CLOSED,MEDIATION
U.S. District Court Northern District of Florida (Tallahassee) CIVIL DOCKET FOR CASE #: 4:12−cv−00239−MW−CAS

PRISON LEGAL NEWS v JULIE L JONES Assigned to: CHIEF JUDGE MARK E WALKER Referred to: MAGISTRATE JUDGE CHARLES A STAMPELOS Case in other court: USCA, 14−10167−A
USCA, 15−14220−AA
USCA, 15−14220−AA
USCA, 15−15188−A Cause: 42:1983 Civil Rights Act
Plaintiff

Date Filed: 04/03/2012 Date Terminated: 10/05/2015 Jury Demand: Defendant Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

PRISON LEGAL NEWS A PROJECT OF THE HUMAN RIGHTS DEFENSE CENTER A NOT−FOR−PROFIT WASHINGTON CHARITABLE CORPORATION

represented by DANTE PASQUALE TREVISANI FLORIDA JUSTICE INSTITUTE INC− MIAMI FL 100 SE 2ND ST 3750 BANK OF AMERICA TWR MIAMI, FL 33131 305−358−2081 Fax: 305−358−0910 Email: dtrevisani@floridajusticeinstitute.org LEAD ATTORNEY ATTORNEY TO BE NOTICED

JOSHUA AARON GLICKMAN SOCIAL JUSTICE LAW COLLECTIVE PL 6709 W 119TH STREET #198 OVERLAND PARK, KS 66209 913−213−3064 Email: josh@sjlawcollective.com TERMINATED: 07/10/2012 LEAD ATTORNEY

LANCE THEODORE WEBER DAN NEWLIN & PARTNERS − ORLANDO FL 7335 W SAND LAKE ROAD SUITE 300 ORLANDO, FL 32819 407−250−6513 Email: lweber@humanrightsdefensecenter.org TERMINATED: 01/03/2017 LEAD ATTORNEY

SHAWN ALEX HELLER SOCIAL JUSTICE LAW COLLECTIVE PL 974 HOWARD AVENUE DUNEDIN, FL 34698 202−709−5744 Fax: 866−893−0416 Email: shawn@shawnheller.com TERMINATED: 09/21/2012 LEAD ATTORNEY

BENJAMIN JAMES STEVENSON

V.
Defendant
LARRY MAYO IN HIS OFFICIAL CAPACITY AS WARDEN OF EVERGLADES CORRECTIONAL INSTITUTION TERMINATED: 03/30/2012

ACLU FOUNDATION OF FLORIDA INC − PENSACOLA FL 3 W GARDEN STREET SUITE 712 PENSACOLA, FL 32502−5636 786−363−2738 Email: bstevenson@aclufl.org ATTORNEY TO BE NOTICED
NANCY GBANA ABUDU ACLU FOUNDATION OF FLORIDA INC − MIAMI FL 4500 BISCAYNE BLVD STE 340 MIAMI, FL 33137 786−363−2707 Fax: 786−363−1108 Email: nabudu@aclufl.org ATTORNEY TO BE NOTICED
RANDALL C MARSHALL ACLU FOUNDATION OF FLORIDA INC − MIAMI FL 4343 W FLAGLER STREET SUITE 400 MIAMI, FL 33134 786−363−2700 Fax: 786−363−1108 Email: rmarshall@aclualabama.org TERMINATED: 05/20/2013 ATTORNEY TO BE NOTICED
SABARISH P NEELAKANTA HUMAN RIGHTS DEFENSE CENTER − LAKE WORTH FL 1013 LUCERNE AVE LAKE WORTH, FL 33460 561−360−2523 Fax: 866−735−7136 Email: sneelakanta@humanrightsdefensecenter.org ATTORNEY TO BE NOTICED
RANDALL CHALLEN BERG FLORIDA JUSTICE INSTITUTE INC − MIAMI FL 3750 BANK OF AMERICA TOWER 100 SE SECOND ST MIAMI, FL 33131 305−358−2081 Fax: 305−358−0910 Email: rberg@floridajusticeinstitute.org ATTORNEY TO BE NOTICED
represented by SUSAN ADAMS MAHER 1286 CORDOVA CIRCLE TALLAHASSEE, FL 32317 850−877−1530 Email: bogart.sam@att.net LEAD ATTORNEY ATTORNEY TO BE NOTICED

Defendant WILLIAM CHURCHWELL IN HIS OFFICIAL CAPACITY AS WARDEN OF DADE CORRECTIONAL INSTITUTION TERMINATED: 03/30/2012 Defendant NORMAN JENKINS IN HIS OFFICIAL CAPACITY AS WARDEN OF HOMESTEAD CORRECTIONAL INSTITUTION TERMINATED: 03/30/2012 Defendant KENNETH S TUCKER IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS
Defendant CORRECTIONS CORPORATION OF AMERICA A TENNESSEE CORPORATION REGISTERED IN AND DOING BUSINESS IN THE STATE OF FLORIDA TERMINATED: 02/04/2013

represented by LANCE ERIC NEFF ATTORNEY GENERAL − 107 W GAINES − TALLAHASSEE FL 107 WEST GAINES ST TALLAHASSEE, FL 32301 850−414−3633 Fax: 850−488−4872 Email: lance.neff@myfloridalegal.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
SUSAN ADAMS MAHER (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
CEDELL IAN GARLAND ATTORNEY GENERAL − PL−01 − TALLAHASSEE FL STATE OF FLORIDA PL 01 THE CAPITOL 400 S MONROE ST TALLAHASSEE, FL 32399 850−414−3300 Fax: 850−488−4872 Email: cedell.garland@myfloridalegal.com ATTORNEY TO BE NOTICED
LISA KUHLMAN TIETIG OFFICE OF THE ATTORNEY GENERAL − TALLAHASSEE FL THE CAPITOL STE PL−01 400 S MONROE ST TALLAHASSEE, FL 32399 850−414−3300 Fax: 850−488−4872 Email: lisa.kuhlman@apdcares.org ATTORNEY TO BE NOTICED
represented by JOHN ALLEN SCHIFINO GUNSTER YOAKLEY & STEWART PA − TAMPA FL 401 E JACKSON STREET SUITE 2500 TAMPA, FL 33602 813−228−9080

Defendant GEO GROUP INC A FLORIDA CORPORATION TERMINATED: 02/04/2013
Defendant MICHAEL D CREWS

Fax: 813−228−6739 Email: jschifino@burr.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
ROBERT M STOLER STOLER RUSSELL KEENER VERONA − TAMPA FL 201 N FRANKLIN STREET STE 3050 TAMPA, FL 33602 813/609−3200 Email: rstoler@stolerrussell.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
MARY BONANNO THOMAS WILLIAMS SCHIFINO MANGIONE ETC − TAMPA FL ONE TAMPA CITY CTR 201 N FRANKLIN ST STE 3200 TAMPA, FL 33602 813−221−2626 Fax: 813−221−7335 Email: mthomas@wsmslaw.com
represented by BRETT MICHAEL WARONICKI WIEDERHOLD MOSES ETC PA − WEST PALM BEACH FL 340 COLUMBIA DRIVE SUITE 111 WEST PALM BEACH, FL 33409 561−615−6775 Fax: 561−615−7225 Email: bwaronicki@wmrfla.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
GWENDOLYN PALMER ADKINS COPPINS MONROE ADKINS ETC PA − TALLAHASSEE FL 1319 THOMASWOOD DR PO DRAWER 14447 [32317] TALLAHASSEE, FL 32308 850/422−2420 Fax: 850/422−2730 Email: gadkins@coppinsmonroe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
SCOTT J SEAGLE COPPINS MONROE ADKINS ETC PA − TALLAHASSEE FL 1319 THOMASWOOD DR TALLAHASSEE, FL 32308 850−422−2420 Fax: 850−422−2730 Email: sjseagle@coppinsmonroe.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by LANCE ERIC NEFF (See above for address)

Defendant TIMOTHY H CANNON
Defendant JULIE L JONES
Amicus FLORIDA PRESS ASSOCIATION
Amicus FIRST AMENDMENT FOUNDATION
Amicus

ATTORNEY TO BE NOTICED
LISA KUHLMAN TIETIG (See above for address) ATTORNEY TO BE NOTICED
represented by SEAN WILLIAM GELLIS FLORIDA DEPARTMENT OF CORRECTIONS 501 SOUTH CALHOUN STREET TALLAHASSEE, FL 32399 850−717−3607 Email: Gellis.Sean@mail.dc.state.fl.us ATTORNEY TO BE NOTICED
represented by MARCUS OWEN GRAPER OFFICE OF THE ATTORNEY GENERAL − TALLAHASSEE FL THE CAPITOL STE PL−01 400 S MONROE ST TALLAHASSEE, FL 32399 850−414−3300 Fax: 850−488−4872 Email: marcus.graper@myfloridalegal.com ATTORNEY TO BE NOTICED
represented by JAMIE ZYSK ISANI HUNTON & WILLIAMS LLP − MIAMI FL 1111 BRICKELL AVE − STE 2500 MIAMI, FL 33131 305−536−2724 Fax: 305−810−2460 Email: jzysk@hunton.com LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS R JULIN HUNTON & WILLIAMS LLP − MIAMI FL 1111 BRICKELL AVE − STE 2500 MIAMI, FL 33131 305/810−2516 Fax: 305/810−1601 Email: tjulin@hunton.com ATTORNEY TO BE NOTICED
represented by JAMIE ZYSK ISANI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS R JULIN (See above for address) ATTORNEY TO BE NOTICED
represented by

REPORTERS' COMMITTEE FOR FREEDOM OF THE PRESS
Amicus SOCIETY OF PROFESSIONAL JOURNALISTS
Amicus ALLIED DAILY NEWSPAPERS OF WASHINGTON

JAMIE ZYSK ISANI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS R JULIN (See above for address) ATTORNEY TO BE NOTICED
represented by JAMIE ZYSK ISANI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS R JULIN (See above for address) ATTORNEY TO BE NOTICED
represented by JAMIE ZYSK ISANI (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
THOMAS R JULIN (See above for address) ATTORNEY TO BE NOTICED

V. Intervenor DANIEL J LEVITAN

represented by DANIEL J LEVITAN 22977−037 CENTURY CORRECTIONAL INSTITUTION 400 TEDDER ROAD CENTURY, FL 32535 PRO SE

Date Filed 11/17/2011
11/17/2011 11/17/2011 11/17/2011 11/17/2011

# Docket Text
1 COMPLAINT against All Defendants. Filing fee $ 350.00 receipt number 113C−4240413, filed by Prison Legal News. (Attachments: # 1 Civil Cover Sheet, # 2 Summon(s) Kenneth S. Tucker, # 3 Summon(s) Larry Mayo, # 4 Summon(s) Jeff Atwater, # 5 Summon(s) Norman Jenkins, # 6 Summon(s) William Churchwell)(Berg, Randall) [Transferred from Florida Southern on 4/3/2012.] (Entered: 11/17/2011)
2 Judge Assignment to Judge Patricia A. Seitz and Magistrate Judge Andrea M. Simonton (abe) [Transferred from Florida Southern on 4/3/2012.] (Entered: 11/17/2011)
3 NOTICE of Attorney Appearance by Joshua Aaron Glickman on behalf of Prison Legal News (Glickman, Joshua) [Transferred from Florida Southern on 4/3/2012.] (Entered: 11/17/2011)
4 Summons Issued as to All Defendants. (Attachments: # 1 Summon(s), # 2 Summon(s), # 3 Summon(s))(abe) [Transferred from Florida Southern on 4/3/2012.] (Entered: 11/17/2011)
7 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for Lance Weber. Filing Fee $ 75.00. Receipt # 28701. (ksa) [Transferred from Florida Southern on 4/3/2012.]

11/18/2011 11/18/2011 11/22/2011
12/07/2011 12/09/2011
12/09/2011 12/13/2011
12/14/2011
12/16/2011 12/16/2011 12/16/2011 12/16/2011 12/22/2011
12/28/2011 12/28/2011 01/09/2012

(Entered: 11/21/2011)
5 NOTICE of Attorney Appearance by Randall C. Marshall on behalf of Prison Legal News (Marshall, Randall) [Transferred from Florida Southern on 4/3/2012.] (Entered: 11/18/2011)
6 NOTICE of Attorney Appearance by Shawn Alex Heller on behalf of Prison Legal News (Heller, Shawn) [Transferred from Florida Southern on 4/3/2012.] (Entered: 11/18/2011)
8 ORDER granting 7 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing. Signed by Judge Patricia A. Seitz on 11/22/2011. (ots) [Transferred from Florida Southern on 4/3/2012.] (Entered: 11/23/2011)
9 NOTICE of Attorney Appearance by Susan A. Maher on behalf of Larry Mayo, Kenneth S Tucker (Maher, Susan) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/07/2011)
10 SUMMONS (Affidavit) Returned Executed on 1 Complaint, by Prison Legal News. Larry Mayo served on 11/30/2011, answer due 12/21/2011. (Attachments: # 1 Affidavit Return of Service for Larry Mayo)(Berg, Randall) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/09/2011)
11 Order Requiring Joint Scheduling Report −Joint Scheduling Report due by 2/22/2012. Signed by Judge Patricia A. Seitz on 12/9/2011. (lw) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/09/2011)
12 SUMMONS (Affidavit) Returned Executed on 1 Complaint, by Prison Legal News. Kenneth S Tucker served on 12/5/2011, answer due 12/27/2011. (Attachments: # 1 Affidavit Return of Service for Kenneth Tucker)(Berg, Randall) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/13/2011)
13 SUMMONS (Affidavit) Returned Executed on 1 Complaint, by Prison Legal News. Norman Jenkins served on 12/8/2011, answer due 12/29/2011. (Attachments: # 1 Affidavit Service of Process Return for Norman Jenkins)(Berg, Randall) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/14/2011)
14 First AMENDED COMPLAINT against All Defendants, filed by Prison Legal News.(Glickman, Joshua) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/16/2011)
15 NOTICE of Attorney Appearance by Lance Eric Neff on behalf of Kenneth S Tucker (Neff, Lance) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/16/2011)
16 NOTICE of Filing Proposed Summons(es) for The GEO Group, Inc. by Prison Legal News re 14 Amended Complaint filed by Prison Legal News (Berg, Randall) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/16/2011)
17 NOTICE of Filing Proposed Summons(es) for Corrections Corporation of America by Prison Legal News re 14 Amended Complaint filed by Prison Legal News (Berg, Randall) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/16/2011)
18 MOTION to Change Venue ( Responses due by 1/9/2012), MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM by Kenneth S Tucker. (Attachments: # 1 Affidavit Exh. A: Declaration of A. Walters, # 2 Exhibit Exh. B: Court Order and Opinion)(Neff, Lance) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/22/2011)
19 Summons Issued as to The GEO Group, Inc.. (ots) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/28/2011)
20 Summons Issued as to Corrections Corporation of America. (ots) [Transferred from Florida Southern on 4/3/2012.] (Entered: 12/28/2011)
21 NOTICE of Attorney Appearance by Dante Pasquale Trevisani on behalf of Prison Legal News (Trevisani, Dante) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/09/2012)

01/09/2012 01/12/2012 01/17/2012 01/18/2012 01/19/2012
01/20/2012 01/23/2012 01/26/2012 01/26/2012 01/30/2012
01/31/2012 02/03/2012 02/10/2012

22 RESPONSE in Opposition re 18 MOTION to Change Venue MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM filed by Prison Legal News. (Attachments: # 1 Exhibit 1: Declaration of Paul Wright)(Trevisani, Dante) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/09/2012)
23 REPLY to Response to Motion re 18 MOTION to Change Venue MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM filed by Kenneth S Tucker. (Attachments: # 1 Exhibit A−E)(Neff, Lance) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/12/2012)
24 Unopposed MOTION for Leave to File SUR−REPLY TO DEFENDANT TUCKER'S REPLY TO PLAINTIFF'S RESPONSE TO THE MOTION TO TRANSFER VENUE AND MOTION TO DISMISS AMENDED COMPLAINT by Prison Legal News. (Glickman, Joshua) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/17/2012)
25 ORDER granting 24 Motion for Leave to File. Clerks Notice: Filer must separately re−file the amended pleading pursuant to Local Rule 15.1, unless otherwise ordered by the Judge Due by 01/20/2012. Signed by Judge Patricia A. Seitz (ots) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/19/2012)
26 REPLY to Response to Motion re 18 MOTION to Change Venue MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM , 24 Unopposed MOTION for Leave to File SUR−REPLY TO DEFENDANT TUCKER'S REPLY TO PLAINTIFF'S RESPONSE TO THE MOTION TO TRANSFER VENUE AND MOTION TO DISMISS AMENDED COMPLAINT filed by Prison Legal News. (Glickman, Joshua) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/19/2012)
27 Corporate Disclosure Statement by Prison Legal News (Trevisani, Dante) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/20/2012)
28 WAIVER OF SERVICE Returned Executed by Prison Legal News. The GEO Group, Inc. waiver sent on 12/20/2011, answer due 2/21/2012. (Trevisani, Dante) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/23/2012)
29 MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM by Corrections Corporation of America. Responses due by 2/13/2012 (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Thomas, Mary). Added MOTION to Change Venue on 1/30/2012 (lk). [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/26/2012)
30 Corporate Disclosure Statement by Corrections Corporation of America (Thomas, Mary) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/26/2012)
31 Clerks Notice to Filer re 29 MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM and to Transfer Venue. Motion with Multiple Reliefs Filed as One Relief; ERROR − The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (lk) [Transferred from Florida Southern on 4/3/2012.] (Entered: 01/30/2012)
32 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing for John A. Schifino. Filing Fee $ 75.00. Receipt # 32815. (ksa) [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/02/2012)
33 ORDER granting 32 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing. Signed by Judge Patricia A. Seitz on 2/3/2012. (ots) [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/03/2012)
34 Unopposed MOTION for Extension of Time to File Response/Reply as to 29 MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM and to Transfer Venue MOTION to Change Venue by Prison Legal News. (Glickman, Joshua) [Transferred from Florida Southern on 4/3/2012.] (Entered:

02/13/2012
02/15/2012 02/15/2012
02/15/2012
02/15/2012 02/17/2012 02/22/2012 02/27/2012 03/06/2012 03/06/2012
03/26/2012 03/30/2012

02/10/2012)
35 ORDER granting 34 Motion for Extension of Time to File Response/Reply re 34 Unopposed MOTION for Extension of Time to File Response/Reply as to 29 MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM and to Transfer Venue MOTION to Change Venue Responses due by 2/28/2012. Signed by Judge Patricia A. Seitz on 2/13/2012. (ots) [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/13/2012)
36 Corporate Disclosure Statement by The GEO Group, Inc. (Waronicki, Brett) [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/15/2012)
37 NOTICE of Joinder and Motion to Dismiss First Amended Complaint and Motion to Transfer Venue by Defendant the Geo Group, Inc. by The GEO Group, Inc. re 35 Order on Motion for Extension of Time to File Response/Reply, Motion to Dismiss First Amended Complaint and Motion to Transfer Venue (Attachments: # 1 Affidavit Mark Henry)(Waronicki, Brett) Modified on 2/16/2012 (dj). Modified on 2/16/2012 (dj). [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/15/2012)
38 Clerks Notice to Filer re 37 Notice (Other). Motion with Multiple Reliefs Filed as One Relief; ERROR − The Filer selected only one relief event and failed to select the additional corresponding events for each relief requested in the motion. The docket entry was corrected by the Clerk. It is not necessary to refile this document but future filings must comply with the instructions in the CM/ECF Attorney User's Manual. (dj) [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/16/2012)
39 MOTION to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filings for Gwendolyn P. Adkins and Scott J. Seagle. Filing Fee $ 150.00. Receipt # 91408. (ksa) (Additional attachment(s) added on 2/17/2012: # 1 Text of Proposed Order) (vp). [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/16/2012)
40 ORDER granting 39 Motion to Appear Pro Hac Vice, Consent to Designation, and Request to Electronically Receive Notices of Electronic Filing. Signed by Judge Patricia A. Seitz on 2/17/2012. (lk) [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/17/2012)
41 SCHEDULING REPORT − Rule 26(f) by Corrections Corporation of America, Prison Legal News, The GEO Group, Inc., Kenneth S Tucker (Attachments: # 1 Exhibit A − Election to Jurisdiction by a United States Magistrate Judge for Final Disposition of Discovery Motions)(Glickman, Joshua) [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/22/2012)
42 RESPONSE in Opposition re 29 MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM and to Transfer Venue MOTION to Change Venue, 37 Motion for Miscellaneous Relief filed by Prison Legal News. (Attachments: # 1 Exhibit 1 − Declaration of Paul Wright)(Trevisani, Dante) [Transferred from Florida Southern on 4/3/2012.] (Entered: 02/27/2012)
43 REPLY to Response to Motion re 29 MOTION TO DISMISS 14 Amended Complaint FOR FAILURE TO STATE A CLAIM and to Transfer Venue MOTION to Change Venue filed by Corrections Corporation of America. (Stoler, Robert) [Transferred from Florida Southern on 4/3/2012.] (Entered: 03/06/2012)
44 Clerks Notice to Filer re 43 Reply to Response to Motion. Document not filed in Text Searchable Format; ERROR − The document was not filed in Text Searchable Format. All future filings must be submitted in Text Searchable format as instructed in the CM/ECF Administrative Procedure 3G(5) −Page 10−. It is not necessary to refile this document. (ots) [Transferred from Florida Southern on 4/3/2012.] (Entered: 03/07/2012)
45 NOTICE of Attorney Appearance by Cedell Ian Garland on behalf of Kenneth S Tucker (Garland, Cedell) [Transferred from Florida Southern on 4/3/2012.] (Entered: 03/26/2012)
46 ORDER granting Defendant's Motions to Transfer Venue ( 18 29 37 ) to the U.S. District Court for the Northern District of Florida. Signed by Judge Patricia A. Seitz on 3/30/2012. (dgj) [Transferred from Florida Southern on 4/3/2012.] (Entered:

04/03/2012 04/03/2012 04/03/2012 04/12/2012 04/12/2012
04/12/2012
04/13/2012 04/17/2012 04/17/2012 04/17/2012 04/19/2012 04/19/2012 04/19/2012
05/01/2012 05/09/2012

03/30/2012)
47 Case transferred in from District of Florida Southern; Case Number 1:11−cv−24145 Original file with documents 1 − 46 transferred (pmc). (Entered: 04/03/2012)
48 NOTICE Regarding Admission to Practice mailed to: Atty LANCE WEBER. (pmc) (Entered: 04/03/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE ROGER VINSON notified that action is needed Re: 46 ORDER granting Defendant's Motions to Transfer Venue ( 18 29 37 ) to the U.S. District Court for the Northern District of Florida. (pmc) (Entered: 04/03/2012)
49 MOTION to Transfer Case to Tallahassee Division by PRISON LEGAL NEWS. (Internal deadline for referral to judge if response not filed earlier: 4/30/2012). (TREVISANI, DANTE) (Entered: 04/12/2012)
50 MOTION for Extension of Time to File Response/Reply TO DEFENDANTS CORRECTIONS CORPORATION OF AMERICA AND THE GEO GROUP, INC.'S MOTIONS TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (WITHOUT OPPOSITION) by PRISON LEGAL NEWS. (GLICKMAN, JOSHUA) (Entered: 04/12/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE ROGER VINSON notified that action is needed Re: 50 Unopposed MOTION for Extension of Time to File Response/Reply TO DEFENDANTS CORRECTIONS CORPORATION OF AMERICA AND THE GEO GROUP, INC.'S MOTIONS TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (WITHOUT OPPOSITION). (pmc) (Entered: 04/12/2012)
51 ORDER Granting 50 Motion for Extension of Time to File Response to Defendants CORRECTION CORPORATION OF AMERICA and the GEO GROUP INC'S Motion to Dismiss Plaintiff's First Amended Complaint. Signed by SENIOR JUDGE ROGER VINSON on April 13, 2012. (pmc) (Entered: 04/13/2012)
52 MOTION for Leave to File Attorney Time Records (Without Opposition) by PRISON LEGAL NEWS. (GLICKMAN, JOSHUA) (Entered: 04/17/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE ROGER VINSON notified that action is needed Re: 52 MOTION for Leave to File Attorney Time Records (Without Opposition). (pmc) (Entered: 04/17/2012)
53 ORDER Granting 52 Motion for Leave to File Attorney Time Records. Signed by SENIOR JUDGE ROGER VINSON on April 17, 2012. (pmc) (Entered: 04/17/2012)
54 RESPONSE in Opposition re 49 MOTION to Transfer Case to Tallahassee Division filed by GEO GROUP INC. (SEAGLE, SCOTT) (Entered: 04/19/2012)
55 ATTORNEY TIME RECORDS by PRISON LEGAL NEWS. (GLICKMAN, JOSHUA) (Entered: 04/19/2012)
56 ATTORNEY TIME RECORDS − SEALED PORTION by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit Attorney Time Records (FJI), # 2 Exhibit Attorney Time Records (ACLU), # 3 Exhibit Attorney Time Records (HRDC) Lance Weber, # 4 Exhibit Attorney Time Records (HRDC) Adam Cook, # 5 Exhibit Attorney Time Records (HRDC) Alissa Hull, # 6 Exhibit Non−Attorney Time Records (HRDC)) (GLICKMAN, JOSHUA) (Entered: 04/19/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of SENIOR JUDGE ROGER VINSON notified that action is needed Re: 49 MOTION to Transfer Case to Tallahassee Division , 54 Response in Opposition to Motion. (pmc) (Entered: 05/01/2012)
57 ORDER. The plaintiff's motion to transfer (doc. 49 ) is hereby GRANTED. The Clerk is directed to transfer this case to the Tallahassee Division. The defendants' pending motions to dismiss, contained within their prior−filed motions to transfer (docs. 18 , 29 , 37 ), will carry with the case. Signed by SENIOR JUDGE ROGER VINSON on May 9, 2012. (pmc) (Entered: 05/09/2012)

05/10/2012 05/15/2012 05/15/2012
05/16/2012
05/16/2012
05/29/2012 05/29/2012 06/01/2012
06/04/2012 06/07/2012
06/18/2012 06/22/2012 06/25/2012 06/25/2012 06/25/2012
06/27/2012 07/03/2012

ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE ROBERT L HINKLE notified that action is needed Re: 57 Order Transferring Case. (pmc) (Entered: 05/10/2012)
58 ATTORNEY TIME RECORDS by PRISON LEGAL NEWS. (GLICKMAN, JOSHUA) (Entered: 05/15/2012)
59 ATTORNEY TIME RECORDS − SEALED PORTION by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit Attorney Time (FJI) April 2012, # 2 Exhibit Attorney Time (ACLU) April 2012, # 3 Exhibit Attorney Time (HRDC − Allisa Hull) April 2012, # 4 Exhibit Attorney Time (HRDC − Lance Weber) April 2012) (GLICKMAN, JOSHUA) (Entered: 05/15/2012)
60 RESPONSE in Opposition re 29 , 37 Defendant Corrections Corporation of America and Defendant The GEO Group, Inc.'s Motions to Dismiss Plaintiff's First Amended Complaint filed by PRISON LEGAL NEWS. (GLICKMAN, JOSHUA) (Entered: 05/16/2012)
61 INITIAL SCHEDULING ORDER :Fed.R.Civ.P. 7.1 Corporate Disclosure Statement Deadline set for 5/30/2012. Rule 26 Meeting Report due by 6/29/2012. Discovery due by 9/10/2012. Signed by JUDGE ROBERT L HINKLE on 5/16/2012. (dlt) (Entered: 05/17/2012)
62 Corporate Disclosure Statement/Certificate of Interested Persons by CORRECTIONS CORPORATION OF AMERICA. (SCHIFINO, JOHN) (Entered: 05/29/2012)
63 Corporate Disclosure Statement/Certificate of Interested Persons by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 05/29/2012)
ACTION REQUIRED BY DISTRICT JUDGE: Chambers of JUDGE ROBERT L HINKLE notified that action is needed Re: 61 Scheduling Order − Fed.R.Civ.P. 7.1 Corporate Disclosure Statement not filed by GEO GROUP INC. (pll) (Entered: 06/01/2012)
64 DOCKET ANNOTATION BY COURT Re 36 Corporate Disclosure Statement/Certificate of Interested Persons filed by GEO GROUP INC. (pll) (Entered: 06/04/2012)
65 ORDER DENYING THE MOTIONS TO DISMISS − The motions to dismiss for failure to state a claim on which relief can be granted, ECF No. 29 and 37 , are DENIED. Signed by JUDGE ROBERT L HINKLE on 6/7/2012. (dlt) (Entered: 06/08/2012)
66 REPORT of Rule 26(f) Planning Meeting. (BERG, RANDALL) (Entered: 06/18/2012)
67 ANSWER to 14 Amended Complaint and Affirmative Defenses by GEO GROUP INC. (SEAGLE, SCOTT) (Entered: 06/22/2012)
68 ANSWER to 14 Amended Complaint and Affirmative Defenses by KENNETH S TUCKER. (MAHER, SUSAN) (Entered: 06/25/2012)
69 ANSWER to 14 Amended Complaint and Affirmative Defenses by CORRECTIONS CORPORATION OF AMERICA. (SCHIFINO, JOHN) (Entered: 06/25/2012)
70 SCHEDULING AND MEDIATION ORDER :( Discovery due by 3/15/2013., Dispositive Motions to be filed by 4/5/2013., Attorney Client Trial Advisory Notice due by 7/18/2012., Jury Trial set for 8/5/2013 08:15 AM in U.S. Courthouse Tallahassee before JUDGE ROBERT L HINKLE., Mediation Report due by 4/26/2013.), Case referred to mediation. Signed by JUDGE ROBERT L HINKLE on 6/25/2012. (dlt) (Entered: 06/26/2012)
71 NOTICE of Compliance with Paragraph One by PRISON LEGAL NEWS re 70 Scheduling Order, Case Referred to Mediation,, (BERG, RANDALL) (Entered: 06/27/2012)
72 Consent MOTION to Withdraw as Attorney by PRISON LEGAL NEWS. (GLICKMAN, JOSHUA) (Entered: 07/03/2012)

07/10/2012 07/18/2012 07/18/2012 07/29/2012 09/12/2012 09/21/2012 10/10/2012 10/10/2012 10/10/2012
10/26/2012 11/01/2012
11/02/2012 11/05/2012 11/09/2012 11/29/2012

73 ORDER GRANTING 72 MOTION FOR LEAVE TO WITHDRAW − GLICKMAN. Attorney JOSHUA AARON GLICKMAN terminated Signed by JUDGE ROBERT L HINKLE on 7/10/2012. (dlt) (Entered: 07/13/2012)
74 NOTICE of Compliance [Joint] by CORRECTIONS CORPORATION OF AMERICA, GEO GROUP INC, KENNETH S TUCKER re 70 Scheduling Order,, Case Referred to Mediation, (MAHER, SUSAN) (Entered: 07/18/2012)
75 RESPONSE by PRISON LEGAL NEWS re 74 Notice (Other), 71 Notice (Other), 70 Scheduling Order,, Case Referred to Mediation, to Defendants' Joint Notice of Compliance by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 07/18/2012)
76 ORDER REVISING THE SCHEDULE re 70 Scheduling and Mediation Order.(Discovery due by 1/15/2013., Jury Trial rescheduled for 5/6/2013 08:15 AM in U.S. Courthouse Tallahassee before JUDGE ROBERT L HINKLE.) Signed by JUDGE ROBERT L HINKLE on 7/29/2012. (dlt) (Entered: 07/31/2012)
77 MOTION to Withdraw as Attorney (Unopposed) by PRISON LEGAL NEWS. (HELLER, SHAWN) (Entered: 09/12/2012)
78 ORDER GRANTING LEAVE TO WITHDRAW HELLER − GRANTING 77 MOTION to Withdraw as Attorney (Unopposed) filed by PRISON LEGAL NEWS. Attorney SHAWN ALEX HELLER terminated. Signed by JUDGE ROBERT L HINKLE on 9/21/2012. (dlt) (Entered: 09/24/2012)
79 MOTION for Summary Judgment by CORRECTIONS CORPORATION OF AMERICA, GEO GROUP INC. (Internal deadline for referral to judge if response not filed earlier: 10/29/2012). (SEAGLE, SCOTT) (Entered: 10/10/2012)
80 STATEMENT OF FACTS and Memorandum of Law Re: 79 MOTION for Summary Judgment . (SEAGLE, SCOTT) (Entered: 10/10/2012)
81 NOTICE of Filing Documents in Support of Motion for Summary Judgment by CORRECTIONS CORPORATION OF AMERICA, GEO GROUP INC re 79 MOTION for Summary Judgment , 80 Statement of Facts (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) (SEAGLE, SCOTT) (Entered: 10/10/2012)
82 MOTION for Extension of Time to File Response/Reply as to 79 MOTION for Summary Judgment by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 10/26/2012)
83 ORDER EXTENDING THE DEADLINE TO RESPOND TO THE SUMMARY−JUDGMENT MOTION − GRANTED 82 Plaintiff's MOTION for Extension of Time to File Response/Reply as to 79 MOTION for Summary Judgment. ( Plaintiff's Response to motion due by 11/5/2012.) Signed by JUDGE ROBERT L HINKLE on 11/1/2012. (dlt) (Entered: 11/01/2012)
84 RESPONSE in Opposition re 79 MOTION for Summary Judgment filed by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − Blackwater Contract, # 2 Exhibit 2 − Declaration of Paul Wright) (TREVISANI, DANTE) (Entered: 11/02/2012)
85 RESPONSE in Opposition re 79 MOTION for Summary Judgment (Amended) filed by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − Blackwater Contract, # 2 Exhibit 2 − Declaration of Paul Wright) (TREVISANI, DANTE) (Entered: 11/05/2012)
86 REPLY to Response to Motion re 79 MOTION for Summary Judgment filed by CORRECTIONS CORPORATION OF AMERICA, GEO GROUP INC. (SCHIFINO, JOHN) (Entered: 11/09/2012)
87 MOTION to Compel Defendant Tucker's Discovery Responses by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − Response to First Set of Interrogatories, # 2 Exhibit 2 − Response to First Set of Expert Interrogatories, # 3 Exhibit 3 − Response to First Request for Production, # 4 Exhibit 4 − Response to First Request for Admission and Second Request for Production, # 5 Exhibit 5 − Emails Documenting Discovery Agreements) (TREVISANI, DANTE) (Entered: 11/29/2012)

12/10/2012 12/12/2012 12/12/2012 12/12/2012 12/14/2012
12/17/2012
12/17/2012 12/18/2012

88 Joint MOTION for Extension of Time to Complete Discovery by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 12/10/2012)
89 MOTION to Compel Discovery Responses from Defendant CCA by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 12/12/2012)
90 MOTION to Compel Discovery Responses from Defendant GEO by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 12/12/2012)
91 ORDER EXTENDING THE DISCOVERY DEADLINE − GRANTING 88 Joint MOTION for Extension of Time to Complete Discovery filed by PRISON LEGAL NEWS. ( Dispositive Motions to be filed by 3/8/2013., Discovery due by 2/15/2013., Mediation Report due by 3/29/2013.)The trial remains set for May 6, 2013. Signed by JUDGE ROBERT L HINKLE on 12/12/2012. (dlt) (Entered: 12/14/2012)
92 NOTICE of Telephonic Hearing on 87 , 89 , and 90 MOTIONS to Compel : Telephonic Motion Hearing set for 12/20/2012 03:00 PM EST before JUDGE ROBERT L HINKLE, United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.
Parties are instructed to call (888) 684−8852 Access Code: 8131706# Security Code: 1220# at the time of hearing.
NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Elizabeth Lawrence at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.
s/ Elizabeth Lawrence Courtroom Deputy Clerk (erl) (Entered: 12/14/2012)
93 MOTION for Partial Summary Judgment on Counts III and VI by KENNETH S TUCKER. (Internal deadline for referral to judge if response not filed earlier: 1/4/2013). (Attachments: # 1 Appendix Index to Appendix, # 2 Exhibit A − Prison Legal News 2004 Complaint (January 12, 2004); Case Number 3:04−cv−00014−JHM−TEM, # 3 Exhibit B − Order, Findings of Fact and Conclusions of Law (July 28, 2005); Issued By United States District Judge John H. Moore II for the United States District Court, Middle District of Florida, Jacksonville Division; Case Number 3:04−cv−00014−JHM−TEM, # 4 Exhibit C − Prison Legal News 2011 Complaint (December 16, 2011); CaseNumber 4:12−cv−239−RH−CAS, # 5 Exhibit D − Admissible Reading Material rule, 33−501.401 (July 2, 2003), # 6 Exhibit E − Admissible Reading Material rule, 33−501.401 (December 30, 2004), # 7 Exhibit F − Admissible Reading Material rule, 33−501.401 (November 22, 2010)) (MAHER, SUSAN) (Entered: 12/17/2012)
94 RESPONSE in Opposition re 87 MOTION to Compel Defendant Tucker's Discovery Responses filed by KENNETH S TUCKER. (MAHER, SUSAN) (Entered: 12/17/2012)
95 NOTICE of RESCHEDULED Telephonic Hearing on Motion 87 , 89 , and 90 MOTIONS to Compel : Telephonic Motion Hearing reset for 1/11/2013 10:00 AM before JUDGE MARK E WALKER,
Parties are instructed to call (888) 684−8852 Access Code: 8131706# Security Code: 0111# at the time of hearing.
NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Elizabeth Lawrence at 850−521−3501 in the Clerk's Office at least one week

prior to the hearing (or as soon as possible) so arrangements can be made.

