64111 816−470−9938 Fax: 314−652−3112 Email: gwilcox@aclu−mo.org ATTORNEY TO BE NOTICED

Anthony E. Rothert American Civil Liberties Union of Missouri Foundation−StL 454 Whittier Street St. Louis, MO 63108 (314) 669−3420 Fax: (314) 652−3112 Email: trothert@aclu−mo.org ATTORNEY TO BE NOTICED
Case: 2:12-cv-04219-NKL As of: 02/21/2016 08:54 PM CST 1 of 11

V.
Defendant
George A. Lombardi in his official capacity

represented by Emily A. Dodge Missouri Attorney General's Office−JC P.O. Box 899 Jefferson City, MO 65102 (573) 751−7344 Email: emily.dodge@ago.mo.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Callahan Missouri Attorney General's Office−KC 615 East 13th Street Suite 401 Kansas City, MO 64106 (816) 889−5000 Fax: (573) 889−5006 Email: elizabeth.callahan@ago.mo.gov ATTORNEY TO BE NOTICED

Defendant
Dave Dormire in his official capacity

represented by Emily A. Dodge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Callahan (See above for address) ATTORNEY TO BE NOTICED

Defendant Mariann B. Atwell

represented by Emily A. Dodge (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED

Elizabeth Callahan (See above for address) ATTORNEY TO BE NOTICED

Miscellaneous
Michael S. Connors TERMINATED: 05/21/2014

represented by Michael S. Connors 305042 JEFFERSON CITY CORRECTIONAL CENTER 8200 No More Victims Rd. Jefferson City, MO 65101 PRO SE

Miscellaneous
Thurman Fuller TERMINATED: 05/23/2014

represented by Thurman Fuller 1033877 WESTERN MISSOURI DIAGNOSTIC CENTER 3401 Faranon St. St. Joseph, MO 64506 PRO SE

Miscellaneous Case: 2:12-cv-04219-NKL As of: 02/21/2016 08:54 PM CST 2 of 11

Enoch Sellassie TERMINATED: 05/23/2014

represented by Enoch Sellassie 172153 POTOSI CORRECTIONAL CENTER 11593 State Hwy O Mineral Point, MO 63660 PRO SE

Miscellaneous
Christopher Wirth TERMINATED: 06/25/2014

represented by Christopher Wirth 301 Institution Drive Bellefonte, PA 16823 PRO SE

Miscellaneous
Christopher Donnelly TERMINATED: 06/25/2014

represented by Christopher Donnelly JK 5048 301 Institution Drive Bellefonte, PA 16823 PRO SE

Miscellaneous
Jonathan Rich TERMINATED: 06/25/2014

represented by Jonathan Rich KX 9662 301 Institution Drive Bellefonte, PA 16823 PRO SE

Miscellaneous
Adam Klebold TERMINATED: 06/25/2014

represented by Adam Klebold 235 E. 42nd Street New York, NY 10017 PRO SE

Miscellaneous
Edward Breivik TERMINATED: 06/25/2014

represented by Edward Breivik 1586 Lawrence Road Lawrence, NJ 08648 PRO SE

Miscellaneous
James Jahar Thule TERMINATED: 06/25/2014

represented by James Jahar Thule 518 George Road Toms River, NJ 08753 PRO SE

Miscellaneous
Kevin William Hammerschmidt TERMINATED: 05/30/2014

represented by Kevin William Hammerschmidt 518739 MOBERLY CORRECTIONAL CENTER P.O. Box 7 Moberly, MO 65270 PRO SE

Miscellaneous

Roderick Nunley TERMINATED: 06/02/2014

represented by Roderick Nunley 990088 POTOSI CORRECTIONAL CENTER 11593 State Highway O Mineral Point, MO 63660 PRO SE

Case: 2:12-cv-04219-NKL As of: 02/21/2016 08:54 PM CST 3 of 11

Miscellaneous David G. White TERMINATED: 06/09/2014
Miscellaneous Billy Turner TERMINATED: 06/13/2014
Miscellaneous Maejed Inc. TERMINATED: 06/16/2014
Miscellaneous James Boley TERMINATED: 06/18/2014
Miscellaneous Prison Legal News TERMINATED: 06/26/2014
Miscellaneous Melvin Leroy Tyler TERMINATED: 08/18/2014
Miscellaneous Roger D Merchant TERMINATED: 08/18/2014
Miscellaneous Michael L. Gorman TERMINATED: 09/25/2014
Miscellaneous Charles Johnson TERMINATED: 09/26/2014
Miscellaneous George Biddy TERMINATED: 09/26/2014
Miscellaneous Daniel M. Coy TERMINATED: 09/26/2014
Miscellaneous Larry Windeknecht TERMINATED: 09/26/2014

represented by David G. White 530035 11593 State Hwy O Mineral Point, MO 63660 PRO SE

