Prison Legal News v. County of Sacramento, Not Reported in F.Supp.2d (2012)

2012 WL 1075852 Only the Westlaw citation is currently available.
United States District Court, E.D. California.
PRISON LEGAL NEWS, a project of the Human Rights Defense Center, Plaintiff, v.
COUNTY OF SACRAMENTO; Scott R. Jones, individually and in his capacity as Sheriff of the
County of Sacramento; Does 1–20, in their individual and official capacities, Defendants.
No. 2:11–CV–00907 JAM–DAD. | March 8, 2012.
Attorneys and Law Firms
Blake Thompson, Sanford Jay Rosen, Ernest Galvan, Kenneth M. Walczak, Rosen, Bien & Galvan LLP, San Francisco, CA, Lance T. Weber, Phv, Brattleboro, VT, for Plaintiff.
John A. Lavra, Amanda Lynn Butts, Longyear, Odea & Lavra, LLP, Sacramento, CA, for Defendants.
Opinion
ORDER GRANTING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
JOHN A. MENDEZ, District Judge.
*1 On March 7, 2012 at 9:30 a.m. this matter came on regularly for a hearing in Courtroom 6, Fourteenth Floor, of this Court, the Honorable John A. Mendez presiding. Having considered the parties’ pleadings, the arguments of counsel, and the entire record in this case, and good cause existing therefor,
THE COURT HEREBY FINDS AND ORDERS:
Plaintiff Prison Legal News (“PLN”) has demonstrated a likelihood of success on the merits of its First Amendment claim. Defendants’ policies and practices including refusing to deliver PLN publications and mailings to prisoners because they contained staples and/or a mailing label are not supported by a legitimate

penological interest and do not leave open alternative means for PLN to exercise its First Amendment rights. Furthermore, allowing PLN to be delivered to prisoners in the Sacramento County’s jails would have very limited impact on guards and other inmates, and there are obvious, easy alternatives to Defendants’ bans on PLN’s staples and mailing labels. In short, Defendants’ policies are an exaggerated response to any security concerns posed by PLN.
Plaintiff has demonstrated that it will suffer irreparable harm in the absence of preliminary injunctive relief and the balance of hardships tips in Plaintiff’s favor. The loss of First Amendment freedoms, for even minimal periods of time, constitutes irreparable injury. Here, Defendants have infringed on Plaintiff’s established rights to send publications to prisoners. The grant of a preliminary injunction will not cause irreparable harm to the Defendants. The balance of equities therefore tips in Plaintiff’s favor.
Finally, the preliminary injunction set forth below is in the public interest. Defendants’ policies operated as a de facto ban on PLN publications. Protecting the constitutional rights of PLN promotes the public interest.
The preliminary injunction set forth below is narrowly drawn, extends no further than necessary to correct the harm to PLN the Court finds requires preliminary relief, and is the least intrusive means necessary to correct that harm.
In these circumstances, waiver of the bond requirement is appropriate because Plaintiff is a small non-profit organization with limited resources.
ORDER
1. It is HEREBY ORDERED that Plaintiff’s Motion for Preliminary Injunction is granted.
2. DEFINITIONS:
(a) As used herein, STAPLES shall mean the type of light-duty small wire fasteners commonly used to attach a few sheets of paper, and used by the Plaintiff to bind the sheets of its monthly publication.
1

Prison Legal News v. County of Sacramento, Not Reported in F.Supp.2d (2012)

(b) As used herein, MAIL LABELS shall mean the type of self-adhesive sticker used by PLN to affix an address to an item of printed matter.
3. IT IS FURTHER ORDERED that Defendants County of Sacramento (the “County”) and Scott R. Jones, and their successors, officers, agents, servants, employees, and attorneys, and all others in active concert or participation with them (hereinafter referred to collectively as “Defendants”), shall not refuse to deliver PLN publications or mailings to prisoners at the county’s jails on the ground that these publications or mailings contain STAPLES, PROVIDED that Defendants may comply by removing the STAPLES.
*2 4. IT IS FURTHER ORDERED that Defendants shall not refuse to deliver materials sent to prisoners from PLN because of MAILING LABELS, PROVIDED that Defendants may comply by removing the MAILING

LABELS.
5. IT IS FURTHER ORDERED that Defendants shall provide adequate written notice and an administrative appeal process to PLN when Defendants refuse to deliver PLN publications or mailings to prisoners at the County’s jails.
6. IT IS FURTHER ORDERED that the bond requirement is waived.
7. No person who has notice of this injunction shall fail to comply with it, nor shall any person subvert the injunction by any sham, indirection or other artifice.
IT IS SO ORDERED.
	  

2

 
 Part Description 1 13 pages 2 Civil Cover Sheet

Multiple Documents

© 2013 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LJ3367O2?documentName=1.xml

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 1 of 13

1 SANFORD JAY ROSEN – 62566 ERNEST GALVAN – 196065
2 BLAKE THOMPSON – 255600 3 ROSEN, BIEN & GALVAN, LLP
315 Montgomery Street, 10th Floor 4 San Francisco, California 94104-1823 5 Telephone: (415) 433-6830
Facsimile: (415) 433-7104 6 Email: srosen@rbg-law.com
7 LANCE WEBER- New Hampshire Bar No. 19942 HUMAN RIGHTS DEFENSE CENTER
8 P.O. Box 2420 9 Brattleboro, Vermont 05303-2420
Telephone: (802) 257-1342 10 Facsimile: (866) 228-1681
Email: lweber@humanrightsdefensecenter.org 11
 Pro Hac Vice Application To Be Filed 12
13 Attorneys for Plaintiff

14

15

IN THE UNITED STATES DISTRICT COURT

16

FOR THE EASTERN DISTRICT OF CALIFORNIA

17

18 PRISON LEGAL NEWS, a project of the 19 HUMAN RIGHTS DEFENSE CENTER,

20

Plaintiff,

21

v.

22 COUNTY OF SACRAMENTO; SCOTT R. 23 JONES, individually and in his capacity as
Sheriff of the County of Sacramento; DOES 124 20, in their individual and official capacities,

Case No.
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES
JURY TRIAL DEMANDED

25

Defendants.

26

27

28

[486527-4]

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 2 of 13

1

INTRODUCTION

2

Plaintiff PRISON LEGAL NEWS (“PLN”), a project of the Human Rights Defense

3 Center, brings this action pursuant to 42 U.S.C. § 1983 (“Section 1983”) against Defendants to

4 enjoin them from censoring its monthly publication and correspondence mailed to prisoners held

5 in jail in Sacramento County. Defendants have adopted and implemented mail policies and

6 practices that unconstitutionally restrict Plaintiff’s correspondence with prisoners. Further,

7 Defendants’ policies and practices do not afford Plaintiff due process notice and an opportunity

8 to challenge the censorship or the equal protection of the laws, as required by the Constitution of

9 the United States and the California Constitution and law. Plaintiff alleges that Defendants’

10 actions violate its rights under the First and Fourteenth Amendments to the United States

11 Constitution, Article I, Section 2 and 7 of the California Constitution and the Unruh Act,

12 California Civil Code § 52.1, and seeks injunctive and declaratory relief pursuant to 42 U.S.C.

13 § 1983. Plaintiff also seeks damages to be proven at trial.

14

JURISDICTION AND VENUE

15

1. This action pursuant to 42 U.S.C. § 1983 arises under the First and Fourteenth

16 Amendments to the United States Constitution, and under California state law claims as alleged

17 herein. This Court has jurisdiction, including diversity jurisdiction, over this action under 28

18 U.S.C. §§ 1331, 1332, 1343, 2201, and 2202. The court has supplemental jurisdiction over

19 Plaintiff’s state claims pursuant to 28 U.S.C. § 1367.

20

2. Venue is proper in the Eastern District of California under 28 U.S.C. § 1391(b)(2)

21 because a substantial part of the events complained of occurred in this District, and because the

22 Defendants reside in this District.

23

PARTIES

24

3. Plaintiff PRISON LEGAL NEWS is a project of the Human Rights Defense

25 Center, a Washington non-profit corporation. PLN publishes and distributes a monthly journal

26 of corrections news and analysis, and offers and sells books about the criminal justice system and

27 legal issues affecting prisoners, to prisoners, lawyers, courts, libraries, and the public throughout

28
[486527-4]

the country. 1
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 3 of 13

1

4. Defendant COUNTY OF SACRAMENTO is a municipal corporation formed

2 under the laws of the State of California.

3

5. Defendant SCOTT R. JONES is the Sheriff of the County of Sacramento. Sheriff

4 Jones is employed by and is an agent of Sacramento County and the Sacramento County

5 Sheriff’s Department. He is responsible for the operations of the Sacramento County Main Jail

6 and the Rio Cosumnes Correctional Center, and the training and supervision of the jail staff who

7 interpret and implement the county’s mail policy for prisoners. He is the policymaker for the jail

8 policy governing mail for prisoners. He is sued in his individual and official capacities.

9

6. Defendants DOES 1 through 20 are all employed by and are agents of Sacramento

10 County and the Sacramento County Sheriff’s Department. They are sued in their individual and

11 official capacities.

12

FACTUAL ALLEGATIONS

13

7. Prison Legal News (“PLN”) publishes and distributes Prison Legal News, a

14 monthly journal of corrections news and analysis regarding prisoners’ rights, court rulings,

15 management of prison and jail facilities and conditions of confinement. PLN also offers and

16 sells books about the criminal justice system and legal issues affecting prisoners.

17

8. PLN engages in protected speech and expressive conduct on matters of public

18 concern.

19

9. PLN has thousands of subscribers in the United States and abroad, including

20 prisoners, attorneys, journalists, public libraries, judges, and other members of the public.

21

10. Since at least April 2010 and continuing to the present day, Defendants have been

22 censoring PLN publications being sent to prisoners held in custody in the Sacramento County

23 Main Jail (“Jail”) by refusing to deliver said items to the prisoners, and in some instances by

24 returning items to PLN’s offices via the Return To Sender (“RTS”) service of the United States

25 Postal Service.

26

11. In addition to censoring delivery of PLN’s monthly publication, Defendants have

27 also censored PLN’s “Informational Brochure Pack,” which included the three items described

28
[486527-4]

2
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 4 of 13

1 below: (1) The Prison Legal News brochure and Subscription Order Form; (2) The 2010 PLN

2 Book List; and (3) The Educational Courses Brochure.

3

(a) Prison Legal News Brochure and Subscription Order Form: This

4 brochure and order form included: a description of the topics covered in PLN’s monthly

5 magazine; subscription rates, special subscription offers, a subscription order form; a description

6 of three books available for purchase or included with a subscription to Prison Legal News—

7 Protecting Your Health & Safety, With Liberty for Some: 500 Years of Imprisonment in America,

8 and Prison Profiteers: Who Makes Money from Mass Incarceration; and other information about

9 PLN’s bookstore.

10

(b) 2010 PLN Book List: The book list includes a description of 42 books,

11 dictionaries, and resource materials available for purchase. The books available for purchase

12 include information about a variety of topics, including: the basic rights of prisoners regarding

13 health and safety; the American criminal justice system; finding the right lawyer; DNA testing;

14 issues related to imprisoned women; self-representation in court; developing a successful re-

15 entry plan upon release from prison; searching for a job; crime and poverty; and the mental

16 health crisis in U.S. prisons and jails.

17

(c) Educational Courses Brochure: The educational courses brochure

18 includes detailed information about and an order form for a book on high school, vocational,

19 paralegal, undergraduate, and graduate courses available through correspondence study, as well

20 as detailed information about and an order form for a book on ineffective assistance of counsel

21 and habeas corpus litigation.

22

12. In some instances, Defendants have censored Plaintiff’s publications by drawing a

23 black line through the addressee information on the mailings and by marking the outside of

24 various items with an RTS ink stamp that contained the words “RETURN TO SENDER” and

25 “CONTRABAND” in large sized letters across the top. This stamp also contained eight short

26 explanations in smaller sized letters underneath those words which read as follows:

27

28
[486527-4]

3
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 5 of 13

1

( ) No Staples

( ) No Stamps/Stationary

2

( ) No Stickers/Labels

( ) No Pornography

3

( ) No Hardcover Books

( ) Not From Publisher

( ) No X-Ref/Location

( ) Other

4

5

In censoring Plaintiff’s publications, Defendants generally placed marks next to either or

6 both of the “No Staples” or “No Stickers/Labels” boxes on the RTS stamp.

7

13. In other instances where items were sent back to Plaintiff, Defendants did not use

8 the RTS stamp but instead drew lines through the addressee information and wrote “RTS” and

9 “No Staples.”

10

14. As described below, Defendants have censored materials from PLN on at least 180

11 occasions from April 2010 to the present.

12

15. Specifically, in April 2010, Defendants censored PLN’s monthly publication,

13 Prison Legal News, and frustrated PLN’s attempt to deliver the April 2010 issue to a prisoner at

14 the Jail.

15

16. In May 2010, Defendants censored PLN’s monthly publication, Prison Legal

16 News, and frustrated PLN’s attempt to deliver a sample issue via First Class Mail to three

17 prisoners at the Jail.

18

17. In May 2010, Defendants censored PLN’s monthly publication, Prison Legal

19 News, and frustrated PLN’s attempt to deliver the May 2010 issue to four prisoners at the Jail.

20

18. In June, July, August, September and October 2010 Defendants censored PLN’s

21 monthly publication, Prison Legal News, and frustrated PLN’s attempt to deliver the

22 corresponding monthly issues to five prisoners at the Jail.

23

19. In October 2010, Defendants censored PLN’s monthly publication, Prison Legal

24 News, and frustrated PLN’s attempt to deliver a sample issue via First Class Mail to a prisoner at

25 the Jail.

26

20. In November 2010, Defendants censored PLN’s monthly publication, Prison Legal

27 News, and frustrated PLN’s attempt to deliver the November 2010 issue to seven prisoners at the

28 Jail. 4

[486527-4]

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 6 of 13

1

21. In December 2010, Defendants censored PLN’s monthly publication, Prison Legal

2 News, and frustrated PLN’s attempt to deliver a sample issue via First Class Mail to seventeen

3 prisoners at the Jail.

4

22. In December 2010, Defendants censored PLN’s monthly publication, Prison Legal

5 News, and frustrated PLN’s attempt to deliver the December 2010 issue to seven prisoners at the

6 Jail.

7

23. In December 2010, Defendants censored PLN’s Informational Brochure Pack and

8 frustrated PLN’s attempt to deliver it by First Class Mail to six prisoners at the Jail.

9

24. In December 2010, Defendants censored PLN’s Informational Brochure Pack that

10 also contained a fundraising letter requesting donations and frustrated PLN’s attempt to deliver

11 them by First Class Mail to two prisoners at the Jail.

12

25. In January 2011, Defendants censored PLN’s monthly publication Prison Legal

13 News, and frustrated PLN’s attempt to deliver a sample issue via First Class Mail to fourteen

14 prisoners at the Jail.

15

26. In January 2011, Defendants censored PLN’s monthly publication, Prison Legal

16 News, and frustrated PLN’s attempt to deliver the January 2011 issue to twenty-four prisoners at

17 the Jail.

18

27. In February 2011, Defendants censored PLN’s monthly publication, Prison Legal

19 News, and frustrated PLN’s attempt to deliver a sample issue via First Class Mail to six prisoners

20 at the Jail

21

28. In February 2011, Defendants censored PLN’s monthly publication, Prison Legal

22 News, and frustrated PLN’s attempt to deliver the February 2011 issue to thirty-eight prisoners at

23 the Jail.

24

29. In February 2011, Defendants censored PLN’s Informational Brochure Pack and

25 frustrated PLN’s attempt to deliver it by First Class Mail to twelve prisoners at the Jail.

26

30. In March 2011, Defendants censored PLN’s monthly publication, Prison Legal

27 News, and frustrated PLN’s attempt to deliver a sample issue via First Class Mail to one prisoner

28
[486527-4]

at the Jail. 5
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 7 of 13

1

31. In March 2011, Defendants censored PLN’s monthly publication, Prison Legal

2 News, and frustrated PLN’s attempt to deliver the March 2011 issue to thirty-three prisoners at

3 the Jail.

4

32. In March 2011, Defendants censored PLN’s Informational Brochure Pack and

5 frustrated PLN’s attempt to deliver it by First Class Mail to one prisoner at the Jail.

6

33. Defendants did not provide Plaintiff with any opportunity to appeal the censorship

7 decisions in any of the aforementioned instances.

8

34. Defendants’ conduct prohibiting Prison Legal News from mailing its publications,

9 informational brochures, and books to prisoners confined at the Jail violates the First

10 Amendment by censoring these expressive activities and has a chilling effect on future speech

11 and expression directed at prisoners confined there.

12

35. Defendants’ policy governing incoming mail does not provide due process notice

13 or an opportunity for the sender to appeal the Jail’s censorship decisions, and Defendants’

14 practice likewise does not provide due process notice or an opportunity for the intended recipient

15 to appeal the Jail’s censorship decisions.

16

36. Some of the books that Plaintiff distributes are hardcover books. The Jail’s policy

17 prohibiting the delivery of hardcover books, reflected in the RTS stamp described above, also

18 violates Plaintiff’s First Amendment rights.

19

37. Despite censoring Plaintiff’s publications because of staples, stickers, and/or labels,

20 Plaintiff is informed and believes that Defendants have allowed other publications containing

21 staples, stickers and/or labels to be delivered to prisoners. By treating Plaintiff different than

22 other similarly situated publishers and distributors, Defendants violate Plaintiff’s right to equal

23 protection under the law.

24

38. Prison Legal News publishes and distributes content concerning the rights of

25 prisoners and their conditions of confinement. As a result, Plaintiff is informed and believes that

26 Jail staff have retaliated against PLN by refusing to deliver PLN materials to prisoners held at the

27 Jail.

28
[486527-4]

6
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 8 of 13

1

39. Defendants’ actions have violated, continue to violate, and are reasonably expected

2 to violate in the future Plaintiff’s constitutional rights, and have caused Plaintiff financial harm in

3 the form of lost subscriptions, lost opportunities for purchases and sales of its publications, and

4 lost opportunities for book sales.

5

40. Defendants’ actions and inactions are motivated by evil motive and intent and are

6 committed with reckless and callous indifference to Plaintiff’s rights.

7

41. Defendants JONES, DOES 1-20 and other agents of the County of Sacramento are

8 responsible for or personally participated in creating and implementing these unconstitutional

9 policies, practices, and customs and for training and supervising the mail staff whose conduct has

10 injured and continues to injure the Plaintiff, or ratified or adopted them.

11

42. Defendants’ unconstitutional policy, practices, and customs are ongoing and

12 continue to violate Plaintiff’s rights, and as such Plaintiff has no adequate remedy at law.

13

43. Plaintiff is entitled to injunctive relief prohibiting Defendants from refusing to

14 deliver or refusing to allow delivery of publications, books, informational brochures and

15 catalogs, and other correspondence from Prison Legal News, and prohibiting Defendants from

16 censoring mail without due process of law.

17

44. Plaintiff submitted a state tort claim to Defendant COUNTY OF SACRAMENTO

18 on or about April 5, 2011. Plaintiff has not yet received a response to its tort claims filing.

19

CLAIMS FOR RELIEF

20

FIRST CLAIM FOR RELIEF

(For Violations of the First Amendment Under Color Of State

21

Law – Free Speech; Section 1983)

22

45. Plaintiff realleges and incorporates by reference the preceding paragraphs.

23

46. The acts described above constitute violations of Plaintiff’s rights under the First

24 Amendment to the United States Constitution through 42 U.S.C. § 1983, and have caused

25 damages to Plaintiff, and will continue to cause damage.

26

47. Plaintiff seeks declaratory and injunctive relief and nominal and compensatory

27 damages against all Defendants. Plaintiff also seeks punitive damages solely against the

28
[486527-4]

individual Defendants. 7
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 9 of 13

1

SECOND CLAIM FOR RELIEF

(For Violations of the First Amendment Under Color Of State

2

Law - Retaliation for Exercising Speech Rights; Section 1983)

3

48. Plaintiff realleges and incorporates by reference the preceding paragraphs.

4

49. The acts described above constitute violations of Plaintiff’s right to be free from

5 retaliation for exercising its constitutionally protected speech rights.

6

50. By retaliating against Plaintiff, Defendants have violated Plaintiff’s rights under

7 the First Amendment to the United States Constitution through 42 U.S.C. § 1983, and have

8 caused damages to Plaintiff, and will continue to cause damage.

9

51. Plaintiff seeks declaratory and injunctive relief and nominal and compensatory

10 damages against all Defendants. Plaintiff also seeks punitive damages solely against the

11 individual Defendants.

