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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRISON LEGAL NEWS a/k/a HUMAN RIGHTS DEFENSE CENTER, a Washington not-for-profit organization
Plaintiffs,
vs.
SHERIFF, ANTHONY M. WICKERSHAM, individually and in his official capacity; MICHELLE SANBORN, individually and in her official capacity; MACOMB COUNTY, MICHIGAN;DOES 1-10, individually and in their official capacities,
Defendants.

Case No. Hon.
JURY TRIAL DEMANDED

James Stewart (P23254) Elizabeth C. Lamoste (P78500) Honigman Miller Schwartz & Cohn LLP Attorneys for Plaintiff 130 S. First Street, 4th Floor Ann Arbor, MI 48104-1386 734-418-4256 (Tel) 734-418-4257 (Fax) Email: jstewart@honigman.com
elamoste@honigman.com

/
Dan Manville (P39731) Director, Civil Rights Clinic Michigan State University College of Law Attorneys for Plaintiff 610 Abbot Road East Lansing, MI 48823 (517) 336-8088 Email: daniel.manville@law.msu.edu

Lance Weber, Florida Bar #104550 Sabarish Neelakanta, Florida Bar #26623 Human Rights Defense Center Attorneys for Plaintiff PO Box 1151 Lake Worth, Florida 33460 561-360-2523 (Tel) Email: lweber@hrdc-law.org
sneelakanta@hrdc-law.org
/