12/21/2012 12/21/2012
12/21/2012 12/28/2012 12/28/2012 01/04/2013
01/08/2013
01/10/2013

s/ Elizabeth Lawrence Courtroom Deputy Clerk (erl) (Entered: 12/18/2012)
96 RESPONSE to Motion re 89 MOTION to Compel Discovery Responses from Defendant CCA filed by CORRECTIONS CORPORATION OF AMERICA. (Attachments: # 1 Exhibit A, # 2 Exhibit B) (SCHIFINO, JOHN) (Entered: 12/21/2012)
97 ADMINISTRATIVE ORDER REASSIGNING CASE. Case reassigned to JUDGE MARK E WALKER for all further proceedings. JUDGE ROBERT L HINKLE no longer assigned to case. **Please use case number with new judge initials on all future filings: 4:12cv239−MW/CAS. Signed by CHIEF JUDGE M CASEY RODGERS on 12/21/12. (pll) (Entered: 12/21/2012)
98 MOTION to Extend Time for Expert Disclosures and Report by KENNETH S TUCKER. (MAHER, SUSAN) (Entered: 12/21/2012)
99 Consent MOTION for Extension of Time to File Response/Reply as to 93 MOTION for Partial Summary Judgment on Counts III and VI by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 12/28/2012)
100 RESPONSE in Opposition re 90 MOTION to Compel Discovery Responses from Defendant GEO filed by GEO GROUP INC. (ADKINS, GWENDOLYN) (Entered: 12/28/2012)
101 ORDER GRANTING UNOPPOSED 99 MOTION FOR ENLARGEMENT OF TIME TO RESPOND TO DEFENDANT TUCKER'S MOTION FOR PARTIAL SUMMARY JUDGMENT. (Internal deadline for referral to judge if Plaintiff's response to motion not filed earlier: 2/4/2013). Signed by JUDGE MARK E WALKER on 1/4/2013. (dlt) (Entered: 01/04/2013)
102 ORDER GRANTING 98 UNOPPOSED MOTION TO EXTEND TIME FOR SUBMISSION OF EXPERT DISCLOSURE AND REPORT. The Court grants the motion for extension of time for submission of report to December 28, 2012, as requested. Signed by JUDGE MARK E WALKER on 1/8/2013. (dlt) (Entered: 01/09/2013)
103 NOTICE OF RESCHEDULED HEARING: Jury Trial reset for the trial period that begins 5/13/2013 08:15 AM before JUDGE MARK E WALKER, United States Courthouse, Courtroom 5 South, 111 North Adams St., Tallahassee, Florida 32301.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Elizabeth Lawrence at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

01/10/2013 01/11/2013 01/11/2013
01/11/2013

s/ Elizabeth Lawrence Courtroom Deputy Clerk (erl) (Entered: 01/10/2013)
104 NOTICE Regarding Plaintiff's Motions to Compel by PRISON LEGAL NEWS (TREVISANI, DANTE) (Entered: 01/10/2013)
105 STATUS REPORT on FDOC Response to Discovery by KENNETH S TUCKER. (MAHER, SUSAN) (Entered: 01/11/2013)
106 ORDER FOR PRETRIAL CONFERENCE − Attorney Conference to take place by 3/25/2013. Pretrial Stipulation due by 4/12/2013. Jury Trial set for 5/13/2013 08:15 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. Pretrial Conference set for 4/19/2013 09:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. Signed by JUDGE MARK E WALKER on 1/11/2013. (dlt) (Entered: 01/14/2013)
107 ORDER ON MOTIONS TO COMPEL (ECF No. 87 , 89 , 90 ) − For the reasons stated on the record at the hearing held on January 1, 2013, the motions are GRANTED IN PART, DENIED IN PART, and otherwise rendered moot. Prison

01/11/2013
01/15/2013 01/18/2013 01/18/2013 01/18/2013 01/22/2013 01/22/2013 01/22/2013 01/23/2013 01/29/2013 01/30/2013
01/30/2013 02/01/2013

Legal News's requests for attorney's fees and expenses against Correction Corporation of America and The GEO Group are denied. Signed by JUDGE MARK E WALKER on 1/11/2013. (dlt) (Entered: 01/14/2013)
109 Minute Entry for proceedings held before JUDGE MARK E WALKER:Motion Hearing held on 1/11/2013 re 87 , 89 , 90 Motions to Compel. Parties discuss pending motions to compel. Ruling by Court: Motions are GRANTED IN PART, DENIED IN PART, and parts RENDERED AS MOOT. An order is forthcoming. (Court Reporter Lisa Jones) (erl) (Entered: 01/15/2013)
108 NOTICE of Filing Document Under Seal by CORRECTIONS CORPORATION OF AMERICA. (SCHIFINO, JOHN) Modified on 1/22/2013 (dlt). (Additional attachment(s) added on 1/22/2013: # 1 Sealed Correspondence Procedures) (dlt). (Entered: 01/15/2013)
110 MOTION to Shorten Discovery Response Time By One Day, or alternatively, to Extend Discovery Deadline by One Business Day by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 01/18/2013)
111 MOTION to be Relieved from Mediation re 70 Scheduling Order,, Case Referred to Mediation, by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 01/18/2013)
Set/Reset Deadlines as to 110 MOTION to Shorten Discovery Response Time By One Day, or alternatively, to Extend Discovery Deadline by One Business Day . (Internal deadline for referral to judge if response not filed earlier: 2/5/2013). (dlt) (Entered: 01/22/2013)
112 RESPONSE in Opposition re 110 MOTION to Shorten Discovery Response Time By One Day, or alternatively, to Extend Discovery Deadline by One Business Day filed by CORRECTIONS CORPORATION OF AMERICA, GEO GROUP INC. (SCHIFINO, JOHN) (Entered: 01/22/2013)
113 ORDER GRANTING 108 MOTION TO SEAL DOCUMENT. Signed by JUDGE MARK E WALKER on 1/22/2013. (dlt) (Entered: 01/23/2013)
114 ORDER GRANTING 111 MOTION RELIEVING PARTIES FROM REQUESTED MEDIATION. Signed by JUDGE MARK E WALKER on 1/22/2013. (dlt) (Entered: 01/23/2013)
115 ORDER GRANTING 110 MOTION TO EXTEND DEADLINE ( Discovery due by 2/18/2013.) Signed by JUDGE MARK E WALKER on 1/23/2013. (dlt) (Entered: 01/24/2013)
116 STIPULATION of Dismissal of Defendants The GEO Group, Inc. (GEO) and Corrections Corporation of America (CCA) by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 01/29/2013)
117 ORDER FOR DISMISSAL OF DEFENDANTS, THE GEO GROUP, INC. AND CORRECTIONS CORPORATION OF AMERICA re 116 Joint Stipulation of Dismissal; DENIED as Moot 79 Defendants' MOTION for Summary Judgment. "The Defendants, The GEO Group, Inc. and Corrections Corporation of America, are DISMISSED as parties to this action. The parties are ordered to comply with their settlement agreement. The court reserves jurisdiction to enforce the order to comply with the settlement agreement. All claims as to The GEO Group, Inc. and Corrections Corporation of America are voluntarily dismissed with prejudice under Federal Rule of Civil Procedure 41." The claims remain pending against the remaining Defendant, the Secretary of the Florida Department of Corrections, and thus the motion for partial summary judgment, ECF No. 93 , remains pending. Signed by JUDGE MARK E WALKER on 1/30/2013. (dlt). (Entered: 01/30/2013)
118 CLERK'S JUDGMENT entered pursuant to doc. 117 Order For Dismissal of Defendants, The GEO Group, Inc. And Corrections Corporation Of America. (dlt) (Entered: 01/30/2013)
119 MOTION to Amend/Correct 14 Amended Complaint by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − Proposed Second Amended Complaint, # 2 Exhibit 2 − FDOC Revised Interrogatory Responses, # 3 Exhibit 3 − FDOC Emails) (TREVISANI, DANTE) (Entered: 02/01/2013)

02/04/2013
02/05/2013 02/06/2013 02/06/2013 02/12/2013 02/13/2013 02/13/2013 02/19/2013 02/22/2013
02/25/2013 02/25/2013 02/25/2013 02/27/2013 03/06/2013 03/07/2013 03/08/2013

120 RESPONSE in Opposition re 93 MOTION for Partial Summary Judgment on Counts III and VI filed by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − Order, Findings of Fact and Conclusion of Law, # 2 Exhibit 2 − Complaint, # 3 Exhibit 3 − FDOC's Motion for Summary Judgment, # 4 Exhibit 4 − Order Denying FDOC's Motion for Summary Judgment, # 5 Exhibit 5 − FDOC's Response to PLN's Motion for Summary Judgment, # 6 Exhibit 6 − FDOC's Trial Brief) (TREVISANI, DANTE) (Entered: 02/04/2013)
121 MOTION for Reconsideration re 114 Order, Terminate Deadlines by KENNETH S TUCKER. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Errata D) (NEFF, LANCE) (Entered: 02/05/2013)
122 ORDER DENYING 93 DEFENDANT TUCKER'S MOTION FOR PARTIAL SUMMARY JUDGMENT. Signed by JUDGE MARK E WALKER on 2/6/2013. (dlt) (Entered: 02/06/2013)
123 ORDER DENYING 121 DEFENDANT CREWS' MOTION FOR RECONSIDERATION. Signed by JUDGE MARK E WALKER on 2/6/2013. (dlt) (Entered: 02/06/2013)
124 Joint MOTION for Extension of Time to Complete Discovery by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 02/12/2013)
125 ORDER GRANTING 124 JOINT MOTION FOR EXTENSION OF DISCOVERY DEADLINE.(Discovery due by 2/22/2013.) No other deadlines are extended. Signed by JUDGE MARK E WALKER on 2/13/2013. (dlt) (Entered: 02/13/2013)
126 RESPONSE in Opposition re 119 MOTION to Amend/Correct 14 Amended Complaint filed by KENNETH S TUCKER. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (NEFF, LANCE) (Entered: 02/13/2013)
127 ORDER DENYING 119 MOTION FOR LEAVE TO FILE SECOND AMENDED COMPLAINT. Signed by JUDGE MARK E WALKER on 2/19/2013. (dlt) (Entered: 02/19/2013)
128 MOTION to File Amicus Brief in Support of Plaintiff's Motion for Summary Judgment by Florida Press Association, First Amendment Foundation, Reporters' Committee for Freedom of the Press, Society of Professional Journalists, Allied Daily Newspapers of Washington. (Internal deadline for referral to judge if response not filed earlier: 3/12/2013). (JULIN, THOMAS) (Entered: 02/22/2013)
129 RESPONSE in Opposition re 128 MOTION to File Amicus Brief in Support of Plaintiff's Motion for Summary Judgment filed by KENNETH S TUCKER. (MAHER, SUSAN) (Entered: 02/25/2013)
130 MOTION for Leave to File re 129 Response in Opposition to Motion by Allied Daily Newspapers of Washington, First Amendment Foundation, Florida Press Association, Reporters' Committee for Freedom of the Press, Society of Professional Journalists. (JULIN, THOMAS) (Entered: 02/25/2013)
131 ORDER GRANTING 128 MOTION FOR LEAVE TO FILE AMICUS CURIAE MEMORANDUM − (The Press Organizations may file an Amicus Brief by 3/8/2013.) The Defendant may file a separate response to such an amicus brief if it so chooses. Signed by JUDGE MARK E WALKER on 2/25/2013. (dlt) (Entered: 02/26/2013)
132 ORDER DENYING PRESS ORGANIZATIONS' 130 MOTION FOR LEAVE TO REPLY TO OPPOSITION TO MOTION FOR LEAVE TO FILE AMICUS MEMORANDUM. The Court DENIES the motion as moot. Signed by JUDGE MARK E WALKER on 2/27/2013. (tdl) (Entered: 02/27/2013)
133 Consent MOTION for Leave to File Excess Pages by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 03/06/2013)
134 ORDER GRANTING 133 ENLARGEMENT OF PAGE LIMIT. Signed by JUDGE MARK E WALKER on 3/7/2013. (dlt) (Entered: 03/07/2013)
135 Second MOTION for Summary Judgment by KENNETH S TUCKER. (Internal deadline for referral to judge if response not filed earlier: 3/26/2013). (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Exhibit 3, # 4 Exhibit 4, # 5 Exhibit 5, # 6 Exhibit 6, # 7

03/08/2013 03/08/2013 03/08/2013 03/08/2013
03/11/2013 03/12/2013 03/14/2013

Exhibit 7, # 8 Exhibit 8, # 9 Exhibit 9, # 10 Exhibit 10, # 11 Exhibit 11, # 12 Exhibit 12, # 13 Exhibit 13, # 14 Errata 14, # 15 Exhibit 15, # 16 Exhibit 16, # 17 Exhibit 17, # 18 Exhibit 18, # 19 Exhibit 19, # 20 Exhibit 20, # 21 Exhibit 21, # 22 Exhibit 22, # 23 Exhibit 23, # 24 Exhibit 24, # 25 Exhibit 25, # 26 Exhibit 26, # 27 Exhibit 27, # 28 Exhibit 28, # 29 Exhibit 29, # 30 Exhibit 30, # 31 Exhibit 31, # 32 Exhibit 32, # 33 Exhibit 33, # 34 Exhibit 34, # 35 Exhibit 35, # 36 Exhibit 36, # 37 Exhibit 37, # 38 Exhibit 38, # 39 Exhibit 39, # 40 Exhibit 40, # 41 Exhibit 41, # 42 Exhibit 42, # 43 Exhibit 43, # 44 Exhibit 44, # 45 Exhibit 45, # 46 Exhibit 46, # 47 Exhibit 47, # 48 Exhibit 48, # 49 Exhibit 49, # 50 Exhibit 50, # 51 Exhibit 51, # 52 Exhibit 52, # 53 Exhibit 53, # 54 Exhibit 54, # 55 Exhibit 55, # 56 Exhibit 56, # 57 Exhibit 57−108) (NEFF, LANCE) (Entered: 03/08/2013)
136 NOTICE of Filing Exhibits via U.S. Mail by KENNETH S TUCKER re 135 Second MOTION for Summary Judgment (NEFF, LANCE) **Exhibits 19,29,48, and 57−108 received by the Clerk and place on shelf in case order**Modified on 3/12/2013 (dlt). (Entered: 03/08/2013)
137 Consent MOTION for Leave to File Various Documents in Support of Motion for Summary Judgment by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 03/08/2013)
138 AMICUS CURIAE BRIEF by Allied Daily Newspapers of Washington, First Amendment Foundation, Florida Press Association, Reporters' Committee for Freedom of the Press, Society of Professional Journalists Re Summary Judgment. (JULIN, THOMAS) (Entered: 03/08/2013)
139 MOTION for Summary Judgment by PRISON LEGAL NEWS. (Internal deadline for referral to judge if response not filed earlier: 3/26/2013). (Attachments: # 1 Exhibit 1 − Wright Declaration, # 2 Exhibit 2 − Sampel Issues of Prison Legal News, # 3 Exhibit 3 − Order, Findings of Fact and Conclusions of Law, # 4 Exhibit 4 − Complaint, # 5 Exhibit 5 − Def. Mot. Summ. J., # 6 Exhibit 6 − Order on Def. MSJ, # 7 Exhibit 7 − Def. Resp. to Pl. Mot. Summ. J., # 8 Exhibit 8 − Previous Rule 33−501.401(4), # 9 Exhibit 9 − Def. Trial Brief, # 10 Exhibit 10 − Amended Rule 33−501.401, # 11 Exhibit 11 − LRC Decisions, # 12 Exhibit 12 − LRC Meeting Minutes, # 13 Exhibit 13 − Def. Resp. to Pl. First Req. for Admissions, # 14 Exhibit 14 − Sales Receipt for Guerilla Handbook, # 15 Exhibit 15 − Letter from LRC, # 16 Exhibit 16 − FDOC's Resp. to Pl. First Interrogatories, # 17 Exhibit 17 − Bohrer Emails, # 18 Exhibit 18 − Upchurch Rule 30(b)(6) Deposition, # 19 Exhibit 19 − Febus Declaration, # 20 Exhibit 20 − Miller Declaration, # 21 Exhibit 21 − Sample Notice of Impoundment, # 22 Exhibit 22 − Hughes Rule 30(b)(6) Deposition, # 23 Exhibit 23 − Moore Deposition, # 24 Exhibit 24 − FDOC Emails During Rulemaking, # 25 Exhibit 25 − Securus Contract, # 26 Exhibit 26 − Securus Website Printout, # 27 Exhibit 27 − Dyar Declaration, # 28 Exhibit 28 − Millicorp Comments in FCC Proceeding WC 09−144, # 29 Exhibit 29 − Sample "Business" Advertisement, # 30 Exhibit 30 − Sample Phone Advertisement, # 31 Exhibit 31 − Exhibit List) (TREVISANI, DANTE) (Entered: 03/08/2013)
140 ORDER GRANTING 137 MOTION FOR LEAVE TO FILE AND TO SEAL. The Clerk shall file under seal in PDF format the copyrighted book Prisoners Guerilla Handbook to Correspondent Programs in the United States and Canada. Signed by JUDGE MARK E WALKER on 3/11/2013. (dlt) (Entered: 03/12/2013)
141 ORDER TO DELIVER COPIES OF MOTIONS TO COURT re 139 MOTION for Summary Judgment filed by PRISON LEGAL NEWS, 135 Second MOTION for Summary Judgment filed by KENNETH S TUCKER.( Copies of their motions together with all attachments due by 3/18/2013.) Signed by JUDGE MARK E WALKER on 3/12/2013. (dlt) (Entered: 03/13/2013)
142 NOTICE OF HEARING: Telephonic Status Conference set for 2/22/2013 02:00 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.

Parties are instructed to call (850) 521−3631 at the time of hearing.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign

language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

03/14/2013

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 03/14/2013)
143 **Corrected** NOTICE OF HEARING Telephonic Status Conference set for 3/22/2013 02:00 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.

Parties are instructed to call (850) 521−3631 at the time of hearing.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

03/14/2013

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 03/14/2013)
144 NOTICE OF HEARING **Due to Change in Court Schedule** Telephonic Status Conference reset for 3/18/2013 10:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.

Parties are instructed to call (850) 521−3631 at the time of hearing.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

03/15/2013 03/18/2013
03/18/2013
03/18/2013 03/21/2013

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 03/14/2013)
145 RESPONSE by KENNETH S TUCKER re 138 Amicus Curiae Brief . (NEFF, LANCE) (Entered: 03/15/2013)
146 Minute Entry for proceedings held before JUDGE MARK E WALKER: Scheduling Conference held on 3/18/2013. Court addresses deadlines for responses and replies to summary judgment motions; all responses to summary judgment motions shall be filed within 21; replies to be filed within 7 days. Hearing on Summary Judgment Motion set for May 29, 2013 at 1:00 pm. Case set for trial on August 19, 2013. Ruling: Court to issue new pretrial order with pretrial and trial dates. (Court Reporter Lisa Jones.) (pll) (Entered: 03/18/2013)
147 **AMENDED**ORDER FOR PRETRIAL CONFERENCE − Attorney Conference to take place by 6/29/2013. Pretrial Stipulation due by 7/12/2013. Jury Trial set for 8/19/2013 08:15 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. Pretrial Conference set for 7/19/2013 10:30 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.. Signed by JUDGE MARK E WALKER on 3/18/2013. (dlt) (Entered: 03/18/2013)
148 NOTICE OF FILING(Sealed CD, documents, and DVD) by PRISON LEGAL NEWS re 140 ORDER GRANTING 137 MOTION FOR LEAVE TO FILE AND TO SEAL. (dlt). (Entered: 03/19/2013)
149 SEALED DOCUMENT (titled Prisoner's Guerilla Handbook to Correspondence Programs in the United States & Canada), filed under seal pursuant to Order 140 (dlt) (Entered: 03/21/2013)

03/21/2013 03/28/2013

150 NOTICE Of Trial Term Calendar Conflict by PRISON LEGAL NEWS re 147 Pretrial Order, (Attachments: # 1 Exhibit A−Order re trial term) (BERG, RANDALL) (Entered: 03/21/2013)
151 NOTICE of **RESCHEDULED** Hearing on Motion 139 MOTION for Summary Judgment , 135 Second MOTION for Summary Judgment : Motion Hearing reset for 6/14/2013 01:30 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, Courtroom 5 South, 111 North Adams St., Tallahassee, Florida 32301.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

03/29/2013
03/29/2013 04/05/2013 04/05/2013 04/08/2013

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 03/28/2013)
152 RESPONSE in Opposition re 139 MOTION for Summary Judgment filed by KENNETH S TUCKER. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O, # 16 Exhibit P, # 17 Exhibit Q, # 18 Exhibit R, # 19 Exhibit S, # 20 Exhibit T, # 21 Exhibit U, # 22 Exhibit V, # 23 Exhibit W, # 24 Exhibit X) (GARLAND, CEDELL) (Entered: 03/29/2013)
153 RESPONSE in Opposition re 135 Second MOTION for Summary Judgment filed by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − Chart of Objections to Defendant's Exhibits, # 2 Exhibit 2 − 2005 Locator Ads, # 3 Exhibit 3 − Defendant's Response to Plaintiff's First RFP, # 4 Exhibit 4 − Wright Supplemental Declaration, # 5 Exhibit 5 − Updated Rate Chart, # 6 Exhibit 6 − Sentel Ad and Rates, # 7 Exhibit 7 − Phillips Declaration) (TREVISANI, DANTE) (Entered: 03/29/2013)
154 REPLY to Response to Motion re 139 MOTION for Summary Judgment filed by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − CURE Comments, # 2 Exhibit 2 − Phone Company Comments, # 3 Exhibit 3 − Wright Second Supplemental Declaration) (TREVISANI, DANTE) (Entered: 04/05/2013)
155 REPLY to Response to Motion re 135 Second MOTION for Summary Judgment filed by KENNETH S TUCKER. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L) (NEFF, LANCE) (Entered: 04/05/2013)
156 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings TELEPHONIC HEARING ON MOTIONS TO COMPEL held on JANUARY 11, 2013, before Judge MARK E. WALKER. Court Reporter LISA JONES, Telephone number 850.513.1145. <br>

<p> Transcript may be viewed at the court public terminal or purchased through the Court Reporter before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

04/08/2013 05/13/2013 05/16/2013

<br></p> Redaction Request due 4/15/2013. Release of Transcript Restriction set for 7/15/2013. (lj) (Entered: 04/08/2013)
157 NOTICE of Correction by KENNETH S TUCKER re 152 Response in Opposition to Motion,, (GARLAND, CEDELL) (Entered: 04/08/2013)
158 NOTICE OF CANCELLATION OF 151 Notice of Hearing on Motion. **Hearing will be rescheduled at a later date. (pll) (Entered: 05/13/2013)
159 MOTION to Exclude Evidence from Summary Judgment Record by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − Pl. First Set of Interrogatories to FDOC, # 2 Exhibit 2 − Pl. First Request for Production to FDOC, # 3 Exhibit 3 − Def. Answers to

05/16/2013 05/17/2013 05/20/2013
05/20/2013
05/21/2013 05/21/2013 05/24/2013 05/24/2013 05/31/2013 06/03/2013 08/01/2013 11/21/2013 11/21/2013 12/02/2013 12/04/2013 12/12/2013 12/13/2013 01/02/2014

Pl. First Interrogatories, # 4 Exhibit 4 − Transcript of Hearing on Motion to Compel) (TREVISANI, DANTE) (Entered: 05/16/2013)
Set/Reset Deadlines as to 159 MOTION to Exclude Evidence from Summary Judgment Record . (Internal deadline for referral to judge if response not filed earlier: 6/3/2013). (dlt) (Entered: 05/17/2013)
160 MOTION to Substitute Attorney by PRISON LEGAL NEWS. (STEVENSON, BENJAMIN) (Entered: 05/17/2013)
161 RESPONSE in Opposition re 159 MOTION to Exclude Evidence from Summary Judgment Record filed by KENNETH S TUCKER. (Attachments: # 1 Exhibit A−H, # 2 Exhibit I−Q, # 3 Exhibit R, # 4 Exhibit S−U) (NEFF, LANCE) (Entered: 05/20/2013)
162 ORDER GRANTING 60 MOTION FOR SUBSTITUTION OF COUNSEL. Randall C. Marshall terminated as a counsel of record and Benjamin James Stevenson substituted as a counsel of record for Plaintiff. Signed by JUDGE MARK E WALKER on 5/20/2013. (dlt) (Entered: 05/21/2013)
163 MOTION for Leave to File Reply by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 05/21/2013)
164 RESPONSE in Opposition re 163 MOTION for Leave to File Reply filed by KENNETH S TUCKER. (NEFF, LANCE) (Entered: 05/21/2013)
165 ORDER REMOVING FROM TRIAL CALENDAR − This Court cancels the pretrial of July 19, 2013, and removes the action from the trial docket of August 19, 2013. Signed by JUDGE MARK E WALKER on 5/24/2013. (tdl) (Entered: 05/24/2013)
166 ORDER GRANTING 163 LEAVE TO FILE REPLY AND SURREPLY. Signed by JUDGE MARK E WALKER on 5/24/2013. (tdl) (Entered: 05/24/2013)
167 REPLY to Response to Motion re 159 MOTION to Exclude Evidence from Summary Judgment Record filed by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 05/31/2013)
168 REPLY to Response to Motion re 159 MOTION to Exclude Evidence from Summary Judgment Record SURREPLY filed by KENNETH S TUCKER. (NEFF, LANCE) (Entered: 06/03/2013)
169 NOTICE of Supplemental Authority by KENNETH S TUCKER re 155 Reply to Response to Motion, 152 Response in Opposition to Motion,, (Attachments: # 1 Appendix 1 − Knight Opinion) (GARLAND, CEDELL) (Entered: 08/01/2013)
170 MOTION to Intervene and Motion To Be Joined As A Plaintiff Party by DANIEL J LEVITAN. (dlt) (Entered: 11/26/2013)
171 Intervenor COMPLAINT, filed by DANIEL J LEVITAN. (dlt) (Entered: 11/26/2013)
172 RESPONSE in Opposition re 170 MOTION to Intervene filed by KENNETH S TUCKER. (NEFF, LANCE) (Entered: 12/02/2013)
173 ORDER DENYING 170 MOTION TO INTERVENE. Signed by JUDGE MARK E WALKER on 12/4/2013. (dlt)**Copy mailed to Daniel J Levitan**. (Entered: 12/05/2013)
174 DANIEL J LEVITAN'S OBJECTION AND MEMORANDUM OF LAW TO DEFENDANT CREW'S 172 RESPONSE IN OPPOSITION TO MOTION TO INTERVENE. (dlt) (Entered: 12/20/2013)
175 MOTION To Construe Daniel J. Levitan's Objection and Memorandum Of Law To Defendant Crew's Response In Opposition To Motion To Intervene As A Motion For Reconsideration by DANIEL J LEVITAN. (dlt) (Entered: 12/20/2013)
176 ORDER GRANTING 175 MOTION TO CONSTRUE LEVITAN'S OBJECTION AND MEMORANDUM AS A MOTION FOR RECONSIDERATION AND DENYING 174 THE MOTION FOR RECONSIDERATION. Signed by JUDGE MARK E WALKER on 1/2/2014. (dlt) (Entered: 01/02/2014)

01/09/2014 01/13/2014
01/14/2014 01/16/2014 01/24/2014 01/31/2014 02/06/2014
03/06/2014 03/12/2014
03/13/2014 03/13/2014 03/14/2014

177 NOTICE OF APPEAL as to 173 Order on Motion to Intervene by DANIEL J LEVITAN. ( Certificate of Readiness/Notice of Electronic Availability of ROA due by 1/28/2014.) (dlt) (Entered: 01/13/2014)
178 Appeal Instructions re: 177 Notice of Appeal : The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_fillable.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 1/27/2014. (dlt) (Entered: 01/13/2014)
179 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 177 Notice of Appeal ; (dlt) (Entered: 01/14/2014)
182 USCA Case Number 14−10167−A for 177 NOTICE OF APPEAL. (dlt) (Entered: 02/05/2014)
180 NOTICE OF NO TRANSCRIPT ON APPEAL re 178 Appeal Instructions by DANIEL J LEVITAN. (dlt) (Entered: 01/27/2014)
181 NOTICE of Change of Address by LANCE THEODORE WEBER (WEBER, LANCE) (Entered: 01/31/2014)
183 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 177 Notice of Appeal, Appeal No. 14−10167−A. The entire record on appeal is available electronically. (dlt) (Entered: 02/06/2014)
184 MOTION for Leave to Appeal in forma pauperis by DANIEL J LEVITAN. (dlt) (Entered: 03/07/2014)
187 ORDER DECLARING DEFENDANT INDIGENT FOR APPEAL − GRANTED 184 Motion for Leave to Appeal in forma pauperis. Appeal #14−10167−A. Signed by JUDGE MARK E WALKER on 3/12/2014. (dlt)**Copy provided to USCA** (Entered: 03/14/2014)
185 Joint MOTION for Hearing Telephonic Status Conference by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 03/13/2014)
186 ORDER GRANTING 185 MOTION FOR TELEPHONE STATUS CONFERENCE − The Clerk is directed to set this cause for a telephone status conference. Signed by JUDGE MARK E WALKER on 3/13/2014. (tdl) (Entered: 03/13/2014)
188 NOTICE OF TELEPHONIC HEARING: Telephonic Status Conference set for 3/27/2014 10:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.

You may dial into the conference call as early as 9:50 AM EST. Call in number: 888−684−8852. When prompted for an access code, enter: 8131706#. If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 7898#. Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

03/26/2014 03/27/2014

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 03/14/2014)
189 NOTICE WITHDRAWING MOTION TO PROCEED ON APPEAL IN FORMA PAUPERIS re 184 MOTION for Leave to Appeal in forma pauperis by DANIEL J LEVITAN. (dlt) (Entered: 03/26/2014)
190 Minute Entry for proceedings held before JUDGE MARK E WALKER: Status Conference held on 3/27/2014. Case to be set for oral argument within 30 days; case to

03/27/2014 04/18/2014 04/24/2014 08/06/2014 08/11/2014
08/18/2014

be heard within 60 days. (Court Reporter Lisa Jones.) (pll) (Entered: 03/27/2014)
191 ORDER ACKNOWLEDGING DISMISSAL OF INTERLOCUTORY APPEAL re 189 Notice of Withdrawing Motion to Proceed on Appeal in Forma Pauperis. Signed by JUDGE MARK E WALKER on 3/27/2014. (dlt) (Entered: 03/28/2014)
192 MANDATE of USCA as to 177 Notice of Appeal. USCA #14−10167−AA. (tdl) (Entered: 04/18/2014)
193 NOTICE of Supplemental Authority by PRISON LEGAL NEWS (Attachments: # 1 Exhibit FCC Declaratory Ruling and Order) (TREVISANI, DANTE) (Entered: 04/24/2014)
194 ORDER DENYING PLAINTIFF PRISON LEGAL NEWS' 159 MOTION TO EXCLUDE EVIDENCE FROM THE SUMMARY JUDGMENT RECORD. Signed by JUDGE MARK E WALKER on 8/6/2014. (sac) (Entered: 08/07/2014)
195 ORDER DENYING CROSS−MOTIONS FOR SUMMARY JUDGMENT − The motions for summary judgment filed by plaintiff Prison Legal News ("PLN"), ECF No. 139 and by defendant, Michael D. Crews, ECF No. 135 are DENIED. Signed by JUDGE MARK E WALKER on 8/11/2014. (sac) (Entered: 08/11/2014)
196 NOTICE OF TELEPHONIC HEARING: Telephonic Scheduling Conference set for 8/21/2014 01:30 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

s/ Pam Lourcey Courtroom Deputy Clerk

You may dial into the conference call as early as 1:20 ET.

Call in number: 888−684−8852. When prompted for an access code, enter: 8131706#. If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 7898#. Say your name, when prompted. You are now in the conference call.

08/21/2014 08/21/2014

Remember to mute your phone when you are not speaking. (pll) (pll) (Entered: 08/18/2014)
197 Minute Entry for proceedings held before JUDGE MARK E WALKER:Scheduling Conference held on 8/21/2014. Case is set for a Bench Trial on January 5, 2015 beginning at 8:00 a.m. Exhibit and Witness List due by October 31, 2014. Counsel to alert Court by October 31, 2014 whether hearing time is needed on December 5, 2014 at 1:00 p.m. Counsel to confer by September 12, 2014 and notify Court by same date if a hearing is needed on the scope and timing of Supplemental Discovery. (Counsel to alert Court whether hearing time is needed on December 5, 2014 at 1:00 p.m. by 10/31/2014., Exhibit List/Witness List due by 10/31/2014., Counsel to confer and notify Court by same date if a hearing is needed on the scope and timing of Supplemental Discovery by 9/12/2014., Bench Trial set for 1/5/2015 08:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER., Pretrial Conference set for 12/5/2014 01:00 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.). (Court Reporter Lisa Jones.) (pll) (Entered: 08/21/2014)
198 NOTICE OF HEARING : Bench Trial set for 1/5/2015 08:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign

language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

08/22/2014
08/27/2014 09/12/2014 09/15/2014

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 08/21/2014)
199 ORDER CONFIRMING TRIAL SCHEDULE. ( Counsel shall alert this Court on or before October 31, 2014, whether hearing time is needed on December 5, 2014. Witness/Exhibit List due by 10/31/2014., Miscellaneous Deadline to notify Court if a hearing is needed on the scope and timing of supplemental discovery − by 9/12/2014., Bench Trial set for 1/5/2015 08:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER., Pretrial Conference set for 12/5/2014 01:00 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.). Signed by JUDGE MARK E WALKER on 8/22/2014. (pll) (Entered: 08/22/2014)
200 NOTICE of Appearance by LISA KUHLMAN TIETIG on behalf of KENNETH S TUCKER (TIETIG, LISA) (Entered: 08/27/2014)
201 NOTICE on Need for Supplemental Discovery Hearing by PRISON LEGAL NEWS (TREVISANI, DANTE) (Entered: 09/12/2014)
202 NOTICE OF TELEPHONIC HEARING: Telephonic Discovery Hearing set for 9/15/2014 03:00 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.

You may dial into the conference call as early as 2:50 EST.

Call in number: 888−684−8852

When prompted for an access code, enter: 8131706#

If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 7898#

Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

09/15/2014 09/16/2014
09/23/2014 09/24/2014

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 09/15/2014)
203 Minute Entry for proceedings held before JUDGE MARK E WALKER: Discovery Hearing held on 9/15/2014. Depositions will be held October 6th, 9th and 10th. (Court Reporter Lisa Jones.) (pll) (Entered: 09/15/2014)
204 First MOTION in Limine by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit 1 − Plaintiff's First Set of Interrogatories to Defendant, # 2 Exhibit 2 − Plaintiff's First Request for Production to Defendant, # 3 Exhibit 3 − Defendant's Answers to Plaintiff's First Interrogatories, # 4 Exhibit 4 − Transcript of Telephonic Hearing on Motion to Compel, # 5 Exhibit 5 − FDOC's Fifth Amended Initial Disclosures) (TREVISANI, DANTE) (Entered: 09/16/2014)
205 MOTION to Extend Timeby One Day to File Response to Plaintiff's Motion in Limine by KENNETH S TUCKER. (TIETIG, LISA) (Entered: 09/23/2014)
206 ORDER GRANTING 205 MOTION FOR EXTENSION OF TIME TO FILE RESPONSE − Response to the motion in limine due 9/24/2014 . Signed by JUDGE MARK E WALKER on 9/24/2014. (sac) (Entered: 09/24/2014)

09/24/2014 10/17/2014
10/24/2014 10/24/2014
11/06/2014 11/06/2014 11/06/2014 11/06/2014 11/10/2014 11/12/2014 11/12/2014 11/14/2014

207 RESPONSE in Opposition re 204 First MOTION in Limine filed by MICHAEL D CREWS. (TIETIG, LISA) (Entered: 09/24/2014)
208 ORDER GRANTING IN PART AND DENYING IN PART 204 MOTION IN LIMINE. Signed by JUDGE MARK E WALKER on 10/17/2014. (sac) (Entered: 10/17/2014)
209 Consent MOTION to Extend Timeto File Exhibit and Witness Lists by MICHAEL D CREWS. (TIETIG, LISA) (Entered: 10/24/2014)
210 ORDER AMENDING DEADLINES − The Unopposed 209 Consent MOTION to Extend the Deadlines for Filing Witness and Exhibit Lists is GRANTED. ( Witness and Exhibit List due by 11/6/2014. The parties shall advise this Court prior to November 12, 2014, of the need for a pretrial conference. Signed by JUDGE MARK E WALKER on 10/24/2014. (sac) (Entered: 10/27/2014)
211 Exhibit List by MICHAEL D CREWS.. (TIETIG, LISA) (Entered: 11/06/2014)
212 Witness List by MICHAEL D CREWS. (TIETIG, LISA) (Entered: 11/06/2014)
213 Witness List by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 11/06/2014)
214 Exhibit List by PRISON LEGAL NEWS.. (TREVISANI, DANTE) (Entered: 11/06/2014)
215 NOTICE of Appearance by SABARISH P NEELAKANTA on behalf of PRISON LEGAL NEWS (NEELAKANTA, SABARISH) (Entered: 11/10/2014)
216 Exhibit List Amended by MICHAEL D CREWS.. (TIETIG, LISA) (Entered: 11/12/2014)
217 NOTICE that No Conference is Requested by MICHAEL D CREWS re 210 Order,, Set Deadlines/Hearings, (TIETIG, LISA) (Entered: 11/12/2014)
218 NOTICE OF TELEPHONIC HEARING: Telephonic Pretrial Conference set for 12/5/2014 01:00 PM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.

Conference Call Information

You may dial into the conference call as early as 12:50 ET.

Call in number: 888−684−8852

When prompted for an access code, enter: 8131706#

If you are asked to join as the host, just ignore and wait until you are asked for a security code.

When asked for a security code, enter: 7898#

Say your name, when prompted. You are now in the conference call. Remember to mute your phone when you are not speaking.