12

THIRD CLAIM FOR RELIEF

13

(For Violations of the Due Process Clause of the Fourteenth

Amendment Under Color Of State Law; Section 1983)

14

52. Plaintiff realleges and incorporates by reference the preceding paragraphs.

15

53. By failing to give Plaintiff sufficient notice of the censorship of its publications,

16

and an opportunity to be heard with respect to that censorship, Defendants have deprived and

17

continue to deprive Plaintiff of liberty and property without due process of law, in violation of

18

the Fourteenth Amendment to the United States Constitution through 42 U.S.C. § 1983.

19

54. The acts described above have caused damage to Plaintiff, and will continue to

20

cause damage.

21

55. Plaintiff seeks declaratory and injunctive relief and nominal and compensatory

22

damages against all Defendants. Plaintiff also seeks punitive damages solely against the

23

individual Defendants.

24

FOURTH CLAIM FOR RELIEF

25

(For Violations of the Equal Protection Clause of the Fourteenth

Amendment Under Color Of State Law; Section 1983)

26

56. Plaintiff realleges and incorporates by reference the preceding paragraphs.

27

28
[486527-4]

8
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 10 of 13

1

57. By prohibiting the delivery of Plaintiff’s publications but allowing the delivery of

2 the publications of others who are similarly situated, Defendants have deprived and continue to

3 deprive Plaintiff of equal protection under the laws, in violation of the Fourteenth Amendment to

4 the United States Constitution through 42 U.S.C. § 1983.

5

58. Plaintiff seeks declaratory and injunctive relief and nominal and compensatory

6 damages against all Defendants. Plaintiff also seeks punitive damages solely against the

7 individual Defendants.

8

FIFTH CLAIM FOR RELIEF

9

(For Violation of California Civil Code Section 52.1)

10

59. Plaintiff realleges and incorporates by reference the preceding paragraphs.

11

60. The acts described above constitute violations of Plaintiff’s rights under California

12 Civil Code Section 52.1, and have caused actual damages to Plaintiff within the meaning of

13 California Civil Code Section 52.

14

61. As a proximate result of the conduct of Defendants, Plaintiff is also entitled to an

15 award of exemplary damages, civil penalties, and attorneys’ fees, as provided by California Civil

16 Code Section 52.

17

SIXTH CLAIM FOR RELIEF

18

(For Violation of Article I, Section 2 of California Constitution)

19

62. Plaintiff realleges and incorporates by reference the preceding paragraphs.

20

63. The acts described above constitute violations of Plaintiff’s speech rights under

21 Article I, Section 2 of the California Constitution and have caused damage to Plaintiff, and will

22 continue to cause damage.

23

64. As a result of the conduct of Defendants, Plaintiff seeks declaratory and injunctive

24 relief against all Defendants.

25

SEVENTH CLAIM FOR RELIEF

(For Violation of Article I, Section 7 of California Constitution –

26

Due Process)

27

65. Plaintiff realleges and incorporates by reference the preceding paragraphs.

28
[486527-4]

9
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 11 of 13

1

66. By failing to give Plaintiff sufficient notice of the censorship of its publications,

2 and an opportunity to be heard with respect to that censorship, Defendants have deprived and

3 continue to deprive Plaintiff of liberty and property without due process of law, in violation of

4 the Article I, Section 7 of the California Constitution, and have caused damage to Plaintiff, and

5 will continue to cause damage.

6

67. As a result of the conduct of Defendants, Plaintiff seeks declaratory and injunctive

7 relief against all Defendants.

8

EIGHTH CLAIM FOR RELIEF

(For Violation of Article I, Section 7 of California Constitution –

9

Equal Protection)

10

68. Plaintiff realleges and incorporates by reference the preceding paragraphs.

11

69. By prohibiting the delivery of Plaintiff’s publications but allowing the delivery of

12 the publications of others who are similarly situated, Defendants have deprived and continue to

13 deprive Plaintiff of equal protection under the laws under Article I, Section 7 of the California

14 Constitution and have caused damage to Plaintiff, and will continue to cause damage.

15

70. As a result of the conduct of Defendants, Plaintiff seeks declaratory and injunctive

16 relief against all Defendants.

17

PRAYER FOR RELIEF

18

The conduct previously alleged, unless and until enjoined by order of this Court, will

19 cause great and irreparable injury to Plaintiff. Further, a judicial declaration is necessary and

20 appropriate at this time so that all parties may know their respective rights and act accordingly.

21

WHEREFORE, Plaintiff requests relief as follows:

22

1. A declaration that Defendants’ policies, practices, and customs violate the First and

23 Fourteenth Amendments to the United States Constitution, Article 1, Sections 2 and 7 of the

24 California Constitution, and California Civil Code Section 52.1.

25

2. An order enjoining all Defendants and their employees, agents, and any and all

26 persons acting in concert with them from further violation of Plaintiff’s civil rights under the

27 First and Fourteenth Amendments to the United States Constitution, Article 1, Sections 2 and 7

28
[486527-4]

of the California Constitution, and California Civil Code Section 52.1. 10
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 12 of 13

1

3. Nominal damages for each violation by the Defendants against the Plaintiff’s

2 rights.

3

4. Compensatory damages in an amount to be proven at trial.

4

5. Punitive damages against the individual defendants in an amount to be proven at

5 trial.

6

6. Costs, including reasonable attorney’s fees, under 42 U.S.C. § 1988, and under

7 other applicable law, including but not limited to California Civil Code § 52 and California Code

8 of Civil Procedure § 1021.5.

9

7. Prejudgment and post judgment interest.

10

8. Such other relief as the Court deems just and equitable.

11

12 Dated: April 5, 2011

Respectfully submitted,

13

ROSEN, BIEN & GALVAN, LLP

14

15

By: /s/ Ernest Galvan

ERNEST GALVAN

16

Attorneys for Plaintiff

17

18

19

20

21

22

23

24

25

26

27

28
[486527-4]

11
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

Case 2:11-cv-00907-JAM-DAD Document 1 Filed 04/05/11 Page 13 of 13

1

2

DEMAND FOR JURY TRIAL

3

Plaintiff hereby demands a jury trial.

4

5 Dated: April 5, 2011

Respectfully submitted,

6

ROSEN, BIEN & GALVAN, LLP

7

8

By: /s/ Ernest Galvan

ERNEST GALVAN

9

Attorneys for Plaintiff

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28
[486527-4]

12
COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT, 42 U.S.C. §1983 AND DAMAGES - CASE NO.

2JS 44 (Rev. 12/07)

CIVIL COVER SHEET

Case 2:11-cv-00907-JAM-DAD Document 1-1 Filed 04/05/11 Page 1 of 2

The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as provided

by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the purpose of initiating

the civil docket sheet. (SEE INSTRUCTIONS ON THE REVERSE OF THE FORM.)

I. (a) PLAINTIFFS PRISON LEGAL NEWS, a project of the
HUMAN RIGHTS DEFENSE CENTER
(b) County of Residence of First Listed Plaintiff Windham County,VT
(EXCEPT IN U.S. PLAINTIFF CASES)

DEFENDANTS
COUNTY OF SACRAMENTO; SCOTT R. JONES, individually and in his capacity as Sheriff of the County of Sacramento; DOES 1-20, in their individual and official capacities County of Residence of First Listed Defendant
(IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF THE LAND INVOLVED.

(c) Attorney’s (Firm Name, Address, and Telephone Number) SEE ATTACHMENT

Attorneys (If Known)

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

u 1 U.S. Government Plaintiff

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

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

(For Diversity Cases Only)

and One Box for Defendant)

PTF DEF

PTF DEF

Citizen of This State

u 1 u 1 Incorporated or Principal Place

u 4 u4

of Business In This State

u 2 U.S. Government Defendant

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

Citizen of Another State

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

u 5 u5

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

CONTRACT

TORTS

Citizen or Subject of a Foreign Country

u 3 u 3 Foreign Nation

FORFEITURE/PENALTY

BANKRUPTCY

u 6 u6 OTHER STATUTES

u 110 Insurance

PERSONAL INJURY

u 120 Marine

u 310 Airplane

u 130 Miller Act

u 315 Airplane Product

u 140 Negotiable Instrument

Liability

u 150 Recovery of Overpayment u 320 Assault, Libel &

& Enforcement of Judgment

Slander

u 151 Medicare Act

u 330 Federal Employers’

u 152 Recovery of Defaulted

Liability

Student Loans

u 340 Marine

(Excl. Veterans)

u 345 Marine Product

u 153 Recovery of Overpayment

Liability

of Veteran’s Benefits

u 350 Motor Vehicle

u 160 Stockholders’ Suits

u 355 Motor Vehicle

u 190 Other Contract

Product Liability

u 195 Contract Product Liability u 360 Other Personal

u 196 Franchise

Injury

REAL PROPERTY

CIVIL RIGHTS

u 210 Land Condemnation

u 441 Voting

u 220 Foreclosure

u 442 Employment

u 230 Rent Lease & Ejectment u 443 Housing/

u 240 Torts to Land

Accommodations

u 245 Tort Product Liability u 444 Welfare

u 290 All Other Real Property u 445 Amer. w/Disabilities -

Employment

u 446 Amer. w/Disabilities -

Other uX 440 Other Civil Rights

PERSONAL INJURY u 362 Personal Injury -
Med. Malpractice u 365 Personal Injury -
Product Liability u 368 Asbestos Personal
Injury Product Liability PERSONAL PROPERTY u 370 Other Fraud u 371 Truth in Lending u 380 Other Personal Property Damage u 385 Property Damage Product Liability
PRISONER PETITIONS u 510 Motions to Vacate
Sentence
Habeas Corpus: u 530 General u 535 Death Penalty u 540 Mandamus & Other u 550 Civil Rights u 555 Prison Condition

u 610 Agriculture

u 422 Appeal 28 USC 158

u 620 Other Food & Drug

u 423 Withdrawal

u 625 Drug Related Seizure

28 USC 157

of Property 21 USC 881

u 630 Liquor Laws

PROPERTY RIGHTS

u 640 R.R. & Truck

u 820 Copyrights

u 650 Airline Regs.

u 830 Patent

u 660 Occupational

u 840 Trademark

Safety/Health

u 690 Other

LABOR

SOCIAL SECURITY

u 710 Fair Labor Standards

u 861 HIA (1395ff)

Act

u 862 Black Lung (923)

u 720 Labor/Mgmt. Relations u 863 DIWC/DIWW (405(g))

u 730 Labor/Mgmt.Reporting u 864 SSID Title XVI

& Disclosure Act

u 865 RSI (405(g))

u 740 Railway Labor Act

FEDERAL TAX SUITS

u 790 Other Labor Litigation u 870 Taxes (U.S. Plaintiff

u 791 Empl. Ret. Inc.

or Defendant)

Security Act

u 871 IRS—Third Party

26 USC 7609

IMMIGRATION

u 462 Naturalization Application

u 463 Habeas Corpus -

Alien Detainee

u 465 Other Immigration

Actions

u 400 State Reapportionment u 410 Antitrust u 430 Banks and Banking u 450 Commerce u 460 Deportation u 470 Racketeer Influenced and
Corrupt Organizations u 480 Consumer Credit u 490 Cable/Sat TV u 810 Selective Service u 850 Securities/Commodities/
Exchange u 875 Customer Challenge
12 USC 3410 u 890 Other Statutory Actions u 891 Agricultural Acts u 892 Economic Stabilization Act u 893 Environmental Matters u 894 Energy Allocation Act u 895 Freedom of Information
Act u 900Appeal of Fee Determination
Under Equal Access
to Justice u 950 Constitutionality of
State Statutes

V. ORIGIN uX 1 Original
Proceeding

(Place an “X” in One Box Only)

u 2 Removed from
State Court

u 3 Remanded from
Appellate Court

u 4 Reinstated or
Reopened

u

5

Transferred from another district

(specify)

u 6 Multidistrict
Litigation

Appeal to District

u7

Judge from Magistrate

Judgment

Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
42 U.S.C. Section 1983 VI. CAUSE OF ACTION Brief description of cause:
Violation of Plaintiff's free press, due process, and equal protection rights

VII. REQUESTED IN COMPLAINT:

u CHECK IF THIS IS A CLASS ACTION
UNDER F.R.C.P. 23

DEMAND $

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

VIII. RELATED CASE(S)

IF ANY

(See instructions): JUDGE

DOCKET NUMBER

DATE April 5, 2011

SIGNATURE OF ATTORNEY OF RECORD
/s/ Ernest Galvan

FOR OFFICE USE ONLY

RECEIPT #

AMOUNT

APPLYING IFP

JUDGE

MAG. JUDGE

Case 2:11-cv-00907-JAM-DAD Document 1-1 Filed 04/05/11 Page 2 of 2
ATTACHMENT TO CIVIL CASE COVER SHEET (FORM JS 44)
Section I.(c) Plaintiff’s Attorneys: SANFORD JAY ROSEN – 62566 ERNEST GALVAN – 196065 BLAKE THOMPSON – 255600 ROSEN, BIEN & GALVAN, LLP 315 Montgomery Street, 10th Floor San Francisco, California 94104-1823 Telephone: (415) 433-6830 Facsimile: (415) 433-7104 Email: srosen@rbg-law.com LANCE WEBER- New Hampshire Bar No. 19942 HUMAN RIGHTS DEFENSE CENTER P.O. Box 2420 Brattleboro, Vermont 05303-2420 Telephone: (802) 257-1342 Facsimile: (866) 228-1681 Email: lweber@humanrightsdefensecenter.org *Pro Hac Vice Application to be filed
[491581-1]

Prison Legal News v. Jones et al, Docket No. 2:11-cv-00907 (E.D. Cal. Apr 05, 2011), Court Docket
General Information

Case Name Docket Number Court Nature of Suit Related Opinion(s)

Prison Legal News v. Jones et al 2:11-cv-00907 United States District Court for the Eastern District of California Civil Rights: Other 2012 BL 274632

© 2013 Bloomberg Finance L.P. All rights reserved. For terms of service see bloomberglaw.com // PAGE 1 Document Link: http://www.bloomberglaw.com/ms/document/X1Q6LJ3367O2?documentName=1.xml

 
 1 LONGYEAR, O’DEA & LAVRA, LLP John A. Lavra, CSB No.: 114533
2 Jeri L. Pappone, CSB No.: 210104 Amanda L. Butts, CSB No.: 253651
3 3620 American River Drive, Suite 230 Sacramento, CA 95864
4 Phone: 916-974-8500 Facsimile: 916-974-8510
5 Attorneys for County of Sacramento
6 and Scott R. Jones

7 SANFORD JAY ROSEN – 62566 ERNEST GALVAN – 196065
8 BLAKE THOMPSON – 255600 ROSEN, BIEN & GALVAN, LLP
9 315 Montgomery Street, Tenth Floor San Francisco, California 94104-1823
10 Telephone: (415) 433-6830 Facsimile: (415) 433-7104
11 Email: egalvan@rbg-law.com

12 LANCE WEBER HUMAN RIGHTS DEFENSE CENTER
13 P.O. Box 2420 Brattleboro, Vermont 05303-2420
14 Telephone: (802) 257-1342 Facsimile: (866) 735-7136
15 Email: lweber@humanrightsdefensecenter.org

16 Attorneys for Plaintiff

17

18

UNITED STATES DISTRICT COURT

19

EASTERN DISTRICT OF CALIFORNIA SACRAMENTO DIVISION

20

21 PRISON LEGAL NEWS, a project of the

Case No.: 2:11-cv-00907-JAM -DAD

HUMAN RIGHTS DEFENSE CENTER )

22

)

Plaintiff,

) STIPULATED PROTECTIVE ORDER

23

)

vs.

) L.R. 141.1

24

)

COUNTY OF SACRAMENTO; SCOTT R.)

25 JONES, individually and in his capacity as)

Sheriff of the County of Sacramento; DOES 1-)

26 20, in their individual and official capacities, )

)

27

Defendant

)

)

28

Stipulated Protective Order Page - 1

1

Defendants COUNTY OF SACRAMENTO and SCOTT JONES (collectively hereafter

2 “Defendants”) in good faith believe that certain documents relevant to the above-captioned case

3 contain information that is (a) confidential, sensitive, or potentially invasive of an individual’s

4 privacy interests; (b) not generally known; and (c) not normally revealed to the public or third

5 parties, or if disclosed to third parties, would require such third parties to maintain the

6 information in confidence. These confidential documents include, but are not limited to, the

7 following:

8

1. Video of Prisoners/Inmates manufacturing weapons in jail

9

2. Photographs of weapons made by inmates at the Main Jail and/or Rio Cosumnes

Correctional Center (“RCCC”)

10

11

The documents to be kept confidential were made for purposes of training Sacramento

12 Sheriff’s deputies that work in the Main Jail and RCCC. These documents are for internal use by

13 the department only. Publication of these documents would threaten the safety and security of

14 Sacramento County’s as well as other, penal institutions. Further, although the video makes 15 every effort to conceal the faces of the featured individuals, there is no way to guarantee that 16 these individuals could not be identified based on other features or markings. Publication of the 17 video footage would threaten the safety and security of the individuals cooperating with law 18 enforcement and demonstrating how various weapons can be made in a penal institution. 19 According to Plaintiff’s website, the majority of its subscribers are state and federal prisoners. 20 Plaintiff’s publication aims to provide information to prisoners and others concerned about 21 prisoner rights regarding various issues including, but not limited to, prison conditions, 22 disciplinary hearings, excessive force, mail censorship, jail litigation, and retaliation. Due to the 23 sensitive nature of the documents to be disclosed, Defendants hereby request disclosure be 24 governed by a court-ordered protective order. Defendants believe a court order, not a private 25 agreement, properly facilitates the limited disclosure of such documents while protecting them 26 from general disclosure. 27 /// 28 ///

Stipulated Protective Order Page - 2

1

Subject to approval of this Court, the parties by and through their counsels of record

2 hereby stipulate that the documents described herein contain protected information and may only

3 be disclosed and/or produced subject to the following Protective Order:

4 1. The disclosed documents shall be used solely in connection with the civil case

5 Prison Legal News v. Jone,s et al., Case No. 2:11-cv-00907-JAM-DAD (U.S. District Court,

6 Eastern District of California), and in preparation and trial of the case or any related proceeding.

7 Defendants do not waive any objection to the admissibility of the documents or portions thereof

8 in future proceedings in this case, including trial.

9 2. All Protected information produced and designated as confidential hereunder shall

10 have stamped or affixed on each page that contains Protected information “CONFIDENTIAL”

11 and “DO NOT DUPLICATE,” providing that such marking does not obscure or obliterate the

12 content of any record. Stamping or affixing “CONFIDENTIAL” on the cover of any multi-page

13 document shall designate all pages of the document as confidential, unless otherwise indicated

14 by the producing party. If any confidential materials cannot be labeled with this marking, those

15 materials shall be placed in a sealed envelope or other container that is in turn stamped or affixed

16 “CONFIDENTIAL” and “DO NOT DUPLICATE.”

17 3. Documents or materials designated under this Protective Order as

18 “CONFIDENTIAL” may only be disclosed to the following persons:

19

a. Counsel for the receiving party, including paralegal, clerical, and

20

secretarial staff, and other associated personnel employed by such counsel;

21

b. Plaintiff, provided that such review by Plaintiff occurs in the presence of

its counsel of record and that Plaintiff is not provided with or allowed to maintain a copy,

22

electronic or otherwise, of any documents designated by Defendants as subject to this

protective order;

23

c. Experts and consultants who are requested by counsel of the receiving

24

party to furnish technical, legal, expert, or other specialized services in connection with

this litigation; 25

d. An officer before whom a deposition is taken, including stenographic

26

reporters and any necessary secretarial, clerical, or other lay personnel of such officer;

and 27

e. Any other person to whom the parties agree in writing or as allowed by the

28

Court.

Stipulated Protective Order Page - 3

1

4. Prior to disclosure of any protected information to any person identified in

2 paragraph 3 and its subparts, each such recipient shall be provided with a copy of this Stipulated

3 Protective Order, and shall review it, and sign the form attached hereto as “Attachment A.”

4

5. Should any protected material be included in any papers to be filed, the parties

5 agree that they will seek permission from the Court to file the Confidential information under

6 seal according to Local Rule 141. If permission is granted, the Confidential information will be

7 filed and served in accordance with Local Rule 141.

8

6. If any protected document or information is used or disclosed during the course of

9 a deposition, that portion of the deposition record reflecting such material shall be stamped with

10 the appropriate designation and access shall be limited pursuant to the terms of this Stipulated

11 Protective Order. The court reporter for the deposition shall mark the deposition transcript cover

12 page and all appropriate pages or exhibits and each copy thereof in accordance with paragraph 2

13 of this Stipulated Protective Order. Only individuals who are authorized by this Protective Order

14 to see or receive such material may be present during the discussion or disclosure of such

15 material.