COMPLAINT FOR DECLARATORY AND INJUNCTIVE RELIEF UNDER THE CIVIL RIGHTS ACT 42 U.S.C. § 1983 AND DAMAGES

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I. INTRODUCTION 1. Plaintiff, PRISON LEGAL NEWS (“PLN”), a/k/a HUMAN RIGHTS DEFENSE CENTER (collectively as “PLN” or “Plaintiff”), brings this action to enjoin Defendants’ censorship of its monthly journal, Prison Legal News, and other correspondence from Plaintiff and other senders mailed to prisoners at the Macomb County Jail (the “Jail”), in violation of the First and Fourteenth Amendments of the United States Constitution. Defendants have adopted and implemented mail policies prohibiting delivery of mail from Plaintiff and other senders, failing to provide due process notice and an opportunity to challenge the censorship, and denying senders equal protection as required under the Constitution.
II. JURISDICTION AND VENUE 2. This action is brought pursuant to 42 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. 3. Venue is proper under 28 U.S.C. § 1391(b). At least one Defendant resides within this judicial district, and the events giving rise to the claims asserted herein all occurred within this judicial district.
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4. 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 the laws of the United States.
5. This Court has jurisdiction over claims seeking declaratory and injunctive relief pursuant to 28 U.S.C. §§ 2201 and 2202, and Rules 57 and 65 of the Federal Rules of Civil Procedure, as well as nominal and compensatory damages, against all Defendants.
6. 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.
7. Plaintiff is informed, believes, and based thereon alleges that the individual Defendants acted as described herein with the intent to injure, vex, annoy and harass Plaintiff, and subjected Plaintiff to cruel and unjust hardship in conscious disregard of Plaintiff’s rights with the intention of causing Plaintiff injury and depriving it of its constitutional rights.
8. As a result of the foregoing, Plaintiff seeks compensatory and punitive damages against the individual Defendants.
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III. PARTIES 9. Plaintiff, Human Rights Defense Center (HRDC), is a not-for-profit, Washington charitable corporation recognized under § 501(c)(3) of the Internal Revenue Code with principal offices in Lake Worth, Florida. HRDC publishes Prison Legal News, a monthly journal of prison news and analysis. 10. Defendant, Anthony M. Wickersham, is currently the Sheriff of Macomb County, Michigan, and is sued in his individual and official capacities. At all times relevant, he acted under the color of state law. Defendant Wickersham has ultimate responsibility for the promulgation and enforcement of all Jail staff policies and procedures and is responsible for the overall management of the Jail, including all aspects of the Jail’s mail services. 11. Defendant, Michelle Sanborn, is the Jail Administrator of the Jail and is sued in her individual and official capacities. At all times relevant, she acted under the color of state law. Defendant Sanborn supervises and manages the daily operations of the Jail and mailroom staff, to include enactment and enforcement of all Jail policies, including mail. 12. Defendant, Macomb County is an organized municipal corporation existing under the laws of the State of Michigan. 13. The true names and identities of Defendants DOES 1 through 10 are presently unknown to PLN. Each of Defendants DOES 1 through 10 are or were
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employed by and are or were agents of Defendants when some or all of the challenged inmate mail policies and practices were adopted and/or implemented. Each of Defendants DOES 1 through 10 were personally involved in the adoption and/or implementation of the mail policies at the Jail, and/or were responsible for the hiring, screening, training, retention, supervision, discipline, counseling, and/or control of Jail staff who interpret and implement these mail policies. PLN will seek to amend this Complaint as soon as the true names and identities of Defendants DOES 1 through 10 have been ascertained.
14. 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.
IV. FACTUAL ALLEGATIONS 15. PLN publishes and distributes a soft-cover monthly journal titled Prison Legal News: Dedicated to Protecting Human Rights, which contains news and analysis about prisons, jails and other detention facilities, prisoners’ rights, court rulings, management of prison facilities, prison conditions, and other matters pertaining to the rights and/or interests of incarcerated individuals. 16. PLN has thousands of subscribers in the United States and abroad, including prisoners, attorneys, journalists, public libraries, judges, and members of the general public. PLN distributes its monthly publication to prisoners and law librarians in more than 2,400 correctional facilities located across all fifty states,
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including the Federal Bureau of Prisons and the Michigan Department of Corrections.
17. PLN also distributes approximately fifty (50) different books about the criminal justice system, legal reference books, and self-help books of interest to prisoners. These books are designed to foster a better understanding of criminal justice policies and to allow prisoners to educate themselves about related issues, such as legal research, how to write a business letter, health care issues, and similar topics.
18. The purpose of PLN, as stated in HRDC’s 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. PLN engages in core protected speech and expressive conduct on matters of public concern, such as the operation of prison facilities, prison conditions, prisoner health and safety, and prisoners’ rights. Plaintiff’s monthly journal, as described above, contains 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.
20. For more than 25 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
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guaranteed and other basic human rights. PLN’s mission, if realized, has a salutary effect on public safety.
21. On information and belief, in August 2013, the Jail instituted a postcard-only mail policy that restricted incoming correspondence to metered, 5x7 white postcards. The Jail also only permits book orders from one distributor: Amazon Prime, and limits magazines to twelve (12) titles, namely: People, Field & Stream, Newsweek, Outside, Time, Money, Reader’s Digest, O the Oprah Magazine, Men’s Fitness, Shape, Martha Stewart Living and Parenting. Plaintiff’s magazine, Prison Legal News, is not on the list of approved periodical publications.
A. Censorship of Prison Legal News 22. Since August 2014, PLN has sent at least one hundred twenty-eight (128) issues of its monthly journal to subscribers at the Jail. On information and belief, the following issues were not delivered to the subscribers listed below, each one of which was intended to receive his or her own individual copy of the monthly magazine: August 2014 issue of Prison Legal News Jeremy Adams Permon Anderson David Collins Malvern Cooper Lisa Davis Mark Edwards Rachel Edwards
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Michael Harris Kenneth Hill Belinda Jones
September 2014 issue of Prison Legal News Permon Anderson David Collins Malvern Cooper Lisa Davis Mark Edwards Rachel Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Theron Lambert Jalan Moore Aaron Smith Anthony Smith Antonio Smith Sean Taylor Willie Taylor Hezekiah Williams James Williams-Bey
October 2014 issue of Prison Legal News Permon Anderson David Collins Malvern Cooper Lisa Davis Mark Edwards Rachel Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Theron Lambert Jalan Moore
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Aaron Smith Anthony Smith Antonio Smith Sean Taylor Willie Taylor Hezekiah Williams James Williams-Bey
November 2014 issue of Prison Legal News Permon Anderson Malvern Cooper Lisa Davis Mark Edwards Rachel Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Theron Lambert Jalan Moore Aaron Smith Anthony Smith Antonio Smith Willie Taylor Hezekiah Williams
December 2014 issue of Prison Legal News Permon Anderson Malvern Cooper Lisa Davis Mark Edwards Rachel Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Theron Lambert Jalan Moore
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Anthony Smith Antonio Smith Willie Taylor Hezekiah Williams
January 2015 issue of Prison Legal News Permon Anderson Malvern Cooper Rachel Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Theron Lambert Jalan Moore Antonio Smith Hezekiah Williams
February 2015 issue of Prison Legal News Permon Anderson Malvern Cooper Rachel Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Theron Lambert Jalan Moore Antonio Smith Hezekiah Williams
March 2015 issue of Prison Legal News Kenneth Hill Duane Johnson Belinda Jones Theron Lambert Antonio Smith
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Hezekiah Williams April 2015 issue of Prison Legal News Kenneth Hill Duane Johnson Theron Lambert May 2015 issue of Prison Legal News Kenneth Hill Duane Johnson Theron Lambert
23. PLN will continue to mail copies of Prison Legal News to subscribers imprisoned at the Jail.
24. There is no legitimate penological reason for censorship of PLN’s monthly journal.
25. Defendants failed to provide PLN with constitutionally adequate due process notice of the censorship and a meaningful opportunity to appeal.
B. The Habeas Citebook: Ineffective Assistance of Counsel 26. Defendants have censored PLN’s books mailed to people held in custody at the Jail, by refusing to accept books delivered by Plaintiff and limiting orders exclusively to Amazon Prime, without due process, violating PLN’s First and Fourteenth Amendment Rights to Free Speech, Due Process and Equal Protection. 27. The Habeas Citebook: Ineffective Assistance of Counsel (“Habeas Citebook”) is published and distributed by Plaintiff, and describes the procedural
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and substantive complexities of Federal habeas corpus litigation with the goal of assisting prisoners in the process of identifying and litigating claims involving ineffective assistance of counsel. The Habeas Citebook is also a valuable resource for pre-trial detainees involved in active litigation of pending criminal charges.
28. Since July 2014, PLN has sent at least nineteen (19) issues of Habeas Citebook to prisoners at the Jail. On information and belief, the books were not delivered to the prisoners listed below, each one of which was intended to receive his or her own copy of the book:
July 2014 Rachel Edwards Permon Anderson Malvern Cooper Jeremy Adams David F. Collins August 2014 Kenneth D. Hill Michael V. Harris Mark R. Edwards Lisa M. Davis Theron Lambert Belinda Jones May 2015 Daryle Williams Eric Hughes Joseph Lacroix Lloyd Dejohn John R. Wilson Anthony Monday Julian M. Braxton Terry S. Smith
29. PLN will continue to mail its books to prisoners imprisoned at the Jail.
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30. There is no legitimate penological reason for censorship of PLN’s
books.
31. Defendants failed to provide PLN with constitutionally adequate due
process notice of the censorship and a meaningful opportunity to appeal.
C. 2014 Annual Fundraiser
32. Each year, PLN sends out its annual Fundraiser to all of its
subscribers. The 2014 Fundraiser was mailed to all PLN subscribers in November
2014.
33. Seventeen (17) prisoners at the Jail were mailed a copy of the 2014
Fundraiser. On information and belief, the following the Fundraiser was not
delivered to the following intended recipients:
November 2014 Fundraiser Permon Anderson Malvern Cooper Lisa Davis Mark Edwards Rachel Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Theron Lambert Jalan Moore Anthony Smith Antonio Smith Willie Taylor Anthony Williams
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Hezekiah Williams 34. PLN will continue to mail its annual Fundraiser to subscribers imprisoned at the Jail. 35. There is no legitimate penological reason for censorship of PLN’s annual Fundraiser. 36. Defendants failed to provide PLN with constitutionally adequate due process notice of the censorship and a meaningful opportunity to appeal.
D. Informational Brochures
37. PLN sends prisoners an “Informational Brochure Packet,” which includes three items: (1) a PLN Brochure and Subscription Order Form; (2) a PLN Book List; and (3) a Published Books Brochure. These brochures are sent directly to individuals who have requested information about PLN publications and to others who are identified by PLN as people likely to be in need of the information that PLN distributes.
38. PLN sent Informational Brochure Packets to the following twenty (20) prisoners at the Jail during the months listed below:
July 2014 Jeremy Adams Permon Anderson Malvern Cooper Rachel Edwards August 2014
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Mark Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Jalan Moore Aaron Smith Anthony Smith Antonio Smith Mark Taylor Sean Taylor Willie Taylor Anthony Williams Hezekiah Williams James Williams-Bey
39. Fourteen (14) of the Information Brochure Packets mailed to the
following prisoners were returned to PLN with a sticker affixed to the front of the
envelope that reads: “MAIL DENIED. Does not meet institutional criteria.
Appeals may be directed in writing within 20 days to Jail Administration Mail
Appeal.”
Rachel Edwards Permon Anderson Duane Johnson Marques Johnson Jalan Moore Aaron Smith Anthony Smith Antonio Smith Mark Taylor Sean Taylor Willie Taylor Anthony Williams Hezekiah Williams
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James Williams-Bey 40. The remaining six (6) Information Brochure Packets, listed below, were returned to PLN with a sticker identical to the one detailed in Paragraph 39 affixed to the front of the envelope and a second sticker that reads: *Not in form of approved postcard *NOTE. Plain White METERED POSTCARDS ONLY 5” X 7” or smaller NO IMAGES/NO STICKERS/NO STAMPS. Michael Harris Kenneth Hill Malvern Cooper Mark Edwards Jeremy Adams Belinda Jones 41. PLN will continue to mail its Informational Brochure Packets to prisoners at the Jail. 42. There is no legitimate penological reason for censorship of PLN’s Informational Brochure Packets. 43. Defendants failed to provide PLN with constitutionally adequate due process notice of the censorship and a meaningful opportunity to appeal.
E. Sample Issues of Prison Legal News
44. PLN mails sample copies of the PLN monthly journal in an envelope affixed with U.S. First-Class postage and addressed to certain individual prisoners as part of its outreach activities. PLN mailed envelopes containing sample issues
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of PLN to the following twenty-one (21) prisoners during the months indicated in
each section below:
July 2014 Jeremy Adams Permon Anderson David Collins Malvern Cooper Rachel Edwards
August 2014 Lisa Davis Mark Edwards Michael Harris Kenneth Hill Duane Johnson Marques Johnson Belinda Jones Jalan Moore Aaron Smith Anthony Smith Antonio Smith Mark Taylor Sean Taylor Anthony Williams Hezekiah Williams James Williams-Bey
45. Nine (9) sample copies of the monthly PLN journal mailed to the
prisoners listed below were returned to PLN with a sticker affixed to the front of
the envelope that reads: “MAIL DENIED Does not meet institutional criteria.
Appeals may be directed in writing within 20 days to Jail Administration Mail
Appeal.”
Duane Johnson
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Jalan Moore Aaron Smith Anthony Smith Antonio Smith Sean Taylor Anthony Williams Hezekiah Williams James Williams-Bey
46. One (1) of the sample copies of the PLN journal sent to Marques
Johnson was returned with no sticker on the envelope.
47. Four (4) sample copies of the monthly PLN journal mailed to the
prisoners listed below were returned to PLN with a sticker affixed to the front of
the envelope that reads: *Not in form of approved postcard *NOTE. Plain
White METERED POSTCARDS ONLY 5” X 7” or smaller NO IMAGES/NO
STICKERS/NO STAMPS.
Jeremy Adams Permon Anderson Malvern Cooper Lisa Davis
48. Seven (7) sample copies of the monthly PLN journal mailed to the
prisoners listed below were returned to PLN with both stickers described in
Paragraphs 45 and 47 affixed to the front of the envelopes:
Rachel Edwards David Collins Mark Edwards Theron Lambert Michael Harris Kenneth Hill
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Belinda Jones 49. PLN will continue to mail sample issues of Prison Legal News to prisoners at the Jail. 50. There is no legitimate penological reason for the censorship of sample issues of Prison Legal News mailed to prisoners at the Jail. 51. Defendants failed to provide PLN with constitutionally adequate due process notice of the censorship and a meaningful opportunity to appeal.
F. Court Rulings
1. Prison Legal News v. Columbia County, Case No. 3:12-cv00071-SI (D.Or. May 29, 2012)
52. PLN mails copies of case law printed from the Internet, to inform prisoners of recent legal developments impacting their personal rights and freedoms and to provide source material for authors of articles contained in its monthly journal. PLN mailed copies of the ruling in Prison Legal News v. Columbia County, Case No. 3:12-cv-00071-SI (D.Or. May 29, 2012) to the following twenty (20) prisoners at the Jail during the month of August 2014:
Permon Anderson Malvern Cooper Lisa Davis Mark Edwards Rachel Edwards Michael Harris Kenneth Hill Duane Johnson
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Marques Johnson Belinda Jones Theron Lambert Jalan Moore Aaron Smith Anthony Smith Antonio Smith Sean Taylor Willie Taylor Anthony Williams Hezekiah Williams James Williams-Bey
53. All mailings were sent in No. 10 standard business envelopes with
First Class U.S. postage. All twenty (20) mailings were returned to PLN with a
sticker affixed to the front of the envelope that reads: “MAIL DENIED Does not
meet institutional criteria. Appeals may be directed in writing within 20 days
to Jail Administration/Mail Appeal.”
2. Prison Legal News v. Ventura County, Case No. 2:14-cv00773-GHK-E (C.D.Ca May 29, 2014)
54. PLN mailed copies of the ruling in Prison Legal News v. Ventura
County, Case No. 2:14-cv-00773-GHK-E (C.D.Ca May 29, 2014) to twenty (20)
prisoners at the Jail during the month of August 2014:
Permon Anderson Malvern Cooper Lisa Davis Mark Edwards Rachel Edwards Michael Harris Kenneth Hill Duane Johnson
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Marques Johnson Belinda Jones Theron Lambert Jalan Moore Aaron Smith Anthony Smith Antonio Smith Sean Taylor Willie Taylor Anthony Williams Hezekiah Williams James Williams-Bey 55. All mailings were sent in No. 10 standard business envelopes with First Class U.S. postage. All twenty (20) mailings were returned to PLN with a sticker affixed to the front of the envelope that reads: “MAIL DENIED Does not meet institutional criteria. Appeals may be directed in writing within 20 days to Jail Administration/Mail Appeal.” 56. PLN will continue to mail Court Rulings to prisoners at the Jail to inform prisoners of recent legal developments impacting their personal rights and freedoms. 57. There is no legitimate penological reason for the censorship of Court Rulings mailed to prisoners at the Jail. 58. Defendants failed to provide PLN with constitutionally adequate due process notice of the censorship and a meaningful opportunity to appeal.
G. Defendants’ Unconstitutional Mail Policy and Practice is Ongoing
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59. The accommodation of the free speech, expression, equal protection and due process rights of Plaintiff with respect to written speech protected by the Constitution will not have any significant impact on the prison, its staff or prisoners.
60. Due to Defendants’ actions as described above, Plaintiff has suffered damages, and will continue to suffer damages, including, but not limited to: the suppression of Plaintiff’s speech; the impediment of Plaintiff’s ability to disseminate its political message; frustration of Plaintiff’s non-profit organizational mission; the loss of potential subscribers and customers; and the inability to recruit new subscribers and supporters, among other damages.
61. Defendants’ actions and inactions were and are motivated by ill motive and intent, and were and are all committed under color of law with reckless indifference to PLN’s rights.
62. Defendants, and other agents of the Jail, are responsible for or personally participated in creating and implementing these unconstitutional policies, practices, and customs, or for ratifying or adopting them. Further, Defendants are responsible for training and supervising the staff persons whose conduct has injured and continues to injure PLN.
63. Defendants’ unconstitutional policy, practices, and customs are ongoing, continue to violate PLN’s rights, and were and are the moving force
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behind the injuries Plaintiff suffered as a direct result of the constitutional violations. As such, PLN has no adequate remedy at law.
64. PLN is entitled to declaratory relief as well as injunctive relief prohibiting Defendants from refusing to deliver publications and correspondence from plaintiff and other senders without any legal justification, and prohibiting Defendants from censoring mail without due process of law.
IV. CLAIMS Count I – 42 U.S.C. § 1983 Violation of the First Amendment (Censorship) 65. PLN realleges and incorporates the allegations of Paragraphs 1 through 64 of the Complaint as if fully set forth herein. 66. The acts described above constitute violations of Plaintiff’s rights, the rights of other correspondents who have attempted to or intend to correspond with prisoners at the Jail, and the rights of prisoners confined at the Jail, under the First Amendment to the United States Constitution. 67. Plaintiff has a constitutionally protected liberty interest in communicating with incarcerated individuals, a right clearly established under existing case law. 68. The conduct of Defendants was objectively unreasonable and was undertaken intentionally with malice, willfulness, and reckless indifference to the rights of others.
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69. Plaintiff’s injuries and the violations of its constitutional rights were directly and proximately caused by the policies and practices of Defendants, which were the moving force of the violations.
70. The acts described above have caused damages to Plaintiff, and if not enjoined, will continue to cause damage to Plaintiff.
71. Plaintiff seeks declaratory and injunctive relief, and nominal, compensatory and punitive damages against all Defendants. Plaintiff seeks punitive damages against the individual Defendants in their individual capacities.
Count II – 42 U.S.C. § 1983 Violation of Fourteenth Amendment (Due Process) 72. PLN realleges and incorporates the allegations of Paragraphs 1 through 71 of the Complaint as if fully set forth herein. 73. The acts described above constitute violations of Plaintiff’s rights and the rights of other correspondents who have attempted to or intend to correspond with prisoners at the Jail under the Fourteenth Amendment to the United States Constitution. 74. Because Plaintiff and others outside the jail have a liberty interest in communicating with prisoners, PLN and other senders have a right under the Due Process Clause of the Fourteenth Amendment to receive notice of and an opportunity to appeal Defendants’ decisions to censor their written speech.
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75. Defendants’ policy and practice fail to provide Plaintiff and other senders with adequate notice and an opportunity to be heard.
76. The conduct of Defendants was objectively unreasonable and was undertaken intentionally with malice, willfulness, and reckless indifference to the rights of others.
77. Plaintiff’s injuries and the violations of its constitutional rights were directly and proximately caused by the policies and practices of Defendants, which were the moving force of the violation.
78. The acts described above have caused damages to Plaintiff, and if not enjoined, will continue to cause damage to Plaintiff.
79. Plaintiff seeks declaratory and injunctive relief, and nominal and compensatory damages against all Defendants. Plaintiff seeks punitive damages against the individual Defendants in their individual capacities.
Count III – 42 U.S.C. § 1983 Violation of the Fourteenth Amendment (Equal Protection) 80. PLN realleges and incorporates the allegations of Paragraphs 1 through 79 of the Complaint as if fully set forth herein. 81. By permitting the publishers of only twelve (12) magazine titles to speak to prisoners at the Jail, to the exclusion of PLN and all other publishers, and permitting book orders only from Amazon Prime, Defendants, acting under color of state law, violated the right of Plaintiff and all other publishers to equal
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protection as guaranteed by the Fourteenth Amendment of the United States Constitution and 42 U.S.C. § 1983.
82. Plaintiff is suffering ongoing and irreparable harm by Defendants’ discriminatory treatment, and the harm will continue unless the mail policies limiting magazines to only twelve (12) titles, excluding Prison Legal News and other publishers, and the book order limitation are declared unlawful and enjoined by this Court.
Count IV – Injunctive Relief 83. PLN realleges and incorporates the allegations of Paragraphs 1 through 82 of the Complaint as if fully set forth herein. 84. Defendants’ unconstitutional policies and practices are ongoing and continue to violate Plaintiff’s constitutional rights and the rights of other correspondents and prisoners. As such, there is no adequate remedy at law. 85. Plaintiff is entitled to injunctive relief prohibiting Defendants from refusing to deliver mail for the reason that it is not a postcard, that it is not one of the twelve (12) magazines permitted, or that it is not a book ordered from Amazon Prime. Plaintiff is also entitled to injunctive relief prohibiting Defendants from censoring mail without providing due process of law to the sender thereof.
V. REQUEST FOR RELIEF WHEREFORE, the Plaintiff respectfully requests relief as follows:
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86. A declaration that Defendants’ policies and practices violate the Constitution.
87. A preliminary and permanent injunction preventing Defendants from continuing to violate the Constitution, and providing other equitable relief.
88. Compensatory damages in an amount to be proved at trial. 89. Punitive damages against the individual Defendants in an amount to be proved at trial. 90. Costs, including reasonable attorneys’ fees, under 42 U.S.C. § 1988, and under other applicable law. 91. Nominal damages for each violation of Plaintiff’s rights by the Defendants. 92. Any other such relief that this Court deems just and equitable.
JURY DEMAND Plaintiff, Prison Legal News, by and through its attorneys, hereby demands a trial by jury pursuant to Federal Rule of Civil Procedure 38(b) on all issues so triable.
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Respectfully Submitted,
HONIGMAN MILLER SCHWARTZ AND COHN LLP Attorneys for Plaintiff
By: /s/ James Stewart James Stewart (P23254) Elizabeth C. Lamoste (P78500) Honigman Miller Schwartz & Cohn LLP 130 S. First Street, 4th Floor Ann Arbor, MI 48104-1386 734-418-4256 (Tel) 734-418-4257 (Fax) Email: jstewart@honigman.com
elamoste@honigman.com
Lance Weber, Florida Bar #104550 Sabarish Neelakanta, Florida Bar #26623 Human Rights Defense Center Attorneys for Plaintiff PO Box 1151 Lake Worth, Florida 33460 561-360-2523 (Tel) Email: lweber@hrdc-law.org
sneelakanta@hrdc-law.org
Dan Manville (P39731) Director, Civil Rights Clinic Michigan State University College of Law Attorneys for Plaintiff 610 Abbot Road East Lansing, MI 48823 (517) 336-8088 Email: daniel.manville@law.msu.edu
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Dated: June 30, 2015