11/28/2014 12/02/2014

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 11/14/2014)
219 Joint MOTION re 199 Order,,, Set Deadlines/Hearings,, for Clarification of the Order Confirming Trial Schedule (DE 199) by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 11/28/2014)
220 ORDER CLARIFYING ORDER CONFIRMING TRIAL SCHEDULE − The Joint MOTION for Clarification of Order Confirming Trial Schedule, ECF No. 219 , is GRANTED. ( The Attorney Conference and the filing of the Pretrial Stipulation deadline is 12/29/2014 ). Signed by JUDGE MARK E WALKER on 12/2/2014. (sac) (Entered: 12/02/2014)

12/05/2014
12/16/2014 12/18/2014
12/18/2014 12/18/2014

221 Minute Entry for proceedings held before JUDGE MARK E WALKER: Status Conference held on 12/5/2014. One witness will appear via phone. Counsel to contact Court for demonstration of EPS. ( Bench Trial set for 1/5/2015 08:30 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.). (Court Reporter Lisa Jones.) (pll) (pll). (Entered: 12/08/2014)
222 NOTICE of Deposition Designations to be Read at Trial by KENNETH S TUCKER (NEFF, LANCE) (Entered: 12/16/2014)
223 NOTICE of Filing Deposition Transcripts by PRISON LEGAL NEWS (Attachments: # 1 Exhibit Deposition Transcript of Jeanine Moore, # 2 Exhibit Deposition Transcript of Rhonda Smith, # 3 Exhibit Deposition Transcript of Patricia Goodman, # 4 Exhibit Deposition Transcript of Allen Overstreet) (TREVISANI, DANTE) (Entered: 12/18/2014)
224 Minute Entry for proceedings held before JUDGE MARK E WALKER: Telephone Conference held on 12/18/2014. Court clarifies filing of depositions. Hearing to be set re: witnesses for trial. (Court Reporter Judy Nolton.) (pll) (Entered: 12/18/2014)
225 NOTICE OF TELEPHONIC HEARING: Scheduling Conference set for 12/19/2014 11:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER. United States Courthouse, 111 North Adams St., Tallahassee, Florida 32301.

Parties are instructed to call (850) 521−3631 at the time of hearing.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

12/18/2014 12/19/2014 12/19/2014
12/19/2014 12/22/2014

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 12/18/2014)
226 MOTION to Admit Documents from First PLN Case by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 12/18/2014)
227 Minute Entry for proceedings held before JUDGE MARK E WALKER:Motion Hearing held on 12/19/2014 re 226 MOTION to Admit Documents from First PLN Case filed by PRISON LEGAL NEWS. Parties discuss pending motion to admit documents. Ruling by Court: Motion is GRANTED. An order is forthcoming. (Court Reporter Judy Gagnon) (erl) (Entered: 12/19/2014)
228 NOTICE of Filing by PRISON LEGAL NEWS (Attachments: # 1 Exhibit Complaint, # 2 Exhibit FDOC's Answers to the Complaint, # 3 Exhibit Affidavit of Hieteenthia Hayes, # 4 Exhibit Affidavit of James Upchurch, # 5 Exhibit Email from Michael Rathmann, # 6 Exhibit FDOC's Motion for Summary Judgment, # 7 Exhibit PLN's Responses to Motion for Summary Judgment, # 8 Exhibit FDOC's Responses to Interrogatories, # 9 Exhibit FDOC's Response to PLN's Motion for Summary Judgment, # 10 Exhibit FDOC's Trial Brief, # 11 Exhibit FDOC's Proposed Findings of Fact and Conclusions of Law, # 12 Exhibit Portions of Trial Transcript) (TREVISANI, DANTE) (Entered: 12/19/2014)
229 ORDER GRANTING MOTION TO ADMIT DOCUMENTS − For the reasons stated on the record, the motion, ECF No. 226 is GRANTED. Signed by JUDGE MARK E WALKER on 12/19/2014. (sac) (Entered: 12/19/2014)
230 AMENDED DOCUMENT by PRISON LEGAL NEWS. Amendment to 228 Notice (Other),, of Filing (CORRECTED) (Attachments: # 1 Exhibit Complaint, # 2 Exhibit FDOC's Answers to the Complaint, # 3 Exhibit Affidavit of Allen Overstreet, # 4 Exhibit Affidavit of Hieteenthia Hayes, # 5 Exhibit Affidavit of James Upchurch, # 6 Exhibit Email from Michael Rathmann, # 7 Exhibit FDOC's Motion for Summary Judgment, # 8 Exhibit PLN's Responses to Motion for Summary Judgment, # 9 Exhibit FDOC's Responses to Interrogatories, # 10 Exhibit FDOC's Response to PLN's Motion for Summary Judgment, # 11 Exhibit FDOC's Trial Brief, # 12 Exhibit FDOC's Proposed Findings of Fact and Conclusions of Law, # 13 Exhibit Portions of Trial Transcript) (BERG, RANDALL) (Entered: 12/22/2014)

12/23/2014 12/26/2014 12/27/2014 12/31/2014
01/05/2015 01/06/2015 01/07/2015 01/08/2015
01/09/2015 01/14/2015

231 NOTICE of Appearance by SEAN WILLIAM GELLIS on behalf of TIMOTHY H CANNON (GELLIS, SEAN) (Entered: 12/23/2014)
232 Joint MOTION for Extension of Time to File Joint Pretrial Stipulation by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 12/26/2014)
233 ORAL ORDER granting 232 Joint MOTION for Extension of Time to File Joint Pretrial Stipulation. Ordered by JUDGE MARK E WALKER on 12/27/2014. (pll) (Entered: 12/27/2014)
234 PRETRIAL Stipulation by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit A−Plaintiff's Exhibit List, # 2 Exhibit B−Defendant's Exhibit List, # 3 Exhibit C−Plaintiff's Witness List, # 4 Exhibit D−Defendant's Witness List) (BERG, RANDALL) (Entered: 12/31/2014)
235 Minute Entry for proceedings held before JUDGE MARK E WALKER: Day 1 of Bench Trial held on 1/5/2015. (Court Reporter Lisa Jones.) (pll) (Entered: 01/06/2015)
236 Minute Entry for proceedings held before JUDGE MARK E WALKER:Day 2 of Bench Trial held on 1/6/2015. (Court Reporter Lisa Jones.) (pll) (Entered: 01/06/2015)
237 Minute Entry for proceedings held before JUDGE MARK E WALKER:Day 3 of Bench Trial held on 1/7/2015. (Court Reporter Lisa Jones.) (pll) (Entered: 01/07/2015)
238 Minute Entry for proceedings held before JUDGE MARK E WALKER: Bench Trial held January 5th, 6th, 7th, and 8th, 2015. Counsel to submit closing briefs by:Plaintiffs Brief due 1/23/15, Reply Brief 1/30/15. Objections to Arnold Deposition due by 1/9/15. Bench Trial completed on 1/8/2015, ( Plaintiff's Brief due by 1/23/2015., Reply Brief due by 1/30/2015., Objections to Arnold Deposition due by 1/9/2015.) (Court Reporter Lisa Jones.) (Attachments: # 1 Plaintiff's Exhibit List, # 2 Defendants' Exhibit List) (pll) (Entered: 01/08/2015)
239 NOTICE of Filing Additional Objections to Steve Arnold Deposition by PRISON LEGAL NEWS (TREVISANI, DANTE) (Entered: 01/09/2015)
240 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings FOURTH DAY OF BENCH TRIAL held on JANUARY 8, 2015, before Judge MARK E. WALKER. Court Reporter/Transcriber LISA JONES, Telephone number 850.513.1145. <br>

<p> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

01/23/2015
01/23/2015 01/29/2015 03/31/2015 05/22/2015 06/30/2015
08/17/2015

<br></p> Redaction Request due 1/21/2015. Release of Transcript Restriction set for 4/21/2015. (lj) (Entered: 01/14/2015)
241 TRIAL BRIEF (Post Trial Briefing) by PRISON LEGAL NEWS. (Attachments: # 1 Exhibit A − Chart of Rejections and Impoundments) (TREVISANI, DANTE) (Entered: 01/23/2015)
242 TRIAL BRIEF on Supplemental Legal Issues by TIMOTHY H CANNON. (NEFF, LANCE) (Entered: 01/23/2015)
243 NOTICE of Objection to Chart by MICHAEL D CREWS re 241 Trial Brief (NEFF, LANCE) (Entered: 01/29/2015)
244 NOTICE of Supplemental Authority by MICHAEL D CREWS re 242 Trial Brief (Attachments: # 1 Exhibit A: Smith Order) (NEFF, LANCE) (Entered: 03/31/2015)
245 ORDER. The objection, ECF No. 243 , is GRANTED in part and DENIED in part. Signed by JUDGE MARK E WALKER on 5/22/2015. (pll) (Entered: 05/22/2015)
246 NOTICE of Supplemental Authority by PRISON LEGAL NEWS (Attachments: # 1 Exhibit Prison Legal News v. Stolle Order) (TREVISANI, DANTE) (Entered: 06/30/2015)
247 NOTICE of Supplemental Authority by PRISON LEGAL NEWS (Attachments: # 1 Exhibit A; Order and Order Entering Consent Injunction, # 2 Exhibit B; Complaint)

08/20/2015 08/21/2015 08/24/2015 08/27/2015
08/27/2015 09/04/2015 09/04/2015
09/16/2015 09/16/2015

(BERG, RANDALL) (Entered: 08/17/2015)
248 MOTION to Strike 247 Notice (Other) by MICHAEL D CREWS. (Internal deadline for referral to judge if response not filed earlier: 9/8/2015). (NEFF, LANCE) (Entered: 08/20/2015)
249 RESPONSE in Opposition re 248 MOTION to Strike 247 Notice (Other) filed by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 08/21/2015)
250 ORDER granting in part and denying in part 248 Motion to Strike. Signed by JUDGE MARK E WALKER on 8/24/2015. (pll) (Entered: 08/24/2015)
251 ORDER. Judicial estoppel does not preclude the Florida Department of Corrections from adopting its current litigation position. The Florida Department of Corrections censorship of Prison Legal News under Rule 33−501.401(3) of the Florida Administrative Code does not violate Prison Legal News First Amendment rights. The Florida Department of Corrections censorship procedures violate Prison Legal News right to due process under the Fourteenth Amendment. The Clerk shall enter judgment. This Court retains jurisdiction over the open file to decide costs and attorneys fees, if any. Signed by JUDGE MARK E WALKER on 8/27/2015. (pll) (Entered: 08/27/2015)
252 CLERK'S JUDGMENT, entered pursuant to 251 Order. (pll) (Entered: 08/27/2015)
253 Joint MOTION for Extension of Time to File a Motion for Attorneys Fees, Costs, and Expenses, and to File a Bill of Costs by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 09/04/2015)
254 ORDER GRANTING MOTON FOR EXTENSION OF TIME TO FILE MOTIONS. This Court has considered, without hearing, the Joint Motion for Extension of Time to File Motion for Attorneys' Fees and Expenses, and to File Bill of Costs. ECF No. 253 . The motion is GRANTED. Signed by JUDGE MARK E WALKER on 9/4/2015. (kjw) (Entered: 09/04/2015)
255 MOTION to Stay re 251 Order,, 252 Clerk's Judgment by MICHAEL D CREWS. (NEFF, LANCE) (Entered: 09/16/2015)
256 NOTICE of Telephonic Hearing on 255 MOTION to Stay : Telephonic Motion Hearing set for 10/2/2015 09:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.

Parties are instructed to call (850) 521−3631 at the time of hearing.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

09/18/2015 09/18/2015 09/18/2015 09/18/2015

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 09/16/2015)
257 NOTICE OF APPEAL as to 195 Order on Motion for Summary Judgment,,, 251 Order,, 252 Clerk's Judgment by JULIE L. JONES. ( Filing fee $505 Receipt Number 1129−3367513.) (NEFF, LANCE) (Entered: 09/18/2015)
258 MOTION to Alter Judgment or Amend the Judgment by PRISON LEGAL NEWS. (Internal deadline for referral to judge if response not filed earlier: 10/6/2015). (BERG, RANDALL) (Entered: 09/18/2015)
259 NOTICE OF APPEAL as to 195 , 251 , and 252 Order by PRISON LEGAL NEWS. (Filing fee $505 Receipt Number 1129−3367517.) (BERG, RANDALL) Modified on 9/18/2015 (pll). Modified on 9/21/2015 to establish docket entry relationships per notice. (vkm) (Entered: 09/18/2015)
260 NOTICE of Appeal (Corrected) to Include DE# 195 and DE# 252 by PRISON LEGAL NEWS (BERG, RANDALL) (Entered: 09/18/2015)

09/18/2015 09/21/2015

Set Deadlines re 257 & 259 Notices of Appeal: Clerk to check status of Appeal on 12/18/2015. (vkm) (Entered: 09/21/2015)
261 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings FIRST DAY OF BENCH TRIAL held on JANUARY 5, 2015, before Judge MARK E. WALKER. Court Reporter/Transcriber LISA JONES, Telephone number 850.513.1145. <br>

<p> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

09/21/2015

<br></p> Redaction Request due 9/28/2015. Release of Transcript Restriction set for 12/28/2015. (lj) (Entered: 09/21/2015)
262 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings SECOND DAY OF BENCH TRIAL held on JANUARY 6, 2015, before Judge MARK E. WALKER. Court Reporter/Transcriber LISA JONES, Telephone number 850.513.1145. <br>

<p> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

09/21/2015

<br></p> Redaction Request due 9/28/2015. Release of Transcript Restriction set for 12/28/2015. (lj) (Entered: 09/21/2015)
263 NOTICE OF FILING OF OFFICIAL TRANSCRIPT of Proceedings THIRD DAY OF BENCH TRIAL held on JANUARY 7, 2015, before Judge MARK E. WALKER. Court Reporter/Transcriber LISA JONES, Telephone number 850.513.1145. <br>

<p> Transcript may be viewed at the court public terminal or purchased through the Court Reporter/Transcriber before the deadline for Release of Transcript Restriction. After that date it may be obtained through PACER.

09/21/2015
09/21/2015
09/21/2015 09/21/2015 09/22/2015 09/22/2015 09/25/2015

<br></p> Redaction Request due 9/28/2015. Release of Transcript Restriction set for 12/28/2015. (lj) (Entered: 09/21/2015)
264 Appeal Instructions re: 257 and 259 Notice of Appeal: The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_fillable.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 10/5/2015. (vkm) (Entered: 09/21/2015)
265 RESPONSE to Motion re 258 MOTION to Alter Judgment or Amend the Judgment filed by JULIE L. JONES. (NEFF, LANCE) Modified on 10/5/2015 − partially STRICKEN and partially treated as a cross motion to amend the order and judgment per 278 ORDER ON POST−TRIAL MOTIONS. (kjw) (Entered: 09/21/2015)
266 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 257 Notice of Appeal (vkm) (Entered: 09/21/2015)
267 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 259 Notice of Appeal (vkm) (Entered: 09/21/2015)
268 TRANSCRIPT REQUEST by PRISON LEGAL NEWS for proceedings held on 1/5/15, 1/6/15, 1/7/15, 1/8/15 before Judge Mark E. Walker, Court Reporter:Lisa Girod Jones (NEELAKANTA, SABARISH) (Entered: 09/22/2015)
269 TRANSCRIPT REQUEST by JULIE L. JONES for proceedings held on 1/5−1/8, 2015 before Judge Hon. Mark E. Walker, Court Reporter:Lisa Girod Jones (NEFF, LANCE) (Entered: 09/22/2015)
270 NOTICE of Telephonic Hearing on 258 MOTION to Alter Judgment or Amend the Judgment, 255 MOTION to Stay re 251 Order,, 252 Clerk's Judgment : Telephonic Motion Hearing set for 10/2/2015 09:00 AM in U.S. Courthouse Tallahassee before JUDGE MARK E WALKER.

You may dial into the conference call as early as 8:50 EST.

Call in number: 888−684−8852. When prompted for an access code, enter: 8131706#. If you are asked to join as the host, just ignore and wait until you are asked for a security code. When asked for a security code, enter: 7898#. Say your name, when prompted. You are now in the conference call.

Remember to mute your phone when you are not speaking.

NOTE: If you or any party, witness or attorney in this matter has a disability that requires special accommodation, such as, a hearing impairment that requires a sign language interpreter or a wheelchair restriction that requires ramp access, please contact Pam Lourcey at 850−521−3501 in the Clerk's Office at least one week prior to the hearing (or as soon as possible) so arrangements can be made.

09/25/2015 09/25/2015 09/28/2015 09/28/2015 09/28/2015 10/01/2015 10/02/2015 10/05/2015
10/05/2015
10/05/2015

s/ Pam Lourcey Courtroom Deputy Clerk (pll) (Entered: 09/25/2015)
271 USCA Case Number 15−14220−AA for 257 NOTICE OF APPEAL (vkm) (Entered: 09/25/2015)
272 USCA Case Number 15−14220−AA for 259 NOTICE OF APPEAL (vkm) (Entered: 09/25/2015)
273 NOTICE of Appearance by NANCY GBANA ABUDU on behalf of PRISON LEGAL NEWS (ABUDU, NANCY) (Entered: 09/28/2015)
274 MOTION to Strike 265 Response to Motion to Alter or Amend Judgment by PRISON LEGAL NEWS. (Internal deadline for referral to judge if response not filed earlier: 10/16/2015). (TREVISANI, DANTE) (Entered: 09/28/2015)
275 RESPONSE to Motion re 274 MOTION to Strike 265 Response to Motion to Alter or Amend Judgment filed by JULIE L. JONES. (NEFF, LANCE) (Entered: 09/28/2015)
276 RESPONSE in Opposition re 255 MOTION to Stay re 251 Order,, 252 Clerk's Judgment filed by PRISON LEGAL NEWS. (TREVISANI, DANTE) (Entered: 10/01/2015)
277 Minute Entry for proceedings held before JUDGE MARK E WALKER: Motion Hearing held on 10/2/2015. Court GRANTS 258 Motion to Alter of Amend Judgment. Court GRANTS 274 Motion to Strike. Court DENIES 255 Motion to Stay. Order to follow. (Court Reporter Lisa Snyder.) (pll) (Entered: 10/02/2015)
278 ORDER ON POST−TRIAL MOTIONS. Prison Legal News' motion to amend the judgment, ECF No. 258 , is GRANTED. Prison Legal News' motion to strike, ECF No. 274 , is GRANTED. Except for second paragraph on page 7 through first full paragraph on page 8, the Secretary's response to the motion to amend, ECF No. 265 , is STRICKEN. The parts not stricken are treated as a cross motion to amend the order and judgment, which is GRANTED. The Florida Department of Corrections' motion for a stay pending appeal, ECF No. 255 , is DENIED. Signed by JUDGE MARK E WALKER on 10/5/2015. (kjw) (Entered: 10/05/2015)
279 AMENDED ORDER. Judicial estoppel does not preclude the Florida Department of Corrections from adopting its current litigation position. The Florida Department of Corrections' censorship of Prison Legal News under Rule 33−501.401(3) of the Florida Administrative Code does not violate Prison Legal News' First Amendment rights. The Florida Department of Corrections' censorship procedures violate Prison Legal News' right to due process under the Fourteenth Amendment. The Clerk shall enter an amended judgment. Although all claims have been adjudicated, the Clerk must not close the file. This Court retains jurisdiction over the open file to decide costs and attorney's fees, if any. Signed by JUDGE MARK E WALKER on 10/5/2015. (kjw) (Entered: 10/05/2015)
280 CLERK'S JUDGMENT entered pursuant to 279 AMENDED ORDER. (kjw) (Entered: 10/05/2015)

10/06/2015 10/06/2015 10/06/2015 10/06/2015
10/06/2015
10/07/2015
10/07/2015 10/07/2015 10/07/2015 10/07/2015
10/08/2015 10/09/2015
11/18/2015 11/19/2015 11/19/2015
11/19/2015

281 AMENDED DOCUMENT by JULIE L. JONES. Amendment to 257 Notice of Appeal Amended Notice of Appeal (NEFF, LANCE) (Entered: 10/06/2015)
282 AMENDED DOCUMENT by JULIE L. JONES. Amendment to 281 Amended Document, 257 Notice of Appeal Corrected Amended Notice of Appeal (NEFF, LANCE) (Entered: 10/06/2015)
283 AMENDED DOCUMENT by PRISON LEGAL NEWS. Amendment to 260 Notice (Other) of Appeal (BERG, RANDALL) (Entered: 10/06/2015)
284 AMENDED NOTICE OF APPEAL as to 195 ORDER DENYING CROSS−MOTIONS FOR SUMMARY JUDGMENT, 278 ORDER ON POST−TRIAL MOTIONS, 279 AMENDED ORDER, and 280 AMENDED CLERK'S JUDGMENT, filed by JULIE L JONES. (vkm)***AMENDED NOTICE OF APPEAL REDOCKETED FOR LINKING PURPOSES*** (Entered: 10/07/2015)
285 AMENDED NOTICE OF APPEAL as to 195 ORDER DENYING CROSS−MOTIONS FOR SUMMARY JUDGMENT, 279 AMENDED ORDER, and 280 AMENDED CLERK'S JUDGMENT, filed by PRISON LEGAL NEWS. (vkm)***AMENDED NOTICE OF APPEAL REDOCKETED FOR LINKING PURPOSES*** (Entered: 10/07/2015)
286 Appeal Instructions re: 285 Amended Notice of Appeal, 284 Amended Notice of Appeal: The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_fillable.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 10/21/2015. (vkm) (Entered: 10/07/2015)
287 Transmission of Amended Notice of Appeal and Docket Sheet to US Court of Appeals re 284 Amended Notice of Appeal, (vkm) (Entered: 10/07/2015)
288 Transmission of Amended Notice of Appeal and Docket Sheet to US Court of Appeals re 285 Amended Notice of Appeal (vkm) (Entered: 10/07/2015)
289 TRANSCRIPT REQUEST by PRISON LEGAL NEWS for proceedings held on 1/5, 1/6, 1/7, 1/8, 2015 before Judge Hon. Mark E. Walker, re 285 Notice of Appeal Court Reporter:Lisa Girod Jones Transcript due by 10/21/2015. (NEELAKANTA, SABARISH) (Entered: 10/07/2015)
290 TRANSCRIPT Acknowledgment − Part II re 259 Notice of Appeal, 285 Notice of Appeal, 284 Notice of Appeal, Court Reporter:li( Transcript due by 9/16/2015.),***TRANSCRIPTS ON FILE AT Doc. #261, 262, 263 and 240−−−−−−−−−−NOTICE of Filing Transcript (Part III) by Court Reporter in District Court − Court Reporter: li (lj) (Entered: 10/07/2015)
Reset Deadlines re 257 , 259 , 284 and 285 Notices of Appeal: (Clerk to check status of Appeal on 1/8/2016. Certificate of Readiness due by 1/8/2016.) (vkm) (Entered: 10/08/2015)
291 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 257 , 259 , 284 , and 285 Notices of Appeal, Appeal No. 15−14220−AA. The entire record on appeal is available electronically., Appeal Deadlines Terminated re 257 , 259 , 284 , and 285 Notices of Appeal. (vkm) (Entered: 10/09/2015)
292 NOTICE OF APPEAL as to 280 Clerk's Judgment and 279 Order by DANIEL J LEVITAN. (vkm)***NO FEE/IFP MOTION*** (Entered: 11/19/2015)
293 Transmission of Notice of Appeal and Docket Sheet to US Court of Appeals re 292 Notice of Appeal. (vkm) (Entered: 11/19/2015)
294 Appeal Instructions re: 292 Notice of Appeal : The Transcript Request Form is available on the Internet at http://www.flnd.uscourts.gov/forms/Attorney/ECCA_transcript_form_fillable.pdf **PLEASE NOTE** Separate forms must be filed for each court reporter. Transcript Order Form due by 12/3/2015. (vkm) (Entered: 11/19/2015)
Set Deadlines re 292 Notice of Appeal: Clerk to check status of Appeal on 2/19/2016. (vkm) (Entered: 11/19/2015)

11/30/2015 01/14/2016 01/14/2016 04/20/2016 07/21/2016 10/25/2016 12/29/2016 01/03/2017
01/26/2017 04/27/2017 07/28/2017 07/31/2017
10/31/2017 02/01/2018 05/02/2018 05/17/2018
05/31/2018 06/18/2018 06/18/2018

295 USCA Case Number 15−15188−A for 292 NOTICE OF APPEAL. (vkm) (Entered: 12/01/2015)
296 MANDATE of USCA DISMISSED, sua sponte, for lack of jurisdiction as to 292 Notice of Appeal filed by DANIEL J LEVITAN. (vkm) (Entered: 01/14/2016)
Set Deadlines re 285 Notice of Appeal, 259 Notice of Appeal, 284 Notice of Appeal, 257 Notice of Appeal: Clerk to check status of Appeal on 4/14/2016. (vkm) (Entered: 01/14/2016)
Set Appeal Status Deadlines − re 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeals on 7/20/2016. (cle) (Entered: 04/20/2016)
Set Appeal Status Deadlines − re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeal on 10/21/2016. (cle) (Entered: 07/21/2016)
Set Appeal Status Deadlines − re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeal on 1/25/2017. (cle) (Entered: 10/25/2016)
297 MOTION to Withdraw as Attorney by PRISON LEGAL NEWS. (WEBER, LANCE) (Entered: 12/29/2016)
298 ORDER GRANTING MOTION TO WITHDRAW − Motion to Withdraw as co−counsel for Plaintiff of Lance Weber, ECF No. 297 , is GRANTED. The Clerk shall disconnect Mr. Weber from electronic filing for this case. Plaintiff shall continue to be represented by his remaining co−counsel. Signed by JUDGE MARK E WALKER on 1/3/2017. (cle) (Entered: 01/03/2017)
Set Appeal Status Deadlines − re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeals on 4/26/2017. (cle) (Entered: 01/26/2017)
Set Appeal Status Deadlines − re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeals on 7/27/2017. (cle) (Entered: 04/27/2017)
Set Appeal Status Deadlines re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeal on 10/30/2017. USCA Case Number: 15−14220−AA. (cle) (Entered: 07/28/2017)
299 Pursuant to F.R.A.P. 11(c), the Clerk of the District Court for the Northern District of Florida certifies that the record is complete for purposes of this appeal re: 257 , 259 , 284 , and 285 Notices of Appeal. Appeal No. 15−14220−AA. The record on appeal is available electronically with the exception of: One thumb drive, DVD of Exhibit 43, and DVD Part of doc 148 , which have been sent to USCA on this date via UPS. (Markley, Cynthia) (Entered: 07/31/2017)
Set Appeal Status Deadlines − re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeal on 1/31/2018. USCA Case Number: 15−14220−AA. (cle) (Entered: 10/31/2017)
Set Appeal Status Deadlines − re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeal on 5/1/2018. USCA Case Number: 15−14220−AA. (cle) (Entered: 02/01/2018)
Set Appeal Status Deadlines − re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeals on 8/2/2018. USCA Case Number: 15−14220−AA. (cle) (Entered: 05/02/2018)
300 USCA JUDGMENT as to 257 , 259 , 284 , and 285 Notices of Appeal. USCA # 15−14220−AA. The district court did not abuse its discretion in entering an injunction to require the Department to adhere to its own notice rules. AFFIRMED. Judgment has this day been entered. (cle) (Entered: 05/18/2018)
301 NOTICE of Appearance by MARCUS OWEN GRAPER on behalf of JULIE L JONES (GRAPER, MARCUS) (Entered: 05/31/2018)
302 MOTION for Taxation of Costs by JULIE L JONES. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D) (GRAPER, MARCUS) (Entered: 06/18/2018)
Set Response Deadline as to 302 Motion for Taxation of Costs (Internal deadline for referral to judge if response not filed earlier: 7/2/2018) (ckm) (Entered: 06/19/2018)

06/19/2018 06/20/2018 06/20/2018
06/28/2018
06/29/2018
07/09/2018 08/03/2018 09/21/2018 09/28/2018

303 RESPONSE to Motion re 302 MOTION for Taxation of Costs filed by PRISON LEGAL NEWS. (BERG, RANDALL) (Entered: 06/19/2018)
Set Deadline: Clerk to file Taxation of Costs by 8/20/2018. (ckm) (Entered: 06/20/2018)
304 ORDER DENYING MOTION TO TAX COSTS − Defendant's motion to tax costs, ECF No. 302 , is DENIED without prejudice. Defendant may refile her motion after Plaintiff's petition for certiorari is resolved. Signed by JUDGE MARK E WALKER on 6/20/2018. (ckm) (Entered: 06/20/2018)
305 Mail Returned as Undeliverable. Mail sent to Daniel J. Levitan and returned: 304 ORDER DENYING MOTION TO TAX COSTS. The court was able to find a better address for Mr. Levitan in Century CI. 304 ORDER DENYING MOTION TO TAX COSTS resent to the Century, Florida address. (cle) (Entered: 06/29/2018)
307 ORDER of USCA as to 257 , 259 , 284 , and 285 Notices of Appeal. Plaintiff−Appellee Prison Legal News' "Unopposed Motion to Transfer Consideration of Attorneys' Fees on Appeal to the District Court" is GRANTED. (cle) (Entered: 08/10/2018)
306 Mail Returned as Undeliverable. Mail sent to Daniel J. Levitan and returned: 304 ORDER DENYING MOTION TO TAX COSTS. The court is unable to find a better address for Mr. Levitan. (cle) (Entered: 07/11/2018)
Set Appeal Status Deadline − re: 257 , 259 , 284 , and 285 Notices of Appeal. Clerk to check status of Appeals on 11/3/2018. USCA Case Number: 15−14220−AA. (cle) (Entered: 08/03/2018)
309 MANDATE of USCA as to 257 , 259 , 284 , and 285 Notices of Appeal. The judgment (previously issued) is hereby issued as mandate of the court. USCA Case Number: 15−14220−AA. (cle) (Entered: 10/23/2018)
308 ORIGINAL PAPERS returned from US Court of Appeals − re: 257 , 259 , 284 and 285 Notices of Appeal. The 11th Circuit returned: One Envelope of Exhibits and One Box of Exhibits. USCA Case Number: 15−14220−AA. (cle) (Entered: 09/28/2018)

 
 Case 4:12-cv-00239-MW-CAS Document 1 Filed 11/17/11 Page 1 of 12

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No: ______________

PRISON LEGAL NEWS,

)

a project of the HUMAN RIGHTS DEFENSE CENTER, )

a not-for-profit, Washington charitable corporation,

)

)

Plaintiff,

)

)

v.

)

)

LARRY MAYO, in his official capacity as

)

Warden of Everglades Correctional Institution,

)

WILLIAM CHURCHWELL, in his official capacity as )

Warden of Dade Correctional Institution,

)

NORMAN JENKINS, in his official capacity as

)

Warden of Homestead Correctional Institution, and

)

KENNETH S. TUCKER, in his official

)

capacity as Secretary of the Florida Department of

)

Corrections,

)

)

Defendants.

)

)

COMPLAINT Introduction 1. Plaintiff, Prison Legal News, brings this action pursuant to 42 U.S.C. § 1983, to enjoin Defendant officials of the Florida Department of Corrections (“FDOC”) from barring, in violation of the First and Fourteenth Amendments to the U.S. Constitution, the receipt by inmate subscribers of the journal Prison Legal News, and to require the FDOC to provide Plaintiff with constitutionally required notice as well as an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored by the FDOC. Plaintiff also seeks a declaratory judgment
{07044425;1}

Case 4:12-cv-00239-MW-CAS Document 1 Filed 11/17/11 Page 2 of 12
that Rule § 33-501.401(3), F.A.C., is unconstitutional as applied by the FDOC to Plaintiff, because it is used by the FDOC to justify the prohibition on sending literature to inmates, which has adversely affected Plaintiff’s services to Florida’s inmates.
2. Plaintiff brings this action because the FDOC has repeatedly ignored its constitutional duty to allow Plaintiff’s publications into FDOC institutions. The FDOC has disregarded previous rulings by the Eleventh Circuit on this issue, and has continued to censor these publications despite previously changing their policy to allow these same publications and rendering an earlier identical lawsuit moot.
3. Plaintiff has worked for years to provide news and information to inmates regarding their education, well-being, and safety, while abiding by the guidelines of the institutions into which they send their publications. The FDOC’s ever-changing policies have injured Plaintiff, as well as the inmates with whom they correspond, because the FDOC continues to deny Plaintiff the right to send inmates publications designed to benefit them, both while incarcerated and after their release.
Jurisdiction and Venue 4. Jurisdiction of this Court is invoked under 28 U.S.C. § 1331 (federal question), as this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343 (civil rights), as this action seeks redress for civil rights violations under 42 U.S.C. § 1983. 5. Plaintiff’s claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges and immunities secured to the Plaintiff by the First, Fifth, and Fourteenth Amendments to the U.S. Constitution and laws of the United States.
-2-
{07044425;1}

Case 4:12-cv-00239-MW-CAS Document 1 Filed 11/17/11 Page 3 of 12

6. This Court has jurisdiction over claims seeking declaratory and injunctive relief

pursuant to 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.

7.

Plaintiff’s claim for attorneys’ fees and costs is predicated upon 42 U.S.C. § 1988,

which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought

pursuant to 42 U.S.C. § 1983.

8. Venue properly lies in this division of the Southern District of Florida pursuant to 28

U.S.C. § 1391 and Local Rule 3.4(d), S.D. Fla. Defendants Mayo, Churchwell and Jenkins all reside

in the Southern District of Florida, and “a substantial part of the events or omissions giving rise to

the claim” occurred in this division of the Southern District of Florida.

9. Plaintiff seeks temporary, preliminary, and permanent injunctive relief pursuant to

Rule 65, Federal Rules of Civil Procedure.

Parties

10. Plaintiff, Prison Legal News (“PLN”), is a project of the Human Rights Defense

Center, a not-for-profit, Washington charitable corporation under IRS Code § 501(c)(3), with offices

in Brattleboro, Vermont. PLN publishes Prison Legal News, a monthly journal of prison news and

analysis.