16

7. Protected information produced pursuant to this Protective Order may not be

17 delivered, exhibited, or otherwise disclosed to any reporter, writer, or employee of any trade

18 publication, newspaper, magazine, or other media organization, including but not limited to radio

19 and television media. This provision does not preclude the disclosure of protected information to

20 employees of the parties in this matter subject to the provisions of Paragraph 3(b).

21

8. All persons obtaining access to documents or materials designated under this

22 Protective Order as Confidential shall use such material only for purposes of this action,

23 including any appeal of the Court’s ruling, and shall not use such documents or materials for any

24 other purpose, including the furtherance of that person’s business or personal interests.

25 /// 26 /// 27 /// 28 ///

Stipulated Protective Order Page - 4

1

9. If protected information produced in accordance with this Order is disclosed to

2 any person other than in the manner authorized by this Order, the party responsible for the

3 disclosure shall immediately bring all pertinent facts relating to such disclosure to the attention

4 of all counsel of record and, without prejudice to other rights and remedies available to the

5 producing party, make every effort to obtain the return of the disclosed protected information

6 and prevent further disclosure of it by the person who was the recipient of such information.

7

10. No information shall lose its confidential status because it was disclosed

8 inadvertently or unintentionally to a person not authorized to receive it under this Protective

9 Order or improperly marked in accordance with paragraph 2.

10

11. This Order shall survive to the final termination of this action including any and

11 all appeals therefrom. After conclusion of this litigation, all documents and materials, in

12 whatever form stored or reproduced, containing protected information will remain confidential.

13 Unless otherwise agreed to or ordered by the Court, within ninety (90) days following the

14 running of any applicable time to appeal any order or ruling entered in this action, attorneys for

15 the receiving party shall either (i) return to the producing party all copies of all protected

16 materials disclosed by them pursuant to Paragraph 3, or (ii) certify to the producing party that all

17 such materials have been destroyed.

18

12. This Order may be changed only by the written agreement of the parties or further

19 order of the Court, and is without prejudice to the rights of a party to seek relief from or variation

20 of any of its provisions.

21

22 IT IS SO STIPULATED.

23

24 Dated: August 18, 2011

LONGYEAR, O’DEA & LAVRA, LLP

25

26

/s/ Amanda L. Butts

JOHN LAVRA

27

AMANDA L. BUTTS

28

Stipulated Protective Order Page - 5

1 Dated: August 18, 2011

2

3

4

5 6 Dated: August 19, 2011

7

8

9

10 IT IS SO ORDERED. 11 Date: 8/23/2011 12

13

14 15

DEAC_Signature-END:

16 17 Ddad1\orders.civil\prisonlegalnews0907.stip.prot.ord

18

19

20 33hep3 21

22

23

24

25

26

27

28

ROSEN, BIEN & GALVAN, LLP
/s/ Blake Thompson ERNEST GALVAN BLAKE THOMPSON
HUMAN RIGHTS DEFENSE CENTER
/s/ Lance Weber LANCE WEBER

Stipulated Protective Order Page - 6

 
 1 SANFORD JAY ROSEN – 62566 ERNEST GALVAN – 196065
2 KENNETH M. WALCZAK – 247389 ROSEN BIEN GALVAN &
3 GRUNFELD LLP 315 Montgomery Street, Tenth Floor
4 San Francisco, California 94104-1823 Telephone: (415) 433-6830
5 Facsimile: (415) 433-7104 Email: kwalczak@rbgg.com
6 LANCE WEBER (admitted pro hac vice)
7 HUMAN RIGHTS DEFENSE CENTER P.O. Box 2420
8 Brattleboro, Vermont 05303-2420 Telephone: (802) 257-1342
9 Facsimile: (866) 228-1681 Email: lweber@humanrightsdefensecenter.org
10 Attorneys for Plaintiff Prison Legal News
11 LONGYEAR, O’DEA & LAVRA, LLP
12 John A. Lavra, CSB No.: 114533 3620 American River Drive, Suite 230
13 Sacramento, CA 95864 Phone: 916-974-8500
14 Facsimile: 916-974-8510

15 Attorney for Defendants County of Sacramento, Scott R. Jones, et al.
16

17

UNITED STATES DISTRICT COURT

18

EASTERN DISTRICT OF CALIFORNIA

19

SACRAMENTO DIVISION

20 PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
21 Plaintiff,
22 v.
23 COUNTY OF SACRAMENTO;
24 SCOTT R. JONES, individually and in his capacity as Sheriff of the County of
25 Sacramento; DOES 1-20, in their individual and official capacities,
26 Defendants.
27

Case No. 2:11-cv-00907-JAM-DAD CONSENT DECREE Judge: Hon. John A. Mendez

28

[635851-1]
CONSENT DECREE – CASE NO. 2:11-CV-00907-JAM-DAD
PDF created with pdfFactory trial version www.pdffactory.com

1

The parties to this action, represented by counsel, stipulate to and request entry of a

2 consent decree by the court as follows:

3

1. On April 5, 2011, Plaintiff Prison Legal News, a Project of the Human

4 Rights Defense Center (“PLN” or “Plaintiff”) filed suit in the above entitled matter seeking

5 injunctive and declaratory relief, damages, and attorney’s fees and costs. Plaintiff’s

6 complaint alleges an unlawful and unconstitutional custom, practice, or policy regarding

7 the delivery of incoming publications and correspondence to prisoners at the Sacramento

8 County jails. The complaint alleges violations of the First and Fourteenth Amendments to

9 the United States Constitution, pursuant to 42 U.S.C. § 1983, and seeks injunctive and

10 declaratory relief, money damages, attorney’s fees and legal costs.

11

2. On June 2, 2011, Defendants Sacramento County, et al., (collectively

12 “Defendants”) filed an answer denying the allegations of the complaint and raising various

13 affirmative defenses.

14

3. The parties agree that Defendants have disputed, and continue to dispute and

15 deny, liability. However, in order to avoid the expense, delay, uncertainty, and burden of

16 litigation the parties agree to the entry of this consent decree.

17

4. Plaintiff publishes and distributes a monthly journal of corrections news and

18 analysis, and offers and sells books about the criminal justice system and legal issues

19 affecting prisoners, to prisoners, lawyers, courts, libraries, and the public throughout the

20 Country. PLN engages in protected speech and expressive conduct on matters of public

21 concern. See Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005).

22

5. Defendants operate the Sacramento County Main Jail (“SCMJ”) and Rio

23 Cosumnes Correctional Center (“RCCC”), two facilities which house prisoners and

24 detainees.

25

6. Beginning in or around April 2009, Defendants refused to deliver

26 publications and correspondence sent by PLN to its subscribers, potential subscribers, and

27 readers at SCMJ and RCCC. The stated bases for these exclusions were that PLN’s

28 magazine is held together by staples, and that PLN uses standard mailing labels to address

[635851-1]

1

CONSENT DECREE – CASE NO. 2:11-CV-00907-JAM-DAD

PDF created with pdfFactory trial version www.pdffactory.com

1 its correspondence.

2

7. The Court on March 7, 2012 granted PLN’s motion for preliminary

3 injunction. The March 7, 2012 findings were:

4

Defendants’ policies and practices including refusing to deliver

PLN publications and mailings to prisoners because they

5

contained staples and/or a mailing label are not supported by a

6

legitimate penological interest and do not leave open

alternative means for PLN to exercise its First Amendment

7

rights. Furthermore, allowing PLN to be delivered to prisoners

8

in the Sacramento County’s jails would have very limited impact on guards and other inmates, and there are obvious,

9

easy alternatives to Defendants’ bans on PLN’s staples and

mailing labels. In short, Defendants’ policies are an

10

exaggerated response to any security concerns posed by PLN.

11 Plaintiff has demonstrated that it will suffer irreparable harm in

12

the absence of preliminary injunctive relief and the balance of

13

hardships tips in Plaintiff’s favor. The loss of First Amendment freedoms, for even minimal periods of time, constitutes

14

irreparable injury. Here, Defendants have infringed on

Plaintiff’s established rights to send publications to prisoners.

15

The grant of a preliminary injunction will not cause irreparable

16

harm to the Defendants. The balance of equities therefore tips

in Plaintiff’s favor.

17

18

Finally, the preliminary injunction set forth below is in the public interest. Defendants’ policies operated as a de facto ban

19

on PLN publications. Protecting the constitutional rights of

PLN promotes the public interest. 20

21

8. The parties agree that this consent decree resolves all claims for injunctive

22 relief alleged in Plaintiff’s complaint. By this consent decree, together with payment of

23 the sum of three hundred thousand dollars ($300,000.00), the parties agree that all claims

24 alleged by Plaintiff are fully and finally resolved. The parties agree that Plaintiff will

25 execute a release of all claims, and that Defendant will remit payment to Plaintiff as soon

26 as reasonably possible after the entry of this order, but not later than sixty (60) days after

27 entry of the order. If payment is not made within sixty (60) days, interst shall accrue 28 pursuant to 28 U.S,C. §1961 from the date of entry of this order.

[635851-1]

2

CONSENT DECREE

PDF created with pdfFactory trial version www.pdffactory.com

2:11-cv-00907-JAM-DAD

1

9. The parties agree that the Plaintiff shall not be entitled to any attorney’s fees

2 and costs for monitoring compliance with this consent decree.

3

10. The parties agree that this consent decree shall only be applicable to: (a) the

4 delivery of Plaintiff’s publications, and/or publications from other known publishers and

5 the removal of staples from those publications; and (b) the delivery of documents or

6 correspondence from Prison Legal News and/or other known publishers that contain

7 mailing labels.

8

11. The parties agree that providing prisoners with access to reading materials

9 promotes positive contact with the communities into which prisoners will eventually be

10 released and is therefore consistent with the Defendants’ public safety mission.

11

12. DEFINITIONS:

12

a. As used herein, STAPLES shall mean the type of light-duty small wire

13 fasteners commonly used to attach a few sheets of paper, and used by PLN to bind the

14 sheets of its monthly publication.

15

b. As used herein, MAILING LABELS shall mean the type of self-adhesive

16 sticker used by PLN to affix an address to an item of printed matter.

17

c. As used herein, PUBLISHER shall mean any publisher or book store that

18 does mail order business.

19

13. The parties agree that Defendants and their successors, officers, agents,

20 servants, and employees, and all others in active concert or participation with them, shall

21 not refuse to deliver publications, correspondence, or documents sent by any PUBLISHER

22 to prisoners at the county’s jails on the ground that these publications, correspondence, or

23 documents contain STAPLES, PROVIDED that Defendants may comply by removing the

24 STAPLES.

25

14. The parties agree that Defendants shall not refuse to deliver publications,

26 correspondence, or documents sent to prisoners from any PUBLISHER because of

27 MAILING LABELS, PROVIDED that Defendants may comply by removing the

28 MAILING LABELS.

[635851-1]

3

CONSENT DECREE

PDF created with pdfFactory trial version www.pdffactory.com

2:11-cv-00907-JAM-DAD

1

15. The parties agree that Defendants shall provide adequate written notice and

2 an administrative review process to the PUBLISHER of any refusal to deliver any

3 publication, correspondence, or document sent from a PUBLISHER to a prisoner at the

4 County’s jails. The administrative review process shall include the PUBLISHER’s right to

5 have its appeal, complaint, or inquiry considered and resolved by a decisionmaker other

6 than the person who originally refused to deliver the publication or mailing in question.

7

16. Defendants also agree to purchase four (4) five-year subscriptions to PLN’s

8 monthly journal for each Sacramento County jail library, and to retain and maintain those

9 six copies in each County Facility’s libraries, for use by prisoners. Defendants shall order

10 and pay for the subscriptions within ten (10) calendar days of the entry of this Order.

11

17. If Plaintiff proves, in future, any violation of this order, Defendants shall be

12 liable for the reasonable attorney’s fees and costs PLN incurs in proving the violation.

13 Defendants shall have the opportunity to demonstrate that any violation is isolated,

14 accidental, and/or not foreseeable in light of Defendants’ history of substantial compliance

15 and efforts to train and inform staff on mail and publication policies to mitigate relief

16 ordered for any violation, including fees and costs.

17

18. The Court finds that this case concerns the First and Fourteenth Amendment

18 rights of a publisher and is therefore not a case concerning prison conditions as defined in

19 the Prison Litigation Reform Act of 1996. The Court further finds that the relief herein

20 ordered is narrowly drawn, extends no further than necessary to correct the harm to PLN

21 requiring injunctive relief, and is the least intrusive means necessary to correct that harm.

22

19. The Court retains jurisdiction of this matter for the purpose of enforcement

23 of its Order until terminated upon motion made by either party.

24

25

26

27

28

[635851-1]

4

CONSENT DECREE

PDF created with pdfFactory trial version www.pdffactory.com

2:11-cv-00907-JAM-DAD

1

20. No person who has notice of this consent decree shall fail to comply with it,

2 nor shall any person subvert the injunction by any sham, indirection, or other artifice.

3

IT IS SO STIPULATED.

4

5 DATED: _______________, 2012 ROSEN BIEN GALVAN & GRUNFELD LLP

6

7

By:

Ernest Galvan

8

9

Attorneys for Plaintiff Prison Legal News a project of the HUMAN RIGHTS DEFENSE

10

CENTER

11

12 DATED: _______________, 2012 LONGYEAR, O'DEA & LAVRA, LLP

13

14

By:

John A. Lavra 15

16

Attorneys for Defendants County of Sacramento,

Scott R. Jones

17

18

IT IS SO ORDERED.

19

20 DATED: July 16, 2012

21

22

/s/ John A. Mendez____________

John A. Mendez,

23

United States District Court Judge

24

25

26

27

28

[635851-1]

5

CONSENT DECREE

PDF created with pdfFactory trial version www.pdffactory.com

2:11-cv-00907-JAM-DAD

 
 [644367-2]

1 SANFORD JAY ROSEN – 62566

ERNEST GALVAN – 196065

2 KENNETH M. WALCZAK – 247389

ROSEN BIEN GALVAN & GRUNFELD, LLP

3 315 Montgomery Street, Tenth Floor

San Francisco, California 94104-1823

4 Telephone: (415) 433-6830

Facsimile: (415) 433-7104

5 Email:

kwalczak@rbg-law.com

6 LANCE WEBER (admitted pro hac vice)

HUMAN RIGHTS DEFENSE CENTER

7 P.O. Box 2420

Brattleboro, Vermont 05303-2420

8 Telephone: (802) 257-1342

Facsimile: (866) 228-1681

9 Email:

lweber@humanrightsdefensecenter.org

10 Attorneys for Plaintiff

11

UNITED STATES DISTRICT COURT

12

EASTERN DISTRICT OF CALIFORNIA

13

SACRAMENTO DIVISION

14 PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
15 Plaintiff,
16 v.
17 COUNTY OF SACRAMENTO;
18 SCOTT R. JONES, individually and in his capacity as Sheriff of the County of
19 Sacramento; DOES 1-20, in their individual and official capacities,
20 Defendants.
21

Case No. 2:11-cv-00907-JAM-DAD STIPULATION AND ORDER DISMISSING CASE AND RETAINING JURISDICTION OVER CONSENT DECREE Judge: Hon. John A. Mendez

22

23

24

25

26

27

28

STIPULATION AND [PROPOSED] ORDER ADMINISTRATIVELY CLOSING CASE
PDF created with pdfFactory trial version www.pdffactory.com

1

THE PARTIES, THROUGH THEIR RESPECTIVE COUNSEL, STIPULATE AS

2 FOLLOWS:

3

1. The Parties have negotiated a settlement by consent decree, resolving all

4 claims asserted in the Complaint. See Exhibit A.

5

2. The Parties agree that settlement has altered the legal and juridical

6 relationship of the Parties.

7

3. Plaintiff has released Defendants for all claims pursuant to Paragraph 8 of

8 the Consent Decree.

9

4. The Parties have further agreed that this Court should dismiss the complaint

10 with prejudice, but retain jurisdiction over the case to enforce the Consent Decree until

11 such jurisdiction is terminated by the Court upon motion made by either Party. See

12 Consent Decree, ¶ 19.

13

5. The Parties respectfully request that the Court enter the [Proposed] Order set

14 forth below, instructing the Clerk to administratively close the case.

15

IT IS SO STIPULATED.

16 DATED: August 6, 2012

Respectfully submitted,

17

ROSEN, BIEN & GALVAN, LLP

18

19

By: s/ Ernest Galvan

20

Ernest Galvan

21

Attorneys for Plaintiff

22

LONGYEAR, O’DEA & LAVRA, LLP

23

By: s/ John Lavra

John Lavra 24

25

Attorneys for Defendants

26

27

28

[644367-2]

1

STIPULATION AND [PROPOSED] ORDER ADMINISIRATIVELY CLOSING CASE
PDF created with pdfFactory trial version www.pdffactory.com

1

ORDER ADMINISTRATIVELY CLOSING CASE

2

IT IS HEREBY ORDERED that:

3

The parties having reached a Consent Decree resolving the Plaintiff’s claims, the

4 Court orders the claims dismissed with prejudice under Rule 41(a)(2) of the Federal Rules

5 of Civil Procedure, subject to the condition that the Court retains jurisdiction to enforce

6 compliance with the Consent Decree, until such jurisdiction is terminated by the Court

7 upon motion made by either Party. Motions regarding the Consent Decree may be filed by

8 the parties under this case number pursuant to the Court’s ancillary jurisdiction to enforce

9 the Consent Decree.

10

IT IS HEREBY ORDERED

11

12 DATED: August 7, 2012

/s/ John A. Mendez

13

14

15

THE HONORABLE JOHN A. MENDEZ UNITED STATES DISTRICT COURT JUDGE

16

17

18

19

20

21

22

23

24

25

26

27

28

[644367-2]

2

STIPULATION AND [PROPOSED] ORDER ADMINSITRATIVELY CLOSING CASE

PDF created with pdfFactory trial version www.pdffactory.com

 
 IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA
---oOo--BEFORE THE HONORABLE JOHN A. MENDEZ, JUDGE

---oOo---

PRISON LEGAL NEWS, a project of the HUMAN RIGHTS DEFENSE CENTER,
Plaintiff,
vs.

No. Civ. S-11-907

COUNTY OF SACRAMENTO, et al.,
Defendants. /
---oOo--REPORTER'S TRANSCRIPT MOTION FOR PRELIMINARY INJUNCTION WEDNESDAY, MARCH 7, 2012
---oOo---

Reported by:

KELLY O'HALLORAN, CSR #6660

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

APPEARANCES
For the Plaintiff: ROSEN, BIEN & GALVAN, LLP 315 Montgomery Street, Tenth Floor San Francisco, CA 94104 BY: ERNEST GALVAN
For the Defendant: LONGYEAR, O'DEA & LAVRA, LLP 3620 American River Drive, Suite 230 Sacramento, CA 95864 BY: AMANDA L. BUTTS
KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

1

1

SACRAMENTO, CALIFORNIA

2

WEDNESDAY, MARCH 7, 2012, 9:30 A.M.

3

---oOo---

4

THE CLERK: Civil S-11-907; Prison Legal News versus

5 Jones, et al.

6

MR. GALVAN: Good morning, your Honor. Earnest Galvan

7 for Prison Legal News, plaintiff.

8

THE COURT: Did you bring me a copy of your newspaper?

9

MR. GALVAN: Yes, sir, your Honor.

10

MS. BUTTS: Good morning. Amanda Butts for the County

11 of Sacramento.

12

THE COURT: Hello, Ms. Butts.

13

Did you bring me your mailing envelopes and mailing

14 label or did you just bring me the newspaper?

15

MR. GALVAN: Your Honor, I did not bring any mailing

16 envelopes or a mailing label. There is a very good

17 photograph or a scan of one in the Wright declaration. And I

18 can point you to that exhibit.

19

THE COURT: Okay. All right. Interesting case.

20 We're here on a motion for a preliminary injunction filed by

21 the plaintiffs against the county, focusing primarily on the

22 Main Jail and what we have referred to as RCCC. That's the

23 Rio Cosumnes Correctional -- I can't remember what the last C

24 is for.

25

MR. GALVAN: Center, your Honor.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

2

1

THE COURT: Center. There you go. We always just

2 referred to it as RCCC. So there are only those two

3 facilities at issue; correct?

4

MR. GALVAN: Correct, your Honor.

5

THE COURT: All right. So, Ms. Butts, I go through

6 all this paper, and I've looked closely at all the

7 declarations and the opening brief and the opposition and the

8 reply. And, Mr. Galvan, you tried to sneak in a declaration

9 at the last minute. I'm not sure what authority you thought

10 you had for filing this declaration. But nevertheless, did

11 you get a copy of this?