Date Filed 08/09/2012

# Docket Text
1 COMPLAINT against All Defendants filed by Anthony E. Rothert on behalf of Bobbie Y. Lane d/b/a Caged Potential. Filing fee $350, receipt number 0866−3193696. Service due by 12/10/2012. (Attachments: # 1 Civil Cover Sheet)(Rothert, Anthony)

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08/10/2012 08/10/2012
08/10/2012 08/10/2012 08/10/2012
08/10/2012 08/10/2012 08/13/2012 08/13/2012 08/13/2012 08/28/2012 08/28/2012
08/29/2012
09/19/2012 09/19/2012 09/19/2012

(Entered: 08/09/2012)
2 MOTION for preliminary injunction filed by Anthony E. Rothert on behalf of Bobbie Y. Lane d/b/a Caged Potential. Suggestions in opposition/response due by 8/27/2012 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 08/10/2012)
3 SUGGESTIONS in support re 2 MOTION for preliminary injunction filed by Anthony E. Rothert on behalf of Plaintiff Bobbie Y. Lane d/b/a Caged Potential. (Attachments: # 1 Exhibit Declaration of Bobbie Y. Lane)(Related document(s) 2 ) (Rothert, Anthony) (Entered: 08/10/2012)
4 MOTION to certify class filed by Anthony E. Rothert on behalf of Bobbie Y. Lane d/b/a Caged Potential. Suggestions in opposition/response due by 8/27/2012 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 08/10/2012)
5 SUGGESTIONS in support re 4 MOTION to certify class filed by Anthony E. Rothert on behalf of Plaintiff Bobbie Y. Lane d/b/a Caged Potential. (Related document(s) 4 ) (Rothert, Anthony) (Entered: 08/10/2012)
6 ORDER TRANSFERRING/REASSIGNING CASE. Case reassigned to District Judge Nanette K. Laughrey for all further proceedings. Signed on 8/10/12 by Magistrate Judge Matt J. Whitworth. This is a TEXT ONLY ENTRY. No document is attached. (James, Carrie) (Entered: 08/10/2012)
7 Notice of EAP assignment to United States Magistrate Judge Matt J. Whitworth. (Attachments: # 1 General Order)(James, Carrie) (Entered: 08/10/2012)
SUMMONS ISSUED as to Mariann B. Atwell, Dave Dormire, George A. Lombardi. (James, Carrie) (Entered: 08/10/2012)
8 RETURN OF SERVICE of complaint executed by Bobbie Y. Lane d/b/a Caged Potential. Mariann B. Atwell served on 8/13/2012, answer due 9/4/2012. (Rothert, Anthony) (Entered: 08/13/2012)
9 RETURN OF SERVICE of complaint executed by Bobbie Y. Lane d/b/a Caged Potential. Dave Dormire served on 8/13/2012, answer due 9/4/2012. (Rothert, Anthony) (Entered: 08/13/2012)
10 RETURN OF SERVICE of complaint executed by Bobbie Y. Lane d/b/a Caged Potential. George A. Lombardi served on 8/13/2012, answer due 9/4/2012. (Rothert, Anthony) (Entered: 08/13/2012)
11 NOTICE of appearance by Emily A. Dodge on behalf of Mariann B. Atwell, Dave Dormire, George A. Lombardi (Dodge, Emily) (Entered: 08/28/2012)
12 MOTION for extension of time filed by Emily A. Dodge on behalf of Mariann B. Atwell, Dave Dormire, George A. Lombardi. Suggestions in opposition/response due by 9/14/2012 unless otherwise directed by the court. (Dodge, Emily) (Entered: 08/28/2012)
13 ORDER entered by Judge Nanette Laughrey. Defendant's Motion for Extension of Time to Respond 12 is GRANTED. Defendant's response to Plaintiff's Motion for Preliminary Injunction 2 , Motion for Class Certification 4 , and Cross−Action Complaint for Declaratory and Injunctive Relief 1 is due on or before September 19, 2012. This is a TEXT ONLY ENTRY. No document is attached.(Kanies, Renea) (Entered: 08/29/2012)
14 NOTICE of appearance by Elizabeth Callahan on behalf of All Defendants (Callahan, Elizabeth) (Entered: 09/19/2012)
15 ANSWER to 1 Complaint, on behalf of Mariann B. Atwell, Dave Dormire, George A. Lombardi.(Dodge, Emily) (Entered: 09/19/2012)
16 SUGGESTIONS in opposition re 4 MOTION to certify class filed by Emily A. Dodge on behalf of Defendants Mariann B. Atwell, Dave Dormire, George A. Lombardi. Reply suggestions due by 10/9/2012 unless otherwise directed by the court (Related document(s) 4 ) (Dodge, Emily) (Entered: 09/19/2012)