11. Defendant, Larry Mayo, is the Warden of Everglades Correctional Institution

(“Everglades”), located in Miami, Florida, within the division and district of this Court. Everglades

confines a large number of inmates who have sought and been prohibited by Defendants from

receiving Plaintiff’s publications. Defendant Mayo has authority pursuant to Rule § 33-501.401,

F.A.C., to impound incoming mail, including Plaintiff’s publications, and is required by Rule § 33-

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Case 4:12-cv-00239-MW-CAS Document 1 Filed 11/17/11 Page 4 of 12
501.401, F.A.C., to notify Plaintiff that its mail has been censored. Defendant Mayo is sued in his official capacity for injunctive and declaratory relief, attorneys’ fees and costs.
12. Defendant, William Churchwell, is the Warden of Dade Correctional Institution (“Dade”), located in Florida City, Florida, within the division and district of this Court. Dade confines a large number of inmates who have sought and been prohibited by Defendants from receiving Plaintiff’s publications. Defendant Churchwell has authority pursuant to Rule § 33501.401, F.A.C., to impound incoming mail, including Plaintiff’s publications, and is required by Rule § 33-501.401, F.A.C., to notify Plaintiff that its mail has been censored. Defendant Churchwell is sued in his official capacity for injunctive and declaratory relief, attorneys’ fees and costs.
13. Defendant, Norman Jenkins, is the Warden of Homestead Correctional Institution (“Homestead”), located in Florida City, Florida, within the division and district of this Court. Homestead confines a large number of inmates who have sought and been prohibited by Defendants from receiving Plaintiff’s publications. Defendant Jenkins has authority pursuant to Rule § 33501.401, F.A.C., to impound incoming mail, including Plaintiff’s publications, and is required by Rule § 33-501.401, F.A.C., to notify Plaintiff that its mail has been censored. Defendant Jenkins is sued in his official capacity for injunctive and declaratory relief, attorneys’ fees and costs.
14. Defendant, Kenneth S. Tucker, is the Secretary of the FDOC. Under Defendant Tucker’s control, the FDOC manages all correctional facilities within the state of Florida. Defendant Tucker has ultimate responsibility for the promulgation and enforcement of all FDOC rules, policies and procedures, and administrative code provisions, and is responsible for the overall management of the Florida prison system. As Secretary, Defendant Tucker is the highest ranking official of the FDOC, and is responsible for the enactment and enforcement of Rule § 33-501.401(3),
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Case 4:12-cv-00239-MW-CAS Document 1 Filed 11/17/11 Page 5 of 12
F.A.C. Defendant Tucker is sued in his official capacity for injunctive and declaratory relief, attorneys’ fees and costs.
15. The actions of all Defendants as alleged herein were taken under the authority and color of state law.
Factual Allegations 16. Plaintiff, PLN, is the publisher of a monthly magazine, Prison Legal News, and a distributor of books and other materials pertaining to the legal rights of prisoners and the conditions affecting prisoners. 17. The purpose of PLN, as stated in its Articles of Incorporation, Article III, Part 6, is to educate prisoners and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society. 18. For the past 21 years, the core of PLN’s mission has been public education, advocacy and outreach on behalf of, and for the purpose of assisting, prisoners who seek legal redress for infringements of their constitutionally guaranteed and other basic human rights. 19. Prison Legal News is comprised of writings from legal scholars, attorneys, inmates and news wire services. Prison Legal News has approximately 7,000 subscribers in the United States and abroad, including subscribers in prisons in all 50 states. Prison Legal News has numerous prisoner subscribers in the Florida state correctional system, including facilities organized and run by the FDOC, such as the institutions run by defendants Mayo, Churchwell and Jenkins. Subscribers to Prison Legal News also include attorneys, judges, journalists, academics, and others who have an interest in topics included in the magazine.
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20. Plaintiff’s publications, books and other materials, as described above, are political
speech and social commentary, which are at the core of First Amendment values and are entitled to
the highest protection afforded by the U.S. Constitution.
21. Rule § 33-501.401(3), F.A.C., provides:
(3) Inmates shall be permitted to receive and possess publications per terms and conditions established in this rule unless the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of any institution of the department, or any privately operated institution housing inmates committed to the custody of the department, or when it is determined that the publication might facilitate criminal activity. Publications shall be rejected when one of the following criteria is met:
… (l) It contains an advertisement promoting any of the following where the advertisement is the focus of, rather than being incidental to, the publication or the advertising is prominent or prevalent throughout the publication.
1. Three-way calling services; 2. Pen pal services; 3. The purchase of products or services with postage stamps; or 4. Conducting a business or profession while incarcerated.
(emphasis added).
22. Defendants, by and through their application of Rule § 33-501.401(3), F.A.C., have
caused substantial harm to Plaintiff. The effect of Rule § 33-501.401(3), F.A.C., is to deny Plaintiff
its right to send literature to its inmate subscribers. Since Defendants’ application of Rule § 33-
501.401(3), F.A.C., to Plaintiff, Plaintiff has been unable to send its publications to FDOC inmate
subscribers. As such, Rule § 33-501.401(3), F.A.C., substantially chills Plaintiff’s ability to
communicate with its inmate subscribers, and violates Plaintiff’s rights under the First and
Fourteenth Amendment.
23. This is not the first time that Plaintiff has been forced to file suit in order to ensure
that the FDOC complies with its constitutional obligations with regard to these publications.
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Initially, Plaintiff was able to send its publications to FDOC inmate subscribers without incident. Beginning in approximately February 2003, the FDOC refused to allow delivery of Prison Legal News, citing Rule § 33-501.401, F.A.C. This censorship was based on advertisements in Prison Legal News, which included three-way calling services, pen-pal services, and advertisements concerning the sale of postage stamps and inmate artwork. This censorship and refusal to allow delivery of Prison Legal News occurred even though the FDOC had previously approved subscriptions to Prison Legal News. Nonetheless, the FDOC refused to deliver the subscriptions, and Plaintiff filed suit.
24. During the lawsuit that ensued, the FDOC amended Rule § 33-501.401, F.A.C., three separate times to allow Prison Legal News, and Plaintiff’s other publications, to be sent into FDOC institutions. See Prison Legal News v. McDonough, 200 Fed. App’x 873, 875-76 (11th Cir. 2006). Based solely on these changes in policy, as well as the FDOC’s representation to the Court that they would not resume the impoundment of Prison Legal News, the Middle District of Florida, and later the Eleventh Circuit, found the case to be moot. See id. at 878 (“[A]lthough the FDOC previously wavered on its decision to impound [Prison Legal News], it presented sufficient evidence to show that it has ‘no intent to ban PLN based solely on the advertising content at issue in this case’ in the future … and that the magazine will not be rejected based on its advertising content … We have no expectation that FDOC will resume the practice of impounding publications based on incidental advertisements.”).
25. Despite the FDOC’s representation to the district court and the Eleventh Circuit, the FDOC – through Defendants – again revised the challenged rule in 2009 and began to again impound and censor Prison Legal News and Plaintiff’s other publications based solely on their
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advertising content, despite the fact that the prevalence of advertisements in the impounded publications had not been altered in any way since the FDOC’s misrepresentations to the district court and the Eleventh Circuit.
26. Since the FDOC’s latest revision to the challenged rule and resumed censorship of Prison Legal News, Plaintiff has been unable to fulfill its stated mission of educating prisoners and has been unable to distribute its constitutionally protected materials to FDOC inmates. Instead, these publications have been returned to Plaintiff by defendants Mayo, Churchwell and Jenkins, and other correctional facilities under the control of defendant Tucker.
27. None of the publications at issue in this case violate FDOC policies or regulations and the censorship of these materials furthers no legitimate penological interest. Nonetheless, Defendants are refusing to allow these publications to be delivered to Florida inmate subscribers on the basis that they contain “advertising [which is] prevalent throughout the publication for (1) threeway calling services; (2) pen-pal services; (3) the purchase of products or services with postage stamps; or (4) conducting a business or profession while incarcerated.” See Admissible Reading Material Rule, Rule § 33-501.401(3)(l), F.A.C.
28. Since the FDOC’s resumed censorship of Plaintiff’s publications, Defendants have failed and refused to provide Plaintiff with notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored by the FDOC.
29. Since the FDOC – through Defendants – began to again impound and censor Prison Legal News and Plaintiff’s other publications in 2009, Plaintiff has filed numerous appeals regarding the rejection of Prison Legal News and Plaintiff’s other impounded publications with the FDOC’s
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Literature Review Committee when Plaintiff is informed by its inmate subscribers that its publications have been rejected by the FDOC. All of Plaintiff’s appeals have been denied.
30. There is not a valid, rational connection between the Defendants’ application of Rule § 33-501.401(3), F.A.C., to Plaintiff’s publications, and any legitimate governmental interest put forward to attempt to justify it.
Count I Unconstitutional Censorship of PLN 31. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 30 of this Complaint, as if set forth fully herein. 32. Plaintiff sends publications to inmates throughout the nation, including those in Defendants’ custody; this behavior enjoys protection under the First and Fourteenth Amendments. 33. Defendants’ actions in refusing to deliver or allow delivery of Plaintiff’s publications to Florida inmates, solely because of the presence of certain advertisements within these publications, violate Plaintiff’s rights of free speech, press and association as protected by the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.
Count II Violation of Due Process 34. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 30 of this Complaint, as if set forth fully herein. 35. Defendant officials, in denying Plaintiff its right to communicate with its current and potential inmate subscribers, have deprived Plaintiff of constitutionally protected liberty and/or property interests without due process of law.
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36. Defendant officials’ actions, as alleged herein, constitute state action.

37. Defendant officials’ failure and refusal to provide Plaintiff with constitutionally

required notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s

publications are censored by the FDOC violates Plaintiff’s rights to due process of law protected by

the Fifth and Fourteenth Amendments to the U.S. Constitution and by 42 U.S.C. § 1983.

Request for Relief

WHEREFORE Plaintiff respectfully requests that this Court grant the following relief:

(a) Declare that Defendants’ conduct violates Plaintiff’s rights under the First, Fifth, and

Fourteenth Amendments to the U.S. Constitution;

(b) Declare that Rule § 33-501.401(3), F.A.C., as applied to Plaintiff by Defendants,

violates Plaintiff’s rights under the First, Fifth, and Fourteenth Amendments to the U.S.

Constitution;

(c) Enter preliminary and permanent injunctive relief establishing that Rule § 33-

501.401(3), F.A.C., is unconstitutional as applied by Defendants to Plaintiff’s publications,

prohibiting Defendants from refusing to deliver Plaintiff’s publications to Florida inmate

subscribers, ordering Defendants to deliver all past issues of Plaintiff’s publications which have

previously been censored and withheld from their Florida inmate subscribers, and requiring

Defendants to provide Plaintiff with individualized notice and an opportunity to be heard and/or

protest the decision each time Plaintiff’s publications are censored by Defendants;

(d) Award Plaintiff its costs and attorneys’ fees arising out of this litigation, pursuant to

42 U.S.C. § 1988; and

(e)
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Grant Plaintiff such other and further relief as the Court may deem just and equitable. -10-

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Respectfully submitted,
Randall C. Berg, Jr., Esq. Florida Bar No. 318371 Joshua A. Glickman, Esq. Florida Bar No. 43994 Shawn A. Heller, Esq. Florida Bar No. 46346
Florida Justice Institute, Inc. 3750 Miami Tower 100 S.E. Second Street Miami, Florida 33131-2309 305-358-2081 305-358-0910 (FAX) E-mail: RBerg@FloridaJusticeInstitute.org E-mail: JGlickman@FloridaJusticeInstitute.org E-mail: SHeller@FloridaJusticeInstitute.org
Randall C. Marshall, Esq. Florida Bar No. 181765
American Civil Liberties Union Found. of Fla. 4500 Biscayne Blvd. Suite 340 Miami, Florida 33137 786-363-2707 786-363-1108 (FAX) E-mail: RMarshall@aclufl.org
Lance Weber, Esq.1 Human Rights Defense Center P.O. Box 2420, Brattleboro, VT 05303 802-579-1309 866-228-1681 (FAX) E-Mail: lweber@humanrightsdefensecenter.org
Attorneys for the Plaintiffs
1Motion to Appear Pro Hac Vice filed contemporaneously. -11-
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By: s/ Randall C. Berg, Jr. . Randall C. Berg, Jr., Esq. Florida Bar No. 318371
CERTIFICATE OF SERVICE I HEREBY CERTIFY that on November 17, 2011, this Complaint was electronically filed with the Clerk of the Court using CM/ECF, and a true and correct copy was emailed to Jennifer Parker, General Counsel, Florida Department of Corrections, at parker.jennifer@mail.dc.state.fl.us.
By: s/ Randall C. Berg, Jr. . Randall C. Berg, Jr., Esq.

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 Case 4:12-cv-00239-MW-CAS Document 14 Filed 12/16/11 Page 1 of 17

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA
Case No: 1:11-cv-24145-PAS

PRISON LEGAL NEWS,

)

a project of the HUMAN RIGHTS DEFENSE CENTER, )

a not-for-profit, Washington charitable corporation,

)

)

Plaintiff,

)

)

v.

)

)

THE GEO GROUP, INC.,

)

a Florida Corporation,

)

CORRECTIONS CORPORATION OF AMERICA,

)

a Tennessee Corporation, registered in and doing

)

business in the state of Florida, and

)

KENNETH S. TUCKER, in his official

)

capacity as Secretary of the Florida Department of

)

Corrections,

)

)

Defendants.

)

)

FIRST AMENDED COMPLAINT Introduction
1. Plaintiff, PRISON LEGAL NEWS, brings this action pursuant to 42 U.S.C. § 1983, to enjoin Defendants, THE GEO GROUP, INC., a Florida Corporation, CORRECTIONS CORPORATION OF AMERICA, a Tennessee Corporation registered in and doing business in the state of Florida, and KENNETH S. TUCKER, in his official capacity as Secretary of the Florida Department of Corrections (“FDOC”), from barring, in violation of the First and Fourteenth Amendments to the U.S. Constitution, the receipt by inmate subscribers of the journal Prison Legal News, and to require Defendants to provide Plaintiff with constitutionally required notice as well as
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Case 4:12-cv-00239-MW-CAS Document 14 Filed 12/16/11 Page 2 of 17
an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored by Defendants. Plaintiff also seeks a declaratory judgment that Rule § 33-501.401(3), F.A.C., is unconstitutional as applied by the Defendants to Plaintiff, because it is used by the Defendants to justify the prohibition on sending literature to inmates, which has adversely affected Plaintiff’s services to Florida’s inmates.
2. Plaintiff brings this action because the Defendants have repeatedly ignored their constitutional duty to allow Plaintiff’s publications into their institutions. In fact, the FDOC – through the Defendant Secretary – has disregarded previous rulings by the Eleventh Circuit on this issue, and has continued to censor these publications despite previously changing its policy to allow these same publications and rendering an earlier identical lawsuit moot.
3. Plaintiff has worked for years to provide news and information to inmates regarding their education, well-being, and safety, while abiding by the guidelines of the institutions into which they send their publications. Defendants’ policies have injured Plaintiff, as well as the inmates with whom they correspond, because Defendants continue to deny Plaintiff the right to send inmates publications designed to benefit them, both while incarcerated and after their release.
Jurisdiction and Venue 4. Jurisdiction of this Court is invoked under 28 U.S.C. § 1331 (federal question), as this action arises under the Constitution and laws of the United States, and pursuant to 28 U.S.C. § 1343 (civil rights), as this action seeks redress for civil rights violations under 42 U.S.C. § 1983. 5. Plaintiff’s claims for relief are predicated upon 42 U.S.C. § 1983, which authorizes actions to redress the deprivation, under color of state law, of rights, privileges and immunities
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secured to the Plaintiff by the First, Fifth, and Fourteenth Amendments to the U.S. Constitution and

laws of the United States.

6. This Court has jurisdiction over claims seeking declaratory and injunctive relief

pursuant to 28 U.S.C. §§ 2201 and 2202, and Rule 57 of the Federal Rules of Civil Procedure.

7.

Plaintiff’s claim for attorneys’ fees and costs is predicated upon 42 U.S.C. § 1988,

which authorizes the award of attorneys’ fees and costs to prevailing plaintiffs in actions brought

pursuant to 42 U.S.C. § 1983.

8. Venue properly lies in the Southern District of Florida pursuant to 28 U.S.C. § 1391

and Local Rule 3.4(d), S.D. Fla. Defendant The Geo Group, Inc’s corporate World Headquarters

and principal place of business is located within the Southern District of Florida, Defendant

Corrections Corporation of America’s registered agent resides in the Southern District of Florida,

Defendant Tucker has a Regional office, eight facilities and thousands of inmates in the Southern

District of Florida, and “a substantial part of the events or omissions giving rise to the claim”

occurred in the Southern District of Florida.

9. Plaintiff seeks temporary, preliminary, and permanent injunctive relief pursuant to

Rule 65, Federal Rules of Civil Procedure.

Parties

10. Plaintiff, Prison Legal News (“PLN”), is a project of the Human Rights Defense

Center, a not-for-profit, Washington charitable corporation under IRS Code § 501(c)(3), with offices

in Brattleboro, Vermont. PLN publishes Prison Legal News, a monthly journal of prison news and

analysis.

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11. Defendant, The GEO Group, Inc. (hereinafter “GEO”), is a Florida, for-profit corporation with its corporate World Headquarters located in Boca Raton, Florida. GEO provides correctional operation and management services to state and local governments around the world.
12. At all times material to this action, GEO contracted with the Florida Department of Management Services (hereinafter “DMS”) to assume the full operation and management of Blackwater River Correctional Facility (hereinafter “Blackwater”) in Milton, Florida. Blackwater confines a large number of inmates who have sought and been prohibited by Defendant GEO from receiving Plaintiff’s publications. Defendant GEO has authority pursuant to Rule § 33-501.401, F.A.C., to impound incoming mail, including Plaintiff’s publications, and is required by Rule § 33501.401, F.A.C., to notify Plaintiff that its mail has been censored. Defendant GEO is sued for injunctive and declaratory relief, damages, attorneys’ fees and costs.
13. Defendant, Corrections Corporation of America (hereinafter “CCA”), is a Tennessee, for-profit corporation registered and doing business in the state of Florida. CCA provides correctional operation and management services to federal, state, and local facilities across the country.
14. At all times material to this action, CCA contracted with the Florida Department of Management Services to assume the full operation and management of Graceville Correctional Facility (hereinafter “Graceville”) in Graceville, Florida. Graceville confines a large number of inmates who have sought and been prohibited by Defendant CCA from receiving Plaintiff’s publications. Defendant CCA has authority pursuant to Rule § 33-501.401, F.A.C., to impound incoming mail, including Plaintiff’s publications, and is required by Rule § 33-501.401, F.A.C., to
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notify Plaintiff that its mail has been censored. Defendant CCA is sued for injunctive and declaratory relief, damages, attorneys’ fees and costs.
15. Defendant, Kenneth S. Tucker, is the Secretary of the FDOC. Under Defendant Tucker’s control, the FDOC manages all correctional facilities within the state of Florida, with the exception of those facilities managed by Defendants GEO and CCA. Defendant Tucker has ultimate responsibility for the promulgation and enforcement of all FDOC rules, policies and procedures, and administrative code provisions, and is responsible for the overall management of the Florida prison system. As Secretary, Defendant Tucker is the highest ranking official of the FDOC, and is responsible for the enactment and enforcement of Rule § 33-501.401(3), F.A.C. Defendant Tucker is sued in his official capacity for injunctive and declaratory relief, attorneys’ fees and costs.
16. At all times material to this action, the actions of all Defendants as alleged herein were taken under the authority and color of state law.
Factual Allegations 17. Plaintiff, PLN, is the publisher of a monthly magazine, Prison Legal News, and a distributor of books and other materials pertaining to the legal rights of prisoners and the conditions affecting prisoners. 18. The purpose of PLN, as stated in its Articles of Incorporation, Article III, Part 6, is to educate prisoners and the public about the destructive nature of racism, sexism, and the economic and social costs of prisons to society. 19. For the past 21 years, the core of PLN’s mission has been public education, advocacy and outreach on behalf of, and for the purpose of assisting, prisoners who seek legal redress for infringements of their constitutionally guaranteed and other basic human rights.
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20. Prison Legal News is comprised of writings from legal scholars, attorneys, inmates
and news wire services. Prison Legal News has approximately 7,000 subscribers in the United
States and abroad, including subscribers in prisons in all 50 states. Prison Legal News has numerous
prisoner subscribers in the Florida state correctional system, including facilities organized and run
by the Defendants. Subscribers to Prison Legal News also include attorneys, judges, journalists,
academics, and others who have an interest in topics included in the magazine.
21. Plaintiff’s publications, books and other materials, as described above, are political
speech and social commentary, which are at the core of First Amendment values and are entitled to
the highest protection afforded by the U.S. Constitution.
22. Rule § 33-501.401(3), F.A.C., provides:
(3) Inmates shall be permitted to receive and possess publications per terms and conditions established in this rule unless the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of any institution of the department, or any privately operated institution housing inmates committed to the custody of the department, or when it is determined that the publication might facilitate criminal activity. Publications shall be rejected when one of the following criteria is met:
… (l) It contains an advertisement promoting any of the following where the advertisement is the focus of, rather than being incidental to, the publication or the advertising is prominent or prevalent throughout the publication.
1. Three-way calling services; 2. Pen pal services; 3. The purchase of products or services with postage stamps; or 4. Conducting a business or profession while incarcerated.
(m) It otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or to the safety of any person.
(emphasis added).
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23. Defendants, by and through their application of Rule § 33-501.401(3), F.A.C., have caused substantial harm to Plaintiff. The effect of Rule § 33-501.401(3), F.A.C., is to deny Plaintiff its right to send literature to its inmate subscribers. Since Defendants’ application of Rule § 33501.401(3), F.A.C., to Plaintiff, Plaintiff has been unable to send its publications to inmate subscribers in the Defendants’ custody. As such, Rule § 33-501.401(3), F.A.C., substantially chills Plaintiff’s ability to communicate with its inmate subscribers, impedes Plaintiff’s ability to disseminate its political message, frustrates Plaintiff’s organizational mission and diverts its limited resources, and violates Plaintiff’s rights under the First and Fourteenth Amendment.
24. This is not the first time that Plaintiff has been forced to file suit to ensure that the Defendants comply with their constitutional obligations with regard to these publications. Initially, Plaintiff was able to send its publications to Florida inmate subscribers without incident. Beginning in approximately February 2003, the FDOC – through the Defendant Secretary – refused to allow delivery of Prison Legal News, citing Rule § 33-501.401, F.A.C. This censorship was based on advertisements in Prison Legal News, which included three-way calling services, pen-pal services, and advertisements concerning the sale of postage stamps and inmate artwork. This censorship and refusal to allow delivery of Prison Legal News occurred even though the FDOC had previously approved subscriptions to Prison Legal News. Nonetheless, the FDOC refused to deliver the subscriptions, and Plaintiff filed suit.
25. During the lawsuit that ensued, the FDOC – through the Defendant Secretary – amended Rule § 33-501.401, F.A.C., three separate times to allow Prison Legal News, and Plaintiff’s other publications, to be sent into FDOC institutions. See Prison Legal News v. McDonough, 200 Fed. App’x 873, 875-76 (11th Cir. 2006). Based solely on these changes in
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policy, as well as the FDOC’s representation to the Court that they would not resume the impoundment of Prison Legal News, the Middle District of Florida, and later the Eleventh Circuit, found the case to be moot. See id. at 878 (“[A]lthough the FDOC previously wavered on its decision to impound [Prison Legal News], it presented sufficient evidence to show that it has ‘no intent to ban PLN based solely on the advertising content at issue in this case’ in the future … and that the magazine will not be rejected based on its advertising content … We have no expectation that FDOC will resume the practice of impounding publications based on incidental advertisements.”).
26. Despite the FDOC’s representation to the district court and the Eleventh Circuit, the FDOC – through the Defendant Secretary – again revised the challenged rule in 2009 and began to again impound and censor Prison Legal News and Plaintiff’s other publications based solely on their advertising content, despite the fact that the prevalence of advertisements in the impounded publications had not been altered in any way since the FDOC’s misrepresentations to the district court and the Eleventh Circuit.
27. Since the FDOC’s latest revision to the challenged rule and Defendants’ resumed censorship of Prison Legal News, Plaintiff has been unable to fulfill its stated mission of educating prisoners and has been unable to distribute its constitutionally protected materials to inmates in Defendants’ custody.
28. None of the publications at issue in this case violate Defendants’ policies or regulations and the censorship of these materials furthers no legitimate penological interest. Nonetheless, Defendants are refusing to allow these publications to be delivered to Florida inmate subscribers on the basis that they “present a threat to the security, order, or rehabilitative objectives of the correctional system or the safety of any person,” for the sole reason that the publications
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contain “advertising [which is] prevalent throughout the publication for (1) three-way calling services; (2) pen-pal services; (3) the purchase of products or services with postage stamps; or (4) conducting a business or profession while incarcerated.” See Admissible Reading Material Rule, Rule § 33-501.401(3)(l) and (m), F.A.C.
29. Since the Defendants’ resumed censorship of Plaintiff’s publications, Defendants have failed and refused to provide Plaintiff with notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored by the Defendants.
30. Since the FDOC – through the Defendant Secretary – began to again impound and censor Prison Legal News and Plaintiff’s other publications in 2009, Plaintiff has filed numerous appeals regarding the rejection of Prison Legal News and Plaintiff’s other impounded publications with the FDOC’s Literature Review Committee when Plaintiff is informed by its inmate subscribers that its publications have been rejected by the Defendants. All of Plaintiff’s appeals have been denied.
31. There is not a valid, rational connection between the Defendants’ application of Rule § 33-501.401(3), F.A.C., to Plaintiff’s publications, and any legitimate governmental interest put forward to attempt to justify it.
Count One - Unconstitutional Censorship of PLN Defendant The GEO Group, Inc.
32. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31 of this Complaint, as if set forth fully herein.
33. Defendant The GEO Group, Inc.’s actions, as alleged herein, constitute state action.
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34. Plaintiff sends publications to inmates throughout the nation, including those in Defendant The GEO Group, Inc.’s custody; this behavior enjoys protection under the First and Fourteenth Amendments.
35. Defendant The GEO Group, Inc’s actions in refusing to deliver or allow delivery of Plaintiff’s publications to Florida inmates in its custody, solely because of the presence of certain advertisements within these publications, violate Plaintiff’s rights of free speech, press and association as protected by the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.
Count Two - Unconstitutional Censorship of PLN Defendant Corrections Corporation of America 36. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31 of this Complaint, as if set forth fully herein. 37. Defendant Corrections Corporation of America’s actions, as alleged herein, constitute state action. 38. Plaintiff sends publications to inmates throughout the nation, including those in Defendant Corrections Corporation of America’s custody; this behavior enjoys protection under the First and Fourteenth Amendments. 39. Defendant Corrections Corporation of America’s actions in refusing to deliver or allow delivery of Plaintiff’s publications to Florida inmates in its custody, solely because of the presence of certain advertisements within these publications, violate Plaintiff’s rights of free speech, press and association as protected by the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.

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Count Three - Unconstitutional Censorship of PLN Defendant Kenneth S. Tucker, in his official capacity as
Secretary of the Florida Department of Corrections 40. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31 of this Complaint, as if set forth fully herein. 41. The FDOC’s actions – through Defendant Tucker – as alleged herein, constitute state action. 42. Plaintiff sends publications to inmates throughout the nation, including those in Defendant Tucker’s custody; this behavior enjoys protection under the First and Fourteenth Amendments. 43. The FDOC’s actions – through Defendant Tucker – in refusing to deliver or allow delivery of Plaintiff’s publications to Florida inmates in its custody, solely because of the presence of certain advertisements within these publications, violate Plaintiff’s rights of free speech, press and association as protected by the First and Fourteenth Amendments to the U.S. Constitution and 42 U.S.C. § 1983.
Count Four – Violation of Due Process Defendant The GEO Group, Inc.
44. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31 of this Complaint, as if set forth fully herein.
45. Defendant The GEO Group, Inc., in denying Plaintiff its right to communicate with its current and potential inmate subscribers, has deprived Plaintiff of constitutionally protected liberty and/or property interests without due process of law.
46. Defendant The GEO Group, Inc.’s actions, as alleged herein, constitute state action.

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47. Defendant The GEO Group, Inc.’s failure and refusal to provide Plaintiff with constitutionally required notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored by Defendant The GEO Group, Inc. violates Plaintiff’s rights to due process of law protected by the Fifth and Fourteenth Amendments to the U.S. Constitution and by 42 U.S.C. § 1983.
Count Five – Violation of Due Process Defendant Corrections Corporation of America 48. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31 of this Complaint, as if set forth fully herein. 49. Defendant Corrections Corporation of America, in denying Plaintiff its right to communicate with its current and potential inmate subscribers, has deprived Plaintiff of constitutionally protected liberty and/or property interests without due process of law. 50. Defendant Corrections Corporation of America’s actions, as alleged herein, constitute state action. 51. Defendant Corrections Corporation of America’s failure and refusal to provide Plaintiff with constitutionally required notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored by Defendant Corrections Corporation of America violates Plaintiff’s rights to due process of law protected by the Fifth and Fourteenth Amendments to the U.S. Constitution and by 42 U.S.C. § 1983.

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Count Six – Violation of Due Process Defendant Kenneth S. Tucker, in his official capacity as
Secretary of the Florida Department of Corrections

52. Plaintiff hereby incorporates by reference all allegations contained in ¶¶ 1 through 31

of this Complaint, as if set forth fully herein.

53. Defendant Tucker, in denying Plaintiff its right to communicate with its current and

potential inmate subscribers, has deprived Plaintiff of constitutionally protected liberty and/or

property interests without due process of law.

54. Defendant Tucker’s actions, as alleged herein, constitute state action.

55. Defendant Tucker’s failure and refusal to provide Plaintiff with constitutionally

required notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s

publications are censored by Defendant Tucker violates Plaintiff’s rights to due process of law

protected by the Fifth and Fourteenth Amendments to the U.S. Constitution and by 42 U.S.C. §

1983.

Request for Relief

WHEREFORE Plaintiff respectfully requests that this Court grant the following relief:

(a) Declare that Defendants’ conduct violates Plaintiff’s rights under the First, Fifth, and

Fourteenth Amendments to the U.S. Constitution;

(b) Declare that Rule § 33-501.401(3), F.A.C., as applied to Plaintiff by Defendants,

violates Plaintiff’s rights under the First, Fifth, and Fourteenth Amendments to the U.S.

Constitution;

(c) Enter preliminary and permanent injunctive relief establishing that Rule § 33-

501.401(3), F.A.C., is unconstitutional as applied by Defendants to Plaintiff’s publications,

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prohibiting Defendants from refusing to deliver Plaintiff’s publications to Florida inmate subscribers, ordering Defendants to deliver all past issues of Plaintiff’s publications which have previously been censored and withheld from their Florida inmate subscribers, and requiring Defendants to provide Plaintiff with individualized notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored by Defendants;
(d) Award Plaintiff nominal and compensatory damages against Defendants The GEO Group, Inc. and Corrections Corporation of America, of a sufficient amount to compensate Plaintiff for, among other things, Defendants The GEO Group, Inc. and Corrections Corporation of America’s failure and refusal to deliver past issues of Plaintiff’s publications to Florida inmate subscribers in accordance with the law and failure and refusal to provide Plaintiff with constitutionally required notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored by Defendants The GEO Group, Inc. and Corrections Corporation of America, as well as the impediment of Plaintiff’s ability to disseminate its political message, frustration of Plaintiff’s organizational mission, diversion of resources, loss of potential subscribers and customers, inability to recruit new subscribers and supporters, loss of reputation, costs of printing, handling and mailing costs, costs of staff time, and other damages to be proven at trial;
(e) Award Plaintiff its costs and attorneys’ fees arising out of this litigation, pursuant to 42 U.S.C. § 1988; and
(f) Grant Plaintiff such other and further relief as the Court may deem just and equitable.

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Respectfully submitted, -14-

Case 4:12-cv-00239-MW-CAS Document 14 Filed 12/16/11 Page 15 of 17

{07046133;1}

Randall C. Berg, Jr., Esq. Florida Bar No. 318371 Joshua A. Glickman, Esq. Florida Bar No. 43994 Shawn A. Heller, Esq. Florida Bar No. 46346 Dante P. Trevisani, Esq. Florida Bar No. 72912
Florida Justice Institute, Inc. 3750 Miami Tower 100 S.E. Second Street Miami, Florida 33131-2309 305-358-2081 305-358-0910 (FAX) E-mail: RBerg@FloridaJusticeInstitute.org E-mail: JGlickman@FloridaJusticeInstitute.org E-mail: SHeller@FloridaJusticeInstitute.org
Randall C. Marshall, Esq. Florida Bar No. 181765
American Civil Liberties Union Found. of Fla. 4500 Biscayne Blvd. Suite 340 Miami, Florida 33137 786-363-2700 786-363-1108 (FAX) E-mail: RMarshall@aclufl.org
Lance Weber, Esq. Human Rights Defense Center P.O. Box 2420, Brattleboro, VT 05303 802-579-1309 866-228-1681 (FAX) E-Mail: lweber@humanrightsdefensecenter.org
Attorneys for the Plaintiffs
By: s/ Randall C. Berg, Jr. . Randall C. Berg, Jr., Esq. Florida Bar No. 318371
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CERTIFICATE OF SERVICE I HEREBY CERTIFY that on December 16, 2011, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive Notices of Electronic Filing.
By: s/ Randall C. Berg, Jr. . Randall C. Berg, Jr., Esq.

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SERVICE LIST Case No. 11-24145-CIV – Seitz/Simonton United States District Court, Southern District of Florida
By CM/ECF Electronic Filing:
Susan A. Maher, Esq. Chief Assistant Attorney General Corrections Litigation Florida Bar No. 0438359 Office of the Attorney General The Capitol, PL-01 Tallahassee, Florida 32399-1050 Telephone: (850) 414-3300 Facsimile: (850) 488-4872 E-mail: susan.maher@myfloridalegal.com Counsel for Kenneth S. Tucker, in his official capacity as Secretary of the Florida Department of Corrections
By First Class U.S. Mail:
John J. Bulfin, Esq. General Counsel The Geo Group, Inc. World Headquarters One Park Place, Suite 700 621 Northwest 53rd Street Boca Raton, Florida 33487 Telephone: (561) 999-7350 Facsimile: (561) 999-7647
Steve E. Groom, Esq. General Counsel Corrections Corporation of America 10 Burton Hills Boulevard Nashville, Tennessee 37215 Telephone: (615) 263-3000 Facsimile: (615) 263-3140

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 Case 4:12-cv-00239-MW-CAS Document 279 Filed 10/05/15 Page 1 of 66

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

PRISON LEGAL NEWS,

Plaintiff,

v.

Case No. 4:12cv239-MW/CAS

JULIE L. JONES, in her official capacity as Secretary of the Florida Department of Corrections,

Defendant.

___________________________/

AMENDED ORDER1

This case involves an as-applied First Amendment challenge to Florida

Administrative Code Rule 33-501.401(3)(l) and (m), as well as a procedural due

process claim brought under 42 U.S.C. § 1983. Prison Legal News2 and Julie L.

Jones, on behalf of the Florida Department of Corrections, litigated this case to a