12

MS. BUTTS: Yes.

13

THE COURT: It's a declaration from Lance Weber who is

14 one of the attorneys in this case and contains hearsay

15 information. So it doesn't help me a whole lot to get a

16 declaration from an attorney that contains hearsay. But I

17 guess your point was that The Sacramento Bee catalog that

18 contained staples got through but that he did get his Prison

19 Legal News with the staples removed.

20

MR. GALVAN: Correct, your Honor.

21

THE COURT: Okay. Be careful about filing things

22 late. Federal judges like to impose sanctions. As much as

23 lawyers like to get the last word in, you have to do it

24 within the rules. So I'm actually not going to consider

25 Mr. Weber's declaration since it was late filed, and you

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

3

1 didn't seek permission. Just so you know.

2

MR. GALVAN: Understood, your Honor.

3

THE COURT: Okay. Let me also, before we get into the

4 merits of this motion, just talk a little bit about,

5 Mr. Galvan, you filed objections to some of the materials

6 submitted by the defendants. Ms. Butts, in particular, you

7 submitted a declaration in which you attached a number of

8 exhibits. Again, Mr. Galvan, your objections are actually

9 well-taken. Ms. Butts is the attorney in this case. You

10 really should have had your witnesses lay foundations or

11 authenticate most of the exhibits that you submitted. You

12 can't do it as the attorney. It's done often I know in

13 discovery motions, but this is a motion for an injunction in

14 which I have to follow the rules of evidence. And all the

15 arguments raised by Mr. Galvan, frankly, are valid

16 evidentiary objections. You haven't laid proper foundations

17 to these exhibits.

18

You submit, for example, newspaper articles which are

19 classic hearsay. You submit another article, that's your

20 Exhibit 10, which is from the Internet and which isn't

21 properly authenticated. You submit logs from the Main Jail,

22 again, which easily could have been authenticated by one of

23 your witnesses since they're, I'm sure, business records and

24 maintained in the regular course of business. But you tried

25 to shortcut that by attaching it to your declaration. So

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

4

1 those objections are sustained since those exhibits aren't

2 properly before the Court.

3

In terms of Mr. Morrissey's declaration which is

4 objected to, you object to a paragraph in which he says, "In

5 2009, during shakedowns of cells, magazines with staples were

6 found in prisoner cells and within the facility. Metal

7 fasteners from envelopes and collections of staples,

8 paperclips and other metal items were also found and

9 confiscated. Heroin and other drugs mixed in envelope glue

10 were making their way through security. At the same time,

11 other contraband was still being discovered, such as razor

12 blades and screwdriver bits in mail and greeting cards."

13

And the plaintiff argues that paragraph is mainly

14 irrelevant, other than the words "staples" and "were found

15 and confiscated," but also even that may be irrelevant since

16 Sergeant Morrissey didn't specify what type of staples were

17 involved, and also arguing prejudice. And, again, those are

18 valid evidentiary objections with respect to that paragraph.

19 So I'm granting the evidentiary objections.

20

Okay. So let's get into this. As I understand it,

21 and I don't think that, Ms. Butts, your client really

22 disputes this, at least I can't tell. But according to

23 Mr. -- is it Walczak? W-A-L-C-Z-A-K.

24

MR. GALVAN: Walczak, yes.

25

THE COURT: That this Prison Legal news has been

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

5

1 provided for over 20 years, been in existence, and there have

2 been no problems prior to this policy which is at issue in

3 this case coming into play, and there are different dates.

4 It appears according to Mr. Morrissey that there was a policy

5 that allowed staples prior to April of 2009, and then in

6 2009, because of activities involving contraband, together

7 with -- and I think this is significant and probably the main

8 reason why the policy changed -- together with a decrease in

9 staff at the jail due to budget cuts, there was a change in

10 the procedure for screening mail and publications. And so

11 these policies which are at issue, in part, Operation Orders

12 6/15 and 6/16, come into play.

13

So as I understand it, there's no dispute that up to

14 around April 2009, and apparently because there are also

15 plenty of deputy sheriffs at the jail, the Prison Legal News

16 came in and went through without any problems. And there's

17 this staple and mailing envelope policy that's imposed, and

18 suddenly the Prison Legal News starts being returned to

19 sender, not even delivered to the inmates or the prisoners,

20 at least at the Main Jail. Just focusing on the Main Jail

21 right now.

22

Factually, do you dispute that at all?

23

MS. BUTTS: As to the mailing label, slightly. The

24 written policy has not changed since 2007. The practice at

25 the Main Jail changed in April of 2009 only as to staples.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

6

1

THE COURT: Okay.

2

MS. BUTTS: Well, no, that's not true. Scratch that,

3 or strike that. It did change as to mailing labels. I

4 apologize.

5

THE COURT: Okay. I asked Mr. Galvan to bring me a

6 Prison Legal News. At least the mailing address on this

7 that's before the Court and was attached as an exhibit is a

8 stamp. So Prison Legal News uses a stamp now, not a mailing

9 label?

10

MR. GALVAN: Your Honor, it's actually printed. When

11 the printer runs this out on the giant printing machine,

12 it's --

13

THE COURT: So it's not a label that you have to

14 remove?

15

MR. GALVAN: This is not a label, no. There is a

16 little sticker that the post office puts on.

17

THE COURT: Okay. That's my other question. So does

18 the county jail have a problem with the sticker that the post

19 office puts on?

20

MS. BUTTS: No. The county jail doesn't have issues

21 with stickers or mailing labels coming from verified

22 publishers or from the United States Postal Service.

23

THE COURT: Okay. So I assume the jail doesn't have a

24 problem also with a printed label like this.

25

MS. BUTTS: No.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

7

1

THE COURT: Okay. So let's focus then on what's gone

2 on. So April 2009, this policy causes some of these Prison

3 Legal News newspapers to be sent back to Prison Legal News

4 without being delivered to the inmates.

5

You agree with that?

6

MS. BUTTS: Yes.

7

THE COURT: I didn't take it that you were disputing

8 their numbers that, although you may dispute the actual

9 numbers, but there were at least several hundred of these

10 newspapers that were returned to Prison Legal News.

11

Are you disputing that?

12

MS. BUTTS: No, we don't have any way to know.

13

THE COURT: Okay. How did you come up with that

14 number, by the way? Do you actually have the return to

15 sender?

16

MR. GALVAN: We keep them all.

17

THE COURT: You do. Okay. And so I read through all

18 of this, and then I finally get to Deputy Lewis's

19 declaration. And, honestly, I just shook my head, because

20 suddenly as of February 13, 2012, after this lawsuit is

21 filed -- and I don't know if it's after you filed your

22 opposition or not, but obviously then the lawyers start

23 talking to the deputies, and lo and behold, now at the Main

24 Jail, they now accept Prison Legal News. They just remove

25 the staples. And so that apparently is what's been going on

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

8

1 for the last three weeks.

2

And so you know what I'm going to ask you. Why the

3 change of heart? Because the judge in me says, and I'm sure

4 Mr. Galvan, the plaintiff's lawyer in him, says, well, I

5 guess our lawsuit did some good. Somebody finally got hit

6 over the head and realized let's just go back to the way we

7 did things.

8

So tell me what happened, without disclosing

9 attorney-client privileged communications.

10

MS. BUTTS: Right. I'm going to do my best on that.

11

I think when the change -- or I know when the change

12 in practice occurred in 2009, it was implemented as a genuine

13 belief that this would keep items that the jail considered to

14 be a problem out in a better fashion. And that was the way

15 it continued to practice for two years, without incident,

16 without there being complaints or issues or any check on that

17 practice. It seemed to be working. It was going along fine.

18 No problem.

19

The lawsuit comes in, and they kept the status quo to

20 continue the way that they were practicing at that time as to

21 not change because of the lawsuit. The parties have done

22 discovery which the defendants finished -- or provided

23 documents at the end of December stating that there were

24 certain documents it was going to have to somewhat reinvent

25 the wheel to go find. It notified the plaintiff of that. It

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

9

1 went through that process. Come the middle of January, end

2 of January, it was able to uncover all of those incident

3 reports. It starts looking through what's going on at the

4 jail, even with this practice in place, and actually starts

5 evaluating the numbers of publications coming in and kind of

6 does a review of the practice and what's coming in and the

7 numbers and what is the burden and makes a decision to say,

8 you know, we're getting 3 to 4 publications a day, 15 to 20 a

9 week, let's try to just take them out. We're still going to

10 keep the staples out of the hands of the prisoners, but let's

11 go back to the way the written policy is, because even though

12 at the time in 2009 that this practice was put into place,

13 this seemed like the best way to do it, maybe this really

14 isn't going to be as big of a deal to take out these staples,

15 let's do this, as a constant reevaluation.

16

THE COURT: So in the reply brief, the plaintiffs

17 argue that, and actually use your declarations, your clients'

18 declarations, that the Main Jail is receiving 3 to 4

19 publications per day, and at RCCC, it's about 15 to 20

20 publications per day.

21

You're not disagreeing with that since it's your

22 declarations?

23

MS. BUTTS: Correct. I don't think it says 3 to 4

24 publications per day. I think it does it in a week, and they

25 divided it out. I think on average, that's probably true.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

10

1

THE COURT: Okay.

2

MS. BUTTS: I think it varies. I think publications

3 tend to come in probably more at the beginning of the month

4 or at the end of the month, but yeah, let's go with that.

5 Three to four is fine.

6

THE COURT: Okay. I want to focus on RCCC just for a

7 second. My impression is that RCCC -- actually, Mr. Galvan,

8 I'll ask you, did you have any evidence that RCCC was

9 returning the Prison Legal News or publications related to

10 Prison Legal News or was it only the Main Jail?

11

MR. GALVAN: Your Honor, actually I thought of it all

12 in aggregate. I would have to go back. But my sense is that

13 both -- it is that we have returns from both facilities.

14

THE COURT: Because the declarations seemed to dispute

15 that, particularly a declaration from Lieutenant Griem, who

16 was the watch commander at RCCC from April 2011 to October.

17 And according to him, that night shift officers have always

18 simply just removed the staples and mailing labels, but they

19 haven't simply returned your client's publications to the

20 sender.

21

MR. GALVAN: Although he also says in paragraph 4:

22 "On a small number of occasions, I've been made aware that an

23 officer has returned a publication to the publisher because

24 the publication contained staples."

25

THE COURT: Okay. Ms. Butts, the other question I had

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

11

1 raised by the plaintiffs is did you, in the course of now

2 discovery and through this lawsuit, did you find any reported

3 security incidents involving an inmate or a prisoner where a

4 staple from a Prison Legal News publication, this type of

5 staple, was used to cause harm or create a danger?

6

MS. BUTTS: The jail doesn't keep records that would

7 indicate what type of magazine a staple would come from.

8 More often than not, the staple is discovered separated from

9 wherever it came from. The jail just doesn't keep those kind

10 of records.

11

So no, I cannot dispute that statement. I don't have

12 any piece of evidence that says Prison Legal News magazine

13 staple caused a security incident or injury. We just don't

14 have that kind of information.

15

THE COURT: Okay. And then could the jails, Main Jail

16 and RCCC, live with an injunction that, in effect, committed

17 this February 13, 2012, policy and procedure that's being

18 followed to writing? Could you live with that type of

19 injunction?

20

MS. BUTTS: Well, I mean it's already happening, so

21 I'm not sure what there is to enjoin. But that is the

22 current practice. It's the intended continued practice.

23 There is nothing to suggest that the intention is anything

24 else. It was a short-lived practice. The policy as written

25 has always been the same. It's been that way for five years

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

12

1 now. I'm not sure what there is to enjoin. But it is the

2 practice as it is now. It's the intended practice for the

3 future. So it kind of is what it is.

4

THE COURT: So here's the argument. And because you

5 don't get a chance to respond in writing to the reply briefs,

6 it's sort of the $64,000 question, which is what you just

7 argued. The defendants assert that their jails now deliver

8 publications with the staples removed. However, defendants

9 maintain their policy of returning to sender all

10 correspondence sent to the Main Jail with mailing labels.

11

Is that true?

12

MS. BUTTS: Yes.

13

THE COURT: Okay. Despite this recent and partial

14 voluntary cessation of allegedly illegal conduct, without an

15 injunction, defendants are free to return to their old

16 ways -- that's in quote -- and exclude PLN's publication

17 altogether, citing Friends of the Earth vs. Laidlaw

18 Environmental Services and United States vs. W.T. Grant.

19 Injunctive relief is appropriate unless "it is absolutely

20 clear the allegedly wrongful behavior could not reasonably be

21 expected to recur, citing Friends of the Earth and then some

22 other cases. And then, finally, they talk about a Ninth

23 Circuit case, Demery vs. Arpaio, which involved pretrial

24 detainees who filed suit under the First and Fourteenth

25 Amendments to enjoin web posting of jail videos. The

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

13

1 district court granted the injunction in that case. On

2 appeal, the defendants argued that termination of web posting

3 rendered moot the claim for injunctive relief. The Ninth

4 Circuit disagreed and upheld the injunction.

5

So why shouldn't I apply those cases to this

6 situation?

7

MS. BUTTS: Well, right now, we're at the preliminary

8 injunction phase. We haven't had a trial on the merits. We

9 haven't had a jury decide whether or not the implemented

10 practice was reasonable. At this stage right now, to put in

11 place that kind of order, it's not necessary. If at the end

12 of the day when we get past this and we go to the merits and

13 a jury says we're unreasonable, then clearly an injunction

14 implemented at that stage may be the necessary course of

15 action.

16

But for right now, the practice is what it is. Their

17 magazine is coming in. The staples are being taken out. The

18 jail doesn't have an intention of tomorrow turning around and

19 saying no, it's going to continue with that practice of

20 taking the staples out. There's no evidence to suggest it's

21 going to change.

22

The purpose of a preliminary injunction is to prevent

23 great harm like --

24

THE COURT: Irreparable.

25

MS. BUTTS: Irreparable harm right now because it's

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

14

1 happening and we have to do something right away to stop it

2 or, you know, catastrophe ensues. And that's just really not

3 where we're at right now. If this was a motion on the

4 merits, if this was a motion for summary judgment, I think

5 maybe there would be a different argument to be made.

6

THE COURT: The other thing Mr. Galvan argues in the

7 reply is that in the opposition, you didn't address the other

8 two requirements of a preliminary injunction, the third and

9 fourth; that is, that the balance of equities tips, in your

10 case, in your client's favor, and that injunction would not

11 be in the public interest. I didn't really see those

12 addressed.

13

MS. BUTTS: I think we addressed the balance of harm.

14 I think we state -- actually, I'm pretty sure we state in

15 there that we've shown that the time consumption and the

16 resources tip in our favor, whereas they've failed to show

17 that in regard to the mailing labels or really as to the

18 staples.

19

THE COURT: Except you undermine that argument by now

20 telling me that it's really not a big deal.

21

MS. BUTTS: Right. I understand. We're supposed to

22 look at the time that it was implemented. Not right now.

23 Not the effect of it and not whether it actually worked.

24 That's not what Turner requires. Turner requires to look at

25 when the choice was made whether it was reasonable, not

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

15

1 whether it actually worked.

2

THE COURT: Yeah, but whether I'm going to issue an

3 injunction or not, I have to look at what's going on right

4 now.

5

MS. BUTTS: I understand. But right now, there's

6 nothing to enjoin when it comes to the staples. So we're

7 going to enjoin a possibility, which there's always a

8 possibility that policies and practices will change based on

9 occurrences in the jail. Title 15 requires a jail to

10 constantly be analyzing what's going on in its facility to be

11 making the proper regulations and procedures. To enjoin the

12 possibility the action will occur at this stage of the game,

13 it's not reasonable. It's not necessary.

14

THE COURT: Tell me about this mailing label issue

15 that seems to still exist, Mr. Galvan. How many pieces of

16 correspondence does it involve? Obviously you don't use

17 mailing labels anymore on the Prison Legal News, so that's a

18 nonissue. But are you still trying to send in mailings with

19 mailing labels on them?

20

MR. GALVAN: Yes, your Honor. In addition to

21 publishing -- for the Legal News, we're also a distributor

22 and publisher of books. And when we get an order for a book,

23 that's a special event, not like the subscriber getting his

24 magazine from the printer. That's fulfilled from the office.

25 And the practical way to do that is to put the book in an

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

16

1 envelope, and then there's a label that's printed from a

2 database from that customer's information, and the label --

3 there's a picture of it. It's Exhibit F to the Wright

4 declaration.

5

THE COURT: Okay.

6

MR. GALVAN: One clarification for the record, the

7 substantive evidence is from Paul Wright, the publisher of

8 Prison Legal News. Walczak did put in a declaration, but he

9 sponsored attorney kind of stuff that attorneys could

10 sponsor. But Wright, the client, sponsored the substantive

11 stuff. And in that picture, Exhibit F, you can see it's a

12 tiny little label, just like the little tiny label, you'd get

13 a sheet of them and you'd put them in a printer. And, you

14 know, there's something even bigger, that if this were a

15 legitimate concern, I'd be more worried about the stamp that

16 you see up in the upper left-hand corner.

17

THE COURT: It's actually a postage stamp?

18

MR. GALVAN: That's the postage stamp.

19

THE COURT: Okay.

20

MR. GALVAN: And that was put on by Prison Legal News

21 in order to get the post office to deliver it. Now, if I

22 wanted to hide something, I'm not sure I'd pick this little

23 paper label. I think I'd pick this thickly gummed stamp.

24 But there's no issue about the stamps. The sine qua non

25 under Turner, the first prong, is this an arbitrary and

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

17

1 irrational policy. And to attack those little labels and let

2 all those big -- you saw that big commemorative stamp, let

3 all those things through, it's just arbitrary and irrational.

4

THE COURT: Do they rip off the stamps too?

5

MS. BUTTS: Yes.

6

THE COURT: That's what I thought. I guess my

7 original question was I know the numbers on Prison Legal

8 News, but how much volume are you talking about?

9

MR. GALVAN: It's smaller than Prison Legal News for

10 this particular jail. I don't have exact figures. But if it

11 were more than a couple of dozen per year, I'd be surprised.

12

THE COURT: So why couldn't your client just handwrite

13 on an envelope and use a postage meter type stamp? Where is

14 that a problem?

15

MR. GALVAN: Because in the operation, he's fulfilling

16 orders from the whole country, from 2,200 correctional

17 institutions.

18

THE COURT: But you're not worried about the whole

19 country. You're only worried in this lawsuit about the Main

20 Jail.

21

MR. GALVAN: Well, we are worried about the whole

22 country. That's why we litigate. I mean the history of

23 Prison Legal News --

24

THE COURT: Well, let me put it this way. I'm not

25 worried about the whole country. I'm only worried about this

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

18

1 lawsuit.

2

MR. GALVAN: There are steps of the analysis before we

3 get to my client's alternatives. And they haven't shown that

4 there's any rational relationship between this label ban for

5 these little tiny labels and their interest in keeping drugs

6 and razor blades out of the prison.

7

In the one picture that they submitted, Exhibit 4 to

8 Ms. Butts' declaration, the sealed exhibit, the only thing

9 that they've said could come into under mailing labels is a

10 huge mound of some sort of drug. I don't know what it is,

11 but it looks like two fistfuls of yellow insulation. Now,

12 how that gets in under that tiny label makes no sense at all.

13

We've submitted an expert declaration from someone who

14 was the warden of a pretrial facility and the warden of a

15 supermax federal prison.

16

THE COURT: A federal prison, not the Main Jail.

17

MR. GALVAN: Well, he was the warden of the Miami

18 pretrial federal facility. So that's an important jail.

19 That's a jail. People are coming in and out, just like

20 Sacramento jail.

21

THE COURT: I don't know if I'd agree with that.

22

MR. GALVAN: He said in his experience, no sensible

23 correctional administrator is worried about these little

24 labels. And they haven't rebutted that. Also, he pointed

25 out, and it's patent in their policies, they allow things to

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

19

1 come in from Amazon.com and Barnesandnoble.com with labels on

2 them.

3

THE COURT: Thank you for reminding me of that. That

4 was my other question. Is that true? It wasn't disputed in

5 the declarations, and that would seem to me -- I did have

6 that written down. I was going to ask you about that,

7 Ms. Butts. But if you're going to let Amazon and Borders

8 deliver publications with mailing labels, then that does seem

9 to me to be a little inconsistent.

10

MS. BUTTS: We're not talking about a publication.

11 We're talking about correspondence. Amazon and Barnes &

12 Noble aren't sending correspondence with mailing labels that

13 are coming in. So he's talking about a publication when he's

14 talking about Amazon and Barnes & Noble. But when they're

15 talking about their mailing labels, they're talking about

16 correspondence from their facilities back East. The two

17 things are different.