Of Counsel:
Bruce E.H. Johnson Angela Galloway Davis Wright Tremaine LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 206-475-8069 (Tel) 205-757-7069 (Fax) Email: brucejohnson@dwt.com
angelagalloway@dwt.com

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17594390.1

 
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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRISON LEGAL NEWS a/k/a HUMAN RIGHTS DEFENSE CENTER, a Washington not-for-profit organization
Plaintiffs,
vs.
SHERIFF, ANTHONY M. WICKERSHAM, individually and in his official capacity; MICHELLE SANBORN, individually and in her official capacity; MACOMB COUNTY, MICHIGAN;DOES 1-10, individually and in their official capacities,
Defendants.
/

Case No. Hon.

James Stewart (P23254) Elizabeth C. Lamoste (P78500) Honigman Miller Schwartz & Cohn LLP Attorneys for Plaintiff 130 S. First Street, 4th Floor Ann Arbor, MI 48104-1386 734-418-4256 (Tel) 734-418-4257 (Fax) Email: jstewart@honigman.com
elamoste@honigman.com

Dan Manville (P39731) Director, Civil Rights Clinic Michigan State University College of Law Attorneys for Plaintiff 610 Abbot Road East Lansing, MI 48823 (517) 336-8088 Email: daniel.manville@law.msu.edu

Lance Weber, Florida Bar #104550 Sabarish Neelakanta, Florida Bar #26623 Human Rights Defense Center Attorneys for Plaintiff PO Box 1151 Lake Worth, Florida 33460 561-360-2523 (Tel) Email: lweber@hrdc-law.org
sneelakanta@hrdc-law.org /

PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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NOW COMES Plaintiff, PRISON LEGAL NEWS (PLN), a/k/a Human Rights Defense Center (hereinafter “HRDC”; “PLN”; or “Plaintiff”), by and through its attorneys, pursuant to Federal Rule of Civil Procedure 65 and respectfully moves this Court for a preliminary injunction enjoining Defendants from improperly censoring publications and correspondence mailed to prisoners at Macomb County Jail (hereinafter, “Jail”) by Plaintiff and other senders pursuant to a postcard only policy. In support of this motion, Plaintiff states as follows:
1. Plaintiff publishes and distributes a monthly journal of corrections news and editorial content about the criminal justice system and important legal issues affecting prisoners. PLN also distributes approximately fifty (50) legal and self-help books, including The Habeas Citebook: Ineffective Assistance of Counsel, which describes the procedural and substantive complexities of Federal habeas corpus litigation with the goal of helping prisoners identify and/or litigate claims involving ineffective assistance of counsel. The core of PLN’s mission is public education, advocacy and outreach to assist prisoners who seek legal redress for infringements of their constitutional and human rights.
2. Defendants have censored the following materials from PLN: (1) Informational brochure packets; (2) Sample copies of Prison Legal News; (3) 2014 annual fundraiser mailings; (4) copies of judicial decisions; (5) Monthly Subscription issues of Prison Legal News; and (6) individual copies of The Habeas
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Citebook: Ineffective Assistance of Counsel. Since July 2014, Defendants have censored PLN’s monthly journal, books and other correspondence on at least 245 occasions.
3. Defendants have rejected these items pursuant to an unconstitutional mail policy which requires all non-privileged mail to be in the form of a postcard, restricts magazines to just twelve (12) titles, and restricts incoming books to those ordered from Amazon Prime.
4. Defendants have failed to provide to Plaintiff constitutionally adequate notice of their censorship of PLN’s written speech as well as an opportunity to challenge Defendants’ censorship decisions.
5. Plaintiff has a constitutionally protected liberty interest in communicating with incarcerated individuals, a right clearly established under existing case law.
6. Injunctive relief is necessary to prevent the Defendants from continuing to interfere with Plaintiff’s fundamental constitutional right to free speech and expression, equal protection and due process of law as guaranteed by the First and Fourteenth Amendments of the United States Constitution.
7. Plaintiff has been, and will continue to be, subjected to irreparable harm for which there is no adequate remedy at law unless and until this Court provides the injunctive relief requested.
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8. Plaintiff submits that all essential elements for the issuance of a preliminary injunction are present in this case: 1) a threat that Plaintiff will suffer irreparable injury if the injunction is not granted; 2) a substantial likelihood or probability that Plaintiff will prevail on the merits; 3) the threatened injury to Plaintiff outweighs any threat of harm to the Defendants; and 4) granting the preliminary injunction will not disserve the public interest.
WHEREFORE, Plaintiff respectfully requests that this Court enter a preliminary injunction enjoining Defendants from unconstitutionally censoring Plaintiff’s and other senders’ mail, and ordering Defendants to provide all senders of censored mail with constitutionally adequate due process notice and an opportunity to challenge Defendants’ censorship decisions.
Respectfully Submitted,
HONIGMAN MILLER SCHWARTZ AND COHN LLP
Attorneys for Plaintiff By: /s/ James Stewart James Stewart (P23254) Elizabeth C. Lamoste (P78500) Honigman Miller Schwartz & Cohn LLP 130 S. First Street, 4th Floor Ann Arbor, MI 48104-1386 734-418-4256 (Tel) 734-418-4257 (Fax) Email: jstewart@honigman.com
elamoste@honigman.com
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Dated: June 30, 2015

Lance Weber, Florida Bar #104550 Sabarish Neelakanta, Florida Bar #26623 Human Rights Defense Center Attorneys for Plaintiff PO Box 1151 Lake Worth, Florida 33460 561-360-2523 (Tel) Email: lweber@hrdc-law.org
sneelakanta@hrdc-law.org
Dan Manville (P39731) Director, Civil Rights Clinic Michigan State University College of Law Attorneys for Plaintiff 610 Abbot Road East Lansing, MI 48823 (517) 336-8088 Email: daniel.manville@law.msu.edu
Of Counsel:
Bruce E.H. Johnson Angela Galloway Davis Wright Tremaine LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 206-475-8069 (Tel) 205-757-7069 (Fax) Email: brucejohnson@dwt.com
angelagalloway@dwt.com

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UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRISON LEGAL NEWS a/k/a HUMAN RIGHTS DEFENSE CENTER, a Washington not-for-profit organization
Plaintiffs,
vs.
SHERIFF, ANTHONY M. WICKERSHAM, individually and in his official capacity; MICHELLE SANBORN, individually and in her official capacity; MACOMB COUNTY, MICHIGAN;DOES 1-10, individually and in their official capacities,
Defendants.
/

Case No. Hon.