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09/19/2012

17 SUGGESTIONS in opposition re 2 MOTION for preliminary injunction filed by Emily A. Dodge on behalf of Defendants Mariann B. Atwell, Dave Dormire, George A. Lombardi. Reply suggestions due by 10/9/2012 unless otherwise directed by the court (Attachments: # 1 Affidavit Dave Dormire, # 2 Affidavit Wilma Morgan, # 3 Affidavit Sylvia Fitzwater)(Related document(s) 2 ) (Dodge, Emily) (Entered: 09/19/2012)

10/04/2012

18 Consent MOTION for extension of time to file response/reply as to 2 MOTION for preliminary injunction through and including October 19, 2012, filed by Anthony E. Rothert on behalf of Bobbie Y. Lane d/b/a Caged Potential. Suggestions in opposition/response due by 10/22/2012 unless otherwise directed by the court. (Related document(s) 2 ) (Rothert, Anthony) (Entered: 10/04/2012)

10/05/2012

19 REPLY SUGGESTIONS to motion re 4 MOTION to certify class filed by Anthony E. Rothert on behalf of Plaintiff Bobbie Y. Lane d/b/a Caged Potential. (Related document(s) 4 ) (Rothert, Anthony) (Entered: 10/05/2012)

10/10/2012

20 ORDER by Judge Nanette Laughrey. Plaintiff's Motion for Extension of Time to File 18 is GRANTED. Plaintiff's reply is due on or before October 19, 2012. This is a TEXT ONLY ENTRY. No document is attached.(Kanies, Renea) (Entered: 10/10/2012)

10/15/2012

21 REPLY SUGGESTIONS to motion re 2 MOTION for preliminary injunction filed by Anthony E. Rothert on behalf of Plaintiff Bobbie Y. Lane d/b/a Caged Potential. (Related document(s) 2 ) (Rothert, Anthony) (Entered: 10/15/2012)

11/08/2012

22 ORDER entered by Judge Nanette Laughrey. the Court finds that class certification is appropriate in this case. Accordingly, Plaintiff's Motion [Doc. # 4] is GRANTED. Pursuant to Fed. R. Civ. P. 23(c), the Court certifies the following class: All current and future publishers, distributors, and authors of written materials, who mail books, publications, or other written materials to inmates incarcerated in prisons operated by MODOC. Pursuant to Fed. R. Civ. P. 23(g), the Court appoints Grant R. Doty and Anthony E. Rothert, of the ACLU of Eastern Missouri, and Stephen Douglas Bonney, of the ACLU of Kansas & Western Missouri, as Class counsel. (Kanies, Renea) (Entered: 11/08/2012)

11/15/2012

23 ORDER entered by Judge Nanette Laughrey. Plaintiff's Motion for a Preliminary Injunction [Doc. # 2] is GRANTED. Defendants are required to provide notice and an opportunity to appeal to senders whose communications with prisoners are censored or seized by Defendants or their officers, agents, or subordinate employees. (Kanies, Renea) (Entered: 11/15/2012)

11/20/2012

24 Settlement Conference set for 1/15/2013 10:00 AM in Magistrate Courtroom 3B, Jefferson City (WAK) before Magistrate Judge William A. Knox. (Price, Jackie) (Entered: 11/20/2012)

01/08/2013

25 AMENDED** NOTICE OF HEARING − This is the official notice for this hearing. Settlement Conference set for 1/15/2013 10:00 AM in **Magistrate Courtroom 3A, Jefferson City (MJW) before Magistrate Judge Matt J. Whitworth. THIS IS A CHANGE IN LOCATION AND JUDGE ONLY. TEXT ENTRY ONLY − no document is attached. (Price, Jackie) (Entered: 01/08/2013)