1 The original order, ECF No. 251, is amended as a result of Plaintiff’s motion to alter or amend the judgment, ECF No. 258.
2 In 2009, PLN, the corporation, changed its name to the Human Rights Defense Center. Tr. of Trial 36:24-:25 (Jan. 5, 2015). This order continues to refer to the entity as PLN.
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four-day bench trial beginning on January 5th, 2015.3 This order sets forth the findings of fact, analysis of law, and verdict.
I The parties dispute the constitutionality of the FDOC’s impoundment and rejection of PLN’s magazine, Prison Legal News, a monthly publication comprising writings from legal scholars, attorneys, inmates, and news wire services. FDOC regulates inmate mail with Rule 33-501.401 of the Florida Administrative Code, titled “Admissible Reading Material.” Rule 33-501.401 authorizes the FDOC to screen all mail entering its facilities and sets forth a detailed process by which it may impound that mail. Section (3) of Rule 33-501.401 contains thirteen subsections, labeled (a) through (m), providing distinct criteria by which incoming publications “shall be rejected” from the prison population. The First Amendment action specifically challenges subsections (l) and (m), ECF No. 14 ¶ 22, which state: [A] [p]ublication[] shall be rejected when . . . (l) It contains an advertisement promoting any of the following where the advertisement is the focus of, rather than being incidental to, the
3 The sole remaining defendant in this action, Julie L. Jones, is the current Secretary of the FDOC. Two other secretaries have cycled through the FDOC during this litigation, Kenneth S. Tucker and Michael D. Crews. Some early documents are directed at these individuals. The Secretary of the FDOC is responsible for the overall management of the Florida prison system and has ultimate responsibility for the promulgation and enforcement of all FDOC rules, policies and procedures, and administrative code provisions. See ECF No. 14 ¶ 15; ECF No. 68 ¶ 15. For simplicity, this order refers to Defendant Jones as the FDOC.
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publication or the advertising is prominent or prevalent throughout the publication.
1. Three-way calling services; 2. Pen pal services; 3. The purchase of products or services with postage stamps; or 4. Conducting a business or profession while incarcerated.
[or]
(m) It otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person.
Fla. Admin. Code R. 33-501.401(3)(l), (m) (2009) (amended 2010).4
As relief, PLN requests a declaratory judgment that Rule 33-501.401(3) is
unconstitutional as applied to Prison Legal News. ECF No. 14, at 13. PLN also
seeks an injunction that prohibits the impoundment and rejection of Prison Legal
News, orders the delivery of all previously censored and withheld issues, and
requires individualized notice and an opportunity to be heard whenever a copy of
an issue is rejected.5 Finally, PLN seeks the same due process remedies for the
4 That is the 2009 version. The Rule was amended in 2010. That amendment did not change subsections (3)(l) and (m). In the version before 2009, the prohibition against advertisements for three-way calling services, pen pal services, the purchase of products or services with postage stamps, and conducting a business while incarcerated appeared in section (4), not subsection (3)(l). See Fla. Admin. Code R. 33-501.401(4) (2006) (amended 2009). For clarity, this Court refers to these prohibitions as (3)(l). The other subsection at issue in this case is (3)(m), the Rule’s residual clause. Prior to 2009, the residual clause appeared under subsection (3)(l). See Fla. Admin. Code R. 33-501.401(3)(l) (2006) (amended 2009). This Court refers to the residual clause as (3)(m).
5 PLN attempted to add a void-for-vagueness claim. It sought leave to file a second amended complaint on February 19, 2013. ECF No. 119. That motion was denied for failure to show good cause. ECF No. 127, at 3. At the time, the trial was set for May 13, 2013. ECF No. 106. The trial would eventually be delayed by more than a year. Had this Court known, perhaps
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books and information packets it has mailed to FDOC inmates, which it maintains the FDOC impounded without notice. Tr. of Trial 4-5 (Jan. 8, 2015).
II This part of the order sets forth background facts that help situate the lawsuit in the broader contest between the parties.
A This is not the parties’ first rodeo—that would have been in February 2003, when the FDOC began censoring Prison Legal News due to its advertisement of services accepting postage stamps as payment, three-way calling services, pen pal services, and offers to purchase inmate artwork. See Prison Legal News v. Crosby, No. 3:04-cv-14-JHM-TEM, slip op. at 5-8, ¶¶ 4, 7, 14-16 (M.D. Fla. July 28, 2005), Pl.’s Trial Ex. 23 (the “Moore Order”). PLN sued the FDOC in January 2004 challenging that censorship under the First Amendment.6 Id. at 2.
it would have ruled differently on the motion to amend. Either way, PLN did not again move to amend the complaint until trial. By then it was far too late, and the motion was denied.
6 The First Amendment challenge to the censorship was not the sole claim. PLN also argued that Rule 33-602.207 of the Florida Administrative Code, which prohibits prisoners from engaging in outside businesses or professions and which the FDOC interpreted as proscribing compensation for writing for Prison Legal News, infringes on PLN’s First Amendment rights as a publisher. Moore Order 17. The Eleventh Circuit would eventually disagree. See Prison Legal News v. McDonough, 200 F. App’x 873, 875 (11th Cir. 2006). Lastly, PLN had originally asserted a due process claim under the Fifth and Fourteenth Amendments, but abandoned that claim at the start of the bench trial. Moore Order 2 n.1.
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While the suit was pending in March 2005, the FDOC amended Rule 33501.401 to clarify that publications would not be rejected for the advertising content in that case, so long as those ads are “merely incidental to, rather than being the focus of, the publication.”7 Moore Order 15. Following this amendment, the FDOC promised to no longer impound Prison Legal News for its advertising content. Id. at 13-15. The FDOC ceased impounding and rejecting Prison Legal News for the duration of the litigation and argued that PLN’s First Amendment challenge to the Rule was moot.
This convinced the district court. Four months after the amendment was implemented, it found that the FDOC had “shown that the [newly adopted] procedures . . . allow for distribution of [Prison Legal News] in its current format” and that the magazine would not be rejected solely on the basis of the advertising content at issue. Id. at 15-16. The Eleventh Circuit reiterated these sentiments on
7 Rule 33-501.401 has been amended several times. The FDOC’s interpretation of the Rule has also fluctuated. In the first lawsuit, “the FDOC changed its position several times as to whether PLN’s magazine contained prohibited material. In early 2003, the FDOC began impounding issues of PLN’s magazine because they contained ads for three-way calling services, which are prohibited for Florida inmates because they pose a threat to prison security. In November 2003, the FDOC reversed its decision and allowed for delivery of eight issues that it had previously impounded. However, a month later, in December 2003, the FDOC again decided to impound the magazine for including three-way calling service ads due to ongoing security concerns. By March 2004, the FDOC was satisfied that its telephone provider could properly monitor prisoners’ calls and that the three-way calling service ads were no longer a security concern. Therefore, the FDOC again approved delivery of the magazine.” McDonough, 200 F. App’x at 875.
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appeal. In rejecting PLN’s argument that an injunction was necessary to prevent further censorship, the Eleventh Circuit stated:
We agree with the district court’s finding that, although the FDOC previously wavered on its decision to impound the magazine, it presented sufficient evidence to show that it has “no intent to ban PLN based solely on the advertising content at issue in this case” in the future. The FDOC demonstrated that its current impoundment rule does allow for distribution of PLN in its current format and that the magazine will not be rejected based on its advertising content. The FDOC officially revised its impoundment rule and has not refused to deliver issues of the magazine since this amendment. . . . We have no expectation that FDOC will resume the practice of impounding publications based on incidental advertisements. McDonough, 200 F. App’x at 878. Since the Eleventh Circuit disposed of the claim as moot, it further declared that, “[a]s to the current rule, we offer no opinion on its constitutionality.” Id.
B Less than three years after the Eleventh Circuit’s ruling in McDonough, the FDOC amended the Rule to provide an additional ground for rejection under (3)(l). Under the revised Rule, publications with “prominent or prevalent” advertisements for services prohibited by (3)(l) would also be rejected. Fla. Admin. Code R. 33501.401(3)(l) (emphasis added). The 2009 amendments became effective on June 16, 2009. Def. Crews’ Obj. to Pl.’s First Set of Interrogs. to Def. Crews 2-3 (Jan. 18, 2013), Pl.’s Trial Ex.
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30. The FDOC has impounded every issue of Prison Legal News since September 2009. Tr. of Trial 105:24-106:2 (Jan. 6, 2015).
PLN initiated this suit on November 17, 2011. ECF No. 1. On December 16, 2011, PLN filed its First Amended Complaint. ECF No. 14. Only two counts remain, both against the FDOC. See ECF No. 117 (confirming the dismissal of the other two original defendants under a settlement agreement). Count III is a First Amendment as-applied challenge to subsections (3)(l) and (m) of the Rule. ECF No. 14, at 11, ¶¶ 40-43. PLN alleges that the FDOC’s actions “in refusing to deliver or allow delivery of Plaintiff’s publications to Florida inmates in its custody, solely because of the presence of certain advertisements within these publications, violate Plaintiff’s rights to free speech, press and association as protected by the First and Fourteenth Amendment to the U.S. Constitution and 42 U.S.C. § 1983.” Id. ¶ 43. And, in Count VI, PLN contends that the FDOC’s “failure and refusal to provide Plaintiff with constitutionally required notice and an opportunity to be heard and/or protest the decision each time Plaintiff’s publications are censored . . . violates Plaintiff’s rights to due process of law protected by the Fifth and Fourteenth Amendments . . . and by 42 U.S.C. § 1983.” Id. at 14, ¶¶ 52-55.
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On January 5, 2015, the parties began a four-day bench trial on these two counts. ECF No. 235. At its conclusion, the Court extended the parties an opportunity to brief certain key issues. See ECF Nos. 241-44, 246.
III In this part are the facts of the case, as found by this Court after careful consideration of all the evidence presented at trial. Most facts are undisputed. For those in dispute, the order lays out the competing views before resolving them.
A Established in 1990 by Paul Wright and Ed Meade, Prison Legal News is a monthly magazine that reports on news and legal developments related to the criminal justice system. Tr. of Trial 32:8-:22 (Jan. 5, 2015).8 PLN, a nonprofit with its principal place of business in Lake Worth, Florida, publishes Prison Legal News. Tr. of Trial 36:18-37:2 (Jan. 5, 2015). Its mission is to inform the public about events in prisons and jails and the need for progressive criminal justice reform, to inform prisoners and their advocates about these events and how to advocate for their rights, and to enhance rehabilitation for prisoners, ensure
8 The magazine was initially titled Prisoner’s Legal News. Tr. of Trial 122:22-123:5 (Jan. 5, 2015). In 1992, the editors changed the name to Prison Legal News because they “thought that [the] news and information was too important to . . . restrict it to prisoners.” Id.
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transparency and increase accountability of prison officials. Tr. of Trial 32:2333:9 (Jan. 5, 2015).
Over the past 25 years, Prison Legal News has published over 700 articles on the FDOC and Florida prisons and jails, with coverage ranging from misconduct by FDOC contractors to individual cases involving a host of legal issues. Tr. of Trial 51:15-:22 (Jan. 5, 2015). Prisoners are the magazine’s primary audience. Tr. of Trial 123:6-:10 (Jan. 5, 2015).
Prison Legal News started carrying advertisements in 1996.9 Tr. of Trial 41:16-:22 (Jan. 5, 2015). But it was not until February 2003 that the FDOC censored Prison Legal News for its advertising content. Tr. of Trial 41:23-42:8, 184:9-:10 (Jan. 5, 2015). The FDOC specifically took issue with the publication’s advertisement of services accepting postage stamps as payment, three-way calling services, pen pal services, and offers to purchase inmate artwork; proscribed mostly by subsection (3)(l). Moore Order 5-8. The justification was that those advertisements presented a security risk because they promoted prohibited services. Id. at 3.
9 The FDOC says that advertisements are unnecessary. The evidence overwhelmingly refutes that argument. This Court finds that without advertisements PLN could not print Prison Legal News. This Court further finds that printing a Florida-only edition of Prison Legal News would be cost-prohibitive. Tr. of Trial 60:23-71:14 (Jan. 5, 2015).
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PLN sued and the FDOC subsequently amended the Rule several times during the 2005 litigation, vacillating between admitting publications containing (3)(l) advertisements and rejecting them. Moore Order 7. Eventually the FDOC settled on a rule that would not reject publications such as Prison Legal News for advertising services prohibited by subsection (3)(l), so long as the advertisements were “merely incidental to, rather than being the focus of, the publication.” Id. at 8.
This Court finds that there were several reasons for this change. First, the FDOC believed that it had in place security measures to alleviate some of the concerns associated with the prohibited services advertized in Prison Legal News. Significantly, the FDOC trusted that its telephone vendor, at the time MCI, could detect and block three-way calls and call-forwarding. See, e.g., id. at 7; Tr. of Trial 78:11-:22 (Jan. 6, 2015). Second, the FDOC recognized that “incidental” advertisement did not pose a significant security threat to the prisons. Moore Order 15. Following this recognition, the FDOC promised that it would no longer impound and reject Prison Legal News “in its current format.” Id. at 16. The Rule was not, as PLN claims, amended to “moot” the 2005 case. Tr. of Trial 78:11-:22 (Jan. 6, 2015).
Finally, this Court finds that the 2005 litigation did not concern services prohibited by subsection (3)(m). See Tr. of Trial 69:9-70:8 (Jan. 6, 2015) (discussing the major concerns in the prior litigation); Tr. of Trial 214 (Jan. 7,
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2015) (testifying that prior litigation was not about subsection (3)(m)). This
litigation does.
B
From 2005 to 2009 the FDOC, proceeding under the revised Rule, did not
reject Prison Legal News. Then, in June 2009, the FDOC once again amended
subsection (3)(l) of the Rule. Along with this revision came the decision to resume
rejection of publications such as Prison Legal News for advertising services
prohibited by subsection (3)(l).10 11 At trial, the parties vigorously disputed what
10 At times during this litigation the FDOC has taken the position that the 2009 revisions were not substantive—that is, that the sole purpose was to clarify “incidental” to assist mailroom staff. The witnesses at trial could not agree on whether the change was substantive, and the parties never directly addressed the issue.
If truly not substantive, adding “prominent or prevalent” should not have resulted in heightened censorship, generally. Yet that is precisely what happened. Within a few months the FDOC resumed rejection of Prison Legal News, even though there was no noticeable change in the magazine between June 2009, when the rule was implemented, and September 2009, the first issue impounded since 2005. See Def.’s Trial Ex. 1; Pl.’s Trial Ex. 79.
What explains this inconsistency? First, it may not be an inconsistency at all. It could be the case that Prison Legal News’ advertising content had ballooned well beyond “incidental” back in October 2008, when it made the permanent jump from 48 pages per issue to 56. See Pl.’s Trial Ex. 79, at 38. This would mean that FDOC mailroom staff mistakenly admitted Prison Legal News for nearly a year. Under this view, the 2009 amendment worked. The staff has gotten it right ever since, impounding and rejecting every issue of the magazine from September 2009 to the present.
This Court finds, however, that the true and more obvious answer is that the 2009 amendment was not a simple “restyling”—to borrow from the judicial Committee on Rules of Practice and Procedure—of the Rule. The evidence at trial bears this out. For instance, Susan Hughes, chairwoman of the Literature Review Committee from 2012 to October 2013, testified that she understood the 2009 revision to be a change in the rule. Tr. of Trial 2:13-:17, 6:9-7:8 (Jan. 7, 2015). And, as this Court will discuss, the FDOC provided additional justifications for the substantive decision to again reject Prison Legal News, such as renewed security concerns.
11 The FDOC also began censoring Prison Legal News for advertisements prohibited by subsection (3)(m).
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prompted these changes. Everyone agrees it was not any major incident or tragedy related to (3)(l) services, since none occurred between 2005 and 2009.12 Tr. of Trial 5:9-:12 (Jan. 6, 2015).
FDOC administrators gave three primary reasons for amending subsection (3)(l) in 2009, each of which this Court deems credible. See Tr. of Trial 58:20-:21 (Jan. 6, 2015). The first was a disagreement among the administrators “over whether the prior policy met the needs of the department.” Tr. of Trial 59:8-:10 (Jan. 6, 2015). According to James Upchurch, new technology, such as the advent of Voice over Internet Protocol (“VoIP”) technology, forced the FDOC to reconsider previous security decisions. Tr. of Trial 19:12-:22 (Jan. 6, 2015). Securus is the FDOC’s current telephone vendor. Like MCI, it works by detecting noises and clicks made on a phone line that signal the initiation of three-way calls and call-forwarding. Tr. of Trial 15-16 (Jan. 6, 2015). Circumventing the system generally requires obfuscating those specific noises or transferring calls without any noise at all. VoIP employs the latter. Tr. of Trial 19:12-:22 (Jan. 6, 2015). The changes in technology proved wrong the FDOC’s belief that it had adequate security measures to curb three-way calling and call-forwarding.
12While no single, major incident prompted the amendment, this Court finds that there is evidence that companies and prisoners disregarded prison rules against exchanging stamps for money and services. See, e.g., Tr. of Trial 36:18-40:13 (Jan. 6, 2015).
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The second reason given was dissatisfaction with the vagueness of subsection (3)(l). FDOC administrators sought to clarify the circumstances under which publications should be censored for their advertising content. See Tr. of Trial 59:11-:14 (Jan. 6, 2015); see also Pl.’s Trial Ex. 30 (identifying clarity as the goal of the 2009 revisions). They did so with the antonyms “prominent or prevalent,” which the FDOC believed would assist mailroom staff in their decision-making. Lastly, the FDOC had noticed an increase in the volume of advertisements related to postage stamps. Tr. of Trial 59:16-:18 (Jan. 6, 2015).
A major theme in PLN’s First Amendment challenge is that the FDOC had no legitimate reasons for amending subsection (3)(l). So, PLN endeavored to undermine these reasons all through trial.
PLN asserts that the first reason—the purported circumvention of Securus— is false. Securus, like MCI, is contractually obligated to block the call services at issue. This contract was recently renewed by the FDOC. That means the system works, says PLN. Otherwise, the FDOC would not have renewed the contract.
FDOC offers evidence to refute PLN’s argument. First, Securus itself admits it is not 100% effective. Second, FDOC personnel monitoring phone calls have heard inmates successfully transfer calls. Third, hundreds of thousands of attempted calls have been detected by Securus. According to the FDOC, this
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means that some prisoners successfully transfer calls, or else there would not be so many attempts.
FDOC officials also said that increasing Securus’ effectiveness would be too costly. They explained that Securus could be made more effective by increasing its sensitivity to noise. The heightened sensitivity would capture more attempts, but also result in more false positives. It would shutdown inmates placing ruleabiding phone calls. This would lower prisoner morale and increase tension to untenable levels. Tr. of Trial 15-16:25 (Jan. 6, 2015). So it goes.
With respect to the first reason, this Court makes the following determinations. At the time of the 2005 litigation, the FDOC believed that its telephone vendor could detect all attempts at three-way calling and callforwarding. After all, Securus, its current vendor, is contractually obligated to block three-way calls and call-forwarding attempts. Yet it is unable to do so. Some calls, including those transferred using VoIP technology, elude the system. There is no evidence to suggest that any other provider could do a better job than Securus. And while it is theoretically possible to increase Securus’ efficacy, any benefit from doing so would be offset by attendant prison instability.
As to the third reason, PLN points out that the FDOC never ran a study to determine whether advertisements accepting stamps as payment increased between 2005 and 2009. Tr. of Trial 59:19-60:7 (Jan. 6, 2015). The FDOC instead relied
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on plain observations and noticed that the number of such advertisements had grown “substantially.” Tr. of Trial 59:19-60:18 (Jan. 6, 2015); accord Tr. of Trial 8:22-9:1 (Jan. 6, 2015).
That is beside the point. In fact the magazine did increase in size. Tr. of Trial 109:18-110:6 (Jan. 5, 2015). In four years the magazine went from 48 pages to 56 pages per issue, containing both more substantive, non-offending content and prohibited advertisements. See Pl.’s Trial Ex. 79 (providing total number of pages for every issue of Prison Legal News dating back to January 2002); Def.’s Trial Ex. 7. Qualitatively, the advertisements have changed as well. The number of “half page or greater” (3)(l) ads have increased. Def.’s Trial Ex. 7. And since 2010, PLN has run an offending advertisement on the back cover of the magazine. Id. Today, Prison Legal News is 64-pages long. See Pl.’s Trial Ex. 79. No formal study is necessary to see that.
PLN additionally argues that the FDOC is wrong to look to the total number of advertisements. Tr. of Trial 49:9-:12 (Jan. 7, 2015). Instead, as PLN would have it, the proper measure is the percentage of the magazine that is prohibited advertisement. Tr. of Trial 49:14-50:2 (Jan. 7, 2015). The merits of this argument are explored later. For now, suffice to say that the percentage of advertisements for three-way calling services, stamps as payment, pen pal services, and conducting a business services—that is, those prohibited by subsection (3)(l) of the
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Rule—increased only slightly from 9.21% in 2005 to 9.8% in 2009. See Pl.’s Trial Ex. 79, at 85. In 2014, (3)(l)-prohibited advertisements averaged 15.07% of the publication. Id.13
Notably, neither this “study” nor anything else introduced by the parties examines the percentage for advertisement prohibited by (3)(m). See Tr. of Trial 242, 250:9-:15 (Jan. 5, 2015) (explaining methods, which excluded (3)(m) ads); see also Def.’s Trial Ex. 7 (providing number of advertisements forbidden by other rules, including (3)(m), and showing that, by 2009, Prison Legal News’ advertising content had widened to include more types of prohibited advertisements; but still not revealing the percentage of (3)(m) advertisements).
Another contention made by PLN, which it hopes this Court will adopt as fact, is that FDOC officials amended the Rule in 2009 specifically to exclude Prison Legal News. PLN cites email exchanges among FDOC administrators where they discuss the 2009 amendment and how the new rule might “run afoul” of the promises made in the 2005 litigation. See, e.g., Tr. of Trial 61-66 (Jan. 6, 2015); Pl.’s Trial Ex. 57a-57i. To PLN, these emails are a smoking gun of the ulterior motive animating the 2009 revisions. See Tr. of Trial 135-136 (Jan. 5,
13 Evidence before this Court shows that advertising content in Prison Legal News has been on the rise since 2005. Paul Wright testified that PLN does not intend to further increase the number and size of offending advertisements. Tr. of Trial 59:8-:10 (Jan. 5, 2015). This Court has no reason to disbelieve Mr. Wright.
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2015) (accusing the FDOC of censoring Prison Legal News for its editorial content).
At minimum, the emails reveal that FDOC officials were aware that the 2009 changes would lead to rejection of Prison Legal News. This supports the finding that the FDOC intended the 2009 amendments to be substantive. And perhaps when placed, as PLN does, in the broader context of FDOC prevarication and inconsistent application of the Rule, they hint at chicanery (more on this later). But it is still a stretch to say that the emails demonstrate that FDOC officials amended the Rule in 2009 specifically to exclude Prison Legal News.
These emails are the closest thing PLN presented to direct evidence that the FDOC targets Prison Legal News. Other circumstantial evidence relies heavily on inference to support this theory. PLN reasons, for example, that security concerns could not possibly underlie the amendment because no major incident or tragedy related to the services advertised occurred between 2005 and 2009. The Rule must then be a façade, masking institutional bias against a publication that informs prisoners of their rights.
Such a finding would be nothing less than conjecture. There are many reasons, not the least of which is that there is some evidence of stamp-related problems. Animus is not the only inference that can be drawn from the fact that the FDOC amended subsection (3)(l) before a calamity transpired. Plus, the FDOC
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unequivocally denies any malice, its officials going as far as saying that they view Prison Legal News favorably. See, e.g., Tr. of Trial 212:9-:13 (Jan. 7, 2015). More importantly, PLN failed to offer any evidence showing that the FDOC does not censor other publications containing similar advertising content, or that the only other publications that the FDOC censors contain editorial content similar to Prison Legal News. To the contrary, the FDOC produced evidence, though limited, that it has repeatedly rejected other publications on (3)(l) grounds, some of which on their face do not resemble Prison Legal News. See, e.g., Def.’s Trial Ex. 12, at 37-39 (censoring American Arab Message for advertising services for stamps), 63-65 (censoring Cellmates for pen pal advertisement), 69-71 (censoring Butterwater catalog for advertising services for stamps), 72-74 (censoring Picture Entertainment for advertising services for stamps); Def.’s Trial Ex. 15.
Here, the more limited conclusion is the soundest. And that conclusion is that FDOC officials did not amend subsection (3)(l) in 2009 because they disliked Prison Legal News’ “editorial” content.14 And there is no evidence, this Court finds, that the FDOC censors Prison Legal News but not other publications with similar advertising content. Lastly, with respect to subsection (3)(l), this Court
14 It is not entirely clear how much “motive” matters, if at all, in the First Amendment analysis. The order later explores the divergent case law on this issue. Ultimately, this Court does not decide whether motive matters because, even if it does, PLN failed to present sufficient evidence that FDOC officials acted with ill will in 2009 when they amended the Rule and resumed impounding Prison Legal News.
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finds, consistent with the expert testimony presented at trial, that advertisements for such services implicate legitimate security concerns. Tr. of Trial 69-147 (Jan. 7, 2015).
Turning to subsection (3)(m), this Court makes the following findings. Subsection (3)(m) contains a residual clause requiring the FDOC to reject publications that otherwise present a threat to security, order, rehabilitative objectives, and safety. From 2009 onward, the FDOC became increasingly concerned with services falling outside the ambit of (3)(l) and within the purview of (3)(m). See, e.g., Tr. of Trial 15:14-:20 (Jan. 7, 2015). Chiefly troubling among these services—at least to the FDOC—are prisoner concierge services, which enable inmates to establish outside bank accounts, run background checks, and locate people, among other things. See Tr. of Trial 69:9-70:8 (Jan. 6, 2015); see also Tr. of Trial 73:13-:21 (Jan. 7, 2015) (listing services falling under umbrella term “prisoner concierge services”). This Court finds, consistent with the expert testimony produced by the FDOC, that advertisements for these services constitute legitimate security risks. See Tr. of Trial 69-147 (Jan. 7, 2015).
Prison Legal News contained these sorts of advertisements in 2009. See Def.’s Trial Ex. 7. It did not back in 2005. See id. Indeed, the largest increase in advertisements in Prison Legal News has been for prisoner concierge services. Tr.
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of Trial 73:13-:21 (Jan. 7, 2015). Unremarkably, then, the FDOC began invoking subsection (3)(m) to censor the publication.
Not all of PLN’s evidentiary arguments are duds. The following is largely undisputed. Florida is the only state that censors Prison Legal News because of its advertising content. Tr. of Trial 71:15-:20, 198-200 (Jan. 5, 2015). The private prison corporations censor Prison Legal News only in Florida as well. Tr. of Trial 75:14-:20 (Jan. 5, 2015). Some states that previously censored the publication because of its advertising content have found less restrictive ways of furthering their legitimate penological goals without banning it. See, e.g., Tr. of Trial 81:1982:14 (Jan. 5, 2015) (explaining that New York staples a notice to the magazine before delivering it to inmates warning them that certain services are prohibited).
Other prison rules seem in tension with the penological grounds upon which the FDOC censors Prison Legal News. Inmates may call up to 10 numbers preapproved by the FDOC. Tr. of Trial 13:1-:7 (Jan. 6, 2015). The FDOC claims that three-way calling and call-forwarding present a security risk because these services mask the identity and location of the true recipient of a call. Tr. of Trial 197-200 (Jan. 5, 2015). Yet the FDOC allows inmates to list cell phone numbers, for which it has no way of knowing the location and identity of the person on the other end. Id.; see also Tr. of Trial 22:5-:10 (Jan. 6, 2015). The assignment of a cell phone number likewise does not depend on geography. Tr. of Trial 49-50
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(Jan. 6, 2015) (explaining how someone in Miami can obtain a cell phone number with a Tallahassee area code). Similarly, even though the FDOC has stamp-related security concerns, it allows inmates to possess up to 40 stamps at any given time. Tr. of Trial 188:3-:4 (Jan. 5, 2015). And, as PLN stresses, there are many ways for inmates to obtain the information advertized in Prison Legal News despite its censorship.
These inconsistencies aside, this Court determines that the FDOC’s stated penological objectives for censoring Prison Legal New have been steadfast: security, rehabilitation, and protecting the public, FDOC staff and inmates.
C The FDOC’s literature review process can be broken down into two groups. The first group consists of incoming publications that have not previously been rejected by the Literature Review Committee (“LRC”), the body that reviews impoundment decisions made by FDOC institutions. As to that group, the process works as follows. An issue of Prison Legal News enters an FDOC facility or institution. Mailroom personnel initially flag potential advertising violations. If they think the advertising content violates the Rule, the publication is sent to the warden or the warden’s designee (“[f]or the purposes of approving the impoundment of publications,” the designee is limited to the assistant warden), who makes the
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impoundment decision for the FDOC institution. Fla. Admin. Code R. 33501.401(8)(a). If that official believes the publication violates the Rule, he or she completes “Form DC5-101, Notice of Rejection or Impoundment of Publications.” Id. The form is supposed to indicate the “specific reasons” for impoundment. Id.
Several copies of this form are made. Not everyone is entitled to a copy. Under the Rule, the inmate is always entitled to notice whenever a copy of any publication addressed to him or her is impounded. But the Rule only requires that the institution that “originated the impoundment . . . also provide a copy of the completed form to the publisher, mail order distributor, bookstore or sender, and to the literature review committee.” Fla. Admin. Code R. 33-501.401(8)(b). “[A] copy of the publication’s front cover or title page and a copy of all pages cited on [the form],” are attached to the copy sent to the LRC.15 Id. (emphasis added).
FDOC personnel do not mark down every offending advertisement. So the LRC never receives a photocopy of the entire impounded publication.16 The LRC reviews the institution’s decision—in (3)(l) cases, reviewing to see whether offending advertisement is “prominent or prevalent throughout the publication”—
15 Briefly, the parties dispute the burden of making a copy for the publisher every time an FDOC facility impounds a copy of an issue. The dispute centered on whether doing so would impose a de minimus burden on the FDOC. This Court has considered the evidence and now finds that making a copy for the publisher every time would be minimally burdensome.
16 The FDOC does not copy the entire publication for fear that doing so infringes copyright protections.
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without ever knowing the number and size of all offending advertisements in any given issue of Prison Legal News, nor the issue’s total page count. It may affirm or overturn the institution’s decision on different or additional grounds. Tr. of Trial 113:20-:25, 120:20-:23 (Jan. 6, 2015). The LRC does not use Form DC5-101 to make its decision. Tr. of Trial 120 (Jan. 6, 2015). Instead, the LRC uses a different form that it keeps internally. Id. These internal forms have not been provided to this Court by either party.
Once an initial impoundment decision is made, the Rule requires all other institutions to impound the same publication pending review by the LRC. Fla. Admin. Code R. 33-501.401(8)(c). The initial impounding institution is supposed to notify other institutions of the impoundment through a centralized database that explains why a specific publication was impounded. This reduces duplicative efforts. Institutions that subsequently receive the same publication should automatically reject it on the same grounds as the initial institution.
Group two concerns publications that have previously been rejected by the LRC. Once the LRC affirms an initial impoundment, it rejects the specific issue of a publication and informs all institutions of its decision. Future recipient institutions are then required to reject other copies of that issue. The LRC does not notify publishers when it upholds an impoundment decision unless the publisher appealed the initial impoundment decision. Tr. of Trial 86:3-:8 (Jan. 6, 2015).
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D The FDOC has impounded every issue of Prison Legal News since September 2009. Pursuant to its policy, it admits not providing PLN a notice of impoundment for every copy of each issue it has impounded.17 The FDOC says that it has provided PLN at least one impoundment notice per issue since 2009. As evidence, the FDOC called two witnesses who worked in the mailroom at Florida State Prison. Tr. of Trial 154, 180 (Jan. 7, 2015). One of them, Ms. Patricia Goodman, has been working there since at least 2009. Tr. of Trial 154:22-155:7 (Jan. 7, 2015). The two witnesses are responsible for mailing out the impoundment notices originating at Florida State Prison. Both testified about the impoundment protocol at their institution and how closely these procedures are followed by mailroom staff. See, e.g., Tr. of Trial 158:5-:7 (Jan. 7, 2015). Neither could independently recall actually sending PLN an impoundment notice every single time. As further support, the FDOC provided documentation of notices of impoundment from 2009 to the present. See Def.’s Trial Ex. 5. None of this, says PLN, demonstrates that the FDOC provided PLN with an impoundment notice for every issue since 2009. PLN is absolutely correct. First, the testimonial evidence submitted by the FDOC is limited to one of its institutions, Florida State Prison. No one argues that Florida State Prison was
17 Whether due process requires individualized notice per copy will be discussed later. 24

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always the original impounding institution. There is no evidence that the other institutions regularly followed protocol like Ms. Goodman. Second, even for the Florida State Prison, the witnesses admitted that they could not recall whether they notified PLN every time. Third, the notices of impoundment submitted are reproductions of notices received by PLN from prisoners, not the FDOC. See ECF No. 241, at 9-10 (explaining that the notices reproduced in Defendant’s Trial Exhibit 5 contained PLN Bates numbers; PLN originally disclosed these notices to the FDOC during discovery).
This Court finds in favor of PLN on these facts. PLN proved that it did not receive an impoundment notice for every issue impounded since November 2009. ECF No. 241, at 9. Two of its witnesses explained PLN’s mail protocol, credibly establishing PLN’s meticulous recordkeeping. Tr. of Trial 252, 268 (Jan. 5, 2015). From November 2009 to June 2013, Mr. Zachary Phillips was responsible for filing mail concerning censorship or possible censorship of Prison Legal News. Tr. of Trial 253:8-254:6 (Jan. 5, 2015). He reviewed notices of rejection or impoundment from November 2009 to May 2013. Tr. of Trial 257-263 (Jan. 5, 2015). PLN did not receive a notice of impoundment from the FDOC for many of those months. See, e.g., Tr. of Trial 257:13-:14 (Jan. 5, 2015) (stating that in 2010 PLN did not receive notices in May, June, July, August, September, and October).
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In summary, for 26 issues between November 2009 and December 2014, PLN did not receive any notice from the FDOC that Prison Legal News had been impounded.18 That is roughly 42% of all issues during that period where the FDOC withheld Prison Legal News without notifying PLN. ECF No. 241, at 9. Of the notices PLN did receive, many did not list the page numbers containing advertisements allegedly in violation of the Rule. Id. Some did not even state the subsection allegedly breached. Id. And at least three times PLN received a notice of rejection without having first received a notice of impoundment, meaning that the LRC had made its decision before PLN had an opportunity to appeal. Id.
Lastly, this Court finds that the FDOC failed to provide notice every time it impounded the Prisoners’ Guerilla Handbook and the information packets sent to its inmates by PLN. See Tr. of Trial 261-262 (Jan. 5, 2015); Tr. of Trial 4-5 (Jan. 8, 2015); Pl.’s Trial Ex. 46; Pl.’s Trial Ex. 86.
IV There are three principal issues to be resolved. The first is preliminary and does not address the merits of PLN’s lawsuit. That issue is whether the FDOC should be judicially estopped from censoring Prison Legal News under Rule 33501.401(3)(l). Resolving that issue does not completely dispose of the case
18 This is the summary provided by PLN in its post-trial brief. See ECF No. 241, at 9. This Court has independently reviewed the evidence submitted at trial and agrees with the summary.
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because PLN also brought an as-applied First Amendment challenge to subsection (3)(m) of the Rule. The two remaining issues are: first, whether the FDOC’s censorship of Prison Legal News under Rule 33-501.401(3)(l) and (m) unconstitutionally abridges PLN’s First Amendment rights;19 and second, whether the FDOC violated PLN’s procedural due process rights.
A The preliminary question is whether judicial estoppel bars the FDOC from censoring Prison Legal News on the basis that its advertising content violates Rule 33-501.401(3)(l). The doctrine of judicial estoppel generally “prevents a party from asserting a claim in a legal proceeding that is inconsistent with a claim taken by that party in a previous proceeding.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001) (quoting 18 Moore’s Federal Practice § 134.30, p. 134-62 (3d ed. 2000)). It is designed “to protect the integrity of the judicial process.” Id. To that end, the doctrine, in its “simplest manifestation[],” estops a party from asserting “a present position because [that] party had earlier persuaded a tribunal to find the opposite.” 18B Charles Alan Wright et al., Federal Practice & Procedure § 4477 (2d ed. 2015).
19 Applied to the State of Florida by the Fourteenth Amendment. 27