James Stewart (P23254) Elizabeth C. Lamoste (P78500) Honigman Miller Schwartz & Cohn LLP Attorneys for Plaintiff 130 S. First Street, 4th Floor Ann Arbor, MI 48104-1386 734-418-4256 (Tel) 734-418-4257 (Fax) Email: jstewart@honigman.com
elamoste@honigman.com

Dan Manville (P39731) Director, Civil Rights Clinic Michigan State University College of Law Attorneys for Plaintiff 610 Abbot Road East Lansing, MI 48823 (517) 336-8088 Email: daniel.manville@law.msu.edu

Lance Weber, Florida Bar #104550 Sabarish Neelakanta, Florida Bar #26623 Human Rights Defense Center Attorneys for Plaintiff PO Box 1151 Lake Worth, Florida 33460 561-360-2523 (Tel) Email: lweber@hrdc-law.org
sneelakanta@hrdc-law.org /

BRIEF IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

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TABLE OF CONTENTS TABLE OF CONTENTS............................................................................................... i TABLE OF AUTHORITIES ....................................................................................... iii CONTROLLING AUTHORITY............................................................................... viii QUESTIONS PRESENTED........................................................................................ ix I. INTRODUCTION ...............................................................................................1 II. FACTUAL BACKGROUND..............................................................................1
A. Postcard-Only Mail Policy ........................................................................3 B. Book & Magazine Restriction...................................................................4 III. LEGAL STANDARD .........................................................................................4 IV. ARGUMENT.......................................................................................................5 A. PLN is Likely to Succeed on the Merits of Its Claims..............................5
i. First Amendment Claims .................................................................5 1. The Defendants’ Policy and Practice Bears No Rational Relation to Legitimate Penological Objectives .........................................................8 2. Defendants Have Failed to Provide Alternative Means for PLN to Exercise its First Amendment Rights .............................................................11 3. Accommodating PLN’s First Amendment Rights Would Impose No Significant Burden on Jail Officials or Other Inmates and Will Not Deplete the Jail’s Resources .........................12
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ii. Defendants’ Postcard Policy is an Exaggerated Response to Perceived Security Concerns .....................................12
iii. Defendants’ Policy Restricting Book Orders and Limiting Magazines to Twelve (12) Titles, excluding Prison Legal News, Violates the Equal Protection Clause.............................................13
iv. Defendants have Violated the Due Process Clause by Failing to Provide PLN with Adequate Notice and an Opportunity to Challenge Defendants’ Censorship .................................................................15
B. PLN Will Suffer Irreparable Harm in the Absence of Injunctive Relief..................................................................................17
C. The Balance of Equities Tips in PLN’s Favor ........................................19 D. Granting A Preliminary Injunction Serves the Public Interest ...............19 E. The Postcard Policy and the Publication
Restrictions Should be Enjoined in Full..................................................21 F. The Bond Requirement Should Be Waived ............................................22 V. CONCLUSION..................................................................................................23
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TABLE OF AUTHORITIES
I. Unites States Supreme Court Cases CBS, Inc. v. Davis,
510 U.S. 1315 (1994).........................................................................................18
Connick v. Myers, 461 U.S. 138 (1983).............................................................................................6
Cox v. Louisiana, 379 U.S. 536 (1965)...........................................................................................15
Craig v. Boren, 429 U.S. 190 (1976)...........................................................................................21
Eisenstadt v. Baird, 405 U.S. 438 (1972)...........................................................................................21
Elrod v. Burns, 427 U.S. 347 (1976).....................................................................................17, 18
Nebraska Press Ass’n v. Stuart, 427 U.S. 539 (1976)...........................................................................................19
Police Dep’t of Chicago v. Mosley, 408 U.S. 92 (1972).............................................................................................15
Procunier v. Martinez, 416 U.S. 396 (1974)................................................................................... Passim
Secretary of State of Md. v. Joseph H Munson Co., Inc., 467 U.S. 947 (1984)...........................................................................................21
Thornburgh v. Abbott, 490 U.S. 401 (1989)................................................................................... Passim
Turner v. Safley, 482 U.S. 78 (1987)..................................................................................... Passim
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Virginia v. Amer. Booksellers Ass’n, Inc., 484 U.S. 383 (1988)...........................................................................................21
II. United States Court of Appeals Cases Brooks v. Seiter,
779 F.2d 1177 (6th Cir. 1985) .............................................................................6
Cal. ex. rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319 (9th Cir. 1985) ...........................................................................22
Campbell v. Miller, 787 F.2d 217 (7th Cir. 1986) ...............................................................................7
Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286 (6th Cir. 2006) ..................................................................... viii, 14
Connection Distr. Co. v. Reno, 154 F.3d 281 (6th Cir. 1998) .......................................................................20, 21
Cornwell v. Dahlberg, 963 F.2d 912 (6th Cir. 1992) ...............................................................................7
Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) ............................................................. viii, 14
Déjà vu of Nashville, Inc. v. Metro Gov’t. of Nashville and Davidson County, Tenn.,
274 F.3d 377 (6th Cir. 2002) .............................................................................19
Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100 (6th Cir. 1982) ...............................................................................5
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n., 23 F.3d 1071 (6th Cir. 1994) .............................................................................18
Harbin-Bey v. Rutter, 420 F.3d 571 (6th Cir. 2005) ...............................................................................6
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In re Eagle-Picher Indus., Inc., 963 F.2d 855 (6th Cir. 1992) ...............................................................................5
Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628 (6th Cir. 2010) ....................................................................... viii, 5
Jones v. Caruso, 569 F.3d 258 (6th Cir. 2009) ..................................................................... Passim
Kincaid v. Rusk, 670 F.2d 737 (7th Cir. 1982) .............................................................................18
Klein v. City of San Clemente, 584 F.3d 1196 (9th Cir. 2009) ...........................................................................20
Mann v. Smith, 796 F.2d 79 (5th Cir. 1986) ...............................................................................18
Martin v. Kelley, 803 F.2d 236 (6th Cir. 1986)..................................................................... viii, 15
Merriweather v. Zamora, 569 F.3d 307 (6th Cir. 2009) ...............................................................................6
Muhammad v. Pitcher, 35 F.3d 1081 (6th Cir. 1994) ...............................................................................7
Montcalm Publ. Corp. v. Beck, 80 F.3d 105 (4th Cir. 1996) ...............................................................................17
Newsome v. Norris, 888 F.2d 371 (6th Cir. 1989) .............................................................................18
O’Bryan v. County of Saginaw, Michigan, 437 F.Supp. 582 (E.D. Mich. 1977) aff’d. 741 F.2d 283 (6th Cir. 1984) ...............................................................................6
Prison Legal News v. Cook, 238 F.3d 1145 (9th Cir. 2001) .......................................................................6, 18
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Prison Legal News v. Lehman, 397 F.3d 692 (9th Cir. 2005) ...................................................................7, 14, 18
Reed v. Faulkner, 842 F.2d 960 (7th Cir. 1988) ...............................................................................8
Sammartano v. First Jud. Dist. Ct., 303 F.3d 959 (9th Cir. 2002) .............................................................................20
Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113 (9th Cir. 2005) ...........................................................................22
Walker v. Sumner, 917 F.2d 382 (9th Cir. 1990) ...............................................................................8
III. United States District Court Cases ACLU v. Reno,
929 F. Supp. 824 (E.D. Pa. 1996)......................................................................20
Complete Angler, LLC v. City of Clearwater, 607 F. Supp. 2d 1326 (M.D. Fla. 2009) ............................................................23
Ctr. For Food Safety v. Vilsack, 753 F. Supp. 2d 1051 (N.D. Cal. 2010).............................................................22
Prison Legal News v. Columbia County, 942 F. Supp. 2d 1068 (D. Or. 2013)............................................................11, 13
Prison Legal News v. County of Ventura, 2014 WL 2736103 (C.D. Cal. 2014) .................................................................11
Prison Legal News v. Lewis County, 2014 U.S. Dist. LEXIS 126856 (W.D. Wash. 2014) ........................................10
Prison Legal News v. San Diego County, et al., Case No., 3:14-cv-02417-L-NLS (S.D. Cal. 2015)...........................................10
Prison Legal News v. Spokane County, cv-11-029 RHW (E.D. Wash. 2011) .................................................................11
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IV. Constitutional Provisions U.S. CONST., AMEND. I U.S. CONST., AMEND. XIV............................................................................................13
V. Federal Rules of Civil Procedure FED. R. CIV. P. 65(a)............................................................................................... viii, 4
VI. Secondary Sources Urban Institute’s Justice Policy Center, FROM THE CLASSROOM TO THE COMMUNITY: EXPLORING THE ROLE OF EDUCATION DURING INCARCERATION AND REENTRY (2009).............................................................................................................9 American Bar Association, Standard 23-8.6 “Written Communications,” in ABA STANDARDS FOR CRIMINAL JUSTICE: TREATMENT OF PRISONERS, 3RD EDITION (Washington D.C.: American Bar Association, 2011) ................................................10 Immigration and Customs Enforcement, “5.1 Correspondence and Other Mail” in 2011 OPERATIONS MANUAL ICE PERFORMANCE-BASED NATIONAL DETENTION STANDARDS (Washington, D.C.: U.S. Department of Homeland Security, 2011). ..........................................................................................10
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CONTROLLING AUTHORITY Plaintiff relies upon FED. R. CIV. P. 65(a); Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 635 (6th Cir. 2010) (setting out the four factors to consider when determining whether a preliminary injunction should issue); Thornburgh v. Abbott, 490 U.S. 401, 407 (1989) (recognizing the First Amendment right of prisoners to receive publications and other correspondence); Turner v. Safley, 482 U.S. 78, 84 (1987) (articulating four factors relevant to the question of whether a regulation is reasonably related to legitimate penological interests); Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 299 (6th Cir. 2006)) (describing requirements needed to demonstrate disparate treatment from others who were similarly situated); Martin v. Kelley, 803 F.2d 236 (6th Cir. 1986) (requiring prison mail censorship regulation provide notice and opportunity to appeal to both inmate and sender under the Fourteenth Amendment); Jones v. Caruso, 569 F.3d 258, 277 (6th Cir. 2009) (showing irreparable harm based on the denial of First Amendment rights in correctional settings), in support of its motion.
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QUESTIONS PRESENTED I. Whether Defendants violated Plaintiff’s and other senders’ First
Amendment rights by censoring publications and correspondence mailed to prisoners at Macomb County Jail pursuant to a postcardonly mail policy? Plaintiff answers: “Yes” Defendants presumptively answer: “No” II. Whether Defendants violated the Equal Protection Clause of the Fourteenth Amendment by limiting book orders through Amazon Prime only, and further limiting magazine subscriptions to twelve (12) titles, to the exclusion of Plaintiff and other publishers and book distributors? Plaintiff answers: “Yes” Defendants presumptively answer: “No” III. Whether Defendants failed to provide constitutionally adequate due process notice and an opportunity to appeal to senders of correspondence in violation of the Fourteenth Amendment? Plaintiff answers: “Yes” Defendants presumptively answer: “No”
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I. INTRODUCTION Defendants are in violation of the free speech, due process and equal protection clauses of the First and Fourteenth Amendments to the U.S. Constitution by improperly censoring publications and correspondence mailed to prisoners at Macomb County Jail (hereinafter, “Jail”) from Plaintiff, PRISON LEGAL NEWS, a/k/a Human Rights Defense Center (hereinafter “HRDC”; “PLN”; or “Plaintiff”) and other senders pursuant to the Jail’s mail policy. PLN hereby moves for a preliminary injunction enjoining Defendants from continuing to enforce their illegal mail policy, and from continuing to deprive senders of censored mail of their rights to equal protection and due process of law. A preliminary injunction should be granted because PLN will succeed on the merits of this action, because the violations of PLN’s constitutional rights are causing irreparable harm, because the balance of equities strongly weighs in PLN’s favor, and because an injunction would be in the public interest.
II. FACTUAL BACKGROUND Prison Legal News is a project of the non-profit Human Rights Defense Center. PLN publishes an award-winning, 72-page monthly journal entitled Prison Legal News. Declaration of Paul Wright in Support of Mtn. for Preliminary Injunction, filed herewith as Exhibit A (“Wright Decl.”), ¶¶ 2-4, 13. The journal provides information about legal issues, including access to courts, disciplinary
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hearings, prison and jail conditions, excessive force, and religious freedom. Id. ¶ 13.
Published continuously since 1990, Prison Legal News has thousands of subscribers in the United States and abroad, including prisoners, attorneys, journalists, public libraries, judges, and the general public. Id. ¶ 4. PLN is distributed to prisoners in more than 2,400 correctional facilities across the United States, including detainees at the Macomb County Jail, prisoners in the custody of the Michigan Department of Corrections, and the Federal Bureau of Prisons, including the ADX Supermax at Florence, Colorado, the most secure prison in the United States. Id. PLN also distributes approximately fifty (50) legal and self-help books, including The Habeas Citebook: Ineffective Assistance of Counsel, which describes the procedural and substantive complexities of Federal habeas corpus litigation. Id. ¶¶ 14-15. The core of PLN’s mission is public education, advocacy and outreach to assist prisoners who seek legal redress for infringements of their constitutional and human rights. Id. ¶ 2.
Defendants have censored the following materials from PLN: (1) Informational brochure packets; (2) Sample copies of Prison Legal News; (3) 2014 annual fundraiser mailings; (4) copies of judicial decisions; (5) Monthly Subscription issues of Prison Legal News; and (6) individual copies of The Habeas Citebook: Ineffective Assistance of Counsel. Id. ¶ 10. Altogether, since July 2014,
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Defendants have censored PLN’s monthly journal, books and other

correspondence on at least 245 occasions. Id. ¶ 10.