01/15/2013

26 Minute Entry. Proceedings held before Magistrate Judge Matt J. Whitworth: SETTLEMENT CONFERENCE held on 1/15/2013. Counsel Grant Doty, Anthony Rothert, Emily Dodge and Elizabeth Callahan participated in person. Case settled. Case requires an approval hearing before the district judge. Confidential settlement record made. TEXT ENTRY ONLY − no document is attached. To order a transcript of this hearing please contact Jackie Price, 573−636−4015. (Price, Jackie) (Entered: 01/15/2013)

01/23/2013

27 ORDER SETTING TELECONFERENCE entered by Judge Nanette Laughrey. A Telephone Conference is set for 1/28/2013 at 10:00 AM regarding the settlement approval hearing. The parties shall call 877−336−1828, access code 8503666 to participate in the conference.This is a TEXT ONLY ENTRY. No document is attached. (Kanies, Renea) (Entered: 01/23/2013)

01/23/2013 28 ORDER SETTING TELECONFERENCE entered by Judge Nanette Laughrey. A Telephone Conference is set for 1/31/2013 at 9:30 AM regarding the settlement

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approval hearing. The parties shall call 877−336−1828, access code 8503666 to participate in the conference.This is a TEXT ONLY ENTRY. No document is attached. (Kanies, Renea) (Entered: 01/23/2013)

01/31/2013

29 MINUTE ENTRY. Teleconference held before Judge Nanette Laughrey on January 31, 2013. Time: 9:30 a.m. 9:38 a.m. Comments: Teleconference held regarding a settlement approval hearing. Lance Weber, counsel for Prison Legal News, requested permission to listen to the conference call. No party had an objection. The Court permitted Mr. Weber to listen in on the conference call. The parties stated that final review of documents needs to be completed and notice published in two major newspapers and on the ACLU's website prior to the settlement approval hearing. The plaintiff will file a motion for approval of settlement by early March. The Court set a final settlement approval hearing for May 21, 2013, at 10:00 a.m. in Jefferson City. All parties stated they are available on this date. Plaintiffs by: Grant Doty and Douglas Bonney. Defendants by: Emily Dodge and Elizabeth Callahan. Court Reporter: None. CRD: Renea Kanies. (Kanies, Renea) (TEXT ENTRY ONLY − NO DOCUMENT ATTACHED) (Entered: 01/31/2013)

04/05/2013

30 Joint MOTION to continue Final Settlement Approval Hearing filed by Emily A. Dodge on behalf of All PARTIES. Suggestions in opposition/response due by 4/22/2013 unless otherwise directed by the court. (Dodge, Emily) Modified on 4/5/2013 to reflect document filed on behalf of all parties (Lock, Tania). (Entered: 04/05/2013)

04/05/2013

31 ORDER entered by Judge Nanette Laughrey. The Parties' Joint Motion to Continue 30 is GRANTED. The final settlement approval hearing currently set for May 21, 2013, will be rescheduled to a date on or after October 1, 2013. This is a TEXT ONLY ENTRY. No document is attached.(Smith, Fran) (Entered: 04/05/2013)

10/04/2013 32 NOTICE of filing Notice of Change of Address by Mariann B. Atwell, Dave Dormire, George A. Lombardi (Callahan, Elizabeth) (Entered: 10/04/2013)

03/11/2014

33 NOTICE of appearance by Gillian R. Wilcox on behalf of Bobbie Y. Lane d/b/a Caged Potential (Attorney Gillian R. Wilcox added to party Bobbie Y. Lane d/b/a Caged Potential(pty:pla))(Wilcox, Gillian) (Entered: 03/11/2014)

03/24/2014

34 ORDER SETTING TELECONFERENCE entered by Judge Nanette Laughrey. A Telephone Conference is set for 3/26/2014 at 10:30 AM regarding the status of the case. The parties shall call conference number 877−336−1828, access code: 8503666 to participate in the call. This is a TEXT ONLY ENTRY. No document is attached. (Matthes, Renea) (Entered: 03/24/2014)