18

THE COURT: Why?

19

MS. BUTTS: Because while it's coming from a

20 publisher --

21

THE COURT: A mailing label is a mailing label.

22

MS. BUTTS: No mailing labels are going into the jail.

23 They're being taken off. No inmate is getting access to a

24 stamp or a mailing label or anything with a gummed -- that's

25 not the way it works. And that applies to Amazon. That

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

20

1 applies to Prison Legal News. It applies across the board.

2

THE COURT: So what are we arguing over?

3

MS. BUTTS: The procedures are the same.

4

THE COURT: They're not being returned.

5

MR. GALVAN: I have a table. My client back in

6 Vermont has a table full of envelopes where it's written

7 "return to sender" mailing label.

8

THE COURT: Okay. Why?

9

MS. BUTTS: Because when where talking about -- when

10 Amazon and Barnes & Noble are sending something in, they're

11 sending in a package from a verified publisher. When Prison

12 Legal News is sending in its correspondence from its location

13 back East, there's no way to know it's a publisher. Their

14 envelopes have a stamp on the corner that say Prison Legal

15 News. It's a stamp. I could go make a stamp right now that

16 says Amanda Butts Publishing Company. That doesn't make me a

17 verified publisher. Whereas Amazon and Barnes & Noble, these

18 are documents coming from their facilities. It's clear the

19 location. There's not as much of a concern with those items.

20 There's less of those items coming in because we're talking

21 about packages, not correspondence.

22

THE COURT: Why would your client have a concern about

23 Prison Legal News?

24

MS. BUTTS: It's not Prison Legal News in particular.

25 It's just no way of knowing that that envelope is really

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

21

1 Prison Legal News. It's not clear to the person checking the

2 mail.

3

And really the issue with the mailing labels, it's not

4 the label getting in. They're going to take them off. It's

5 cutting down the amount of taking off and writing and finding

6 the information to put on the label to then process the mail.

7 If we do it for Prison Legal News correspondence, then we're

8 going to do it for all correspondence, we have to, because

9 they're just a citizen corresponding with an inmate.

10

So we can't really create a special rule for a

11 publisher to send correspondence unless we're going to do the

12 same thing for every citizen. Then we would be violating the

13 equal protection rights of citizens. And so then every

14 single piece of correspondence that comes in with a mailing

15 label will now need to be taken off by the one mailroom

16 officer, written on there, and then processed, for

17 everything. Not just packages from a verified publisher that

18 are coming in here and there with books in them. And you

19 can't give the box anyway, so you have to take it out of the

20 box. We're talking about just envelopes, just standard

21 correspondence when we're talking about Prison Legal News.

22

THE COURT: Well, Amazon delivers in those cardboard

23 boxes.

24

MS. BUTTS: Right. But you can't take a box to a

25 prisoner. So you naturally have to take it out of the box

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

22

1 anyway. It's the process that has to happen with the

2 package. There's nothing that Amazon or Barnes & Noble could

3 do to send their packages in a way that wouldn't require the

4 mailroom officer to have to take it out of a box and have to

5 put something with it to send it to the inmate. Whereas

6 Prison Legal News in their office, according to the

7 deposition of their publisher, Paul Wright, the other day

8 indicated that all of this is sent from their office, it's

9 not a printer, its all done by putting into the machine the

10 mailing label, printing it out, taking it off, putting it on

11 the envelope by seven employees who are sending out thousands

12 of these things all the time.

13

I don't understand why they can't write the name and

14 the housing information on the envelope and send it so that

15 when it comes to the Main Jail, they just have to rip off the

16 stamp and pass it along to the inmate.

17

MR. GALVAN: Your Honor, we're as much a publisher as

18 Amazon.com, so I don't know why this demand isn't being made

19 of Amazon.com. They could also hire some special people to

20 write in Magic Marker on their boxes.

21

This is what we face all over the country, hostility

22 to Prison Legal News, based on content really. But there's

23 always a shifting set of rationales for why we're different.

24 It's always one thing after another. That's why a

25 preliminary injunction is important in this case, frankly,

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

23

1 your Honor, as you see the shifting sands. One minute it's

2 the staples. One minute it's the labels. One minute we're a

3 publisher. One minute we're just two guys in an office. I

4 think that gets to the heart of why an injunction is needed

5 at this stage, your Honor.

6

MS. BUTTS: They're blurring the line between what

7 they're sending in. That would be true if Amazon and Barnes

8 & Noble were sending in envelopes. Then we could say Barnes

9 & Noble and Amazon, you need to find a way to write the name

10 on it instead of just sending it in with a mailing label

11 because we can hand the inmate the envelope. You can't give

12 an inmate a box. And the items coming in from Amazon and

13 Barnes & Noble are coming in in boxes.

14

THE COURT: Right.

15

MS. BUTTS: So you're naturally, no matter where it

16 comes from, going to have to take it out of the

17 instrumentality it's coming in. That's not the case for the

18 items coming from Prison Legal News.

19

THE COURT: What's coming in? Mr. Galvan.

20

MS. BUTTS: Envelopes.

21

THE COURT: Yeah, but what's in the envelopes?

22

MR. GALVAN: What's in the envelope would be typically

23 what's illustrated in Mr. Wright's declaration where he

24 provides some samples of the non-Prison Legal News

25 publications. For example, his Exhibit B, this is a small

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

24

1 book. These are the first few pages of a small book called

2 "Protecting your Health & Safety, a Litigation Guide for

3 Inmates," published by the Southern Poverty Law Center,

4 distributed by Prison Legal News.

5

THE COURT: So that would be stuck in a brown envelope

6 with a stamp and a mailing label?

7

MR. GALVAN: Almost exactly like an Amazon

8 distribution except --

9

THE COURT: You're using an envelope. So when it gets

10 to the jail, they're going to rip off the mailing label,

11 right, they're going to rip off the stamp, then they're going

12 to open the envelope and then deliver what's inside; right?

13

MS. BUTTS: Uh-huh.

14

THE COURT: Yes? Is that a yes?

15

MS. BUTTS: No. I'm sorry. What are we talking

16 about? Are we talking about the envelopes coming with this

17 book in it?

18

THE COURT: Right.

19

MS. BUTTS: Okay.

20

THE COURT: You're not going to deliver -- it's going

21 to go through an x-ray machine now, but --

22

MS. BUTTS: Well, I think the problem with Prison

23 Legal News is if their envelopes, for instance, were printed

24 with this in the corner of it where it says Prison Legal News

25 and it's an official business envelope, right, where you can

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

25

1 tell someone made mass amounts of these for a business

2 purpose, I think that would be different. If you look at the

3 envelopes that they're talking about, it's literally a stamp

4 that you would dip in an ink pad and stamp on that that says

5 Prison Legal News.

6

THE COURT: Maybe I'm missing something. So if that

7 envelope came today to the Main Jail, the person in the mail

8 room is going to open the envelope; right?

9

MS. BUTTS: No.

10

THE COURT: Well, it's going to be run through an

11 x-ray machine.

12

MS. BUTTS: If it had a mailing label on it, it's the

13 same as personal correspondence because there's no way to

14 verify that this is --

15

THE COURT: It's returned to the sender.

16

MS. BUTTS: It's returned to sender.

17

THE COURT: Wow.

18

MR. GALVAN: That's why we need an injunction, your

19 Honor. We're a publisher whose material is being returned to

20 sender. It couldn't be plainer.

21

MS. BUTTS: There's no way to know it's a publisher.

22

MR. GALVAN: It says Prison Legal News. Everyone

23 knows we're a publisher. We're a verified publisher in 2,200

24 institutions. We're a verified publisher in the California

25 Department of Corrections, 33 state prisons, including

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

26

1 Pelican Bay, the worst of the worst.

2

THE COURT: Does RCCC do the same thing?

3

MS. BUTTS: No. They have between 9 to 12 officers

4 doing the mail, so they take off the mailing labels.

5

THE COURT: Doesn't that seem inconsistent, that it's

6 really just because --

7

MS. BUTTS: We don't have the staffing to do it at the

8 Main Jail?

9

THE COURT: Yeah.

10

MS. BUTTS: I mean that's just sort of what it is.

11

THE COURT: So you're using an economic reason to,

12 according to the plaintiffs, violate the First Amendment of

13 the Constitution? It's a First Amendment issue. You're not

14 allowing a publisher to get in their material to someone who

15 is entitled to read that material.

16

MS. BUTTS: Right. But there's a rational, reasonable

17 basis for the policy that requires them to do it a different

18 way. We're not banning their content. We're not saying

19 Prison Legal News, you, for instance, are not allowed to talk

20 to inmates, you are not allowed to correspond with inmates.

21 No matter what you send in here, we're sending it back

22 because we don't like you, and we don't like what you're

23 saying. That's what they want to argue. That's not the

24 case. This is the way the mail is processed no matter what.

25

We recognize that they're a publisher. We know

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

27

1 they're a publisher. I get that. And I know that Prison

2 Legal News is a publication that's been around for a long

3 time. The problem is I can go down and make a stamp that

4 says Prison Legal News with their address on it and stamp it

5 on any envelope I want. Now, it would be illegal, but I

6 could still do it and try and send something into the jail

7 disguised as Prison Legal News.

8

THE COURT: Turner factor number 4 is whether the

9 existence of easy and obvious alternatives indicates that the

10 regulation is an exaggerated response by prison officials,

11 which brings me back to numbers.

12

Just so both of you know, and I said this, I'm not

13 concerned about any other publisher than Prison Legal News in

14 this lawsuit. And the volume of these materials going into

15 the Main Jail, at least the facts as I understand them, is

16 relatively small.

17

MS. BUTTS: Not when we're talking about

18 correspondence though.

19

THE COURT: From Prison Legal News?

20

MS. BUTTS: I don't know. They haven't said how many

21 they send in.

22

THE COURT: You answered my question, didn't you?

23

MR. GALVAN: Publications, my estimate, a couple dozen

24 a year.

25

THE COURT: A couple dozen a year.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

28

1

MR. GALVAN: That's my --

2

THE COURT: Okay. And then correspondence.

3

MR. GALVAN: Well, we certainly correspond. And

4 that's how we developed the evidence for this case. We will

5 write to people in the jail who are subscribers and say we

6 haven't heard from you for a while, have you gotten our

7 magazine, and they'll write back saying no, we haven't.

8

THE COURT: So a letter in an envelope?

9

MR. GALVAN: That's a letter in an envelope, yes.

10

THE COURT: And how many pieces of correspondence are

11 you talking about there?

12

MR. GALVAN: I haven't kept a record, but that could

13 be in the dozens, the scores, maybe hundreds. I would doubt

14 hundreds. Hundreds would be another case with the system

15 where you've got, you know, like CDCR, 33 prisons.

16

THE COURT: Does your client keep records as to which

17 correctional facilities the correspondence is going to?

18

MR. GALVAN: Oh, sure, we certainly do.

19

THE COURT: Okay. So you could tell me easily over

20 the past year how many pieces of correspondence went into the

21 Sacramento Main Jail?

22

MR. GALVAN: I don't have it here, but I could

23 certainly find out.

24

THE COURT: Okay.

25

MS. BUTTS: But there is evidence to show that the

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

29

1 Main Jail is getting roughly 1,200 pieces of correspondence a

2 day. So if we're going to have to start taking the mailing

3 label off when it looks like Prison Legal News, don't we then

4 have to do the same for every piece of correspondence that

5 comes in with a mailing label?

6

How can we differentiate that from Prison Legal News

7 envelopes with a stamp on it? A stamp as in -- I don't mean

8 a postage stamp. I'm talking about an ink writing stamp from

9 me having my address as a stamp that I put in the return

10 address corner.

11

THE COURT: Do you want to answer that?

12

MR. GALVAN: Yes, your Honor.

13

THE COURT: Go ahead.

14

MR. GALVAN: I want to answer how do you distinguish

15 between the Prison Legal News envelope and some other

16 publisher that counsel thinks is more established. We've

17 been around since 1990. Amazon, I don't know, since 1998.

18

Also, my kids get a lot of presents from Amazon. I've

19 got a garage full of Amazon boxes that I could easily use to

20 repackage things and send contraband into the jail. The

21 notion that there's something about an officially printed box

22 in counsel's view that makes it safer than a stamped envelope

23 is, frankly, absurd.

24

We all have Amazon boxes all over our houses. We

25 could be mailing stuff in Amazon boxes all the time. I don't

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

30

1 see how it makes any sense. Under Turner, it's a classic,

2 irrational, and arbitrary distinction.

3

MS. BUTTS: Again, we're not talking about boxes.

4 We're talking about envelopes that would be able to be

5 delivered to an inmate if it was not with a mailing label,

6 whereas a box would never be delivered to an inmate. So the

7 procedure already has to be different when we're talking

8 about a box. Not to mention I'm pretty sure there are ways

9 to determine when an item has been resealed in the way that

10 Mr. Galvan is talking about, as opposed to coming directly in

11 from the distributor or publisher.

12

THE COURT: Here's what the defendants argue,

13 Mr. Galvan, which I want you to respond to. "Under the

14 Turner test, defendants need not show specific instances of

15 incidents that occurred as a result of the challenged

16 policy." And again, we're only talking about mailing labels

17 here. "It is sufficient that a prison regulation is

18 justified on the basis of anticipated security problems,"

19 citing Casey vs. Lewis, a Ninth Circuit case. "Corrections

20 facilities across the country have had problems with staples

21 being used as tattoo needles." Again, we're talking about

22 staples. I don't want to get into staples.

23

But in terms of mailing labels -- here we go. The

24 defendants argue: "Jail inmates are notorious for finding

25 unique methods to smuggle drugs into their jail cells, and

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

31

1 the U.S. mail has always been a favored route. Illicit drugs

2 can be liquefied and applied to paper through drops, in ink,

3 behind postage stamps, on the glue that seals the envelopes,

4 and under stickers. Inmates ingest the drugs by licking or

5 eating the paper. Mailing labels pose a threat in

6 correctional facilities because they can be used to conceal

7 heroin, LSD, and other drugs, as well as metal objects."

8

Now, your expert doesn't necessarily disagree with

9 that, but he argues, at least with respect to your

10 publications or your envelopes, that's irrational under the

11 Turner standards.

12

And the defendants argue, again, "To show a rational

13 relationship between a regulation and a legitimate

14 penological interest, prison officials need not prove that

15 the banned material actually caused problems in the past, or

16 that the materials are 'likely' to cause problems in the

17 future. It does not matter whether plaintiff or even this

18 court agree with defendants or whether defendants' policies

19 and practices actually advance their facilities'

20 legitimate interests.

21

"This court is only required to find that the

22 defendants' judgment was 'rational,' that is, whether the

23 defendants might reasonably have thought that the policy

24 would advance its interests."

25

Now, obviously the burden is on you to convince the

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

32

1 Court that you're likely to succeed on the merits of your

2 argument under the First Amendment with respect to mailing

3 labels. So why haven't they at least raised enough in this

4 opposition for the Court to find that, at least on the state

5 of the record as it is now, that I'm not convinced that

6 you've satisfied your burden?

7

MR. GALVAN: First on the law and then on the facts.

8 What your Honor quoted from the brief was their assembly of

9 quotes that basically try to make the Turner analysis seem

10 toothless on the first level, but it's not toothless. Turner

11 itself says the logical connection has to be not so remote as

12 to render the policy arbitrary or irrational, which means

13 there's something for the Court to do here. I mean that

14 quote from the en banc Arpaio opinion that says the Court

15 need not even agree doesn't mean that the Court simply turns

16 off on all examination.

17

So let's look at mailing labels. Defendants scoured

18 their files to try to find a picture that made mailing labels

19 look dangerous, and Exhibit 4, sealed, is what they found.

20

THE COURT: You keep coming back to Exhibit 4, which I

21 granted your objection, but go ahead, now that you've opened

22 the door.

23

MR. GALVAN: Assuming that Exhibit 4 were admissible,

24 which it's not, this is the best they have for mailing

25 labels.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

33

1

MS. BUTTS: That's not a mailing label.

2

THE COURT: What is it?

3

MS. BUTTS: It's a Post-it. And that's not even part

4 of our argument. We didn't assert that that mailing label

5 was dangerous.

6

THE COURT: Did you submit anything with respect to

7 mailing labels, any exhibits?

8

MS. BUTTS: We don't have mailing labels that come

9 into the jails, so we don't have pictures of them causing

10 destruction.

11

THE COURT: That's right. Everything gets returned or

12 ripped off.

13

MR. GALVAN: So they don't have any evidence of

14 mailing labels. But they say we just have to point to a

15 reason that a rational person would agree with. And the law

16 does say that. They just have to point, like summary

17 judgment, you just have to point at your opposition's

18 evidence. Okay. But what they point at doesn't make any

19 sense. What they point at is the assertion that, well, it's

20 easy to liquify a drug and then soak a mailing label in the

21 drug and then people could eat the drug.

22

Okay. Well, if you can liquify the drug and permeate

23 a mailing label with it, you'd be better off permeating a

24 piece of paper. Back in the '60s, people had a lot of paper

25 acid. Right? So if that's the real concern, then why are

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

34

1 they letting any paper into the prison at all? I mean

2 they're all focused on the mailing label, they're going to

3 tear off the mailing label, but the permeated with drug paper

4 is probably inside the envelope. It's the letter.

5

So if that satisfied Turner, then the rule that we'd

6 be here talking about is no paper comes into the prison at

7 all. You have to use their email system. They have this new

8 email system that people can use to send in messages.

9

THE COURT: Here's what your evidence is from

10 Mr. Clark. He says, "While it is theoretically possible to

11 do so," to use mailing labels as an avenue for smuggling or

12 concealing drugs, so while it's theoretically possible to do

13 so with certain soluble drugs in extremely small amounts, he

14 says, "I have never heard of this practice causing a problem

15 in the correctional settings with which I'm familiar." And

16 then he cites all the experience he's had. "I am certain

17 I've never heard mailing labels raised in those reports.

18 Likewise, I have attended many national correctional

19 conferences of practitioners and leaders in the field and met

20 with the administrators of state, local, and private

21 corrections systems. I maintain contact with many of these

22 professionals. I do not recall mailing labels, especially

23 from publications, ever being raised by any of these

24 individuals as an issue of concern. I have never been aware

25 of metal objects of contraband being hidden under mailing

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

35

1 labels.

2

"Defendants declare on page 15 of their opposition

3 that the use of labels is not the only manner of delivering

4 liquefied drugs. They mention drops applied to paper, in

5 ink, or on the glue that seals envelopes. A ban on mailing

6 labels would do nothing to deter these other methods, but

7 would only address the unlikely prospect of smugglers taking

8 the extensive trouble to set up delivery of drugs through a

9 publisher or a publication that uses labels for delivery to a

10 prison."

11

So how do you respond to that?

12

MS. BUTTS: Well, it seems from what we've seen, the

13 majority of facilities don't allow the mailing label in,

14 which is probably why you don't have issues with mailing

15 labels. I believe the reason why they don't allow them in is

16 because it's fairly common knowledge that you can smuggle

17 drugs into a facility through a mailing label, which is why

18 stamps and mailing labels are often removed.

19

As for the paper issue, once you get past the mailing

20 label and you open the envelope and read through the mail, as

21 you would do with every piece of correspondence that comes

22 in, an item that had been soaked in water would probably be

23 noticeable and would be denied for that reason and kept in

24 evidence for being some of kind of illegal object.

25

It's not as if the buck stops at the mailing label and

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

36

1 there's no other analysis of mail. There are multiple

2 procedures for evaluating mail and other things coming into

3 the jail to make sure contraband comes out.

4

Here we're talking about the mailing label. And the

5 label can be an issue. That's why it's removed. And when it

6 comes to the Main Jail, we have one officer processing

7 potentially thousands of pieces of correspondence a day.

8 This correspondence that they're talking about with the

9 mailing label is correspondence, not a publication, not a

10 package. It's a letter coming in like any letter that I

11 would want to send to an inmate in there or from someone's

12 mom or grandmother. So you have to evaluate it the same way

13 you would an everyday citizen who would be sending something

14 in.

15

So for every piece of correspondence that comes in in

16 an envelope that has a mailing label, by the plaintiff's

17 requirement, the one officer processing these thousands of

18 letters would have to take off that mailing label and write

19 by hand the name, location, and all the information required

20 for every single letter coming in.

21

So the jail opted to preserve its resources in that

22 sense due to the dangers of mailing labels, continue to keep

23 mailing labels out, and send them back so that they don't

24 have to go through that process. And plaintiff hasn't

25 produced any evidence as to why it can't itself write the

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

37

1 name on the maybe 12 -- he's not even sure how many pieces of

2 correspondence it sends in, whereas the jail has put forth

3 valid evidence showing the amount of correspondence coming

4 into the jail.