Additionally, copies of Prison Legal News and The Habeas Citebook were

never delivered to prisoners, and no notice of the censorship or opportunity to

appeal was given to PLN. Id. ¶ 10. PLN is unaware of how or in what manner

Defendants disposed of these items. Id. ¶ 11. Other mail was returned to PLN, at

its own expense, and contained two (2) different stickers providing for an appeal of

the censorship within twenty (20) days. Id. ¶ 12. The stickers read as follows:

• “MAIL DENIED. Does not meet institutional criteria. Appeals may be directed in writing within 20 days to Jail Administration Mail Appeal;”

• “Not in form of approved postcard *NOTE. Plain White METERED POSTCARDS ONLY 5” X 7” or smaller NO IMAGES/NO STICKERS/NO STAMPS”

On at least two (2) of the items of returned correspondence, no stickers were

provided regarding an appeal process. Id. ¶¶ 11-12.

Defendants’ illegal conduct stems from the following two (2) mail policies:

A.

Postcard-Only Mail Policy

Defendants instituted a postcard-only mail policy that restricts all incoming

non-privileged correspondence to metered, 5x7 white postcards. Id. ¶ 10, Ex. A-8.

Consequently, because PLN’s publications and other correspondence do not fit on

postcards, Defendants have censored its mail. Id. ¶ 10. Restricting the speech of

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PLN and other senders of censored mail to postcards only is not rationally related

to a legitimate penological interest.

B.

Book & Magazine Restriction

Defendants’ arbitrary restriction of magazines to only twelve (12) titles does

not have a rational relationship to any legitimate penological interest. Defendants

only permit the following twelve (12) magazine titles: People, Field & Stream,

Newsweek, Outside, Time, Money, Reader’s Digest, O the Oprah Magazine, Men’s

Fitness, Shape, Martha Stewart Living and Parenting. Prison Legal News is not

on the list of approved magazines. Id. ¶ 13, Ex. A-8. This violates PLN’s First

Amendment right to communicate its speech with prisoners, and its right to Equal

Protection under the Fourteenth Amendment.

Equally infirm is Defendants’ policy limiting book orders to those from

Amazon Prime only, which denies PLN and other book distributors their

Constitutional rights to free speech under First Amendment and equal protection

under the Fourteenth Amendment.

III. LEGAL STANDARD

A preliminary injunction is appropriate where a plaintiff demonstrates “[1]

that he is likely to succeed on the merits, [2] that he is likely to suffer irreparable

harm in the absence of preliminary relief, [3] that the balance of equities tips in his

favor, and [4] that an injunction is in the public interest.” FED. R. CIV. P. 65(a);