03/26/2014

35 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on March 26, 2014. Time: 10:30 a.m. to 10:40 a.m. Teleconference held regarding the status of the case. Mr. Rothert stated the parties have reached a settlement and the parties have agreed on the settlement agreement and the notice to the class regarding the settlement. The Court directed the parties to file a motion to approve their proposed notice to the class and to include in that motion how the parties plan to distribute notice to the class. After the notice is approved, the case will then be set for a fairness hearing and the parties shall submit the settlement agreement and a proposed order approving the settlement to the Court. The parties discussed how to most effectively distribute notice and agreed they will work with each other regarding publication of the notice. Mr. Rothert stated they will file the motion to approve class notice by Friday, March 28, and the case should be ready for a fairness hearing in 3−4 weeks. Appearances: Plaintiff by Anthony Rothert, Stephen Bonney, and Gillian Wilcox. Defendant by Emily Dodge and Elizabeth Callahan. Court Reporter: None. CRD: Renea Matthes. (Matthes, Renea) (Entered: 03/26/2014)

03/27/2014

36 Joint MOTION for order approving and directing notice to certified class, establishing deadline for objections to proposed settlement, and scheduling a fairness hearing filed by Anthony E. Rothert on behalf of Bobbie Y. Lane d/b/a Caged Potential. Suggestions in opposition/response due by 4/14/2014 unless otherwise directed by the court. (Attachments: # 1 Exhibit Proposed Settlement, # 2 Exhibit Proposed Notice)(Rothert, Anthony) (Entered: 03/27/2014)

03/28/2014 37 ORDER entered by Judge Nanette Laughrey. The Parties Joint Motion to Approve and Direct Notice of Settlement to the Certified Class, 36 , is GRANTED. The Parties shall

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04/04/2014
04/04/2014
05/21/2014 05/23/2014 05/23/2014 05/28/2014
05/30/2014 06/02/2014 06/06/2014
06/06/2014 06/11/2014
06/13/2014 06/16/2014

complete the notice process no later than 30 days from the date of this Order. The period in which class members may file objections shall expire 90 days from the date of this Order. A fairness hearing is set for 07/01/2014, at 10:00 a.m., in District Courtroom 4A, Jefferson City, Missouri. (Cross, Ashley) (Entered: 03/28/2014)
38 Joint MOTION for extension of time from April 28, 2014, to May 8, 2014, in which to publish notice of settlement in Prison Legal News filed by Anthony E. Rothert on behalf of Bobbie Y. Lane d/b/a Caged Potential. Suggestions in opposition/response due by 4/21/2014 unless otherwise directed by the court. (Rothert, Anthony) (Entered: 04/04/2014)
39 ORDER entered by Judge Nanette Laughrey. The Parties' Joint Motion to Modify Order, 38 , is GRANTED. Plaintiff is ordered to direct notice by publication in Prison Legal News on or before May 8, 2014. This is a TEXT ONLY ENTRY. No document is attached. (Cross, Ashley) (Entered: 04/04/2014)
40 OBJECTION to settlement by Michael S. Connors. Related document: 37 Order on Motion for Miscellaneous Relief.(Bax, Laura) (Entered: 05/23/2014)
41 OBJECTION to settlement by Thurman Fuller Related document: 37 Order on Motion for Miscellaneous Relief.(Bax, Laura) (Entered: 05/23/2014)
42 OBJECTION to settlement by Enoch Sellassie Related document: 37 Order on Motion for Miscellaneous Relief.(Bax, Laura) (Entered: 05/23/2014)
43 MOTION to intervene filed by Christopher Wirth, Christopher Donnelly, Jonathan Rich, Adam Klebold, Edward Breivik, James Jahar Thule. Suggestions in opposition/response due by 6/16/2014 unless otherwise directed by the court. (Bax, Laura) (Entered: 05/28/2014)
44 OBJECTION to settlement by Kevin William. Related document: 37 Order on Motion for Miscellaneous Relief.(Bax, Laura) (Entered: 05/30/2014)
45 OBJECTIONS to settlement by Roderick Nunley. Related document: 37 Order on Motion for Miscellaneous Relief.(Bax, Laura) (Entered: 06/02/2014)
46 RESPONSE to motion re 43 MOTION to intervene filed by Anthony E. Rothert on behalf of Plaintiff Bobbie Y. Lane d/b/a Caged Potential. Reply suggestions due by 6/23/2014 unless otherwise directed by the court (Rothert, Anthony) (Entered: 06/06/2014)
47 OBJECTIONS to settlement by David G. White. (James, Carrie) (Entered: 06/09/2014)
48 ORDER SETTING TELECONFERENCE entered by Judge Nanette Laughrey. A teleconference is set for 6/16/2014 at 02:30 PM to discuss the settlement objections filed by current and former inmates. The Parties shall call 877−336−1828. Access code is 8503666.This is a TEXT ONLY ENTRY. No document is attached. (Cross, Ashley) (Entered: 06/11/2014)
49 OBJECTION to Settlement by Billy Turner. (Attachments: # 1 Exhibit, # 2 Envelope)(Chorny, Traci) (Entered: 06/13/2014)
50 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on June 16, 2014. Time: 2:30 p.m. to 2:39 p.m. Teleconference held. The Court discussed with the Parties what procedure they believe should be followed to address inmate objections to the settlement. The Parties agreed that there is no need to make arrangements for the inmate objectors to appear in person at the fairness hearing and that addressing the written objections will be sufficient. The Parties also agreed that it is likely that the inmates are not members of the class because inmates are not allowed to send mail to each other while incarcerated, although there could be exceptions in certain circumstances. The Court will proceed with the fairness hearing scheduled for July 1, 2014. Appearnaces: Plaintiff by Anthony Rothert and Stephen Bonney and Defendant by Emily Dodge and Elizabeth Callahan. Court Reporter: None. CRD: Renea Matthes. (Text entry only − no document attached) (Matthes, Renea) (Entered: 06/16/2014)