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The Supreme Court in New Hampshire explained that while “[t]he
circumstances under which judicial estoppel may appropriately be invoked are
probably not reducible to any general formulation of principle,” “several factors
typically inform the decision whether to apply the doctrine in a particular case.”
532 U.S. at 750 (alteration in original) (quoting Allen v. Zurich Ins. Co., 667 F.2d
1162, 1166 (4th Cir. 1982)).
First, a party’s later position must be “clearly inconsistent” with its earlier position. Second, courts regularly inquire whether the party has succeeded in persuading a court to accept that party’s earlier position, so that judicial acceptance of an inconsistent position in a later proceeding would create “the perception that either the first or the second court was misled.” Absent success in a prior proceeding, a party’s later inconsistent position introduces no “risk of inconsistent court determinations,” and thus poses little threat to judicial integrity. A third consideration is whether the party seeking to assert an inconsistent position would derive an unfair advantage or impose an unfair detriment on the opposing party if not estopped.
Id. at 750-51 (citations omitted).
In this Circuit, courts consider two additional factors. “First, it must be
shown that the allegedly inconsistent positions were made under oath in a prior
proceeding. Second, such inconsistencies must be shown to have been calculated
to make a mockery of the judicial system.” Burnes v. Pemco Aeroplex, Inc., 291
F.3d 1282, 1285 (11th Cir. 2002) (quoting Salomon Smith Barney, Inc. v. Harvey,
260 F.3d 1302, 1308 (11th Cir. 2001), cert. granted, judgment vacated on other
grounds, 537 U.S. 1085 (2002)). “[T]hese . . . enumerated factors are not
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inflexible or exhaustive.” Id. at 1286. And, courts have discretion in invoking the doctrine. New Hampshire, 532 U.S. at 750. But they “must always give due consideration to all of the circumstances of a particular case when considering [its] applicability.” Burnes, 291 F.3d at 1286 (emphasis added).
The FDOC currently maintains that the advertisements for (3)(l) services in Prison Legal News present a security threat, justifying the publication’s censorship under that subsection. PLN insists that this position is clearly inconsistent with the 2005 representation that “such ‘incidental’ ads do not pose a significant security threat to the prisons.” Moore Order 15. It would be different if the underlying facts changed, but according to PLN, the only thing that has changed is the FDOC’s “interpretation of the evidence or its decisions on how to enforce the rules at issue.” ECF No. 241, at 20. It points out that the percentage of (3)(l) advertising content in Prison Legal News did not increase significantly from 2005 to 2009, and that no major incident or tragedy linked to (3)(l) services occurred during that time period. The FDOC’s “flip-flopping” “over the same rule and same security concerns,” PLN claims, is precisely the sort of inveiglement of the judiciary that judicial estoppel is supposed to ward against.
But because circumstances have changed, the two FDOC positions are not clearly inconsistent. First, technology changed. In 2005, the FDOC decided not to censor publications containing advertisements for three-way calling and call-
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forwarding services because it believed that its telephone vendor could detect and block all such attempts. See Moore Order 14. Yet inmates have continued to bypass the FDOC’s security measures using technology such as VoIP that previously was not so widely available. The FDOC was clearly mistaken about the efficacy of its security measures. Judicial estoppel simply does not apply “when the prior position was taken because of a good faith mistake rather than as part of a scheme to mislead the court.” Ryan Operations G.P. v. Santiam-Midwest Lumber Co., 81 F.3d 355, 362 (3d Cir. 1996).
Second, the extent to which Prison Legal News advertizes services prohibited by (3)(l) has also changed. PLN stresses that the proportion of the magazine that is (3)(l) advertisement barely increased from 9.21% in 2005 to 9.8% in 2009. To PLN, these percentages demonstrate that in 2009 such advertisements were no less “incidental” than they had been in 2005. PLN thus equates “incidental” to proportional.
A strictly proportion-based metric, however, overlooks significant differences. For starters, Prison Legal News ran larger ads in 2009. A chart submitted by the FDOC tallies the number of “half page or greater” (3)(l) ads. Def.’s Trial Ex. 7. From April 2005, the last issue censored in the previous litigation, to September 2009, the number of such ads increased by 100%, from 2 to 4. Id. at 1. That number rose even more, now hovering around 6 per issue. Id.
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at 3. So while the overall proportion of (3)(l) advertisement had not increased significantly in 2009, the number of larger, more conspicuous ads did.
The magazine also shifted away from advertising three-way calling services to advertisements enabling inmates to purchase products or services with postage stamps. By PLN’s own account, the number of these so-called “stamp” advertisements went from 2 in April 2005 to 7 in September 2009. Compare Pl.’s Trial Ex. 79, at 17-18, with id. at 43-44. That number has steadily ticked upward: 8 by November 2009; 9 in February 2010; 10 in March 2010; a slight decrease before rebounding to 11 in July 2010; 13 by August 2010; peaking at 17 in March 2013; and steadying at the lower end of the teens ever since. Id. at 44-84. Advertisements for three-way calls have not seen this growth, but they have not decreased either. Id. Although PLN argues that the overall percentage of (3)(l) advertisements has not changed much,20 the magazine clearly emphasizes a different type of (3)(l) ad today than it did in 2005.
The most obvious shortcoming with equating “incidental” to proportional is that it misses the absolute increase of advertisements for services prohibited by (3)(l). See id.; Def.’s Trial Ex. 7. Perhaps a 10-page publication with one page of advertisement is functionally equivalent to a 100-page publication with ten pages
20 This is not actually true. The overall percentage in 2005 was 9.21%. Pl.’s Trial Ex. 79, at 85. By 2011 that number had gone up to 10.19%. Id. It hit 12.66% in 2012, and now hovers above 15%. Id.
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of advertisement. This Court, however, refuses to supplant FDOC officials’ judgment on whether one of these equally proportionate, but qualitatively different publications presents any more of a security risk than the other. See Jones v. N. Carolina Prisoners’ Labor Union, Inc., 433 U.S. 119, 125 (1977) (admonishing the lower court for “not giving appropriate deference to the decisions of prison administrators and appropriate recognition to the peculiar and restrictive circumstances of penal confinement”).
All of these changes to the content and format of Prison Legal News matter for judicial estoppel. PLN paints the FDOC’s representations in 2005 as a blanket promise that Prison Legal News would never again be censored for advertising services prohibited by (3)(l). But that is not what the Moore Order articulates. The FDOC represented that “such ‘incidental’ ads” did not pose a security threat. Moore Order 15 (emphasis added). This is a direct reference to the advertising content at issue in that case. See Black’s Law Dictionary 1661 (10th ed. 2014) (defining “such” as “That or those; having just been mentioned”). By limiting its representation, the FDOC’s promise cannot fairly be read as extending to all future iterations of such advertisements, particularly those different in kind.
Furthermore, the Moore Order itself reflects the limited finding that the FDOC had promised not to impound Prison Legal News “in its current format.” Moore Order 21 (emphasis added). The Eleventh Circuit reiterated this
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understanding on appeal. McDonough, 200 F. App’x at 878 (“The FDOC demonstrated that its current impoundment rule does allow for distribution of PLN in its current format.”) (emphasis added). The format changed in four years. It has changed even more since then. Consequently, the FDOC’s current position is not clearly inconsistent with the position it took before Judge Moore, and this Court’s acceptance of that position would not “create the perception that . . . the first . . . court was misled.” New Hampshire, 532 U.S. at 750-51.
Accordingly, the FDOC is not judicially estopped from adopting the current position that Prison Legal News must be censored because its (3)(l) advertising content presents a security risk.21
B This Court must also decide whether the FDOC’s censorship of Prison Legal News pursuant to Rule 33-501.401(3)(l) and (m) violates PLN’s rights under the First Amendment. PLN has a legitimate First Amendment interest in accessing prisoners “who, through subscription, willingly seek [the] point of view” expressed in Prison Legal
21 The FDOC additionally contends that judicial estoppel does not apply against states when doing so would “compromise a governmental interest in enforcing the law” and “where broad interests of public policy [are] at issue.” ECF No. 242, at 4-5 (quoting New Hampshire, 532 U.S. at 755-56). It argues this case implicates both concerns. First, estoppel would compromise the FDOC’s interest in enforcing prison safety rules. Second, broad interests of public safety and prison security are at issue. PLN responds that neither interest is at play in this litigation. This Court need not decide this issue because it finds that the totality of the circumstances counsel against judicial estoppel.
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News. Thornburgh v. Abbott, 490 U.S. 401, 408 (1989). Prison regulations limiting that access must be analyzed under the reasonableness standard developed by the Supreme Court in Turner v. Safley, 482 U.S. 78 (1987). Thornburgh, 490 U.S. at 413-14 (holding that regulations affecting the sending of a “publication” to a prisoner must be analyzed under Turner; refusing to distinguish between incoming correspondence from prisoners and incoming correspondence from nonprisoners); accord Washington v. Harper, 494 U.S. 210, 224 (1990) (“[T]he standard of review we adopted in Turner applies to all circumstances in which the needs of prison administration implicate constitutional rights.”); Perry v. Sec’y, Florida Dep’t of Corr., 664 F.3d 1359, 1365 (11th Cir. 2011). Under Turner, such regulations are “valid if [they are] reasonably related to legitimate penological interests.” Thornburgh, 490 U.S. at 413 (alteration in original) (quoting Turner, 482 U.S. at 89).
Several factors are relevant to the reasonableness inquiry. The first factor is multifold, requiring courts to “determine whether the governmental objective underlying the regulations at issue is legitimate and neutral, and that the regulations are rationally related to that objective.” Id. at 414. This “ ‘factor’ is more properly labeled an ‘element’ because it is not simply a consideration to be weighed but rather an essential requirement.” Salahuddin v. Goord, 467 F.3d 263, 274 (2d Cir. 2006); accord Shaw v. Murphy, 532 U.S. 223, 229-30 (2001) (“[After
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stating the first Turner factor:] If the connection between the regulation and the asserted goal is ‘arbitrary or irrational,’ then the regulation fails, irrespective of whether the other factors tilt in its favor.”).
A second factor “is whether there are alternative means of exercising the right that remain open to [the plaintiff].” Turner, 482 U.S. at 90. “A third consideration is the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. Finally, Turner instructs lower courts to inquire whether there are “easy alternatives” indicating that the regulation is not reasonable, but rather an “exaggerated response” to prison concerns. Id.
After the impinged constitutional right has been identified, as is the case here, the state must “put forward” the legitimate governmental interests underlying its regulation. Id. at 89. Once this is done, the plaintiff bears the ultimate burden of showing that the regulation in question, as applied, is not reasonably related to legitimate penological objectives. Overton v. Bazzetta, 539 U.S. 126, 132 (2003) (“The burden, moreover, is not on the State to prove the validity of prison regulations but on the [plaintiff] to disprove it.”).
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The FDOC identified public safety and prison security as the underlying legitimate governmental interests.22 No one questions whether those are legitimate governmental interests. Any suggestion to the contrary would be fruitless. See Thornburgh, 490 U.S. at 415 (holding that regulation promulgated with the purpose of “protecting prison security” is legitimate, since that “purpose . . . is central to all other corrections goals”); Perry, 664 F.3d at 1366 (acknowledging that “protecting the public and ensuring internal prison security” are legitimate penological interests).
PLN instead contends that the FDOC’s application of Rule 33-501.401(3)(l) and (m) is not content-neutral, and that censoring Prison Legal News for its advertising content is not rationally related to public safety and prison security. And so, with respect to the first factor, the question becomes (1) whether the Rule “operate[s] in a neutral fashion, without regard to the content of the expression” at issue; and (2) whether censoring Prison Legal News due to its advertising content rationally relates to public safety and prison security. Turner, 482 U.S. at 90.
As to neutrality, the Supreme Court has explained that Turner requires nothing more than that “the regulation or practice in question must further an important or substantial governmental interest unrelated to the suppression of
22 It identified other reasons too, but only the security objectives are necessary for this analysis.
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expression.” Thornburgh, 490 U.S. at 415 (quoting Procunier v. Martinez, 416 U.S. 396, 413 (1974)). “Where . . . prison administrators draw distinctions between publications solely on the basis of their potential implications for prison security, the regulations are ‘neutral’ . . . .” Id. at 415-16.
The limited evidence at trial reveals that the FDOC censors an assorted mix of publications under subsections (3)(l) and (m). Nothing in the record implies that such censorship turns on the content of the publication. PLN did not show, for instance, that the FDOC disparately censors publications critical of its institutions.
Lacking this evidence, PLN argues that FDOC administrators did not amend the Rule in 2009 on legitimate penological grounds. PLN alleges, citing a series of emails, that the true motivation behind the amendment was a dislike of Prison Legal News. See Pl.’s Trial Ex. 57a-57i.
“It is unclear what role, if any, motive plays in the Turner inquiry.” Hatim v. Obama, 760 F.3d 54, 61 (D.C. Cir. 2014). Compare Hammer v. Ashcroft, 570 F.3d 798, 803 (7th Cir. 2009) (“It is not clear why one bad motive would spoil a rule that is adequately supported by good reasons. The Supreme Court did not search for ‘pretext’ in Turner; it asked instead whether a rule is rationally related to a legitimate goal.”) (citation omitted), with Salahuddin, 467 F.3d at 276-77, and Quinn v. Nix, 983 F.2d 115, 118 (8th Cir. 1993) (“Prison officials are not entitled to the deference described in Turner and Procunier if their actions are not actually
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motivated by legitimate penological interests at the time they act.”). In this case, the contours of that role need not be delineated because “[e]ven if some quantum of evidence of an unlawful motive can invalidate a policy that would otherwise survive the Turner test,” the evidence introduced by PLN is “too insubstantial to do so.” Hatim, 760 F.3d at 61; see also Prison Legal News v. Stolle, No. 2:13CV424, 2014 WL 6982470, at *6 n.2 (E.D. Va. Dec. 8, 2014) (rejecting applicability of motive and holding, in the alternative, that PLN failed to present sufficient evidence of “unlawful motive” that could “invalidate a policy that would otherwise survive the Turner test”). As previously explained, the emails simply do not evidence unlawful animus on the part of FDOC administrators. Neither does the other circumstantial evidence. PLN thus failed to show that the FDOC applies Rule 33-501.401(3)(l) and (m) in a biased fashion.
Setting neutrality aside, this Court now turns to the gravamen of PLN’s First Amendment challenge. PLN advances three principal reasons for why there is no rational connection between the censorship at issue and the stated penological objectives.
The first argument boils down to a dispute about the evidentiary burden necessary to establish a “rational” connection. Everyone, even PLN’s expert, agrees that the underlying services addressed in Rule 33-501.401(3)(l) and (m) unquestionably compromise public safety and prison security. See, e.g., Tr. of
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Trial 68-69 (Jan. 8, 2015) (summarizing how even PLN’s expert agrees that the underlying services compromise security); Tr. of Trial 203:9-:15 (Jan. 5, 2015) (admitting that “[those services raise] very legitimate concerns”). This is why the FDOC forbids prisoners from using them.
But PLN says that evidence that prohibiting the use of these services furthers security is not enough. This case, PLN insists, is not about those services. This case is about censoring a publication because it advertizes those services. That is correct. Even so, the FDOC also articulated a logical connection between censorship and the penological objectives at stake, and presented sufficient evidence in support.
The logic is straightforward. Without question, the proper, initial response to the dangerous services is forbidding prisoners from using them. Though not surprisingly, they do so anyway. Tr. of Trial 241-243 (Jan. 7, 2015). See generally Washington, 494 U.S. at 225 (“[A] prison environment, . . . ‘by definition,’ is made up of persons with ‘a demonstrated proclivity for antisocial criminal, and often violent, conduct.’ ” (quoting Hudson v. Palmer, 468 U.S. 517, 526 (1984))). So the FDOC has adopted prophylactic safeguards in addition to bare proscription.
Rule 33-501.401 is such a safeguard. Advertisements compromise security because they convert a publication into a “one-stop shop”—to borrow from the
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FDOC’s expert—for dangerous services. Tr. of Trial 71-72:15 (Jan. 8, 2015). By limiting inmates’ exposure, the Rule seeks to reduce the likelihood that inmates will use those services.
PLN responds that such “general or conclusory” articulation of rationality is insufficient to withstand constitutional muster. Tr. of Trial 64:17 (Jan. 8, 2015). This Court agrees, “Turner requires prison authorities to show more than a formalistic logical connection between a regulation and a penological objective.” Beard v. Banks, 548 U.S. 521, 535 (2006). The FDOC met that burden by providing the testimony of several administrators who, “relying on their professional judgment, reached an experience-based conclusion that [censorship] . . . further[s] [the] legitimate prison objectives.” Id. at 533 (emphasis added); see also Prison Legal News v. Livingston, 683 F.3d 201, 216 (5th Cir. 2012) (“[P]rison policies may be legitimately based on prison administrators’ reasonable assessment . . . .”) (emphasis added). And, as additional support, the FDOC provided “expert testimony to establish that [censorship] will help curb” prisoners’ use of the services. Perry, 664 F.3d at 1366 (holding that expert testimony is sufficient to establish rational connection; deferring to the opinion of FDOC administrator James Upchurch, who is also a witness in this case).
None of this suffices for PLN. It wants specific past incidents. And not merely some past example of an inmate using a prohibited service to do something
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bad; PLN demands a concrete, unfortunate incident caused by an inmate using a banned service, which the inmate learned about in Prison Legal News. See, e.g., Tr. of Trial 66:2-:8 (Jan. 8, 2015).
No controlling precedent in this Circuit requires the FDOC to provide evidence of an actual, past incident. See, e.g., Perry, 664 F.3d at 1363 (affirming summary judgment in favor of the FDOC on First Amendment challenge to prison regulation despite fact that the FDOC failed to cite specific instances of the alleged problem in Florida). Several other circuits likewise do not require it. See, e.g., Murchison v. Rogers, 779 F.3d 882, 890 (8th Cir. 2015) (“[P]rison officials need not wait until particular prohibited material causes harm before censoring it . . . .”); Livingston, 683 F.3d at 216 (“[P]rison policies may be legitimately based on prison administrators’ reasonable assessment of potential dangers.”). But even if such evidence were required, FDOC administrators provided examples, both in Florida and throughout the country, of problems associated with specific services that advertize, or have advertized, in Prison Legal News. See, e.g., Tr. of Trial 5-6, 3941 (Jan. 6, 2015) (explaining that FDOC officials learned of a company that had been sending prisoners money for stamps, and how such companies could distribute money for prisoners to people in the outside world in exchange for stamps; this company had previously advertized on Prison Legal News).
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PLN’s second reason is that the FDOC applies the Rule arbitrarily. PLN introduced evidence of identical issues of Prison Legal News censored at separate FDOC facilities on different grounds, as reflected on the impoundment notice accompanying the censorship. There is also some testimony about issues that were initially admitted at some facilities while denied at others. Lastly, PLN stresses that advertisements for other prohibited services and products are not censored by the FDOC. PLN maintains that these inconsistencies amount to an irrational application of the Rule.
Case law supports the proposition that the consistency with which a regulation is applied matters for determining whether it is rationally connected to a legitimate penological objective. “The existence of similar material within the prison walls may serve to show inconsistencies in the manner in which material is censored such as to undermine the rationale for censorship or show it was actually censored for its content.” Murchison, 779 F.3d at 890 (emphasis added). In addition to inconsistent censorship of “similar” material, general “inconsistencies could [also] become so significant that they amount to a practical randomness that destroys the relationship between a regulation and its legitimate penological objectives.” Id. (quoting Livingston, 683 F.3d at 221); see also Thornburgh, 490 U.S. at 417 n.15.
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Although PLN has presented evidence of inconsistent censorship decisions made by FDOC mailroom staff, this Court does not believe PLN demonstrated inconsistencies that rise to a level of randomness or that undermine the rationale for censoring Prison Legal News. The fact that mailroom personnel do not uniformly censor Prison Legal News on the same grounds is not dispositive. “With the volume of material that must be screened, we cannot expect prison officials to perfectly screen all material that violates prison regulations.” Murchison, 779 F.3d at 890. Inconsistent application by mailroom staff goes more to the vagueness of the Rule.
In any event, mailroom staff decisions are not final and do not permanently compel censorship of the magazine throughout Florida. Initial impoundment decisions are subject to review by the LRC. The LRC rejects the publication on the grounds it thinks adequate. That decision is then uniformly applied throughout Florida because once the LRC makes a decision, there is no further individualized review by mailroom staff.
This pares down the risk of randomness and distinguishes this case from Thornburgh,23 where each prison warden independently decided censorship, such
23 Yet, even the inconsistencies in that case did not defeat an otherwise rational connection. Thornburgh, 490 U.S. at 417 n.15 (addressing the “seeming inconsistencies” in that case and holding that the regulation at issue struck “an acceptable balance” between uniformity and individualized review).
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that “certain federal prisons had excluded the very same book that others had allowed.” Livingston, 683 F.3d at 221. Here, the very same issue of Prison Legal News is eventually censored throughout the FDOC. Like in Livingston, the LRC’s “system-wide” “exclusion decisions” make the inconsistencies “only arguable,” because the only apparent inconsistencies left to sort out are the decisions to admit, for example, an advertisement about guns versus one about three-way calling. Id. This Court refuses to engage in such “one-to-one comparisons” of specific ads. Id. Not because these inconsistencies are irrelevant. But rather, due to the substantial deference owed prison administrators regarding which type of advertisement is more problematic.
Absent a showing that the FDOC is admitting other magazines containing advertisements closely resembling those found in Prison Legal News, which there is none, this Court holds that the “limited amount of inconsistency at the margins of [the FDOC’s] exclusion decisions is not enough to defeat the reasonableness of [the FDOC’s] practices.” Id.
The last argument PLN advances is that other FDOC regulations undermine the Rule to such a great extent that they render the Rule’s connection to security irrational. To illustrate, among the many such rules explored at trial is a regulation permitting inmates to list cell phone numbers on their preapproved contact list and another allowing inmates up to 40 stamps at any given time. See Tr. of Trial 22:5-
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:10 (Jan. 6, 2015); Tr. of Trial 188:3-:4 (Jan. 5, 2015). PLN asserts that these rules undermine the logic behind censoring some of the services singled out in (3)(l). Cell phones have three-way calling and call-forwarding capabilities identical to, or better than, the services advertized on Prison Legal News. The FDOC has no way of knowing a cell phone user’s location, just like it does not know the location of the person on the other end of a forwarded call. Tr. of Trial 197 (Jan. 5, 2015); Tr. of Trial 22:5-:10 (Jan. 6, 2015). Also, the FDOC allows inmates to have stamps and allows families to send inmates stamps despite their contention that they are a serious hazard in prisons. See Tr. of Trial 188:3-:4 (Jan. 5, 2015).
An FDOC administrator explained each conflicting rule. Cell phones are ubiquitous in modern society. Prohibiting inmates from calling cell phones would effectively preclude them from speaking with many of their loved ones who no longer carry land lines. The FDOC could theoretically impose such a draconian rule, but it would surely lead to increased tension within prisons. See Tr. of Trial 102-103 (Jan. 7, 2015) (summarizing practical impossibility).
Likewise, the FDOC once proposed a rule that would have embargoed stamps sent by family members to an inmate by mail. Tr. of Trial 23 (Jan. 6, 2015). Under the proposed rule, families would have been limited to depositing money into inmates’ prison accounts which the inmate could then use to purchase stamps. Families and friends of prisoners vehemently opposed the proposal,
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expressing concern that the rule would increase the likelihood that their imprisoned loved ones would either be victimized or simply not purchase any stamps at all. Tr. of Trial 23-24 (Jan. 6, 2015). Moreover, FDOC officials testified that implementing the accounting measures proposed by PLN to counteract the problems with stamps would be too costly and require amending state statutes. Tr. of Trial 25 (Jan. 6, 2015). Nearly every other seemingly paradoxical regulation in place also had some corresponding explanation.
Running a prison system is not easy. Prison administrators, charged with the unenviable task of “deal[ing] with the difficult and delicate problems of prison management,” must make considered decisions that balance order, security and resources. Thornburgh, 490 U.S. at 407-08. The first Turner factor requires this Court to determine whether the censorship at issue is rationally related to legitimate penological objectives. Finding that it is both rational and supported by evidence, this Court declines PLN’s invitation to disrupt the balance struck by the FDOC.
The remaining factors tilt in the FDOC’s favor as well. When considering whether alternative means of exercising the abridged right remain open to the plaintiff, the Supreme Court instructs courts to view “ ‘the right’ in question . . . sensibly and expansively.” Id. at 417. This means that the alternatives need not be perfect substitutes. Livingston, 683 F.3d at 218.
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The Rule leaves open sufficient alternatives for PLN to express their point of view to inmates. First, as in Perry, the Rule does not completely prevent PLN from corresponding with inmates. 664 F.3d at 1366. There are countless other written materials that PLN may send prisoners. As the Fifth Circuit in Livingston explained, if alternative means existed in O’Lone v. Estate of Shabazz, 482 U.S. 342 (1987), “where prisoners were cut off from [a] unique and irreplaceable [activity]”—“a unique religious ceremony”—surely there are alternatives to a magazine. 683 F.3d at 219.
Second, even Prison Legal News is not invariably censored. The Rule applies only when a particular issue’s advertising content crosses a certain threshold.24 And while this Court accepts that advertisements are necessary, the unfeasibility of printing Prison Legal News without advertising content is not dispositive. PLN has not proven that it is unable to adopt advertising rubrics that would help bring its magazine in line with prison regulations.
The third factor is the impact the accommodation of the asserted constitutional right will have on guards, inmates and prison resources. In this case, “the class of publications” excluded by the Rule “is limited to those found potentially detrimental to order and security.” Thornburgh, 490 U.S. at 418. The
24 This threshold, however, is almost impossible to identify. As this Court will explain shortly, vagueness is principally responsible for the Rule’s disparate application.
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evidence demonstrates that accommodating the specific way in which PLN seeks to exercise its right—through a publication containing dangerous amounts of advertising content—would “significantly less[en] liberty and safety for everyone else, guards and other prisoners alike.” Id. The Supreme Court has held that this fact alone pushes the third factor in FDOC’s favor. Id. (deferring to the “informed discretion of corrections officials” who had said that accommodating the right would lessen liberty and safety for “everyone else, guards and other prisoners”).
The final Turner factor is whether there are “easy alternatives” indicating that the regulation is not reasonable, but rather an “exaggerated response” to prison concerns. 482 U.S. at 90. This is not an inquiry into whether prison officials adopted the “least restrictive alternative.” Id. at 90-91. “But if an inmate claimant can point to an alternative that fully accommodates the prisoner’s rights at de minimis cost to valid penological interests, a court may consider that as evidence that the regulation does not satisfy the reasonable relationship standard.” Id. at 91.
As this Court explained during its discussion of rationality, there are no “easy alternatives” available to the FDOC. The prohibition against using the services themselves is not enough. Similarly, the alternatives suggested by PLN to eliminate the security concerns either have equally unattractive side effects or are costly to implement.
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Additionally, with respect to subsection (3)(l), “[a]lthough the FDOC did not need to narrowly tailor its Rule to only prohibit” publications containing “prominent or prevalent” offending advertisements, it adopted a less exaggerated response than censorship for any amount of offending advertising content. Perry, 664 F.3d at 1367. And as to subsection (3)(m), this Court is “comforted by the individualized nature of the determinations required by the regulation,” under which a publication is censored only if the LRC determines that it “presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person.” Thornburgh, 490 U.S. at 416.
Admittedly, the fact that Florida is the only state that currently censors Prison Legal News for its advertising content is troubling—at least for purposes of determining whether the Rule is indeed an exaggerated response. Some states have censored the publication for its advertising content. New York once censored it for carrying advertisements about services accepting stamps as payment. Tr. of Trial 81-82 (Jan. 5, 2015). New York eventually settled on a less restrictive way of furthering its security interest without censoring the entire magazine: attaching a notice warning prisoners that the services advertized are prohibited. Id. Even if this is the sounder policy, the FDOC is not required to implement the least restrictive regulation. Moreover, the FDOC may be constrained in ways that New York’s department of corrections is not. Significant variances would make
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comparison futile. Comparing different states’ department of corrections is difficult, and in this case the parties did not submit sufficient evidence to do so.
This Court is also not blind to the many other worrisome facts uncovered at trial. The most disconcerting is the Rule’s vagueness. None of the witnesses at trial were able to articulate any reasonably specific guidelines to determining when advertisements were “prominent or prevalent.” Some considered whether font was large and bolded to determine prominence. Others looked to the size of the advertisements. For prevalence, no one could identify a cutoff. With no framework handy, this Court would probably be unable to apply the Rule to those publications at the margins. Yet FDOC officials felt very strongly about their ability to determine prominence and prevalence correctly. It seems that they, unlike this Court, “know it when [they] see it.” Jacobellis v. State of Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring).
To make matters worse, the LRC, the final decision-maker, never reviews an entire publication or book when it makes its decision. As this Court mentioned earlier, this means that final determinations about prevalence are made without knowing whether, for instance, the four or five pages copied and attached to the impoundment notice are four or five out of one hundred, one thousand.
That being said, there is no void-for-vagueness claim pending. This lawsuit instead focuses on whether the FDOC has applied subsections (3)(l) and (m) to
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Prison Legal News in a manner reasonably related to legitimate penological interests. Courts have wrestled with the role played by general vagueness in the Turner analysis. See Martinez v. Fischer, No. CIV S-10-0366 GGH P, 2011 WL 4543191, at *8 n.4 (E.D. Cal. Sept. 28, 2011) (“[T]he undersigned has trouble fitting the Turner test, an analysis focused on the legitimacy of prison regulations, with an analysis focused on whether regulations are understandable.”); Miller v. Wilkinson, No. 2:98-CV-275, 2010 WL 3909119, at *5 (S.D. Ohio Sept. 30, 2010) (noting that “[p]rison regulations are not often challenged on vagueness grounds” and that some courts have held that “the First Amendment overbreadth doctrine, do not ‘apply with independent force in the prison-litigation context’ ” (quoting Waterman v. Farmer, 183 F.3d 208, 213 (3d Cir. 1999))); Bahrampour v. Lampert, 356 F.3d 969, 975-76 (9th Cir. 2004) (applying Turner test despite inmate’s assertion that vagueness and overbreadth claims must be considered separate and apart from application of Turner test.); cf. Sweet v. McNeil, No. 4:08CV17RH/WCS, 2009 WL 903291, at *7 (N.D. Fla. Mar. 31, 2009) (Hinkle, J.) (importing deferential principles to void-for-vagueness suit, in light of Turner).25
25 PLN does not argue that the Turner analysis entirely subsumes the void-for-vagueness inquiry. Moreover, PLN moved to amend their complaint to add a void-for-vagueness claim. This implies that PLN also thinks that the two claims are separate and distinct. In addition, there has not been any argument on the issue of whether void-for-vagueness and overbreadth claims apply with independent force in the prison context. This Court accordingly treats them as separate claims.
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In this case, all Turner factors support the FDOC. This includes the last one, where, instead of banning any amount of offensive advertisement, the FDOC elected the less restrictive option of allowing publications with some advertising content. The difficulty of applying the more reasonable option should not, and does not, overcome the other Turner factors. The uniformity with which the publication has been rejected by the LRC, both at the time and after re-reviewing the censored issues in preparation for trial, further alleviates the concern that the Rule cannot be applied intelligibly. Finally, the Rule here seems equally as difficult to apply as the one in Thornburgh, but that did not preclude a finding in the government’s favor. See 490 U.S. at 428 (Stevens, J., concurring in part and dissenting in part) (addressing the regulation’s vagueness).
This Court therefore holds that PLN has failed to show that the FDOC’s censorship of Prison Legal News is not “reasonably related to legitimate penological interests.” Turner, 482 U.S. at 89.
C The final issue is whether the FDOC violated PLN’s due process rights in its impoundment of Prison Legal News, the Prisoners’ Guerilla Handbook and the information packets sent to FDOC inmates. The “decision to censor or withhold delivery of a particular [publication],” such as Prison Legal News, “must be accompanied by minimum procedural
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safeguards.”26 Procunier, 416 U.S. at 417. Under Procunier, those safeguards are:
(1) notifying the intended recipient-inmate; (2) giving the author of the publication
a reasonable opportunity to protest the decision; and (3) referring complaints about
the decision to a prison official other than the person who originally disapproved
the correspondence.27 Id. at 418-19.
PLN claims that the current review process violates Procunier because only
the institution that initially impounds an issue of Prison Legal News is required to
provide the publisher notice. Publishers, PLN argues, are entitled to notice every
time a copy of an issue is impounded. This is so even if later impoundment
decisions duplicate earlier determinations. The FDOC responds that since all
issues of Prison Legal News are alike, PLN is only entitled to one notice per issue.
26 Procunier addressed the due process afforded prisoners and their correspondents when exchanging letters. Circuit courts have extended the due process safeguards to magazine publishers. See Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004); Montcalm Pub. Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996). They have held that a publisher’s right to due process does not depend on notifying the inmate. Jacklovich, 392 F.3d at 433-34.
27 The FDOC seems to have abandoned its argument that Mathews v. Eldridge applies. 424 U.S. 319 (1976). Even if Eldridge did apply, see Perry, 664 F.3d at 1368, it would similarly require of the FDOC the same procedural safeguards this Court sets forth in this order. “The fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner.” Eldridge, 424 U.S. at 333. A “meaningful manner” presupposes that the deprived party be provided with the information necessary to mount a meaningful challenge to the deprivation. In this case, that means informing PLN of the distinct, independent bases upon which its magazine has been impounded. Sharing this information is critical to reducing the risk of erroneous deprivation. Testimony about the ease of making additional copies suggests that the costs of implementation are minimal. The upshot of doing so benefits the government’s interest in due process of law and ensures that PLN has a meaningful opportunity to contest the deprivation.
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Neither party properly demarks the requirements of due process. Procunier demands that the publisher “be given a reasonable opportunity to protest” the censorship. Id. at 18 (emphasis added). For an opportunity to be reasonable, the publisher must know of the grounds upon which the publication has been censored. See Henry J. Friendly, “Some Kind of Hearing”, 123 U. Pa. L. Rev. 1267, 1280 (1975) (explaining that it is “fundamental” to due process that “notice be given . . . that . . . clearly inform[s] the individual of the proposed action and the grounds for it”). This knowledge component of due process does not turn on whether the publication is the first copy or a subsequent copy. What matters is the basis for censorship. If a subsequent impoundment decision is based on a different reason not previously shared with PLN, due process requires that PLN be told of this new reason.
The FDOC’s current policy of providing notice once per issue should theoretically satisfy this formulation. Under the Rule, once one institution impounds an issue of Prison Legal News, a later institution must automatically impound that same issue pending a final rejection determination by the LRC. Fla. Admin. Code R. 33-501.401(8)(c). The subsequent institution learns of the first institution’s reasons for impoundment through a centralized database. It must then inform its inmate of “the specific reasons why the publication was impounded.”
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Id. (emphasis added). That is, the later institution must inform the prisoner of the initial institution’s reasons for impoundment.
The succeeding, perfunctory impoundment amounts to “routine enforcement of a rule with general applicability” because it does not raise new grounds for censorship. Livingston, 683 F.3d at 223. The initial reasons for impoundment having been communicated to PLN, this ordinarily would not require additional notice.
Despite this mechanism, PLN has at times received multiple notices impounding a specific issue of Prison Legal News on different grounds. PLN expresses uncertainty as to how this happens, since the Rule requires future institutions to replicate the first institution’s reasoning. ECF No. 241, at 12 n.10.
One explanation is that sometimes multiple institutions receive the same issue of Prison Legal News simultaneously. When that happens, each institution thinks of itself as an initial impounding institution. In that scenario PLN should receive a notice per initial impounding institution. But the moment these simultaneous, initial impoundment decisions are disseminated throughout the FDOC, later institutions should cease providing independent grounds for exclusion.
Another explanation is that the Rule is not always followed. And as a result a subsequent impoundment is not perfunctory, but rather the product of an
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independent determination. See, e.g., ECF No. 241, at 11-12 (summarizing evidence). Worse, FDOC has at times completely failed to inform PLN of an impoundment decision, only notifying PLN of a rejection. This means that by the time PLN received notice, the LRC had already reviewed the initial impounding institution’s decision.
The FDOC claims that even if its employees failed to send PLN impoundment notices, it cannot be held liable because the failure is merely negligent. It cites Daniels v. Williams, 474 U.S. 327 (1986), and Davidson v. Cannon, 474 U.S. 344 (1986), in support of the argument that “the Due Process Clause is simply not implicated by a negligent act of an official causing unintended loss of or injury to life, liberty, or property.” Daniels, 474 U.S. at 328. PLN, in response, contends that Daniels only holds that the substantive deprivation must be caused by conduct beyond mere negligence. According to PLN, the failure to provide notice—that is, the process itself—gives rise to liability, even if the employee only negligently failed to do so.
There seems to be a circuit split on the issue of whether Daniels is limited to the substantive deprivation or whether it extends to the process itself. In Dale E. Frankfurth, D.D.S., v. City of Detroit, the plaintiff brought an action under § 1983 for damages resulting from the demolition of a building he owned. Nos. 86-1476, 86-1825, 1987 WL 44769, at *1(6th Cir. Sept. 17, 1987). The Sixth Circuit, citing
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Daniels, held that the plaintiff’s “failure to receive notice was due to the negligent
act of a clerk. Because the act was negligent, no fourteenth amendment
deprivation is involved and there is no constitutional need to provide a remedy.”
Id. at *3; accord Brunken v. Lance, 807 F.2d 1325, 1331 (7th Cir. 1986)
(“[Daniels] teaches that an official does not ‘deprive’ a person of life, liberty, or
property, within the meaning of the Fourteenth Amendment, when an official’s
negligent act causes the unintended loss of or injury to life, liberty, or property. . . .
Given this evidence, [the defendant’s] failure to notify [the plaintiff] was at most
negligent.”).
In contrast, the Third Circuit in Sourbeer v. Robinson limited Daniels to the
substantive deprivation. 791 F.2d 1094, 1104-05 (3d Cir. 1986). In so doing, it
summarized the distinction well:
Cases such as Davidson, dealing with a state of mind requirement for § 1983/due process actions, relate only to the highly unusual circumstance where the deprivation of life, liberty, or property the case is predicated upon was not intentional, as opposed to where the failure to provide adequate process was not intentional. For example, in Davidson prison guards negligently failed to take action to protect one prisoner who was threatened by another, allegedly “depriving” him of a liberty interest in being free of assaults. . . . In [Daniels] it was alleged that a correctional deputy had negligently left a pillow on a stairway, causing the plaintiff to slip and thereby “depriving” him of a liberty interest. These cases, it is readily apparent, are of a highly unusual nature—the defendants had probably not even been aware until after the fact of the “deprivations” that would trigger due process concerns. “To hold that injury caused by such conduct is a deprivation within the meaning of the Fourteenth Amendment would trivialize the centuriesold principle of due process of law.”
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Here, in contrast, the keeping of Sourbeer in administrative custody— depriving him of liberty—was itself an intentional act. That being the case, it was not necessary for the district court to make any other state of mind finding. We know of no authority for the proposition that an intentional deprivation of life, liberty or property does not give rise to a due process violation because the failure to provide due process was without fault. Id. (citations omitted). As far as this Court or the parties can tell, the Eleventh Circuit has not spoken on the issue. This Court believes that the Third Circuit has the better-reasoned opinion. This is particularly true here, where the relief sought is declaratory and injunctive. Even supposing that the “fault” associated with past failures matters for recovering damages against the government, an injunction pivots on the “independent legal right . . . being infringed.” Alabama v. U.S. Army Corps of Engineers, 424 F.3d 1117, 1127 (11th Cir. 2005). The right in this case implicates “the most rudimentary demands of due process of law”—notice. Armstrong v. Manzo, 380 U.S. 545, 550 (1965). Just because past failures were the product of negligent conduct does not absolve the FDOC of its constitutional obligation to provide notice going forward. In any event, PLN has shown that the FDOC’s failure to provide notice exceeded negligence. The systemic failure of FDOC personnel to provide notice 42% of the time reveals that the failures were not coincidental. The high failure rate indicates a substantial risk, one disregarded by FDOC administrators. At the
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very least this amounts to recklessness or gross negligence, which everyone agrees suffices for a due process violation. See Fagan v. City of Vineland, 22 F.3d 1296, 1305 (3d Cir. 1994) (collecting cases); Burch v. Apalachee Cmty. Mental Health Servs., Inc., 840 F.2d 797, 802 (11th Cir. 1988), affirmed sub. nom. Zinermon v. Burch, 494 U.S. 113 (1990) (holding allegations of actions taken willfully, wantonly, and with reckless disregard sufficient to state a due process claim). See generally Farmer v. Brennan, 511 U.S. 825, 839 (1994) (deliberate indifference is conscious disregard of a substantial risk).
This same reasoning applies to impoundment of the Prisoners’ Guerilla Handbook and the information packets. The record unquestionably establishes that FDOC personnel failed to notify PLN on a couple of occasions that it had impounded the Prisoners’ Guerilla Handbook and the information packets. The injunction is appropriate because those failures are part of the greater, widespread practice of not providing notice.
Before concluding, this Court addresses two remaining arguments. First, the FDOC contends that PLN waived due process. Mr. Wright admitted that at some point PLN stopped appealing impoundment decisions. Tr. of Trial 159:20-160:2 (Jan. 5, 2015). Apparently PLN thought appealing was futile. From this the FDOC concludes that it no longer had to apprise PLN of impoundment decisions since, in all likelihood, PLN would not have appealed.
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The problem with that logic is that the reasons for impounding Prison Legal News vary. Indeed, the Rule proscribes “total[] rejection” of a periodical and mandates that “each issue of the subscription . . . be reviewed separately.” Fla. Admin. Code R. 33-501.401(5). That PLN did not appeal past impoundments does not necessarily mean that it will not appeal future impoundments based on different reasons. The old adage that past behavior does not predict future performance rings truer here, where the underlying circumstances change over time.
More importantly, the FDOC failed to notify PLN of many impoundment decisions. Of course PLN did not appeal. It did not know that an issue had been censored, by which institution, and on what grounds. The fact that PLN may have later received a copy of an impoundment notice from an inmate is of no consequence. Notice must be timely and must set forth the basis for censorship, which many impoundment notices introduced at trial clearly did not. Armstrong, 380 U.S. at 552 (“[The opportunity to be heard] must be granted at a meaningful time and in a meaningful manner.”). Given these deficiencies, PLN did not waive its right to due process by failing to appeal.
Finally, PLN asserts that the LRC’s practice of affirming an impoundment decision on different or additional grounds than that found by the initial impounding institution violates Procunier. Recall that Procunier instructs that
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certain “minimum procedural safeguards” must accompany the decision to censor a periodical. 416 U.S. at 417. PLN says that the LRC’s practice violates the third safeguard requiring that complaints about a censorship decision be referred to someone other than the prison official who “originally disapproved the [publication].” Id. at 418-19. PLN says that by censoring a publication on a different or additional basis, the LRC effectively becomes the “original” decisionmaker. And because no other prison official reviews the LRC’s decisions, PLN is left to ask the LRC to review its own decision, in violation of Procunier.
Under PLN’s view, the reason for censorship determines who “originally disapprove[s]” the publication. There would be a different “original” decisionmaker for each new reason. But Procunier is not so specific. It only requires that a different prison official review the original censorship. It says nothing about whether that review must be limited to the reasons originally given.
This is consistent with Baker on Behalf of Baker v. Sullivan, 880 F.2d 319, 320 (11th Cir. 1989), which PLN relies on to argue that expanding the scope of review without notice violates due process. In this case the issue never expands. The initial impounding institution is tasked with determining whether a particular publication violates the Rule. The same issue that the LRC must decide.
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V The Supreme Court has made it clear that “[p]rison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner, 482 U.S. at 84. Yet these protections mean little if inmates do not understand them.28 Cue PLN. Through its publications PLN teaches inmates their rights and informs them of unconstitutional prison practices. With this knowledge inmates become another check to government encroachment on constitutional rights. This in turn helps prison administrators correct insidious practices, ensuring long-term stability. Everyone ultimately benefits when knowledge grows from more to more. But the Constitution does not guarantee PLN unfettered communication with inmates. That right must be balanced against the legitimate penological concerns inherent in running a prison system. In this case, the FDOC requires PLN to conform its written communications to Rule 33-501.401(3), which censors publications containing certain types of advertisements. After carefully considering the evidence presented at trial and the arguments made by the parties, this Court concludes that the FDOC’s censorship of Prison Legal News under subsections (3)(l) and (m) of the Rule does not violate PLN’s First Amendment
28 This is even more pernicious considering how prisoners are not afforded counsel and how prisons limit inmates’ access to the prison library, books, and legal materials.
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rights because the censorship reasonably relates to public safety and prison security.
That the censorship in this case complies with the First Amendment, however, does not give the FDOC license to censor without regard to its due process obligations under the Fourteenth Amendment. But that is precisely what the FDOC has done, repeatedly. It has impounded multiple issues of Prison Legal News and other PLN mail without notifying PLN. Adhering to its regulations, it then fails to notify PLN when the mail is finally rejected. The FDOC will continue to do this going forward absent interjection by this Court.
For these reasons, IT IS ORDERED: 1. Judicial estoppel does not preclude the Florida Department of
Corrections from adopting its current litigation position. 2. The Florida Department of Corrections’ censorship of Prison Legal
News under Rule 33-501.401(3) of the Florida Administrative Code does not violate Prison Legal News’ First Amendment rights. 3. The Florida Department of Corrections’ censorship procedures violate Prison Legal News’ right to due process under the Fourteenth Amendment. 4. The Clerk shall enter an amended judgment stating:
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Prison Legal News’ First Amendment claim against the Florida Department of Corrections is dismissed with prejudice.
Prison Legal News successfully proved that the Florida Department of Corrections has violated its right to due process under the Fourteenth Amendment. Prison Legal News has also shown that the Florida Department of Corrections’ current censorship practices will continue to deprive Prison Legal News of due process of law.
Accordingly, the Florida Department of Corrections is permanently enjoined from censoring Prison Legal News’ written communications without due process of law. To comply with due process of law, this permanent injunction modifies the Florida Department of Corrections’ current notification procedures as follows:
(1) The Florida Department of Corrections must notify Prison Legal News when it first impounds a particular written communication by Prison Legal News.
(2) The notification must specify the prison rule, including the subsection, purportedly violated and must indicate the portion of the communication that allegedly violates the cited regulation.
(3) The Florida Department of Corrections does not have to notify Prison Legal News when copies of that same written communication are subsequently impounded, unless the subsequent impoundment decision is based on a different or additional reason not already shared with Prison Legal News.
(4) If the Literature Review Committee rejects a written communication based on a different or additional reason not already shared with Prison Legal News, the Florida Department of Corrections must notify Prison Legal News of the basis for that decision, including the specific prison
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rule violated and the portion of the communication that violates the cited regulation.
(5) This injunction is not governed by the Prison Litigation Reform Act (PLRA) because this is not a civil proceeding “with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.” 18 U.S.C. § 3626(g)(2). But even if the PLRA did apply, the Court finds that the injunction complies with the PLRA’s “needs-narrownessintrusiveness” standard. See 18 U.S.C. § 3626(a)(1)(A). The relief is narrowly drawn, as it only requires notice to Prison Legal News and no other party, and only requires notice on a per-issue (rather than a per-copy) basis. It requires compliance with the minimum requirements of due process. Similarly, the relief extends no further than necessary to correct the violation of PLN’s due process rights. It only requires notice to Prison Legal News and no other party, and only requires notice on a per-issue (rather than a per-copy) basis. For the same reasons, the injunction is the least intrusive means necessary to correct the violation of PLN’s due process rights. Even though it would be minimally burdensome to provide notice to the publisher every time a copy of the magazine is censored, the injunction only requires notice on a per-issue basis. Finally, the Court has given substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the injunction, and finds that the injunction will have no impact on public safety and almost no impact on the Florida Department of Corrections, as the injunction essentially requires compliance with the FDOC’s own rule.
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5. Although all claims have been adjudicated, the Clerk must not close the file. This Court retains jurisdiction over the open file to decide costs and attorney’s fees, if any.
SO ORDERED on October 5, 2015. s/Mark E. Walker United States District Judge
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UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF FLORIDA
TALLAHASSEE DIVISION
PRISON LEGAL NEWS

VS

CASE NO. 4:12cv239-MW/CAS

JULIE L JONES, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE FLORIDA DEPARTMENT OF CORRECTIONS

AMENDED JUDGMENT

Prison Legal News’ First Amendment claim against the Florida Department of

Corrections is dismissed with prejudice.