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Int’l Dairy Foods Ass’n v. Boggs, 622 F.3d 628, 635 (6th Cir. 2010). The four considerations are not meant to be “prerequisites that must be
satisfied” or “rigid and unbending requirements.” In re Eagle-Picher Indus., Inc., 963 F.2d 855, 859 (6th Cir. 1992). Rather, the factors should be balanced and used to guide the discretion of the court. Id.; Friendship Materials, Inc. v. Mich. Brick, Inc., 679 F.2d 100, 102 (6th Cir. 1982).
“Notwithstanding this balancing approach, ‘when a party seeks a preliminary injunction on the basis of a potential violation of the First Amendment, the likelihood of success on the merits often will be the determinative factor.’ In short ‘because the questions of harm to the parties and the public interest cannot be addressed properly in the First Amendment context without first determining if there is a constitutional violation, the crucial inquiry often is ... whether the regulation at issue is likely to be found constitutional.’” Jones v. Caruso, 569 F.3d 258, 266 (6th Cir. 2009) (internal citation omitted).
IV. ARGUMENT A. PLN is Likely to Succeed on the Merits of Its Claims
i. First Amendment Claims “Prison walls do not form a barrier separating prison inmates from the protections of the Constitution,” Turner v. Safley, 482 U.S. 78, 84 (1987), nor do they bar others “from exercising their own constitutional rights by reaching out to those on the ‘inside,’” Thornburgh v. Abbott, 490 U.S. 401, 407 (1989). See also
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Merriweather v. Zamora, 569 F.3d 307, 316 (6th Cir. 2009); Harbin-Bey v. Rutter, 420 F.3d 571, 578 (6th Cir. 2005). In Brooks v. Seiter, the Sixth Circuit stated:
The Supreme Court has made it clear that prison inmates retain all first amendment rights not incompatible with their status as prisoners, or with the legitimate penological objectives of the corrections system. The Court has recognized that receiving mail from an outside source, an interest in communication shared by prisoners and their correspondents, is such a first amendment right. This right is subject to restriction in the interests of prison security, but such restrictions must further legitimate penological objectives, in a manner no more restrictive than necessary. 779 F.2d 1177, 1180 (6th Cir. 1985) (internal quotations and citations omitted); see also O’Bryan v. County of Saginaw, Mich., 437 F.Supp. 582, 600 (E.D. Mich. 1977), aff’d. 741 F.2d 283 (6th Cir. 1984) (“pretrial detainees have an unqualified right to receive any publication which is legally available to members of the public generally” and “the prohibition against prior restraints forbids defendants from curtailing a pretrial detainee’s right to receive publications”). Notably, PLN’s correspondence with prisoners is “core protected speech” and “occupies the ‘highest rung of the hierarchy of First Amendment values,’ and is entitled to special protection.” Connick v. Myers, 461 U.S. 138, 145 (1983) (internal citation omitted); see also Prison Legal News v. Cook, 238 F.3d 1145, 1149 (9th Cir. 2001) (“[PLN’s speech] is core protected speech, not commercial speech or speech whose content is objectionable on security or other grounds.”). While this case involves the free speech rights of free persons, and not of
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prisoners, PLN assumes that the Court will employ the Turner test as a means of ensuring that any injunctive relief incorporates due deference for the exigencies of jail operation. See Jones, 569 F.3d at 266 (citing Turner, 482 U.S. at 89-91); see also Cornwell v. Dahlberg, 963 F.2d 912, 917 (6th Cir. 1992).
First, under Turner, “there must be a ‘valid, rational connection’ between the prison regulation and the legitimate governmental interest put forward to justify it.” Turner, 482 U.S. at 89 (internal citation omitted); see also Muhammad v. Pitcher, 35 F.3d 1081, 1084 (6th Cir. 1994). The first factor is sine qua non: “if a regulation is not rationally related to a legitimate and neutral penological objective, a Court need not reach the remaining three factors.” Prison Legal News v. Lehman, 397 F.3d 692, 699 (9th Cir. 2005). Importantly, the Supreme Court did not intend for the judiciary to merely rubberstamp the decisions of prison officials. Rather, the Turner court explained that “a regulation cannot be sustained where the logical connection between the regulation and the asserted goal is so remote as to render the policy arbitrary or irrational.” 482 U.S. at 89-90; see also Thornburgh, 490 U.S. at 414 (“reasonableness standard is not toothless.”); Campbell v. Miller, 787 F.2d 217, 227 n.17 (7th Cir. 1986) (“[D]eference to the administrative expertise and discretionary authority of correction officials must be schooled, not absolute.”). Simply put, Defendants must identify specific penological interests involved and demonstrate that those specific interests are the actual bases for their
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policies and that the policies are reasonably related to the furtherance of the identified interests. An evidentiary showing is required as to each point. Walker v. Sumner, 917 F.2d 382, 386 (9th Cir. 1990). The government may not pile “conjecture upon conjecture” to justify infringement of constitutional rights. Reed v. Faulkner, 842 F.2d 960, 963-64 (7th Cir. 1988).
If the second factor is reached, the Court would determine “whether there are alternative means of exercising the right that remain open,” allowing “other avenues” for the “asserted right.” Turner, 482 U.S. at 90. The third factor requires the Court to assess “the impact accommodation of the asserted constitutional right will have on guards and other inmates, and on the allocation of prison resources generally.” Id. Fourth and finally, the Court would determine whether “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.” Id. If a ready alternative fully accommodates the claimant’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.
1. The Defendants’ Policy and Practice Bears No Rational Relation to Legitimate Penological Objectives
The Court first must determine whether Defendants’ postcard-only policy is rationally related to a legitimate penological interest. Although security concerns can be a valid penological interest, the postcard-only policy is not rationally related
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to meeting these penological objectives. John Clark, a corrections expert with 40 years of experience, including as the Warden of large federal detention facilities, has opined that “[t]his policy is contrary to widely accepted detention practices” and that “there is no valid, rational connection between a postcard-only mail policy and any security interest.” Declaration of John Clark in Support of Mtn. for Preliminary Injunction, filed herewith as Exhibit B (“Clark Decl.”), ¶¶ 2, 28, 13. Jails have a variety of means through which they can intercept contraband that might be sent to inmates by mail - techniques used successfully for decades. Clark Decl. ¶ 29.
Letters, book catalogs, and written communications other than postcards often contain core political and social speech or invite the reader to request such speech, as PLN’s subscription brochures and book offers do. Letters facilitate the exchange of views on poor jail conditions and how to alleviate them, on legal rights, on how to address private medical, psychological, and educational needs. The Urban Institute’s Justice Policy Center, From the Classroom to the Community: Exploring the Role of Education During Incarceration and Reentry (2009), noted the link between public safety and reading:
Research demonstrates that education can change thinking, encourage pro-social behavior, increase employment, and reduce recidivism. Education’s power to transform lives in both tangible and intangible ways makes it one of the most valuable and effective tools we may have for helping people rebuild their lives after incarceration, as well as for combating crime and reducing criminal justice costs.
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Wright Decl., Ex. A-9 at 42. The American Bar Association has also underscored the importance of mail to prisoners noting that “[m]ail is a crucial method by which prisoners maintain and build familial and community ties.” Wright Decl., Ex. A-10 at 180. Even the national detention standards for U.S. Immigration and Customs Enforcement facilities state that “[f]acilities shall not limit detainees to postcards and shall allow envelope mailings.” Wright Decl., Ex. A-11 at 328. The Supreme Court has also recognized that “the weight of professional opinion seems to be that inmate freedom to correspond with outsiders advances rather than retards the goal of rehabilitation.” Procunier v. Martinez, 416 U.S. 396, 412–13 (1974), overruled in part by Thornburgh, 490 U.S. at 413–14. The lack of privacy and space available on a postcard cuts off opportunities to communicate that are already very limited for inmates. Clark Decl., ¶¶ 33-34. Such restrictions are harmful because inmates are often easier to manage in custody when they are connected with friends and family in the outside world. Clark Decl., ¶ 30. Policies that limit written communication also undermine public safety because they keep inmates from developing the relationships with the outside world they need to prepare themselves for a productive life beyond bars. Clark Decl. ¶¶ 9, 30-31.
Plaintiff has successfully enjoined postcard-only policies at other county jails. See e,g., Prison Legal News v. San Diego County, et al., Case No., 3:14-cv02417-L-NLS, Dkt. No. 43 (S.D. Cal. 2015), Exhibit C; Prison Legal News v.
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2:15-cv-12350-AC-MJH Doc # 2 Filed 06/30/15 Pg 26 of 40 Pg ID 55
Lewis County, Case No., 14-cv-05304 (JRC), 2014 U.S. Dist. LEXIS 126856 (W.D. Wash. Sept. 10, 2014), Exhibit D; Prison Legal News v. County of Ventura, Case No.: cv-14-773-GHK (EX), 2014 WL 2736103 (C.D. Cal. June 16, 2014), Wright Decl., ¶¶ 22, Ex. A-7, Exhibit E; Prison Legal News v. Columbia County 942 F. Supp. 2d 1068 (D. Or. 2013); Prison Legal News v. Spokane County, Case No., 2:11-cv-029 RHW, Dkt. No. 109 (E.D. Wash. 2011), Exhibit F.
2. Defendants Have Failed to Provide Alternative Means for PLN to Exercise its First Amendment Rights
Because Defendants’ postcard-only policy fails under the first Turner prong, this Court need not reach the remaining three prongs. The policy, however, also fails the second prong of Turner, which considers whether the policy allows “alternative means of exercising” the First Amendment rights at issue here. Turner, 482 U.S. at 90.
PLN has no other reasonable, alternative ways to ensure inmates receive this information. PLN cannot print its entire seventy-two (72) page journal, the content of its books, an entire legal decision, or the information contained in its brochures, forms, and book lists on postcards. Also, some of PLN’s source material is written by prisoners. Wright Decl., ¶ 9. PLN sends recent court decisions or other jailrelated information to prisoners in order for them to write articles for publication in PLN. Id. The postcard-only mail policy forecloses this avenue of communication by making the delivery of these source documents impossible. Id.
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3. Accommodating PLN’s First Amendment Rights Would Impose No Significant Burden on Jail Officials or Other Inmates and Will Not Deplete the Jail’s Resources
Under the third Turner factor, Defendants must establish that accommodating PLN’s First Amendment rights would negatively impact the jail, including its inmates and staff, and its resources. Requiring the Jail to inspect enveloped mail sent to inmates would not create a significant burden on jail officials. Turner, 482 U.S. at 90; Thornburgh, 490 U.S. at 418; Clark Decl., ¶ 36. Defendants would simply have to inspect and deliver PLN’s correspondence in the same way that staff persons at thousands of jails and prisons do every day. Id. As to the impact on inmates, censoring PLN’s materials only hinders rehabilitative efforts by depriving inmates of educational reading material. Clark Decl., ¶¶ 10, 14.
ii. Defendants’ Postcard Policy is an Exaggerated Response to Perceived Security Concerns
Under the fourth factor, the Court must examine whether “the existence of obvious, easy alternatives may be evidence that the regulation is not reasonable, but is an ‘exaggerated response’ to prison concerns.” Turner, 482 U.S. at 90. If a ready alternative fully accommodates PLN’s rights at de minimis cost to penological interests, this serves as evidence that the regulation does not satisfy the reasonable relationship standard. Id. at 91. Moreover, “the policies followed at other well-run institutions [are] relevant to a determination of the need for a
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particular type of restriction.” Procunier, 416 U.S. at 414 n.14. Even if PLN’s correspondence presented a genuine threat to institutional
security or staff time management – which it does not – a ready solution exists. As noted above, jail staff could remove the correspondence from its envelope, review its contents for contraband, and deliver it to its intended recipient. See Clark Decl. ¶ 29; Prison Legal News v. Columbia County, 942 F. Supp. 2d 1068, 1083 (D. Or. 2013) (relevant comparison is not to compare Defendants’ policy to a “no inspection” mail policy, but to compare it to situation in which Jail staff inspect incoming mail). This alternative fully addresses PLN’s First Amendment rights at little to no cost to Defendants’ penological interests in safety.
iii. Defendants’ Policy Restricting Book Orders and Limiting Magazines to Twelve (12) Titles, excluding Prison Legal News, Violates the Equal Protection Clause
Defendants’ mail policy limits magazines to twelve (12) select titles, and does not allow book orders from any publisher or book distributor other than Amazon Prime. Wright Decl. ¶ 13. This differential treatment deprives Plaintiff, book distributors and other publishers equal protection under the law. The Equal Protection Clause provides that a state may not “deny to any person within its jurisdiction the equal protection of the laws.” U.S. CONST., AMEND. XIV, § 1. “To state an equal protection claim, a plaintiff must adequately plead that the government treated the plaintiff disparately ‘as compared to similarly situated persons and that such disparate treatment either burdens a fundamental right,
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targets a suspect class, or has no rational basis.’” Ctr. for Bio-Ethical Reform, Inc. v. Napolitano, 648 F.3d 365, 379 (6th Cir. 2011) (quoting Club Italia Soccer & Sports Org., Inc. v. Charter Twp. of Shelby, 470 F.3d 286, 299 (6th Cir. 2006)).
PLN distributes books and magazines to over 2,400 correctional facilities around the country. Wright Decl. ¶ 4. In the past 25 plus years of publishing, Plaintiff is not aware of any incidents where Prison Legal News or any of the books that it distributes has threatened the security and good order of a jail or prison in the Unites States. Id. at 7. PLN’s books provide information on legal and educational issues, as well as health care, and do not threaten the security of jails and prisons across the U.S. where they are regularly delivered. Id. at 14. Indeed, any claim that censoring Plaintiff’s magazine and its books have made a qualitative difference in jail security is not supported by fact or reason. As in any jail, all magazines, books and other correspondence are reviewed for unauthorized content and for any security issues. Indeed, the Jail currently accepts and ostensibly reviews twelve (12) assorted magazines for any security threats. Any minimal effect on staff time does not justify restrictions on access to PLN’s magazine or its First Amendment rights. See Lehman, 397 F.3d at 700 (rejecting regulation designed to reduce volume of mail). Additionally, the Jails can set reasonable limits on how much property a prisoner can possess in his or her cell to address any purported security concerns caused by possession of such materials.
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Further, any claim that the content of Prison Legal News or the books it
sends to prisoners are a threat to jail security similarly fails. When a state entity
discriminates between speakers based on the views expressed by each, it is
“censorship in a most odious form, unconstitutional under the First and Fourteenth
Amendments.” Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 97-98 (1972)
(quoting Cox v. Louisiana, 379 U.S. 536, 580 (1965)). When Defendants
selectively enforce their policies to discriminate against speakers like Plaintiff, it
violates the rights of PLN and other senders to free speech and equal protection. iv. Defendants have Violated the Due Process Clause by Failing to Provide PLN with Adequate Notice and an Opportunity to Challenge Defendants’ Censorship A publisher’s right to communicate with prisoners is rooted not only in the
First Amendment, but also protected by the Fourteenth Amendment as:
[T]he decision to censor or withhold delivery of a particular letter must be accompanied by minimum procedural safeguards. The interest of prisoners and their correspondents in uncensored communication by letter, grounded as it is in the First Amendment, is plainly a “liberty” interest within the meaning of the Fourteenth Amendment even though qualified of necessity by the circumstance of imprisonment. As such, it is protected from arbitrary governmental invasion . . .
Procunier, 416 U.S. at 417-18. In Martin v. Kelley, the Sixth Circuit held that a
prison mail censorship regulation must provide that notice and opportunity to
appeal to both the inmate and the sender because:
Without notifying the free citizen of the impending rejection, he would not be able to challenge the decision which may infringe his
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right to free speech . . . [and] since the inmate-recipient would not have seen the contents of the withheld letter, he may require the aid of the author to meaningfully challenge the rejection decision. 803 F.2d 236, 244 (6th Cir. 1986). The Constitution requires prison officials to afford notice and an opportunity to appeal their censorship decisions. See, e.g., Procunier, 416 U.S. at 418-19 (requiring “that an inmate be notified of the rejection of a letter written by or addressed to him, that the author of that letter be given a reasonable opportunity to protest that decision, and that complaints be referred to a prison official other than the person who originally disapproved the correspondence.”). Defendants failed to provide constitutionally mandated due process to publishers and other senders of prisoner mail. Books and monthly subscriptions of Prison Legal News were never provided to prisoners, and no notice of the censorship or opportunity to appeal was afforded to PLN. Wright Decl. ¶ 10. As discussed supra, other correspondence was returned to PLN, at its own expense, and contained two (2) different stickers providing for an appeal of the censorship, while others contained no sticker at all. Such inconsistencies and the complete failure to provide adequate and timely notice underscore Defendants’ inability to conform their behavior to constitutionally mandated requirements, requiring an injunction. Indeed, by returning censored items to the sender without a hearing the Jail no longer has the
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material to review if any sender or prisoner were to contest the rejection. Also, providing notice and an opportunity to be heard is important because it allows publishers to investigate and to challenge violations of their First Amendment rights, as well as to assist subscribers in filing challenges to such violations within the correctional grievance system. See Montcalm Publ. Corp. v. Beck, 80 F.3d 105, 108-109 (4th Cir. 1996) (stating that notice to the prisoner alone is insufficient because “[a]n inmate who cannot even see the publication can hardly mount an effective challenge to the decision to withhold that publication”).
Correctional facilities in other jurisdictions provide due process to senders and prisoners when refusing to deliver publications and other correspondence. The Federal Bureau of Prisons has an explicit policy requiring it to notify prisoners and publishers, identifying the specific articles or materials rejected and allowing independent review of a warden’s rejection decision. See Thornburgh, 490 U.S. at 406. This policy was upheld by the United States Supreme Court and acts as a model for other correctional facilities. Id.
B. PLN Will Suffer Irreparable Harm in the Absence of Injunctive Relief
The Supreme Court has held that “the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976).
Courts have repeatedly found irreparable harm based on the denial of First
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Amendment rights in correctional settings. See, e.g., Jones v. Caruso, 569 F.3d 258, 277-279 (6th Cir. 2009) (affirming grant of preliminary injunction against prison publication policy) (quoting Elrod, 427 U.S. at 373); G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1078-79 (6th Cir. 1994) (“[V]iolations of [F]irst [A]mendment rights constitute per se irreparable injury.”) (internal citation omitted); Newsome v. Norris, 888 F.2d 371, 378 (6th Cir. 1989) (“[E]ven minimal infringement upon First Amendment values constitutes irreparable injury sufficient to justify injunctive relief.”); Lehman, 397 F.3d at 699-700; Cook, 238 F.3d at 1151; Mann v. Smith, 796 F.2d 79, 82-83 (5th Cir. 1986); Kincaid v. Rusk, 670 F.2d 737, 744 (7th Cir. 1982). By demonstrating a likelihood of success on the merits of its First Amendment claim, PLN has also demonstrated irreparable harm.
To meet its mission, PLN must deliver its publications and correspondence to inmates quickly, by covering recent events and judicial decisions that—if delivery is delayed—may be stale upon arrival or may no longer be relevant to an inmate whose legal filing deadline has passed. See CBS, Inc. v. Davis, 510 U.S. 1315, 1318 (1994) (“[I]ndefinite delay of [a] broadcast will cause irreparable harm to the news media that is intolerable under the First Amendment.”). If PLN loses the opportunity to deliver its materials to an inmate, it has lost the window of opportunity in which to communicate with that inmate at a time when the
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information will be most useful and effective. Furthermore, if Defendants are not ordered to provide notice of the materials they are refusing to deliver, PLN will not know which materials are allowed to enter Defendants’ facilities and which materials are rejected.
C. The Balance of Equities Tips in PLN’s Favor Here, the irreparable harm suffered by PLN is concrete, severe, and ongoing. In contrast, any potential injuries to the Defendants are minimal and speculative. No great cost or expenditure of time is required to lift the policies to allow PLN to communicate with prisoners and afford constitutionally required due process. Accordingly, the balance of equities tips in PLN’s favor given the irreparable harm suffered by PLN if a preliminary injunction does not issue. As the Sixth Circuit stated in Déjà vu of Nashville, Inc. v. Metro Gov’t. of Nashville and Davidson County, Tenn., 274 F.3d 377, 400 (6th Cir. 2002): “If the Plaintiff shows a substantial likelihood that the challenged law is unconstitutional, no substantial harm to others can be said to inhere in its enjoinment.” D. Granting A Preliminary Injunction Serves the Public Interest The First Amendment furthers a compelling public interest. “[P]rior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976). Once again, “the determination of where the public interest lies also is dependent on a determination of the likelihood of success on the merits
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of the First Amendment challenge because it is always in the public interest to prevent the violation of a party’s constitutional rights.” Connection Distr. Co. v. Reno, 154 F.3d 281, 288 (6th Cir. 1998) (internal citations omitted). See also Klein v. City of San Clemente, 584 F.3d 1196, 1208 (9th Cir. 2009) (Courts have “consistently recognized the ‘significant public interest’ in upholding free speech principles,” quoting Sammartano v. First Jud. Dist. Ct., 303 F.3d 959, 974 (9th Cir. 2002)); ACLU v. Reno, 929 F. Supp. 824, 851 (E.D. Pa. 1996) (“No long string of citations is necessary to find that the public interest weighs in favor of having access to a free flow of constitutionally protected speech.”). This inquiry “primarily addresses impact on non-parties rather than parties.” Sammartano, 303 F.3d at 974. The public has an important interest in protecting the “marketplace of ideas” wherever it may be found, and in the continued vitality of the Bill of Rights. This speaks to the hunger for expressive freedom that Justice Thurgood Marshall described in Procunier, 416 U.S. at 428 (Marshall, J., concurring) (“When the prison gates slam behind an inmate, he does not lose his human quality; his mind does not become closed to ideas; his intellect does not cease to feed on a free and open interchange of opinions …. It is the role of the First Amendment and this Court to protect those precious personal rights by which we satisfy such basic yearnings of the human spirit.”).
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E. The Postcard Policy and the Publication Restrictions Should be Enjoined in Full
Defendants’ postcard-only policy and unfair magazine restriction should be enjoined in full, not just as to PLN, because it has third party standing to assert the rights of other organizations and individuals who correspond with prisoners at the Jail. “Facial challenges to overly broad statutes are allowed not primarily for the benefit of the litigant, but for the benefit of society--to prevent the statute from chilling the First Amendment rights of other parties not before the court.” Secretary of State of Md. v. Joseph H Munson Co., Inc., 467 U.S. 947, 958 (1984); see also e.g., Eisenstadt v. Baird, 405 U.S. 438, 445 n.5 (1972) (noting “in First Amendment cases we have relaxed our rules of standing without regard to the relationship between the litigant and those whose rights he seeks to assert precisely because application of those rules would have an intolerable, inhibitory effect on freedom of speech.”); Virginia v. Amer. Booksellers Ass’n, Inc., 484 U.S. 383, 392-393 (1988) (finding that booksellers had standing based on the rights of nonparty potential book buyers); Connection Distr. Co., 154 F.3d at 295 (holding that publisher had standing to assert freedom of association rights of its readers).
The Supreme Court has instructed that when claims are presented vigorously and resolution of the merits would be an efficient use of judicial resources, the claims of third parties should not wait for another day. Craig v. Boren, 429 U.S. 190, 193-94 (1976) (“[A] decision by us to forgo consideration of the
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constitutional merits in order to await the initiation of a new challenge to the statute by injured third parties would be impermissibly to foster repetitive and time-consuming litigation under the guise of caution and prudence.”). The parties and the Court here are expending significant resources on the issue of the constitutionality of the jail’s mail policies, so an injunction limited to correspondence from PLN would be contrary to judicial economy and interfere with the interests of non-parties who could benefit from court-ordered relief now, while the inmates they wish to correspond with are still in the Jail.
F. The Bond Requirement Should Be Waived Under Federal Rule of Civil Procedure 65(c), district courts have discretion to determine the amount of the bond accompanying a preliminary injunction, and this includes the authority to set no bond or only a nominal bond. See Save Our Sonoran, Inc. v. Flowers, 408 F.3d 1113, 1126 (9th Cir. 2005) (“The court has discretion to dispense with the security requirement, or to request mere nominal security, where requiring security would effectively deny access to judicial review.”) (quoting Cal. ex. rel. Van De Kamp v. Tahoe Reg’l Planning Agency, 766 F.2d 1319, 1325 (9th Cir. 1985)); Ctr. For Food Safety v. Vilsack, 753 F. Supp. 2d 1051, 1061–62 (N.D. Cal. 2010) (waiving bond requirement for small non-profit organization suing government entity because bond would effectively deny access to judicial review).
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Waiving the bond requirement is appropriate here because PLN is a project of a small non-profit organization of fifteen employees that would be unable to post anything more than a nominal bond. Wright Decl. ¶ 24. A bond requirement would effectively deny access to judicial review for PLN, which is especially harmful because PLN is alleging violations of its fundamental rights under the Constitution. See Complete Angler, LLC v. City of Clearwater, 607 F. Supp. 2d 1326, 1335 (M.D. Fla. 2009) (“Waiving the bond requirement is particularly appropriate where a plaintiff alleges the infringement of a fundamental constitutional right.”).
V. CONCLUSION For the foregoing reasons, PLN respectfully requests that the Court enter an Order granting Plaintiff’s Motion for a Preliminary Injunction and providing for other relief as is appropriate.
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Respectfully Submitted,
HONIGMAN MILLER SCHWARTZ AND COHN LLP
Attorneys for Plaintiff
By: /s/ James Stewart James Stewart (P23254) Elizabeth C. Lamoste (P78500) Honigman Miller Schwartz & Cohn LLP 130 S. First Street, 4th Floor Ann Arbor, MI 48104-1386 734-418-4256 (Tel) 734-418-4257 (Fax) Email: jstewart@honigman.com
elamoste@honigman.com
Lance Weber, Florida Bar #104550 Sabarish Neelakanta, Florida Bar #26623 Human Rights Defense Center Attorneys for Plaintiff PO Box 1151 Lake Worth, Florida 33460 561-360-2523 (Tel) Email: lweber@hrdc-law.org
sneelakanta@hrdc-law.org
Dan Manville (P39731) Director, Civil Rights Clinic Michigan State University College of Law Attorneys for Plaintiff 610 Abbot Road East Lansing, MI 48823 (517) 336-8088 Email: daniel.manville@law.msu.edu
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Dated: June 30, 2015