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06/16/2014 06/16/2014 06/16/2014 06/18/2014 06/18/2014 06/23/2014 06/25/2014 06/26/2014 06/26/2014 06/27/2014
06/30/2014 06/30/2014

51 OBJECTIONS (non motions) to settlement by Maejed Inc.. (Attachments: # 1 Envelope)(James, Carrie) (Entered: 06/16/2014)
52 SUGGESTIONS in opposition re 43 MOTION to intervene filed by Emily A. Dodge on behalf of Defendants Mariann B. Atwell, Dave Dormire, George A. Lombardi. Reply suggestions due by 7/3/2014 unless otherwise directed by the court (Related document(s) 43 ) (Dodge, Emily) (Entered: 06/16/2014)
53 OBJECTIONS (non motions) to settlement by Maejed Inc.. (Attachments: # 1 Envelope)(Martin, Jan) Modified on 6/18/2014 − document deleted as it was duplicative to document no. 51. (Bax, Laura). (Entered: 06/17/2014)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 6/16/14 as Document No. 53, Objections to settlement. The document has been deleted as it was duplicative of Document No. 51. This is a text entry only − no document is attached. (Bax, Laura) (Entered: 06/18/2014)
54 OBJECTIONS (non motions)to Settlement by James Boley re 37 Order on Motion for Miscellaneous Relief,. Related document: 37 Order on Motion for Miscellaneous Relief,. (Attachments: # 1 Envelope)(James, Carrie) (Entered: 06/18/2014)
55 ORDER SETTING TELECONFERENCE. As requested by the Parties, a teleconference is set for 6/24/2014 at 10:00 AM to correct information previously provided to the Court. This is a TEXT ONLY ENTRY. No document is attached. (Cross, Ashley) (Entered: 06/23/2014)
56 Movants Donnelly, Wirth, Rich, Breivik, Thule, and Klebold's Motion to Intervene, 43 , is DENIED. A copy of this Order was mailed on 6/25/14 to each Movant at the addresses listed on the docket. (Cross, Ashley) (Entered: 06/25/2014)
57 OBJECTIONS (non motions) by Prison Legal News to proposed settlement of class claims. (Attachments: # 1 Exhibit 1 − Declaration of Lance Weber, # 2 Exhibit 2 − Declaration of John W. Kurtz, # 3 Exhibit 3 − Declaration of Sanford J. Rosen)(Weber, Lance) (Entered: 06/26/2014)
58 Supplemental OBJECTIONS 57 by Prison Legal News . (Weber, Lance) Modified on 6/27/2014 to correct docket text(Bax, Laura). (Additional attachment(s) added on 6/30/2014: # 1 Exhibit) (Bax, Laura). (Entered: 06/26/2014)
59 Supplemental OBJECTIONS by Prison Legal News re 57 Objections (non motion) . Related document: 58 Objections (non motion) filed by Prison Legal News.(Weber, Lance) Modified on to correct docket text 6/27/2014 (Bax, Laura). Modified on 6/30/2014 − document attached to entry no. 58 and deleted from this entry per instructions from chambers (Bax, Laura). (Entered: 06/27/2014)
NOTICE OF DOCKET MODIFICATION. A modification has been made to the document filed on 6/27/14 as Document No. 59, Objections (non−motion). The document has been deleted and attached to Document No. 58. This is a text entry only − no document is attached. (Bax, Laura) (Entered: 06/30/2014)
60 MINUTE ENTRY. Teleconference held before the Honorable Nanette K. Laughrey on June 24, 2014. Time: 10:00 a.m. to 10:17 a.m. Mr. Rothert stated that inmates who are not in administrative segregation are generally allowed to correspond with inmates at other correctional facilities and, as such, inmates may be class members. The parties stated that they had discussed notice to inmate class members regarding the settlement and making a copy of the settlement agreement available in the library of each prison. The parties proposed that, in the library of each correctional facility, notice to the class be posted and a copy of the proposed settlement made available by a date certain. The Court approved that means of providing notice. Notice will be posted in the library of each prison within 30 days of the date of this Order. Inmates will be provided 30 days after posting of the notice to submit objections. The Court will proceed with the fairness hearing scheduled for July 1, 2014. The Court will schedule a second hearing in September to consider objections filed by inmates. Appearances: Plaintiffs by Anthony Rothert and Stephen Bonney and Defendants by Emily Dodge and Elizabeth Callahan. Court Reporter: None. CRD: Renea Matthes.(Cross, Ashley) (Entered: 06/30/2014)