Prison Legal News successfully proved that the Florida Department of

Corrections has violated its right to due process under the Fourteenth Amendment.

Prison Legal News has also shown that the Florida Department of Corrections’ current

censorship practices will continue to deprive Prison Legal News of due process of law.

Accordingly, the Florida Department of Corrections is permanently enjoined from

censoring Prison Legal News’ written communications without due process of law. To

comply with due process of law, this permanent injunction modifies the Florida

Department of Corrections’ current notification procedures as follows:

(1) The Florida Department of Corrections must notify Prison Legal News

when it first impounds a particular written communication by Prison Legal

News.

(2) The notification must specify the prison rule, including the subsection,

purportedly violated and must indicate the portion of the communication

that allegedly violates the cited regulation.

Case 4:12-cv-00239-MW-CAS Document 280 Filed 10/05/15 Page 2 of 3
(3) The Florida Department of Corrections does not have to notify the Prison Legal News when copies of that same written communication are subsequently impounded, unless the subsequent impoundment decision is based on a different or additional reason not already shared with Prison Legal News.
(4) If the Literature Review Committee rejects a written communication based on a different or additional reason not already shared with Prison Legal News, the Florida Department of Corrections must notify Prison Legal News of the basis for that decision, including the specific prison rule violated and the portion of the communication that violates the cited regulation.
(5) This injunction is not governed by the Prison Litigation Reform Act (PLRA) because this is not a civil proceeding “with respect to the conditions of confinement or the effects of actions by government officials on the lives of persons confined in prison.” 18 U.S.C § 3626(g)(2). But even if the PLRA did apply, the Court finds that the injunction complies with the PLRA’s “needs-narrowness-intrusiveness” standard. See 18 U.S.C. §3626(a)(1)(A). The relief is narrowly drawn, as it only requires notice to Prison Legal News and no other party, and only requires notice on a perissue (rather than a per-copy) basis. It requires compliance with the minimum requirements of due process. Similarly, the relief extends no further than necessary to correct the violation of PLN’s due process rights. It only requires notice to Prison Legal News and no other party, and only 2

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requires notice on a per-issue (rather than a per-copy) basis. For the same reasons, the injunction is the least intrusive means necessary to correct the violation of PLN’s due process rights. Even though it would be minimally burdensome to provide notice to the publisher every time a copy of the magazine is censored, the injunction only requires notice on a perissue basis. Finally, the Court has given substantial weight to any adverse impact on public safety or the operation of a criminal justice system caused by the injunction, and finds that the injunction will have no impact on public safety and almost no impact on the Florida Department of Corrections, as the injunction essentially requires compliance with the FDOC’s own rule.

October 5, 2015 DATE

JESSICA J. LYUBLANOVITS CLERK OF COURT
s/ Kimberly J. Westphal Deputy Clerk: Kimberly J. Westphal

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 Case 4:12-cv-00239-MW-CAS Document 300 Filed 05/17/18 Page 1 of 50 Case: 15-14220 Date Filed: 05/17/2018 Page: 1 of 1

UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

David J. Smith Clerk of Court

ELBERT PARR TUTTLE COURT OF APPEALS BUILDING 56 Forsyth Street, N.W. Atlanta, Georgia 30303
May 17, 2018

MEMORANDUM TO COUNSEL OR PARTIES
Appeal Number: 15-14220-AA Case Style: Prison Legal News v. Secretary, Florida Department District Court Docket No: 4:12-cv-00239-MW-CAS

For rules and forms visit www.ca11.uscourts.gov

This Court requires all counsel to file documents electronically using the Electronic Case Files ("ECF") system, unless exempted for good cause. Enclosed is a copy of the court's decision filed today in this appeal. Judgment has this day been entered pursuant to FRAP 36. The court's mandate will issue at a later date in accordance with FRAP 41(b).
The time for filing a petition for rehearing is governed by 11th Cir. R. 40-3, and the time for filing a petition for rehearing en banc is governed by 11th Cir. R. 35-2. Except as otherwise provided by FRAP 25(a) for inmate filings, a petition for rehearing or for rehearing en banc is timely only if received in the clerk's office within the time specified in the rules. Costs are governed by FRAP 39 and 11th Cir.R. 39-1. The timing, format, and content of a motion for attorney's fees and an objection thereto is governed by 11th Cir. R. 39-2 and 39-3.
Please note that a petition for rehearing en banc must include in the Certificate of Interested Persons a complete list of all persons and entities listed on all certificates previously filed by any party in the appeal. See 11th Cir. R. 26.11. In addition, a copy of the opinion sought to be reheard must be included in any petition for rehearing or petition for rehearing en banc. See 11th Cir. R. 35-5(k) and 40-1 .
Counsel appointed under the Criminal Justice Act (CJA) must submit a voucher claiming compensation for time spent on the appeal no later than 60 days after either issuance of mandate or filing with the U.S. Supreme Court of a petition for writ of certiorari (whichever is later) via the eVoucher system. Please contact the CJA Team at (404) 335-6167 or cja_evoucher@ca11.uscourts.gov for questions regarding CJA vouchers or the eVoucher system.
Pursuant to Fed.R.App.P. 39, costs taxed against the appellant.
The Bill of Costs form is available on the internet at www.ca11.uscourts.gov
For questions concerning the issuance of the decision of this court, please call the number referenced in the signature block below. For all other questions, please call Tonya L. Searcy, AA at (404) 335-6180.
Sincerely,
DAVID J. SMITH, Clerk of Court
Reply to: Djuanna Clark Phone #: 404-335-6161

OPIN-1A Issuance of Opinion With Costs

Case 4:12-cv-00239-MW-CAS Document 300 Filed 05/17/18 Page 2 of 50 Case: 15-14220 Date Filed: 05/17/2018 Page: 1 of 48
[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT ________________________
No. 15-14220 ________________________
D.C. Docket No. 4:12-cv-00239-MW-CAS

PRISON LEGAL NEWS, A project of the Human Rights Defense Center, a Not-for-Profit Washington Charitable Corporation,

versus

Plaintiff-Appellee Cross Appellant,

SECRETARY, FLORIDA DEPARTMENT OF CORRECTIONS,

________________________

Defendant-Appellant Cross Appellee.

Appeals from the United States District Court for the Northern District of Florida ________________________
(May 17, 2018)