Of Counsel:
Bruce E.H. Johnson Angela Galloway Davis Wright Tremaine LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101 206-475-8069 (Tel) 205-757-7069 (Fax) Email: brucejohnson@dwt.com
angelagalloway@dwt.com

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 2:15-cv-12350-AC-MJH Doc # 48 Filed 05/11/16 Pg 1 of 2 Pg ID 691

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRISON LEGAL NEWS, a/k/a HUMAN RIGHTS DEFENSE CENTER, a Washington not-for-profit organization,

Plaintiff, -vs-

Case No. 15-12350 Hon. AVERN COHN

SHERIFF ANTHONY WICKERSHAM, individually and in his official capacity, MICHELE SANBORN, individually and in her official capacity, MACOMB COUNTY, MICHIGAN, and DOES 1-10,

Defendants ________________________________________/

ORDER BIFURCATING CLAIMS and
SETTING DATE FOR FINAL PRETRIAL CONFERENCE I.
This is an 18 USC §1983 case involving distribution of a publication, Prison Legal News, to the inmates of the Macomb County Jail. The complaint (Doc. 1) asserts claims for injunctive relief and money damages. The former will be tried to the Court; the latter call for trial by jury.
The claims for injunctive relief are BIFURCATED from the claims for money damages, and will be tried first.

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II. A. A final pretrial conference on the injunctive relief claims will be held on June 27, 2016, at 10:00 am, at which the parties shall file with the Court: 1. A list of the witnesses to be called at trial accompanied by a brief description of each witness’ testimony. 2. A list of the exhibits, full text, numbered for trial together with a copy of each exhibit with relevant language highlighted. The exhibits themselves shall not be filed; the exhibits shall be lodged with the Court. B. Plaintiff shall lodge with the Court at the final pretrial conference a draft of the injunctive relief order, full text, that it will request of the Court to enter if it prevails. III. The Court will entertain no further efforts at resolving the case short of trial. An excessive amount of time has been spent in such an effort, apparently to no avail. SO ORDERED.

Dated: May 11, 2016

s/Avern Cohn AVERN COHN UNITED STATES DISTRICT JUDGE

S:\LORI\CASES\Prison Legal News v. Wickersham, et al\Bifurcation Order.wpd

2

 
 Case 2:15-cv-12350-AC-MJH ECF No. 49 filed 06/17/16 PageID.693 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

PRISON LEGAL NEWS a/k/a HUMAN RIGHTS DEFENSE CENTER, a Washington not-for-profit organization

Plaintiff, vs.