5

THE COURT: It's actually hundreds. But on page 11 of

6 the motion for preliminary injunction, the plaintiff argues,

7 "Sending correspondence and publications to prisoners using

8 mailing labels is a common practice. Magazine subscriptions

9 are often sent using mailing labels for prisoners and

10 non-prisoners alike," citing Mr. Wright's declaration. "In

11 fact, until recently, the California Department of

12 Corrections and Rehabilitation actually required publishers

13 to send materials with an approved vendor label affixed to

14 each publication. The CDCR policy at issue there provided

15 that 'any packages from a book vendor or publisher must have

16 a book label with a vendor stamp attached. Packages without

17 the vendor stamp, label, or the required signatures will be

18 returned to sender.' If labels from publishers constituted a

19 security threat, it seems unlikely that a state prison system

20 would dramatically increase the amount of correspondence sent

21 with labels by requiring their use."

22

MS. BUTTS: If this came in with a mailing label on

23 it, it would be taken off. Or it probably wouldn't even be

24 taken off, because it's not an issue with a publisher. We're

25 not concerned about publishers sending drugs to inmates. I

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

38

1 think that we're pretty sure no one's trying to commit

2 illegal acts as publishers in the same sense of books and

3 packages. The problem with the letters that they're sending

4 in is you cannot verify that it's a publisher. It just looks

5 like a letter that you and I could put together and send into

6 the jail.

7

It makes sense to require the label. And if this

8 magazine was coming in with a label, there wouldn't be an

9 issue. We're not talking about the magazine. We're talking

10 about letters. That's different.

11

THE COURT: Okay. Do you want to respond?

12

MR. GALVAN: Just a few points.

13

There is no evidence that other facilities ban mailing

14 labels. I think what counsel may be referring to are the

15 collection of web pages that your Honor has already excluded.

16 And even if that were evidence, when you read that

17 collection, it's clear that they're talking about people who

18 send in like a little package of labels and stickers like

19 you'd use for scrap booking or something, where you've got

20 the backing and then the label. That's clearly a problem,

21 right, because you could sort of peel that up and put

22 something in there. Not a used label. But that's not

23 evidence anyway.

24

Our evidence, which your Honor read, the only thing to

25 add to that is Mr. Wright also said that we're sending

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

39

1 mailing labels to 2,200 correctional facilities, and no one

2 is banning us because of mailing labels.

3

THE COURT: This is the only one, Sacramento County

4 Main Jail?

5

MR. GALVAN: This is the only one at the moment where

6 we're fighting mailing labels.

7

THE COURT: Out of 2,200 facilities.

8

MR. GALVAN: This is the one.

9

THE COURT: That makes your client unique if that's

10 true.

11

MS. BUTTS: Well, I don't know how the other mail's

12 processed, but we have one person processing our mail in

13 order to keep the utmost amount of contraband out. I don't

14 know how those other jails are doing it. I don't know if

15 they have the 16 people processing the way that we used to

16 when we used to take off the mailing label and write it on

17 there. But because of problems we had in our jail, we

18 decided to choose a different way of doing it and consolidate

19 it to one person to keep out as much as possible. By having

20 one person, you have to look at your resources more

21 carefully.

22

So I can't speak to other jails and why they would

23 choose to take the mailing label off and write on it or if

24 they choose the allow the mailing label in. I just know in

25 our facility, we've determined that mailing labels are

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

40

1 dangerous, and they're not coming in. And so either we're

2 taking them off and writing it on there or we're returning it

3 to sender. RCCC has --

4

THE COURT: The First Amendment be damned.

5

MS. BUTTS: No, I don't think that's -- Why? You can

6 send in an envelope --

7

THE COURT: It just seems inconsistent to me that you

8 do it at RCCC -- not you, your client, does it at RCCC, yet

9 for economic reasons, you don't do it at the Main Jail. And

10 again, RCCC has a lot fewer inmates than the Main Jail. The

11 allocation of resources and using that as the reason to run

12 the risk of violating the First Amendment, even though you

13 say it's just correspondence, a lot of this correspondence

14 contains publications.

15

That seems to be a dangerous and risky policy to take.

16 That's the part I'm having a hard time wrapping my head

17 around, that at RCCC, all we do is rip off the label, and we

18 let it in.

19

MS. BUTTS: At RCCC, they take off the label and take

20 the time with the 9 to 12 people they have processing with

21 the less amount of mail.

22

THE COURT: Move four people to the Main Jail. Right?

23

MS. BUTTS: I mean I don't think that's how staffing

24 works. I'm pretty sure we can't decide how to move around

25 deputies in that sense. But that's not really the way it

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

41

1 works, and that's not the budget that is in place right now.

2 So I can't really speak to how the jail decides where to put

3 people in that sense.

4

THE COURT: Okay. So let's move forward. You're the

5 trial lawyer in this case, and the plaintiff puts on evidence

6 that every jail in the State of California main jail allows

7 mailing labels in other than the Sacramento County Main Jail.

8 57 out of 58 counties. And, by the way, ladies and

9 gentlemen, at their facility, RCCC, they also let in mailing

10 labels, or they take the time to rip them off.

11

How do you defend against that?

12

MS. BUTTS: I mean I understand the problem. I

13 understand what they're saying. I get it.

14

THE COURT: Okay.

15

MS. BUTTS: But I think the law isn't designed to

16 allow us to say I think there's a better way to do it, and

17 that's just not really what the Supreme Court has required us

18 to do. It's to look at was it a rational decision. Mailing

19 labels, a problem. How can we fix this problem? Well, we're

20 going to need to take them off, or we're going to need to

21 send them back. What resources do we have to do this? We

22 have one mail room officer. We have 1,200 or some odd pieces

23 of correspondence, letters, coming in every day which

24 potentially have mailing labels on them.

25

THE COURT: Whether the existence of easy and obvious

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

42

1 alternatives indicates that the regulation is an exaggerated

2 response.

3

MS. BUTTS: It's not easy for the Main Jail though.

4 You're talking about 1,200 pieces of correspondence.

5

THE COURT: Move people over.

6

MS. BUTTS: So we've decided that there's a better way

7 to do it, so that makes it not rational.

8

THE COURT: I'm moving away from prong number 1. I'm

9 looking at prong number 4. Existence of an easy and obvious

10 alternative. And again, if you want to tie that to is it

11 rational, I guess it would be more rational to me if it was

12 applied as to all facilities. It just would seem difficult

13 for me for the sheriff to justify, other than I've only got

14 one guy at the Main Jail and I've got eight guys at RCCC.

15 So, you know, in that case, the First Amendment at the Main

16 Jail has to suffer, whereas the First Amendment at RCCC

17 doesn't have to be impacted in any way.

18

MS. BUTTS: You keep saying the First Amendment as if

19 we don't allow mail. I mean it's not as if there aren't

20 other ways to send in the mail. I just don't -- by saying

21 please do it another way so that our resources aren't taken

22 to write the name on it, I just think that we're pushing the

23 First Amendment button a little far. We're not banning

24 information from coming in to inmates. We're not banning

25 their letters from coming in.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

43

1

We're asking you have resources to do it. You haven't

2 shown that you don't have the resources to do it. We're

3 showing we don't have the resources to do it. But now you're

4 saying well, move your resources around and find some. We

5 haven't shown that we can't do it, but we just think you

6 should do it differently.

7

THE COURT: We haven't gotten to the due process

8 argument yet either. But the fact that both written policies

9 don't at least provide for notification to the prisoners

10 that, by the way, we sent back all these letters --

11

MS. BUTTS: We don't have a prisoner in our case.

12

THE COURT: Right. You have the sender, the

13 publisher, which doesn't seem to make a difference under some

14 of these cases that it's the publisher who's bringing the

15 lawsuit. In fact, it was Judge Burrell and Judge Damrell's

16 case I think that involved just the publisher, not the

17 prisoners, in which the Ninth Circuit then overturned their

18 grant of summary judgment saying just because it's a

19 publication, not a prisoner, that that argument isn't going

20 to fly.

21

MS. BUTTS: As to what?

22

THE COURT: As to --

23

MS. BUTTS: There was no notification or due process

24 issue in that case.

25

THE COURT: The sheriff's policies don't provide for

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

44

1 notification to the inmate or the prisoner that his mail has

2 been returned.

3

MS. BUTTS: They do. Part of the policies state that

4 notice should be given to the inmate.

5

THE COURT: Well, "should be" I don't think satisfies

6 the due process standard.

7

MS. BUTTS: We don't have an inmate in our case. We

8 only have a publisher. And those cases, and the one that you

9 just cited from the Eastern District and from the Ninth

10 Circuit, did not have a due process claim in it. So the

11 holding regarding summary judgment in Hrdlicka isn't

12 applicable here.

13

THE COURT: Do you want to respond to that?

14

MR. GALVAN: I don't think your Honor was talking

15 about Hrdlicka, but I'm not sure, because I have to admit I

16 don't know which Judge Damrell and Judge Burrell case your

17 Honor was referring to. But I can respond to the due process

18 point more generally.

19

THE COURT: Go ahead. And I'll tell you the name of

20 the case.

21

MR. GALVAN: Two problems with the policy.

22

One, it doesn't provide due process directly to us.

23 We don't get notice and an opportunity to respond and to have

24 our response be addressed by someone other than the person

25 who rejected our material. And that's the basic Ninth

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

45

1 Circuit standard.

2

And two, we do have an interest in having our readers

3 get notice of when our material is held back, because that's

4 part of how we find out, because then the readers can write

5 to us and say I got notice that your material's not getting

6 in, you should do something about it.

7

And I think your Honor is correct that the cases,

8 whether they're brought by a publisher or not, recognize that

9 the notice has to run both to the sender and to the reader,

10 and it's the publisher's interest in both those notices

11 running.

12

THE COURT: It's the Hrdlicka case which involved

13 then-Sheriff McGinness.

14

MR. GALVAN: If I could say one other thing about

15 Hrdlicka. A point before we shifted to due process, counsel

16 said, well, we haven't shown that we couldn't use our

17 resources to accommodate their label policy. Well, the

18 Supreme Court of the United States denied cert in Hrdlicka

19 two weeks ago. And Hrdlicka squarely says that, in fact,

20 this particular jail, does not have the right under the First

21 Amendment to shift the cost to the publisher of its mail room

22 policies that aren't justified by Turner. And so it's no

23 answer, after Hrdlicka, to say we can run through all sorts

24 of hoops to comply with their policy. That's not the law.

25

MS. BUTTS: I would say that's not what that case

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

46

1 held. That case held that the jail hadn't done enough on

2 summary judgment to establish that it hadn't violated the

3 publisher's rights and that it needed to go further to a

4 trial. And anything about the cost shifting is really truly

5 just dicta and not really to the arguments in that case.

6

MR. GALVAN: Your Honor, it was holding, in the Ninth

7 Circuit in Hrdlicka, the sheriff said we don't have to let in

8 all this bulk mail because -- one of the reasons we shouldn't

9 have to let it in is because the publisher of that, of the

10 CJA, that publication, could have a whole different way of

11 doing it, could figure out who the readers are and address

12 things to them, and the Ninth Circuit clearly said that the

13 publisher had met its burden there to show that that would be

14 economically infeasible.

15

And the First Amendment doesn't allow the jail to

16 impose, I think it used the word economically impracticable,

17 requirements on a publisher that aren't satisfied by Turner.

18 I think it's squarely held in the case. What the procedural

19 posture was, I think, is not material. I think it's the law

20 in the Ninth Circuit.

21

MS. BUTTS: Well, there is a difference here. That

22 publisher had shown that it would be infeasible. This

23 publisher hasn't put on any evidence about the feasibility of

24 writing names on a mailing label. They've only put forward

25 evidence regarding sending their publication through a

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

47

1 printer regarding staples.

2

MR. GALVAN: If I may, your Honor, the Wright

3 declaration at paragraph 28 addresses the cost prohibitive

4 nature of individual labeling of envelopes.

5

THE COURT: But the Hrdlicka case, the language I

6 think we're all talking about, is as follows, talking

7 actually about the second Turner factor, alternative avenues

8 to exercise the right. Defendants argued in that case that

9 the publisher has alternative avenues to communicate with

10 inmates. The jail will distribute materials to inmates who

11 request it. There was a material question of fact whether as

12 a practical matter the plaintiffs could effectively reach

13 county jail inmates if they deliver only upon request, citing

14 the Morrison case. The court writes, "In Morrison, we held

15 that the second Turner factor weighed against the legitimacy

16 of a mail policy when restricted publications would be

17 delivered only if they were sent at a higher rate. Paying a

18 higher rate is not an alternative because the prisoner cannot

19 force a publisher who needs to use, and is entitled to use,

20 the standard rate to take additional costly steps to mail his

21 individual newsletter. Here, unlike our earlier cases, the

22 jails' policies do not require inmates to pay for, or for the

23 publisher to mail its issues at a higher postage rate.

24

"It is difficult to create a broad awareness among

25 inmates in jails where, unlike in prisons, populations turn

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

48

1 over quickly. It is true the publisher can advertise its

2 publication to inmates through the yellow pages or

3 television. But many inmates will have left the jail before

4 they can learn about the existence of," in this case it was

5 CJA, "request that it be sent to them, and then receive it.

6 Inmates typically want information about bail bonds and

7 attorneys as soon as they arrive at the jail. For those who

8 receive CJA only after a significant wait, the advertising in

9 CJA is of little or no use."

10

I think that's what you were referring to.

11

MR. GALVAN: Yes, your Honor.

12

THE COURT: Okay.

13

MS. BUTTS: That case didn't have anything to do with

14 bulk rate mail. It had to do with delivery drop-off and

15 unsolicited publications. It's a different issue than the

16 one we're dealing with right now.

17

THE COURT: It's interesting in this Hrdlicka case,

18 too, the court found that "The undisputed fact that CJA is

19 currently distributed in more than 60 counties throughout 13

20 states, including in 32 California County jails, suggests

21 that the response of the two jails in this case may be

22 exaggerated."

23

Okay. What did you want to say, Mr. Galvan, about the

24 due process argument?

25

MR. GALVAN: I believe I addressed it, your Honor.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

49

1 It's that the due process concern does run to both, and in

2 this case, runs both to the notice provided to the reader,

3 the inmate, and the notice provided to the sender, PLN. That

4 it is proper for this Court to require notice running both

5 ways regardless of the absence of an inmate plaintiff in this

6 case because PLN has an interest in its readers getting

7 notice as well. It's part of the way in which -- it's part

8 of the due process right recognized, from Procunier and

9 Thornburgh, and all way up to the Ninth Circuit cases.

10

That's all, your Honor.

11

THE COURT: Okay. Ms. Butts, anything further you

12 want to add that I haven't already asked of you?

13

MS. BUTTS: The cases state that notice should be

14 provided and an opportunity to be heard. Those things are

15 provided here to Prison Legal News. They've opted not to

16 take advantage of them except for filing a lawsuit. I think

17 they're being heard right now.

18

But as far as the pre-litigation aspects, those things

19 are in place for the publisher. They're the publisher.

20 That's the right they're asserting. It exists. I don't

21 think there's anything to enjoin as far as the publisher is

22 concerned here.

23

THE COURT: Again, your argument is that if I did

24 issue an injunction, the injunction shouldn't cover any

25 requirement that adequate written notice in an administrative

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

50

1 appeal process, that that also be given to prisoners since

2 your argument is there's no prisoner in this case, and they

3 have no standing to argue for injunctive relief on behalf of

4 a prisoner.

5

MS. BUTTS: Correct.

6

THE COURT: Mr. Galvan, your response to that again is

7 what? I mean I understand the due process argument as to

8 your client. But why does your client have standing and a

9 basis to argue for injunctive relief on a prisoner when I

10 don't have a complaint from a prisoner?

11

MR. GALVAN: We are not seeking any form of

12 third-party standing. We are not claiming to represent the

13 prisoners or enforce their rights.

14

THE COURT: Yeah, you are. Because in your proposed

15 order, you say you want me to order that defendants provide

16 adequate written notice and an administrative appeal process

17 to both prisoners and senders. You only represent the

18 sender.

19

MR. GALVAN: Because it's our right. It's our right

20 to have the notice run both ways. We're trying to reach the

21 sender. And when our material is blocked to the sender --

22

THE COURT: No, you're the sender.

23

MR. GALVAN: Right. I'm sorry, your Honor. We're the

24 sender trying to reach the reader.

25

THE COURT: Right.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

51

1

MR. GALVAN: And when our material is blocked to the

2 reader without due process, that violates our due process

3 rights as well as the reader's. In other words, there are

4 two primary rights violated, and they're held by different

5 parties.

6

THE COURT: But my concern is this language in your

7 proposed order to both prisoners and senders.

8

MR. GALVAN: Yes, your Honor.

9

THE COURT: You don't represent the prisoners.

10

MR. GALVAN: We don't, but we represent the sender.

11 And the sender's right is violated when notice is not

12 provided to the prisoner.

13

THE COURT: So I can require notice and an

14 administrative appeal process to the sender and strike the

15 language to prisoners. I don't have a basis for granting

16 injunctive relief for a prisoner when I don't have a prisoner

17 before me; right?

18

MR. GALVAN: But the injunctive relief is to benefit

19 PLN. If PLN benefits when its reader gets notice that its

20 material has been blocked.

21

THE COURT: It gets notice when it says returned to

22 sender and the sender gets it back; right?

23

MR. GALVAN: Yes, when we get the notice directly.

24 But then when our reader, when our customer gets the notice,

25 that's an interest of ours that's been recognized by the case

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

52

1 law as well.

2

When the person who we want to listen to our message

3 gets the notice that our message has been blocked, that

4 vindicates our First Amendment rights. It also vindicates

5 theirs, but we don't care about that here because they're not

6 a party here. But it vindicates our First Amendment rights.

7

THE COURT: How does providing an administrative

8 appeal process to the prisoner benefit your rights?

9

MR. GALVAN: When the prisoner gets notice, now the

10 prisoner is an advocate for the receipt of our message. And

11 that's part of I think the interest that's recognized in

12 Procunier and Thornburgh when it talks about --

13

THE COURT: I feel like we're going in circles,

14 though, because I don't have a prisoner in front of me who is

15 complaining. I only have you.

16

MR. GALVAN: I don't think you need one, because I'm

17 complaining about my reader not having gotten notice that my

18 paper was blocked. I'm complaining because it violates my

19 First Amendment rights.

20

THE COURT: Your client's First Amendment rights. I

21 get that. Hypothetically though. It's only hypothetical as

22 to a prisoner who is not before me.

23

MR. GALVAN: The prisoner is not before you, but I'm

24 before you, and I have a right for that reader to get notice.

25

So I'm not trying to --

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

53

1

THE COURT: But you can protect that right by

2 requiring the jail to -- I mean one of your arguments is the

3 notice already is inadequate.

4

MR. GALVAN: Certainly if I get notice and due

5 process, it certainly diminishes the injury of failing to

6 provide my reader notice, because now I can come in and

7 advocate. But I'm saying it doesn't eliminate that injury

8 entirely.

9

THE COURT: All right. Let me tell you where I'm at

10 on this. With the staples, I think it's almost been

11 conceded. And the argument really with respect to staples is

12 that really it's just moot; that I don't need to issue an

13 injunction. I disagree because of the cases that were cited

14 in the reply brief with respect to the staples, although it

15 appears to be a nonissue at this point. I think the

16 plaintiffs would be entitled to have injunctive relief; that

17 they have satisfied injunctive relief with respect to the

18 staples.

19

And I'm really just going to focus on the First

20 Amendment claim. I'm not going to get into the due process

21 or equal protection claims, and I don't have to in granting

22 injunctive relief. I just have to find that there's been a

23 likelihood of success on the merits, that the plaintiff would

24 suffer irreparable harm in the absence of the preliminary

25 injunction, the balance of equities would tip in the

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

54

1 plaintiff's favor, and that the injunction is in the public

2 interest.

3

With respect to the staples and applying the Turner

4 factors, I think it's clear that, and, again, focusing only

5 on the PLN publication, I don't think that the regulation

6 with respect to this publication is rationally related to the

7 government objective.

8

And obviously safety in jails and prisons is of utmost

9 importance. I recognize that. I have always said, both in

10 civil and criminal cases, judges should not be running

11 prisons or jails and that we should intervene only in the

12 most obvious cases. We're not correctional experts, I never

13 have claimed to be, and certainly a robe doesn't make me an

14 expert. And I've seen enough go on in jails and prisons to

15 recognize your clients' rights, Ms. Butts, to run the jails

16 as they see fit. But there's always some type of balance,

17 it's not black and white, when it comes to constitutional

18 rights.