Case 4:12-cv-00239-MW-CAS Document 300 Filed 05/17/18 Page 3 of 50 Case: 15-14220 Date Filed: 05/17/2018 Page: 2 of 48
Before ED CARNES, Chief Judge, DUBINA, Circuit Judge, and CONWAY,* District Judge. ED CARNES, Chief Judge:
From time to time we have all followed the advice of Oscar Wilde and gotten rid of temptation by yielding to it.1 Yielding to the temptation to commit an act that the law forbids can lead to bad consequences, including imprisonment. Prison officials have the duty to reduce the temptation for prisoners to commit more crimes and to curtail their access to the means of committing them. The Constitution does place some limits on the measures that corrections officials may use to carry out that duty, which is what this case is about.
The Florida Department of Corrections has rules aimed at preventing fraud schemes and other criminal activity originating from behind bars, but inmates continually attempt to circumvent measures in place to enforce those rules. The Department, for its part, continually strives to limit sources of temptation and the means that inmates can use to commit crimes. One way it does that is by preventing inmates from receiving publications with prominent or prevalent advertisements for prohibited services, such as three-way calling and pen pal solicitation, that threaten other inmates and the public. In the Department’s
* Honorable Anne C. Conway, United States District Judge for the Middle District of Florida, sitting by designation.
1 Oscar Wilde, The Picture of Dorian Gray 19 (Joseph Bristow ed., Oxford Univ. Press 2006) (1890).
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experience, those ads not only tempt inmates to violate the rules and commit crimes, but also enable them to do so.
One publication the Department impounds based on its ad content is plaintiff Prison Legal News (PLN)’s monthly magazine, Prison Legal News. PLN contends that the Department’s impoundments of its magazine violate the First and Fourteenth Amendments. After a bench trial, the district court ruled that the impoundments do not violate the First Amendment but the failure to give proper notice of them does violate the Fourteenth Amendment. We agree.
I. FACTS AND PROCEDURAL HISTORY A. Facts
1. The Florida Department of Corrections Florida law requires the Department of Corrections to “protect the public through the incarceration and supervision of offenders,” to protect offenders “from victimization within the institution,” and to rehabilitate offenders. Fla. Stat. § 20.315(1), (1)(d). The Department strives to balance those mandates of public safety, prison security, and rehabilitation. That is no small task. It employs 16,700 officers to oversee 100,000 inmates in 123 facilities throughout Florida. Those officers enforce a multitude of rules to ensure prison security and public safety. See, e.g., Fla. Admin. Code rr. 33-602.101, .201, .203 (rules governing inmate care, property, and control of contraband).
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To promote its rehabilitation mandate, the Department grants inmates phone, pen pal, and correspondence privileges so that they can stay in touch with family and friends. Id. r. 33-210.101(9) (allowing inmates to correspond with pen pals); id. r. 33-602.201 app. 1 (authorizing inmates to keep up to 40 stamps for correspondence); id. r. 33-602.205(1) (granting telephone privileges). Those and similar privileges pose problems in Florida prisons and elsewhere. Inmates have the time, talent, and tendency to use their phone, pen pal, and correspondence privileges to conduct criminal activity, thwarting efforts to protect inmates and the public. The record is heavy with evidence of that unfortunate reality.
James Upchurch, the Department’s Assistant Secretary for Institutions and Re-entry, testified that “[g]iven uncontrolled and unverifiable telephone access, inmates have been found to use such opportunities to harass the general public, [D]epartment employees, their victims[,] and to search for new victims.” He cited the example of incarcerated Mexican mafia members in California who used a network of prison phones to sell drugs and conduct other illegal activity. Prison Legal News itself has reported on instances of inmates abusing their phone privileges. See News in Brief: Florida, Prison Legal News, Nov. 2011, at 50 (reporting how an inmate discovered that the county jail’s phone system provided double refunds each time a call did not go through, prompting the inmate to make calls and then hang up until he had made the $1,250 he needed for bail); Mark
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Wilson, Reach Out and Defraud Someone: Oregon Jail Prisoners Commit Phone
Scams, Prison Legal News, Nov. 2010, at 24–25 (reporting on inmates’ use of
prison phones to conduct identity theft scams, one of which resulted in the
indictment of an inmate on 35 counts of identity theft); News in Brief: Florida,
Prison Legal News, Sept. 2010, at 50 (reporting how a county inmate used the
prison phones to call in bomb threats).2
Like phone privileges, pen pal privileges may open doors to criminal
activity. Inmates abuse pen pal privileges by soliciting kind-hearted but gullible
people and then defrauding them. Pen pal scams are so common that the United
States Postal Service warns customers that pen pal ads have “proliferated in recent
years” and that “many ads placed by prisoners are part of a sophisticated mail
fraud scheme that misuses postal money orders to bilk consumers out of their hard
earned savings.”3
2 PLN submitted into evidence every issue of Prison Legal News from 2002 through 2014.
3 Prison Pen Pal Money Order Scam, U.S. Postal Inspection Service, http://www.postalinspectors.uspis.gov/investigations/mailfraud/fraudschemes/othertypes/penpalf raud.aspx [https://web.archive.org/web/20170204190103/postalinspectors.uspis.gov/ investigations/mailfraud/fraudschemes/othertypes/penpalfraud.aspx]; see also Woods v. Comm’r of the Ind. Dep’t of Corr., 652 F.3d 745, 747 (7th Cir. 2011) (recounting that 350 inmates had placed ads soliciting pen pals on websites, that “the majority of these inmates had . . . misrepresented themselves to the public in their postings on the sites,” and that several pen pals felt deceived after “sending money to prisoners who had lied about their release dates and offenses of conviction”); United States v. Brown, 7 F.3d 1155, 1158 (5th Cir. 1993) (stating that a Mississippi inmate scammed thousands of dollars out of a 65-year-old Florida retiree he met through a “lonely hearts pen-pal club”). [In keeping with Eleventh Circuit Internal Operating Procedure 10, “Citation to Internet Materials in an Opinion,” under Federal Rule of
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Inmates also abuse correspondence privileges. For instance, one Florida inmate sent threatening letters to a federal magistrate judge, one of which informed the judge that someone would “stick a curling iron up [the judge’s] twat and plug that sucker in,” while another stated that the inmate was coming to kill her. See United States v. Adamson, No. 4:00cr52, 2007 WL 2121923, at *1 (N.D. Fla. July 23, 2007) (unpublished). Another way inmates abuse correspondence privileges is by using their stamps as a currency in the underground prison economy to buy drugs, sexual favors, and anything else they can bargain for. See United States v. Becker, 196 F. App’x 762, 763 & n.1 (11th Cir. 2006) (unpublished) (noting how one inmate ran a prison gambling operation where inmates paid him with stamps and another inmate used stamps to pay for heroin); United States v. Martin, 178 F. App’x 910, 911 (11th Cir. 2006) (unpublished) (stating how an inmate used letters with hidden compartments to smuggle heroin into the prison, which he then gave to another inmate in exchange for stamps). The problems associated with stamps increase when inmates can send their stamps to “cash-for-stamps” companies that will exchange the stamps for cash at a percentage of the stamps’ face value. Inmates can use the cash to purchase goods and services outside prison walls, which facilitates contraband smuggling and the corruption of prison guards.
Appellate Procedure 36, a copy of the internet materials cited in this opinion is available at this Court’s Clerk’s Office.]
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Recognizing that when inmates abuse their privileges it threatens other inmates and the public, the Department has sought to prevent that abuse. First, it has prohibited three-way calling, which includes any type of call transferring. Fla. Admin. Code r. 33-602.205(2)(a). Three-way calling allows inmates to circumvent the regulations the Department has in place to stop them from using prison phones to harass the public, arrange contraband smuggling, and conduct other criminal activity. The Department’s regulations restrict inmates to calling no more than ten people on a pre-approved list and require each outgoing call to begin with an automated message informing the recipient that the call is coming from a Department prison. Id. r. 33-602.205(2)(a), (g). The Department also monitors and records some inmate calls. Id. r. 33-602.205(1).
Second, the Department does not allow inmates to “solicit or otherwise commercially advertise for money, goods, or services,” which includes “advertising for pen-pals” and “plac[ing] ads soliciting pen-pals” on social media and inmate pen pal websites. Id. r. 33-210.101(9). Third, inmates cannot use “postage stamps as currency to pay for products or services.” Id. r. 33210.101(22). Fourth, inmates cannot conduct a business while confined, which includes “any activity in which the inmate engages with the objective of generating revenue or profit while incarcerated.” Id. r. 33-602.207(1)–(2). That rule exists
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because inmate businesses increase the risk of fraud and burden Department staff with monitoring more mail and phone activity. Id. r. 33-602.207(2).
Just as some inmates abuse their privileges, some also evade or break the rules restricting their privileges. For example, the Department’s telephone security vendor can detect three-way call attempts by the clicking noise that occurs when a call is transferred, but inmates will blow into the receiver when transferring a call to mask that clicking noise. There are nearly 700,000 three-way call attempts each year in Department prisons, leading officials to believe that inmates would not make so many attempts if some were not succeeding. Disciplinary reports confirm that some attempts do succeed. Despite the rule prohibiting pen pal solicitation, some inmates manage to post profiles on pen pal solicitation websites. Inmates also succeed in exchanging stamps for cash –– one cash-for-stamps company deposited over $50,000 into inmates’ accounts over several years. And as for the prohibition against conducting a business, one inmate, a jailhouse lawyer known as “H&R Block,” lived up to his nickname by running a tax filing business where he would file tax returns on behalf of other inmates. See News in Brief: Florida, Prison Legal News, Apr. 2010, at 50. Of course, those tax returns were false, and the inmate faced up to 90 years in prison for his scheme. Id.
2. The Department’s Admissible Reading Material Rule
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Because some inmates abuse their privileges and break the rules put in place to stop that abuse, the Department takes additional steps to help increase prison security and public safety. As Department official Upchurch testified, protecting the public “goes further than just . . . keeping the inmates inside the fence and not allowing them to be out committing the crimes that they commit.” Prison security challenges evolve. Upchurch cited the availability of contraband cell phones, which give inmates unregulated internet access and have been used in other states to orchestrate prison riots and arrange assaults on prison staff. PLN’s expert acknowledged that Department officials must be proactive in addressing security problems. As Upchurch testified, “act[ing] after the fact [in the prison business] risk[s] someone’s life.”
One of the ways the Department tries to stay a step ahead of inmates is to screen all incoming publications for content that might enable them to break prison rules. See Fla. Admin. Code r. 33-501.401(3). Under the Department’s Admissible Reading Material Rule, inmates can “receive and possess publications . . . unless the publication is found to be detrimental to the security, order or disciplinary or rehabilitative interests of any institution of the [D]epartment . . . or when it is determined that the publication might facilitate criminal activity.” Id. For example, to bolster the Department’s ban on inmates possessing firearms or other dangerous weapons, id. r. 33-602.203(2), the rule
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prohibits inmates from receiving publications that “describe[ ] procedures for the construction of or use of weapons,” id. r. 33-501.401(3)(a).
The Admissible Reading Material Rule applies that same logic to ads for prohibited services. A publication is impounded if it contains ads for three-way calling services, pen pal solicitation services, cash-for-stamps exchange services, or for conducting a business, but only “where the advertisement is the focus of, rather than being incidental to, the publication[,] or the advertising is prominent or prevalent throughout the publication.” Id. r. 33-501.401(3)(l). The Department can also impound any publication that “otherwise presents a threat to the security, order or rehabilitative objectives of the correctional system or the safety of any person.” Id. r. 33-501.401(3)(m). Once mailroom staff impound an issue of a magazine for violation of the rules, it is withheld from inmates until the Department’s Literature Review Committee makes a final decision about whether the issue does violate the Admissible Reading Material Rule. Id. rr. 33-501.401(5), (8), (14)(a).4 Mailroom staff cannot impound all issues of an entire publication in
4 The Admissible Reading Material Rule defines “impoundment” as the action taken by mailroom staff “to withhold an inmate’s incoming publication . . . pending review of its admissibility by the Literature Review Committee.” Fla. Admin. Code r. 33-501.401(2)(b). When the Committee upholds an impoundment, that is a “rejection” and the issue is considered contraband. Id. r. 33-501.401(2)(j). The difference between an impoundment and rejection is immaterial here, so we use the term “impound” to refer to the Department’s decision to withhold a particular issue from an inmate subscriber.
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advance; instead, they must separately review and decide whether each issue of a publication violates the Admissible Reading Material Rule. Id. r. 33-501.401(5).5
3. Prison Legal News and the First Impoundments of It Prison Legal News is a monthly magazine founded in 1990 that reports on legal developments in the criminal justice system and other topics that affect inmates. About 70% of the magazine’s 7,000 nationwide subscribers are inmates. It has subscribers in all 50 state prison systems and the Federal Bureau of Prisons. Only about 70, or one percent of the 7,000 subscribers, are Florida inmates. Prison Legal News began carrying advertisements in 1996 to cover its publication costs. Not surprisingly, the ads are placed by companies whose target audience is prisoners. Two examples are law firms specializing in prisoner litigation and schools offering inmate correspondence courses. Nothing wrong with that. In 2003 the Department began impounding some Prison Legal News issues based on ad content. The problem ads included ones for pen pal solicitation, cashfor-stamps exchange services, and three-way calling services. The ads for pen pal solicitation offered inmates the opportunity to post on the company’s website a profile with a photo and address, and the public could search for that profile by the inmate’s age, race, and other features. The cash-for-stamps ads gave inmates the
5 For example, if the Department decides that the January issue of Prison Legal News violates the Admissible Reading Material Rule, then it impounds that issue. Fla. Admin. Code r. 33-501.401(8). But when the February issue arrives, mailroom staff must review that latest issue to determine whether it complies with the rule. Id. r. 33-501.401(5).
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opportunity to exchange stamps for cash at a percentage of the stamps’ face value.
The three-way calling ads offered discount phone services on collect calls from
inmates. The Department determined that those phone services fell under its broad
definition of “three way calling” because the companies forwarded or transferred
the inmates’ collect calls to the call recipient’s home phone, cell phone, or blocked
home phone number.6 The Department determined that all three types of ads
violated Rule (3)(l), but it was especially concerned with the ads for three-way
calling because it believed that its telephone security vendor could not trace inmate
calls made through the discount phone services.
PLN sued the Department in 2004 to stop the impoundments. After the
Department’s telephone vendor gave assurances that it could block three-way call
attempts, the Department agreed in 2005 not to impound Prison Legal News as
long as all the problematic ads were incidental to the overall publication. Because
the Department began allowing inmate subscribers to receive Prison Legal News
we rejected PLN’s argument that an injunction was necessary to stop the
6 PLN asserts that Prison Legal News has never run ads for three-way calling, but its brief and one of its trial exhibits contradict that assertion. It acknowledges that its magazine contains ads for discount phone services that allow subscribers to avoid long distance charges by assigning the inmate a local number to call, and then transferring that call to the final call recipient (so if a Miami inmate wants to call his mother in Kansas, the Miami inmate can call a Miami number and the call is then transferred to Kansas). That type of call service falls under the Department’s definition of three-way calling. See Fla. Admin. Code r. 33-602.205(2)(a) (“Inmates shall not make three-way telephone calls nor make calls to numbers on the list which are then transferred to other telephone numbers.”). And PLN’s trial exhibit shows that almost every issue of Prison Legal News from January 2002 to December 2014 included ads for the prohibited services. One of the columns in that exhibit is labeled “3-Way Calls.”
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impoundments, and we affirmed the district court’s grant of judgment as a matter of law to the Department. See Prison Legal News v. McDonough, 200 F. App’x 873, 876–78 (11th Cir. 2006) (unpublished).
4. The Department’s Renewed Impoundments of Prison Legal News That peace was short-lived. Several changes after 2005 undermined the truce and led to the current conflict. For one thing, the number and size of ruledefying ads increased after 2005, resulting in their becoming less incidental and more prominent.7 As the ads became more prominent, Department officials noticed an increase in the number of inmates sending stamps to cash-for-stamps companies. They also became concerned about a phone technology called Voice over Internet Protocol, which makes it harder to detect three-way call attempts by transferring calls over the internet with no noise. That technology had not been an issue in 2005, but in the following years it became more widespread and more of a problem.
7 Although the percentage of the magazine containing ads prohibited by Rule (3)(l) increased only from an average of 9.21% in 2005 to 9.80% in 2009, those naked percentages don’t tell the whole story because the number of full-page and half-page ads increased. The magazine also grew from 48 pages in 2005 to 64 pages in 2014, which allowed PLN to include more problematic ads without changing the proportion of the magazine devoted to such ads.
More importantly, the record does not stop at 2009. PLN’s own exhibit shows that the percentage of problematic ads increased from 9.80% in 2009 to 15.07% in 2014, the last year of the impoundments that are covered in the record. That is an increase of more than 50% in the percentage of problematic ads in the most recent five-year period for which there is data.
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New types of ads offering “prisoner concierge” and “people locator” services also began to appear in Prison Legal News after 2005. Prisoner concierge companies offer inmates a variety of administrative and financial services. One such company, Prisoner Assistant, ran ads offering inmates “access to hundreds of professional services that have never before been available to prisoners,” including money orders, online fund transfers, internet purchases and research, website development, cell phone contracts, and Green Dot cards (prepaid debit cards that can be reloaded and used to send money). That company even provides inmates with an “Executive Assistant to manage [the inmate’s] file and provide personal attention to [the inmate’s] requests,” and claimed in its ad that “[i]f it can be done, we will try to do it.” According to the Department, prisoner concierge companies threaten prison security and public safety by, among other things, making it easier for inmates to create an alternate identity that conceals their inmate status from people on the outside, enabling them to violate prison rules and commit crimes.
People locator companies are just that. One such company placed ads claiming that it can find “just about anyone” including “hard to find people [and] unlisted numbers and address[es].” That company has a database of 1.2 billion records and provides inmates with a person’s date of birth, email address, any unlisted telephone numbers, and social security number. With reason, the Department fears that inmates will use people locator services to perpetrate scams
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or allow inmates to find and harm judges, jurors, witnesses, or anyone else the
inmate may want to harass or harm.
All of those developments between 2005 and 2009 — the increasing number
and size of the rule-defying ads, the growth of internet-based phone technology,
and the appearance of prisoner concierge and people locator ads — led the
Department to begin impounding Prison Legal News again in September 2009.8
The Department decided that the ads for three-way calling services, pen pal
solicitation services, and cash-for-stamps exchange services violated Rule (3)(l). It
also determined that the ads for prisoner concierge and people locator services
violated Rule (3)(m), the provision prohibiting any publication that “presents a
threat to the security, order or rehabilitative objectives of the correctional system or
the safety of any person.” Id. r. 33-501.401(3)(m). The Department impounds
8 The Department amended Rule (3)(l) in June 2009. The earlier version provided that a publication would not be impounded as long as the ads were “merely incidental to, rather than being the focus of, the publication.” The amendment provided that a magazine could also be impounded if the rule-defying ad was “prominent or prevalent throughout the publication.” PLN contended at trial that the Department amended the rule to keep Prison Legal News out of Florida prisons, but the district court rejected that contention as conjecture and found that the Department amended Rule (3)(l) to make it clearer and to address its new security concerns. PLN makes only a cursory attempt to raise that contention here, offering no supporting authority, which means that it is abandoned. See Sapuppo v. Allstate Floridian Ins. Co., 739 F.3d 678, 681 (11th Cir. 2014) (“We have long held that an appellant abandons a claim when he . . . raises it in a perfunctory manner without supporting arguments and authority.”). Its assertion that the “prominent or prevalent” language is too vague is not properly before us because the district court denied PLN’s motion to amend its complaint to include a void-for-vagueness claim, and PLN did not appeal that ruling. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S. Ct. 2868, 2877 (1976) (“It is the general rule, of course, that a federal appellate court does not consider an issue not passed upon below.”).
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other publications that violate those rules, but it is the only corrections department in the country that impounds Prison Legal News based on its ad content.
5. The Department’s Failure to Provide Notice to PLN At the time of trial in January 2015, the Department had impounded every issue of Prison Legal News since September 2009, a total of 64 issues (the magazine has 12 issues per year). The Admissible Reading Material Rule requires the Department to send to all publishers a notice form listing the “specific reasons” for an impoundment. Fla. Admin. Code r. 33-501.401(8)(b). Despite that rule, the Department did not send PLN a notice form for 26 out of the 62 monthly issues it impounded between November 2009 and December 2014, which means that PLN did not receive a notice form for 42% of the issues impounded during that time span. That number rises to 87% when defective notice forms that did not list the reasons for the impoundment are considered. When PLN did receive a notice form for an impounded issue, it appealed the impoundment decision to the Department’s Literature Review Committee, which makes the final decision whether an issue violates the Admissible Reading Material Rule. See id. rr. 33-501.401(14)(a), (15)(a). Those appeals were unsuccessful, so PLN sued the Department in November 2011 to stop the impoundments.
B. Procedural History
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PLN brought two claims under 42 U.S.C. § 1983 against the Department Secretary in her official capacity. First, it claimed that Rules (3)(l) and (3)(m), as applied to Prison Legal News, violate the First Amendment. Second, it claimed that the Department’s failure to provide PLN with proper notice for each impounded monthly issue violated its right to procedural due process under the Fourteenth Amendment. PLN sought declaratory and injunctive relief against the Department.
After a bench trial, the district court ruled against PLN on the First Amendment claim and for it on the Fourteenth Amendment claim. The court entered an injunction requiring the Department to provide PLN with notice each time it impounded a monthly issue of the magazine and the reason for the impoundment. The Department appeals the court’s judgment that it violated PLN’s due process rights. PLN cross-appeals the court’s judgment that the impoundments of Prison Legal News do not violate the First Amendment.9
II. STANDARDS OF REVIEW
9 PLN also publishes a book called the Prisoner’s Guerilla Handbook and sends information packets about its publications to inmates. The Department impounded those publications, and PLN claimed in its amended complaint that impounding them also violated its First and Fourteenth Amendment rights. (PLN claimed that the impoundment of all of its publications violated its constitutional rights; its amended complaint did not contain separate claims for each publication). Although PLN’s brief refers to its “publications,” it mentions the handbook and information packets by name only once in its 82-page initial brief. As a result, PLN has abandoned any separate challenge to those publications. See Sapuppo, 739 F.3d at 681.
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After a bench trial, we review de novo the district court’s legal conclusions and we review its fact findings for clear error. Proudfoot Consulting Co. v. Gordon, 576 F.3d 1223, 1230 (11th Cir. 2009). “We review the decision to grant an injunction and the scope of the injunction for abuse of discretion.” Angel Flight of Ga., Inc. v. Angel Flight Am., Inc., 522 F.3d 1200, 1208 (11th Cir. 2008).
III. DISCUSSION A. First Amendment Claim PLN contends that the Department’s impoundments of Prison Legal News violate its First Amendment right of access to its inmate subscribers. The parties agree that the deferential standard established by the Supreme Court in Turner v. Safley, 482 U.S. 78, 107 S. Ct. 2254 (1987), governs PLN’s First Amendment challenge to the impoundments. PLN has received a helping hand from sixteen law professors acting as amici curiae who claim an “interest in seeing that First Amendment doctrine develops in a way that promotes rather than censors free speech.” Br. of Amici Curiae at 1. The amici contend that we should give prison management decisions decreased deference under the Turner standard in light of the Supreme Court’s recent First Amendment decisions, mostly in other contexts. On the First Amendment issue we begin by explaining the Turner standard, which requires deference to prison officials’ decisions. We then address the
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amici’s argument for diminished deference. And then we will discuss the application of the First Amendment to the impoundments.
1. The Turner Standard “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution.” Turner, 482 U.S. at 84, 107 S. Ct. at 2259. Inmates retain some constitutional rights in prison, id., and publishers like PLN have a First Amendment right of access to their inmate subscribers, Thornburgh v. Abbott, 490 U.S. 401, 408, 109 S. Ct. 1874, 1879 (1989). But that right is limited. See Lawson v. Singletary, 85 F.3d 502, 509 (11th Cir. 1996) (noting the “more limited nature of . . . First Amendment rights” in the penal context). “Running a prison is an inordinately difficult undertaking that requires expertise, planning, and the commitment of resources, all of which are peculiarly within the province of the legislative and executive branches of government.” Turner, 482 U.S. at 84–85, 107 S. Ct. at 2259. Those branches are responsible for prison administration, which means that “separation of powers concerns counsel a policy of judicial restraint” and deference to prison officials’ management decisions. Id. at 85, 107 S. Ct. at 2259. And “[w]here a state penal system is involved, federal courts have . . . additional reason to accord deference to the appropriate prison authorities.” Id. To balance judicial deference with “the need to protect constitutional rights,” the Turner Court held that a prison regulation
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affecting constitutional rights is valid as long as “it is reasonably related to legitimate penological interests.” Id. at 85, 89, 107 S. Ct. at 2259, 2261. The Department and PLN agree that the Turner standard controls here.
The Department must show “more than a formalistic logical connection between [the impoundments of Prison Legal News] and a penological objective.” Beard v. Banks, 548 U.S. 521, 535, 126 S. Ct. 2572, 2581 (2006) (plurality opinion). But that does not mean that this Court sits as a super-warden to secondguess the decisions of the real wardens. See Turner, 482 U.S. at 89, 107 S. Ct. at 2262 (rejecting the view that courts should be the “primary arbiters of what constitutes the best solution to every administrative problem”). Instead, under Turner we owe “wide-ranging” and “substantial” deference to the decisions of prison administrators because of the “complexity of prison management, the fact that responsibility therefor is necessarily vested in prison officials, and the fact that courts are ill-equipped to deal with such problems.” Al-Amin v. Smith, 511 F.3d 1317, 1328 (11th Cir. 2008) (quotation marks omitted); see also Pope v. Hightower, 101 F.3d 1382, 1384 n.2 (11th Cir. 1996) (“Federal courts must scrupulously respect the limits on their role by not thrusting themselves into prison administration; prison administrators must be permitted to exercise wide discretion within the bounds of constitutional requirements.”). The Supreme Court has reaffirmed that point time and time again. See, e.g., Overton v. Bazzetta, 539 U.S.
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126, 132, 123 S. Ct. 2162, 2167 (2003) (“We must accord substantial deference to the professional judgment of prison administrators, who bear a significant responsibility for defining the legitimate goals of a corrections system and for determining the most appropriate means to accomplish them.”); Shaw v. Murphy, 532 U.S. 223, 229, 121 S. Ct. 1475, 1479 (2001) (“[W]e generally have deferred to the judgments of prison officials in upholding [prison] regulations against constitutional challenge.”); Thornburgh, 490 U.S. at 408, 109 S. Ct. at 1879 (“[T]his Court has afforded considerable deference to the determinations of prison administrators who, in the interest of security, regulate the relations between prisoners and the outside world.”).
2. The Amici’s Diminished Deference Argument In spite of all of those Supreme Court decisions requiring us to grant substantial deference to the decisions of prison officials, the amici argue that we should not. Claiming clairvoyance, they predict the Supreme Court will overrule its precedents, and they urge us to go ahead and effectively do that ourselves. See Br. of Amici Curiae at 2 (“Modern First Amendment jurisprudence trends toward more protections for speech rights, a direction that should inform this Court’s analysis.”). The amici discern a trend from several recent Supreme Court decisions, nearly all of which have nothing to do with Turner or challenges to prison regulations, to argue that increased protection of free speech requires
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decreased deference under Turner. See, e.g., United States v. Alvarez, 567 U.S. 709, 713–15, 729–30, 132 S. Ct. 2537, 2542–43, 2551 (2012) (holding that the Stolen Valor Act violated the First Amendment); Brown v. Entm’t Merchs. Ass’n, 564 U.S. 786, 805, 131 S. Ct. 2729, 2741–42 (2011) (striking down on First Amendment grounds a statute that prohibited the sale of violent video games to minors); Citizens United v. Fed. Election Comm’n, 558 U.S. 310, 365, 130 S. Ct. 876, 913 (2010) (holding that the government “may not suppress political speech on the basis of the speaker’s corporate identity”). In any event, our duty is to follow Supreme Court decisions, not to use them to map trends and plot trajectories.
The only Court that can properly cut back on Supreme Court decisions is the Supreme Court itself. See Hohn v. United States, 524 U.S. 236, 252–53, 118 S. Ct. 1969, 1978 (1998) (“Our decisions remain binding precedent until we see fit to reconsider them, regardless of whether subsequent cases have raised doubts about their continuing vitality.”); State Oil Co. v. Khan, 522 U.S. 3, 20, 118 S. Ct. 275, 284 (1997) (“[I]t is this Court’s prerogative alone to overrule one of its precedents.”); Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484, 109 S. Ct. 1917, 1921–22 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls,
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leaving to this Court the prerogative of overruling its own decisions.”); Evans v.
Sec’y, Fla. Dep’t of Corr., 699 F.3d 1249, 1263 (11th Cir. 2012) (“The Court has
told us, over and over again, to follow any of its decisions that directly applies in a
case, even if the reasoning of that decision appears to have been rejected in later
decisions.”).
Even if it were otherwise, only one of the post-Turner decisions that amici
cite even mentions Turner, and that decision actually confirms that we owe
deference to the decisions of wardens and other prison officials. See Beard, 548
U.S. at 524–25, 535, 126 S. Ct. at 2575–76, 2581–82 (plurality opinion) (rejecting
a First Amendment challenge to a prison rule and stating that the court of appeals
erred by offering “no apparent deference to the deputy prison superintendent’s
professional judgment”);10 see also Davila v. Gladden, 777 F.3d 1198, 1212–13
10 Justice Thomas, joined by Justice Scalia, concurred in the judgment and agreed with the plurality that “[j]udicial scrutiny of prison regulations is an endeavor fraught with peril.” Beard, 548 U.S. at 536, 126 S. Ct. at 2582 (Thomas, J., concurring). The amici attempt to distinguish Beard, which involved a challenge to a prison policy designed to motivate better behavior by barring certain inmates from receiving publications. Id. at 524–25, 126 S. Ct. at 2575–76 (plurality opinion). They argue that the Beard case was exceptional because it involved maximum security inmates and that the prison’s regulations were motivated by its rehabilitative goals. Neither of those distinctions matter. What matters is that the Beard Court did not water down Turner. Id. at 528–33, 126 S. Ct. at 2577–80 (plurality opinion). The amici’s argument that the prison policy at issue in Beard still allowed inmates to receive legal correspondence, id. at 526, 126 S. Ct. at 2576 (plurality opinion), and that Prison Legal News is a form of legal correspondence fails on its essential premise because it is not. We agree with the definition in the Florida Administrative Code that legal mail is “mail to and from” courts, attorneys, public defenders, legal aid organizations, agency clerks, and government attorneys. Fla. Admin. Code r. 33.210.102(1)–(2).
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(11th Cir. 2015) (addressing the Turner standard without any hint that it should be applied with decreased deference in light of recent Supreme Court decisions).
The Beard decision confirms that whatever the Supreme Court has done in other First Amendment cases, it has not adopted a damn-the-deference, full-speedahead approach to First Amendment rights within prison walls. As a result, we categorically reject the amici’s argument that we should leap-frog ahead of the Supreme Court in this area. We follow Supreme Court decisions, here as elsewhere, instead of plotting ways around them.11
With the proper level of deference in mind, we will turn now to applying the Turner standard to determine whether the impoundments of Prison Legal News under its Rules (3)(l) and (3)(m) violate the First Amendment.
3. Application of the Turner Standard The Turner standard requires the Department to show that its impoundments of Prison Legal News are content neutral, Thornburgh, 490 U.S. at 415, 109 S. Ct. at 1882, and “reasonably related to legitimate penological interests,” Turner, 482 U.S. at 89, 107 S. Ct. at 2261. The impoundments are content neutral because they are based “solely on . . . [the magazine’s] potential implications for prison security.” Thornburgh, 490 U.S. at 415–16, 109 S. Ct. at 1883. And PLN does not
11 While we categorically reject the contention and supporting arguments of the amici, we do not mean to be unfair. The professors’ brief does have good grammar, sound syntax, and correct citation form.
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dispute that the Department’s asserted interests for the impoundments — prison security and public safety — are legitimate. See Perry v. Sec’y, Fla. Dep’t of Corr., 664 F.3d 1359, 1366 (11th Cir. 2011) (“[P]rotecting the public and ensuring internal prison security are legitimate penological objectives.”). Those interests are not only legitimate, but paramount. See Thornburgh, 490 U.S. at 415, 109 S. Ct. at 1882 (“[P]rotecting prison security . . . is central to all other corrections goals.”) (quotation marks omitted).
That leaves the issue of whether the Department’s impoundments of Prison Legal News are “reasonably related” to prison security and public safety. Turner, 482 U.S. at 89, 107 S. Ct. at 2261. The Turner Court established four factors to determine the reasonableness of prison regulations: (1) whether there is a “valid, rational connection between the prison regulation and the legitimate governmental interest put forward to justify it”; (2) whether the publisher has alternative means to exercise its right of access to its inmate subscribers; (3) what “impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally”; and (4) whether PLN “can point to . . . alternative[s] that fully accommodate[ ] [its] rights at de minimis cost to valid penological interests.” Id. at 89–91, 107 S. Ct. at 2262 (quotation marks omitted).
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PLN contends that the Department’s impoundments of Prison Legal News under Rules 3(l) and 3(m) fail all four factors and therefore amount to unconstitutional censorship. We disagree.
a. The First Turner Factor: The Existence of a Rational Connection The first Turner factor requires the Department to show that there is a “rational connection” between its decision to impound Prison Legal News and its interests in prison security and public safety. Id. at 89, 107 S. Ct. at 2262. The Department’s position is that limiting inmates’ exposure to the ads in Prison Legal News will reduce the risk that inmates will engage in behavior that endangers other inmates, guards, and the public. PLN’s position is that there is no rational connection because there is no evidence that ads in its magazine have ever caused a security breach. PLN’s argument demands too much. The Turner standard does not require the Department to present evidence of an actual security breach to satisfy the first factor. Instead, the Supreme Court recognized that prison officials must be able to “anticipate security problems and . . . adopt innovative solutions” to those problems to manage a prison effectively. Id. (emphasis added). We have rejected the “misconception” that prison officials are “required to adduce specific evidence of a causal link between [a prison policy] and actual incidents of violence (or some other actual threat to security).” Lawson, 85 F.3d at 513 n.15. “Requiring proof of such a correlation
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constitutes insufficient deference to the judgment of the prison authorities with respect to security needs.” Id. Other circuits agree. See, e.g., Simpson v. County of Cape Girardeau, 879 F.3d 273, 280 (8th Cir. 2018) (“Cape Girardeau may seek to prevent harm that has yet to occur and, as a result, is not required to provide evidence of previous incidents of contraband reaching inmates through the mail in order to adopt a postcard-only incoming mail regulation.”); Murchison v. Rogers, 779 F.3d 882, 890 (8th Cir. 2015) (stating that Turner “does not require actual proof that a legitimate interest will be furthered by the challenged policy” and that “evidence short of an actual incident satisfies” the first factor) (quotation marks omitted); Singer v. Raemisch, 593 F.3d 529, 536 (7th Cir. 2010) (“The question is not whether [a game banned by the prison] has led to gang behavior in the past; the prison officials concede that it has not. The question is whether the prison officials are rational in their belief that, if left unchecked, [the game] could lead to gang behavior among inmates and undermine prison security in the future.”); Cal. First Amend. Coal. v. Woodford, 299 F.3d 868, 882 (9th Cir. 2002) (stating that prison officials “must at a minimum supply some evidence that . . . potential problems are real, not imagined,” but affirming that “prison officials may pass regulations in anticipation of security problems”).
In Perry, a case involving a First Amendment challenge to a Department regulation prohibiting pen pal solicitation, we did not require that prison officials
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produce evidence of a past incident to satisfy the first Turner factor. See Perry,
664 F.3d at 1362, 1366. We held that the Department had established a rational
connection between that regulation and its security and safety interests through the
testimony of James Upchurch, id. at 1366, the same prison official the Department
relied on in the present case. He testified in Perry that “when inmates only receive
pen pals through personal associates and not pen pal companies . . . the possibility
of the inmate defrauding the pen pal is greatly reduced.” Id. (emphasis added).
We did not demand any evidence that inmates’ solicitation of pen pals had
previously caused a security breach. Id.
There is plenty of evidence that preventing inmates from viewing prominent
or prevalent ads for prohibited services will reduce the possibility that they will use
those services.12 The ads not only make the prohibited services available to
12 PLN asserts that the Department is judicially estopped from arguing that the problematic ads present a security threat because the Department allegedly took the position in the earlier litigation that the same types of ads do not present such a threat. See Robinson v. Tyson Foods, Inc., 595 F.3d 1269, 1273 (11th Cir. 2010) (“[J]udicial estoppel is designed to prevent a party from asserting a claim in a legal proceeding that is [clearly] inconsistent with a claim taken by the party in a previous preceding.”) (quotation marks omitted). Not so. PLN’s current position is not clearly inconsistent with its earlier position because the Department never represented that the ads present no security threat. Instead, its position was that the problematic ads were not a security threat as long as they remained incidental in terms of their size and number. See McDonough, 200 F. App’x at 878 (stating that we did not expect the Department to “resume the practice of impounding publications based on incidental advertisements”) (emphasis added). But after 2005 the ads became more prominent (the size and number of the ads increased), ads for prisoner concierge and people locator services appeared, and phone technology changed. In view of those changes, the Department’s decision to renew impoundment was not an attempt to “play[ ] fast and loose with [this Court] to suit the exigencies of self interest.” In re Coastal Plains, Inc., 179 F.3d 197, 205 (5th Cir. 1999) (quotation marks omitted). As a result, the district court did not abuse its discretion in rejecting
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inmates but also appear along with articles about inmate phone scams, the role of Green Dot cards in prison gang extortion schemes, and the nationwide problem with smuggling contraband like drugs and cell phones into prisons. An inmate reading Prison Legal News not only reads articles about inmates putting the prohibited services to dangerous use, but also sees ads that enable him to obtain those same prohibited services. As PLN’s expert acknowledged, “[j]ust because there [are] rule[s] [prohibiting use of those services] is no guarantee that everybody will abide by the rule[s].” See Hudson v. Palmer, 468 U.S. 517, 526, 104 S. Ct. 3194, 3200 (1984) (“Inmates have necessarily shown a lapse in ability to control and conform their behavior to the legitimate standards of society by the normal impulses of self-restraint; they have shown an inability to regulate their conduct in a way that reflects either a respect for law or an appreciation of the rights of others.”). Given that common-sense proposition, it’s no surprise that Upchurch, the Department’s expert, agreed with the district court’s statement that the ads “create the possibility, [the] real possibility” of inmates doing an end run around prison rules. He explained how that possibility exists for each type of ad at issue in
PLN’s judicial estoppel argument. And because judicial estoppel does not apply here, we need not decide the extent to which it can be applied against a state if at all. See Heckler v. Cmty. Health Servs. of Crawford Cty., Inc., 467 U.S. 51, 60–61, 104 S. Ct. 2218, 2224 (1984) (noting the uncertainty on that point).
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this case: (1) three-way calling ads, (2) pen pal solicitation ads, (3) cash-forstamps exchange ads, and (4) prisoner concierge and people locator ads.13
i. Three-Way Calling Ads The Department is concerned with ads for three-way calling because that service undermines its ability to determine a call recipient’s identity and location. For instance, the December 2009 issue of Prison Legal News featured an ad from a company that allowed inmates to make a call to a local number, which could then be forwarded to up to three different numbers. Those types of three-way calling services, combined with the growth of internet-based phone technology, make it easier for inmates to call people outside their approved list. Although two phone companies that advertise in Prison Legal News provide the Department’s telephone vendor with the final call recipient’s number and address, other companies that advertise in the magazine have not done so. Given that Department inmates make 700,000 three-way call attempts each year — and some of those attempts succeed — the Department’s effort to reduce that number by curtailing inmates’ exposure to ads for that service is rational. See Prison Legal News v. Livingston, 683 F.3d
13 Rule (3)(l) allows the Department to impound publications that contain prominent or prevalent ads for “[c]onducting a business or profession while incarcerated.” Fla. Admin. Code r. 33-501.401(3)(l). PLN asserts that the district court failed to analyze the rational connection between an ad for that kind of service and the Department’s penological interests, but neither party discusses those particular ads in its briefs. In any event, Upchurch testified that all the ads create the possibility that inmates will circumvent prison rules, which is enough to establish a rational connection. See Perry, 664 F.3d at 1366.
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201, 218 (5th Cir. 2012) (holding that it was reasonable for prison officials to conclude that removing a book “describing racial tensions in the prison context — as opposed to racial tensions more generally —” would make prison violence less likely).
PLN argues that the Department’s fears about three-way calling ads are overblown. It points out that the Department allows inmates to call cell phones, even though cell phones present just as much of a security threat as three-way calling because the Department cannot identify a cell phone call recipient’s location. (Identifying a call recipient’s location helps the Department detect and stop criminal activity conducted over the phones). According to PLN, that alleged loophole undermines the rational connection. See Woodford, 299 F.3d at 881 (noting that a prison policy involved in that case contained “loopholes that undermine[d] its rationality”). But the Department explained why it allows inmates to call cell phones despite the security problems they present. Given the decline in landline use, prohibiting inmates from calling cell phones would curtail their ability to keep in touch with family and friends, which can be critical for rehabilitation. The Department also has several rules addressing the unique security problems that cell phones create: the cell phone must be contracted through a company licensed with the Federal Communications Commission; calls to pre-paid or pay-as-you-go phones are prohibited; and the cell phone owner must
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provide a physical billing address. See Fla. Admin. Code r. 33-602.205(2)(a). Because the Department has good reason for not banning all calls to cell phones, while also limiting three-way calls, PLN’s argument that the restriction on ads for three-way calls has no rational connection to security and safety interests is unpersuasive.
ii. Pen Pal Solicitation Ads Upchurch’s testimony shows why the Department’s concerns with pen pal solicitation ads are rationally connected to its security and safety interests. He described how those services give inmates opportunities to prey on the public by allowing them to write people they have no connection with, which heightens the risk of fraud. In his experience, giving inmates the opportunity to solicit pen pals resulted in the exploitation of kind-hearted but gullible people. Inmates have been known to borrow or buy from each other pen pal letters that have proven effective in scamming victims. Upchurch explained that such scams are hard to investigate because victims are often embarrassed and prosecutors prefer to focus on criminals on the streets, not those already in prison. And despite the Department’s rule prohibiting pen pal solicitation, inmates succeed in posting online profiles with the same companies that advertise in Prison Legal News. Given that evidence, the Department’s belief that reducing inmates’ exposure to the ads will help ensure compliance with the prohibition on pen pal solicitation is rational.
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iii. Cash-for-Stamps Ads Turning to cash-for-stamps ads, Upchurch testified that the large number and size of those ads in Prison Legal News makes inmates “aware of the opportunity [to break prison rules] where they otherwise might not be.” That is enough to establish a rational connection between the ads and the Department’s penological interests. See McCorkle v. Johnson, 881 F.2d 993, 995–96 (11th Cir. 1989) (upholding a prison’s ban on a satanic bible based on prison officials’ testimony that allowing access to it would “only encourage” violent behavior because of the book’s teachings about revenge and disobedience). Upchurch also testified that the large number of cash-for-stamps ads in each issue of Prison Legal News shows that the companies are making money off their ads, which evidences that the ads are causing inmates to use those services.14 The record supports his suspicion, because it shows that over a period of several years a cash-for-stamps exchange company deposited more than $50,000 into the accounts of Florida inmates.
iv. Prisoner Concierge and People Locator Ads
14 PLN argues that if the Department is worried about the security problems stamps present, then it should just prohibit inmates from keeping stamps altogether instead of allowing them to keep up to 40 stamps at a time. But the Department explained that it allows inmates to keep some stamps so that they can mail letters to family and friends, and switching to a stampless system would be costly and impractical. The Department does inspect all outgoing mail, but stamps are easily hidden and the Department processes 50,000 pieces of mail each day. Allowing inmates to have stamps for the legitimate purpose of sending mail to family and friends, while banning ads that tempt them to use stamps for illegitimate purposes, is rational.
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Finally, Upchurch testified about why ads for prisoner concierge and people locator services threaten prison security and public safety. The problem with prisoner concierge companies is that their services allow inmates to conceal their true identities from the public. Upchurch recounted how some prisoner concierge companies offer photo editing services, which an inmate could use to transform an official prison photo depicting him in a prison uniform into a fake vacation photo depicting him in a bathing suit at the beach. The inmate could then use that fake photo to misrepresent himself to the public, which facilitates fraud. In that and other ways, those ads undermine the Department’s ability to control inmates’ contact with the public.
The case against ads for people locator services is even more obvious. As Upchurch put it, inmates could use people locator services to “locate judges, lawyers, prosecutors, former witnesses, families of victims,” or anyone else “they would have an axe to grind with.” He cited the example of a Department inmate who threatened a judge, as well as the example of a prison gang member who after he was released murdered the chief of the Colorado Department of Corrections. As the district court aptly noted, “it doesn’t require a JD, or a federal judgeship” to see why people locator services pose a threat.
v. The “Focus of” or “Prominent or Prevalent” Requirement
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It is true that Rule (3)(l) prohibits only those publications where the rule-
defying ads are either the “focus of” the publication or are “prominent or
prevalent” throughout it. Fla. Admin. Code r. 33-501.401(3)(l). PLN asserts that
if the ads are as dangerous as the Department makes them out to be, then the
Department should impound a publication with even one suspect ad, which it could
do. See Thornburgh, 490 U.S. at 404–05 & n.5, 418–19, 109 S. Ct. at 1877 & n.5,
1884–85 (upholding the facial validity of a prison regulation that allowed a warden
to reject a publication based on a single prohibited feature). Upchurch testified
that the Department adopted the “prominent or prevalent” standard to
“moderate[ ]” the “focus of” requirement in Rule 3(l) and provide “some leeway” to Prison Legal News and other publications with questionable ads.15 It did so
even though that more moderate approach amounted to “giv[ing] in on some
security concerns.” PLN has not convinced us that moderation in pursuit of safety
is a constitutional vice. We do not condemn the Department for permitting more expression than it was required to.16
vi. Summary of the First Turner Factor
15 Except, for example, publications containing even a single depiction of, or description about, how to manufacture drugs or construct a weapon. See Fla. Admin. Code r. 33501.401(3)(a), (c).
16 PLN, inconsistently, also argues that the Department cannot prohibit a large amount of protected speech based on a few suspect ads. But the Thornburgh Court upheld the facial validity of regulations doing just that. See 490 U.S. at 404–05 & n.5, 418–19, 109 S. Ct. at 1877 & n.5, 1884–85.
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The record shows that the Department’s decision to limit inmates’ exposure to the ads is not “so remote” from the Department’s security and safety interests “as to render the . . . [impoundments] arbitrary or irrational.” Pope, 101 F.3d at 1385. It’s not remote at all. There is a rational connection between its impoundments of Prison Legal News based on the magazine’s ad content and prison security and public safety interests.
b. The Second Turner Factor: Alternative Means The second Turner factor is “whether there are alternative means” available to PLN to exercise its right of access to its inmate subscribers. See Turner, 482 U.S. at 90, 107 S. Ct. at 2262. PLN contends that this factor weighs in its favor because the district court found that PLN could not afford to publish its magazine without advertising revenue, and publishing a separate Florida-only version without the rule-defying ads would be cost prohibitive. With those options off the table, PLN argues, the impoundments amount to a blanket ban on its magazine because it has no other way to send Prison Legal News to inmate subscribers in Florida. It is a close call, but we reject PLN’s argument that no alternative means exist here. The Supreme Court has made clear that prisons do not have to provide exact, one-for-one substitutes to provide alternative means. See id. at 92, 107 S. Ct. at 2263 (holding that a prison regulation satisfied this factor because it did not
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“deprive prisoners of all means of expression,” and instead barred “communication only with a limited class of other people with whom prison officials have particular cause to be concerned”). Even if PLN cannot deliver Prison Legal News to its inmate subscribers in Florida, this factor is satisfied as long as there is some other way to exercise its right of access to inmates. See Thornburgh, 490 U.S. at 417– 18, 109 S. Ct. at 1884 (stating that the second factor was satisfied even though inmates could not attend a particular Muslim religious ceremony because they could “participate in other Muslim religious ceremonies”) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct. 2400 (1987)).
Although PLN cannot publish its magazine without ads and cannot afford to publish a Florida-only version, it can send its other publications to Florida inmates. For example, PLN publishes a handbook called the Prisoners’ Guerrilla Handbook, which describes various educational programs for prisoners. The Department does not impound that handbook. PLN also distributes to inmates a variety of books about daily life in prison, incarceration in the United States, and related topics. See Livingston, 683 F.3d at 209–10. There is no indication that those books are impounded.
PLN’s argument focuses solely on its ability to send Prison Legal News to Florida inmates, but “adequate alternatives” can exist even “where prisoners [are] cut off from unique and irreplaceable activities.” Id. at 219; see also id. at 209,
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218–19 (concluding that the second factor favored the corrections department, which had banned five of PLN’s books in Texas prisons, because the “alternatives left open to PLN to communicate its intended message to [the inmates were] extensive,” as it could distribute “countless other books” to inmates). Sending alternate publications might not be “ideal” for PLN, but Turner does not demand the ideal. See Yang v. Mo. Dep’t of Corr., 833 F.3d 890, 894–95 (8th Cir. 2016) (upholding a prison regulation that prohibited a Chinese inmate from corresponding in Chinese with his Chinese-speaking relatives in China, who did not speak English, because the inmate could still correspond in English, receive visitors, and make domestic and international calls). The second factor favors the Department or, perhaps more accurately, does not disfavor the Department.
c. The Third Turner Factor: Impact of Accommodating the Asserted Right The “third consideration is the impact [that] accommodation of the asserted
constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Turner, 482 U.S. at 90, 107 S. Ct. at 2262.
As we’ve explained, the Department impounded every monthly issue of Prison Legal News during the five-year period for which there is evidence in the record because the magazine’s ads give inmates the opportunity to use prohibited services, which creates security problems. It follows that if the Department admits an issue of the magazine, it would have to allocate more time, money, and
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personnel in an attempt to detect and prevent security problems engendered by the ads in the magazines. See Simpson, 879 F.3d at 281 (“Requiring Cape Girardeau to abandon the postcard-only policy would force the jail to dedicate more time and resources to searching the mail, which would detract from the officers’ other duties related to security and inmate welfare.”); Woods, 652 F.3d at 750 (stating that a ban on pen pal websites passed the third Turner factor because pen pal scams “unduly distract[ed] prison officials from the day-to-day affairs they must manage in order to maintain a safe atmosphere for everyone in the prison environment”). PLN’s subscribers could share copies of the magazine and its ads with nonsubscribing inmates or spread information by word-of-mouth about the companies offering the prohibited services. See Thornburgh, 490 U.S. at 412, 109 S. Ct. at 1881 (stating that periodicals “reasonably may be expected to circulate among prisoners, with the concomitant potential for coordinated disruptive conduct”). As Upchurch testified, that “ripple effect” increases the burden on Department staff. See Turner, 482 U.S. at 90, 107 S. Ct. at 2262 (“When accommodation of an asserted right will have a significant ripple effect on fellow inmates or on prison staff, courts should be particularly deferential to the informed discretion of corrections officials.”) (quotation marks omitted). The third factor favors the Department.
d. The Fourth Turner Factor: Exaggerated Response
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The final Turner factor requires us to consider whether the impoundments of Prison Legal News are “an exaggerated response to prison concerns.” Id. (quotation marks omitted). The “existence of obvious, easy alternatives may be evidence that the regulation . . . is an exaggerated response” to a problem, while the “absence of ready alternatives is evidence of the reasonableness of a prison regulation.” Id. (quotation marks omitted). PLN argues that the Department’s decision to impound the magazine is an exaggerated response to its security concerns because no other corrections department in the nation impounds this particular magazine based on its ad content. And it points to several supposedly simple alternatives to impoundment that would alleviate the Department’s security concerns: prohibiting inmates from calling out to cell phones, switching to a stamp-less system, or attaching a flyer to each issue of Prison Legal News to remind inmates not to use the prohibited services.
The Department’s decision to impound Prison Legal News is not an exaggerated response to its security concerns. Although the “policies followed at other well-run institutions [are] relevant to a determination of the need for a particular type of restriction,” such policies are not “necessarily controlling.” Procunier v. Martinez, 416 U.S. 396, 414 n.14, 94 S. Ct. 1800, 1812 n.14 (1974), overruled on other grounds by Thornburgh, 490 U.S. at 413–14, 109 S. Ct. at 1881–82. “[T]he Supreme Court has made it patently clear that the Constitution
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does not mandate a lowest common denominator security standard whereby a
practice permitted at one penal institution must be permitted at all institutions.”17
Pope, 101 F.3d at 1385; see also Crime Justice & Am., Inc. v. Honea, 876 F.3d
966, 971, 978 & n.6 (9th Cir. 2017) (rejecting the plaintiff’s argument that a ban on
its magazine coming into a county’s jail was an exaggerated response to safety
concerns, even though the magazine was “widely distributed at other jails,”
because the county did not have as much control over the inmates in its jail
compared to other counties). There is no one-size-fits-all approach to prison
management. As Upchurch testified, every institution faces different security
problems and deals with those problems in different ways. For example, some
prisons put microwaves in communal inmate living areas, while others would
never allow that arrangement out of fear that an inmate would heat up hot water
17 There is no support for PLN’s argument that the Department has the burden of showing something unique about its institutions to justify its impoundment decisions. Cf. Overton, 539 U.S. at 132, 123 S. Ct. at 2168 (“The burden . . . is not on the State to prove the validity of prison regulations but on [the challenger] to disprove it.”). PLN cites Holt v. Hobbs, 574 U.S. ___, 135 S. Ct. 853, 859 (2015), where the Supreme Court held that Arkansas’ ban on prisoners having 1/2 inch beards substantially burdened a Muslim inmate’s religious exercise. The Supreme Court observed that most states and the federal government permitted inmates to grow beards of that length, and stated that “when so many prisons offer an accommodation, a prison must, at a minimum, offer persuasive reasons why it believes that it must take a different course . . . .” Id. at 866. The Court analyzed that claim under the Religious Land Use and Institutionalized Persons Act, which requires the government to show that its regulation is the least restrictive means of furthering a compelling interest. Id. at 863. Turner, by contrast, does not require the Department to use the “least restrictive means” to promote prison security. Turner, 482 U.S. at 90–91, 107 S. Ct. at 2262. And even under RLUIPA, a state need not permit an accommodation just because others do. See Knight v. Thompson, 796 F.3d 1289, 1291, 1293 (11th Cir. 2015) (rejecting the argument that the policies of 39 other prison systems rendered invalid the challenged prison policy).
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and use it as a weapon. Upchurch explained that what matters to the Department is not the policies of corrections departments in other states, but maintaining prison security and public safety.18 In his view, the impoundments of Prison Legal News help accomplish those goals.
PLN’s proposed alternatives range from bad to worse. Prohibiting inmates from calling cell phones would make it difficult for them to keep in touch with family and friends (because of the decline in landline use), which in turn would undermine efforts to rehabilitate inmates. Switching to a stamp-less system would cost $70,000 (to change the Department’s banking system), require changing two state statutes, and force the Department to solve the logistical challenge of how inmates could send letters from prison canteens. See Thornburgh, 490 U.S. at 419, 109 S. Ct. at 1885 (stating that courts must consider the administrative inconvenience of proposed alternatives).
Last and most definitely least, PLN proposes that the Department follow New York’s lead and simply attach to each issue of Prison Legal News a flyer reminding inmates not to use the prohibited services. Really? If all New York has
18 One reason that the policies of departments in other states do not matter so much is that circumstances vary from state to state. For example, PLN’s evidence shows that the Arizona Department of Corrections does not impound Prison Legal News. PLN’s expert admitted, however, that Arizona’s “physical structures and facilities are more secure than” Florida’s, which tends “to use dormitories for certain categories of prisoners that many other states would not put in a dormitory.” Because of differences in physical structures and facilities, the Department’s security concerns differ from those of Arizona’s corrections department.
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to do to prevent inmate misconduct and crime is gently remind them not to misbehave, one wonders why that state’s prisons have fences and walls. Why not simply post signs reminding inmates not to escape? If New York wants to engage in a fantasy about convicted criminals behaving like model citizens while serving out their sentences, it is free to do so, but the Constitution does not require Florida to join New York in la-la-land. Though it was hardly necessary to state the obvious, Upchurch testified that a reminder flyer on the magazine would not alleviate security concerns. See id. at 419, 109 S. Ct. at 1884–85 (“In our view, when prison officials are able to demonstrate that they have rejected a less restrictive alternative because of reasonably founded fears that it will lead to greater harm, they succeed in demonstrating that the alternative they in fact selected was not an ‘exaggerated response’ under Turner.”). Like the first three factors, this final factor favors the Department.
e. The Turner Factors: Conclusion Upchurch summed up the relationship between the impoundment of Prison Legal News and the Department’s prison security and public safety interests by stating that those rules “certainly help[ ]” advance those interests. And that’s the point. The impoundment of Prison Legal News is not a silver bullet guaranteeing that inmates will not break the rules and commit crimes while incarcerated. But the record shows that a “reasonable relationship” does exist between the
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Department’s decision to impound the magazine and its prison security and public safety interests. Turner, 482 U.S. at 91, 107 S. Ct. at 2262. That is all Turner requires. Id. at 90–91, 107 S. Ct. at 2262. Because all four Turner factors favor the Department, we hold that the impoundments of Prison Legal News under Rules (3)(l) and (3)(m) do not violate the First Amendment.
B. Due Process Claim That the Department’s impoundments of Prison Legal News do not violate the First Amendment doesn’t let the Department entirely off the constitutional hook. The district court ruled that the Department violated PLN’s right to due process by failing to provide it with notice for each impounded issue, and the court entered an injunction requiring the Department to do that. That was not an abuse of discretion. PLN must receive notice and an opportunity to be heard each time the Department impounds an issue of the magazine. See Perry, 664 F.3d at 1367; Montcalm Publ’g Corp. v. Beck, 80 F.3d 105, 106 (4th Cir. 1996) (“We hold that publishers are entitled to notice and an opportunity to be heard when their publications are disapproved for receipt by inmate subscribers.”); Jacklovich v. Simmons, 392 F.3d 420, 433 (10th Cir. 2004) (following Montcalm); see also Londoner v. City and Cty. of Denver, 210 U.S. 373, 385, 28 S. Ct. 708, 714 (1908) (“[D]ue process of law requires that . . . the [party] shall have an
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opportunity to be heard, of which he must have notice . . . .”).19 As the district
court ruled, the Admissible Reading Material Rule on its face satisfies those
requirements. When the Department impounds an issue of a publication, the rule
requires that it send the publisher a notice form listing the “specific reasons” for
the impoundment of that issue. Fla. Admin. Code r. 33-501.401(8)(b).20 The
Literature Review Committee reviews every impoundment decision, id. r. 33-
19 We held in the Perry decision that there is a lower due process standard for mass mailings (that is, bulk correspondence). 664 F.3d at 1368. We reject the Department’s argument that magazines sent to subscribers are mass mailings. See Montcalm, 80 F.3d at 109 & n.2 (contrasting magazines sent to individual subscribers with mass mailings, which are sent to “each and every inmate at a given institution”). It is also not enough that publishers may receive notice of an impoundment from inmates. See Jacklovich, 392 F.3d at 433–34 (“[The] publisher’s rights must not be dependent on notifying the inmate[,] who in all likelihood will never see the publication . . . .”).
20 PLN and the amici argue that the Department must provide PLN with notice for each individual copy of Prison Legal News that the Department impounds, even if the Department has already sent notice that it has impounded a copy of that same issue sent to another inmate. In other words, if the Department impounds the January 2018 issue of Prison Legal News and withholds 70 copies of that issue from its inmate subscribers, then PLN wants notice forms for all 70 copies, not just one notice for the January issue. Due process does not demand that much. Under the administrative rule, once one facility impounds a monthly issue, every other facility must impound that same issue on the same grounds until the Literature Review Committee can decide whether that issue can be admitted into the prisons. Id. rr. 33-501.401(8)(c), (14)(a), (14)(c). Copy-by-copy notice is not necessary for PLN to learn the reason(s) for the impoundment as long as all copies are impounded for the same reason(s). See Livingston, 683 F.3d at 223 (holding that due process does not require copy-by-copy notice because later “denials of identical publications amount to the routine enforcement of a rule with general applicability”).
We also reject PLN’s and the amici’s argument that it is entitled to more due process protections because of the content of its magazine. See Shaw, 532 U.S. at 230, 121 S. Ct. at 1480 (rejecting the argument that courts should “enhance constitutional protection [under Turner] based on their assessments of the content of the particular communications”).
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501.401(14)(c), and the publisher can independently appeal an impoundment
decision to that committee, id. r. 33-501.401(15)(a).21
Those procedures, if applied, would have ensured that for each impounded
issue PLN received a notice form listing the reasons for the impoundment. As the
Department acknowledges, however, that did not happen for 26 out of the 62
monthly issues (42%) impounded between November 2009 and December 2014.
That failure rate increases to 87% when we take into account defective notice
forms that did not list the reasons for the impoundment. Despite that remarkable
failure rate, the Department argues that the Secretary cannot be enjoined because
there is no evidence that the failure to send the forms was a result of a Department
policy or custom to deprive PLN of notice.22 The Department asserts that PLN
should find the mailroom workers who are responsible for the failure to provide
notice and sue them. No.
21 PLN argues that when the committee reviews an impoundment decision it cannot reasonably gauge whether ads are “prominent or prevalent” in the magazine because it receives only a publication’s front cover and a copy of the pages with problematic content. Fla. Admin. Code r. 33-501.401(8)(b). That argument fails because publishers must send a copy of the entire impounded issue when the publisher files its own appeal with the committee. Id. r. 33501.401(15)(a)(2).
22 The Department argues that PLN did not receive the required notice because of negligent mailroom staff, and that the negligent deprivation of notice cannot give rise to a procedural due process violation. Cf. Jones v. Salt Lake County, 503 F.3d 1147, 1162–63 (10th Cir. 2007) (concluding that PLN’s due process claim failed where a prison’s mailroom staff negligently failed to deliver the magazine to inmate subscribers). But the Department deliberately impounded Prison Legal News, which means that it had to provide notice to PLN for each impounded issue.
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PLN doesn’t have to hunt and peck throughout Florida’s correctional system for negligent mailroom workers to sue. The buck stops with the Secretary. See Fla. Stat. § 20.315(3) (“The head of the Department of Corrections is the Secretary of Corrections. . . . The secretary shall ensure that the programs and services of the department are administered in accordance with state and federal laws, rules, and regulations . . . .”). This is not a case of one or two notice letters lost in the mail or mailroom. PLN did not receive notice forms for 42% of the impounded issues, and many forms it received for other issues were defective. PLN’s effort to enjoin the ongoing violation of its right to due process is appropriate, and it seeks only prospective relief against the Department. See Friends of Everglades v. S. Fla. Water Mgmt. Dist., 570 F.3d 1210, 1215 (11th Cir. 2009) (stating that the Ex Parte Young doctrine permits “lawsuits against state officials as long as the plaintiffs seek only prospective injunctive relief to stop ongoing violations of federal law”). And as the district court pointed out, its injunction “essentially requires compliance with the [Department’s] own rule.” The Secretary should not protest too loudly an order to enforce a rule she is statutorily required to enforce. See Fla. Stat. § 20.315(3).
IV. CONCLUSION The Department’s concerns with the ads in Prison Legal News are reasonably related to its legitimate interests in prison security and public safety, so
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we defer to its decision and hold that the impoundments of Prison Legal News under Rules (3)(l) and 3(m) do not violate the First Amendment. But with the power to impound Prison Legal News comes the duty to inform PLN of the reasons for the impoundments. The Department did not do that, which is why the district court did not abuse its discretion in entering an injunction to require the Department to adhere to its own notice rules.
AFFIRMED.
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF FLORIDA TALLAHASSEE DIVISION

PRISON LEGAL NEWS, etc., Plaintiff,
v. THE GEO GROUP, INC., etc. et al.,
Defendants. ____________________________/

CASE NO. 4:12cv239-RH/CAS

ORDER DENYING THE MOTIONS TO DISMISS

The plaintiff Prison Legal News publishes a periodical. Its target market is prisoners. The State of Florida Department of Corrections has rules that restrict the materials that may be mailed to prisoners. In its first amended complaint, the plaintiff asserts that, without notice to the plaintiff, the rules have been applied to block its publications, that the rules as so applied violate the First and Fourteenth Amendments, and that the failure to give the plaintiff notice violates the Due Process Clause. The first amended complaint names as defendants the DOC Secretary in his official capacity and two private corporations that operate correctional facilities under contract with DOC.

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The defendants have moved to dismiss the first amended complaint for failure to state a claim on which relief can be granted. The defendants’ primary assertion, in effect, is that the DOC rules are facially constitutional. But facially valid rules can be unconstitutionally applied. See, e.g., Thornburgh v. Abbott, 490 U.S. 401, 404, 419 (1989). Whether that has occurred here cannot properly be determined on the defendants’ motions to dismiss.
This does not mean, though, that a determination of the as-applied claims must await prolonged discovery. See, e.g., Leatherman v. Tarrant Cnty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168-69 (1993) (“federal courts and litigants must rely on summary judgment and control of discovery to weed out unmeritorious claims sooner rather than later”). The attorneys should cooperate with the goal of efficiently preparing and presenting the case on the merits so that the side that is entitled to prevail—whether plaintiff or defendants—can do so without undue burden.
That leaves for consideration the motion to dismiss the Due Process claims. The defendants are incorrect when they assert that notice to a publisher is never required. See Montcalm Publ’g. Corp. v. Beck, 80 F.3d 105, 109 (4th Cir. 1996); Martin v. Kelley, 803 F.2d 236, 243-44 (6th Cir. 1986); Jacklovich v. Simmons, 392 F.3d 420, 433-34 (10th Cir. 2004); see also Abdul Wali v. Coughlin, 754 F.2d 1015, 1027-28 (2d Cir. 1985); Trudeau v. Wyrick, 713 F.2d 1360, 1366-67 (8th
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Cir. 1983); Prison Legal News v. Cook, 238 F.3d 1145, 1152-53 (9th Cir. 2001). The first amended complaint adequately states a claim on which relief can be granted.
For these reasons, IT IS ORDERED: The motions to dismiss for failure to state a claim on which relief can be granted, ECF No. 29 and 37, are DENIED. SO ORDERED on June 7, 2012.
s/Robert L. Hinkle United States District Judge
Case No. 4:12cv239-RH/CAS