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07/01/2014

61 Minute Entry. Proceedings held before District Judge Nanette K. Laughrey: SETTLEMENT APPROVAL HEARING held on 7/1/2014. To order a transcript of this hearing please contact Katie Wirt, 816−512−5608. (Matthes, Renea) (Entered: 07/03/2014)

07/01/2014 62 EXHIBIT INDEX − Settlement Approval Hearing held 7/1/2014. (Matthes, Renea) (Entered: 07/03/2014)

07/07/2014

63 OBJECTIONS (non motions) by Prison Legal News re 57 Objections (non motion), . Related document: 57 Objections (non motion), filed by Prison Legal News.(Weber, Lance) (Entered: 07/07/2014)

07/07/2014

64 Joint MOTION for order approval of supplemental notice to class re 60 Telephone Conference,,,,, filed by Anthony E. Rothert on behalf of All Plaintiffs. Suggestions in opposition/response due by 7/24/2014 unless otherwise directed by the court. (Attachments: # 1 Proposed Supplemental Notice to Class)(Related document(s) 60 ) (Rothert, Anthony) (Entered: 07/07/2014)

07/08/2014

65 ORDER entered by Judge Nanette Laughrey. The Parties' Joint Motion to Approve and Direct Supplemental Notice of Settlement, [Doc. 64], is GRANTED. Defendants will post the notice in the library of each Missouri Department of Corrections facility by July 18, 2014. Class members may file objections to the Parties' proposed settlement by no later than August 18, 2014. A fairness hearing required by Federal Rule of Civil Procedure 23(e)(2) is set for September 5, 2014, at 10:00 a.m. The hearing will be held at: Christopher S. Bond United States Courthouse, 80 Lafayette Street, Jefferson City, MO 65101 This is a TEXT ONLY ENTRY. No document is attached.(Cross, Ashley) (Entered: 07/08/2014)

07/31/2014 66 MAIL RETURNED as undeliverable. Mail sent to Adam Klebold. (Related document(s) 56 ) (Lock, Tania) (Entered: 07/31/2014)

08/18/2014 67 OBJECTIONS (non motions) by Billy Turner to proposed settlement. (Attachments: # 1 Envelope)(Russel, Jeri) (Entered: 08/18/2014)

08/18/2014 68 OBJECTIONS (non motions) by Melvin Leroy Tyler. (Bax, Laura) (Entered: 08/18/2014)

08/18/2014 69 OBJECTIONS (non motions) by Roger D Merchant. (Bax, Laura) (Entered: 08/18/2014)

09/05/2014

70 Minute Entry. Proceedings held before District Judge Nanette K. Laughrey: SETTLEMENT FAIRNESS HEARING held on 9/5/2014. Grant Dody appeared on behalf of Plaintiffs. Emily Dodge and Elizabeth Callahan appeared on behalf of Defendants. This is the second settlement fairness hearing in this case after Defendants agreed to provide notice of the settlement to prisoners in the custody of the Missouri Department of Corrections. Three additional objections were submitted by mail after the second notice was issued. Both Parties believe the objections are not relevant to the narrow issues before the Court. No objectors were present at the hearing. The Court ordered the Parties to submit a proposed order approving the settlement by no later than September 15, 2014. The proposed order should address issues raised by Prison Legal News, including the issue of attorney's fees for enforcement of a civil rights action. The Parties should email the proposed order to Alana Barragan−Scott (alana_barragan−scott@mow.uscourts.gov). TEXT ENTRY ONLY− no document attached. To order a transcript of this hearing please contact Tania Lock, 573−556−7552. FTR: 10:00am − 10:07am (Lock, Tania) (Entered: 09/05/2014)