19

Are there alternative avenues that remain open to

20 inmates to exercise the right? It's a factor that there's

21 some argument over, but it's not really the critical factor

22 in analyzing at least with respect to the staples. And

23 again, they're being removed now, and the inmates are getting

24 the publication.

25

The impact that accommodating the asserted right will

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

55

1 have on the other guards and prisoners and on the allocation

2 of prison resources. Again, that favors, based on the

3 evidence, the plaintiff.

4

And whether the existence of easy and obvious

5 alternatives indicates that the regulation is an exaggerated

6 response. With respect to these staples, I think, and this

7 publication only, I think it again favors the plaintiff.

8

And I keep saying "this publication" and "this

9 plaintiff" because I think the way you've drafted,

10 Mr. Galvan, this proposed order, it's overbroad. And I would

11 reword it to focus only on this publication and this issue.

12 I don't want to, and I will not, issue an injunction that

13 prohibits that jail from prohibiting into the jail or RCCC

14 publications that do contain larger staples, more dangerous

15 staples, staples that clearly would pose a danger. You've

16 got to give the sheriff, at least in my view, that

17 discretion. And I think the cases are clear. And under

18 different facts and different circumstances, I don't think

19 the sheriff would have a difficult time showing that there

20 was some rational relationship.

21

Your injunction, in effect, as written, would cover

22 all staples, and I'm certainly not going to issue an

23 injunction that covers and prohibits the sheriff from simply

24 returning a publication that has a staple or staples that

25 clearly would pose a danger. I'm only concerned and will

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

56

1 only remain concerned about PLN's publication.

2

So I'm going to grant the preliminary injunction,

3 finding that you've satisfied the requirements for a

4 preliminary injunction and finding that it's not moot. That

5 the case law does instruct the Court that, despite the change

6 in policy, there still has to be some type of written order

7 that that policy should continue. And obviously if then the

8 policy is violated, you've got a basis to come back into

9 court, and I can easily intervene.

10

So I would change the language of the proposed order

11 and simply limit it to PLN staples.

12

Go ahead, Ms. Butts.

13

MS. BUTTS: I feel like we maybe skipped past a little

14 bit of the reason for keeping staples out. We talked a lot

15 about the change in the practice and allowing them in now.

16 But to succeed on the merits of their case, they have to

17 prove that the decision to ban staples in the jail or to

18 change the practice to send them back was not rationally

19 related to a legitimate penological objective. And we didn't

20 really get into the staples used in their magazine are a

21 problem in jails and are dangerous in the sense -- I know

22 there's some --

23

THE COURT: That's where we would disagree. I don't

24 find their staples -- and I'm limiting it to PLN. I don't

25 find their staples to be --

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

57

1

MS. BUTTS: Well, what type of staples are those? I'm

2 just not sure what gauge of metal we're discussing. I want

3 to know --

4

THE COURT: That would be up to the sheriff to

5 convince me. I'm not convinced based on this evidence,

6 because none of the evidence that you submitted focused on

7 their publication and their staples, which is all I'm

8 concerned about. I have in front of me now the publication.

9 I have in front of me their staples. They are flimsy. They

10 are small. I don't have any evidence from the sheriff that

11 their staples pose the danger that the policy, this broad

12 policy involving staples in general, is rationally related to

13 a legitimate concern about PLN staples. And when I have to

14 balance that against their right under the First Amendment,

15 the sheriff can't win this one.

16

MS. BUTTS: But aren't they just paper staples we're

17 talking about, which have been shown to be used in tattoo

18 rigs, and tattoos are a problem in jails? I mean they're

19 paper staples. They're not specially made staples for Prison

20 Legal News magazine, unless there's something that I missed

21 in the evidence.

22

They're paper staples; correct? Paper staples are a

23 problem. And I just want to know when I go back to my client

24 do I need to tell them from here on out, we're going to need

25 to start specifying the gauge of metal when you find it in a

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

58

1 cell.

2

THE COURT: You might have to. To convince me that

3 the infringement on the First Amendment right is rationally

4 related to a legitimate and neutral government objective and

5 that there's no easy and obvious alternative, your client

6 might have to.

7

But under the facts of this case as presently before

8 the Court, I'm not convinced. And given the burden of proof

9 in issuing this injunction, I am convinced that they've met

10 their burden and that, at least at this stage, your client

11 hasn't satisfied the Turner standards such that the

12 injunction should be denied.

13

So the simple answer is yes, he's going to have to do

14 more, especially when it deals with a publication.

15

Now, obviously he knows the response because he's

16 responded by saying let's just remove the staples. Let's not

17 make a big deal out of this. I'm just going to remove the

18 staples. Sure. If the next publication comes in and it's a

19 different staple and he wants to take a stand and draw a line

20 in the sand, I understand that. That's why he's got to have

21 some discretion.

22

But I didn't see any evidence at all that these

23 staples, because I have an expert declaration from someone

24 else who says it's absolutely irrational, it's absolutely not

25 legitimate based on my 25-plus years of experience in running

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

59

1 high-security federal prisons and other prisons. And that

2 combined with this other evidence that no other -- at least I

3 didn't see any other jail or correctional facility that does

4 what you do. I mean it's being delivered to prisons, CDCR

5 prisons.

6

Now, maybe this sheriff thinks that he knows better,

7 but, you know, is that an exaggerated response? Well, based

8 on the evidence I have, the only conclusion I can reach is

9 yes. If you're going to let -- I mean, I don't know, does it

10 go into San Quentin?

11

MR. GALVAN: Yes, your Honor, and death row.

12

THE COURT: I don't know how you can defend that. And

13 it wasn't specifically addressed. You know, that's the

14 difficult question for your client to have to answer. Why

15 does the County of Sacramento Main Jail know better or want

16 to impose this exaggerated response to this specific

17 publication? That's where the argument fails in my mind,

18 particularly when you're dealing with a First Amendment

19 right. If your client was sitting there, that's what I would

20 tell him.

21

And I understand. I mean the response is well, what

22 do you want me to do when the next one comes along? Well, if

23 you want to draw a line in the sand, you know what you've got

24 to show. Show me that other jails are doing the same thing

25 as you. Show me that CDCR is doing the same thing as you.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

60

1 Those are types of facts and types of evidence that obviously

2 I would seriously consider. I agree you don't have to show a

3 specific incident. It would be helpful if you had a specific

4 incident where someone used a PLN staple and someone used it

5 to tattoo themselves or stab someone.

6

MS. BUTTS: Their expert says you can make a tattoo

7 rig with the type of staple in there. He says our evidence

8 didn't show it. He says I didn't see it in those pictures,

9 but he says you could make it that way.

10

THE COURT: I mean this case is going to continue.

11 They're going to probably want a permanent injunction.

12 That's the type of evidence your client is going to have to

13 consider presenting to the Court. This is only a preliminary

14 injunction. It can be dissolved.

15

But look, it's going to be difficult given the issues

16 involved in this case, particularly when you're dealing with

17 constitutional rights, to overcome the law which favors, at

18 least in this case and this type of specific fact situation,

19 favors the plaintiff. I mean that's the reality of this case

20 at this point. It's not going to be easy.

21

And again, you know, I keep coming back to it, I don't

22 want to call it a concession, but, you know, he just does it.

23 It's, what, a couple newspapers a week. I know he wants to

24 draw a line in the sand, and it's really hard to figure out

25 where that line should be drawn. But in this case and under

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

61

1 these specific facts, he obviously has figured out let's just

2 remove the staples. Let's just make it easier. And who

3 knows. If this case goes on and two years from now, that

4 policy continues to be followed, one of your arguments may be

5 why do I need a permanent injunction at this point? We're

6 not going to change our policy. Now, I know Mr. Galvan will

7 argue against that. But that, again, is some evidence that

8 maybe there isn't a need for a permanent injunction in this

9 case. But that's all down the road. So I would limit the

10 injunctive relief.

11

As to the mailing labels, I think that's a closer

12 question, Ms. Butts. I think your arguments on the mailing

13 labels are tougher for me. And you can tell from my

14 questions that it's a different type of animal. I'm not sure

15 that it's necessarily as exaggerated or I could make a

16 finding that it's as exaggerated of a response with respect

17 to the mailing labels. And this is, I think, a much closer

18 issue.

19

I'm having a hard time, as you could tell from my

20 questions, figuring out how it's rational when one facility

21 in the same county just removes mailing labels and the other

22 facility, the Main Jail, doesn't. I know it comes down to

23 allocation of resources and the like.

24

And then also, again, looking at what other facilities

25 do, including CDCR facilities, I think the plaintiffs with

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

62

1 respect to mailing labels have again presented enough

2 evidence to convince me with regard to the mailing label ban

3 and the policy as presently implemented at the Main Jail.

4 Because again, RCCC doesn't seem to have a problem with it.

5 And I don't know if you'd want RCCC included, but I don't

6 think, Mr. Galvan, that I'm convinced that RCCC is a problem,

7 that the policy still would violate the First Amendment

8 rights of the plaintiffs, that the regulation as currently

9 and policies as currently implemented. And, in particular,

10 the declaration of the plaintiff's expert that it's at least

11 rationally related to a legitimate penological interest or

12 that it's not an exaggerated response, applying the Turner

13 factors.

14

I'm not convinced, at least at the Main Jail, that

15 requiring jail staff to remove the mailing labels or the

16 stamps that are currently being used would be a burden on the

17 Main Jail. That, you know, this fourth factor, do easy and

18 obvious alternatives exist indicating that the regulation is

19 an exaggerated response, again, that factor, in particular, I

20 find in favor of the plaintiffs.

21

As argued in the papers, the additional time the jail

22 staff would be required to remove the mailing labels, at

23 least in the Court's view, is likely to be a minimal burden

24 based on the evidence before me rather than just writing

25 "return to sender" and sending it back. The limited effect

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

63

1 on staff does not justify restrictions on access to the

2 publications or the correspondence that are in these

3 envelopes.

4

I'm not disregarding completely your clients' views

5 with respect to envelopes. It seems somewhat inconsistent

6 again that RCCC doesn't have a problem with Prison Legal News

7 correspondence and mailing labels but the Main Jail does.

8 And that, again, that may be due to simply volume. But when

9 you're dealing with First Amendment rights, the First

10 Amendment is obviously an important right that overcomes the

11 arguments in this specific case.

12

I'd also note we talked about specific instances or

13 having to show specific instances of incidents. And while,

14 as the defendants have argued, it's not required as a matter

15 of law, as Mr. Wright argues, it is somewhat persuasive that

16 in this case the defendants have not shown specific incidents

17 of mailing labels that caused a security risk in the 21-year

18 history of PLN, at least 21 years of PLN sending in both

19 publications and other types of correspondence into the

20 correctional facilities.

21

So I do find that with respect to the mailing label

22 policy, just like the staples, it's not rationally related to

23 a legitimate penological interest, at least I don't think

24 I've been convinced. I think the plaintiffs are likely to

25 succeed. There's a likelihood of success on the merits with

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

64

1 respect to this issue.

2

The defendants have made strong general statements

3 about the ways that the ban might serve penological purposes,

4 but that's in contrast to weaker and, to some degree,

5 contradictory specific evidence that they've offered to

6 support those statements.

7

Because I have found that the regulation is not

8 rationally related to the legitimate penological objective, I

9 actually do not need to consider the other Turner factors.

10 That's Ashker vs. California Department of Corrections. I

11 don't need to consider the other three factors. But again, I

12 think in considering those other three factors, those do also

13 weigh in favor of the plaintiffs on the First Amendment

14 claim.

15

Again, I'm not going to address or get to the due

16 process claim or the equal protection claim. I don't need to

17 reach that in granting the motion for preliminary injunction.

18

On the other factors with respect to the preliminary

19 injunction, irreparable harm, balance of equities, and in the

20 public interest, again, I think plaintiffs have met their

21 burden to show that the injunction is appropriate at this

22 time.

23

And then, finally, there's the issue of bond. As the

24 plaintiffs have argued, district courts do have discretion to

25 determine the amount of bond accompanying a preliminary

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

65

1 injunction. This would include authority to set no bond or a

2 nominal bond. Plaintiffs have argued that the bond

3 requirement should be waived because plaintiff is a small

4 nonprofit organization that would be unable to post anything

5 more than a nominal bond. Defendants did not really oppose

6 this argument. And given those factors and the limited scope

7 of the preliminary injunction, I am going to waive any bond

8 requirement.

9

In terms of the form of the injunctive order, as I've

10 said, as to whether the sheriff wants to continue to, at

11 least at the Main Jail, simply return correspondence that has

12 mailing labels that doesn't involve PLN, that's up to the

13 sheriff. That may obviously invite other lawsuits. That's

14 between you and your client.

15

This injunction is only going to apply to PLN. That's

16 all I have before me. I'm not going to issue a broad order.

17 I don't know if your client would prefer a broad order or if

18 you would prefer a broad order, but at this point, I only

19 decide what's before me.

20

In part, as I said, it comes down to I don't like to

21 tell sheriffs, and I will not tell sheriffs, how to run their

22 jails, unless a specific dispute is presented to me. It may

23 seem like a funny position to take, but it comes from years

24 of experience in dealing with these types of cases and in

25 dealing with sheriff's departments, both as a state court

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

66

1 judge and as a federal judge.

2

Look, I mean both of you know, I was a Sacramento

3 County Superior Court judge. I know that Main Jail, and I

4 know RCCC. And I respect the role that the sheriff has to

5 play in protecting both correctional officers and inmates in

6 those facilities.

7

I'm only going to decide the dispute that's before me.

8 So you are not going to get the preliminary injunction that

9 you've drafted, but you are at least going to be able to get

10 your client's publications and correspondence with mailing

11 labels in.

12

Hopefully, this will encourage further discussions

13 between the two of you as to -- and I think, in part, it

14 would help to know exactly how much correspondence is going

15 into the Main Jail. Because one of the things I don't really

16 know, and I didn't have numbers, and may ultimately cut

17 against you and your clients, Mr. Galvan, is if it is only a

18 hundred or 150 pieces of correspondence, I may then consider

19 why isn't it easier for your client, if they really want to

20 get these publications in, why isn't it easier for you simply

21 to have your client have someone address an envelope?

22

So I obviously would take a look at that as this case

23 proceeds and see where we're at as to who might better bear

24 that burden.

25

It's an interesting case to me. Legally it's

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

67

1 interesting because it does involve constitutional issues.

2 From a practical point of view, I sometimes shake my head

3 because we're arguing over staples and mailing labels and how

4 much are we really talking about. It can't be more than

5 1 percent of what attorneys are being paid in these types of

6 cases.

7

And it's interesting to me, and I don't know whether

8 there was any type of correspondence or discussions before

9 your client actually decided to file a lawsuit. It obviously

10 is not relevant and doesn't matter. But from, again, a

11 practical point of view, litigation is so expensive that I

12 would think you could get two people in a room and figure

13 this out and save everybody a whole lot of money. Sometimes

14 people don't want to do that, and they do want to know where

15 the line should be drawn. And maybe your client and maybe

16 the sheriff needs to know that. I can understand that.

17

But when you have somebody in a black robe trying to

18 decide these issues as opposed to two parties that have

19 direct interest in it, sometimes that makes very little sense

20 to me. And, quite frankly, I wouldn't be a settlement judge

21 anyway. I'm just going to be sitting up here as a trial

22 judge.

23

I mean both your clients should also know, since we're

24 the most impacted court in the country, this thing is going

25 to drag on. You're not going to get an early trial date.

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

68

1 And as to how much money they want to spend on this is really

2 up to your clients. You've got two very good lawyers. The

3 briefs were terrific. It's a really interesting case. But

4 I'm also well aware of the fact that as much as I really like

5 this case and the issues involved, it's going to cost an

6 awful lot for both of your clients, particularly when you're

7 not dealing with, I don't think, a whole lot of mail getting

8 into that Main Jail.

9

All that being said, I'm going to grant the motion.

10 I'll draft the preliminary injunction order. It will not

11 look exactly like the order that you proposed. It will

12 contain some similar language, but it will be, I think, a

13 little more limited than the language that you've proposed.

14

Okay. Any questions?

15

MR. GALVAN: Just one on the staples definition, your

16 Honor.

17

THE COURT: Okay.

18

MR. GALVAN: You had mentioned when you were going

19 through the staples, you've got to leave the sheriffs the

20 ability to deal with those big industrial staples. And in

21 our proposed order at page 2, lines 12 through 14 --

22

THE COURT: I liked your definition.

23

MR. GALVAN: Okay.

24

THE COURT: Light-duty small -- small may be difficult

25 for the sheriff to figure out. But light-duty small wire

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

69

1 fasteners commonly used to attach a few sheets of paper and

2 used by the plaintiff to bind the sheets of its monthly

3 publications.

4

By the way, just as an aside, one of the things

5 that -- and all of you know that judges have brilliant

6 lawyers working for them behind the scenes. And one of my

7 brilliant lawyers, Mr. Galvan, did find an advertisement for

8 a nonbinding type of staple. So it's not a staple anymore.

9 They've come up with something where you can staple

10 publications -- I had it here, but I can't find it right

11 now -- without an actual staple going into the publication.

12 Ms. Butts smiled. But, of course, the caveat is you can only

13 staple, at least right now with these nonmetal staplers, no

14 more than five pages. So if you limited your publication to

15 five pages, that would also solve this problem too. I'd be

16 happy to send you a copy of the advertisement, but I'm sure

17 your clients can find it. It's something to consider in your

18 continued discussions as to how maybe to resolve this case.

19

Okay. I'll get this order out as soon as I can, and

20 then we'll proceed down the road unless the two of you get

21 your clients in a room and resolve this.

22

All right. Thank you, both.

23

MR. GALVAN: Thank you, your Honor.

24

MS. BUTTS: Thank you.

25

(Proceedings concluded at 11:57 a.m.)

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

70

1

I certify that the foregoing is a correct transcript

2 from the record of proceedings in the above-entitled matter.

3

4

5

/s/ Kelly O'Halloran

6

KELLY O'HALLORAN, CSR #6660

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

KELLY O'HALLORAN, OFFICIAL COURT REPORTER, USDC -- (916) 448-2712

 
 PRESS RELEASE
Prison Legal News – For Immediate Release
March 8, 2012
Federal Court Enters Preliminary Injunction Against Sacramento County in Publisher’s Jail Censorship Suit
Sacramento, CA – Today, U.S. District Court Judge John A. Mendez entered a preliminary injunction against the County of Sacramento in a lawsuit that alleges unconstitutional censorship of publications sent to prisoners at the county’s jail.
Prison Legal News, a non-profit monthly publication that reports on criminal justice-related issues and a project of the Human Rights Defense Center (HRDC), filed the lawsuit in federal court in April 2011. According to the complaint, Sacramento County jail officials refused to deliver PLN’s monthly publication to prisoners and failed to notify PLN of that censorship in violation of the First and Fourteenth Amendments to the U.S. Constitution.
The jail claimed that PLN’s publication was rejected because it contained small staples (used to bind the magazine together) and included mailing labels or stickers. Jail officials said the staples and labels presented a security risk.
In his order granting PLN’s motion for a preliminary injunction, Judge Mendez rejected that rationale, finding the jail’s censorship of publications sent to prisoners was “an exaggerated response to any security concerns posed by PLN.”
The court further held that PLN “has demonstrated a likelihood of success on the merits of its First Amendment claim,” and that the defendants’ “policies and practices including refusing to deliver PLN publications and mailings to prisoners because they contained staples and/or a mailing label are not supported by a legitimate penological interest and do not leave open alternative means for PLN to exercise its First Amendment rights.”
“The taxpayers of Sacramento County should be very concerned about their elected officials wasting their money defending violations of constitutional rights,” said attorney Ernest Galvan, who represented PLN at the preliminary injunction hearing. “The alleged justification for these acts of censorship is literally paper thin.”
Judge Mendez noted the jail could remove the staples and labels from PLN’s publications, so long as the publications were delivered to prisoners. PLN recently prevailed in another censorship lawsuit involving a county jail in South Carolina, which had also cited staples as justification for refusing to deliver PLN’s publications. That case settled in January 2012 with the county agreeing to make policy changes and paying $100,000 in damages and $499,900 in PLN’s attorney fees and costs.

“Jail officials, including those in Sacramento County, cannot use pretexts such as staples or mailing labels to justify censorship of publications in violation of the First Amendment,” said PLN editor Paul Wright. “This is particularly true when the jail allows other publications with staples to be delivered to prisoners, but not PLN – which evidences unconstitutional contentbased censorship.”
PLN’s lawsuit against Sacramento County, which remains ongoing, also seeks declaratory relief, compensatory and punitive damages, attorney fees and litigation costs.
The case is Prison Legal News v. County of Sacramento, et al., U.S. District Court for the Eastern District of California, Case No. 2:11-cv-00907. PLN is represented by attorneys Sanford Jay Rosen, Ernest Galvan, Kenneth Walczak and Blake Thompson of Rosen, Bien & Galvan, LLP, a San Francisco law firm, as well as HRDC chief counsel Lance Weber.
__________________________
Prison Legal News (PLN) is a project of the Human Rights Defense Center. HRDC, founded in 1990 with offices in Brattleboro, Vermont, is a non-profit organization dedicated to protecting human rights in U.S. detention facilities. HRDC publishes PLN, a monthly magazine that includes reports, reviews and analysis of court rulings and news related to prisoners’ rights and criminal justice issues. PLN has approximately 7,000 subscribers nationwide and operates a website (www.prisonlegalnews.org) that includes a comprehensive database of prison and jailrelated articles, news reports, court rulings, verdicts, settlements and related documents.
For further information, please contact:
Paul Wright, Editor Prison Legal News P.O. Box 2420 Brattleboro, VT 05303 (802) 257-1342 pwright@prisonlegalnews.org
Ernest Galvan Rosen, Bien & Galvan LLP 315 Montgomery Street San Francisco, CA 94104 (415) 433-6830 egalvan@rbg-law.com

 
 Case: 2:11-cv-00907-JAM-DAD As of: 09/13/2012 09:41 AM PDT 1 of 6
CIVIL,CLOSED
U.S. District Court Eastern District of California − Live System (Sacramento) CIVIL DOCKET FOR CASE #: 2:11−cv−00907−JAM−DAD

Prison Legal News v. Jones et al Assigned to: Judge John A. Mendez Referred to: Magistrate Judge Dale A. Drozd Cause: 42:1983 Civil Rights Act
Plaintiff
Prison Legal News

Date Filed: 04/05/2011 Date Terminated: 08/08/2012 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question
represented by Ernest Galvan Rosen Bien Galvan &Grunfeld LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 x223 Fax: (415) 433−7104 Email: egalvan@rbgg.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Blake Thompson Rosen, Bien &Galvan LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 Fax: (415) 433−7104 Email: bthompson@rbg−law.com ATTORNEY TO BE NOTICED
Kenneth M. Walczak Rosen Bien &Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 415−433−6830 Fax: 415−433−7104 Email: kwalczak@rbgg.com ATTORNEY TO BE NOTICED
Lance T Weber , PHV HUMAN RIGHTS DEFENSE CENTER PO 2420 Brattleboro, VT 05303 802−257−1342 Fax: 866−228−1681 Email: lweber@humanrightsdefensecenter.org PRO HAC VICE ATTORNEY TO BE NOTICED
Sanford Jay Rosen Rosen Bien &Galvan, LLP 315 Montgomery Street 10th Floor San Francisco, CA 94104 (415) 433−6830 x206 Fax: (415) 433−7104 Email: srosen@rbgg.com ATTORNEY TO BE NOTICED

Case: 2:11-cv-00907-JAM-DAD As of: 09/13/2012 09:41 AM PDT 2 of 6

V. Defendant Scott R. Jones
Defendant County of Sacramento

represented by John A. Lavra Longyear, Odea &Lavra, LLP 3620 American River Drive Suite 230 Sacramento, CA 95864 (916) 974−8500 x103 Fax: (916) 974−8510 Email: lavra@longyearlaw.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Lynn Butts Longyear O'Dea and Lavra 3620 American River Drive Suite 230 Sacramento, CA 95864−5923 916−974−8500 Fax: 916−974−8510 Email: amanda@longyearlaw.com TERMINATED: 04/18/2012
represented by John A. Lavra (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
Amanda Lynn Butts (See above for address) TERMINATED: 04/18/2012

Date Filed 04/05/2011 04/05/2011 04/05/2011
04/05/2011 04/11/2011 04/11/2011 04/22/2011 04/25/2011

# Docket Text
1 COMPLAINT against County of Sacramento, Scott R. Jones by Prison Legal News. Attorney Galvan, Ernest added. (Attachments: # 1 Civil Cover Sheet)(Galvan, Ernest) (Entered: 04/05/2011)
RECEIPT number #CAE200034582 $350.00 by Robert B Thompson on 4/5/2011. (Becknal, R) (Entered: 04/05/2011)
3 SUMMONS ISSUED as to *County of Sacramento, Scott R. Jones* with answer to complaint due within *21* days. Attorney *Ernest Galvan* *Rosen Bien &Galvan, LLP* *315 Montgomery Street, 10th Floor* *San Francisco, CA 94104*. (Becknal, R) (Entered: 04/05/2011)
4 CIVIL NEW CASE DOCUMENTS ISSUED; (Attachments: # 1 Consent Form, # 2 Order re Page Limits, # 3 VDRP Form) (Becknal, R) (Entered: 04/05/2011)
5 SUMMONS RETURNED EXECUTED: County of Sacramento served on 4/6/2011. (Thompson, Blake) Modified on 4/12/2011 (Marciel, M). (Entered: 04/11/2011)
6 SUMMONS RETURNED EXECUTED: Scott R. Jones served on 4/6/2011. (Thompson, Blake) Modified on 4/12/2011 (Marciel, M). (Entered: 04/11/2011)
7 DECLINE to PROCEED BEFORE US MAGISTRATE JUDGE by Prison Legal News. Attorney Thompson, Blake added. (Thompson, Blake) (Entered: 04/22/2011)
8 STATEMENT of Corporate Disclosure under FRCP 7.1 by Plaintiff Prison Legal News. (Thompson, Blake) (Entered: 04/25/2011)

Case: 2:11-cv-00907-JAM-DAD As of: 09/13/2012 09:41 AM PDT 3 of 6

04/25/2011 05/05/2011 05/05/2011 05/06/2011 05/20/2011 05/23/2011
06/02/2011 06/02/2011 07/05/2011 07/06/2011
07/27/2011 07/27/2011 08/22/2011 08/24/2011 01/25/2012
01/25/2012 01/25/2012 01/25/2012 01/25/2012

9 CERTIFICATE of SERVICE by Prison Legal News re 7 Decline of Jurisdiction of US Magistrate Judge, 8 Statement. (Thompson, Blake) (Entered: 04/25/2011)
10 PRO HAC VICE APPLICATION and PROPOSED ORDER submitted by Prison Legal News for attorney Lance T. Weber to appear Pro Hac Vice. (Thompson, Blake) (Entered: 05/05/2011)
RECEIPT number #CAE200035366 $180.00 fbo Lance T Weber by Robert B Thompson on 5/5/2011. (Becknal, R) (Entered: 05/05/2011)
12 PRO HAC VICE ORDER signed by Judge John A. Mendez on 5/5/11. Added attorney Lance T Weber, PHV for Prison Legal News. (Duong, D) (Entered: 05/06/2011)
13 STIPULATION and PROPOSED ORDER for TO EXTEND TIME by County of Sacramento, Scott R. Jones. Attorney Butts, Amanda Lynn added. (Butts, Amanda) (Entered: 05/20/2011)
14 STIPULATION and ORDER 13 signed by Judge John A. Mendez on 5/23/11, ORDERING that defendants County of Sacramento and Scott R. Jones shall file an answer to plaintiff's complaint on or before 6/2/11. The parties shall submit a joint status report on or before 7/5/11. (Kastilahn, A) (Entered: 05/23/2011)
15 ANSWER to 1 Complaint with Jury Demand by Scott R. Jones.(Butts, Amanda) (Entered: 06/02/2011)
16 ANSWER to 1 Complaint with Jury Demand by County of Sacramento.(Butts, Amanda) (Entered: 06/02/2011)
17 JOINT STATUS REPORT by Prison Legal News. (Thompson, Blake) (Entered: 07/05/2011)
18 STATUS (Pre−Trial) SCHEDULING ORDER signed by Judge John A. Mendez on 7/5/11; Discovery due by 4/20/2012; Designation of Expert Witnesses due by 3/23/2012; Dispositive Motions filed by 6/13/2012; Final Pretrial Conference set for 8/22/2012 at 04:00 PM and Jury Trial set for 10/1/2012 at 09:00 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Matson, R) (Entered: 07/06/2011)
19 [DISREGARD − FILED IN ERROR] DESIGNATION/DISCLOSURE of EXPERT WITNESS by County of Sacramento, Scott R. Jones. (Butts, Amanda) Modified on 7/27/2011 (Benson, A.). (Entered: 07/27/2011)
CLERK'S NOTICE of DOCKET CORRECTION re 19 Designation/Disclosure of Expert Witness was filed in error; DISREGARD. (Benson, A.) (Entered: 07/27/2011)
20 STIPULATION and PROPOSED ORDER for Protective Order by County of Sacramento, Scott R. Jones. (Butts, Amanda) (Entered: 08/22/2011)
21 STIPULATED PROTECTIVE ORDER signed by Magistrate Judge Dale A. Drozd on 8/23/2011. (Duong, D) (Entered: 08/24/2011)
22 MOTION for PRELIMINARY INJUNCTION by Prison Legal News. Attorney Walczak, Kenneth M. added. Motion Hearing set for 2/22/2012 at 09:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez. (Walczak, Kenneth) (Entered: 01/25/2012)
23 MEMORANDUM by Prison Legal News in SUPPORT of 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) (Entered: 01/25/2012)
24 PROPOSED ORDER re 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) Modified on 1/26/2012 (Kaminski, H). (Entered: 01/25/2012)
25 REQUEST for JUDICIAL NOTICE by Prison Legal News in re 22 Motion for Preliminary Injunction. (Walczak, Kenneth) (Entered: 01/25/2012)
26 DECLARATION of John L. Clark in SUPPORT OF 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) (Entered: 01/25/2012)

Case: 2:11-cv-00907-JAM-DAD As of: 09/13/2012 09:41 AM PDT 4 of 6

01/25/2012 01/25/2012 01/25/2012 01/25/2012
01/25/2012 01/26/2012
01/26/2012
02/01/2012 02/01/2012
02/15/2012 02/15/2012 02/15/2012
02/15/2012 02/16/2012

27 DECLARATION of Mark Mitchell in SUPPORT OF 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) (Entered: 01/25/2012)
28 DECLARATION of Christopher W. Koppe in SUPPORT OF 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) (Entered: 01/25/2012)
29 DECLARATION of Gary Vue in SUPPORT OF 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) (Entered: 01/25/2012)
30 DECLARATION of Kenneth M. Walczak in SUPPORT OF 22 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A, # 2 Exhibit B part 1, # 3 Exhibit B part 2, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F part 1, # 8 Exhibit F part 2, # 9 Exhibit F part 3, # 10 Exhibit F part 4, # 11 Exhibit F part 5, # 12 Exhibit F part 6, # 13 Exhibit F part 7, # 14 Exhibit G, # 15 Exhibit H, # 16 Exhibit I, # 17 Exhibit J, # 18 Exhibit K, # 19 Exhibit L, # 20 Exhibit M, # 21 Exhibit N)(Walczak, Kenneth) (Entered: 01/25/2012)
31 DECLARATION of Paul Wright in SUPPORT OF 22 MOTION for PRELIMINARY INJUNCTION. (Attachments: # 1 Exhibit A part 1, # 2 Exhibit A part 2, # 3 Exhibit B, # 4 Exhibit C, # 5 Exhibit D, # 6 Exhibit E, # 7 Exhibit F, # 8 Exhibit G, # 9 Exhibit H, # 10 Exhibit I)(Walczak, Kenneth) (Entered: 01/25/2012)
32 REQUEST for Withdrawal of Exhibit Inadvertently Filed on the Public Docket and Substitution of Amended Declaration; Notice of Request and Request to Seal Document by Prison Legal News re 30 Declaration. (Attachments: # 1 Proposed Order)(Walczak, Kenneth) Modified on 1/27/2012 (Kaminski, H). (Entered: 01/26/2012)
33 ORDER signed by Judge John A. Mendez on 1/26/12 GRANTING 32 Request STRIKING 30 Declaration of Kenneth M. Walczak and ACCEPTS for filing the Amended Declaration of Kenneth M. Walczak. Exhibit H to the Amended Declaration of Kenneth M. Walczak is ACCEPTED for filing UNDER SEAL, subject to the provisions of the Stipulated Protected Order entered on 8/24/11. (Meuleman, A) Modified on 1/26/2012 (Meuleman, A). (Entered: 01/26/2012)
34 STIPULATION and PROPOSED ORDER for Modification of Hearing on Plaintiff's 22 Motion for Preliminary Injunction. Attorney Lavra, John A. added. (Lavra, John) Modified on 2/3/2012 (Kastilahn, A). (Entered: 02/01/2012)
35 STIPULATION and ORDER signed by Judge John A. Mendez on 2/1/2012 ORDERING 22 Motion Hearing on Preliminary Injunction Reset for 3/7/2012 at 09:30 AM in Courtroom 6 (JAM) before Judge John A. Mendez. Defendants Responses due by 2/15/2012. Plaintiff's will file and serve any reply by 2/29/2012. (Reader, L) (Entered: 02/01/2012)
36 NOTICE of Request to Seal Document(s) pursuant to L.R. 141 by County of Sacramento, Scott R. Jones. (Lavra, John) (Entered: 02/15/2012)
37 PROPOSED ORDER re Request to Seal Documents by Defendants' County of Sacramento and Scott R. Jones re 36 Notice of Request to Seal Document(s) by County of Sacramento, Scott R. Jones. (Lavra, John) (Entered: 02/15/2012)
38 OPPOSITION to 22 Motion for Preliminary Judgment by County of Sacramento, Scott R. Jones. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7 Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Exhibit 14, # 15 Declaration Amanda L. Butts, # 16 Declaration John A. Lavra, # 17 Declaration Dan Morrissey, # 18 Declaration Jesse Brucker, # 19 Declaration Darin Griem, # 20 Declaration James Lewis) (Butts, Amanda) Modified on 2/16/2012 (Michel, G). (Entered: 02/15/2012)
39 REQUEST for JUDICIAL NOTICE in re 38 Opposition to 22 Motion for Preliminary Injunction by County of Sacramento, Scott R. Jones. (Butts, Amanda) Modified on 2/16/2012 (Michel, G). (Entered: 02/15/2012)
40 ORDER signed by Judge John A. Mendez on 2/16/2012 ORDERING that Exhibit 4 to the Defendants' Opposition to the Preliminary Injunction is accepted for filing under seal, subject to provisions of the 21 stipulated protective order of 8/24/2011.

Case: 2:11-cv-00907-JAM-DAD As of: 09/13/2012 09:41 AM PDT 5 of 6

02/16/2012 02/29/2012 02/29/2012 02/29/2012 02/29/2012 02/29/2012 03/06/2012 03/07/2012
03/08/2012 03/13/2012 03/14/2012 03/22/2012
03/28/2012
04/11/2012 04/12/2012

(Zignago, K.) (Entered: 02/16/2012)
41 SEALED EVENT. (Zignago, K.) (Entered: 02/16/2012)
42 OBJECTIONS by Plaintiff Prison Legal News to 38 Opposition to Motion,,. (Walczak, Kenneth) (Entered: 02/29/2012)
43 REPLY by Prison Legal News re 38 Opposition to Motion,,. (Walczak, Kenneth) (Entered: 02/29/2012)
44 DECLARATION of Kenneth M. Walczak in re 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) (Entered: 02/29/2012)
45 DECLARATION of Paul Wright in re 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) (Entered: 02/29/2012)
46 DECLARATION of John L. Clark in re 22 MOTION for PRELIMINARY INJUNCTION. (Walczak, Kenneth) (Entered: 02/29/2012)
47 DECLARATION of Lance Weber in SUPPORT OF 22 MOTION for PRELIMINARY INJUNCTION. (Galvan, Ernest) (Entered: 03/06/2012)
48 MINUTES (Text Only) for proceedings held before Judge John A. Mendez: MOTION HEARING held on 3/7/2012 ; Terminate Deadlines and Hearings ; Motions terminated: 22 MOTION for PRELIMINARY INJUNCTION filed by Prison Legal News ; granting in part and denying in part 22 Motion for Preliminary Injunction. Court to prepare order. Plaintiffs Counsel E. Galvan present. Defendants Counsel A. Butts present. Court Reporter: K. O'Halloran. (Vine, H) (Entered: 03/07/2012)
49 ORDER signed by Judge John A. Mendez on 3/8/12 GRANTING 22 Motion for Preliminary Injunction. (Manzer, C) (Entered: 03/08/2012)
50 STIPULATION and PROPOSED ORDER for Modify Pretrial Scheduling Order by County of Sacramento, Scott R. Jones. (Lavra, John) (Entered: 03/13/2012)
51 STIPULATION and ORDER signed by Judge John A. Mendez on 3/13/12: Designation of Expert Witnesses due by 4/16/2012. Discovery due by 5/30/2012. (Kaminski, H) (Entered: 03/14/2012)
52 TRANSCRIPT of Court's Ruling held on 3/7/12, before Judge John A. Mendez, filed by Court Reporter Kelly OHalloran, Phone number 916−448−2712 E−mail kohalloran@comcast.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 4/12/2012. Redacted Transcript Deadline set for 4/23/2012. Release of Transcript Restriction set for 6/21/2012. (O'Halloran, K) (Entered: 03/22/2012)
53 TRANSCRIPT of Motion for Preliminary Injunction held on 3/7/12, before Judge John A. Mendez, filed by Court Reporter Kelly OHalloran, Phone number 916−448−2712 E−mail kohalloran@comcast.net. Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may also be obtained through PACER. Any Notice of Intent to Request Redaction must be filed within 5 court days. Redaction Request due 4/19/2012. Redacted Transcript Deadline set for 4/30/2012. Release of Transcript Restriction set for 6/28/2012. (O'Halloran, K) (Entered: 03/28/2012)
54 STIPULATION and PROPOSED ORDER to modify Scheduling Order by defendants. (Lavra, John) Modified on 4/12/2012 (Marciel, M). (Entered: 04/11/2012)
55 STIPULATION and ORDER 54 for modification signed by Judge John A. Mendez on 4/12/2012. Expert Disclosure is now due 5/30/2012; Supplemental Expert Disclosure to be submitted by 6/8/2012. Discovery cut−off changed to 8/10/2012. Dispositive Motions shall be filed by 9/19/2012 and Hearing on those Motions to be set for 10/17/2012 at 9:30 AM. The Joint Pretrial Statement is due 11/23/2012.

Case: 2:11-cv-00907-JAM-DAD As of: 09/13/2012 09:41 AM PDT 6 of 6

05/22/2012 05/23/2012
07/13/2012 07/13/2012 07/16/2012 08/06/2012 08/08/2012

Final Pretrial Conference is CONTINUED to 11/30/2012 at 10:00 AM and Jury Trial is RE−SET for 1/14/2013 at 10:00 AM in Courtroom 6 (JAM). (Marciel, M) (Entered: 04/12/2012)
56 STIPULATION and [PROPOSED] ORDER to Modify the Pre Trial Scheduling Order by County of Sacramento, Scott R. Jones. (Lavra, John) Modified on 5/23/2012 (Mena−Sanchez, L). (Entered: 05/22/2012)
57 STIPULATION and ORDER signed by Judge John A. Mendez on 5/22/2012 EXTENDING the deadline for Expert Disclosure to 6/30/2012; EXTENDING the deadline for Supplemental Expert Disclosure to 7/9/2012. (Michel, G) (Entered: 05/23/2012)
58 NOTICE of SETTLEMENT by Prison Legal News. (Walczak, Kenneth) (Entered: 07/13/2012)
59 STIPULATION and [Proposed] Consent Decree by Prison Legal News. (Walczak, Kenneth) (Entered: 07/13/2012)
60 CONSENT DECREE signed by Judge John A. Mendez on 7/16/12. (Meuleman, A) (Entered: 07/16/2012)
61 STIPULATION and PROPOSED ORDER for Dismissal of Case and Retention of Jurisdiction Over Consent Decree by Prison Legal News. (Galvan, Ernest) (Entered: 08/06/2012)
62 STIPULATION and ORDER signed by Judge John A. Mendez on 08/07/12 ORDERING that, the parties having reached a Consent Decree resolving the plaintiff's claims, the Court orders the claims DISMISSED with prejudice under Rule 41(a)(2) of the FRCP, subject to the condition that the Court retains jurisdiction to enforce compliance with the Consent Decree, until such jurisdiction is terminated by the Court upon motion made by either Party. Motions regarding the Consent Decree may be filed by the parties under this case number pursuant to the Courts ancillary jurisdiction to enforce the Consent Decree. CASE CLOSED (Benson, A.) (Entered: 08/08/2012)