09/23/2014

71 MOTION to intervene filed by Michael L. Gorman. Suggestions in opposition/response due by 10/10/2014 unless otherwise directed by the court. (James, Carrie) (Entered: 09/23/2014)

09/25/2014

72 ORDER entered by Judge Nanette Laughrey. Michael Gorman, an inmate in the Jefferson City Correctional Center, filed a Motion to Intervene in this case. 71 . In his Motion, Mr. Gorman states that personnel in the Jefferson City Correctional Center opened sealed, legal mail within his cell while they were moving Mr. Gorman to a new cell. He requests that he be "added to this case." A party's right to intervene is governed by Federal Rule of Civil Procedure 24. Mr. Gorman's Motion does not satisfy the requirements of Rule 24. For example, in his Motion, Mr. Gorman failed to state the grounds for intervention and did not include a pleading that sets out the claim

Case: 2:12-cv-04219-NKL As of: 02/21/2016 08:54 PM CST 10 of 11

09/26/2014 10/21/2014 10/22/2014 11/05/2014

or defense for which intervention is sought, as required by Federal Rule of Civil Procedure 24(c). Further, Mr. Gorman has not met the requirements of either Rule 24(a) or 24(b). As to Rule 24(a)(1), Mr. Gorman does not identify a federal statute that gives him the unconditional right to intervene. As to Rule 24(a)(2), Mr. Gorman does not explain how he has an interest in the subject matter of this case beyond class membership. He does not explain how disposal of this action without his intervention will impair or impede his ability to protect his own interests. To the extent that Mr. Gorman mails material to inmates in the custody of other MODOC facilities, Mr. Gorman is a member of the certified class, which is adequately represented by named Plaintiff Bobbie Lane. As to Rules 24(b)(1) and (b)(2), Mr. Gorman does not identify a federal statute that gives him a conditional right to intervene and does not identify a claim or defense that shares with the main action a common question of law or fact. Mr. Gorman states that his legal mail has been opened, which is an entirely different allegation than the one being alleged in this case. Further, pursuant to Rule 24(b)(3), intervention is inappropriate because it will unduly delay or prejudice the adjudication of the original parties' rights. The Parties have presented argument at two settlement fairness hearings, have fielded various objections, and have sent notice to class members on two separate occasions. Mr. Gorman's letter, which is dated September 19, 2014, was written long after the time to file objections to the settlement of this case has passed. Accordingly, Mr. Gorman's Motion to Intervene, [Doc. 71], is denied. This is a TEXT ONLY ENTRY. No document is attached. (Cross, Ashley). A copy of this Order was mailed to Mr. Gorman on 9/25/2014, at Jefferson City Correctional Center, 8200 No More Victims Rd., Jefferson City, MO 65101. (Entered: 09/25/2014)
73 OBJECTIONS (non motion) to settlement by Charles Johnson, George Biddy, Daniel M. Coy & Larry Windeknecht. (Attachments: # 1 Exhibit, # 2 Envelope) Sealed envelope attached to "exhibit 8" returned to Larry Windeknecht as the court cannot forward correspondence.(Bax, Laura) (Entered: 09/29/2014)
74 NOTICE of appearance by Andrew McNulty on behalf of All Plaintiffs (Attorney Andrew McNulty added to party Bobbie Y. Lane d/b/a Caged Potential(pty:pla))(McNulty, Andrew) (Entered: 10/21/2014)
75 ORDER. Settlement Agreement is approved. It is further ordered that pursuant to Federal Rule of Civil Procedure 41(a)(2), Plaintiffs' claims are dismissed with prejudice. Signed on 10/22/14 by District Judge Nanette K. Laughrey. (Matthes, Renea) (Entered: 10/22/2014)
76 OBJECTIONS (non motions) by Michael S. Connors. (Attachments: # 1 Envelope)(James, Carrie) (Entered: 11/06/2014)

Case: 2:12-cv-04219-NKL As of: 02/21/2016 08:54 PM CST 11 of 11