Case No. 2:15-cv-12350 Hon. Avern Cohn Mag. Judge Michael Hluchaniak

SHERIFF, ANTHONY M. WICKERSHAM, individually and in his official capacity; MICHELLE SANBORN, individually and in her official capacity; MACOMB COUNTY, MICHIGAN; DOES 1-10, individually and in their official
capacities,

Defendants.
James Stewart (P23254) Elizabeth C. Lamoste (P78500) Honigman Miller Schwartz & Cohn LLP Attorneys for Plaintiff 130 S. First Street, 4th Floor Ann Arbor, MI 48104-1386 734-418-4256 (Tel) 734-418-4257 (Fax) Email: jstewart@honigman.com
elamoste@honigman.com

/ Dan Manville (P39731) Director, Civil Rights Clinic Michigan State University College of Law Attorney for Plaintiff 610 Abbot Road East Lansing, MI 48823 (517) 336-8088 Email: daniel.manville@law.msu.edu

Lance Weber, Florida Bar #104550 Sabarish Neelakanta, Florida Bar #26623 Human Rights Defense Center Attorneys for Plaintiff PO Box 1151 Lake Worth, Florida 33460 (561) 360-2523 (Tel) Email: lweber@hrdc-law.org
sneelakanta@hrdc-law.org

John A. Schapka (P36731) Attorney for Defendants Macomb County Corporation Counsel One South Main Street Mount Clemens, Michigan 48043 (586) 469-6346 Email: john.schapka@macombgov.org

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STIPULATED INJUNCTION Page 1 of 7

Case 2:15-cv-12350-AC-MJH ECF No. 49 filed 06/17/16 PageID.694 Page 2 of 7

1. On June 30, 2015 Plaintiff Prison Legal News, a/k/a Human Rights Defense Center (“PLN” or “Plaintiff”) filed suit in the above-captioned matter seeking injunctive and declaratory relief, damages, and attorney’s fees and costs. Plaintiff’s complaint alleges an unlawful and unconstitutional custom, practice, or policy regarding the delivery of incoming publications and correspondence to prisoners at the Macomb County Detention Facility (the “Jail”) in violation of the First and Fourteenth Amendments to the United States Constitution.
2. Specifically, Defendants have rejected publications and other correspondence pursuant to a mail policy which requires all non-privileged mail to be in the form of a postcard, restricts magazines to just twelve (12) titles, and limits books to those ordered directly from Amazon Prime only.
3. Plaintiff alleges that Defendants have censored Plaintiff’s: (1) informational brochure packets; (2) sample copies of its monthly journal, Prison Legal News; (3) 2014 annual fundraiser mailings; (4) copies of judicial decisions; (5) monthly subscription issues of Prison Legal News; and (6) individual softcover copies of the book, The Habeas Citebook: Ineffective Assistance of Counsel.
4. On July 21, 2015 Defendants filed an answer denying the allegations in Plaintiff’s complaint and raising various affirmative defenses.
5. The Parties agree that Defendants have disputed, and continue to dispute and deny liability in this case. However, in order to avoid the expense,

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delay, uncertainty, and burden of litigation, the Parties agree to the entry of this stipulated injunction.
6. ACCORDINGLY, the COURT HEREBY ORDERS, ADJUDGES AND DECREES that:
a. Defendants shall deliver all publications to prisoners directly from any Publisher. For the purposes of this injunction, the term Publisher shall mean any publisher, book store or book distributor that does mail order business. The term publication means a book, booklet, pamphlet, magazine, periodical, newsletter, newspaper, or similar document; and
b. Defendants may censor a publication only if it is determined to be detrimental to the security, good order, or discipline of the institution or if it might facilitate criminal activity. Defendants may not censor a publication solely because its content is religious, philosophical, political, social or sexual, or because its content is unpopular or repugnant.
c. Consistent with the terms hereof, Defendants shall deliver any other documents, correspondence, or other mail from Plaintiff and other Publishers and senders of mail.
d. Defendants shall deliver:

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i. Monthly issues of Prison Legal News; and ii. All other publications sent from Plaintiff to prisoners at the
Jail. e. Defendants shall not have nor implement in the future, blanket
bans on books, magazines, newspapers, or other publications sent directly from any Publisher to prisoners at the Jail. f. Defendants shall not enforce or implement a mail policy that restricts mail to or from any prisoner to postcards only. g. Defendants shall not enforce or implement a mail policy that restricts the contents of envelopes to any maximum number of pages; h. Defendants shall provide written notice and an administrative process to appeal the Jail’s refusal to deliver any publication, correspondence, or other document (referred to as “objectionable material” in this paragraph) sent to a prisoner at the Jail. The written notice shall indicate which specific portion of the censored material is objectionable, which specific penological interest of the Jail is implicated by the objectionable material, and the manner in which the objectionable material implicates that penological interest.

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i. Defendants shall retain the censored objectionable material until all appeals have been exhausted or until the time for filing any appeal has expired. The administrative review process shall be an independent consideration of any appeal and a review of the objectionable material by a decision maker other than the person who originally refused to deliver the objectionable material.
j. It is further agreed and ordered that within 30 days of the date of entry of this injunction, the Defendants will insure that their new mail policy is disseminated to all employees of the Jail and that it will be fully implemented. Defendants’ counsel will furnish the Court and plaintiffs’ counsel with written confirmation of the same. Defendants shall ensure that any other written materials concerning their jail mail policy are amended and conformed to comply with the terms of this injunction.
k. Within 30 days of the date of entry of this injunction, Defendants shall post a copy of this injunction and a copy of the new mail policy in the prisoners’ living areas and on their website and they shall maintain said postings for a period of 180 days.
l. Defendants’ counsel will furnish the Court and plaintiffs’ counsel with written confirmation that they have complied with the terms

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Case 2:15-cv-12350-AC-MJH ECF No. 49 filed 06/17/16 PageID.698 Page 6 of 7
herein within sixty (60) days from the date of entry of this injunction. 7. The Court finds that this case concerns the First and Fourteenth Amendment rights of a publisher and is therefore not a case concerning prison conditions as defined in the Prison Litigation Reform Act of 1996. The Court further finds that the relief herein ordered is narrowly drawn, extends no further than necessary to correct the harm to PLN, and is the least intrusive means necessary to correct that harm. 8. The Parties agree that the public interest is served by the entry of this injunction, which protects the constitutional rights of publishers and other persons who correspond with prisoners by mail, and the rights of prisoners to send and receive mail. 9. The Court retains jurisdiction of this matter for the purpose of enforcement of this injunction.
DATED this 17th of June, 2016
s/Avern Cohn Hon. Avern Cohn United States District Court Judge

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Case 2:15-cv-12350-AC-MJH ECF No. 49 filed 06/17/16 PageID.699 Page 7 of 7
FOR MACOMB COUNTY AND THE SHERIFF’S OFFICE:
/s/ Anthony M. Wickersham Anthony M. Wickersham Sheriff for Macomb County, Michigan
/s/ John A. Schapka John A. Schapka (P36731) Attorney for Defendants Macomb County Corporation Counsel One South Main Street Mount Clemens, Michigan 48043
PRESENTED BY: HONIGMAN MILLER SCHWARTZ AND COHN LLP Attorneys for Plaintiff
By: /s/ James E. Stewart James Stewart (P23254) Honigman Miller Schwartz & Cohn LLP 130 S. First Street, 4th Floor Ann Arbor, MI 48104-1386 734-418-4256 (Tel) 734-418-4257 (Fax) Email: jstewart@honigman.com

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 Case 2:15-cv-12350-AC-MJH ECF No. 72 filed 10/10/17 PageID.1324 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

HUMAN RIGHTS DEFENSE CENTER

d/b/a Prison Legal News, a Washington not-

for-profit organization

Case No. 2:15-cv-12350

Plaintiff,

Hon. Avern Cohn

vs.

Mag. Judge Michael Hluchaniak

SHERIFF, ANTHONY M.

WICKERSHAM, individually and in his

official capacity; MICHELLE SANBORN,

individually and in her official capacity;

MACOMB COUNTY, MICHIGAN;

DOES 1-10, individually and in their official

capacities,

Defendants.

/

AGREED ORDER OF DISMISSAL

The parties hereby agree that this case has been settled and that all issues

and controversies have been resolved to their mutual satisfaction. The parties

request the Court to retain jurisdiction to enforce the terms of the Stipulated

Injunction (Docket No.: #49) under the authority of Kokkonen v. Guardian Life

Insurance Co. of America, 511 U.S. 375, 381-82 (1994):

IT IS HEREBY ORDERED: 1. The Court shall retain jurisdiction for the purpose of enforcing the terms
of the Stipulated Injunction entered into on June 17, 2016, a copy of which is attached and incorporated by reference as if fully set forth, as authorized by law.

Case 2:15-cv-12350-AC-MJH ECF No. 72 filed 10/10/17 PageID.1325 Page 2 of 2
2. Except as provided for in paragraph 1 above, this case is dismissed, with prejudice.

IT IS SO ORDERED.

Dated this 10th day of October, 2017.

Stipulated and Agreed to:
James Stewart /s/James Stewart Counsel for Plaintiff
John A. Schapka /s/John A. Schapka Counsel for Defendants

s/Avern Cohn Honorable Avern Cohn

2

 
 Case: 2:15-cv-12350 As of: 11/11/2018 05:39 PM EST 1 of 6
U.S. District Court Eastern District of Michigan (Detroit) CIVIL DOCKET FOR CASE #: 2:15−cv−12350−AC−MJH

CLOSED

Prison Legal News v. Wickersham et al Assigned to: District Judge Avern Cohn Referred to: Magistrate Judge Michael J. Hluchaniuk Cause: 42:1983 Prisoner Civil Rights
Plaintiff

Date Filed: 06/30/2015 Date Terminated: 10/10/2017 Jury Demand: Both Nature of Suit: 440 Civil Rights: Other Jurisdiction: Federal Question

Prison Legal News

represented by Daniel E. Manville Civil Rights Clinic 610 Abbot East Lansing, MI 48823 51−336−8088, x1137 Fax: 517−336−0646 Email: daniel.manville@law.msu.edu ATTORNEY TO BE NOTICED

Elizabeth Lamoste Honigman Miller 2290 First National Building 660 Woodward Ave Detroit, MI 48226 313−465−7448 Fax: 313−465−7449 Email: elamoste@honigman.com (Inactive) ATTORNEY TO BE NOTICED

Lance T. Weber Dan Newlin & Partners 7335 W. Sand Lake Road Suite 300 Orlando, FL 32819 407−250−6513 Email: lance.weber@newlinlaw.com TERMINATED: 01/06/2017 ATTORNEY TO BE NOTICED

Sabarish Neelakanta Human Rights Defense Center P.O. Box 1151 Lake Worth, FL 33460 561−360−2523 Fax: 866−735−7136 Email: sneelakanta@humanrightsdefensecenter.org ATTORNEY TO BE NOTICED

James E. Stewart Honigman Miller Schwartz and Cohn LLP 315 E. Eisenhower Suite 100 Ann Arbor, MI 48108 734−418−4256 Fax: 734−418−4257 Email: jstewart@honigman.com ATTORNEY TO BE NOTICED

V. Defendant

Case: 2:15-cv-12350 As of: 11/11/2018 05:39 PM EST 2 of 6

Anthony M. Wickersham

represented by John A. Schapka Macomb County Corporation Counsel Office 1 South Main Street, 8th Floor Mt. Clemens, MI 48043 586−469−7844 Fax: 586−307−8286 Email: john.schapka@macombgov.org ATTORNEY TO BE NOTICED

Defendant Michelle Sanborn

represented by John A. Schapka (See above for address) ATTORNEY TO BE NOTICED

Defendant Macomb County

represented by John A. Schapka (See above for address) ATTORNEY TO BE NOTICED

Defendant DOES 1−10, inclusive

Date Filed 06/30/2015
06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015

# Docket Text
1 COMPLAINT and Jury Trial Demand filed by Prison Legal News against DOES 1−10, inclusive, Macomb County, Michelle Sanborn, Anthony M. Wickersham with Jury Demand. Plaintiff requests summons issued. Receipt No: 0645−5228082 − Fee: $ 400. County of 1st Plaintiff: Out of State − County Where Action Arose: Macomb County − County of 1st Defendant: Macomb County. [Previously dismissed case: No] [Possible companion case(s): 13−13672 Judge Matthew F. Leitman ] (Stewart, James) (Entered: 06/30/2015)
2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News. (Attachments: # 1 Index of Exhibits) (Stewart, James) (Entered: 06/30/2015)
3 EXHIBIT A−Declaration of Paul Wright re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
4 EXHIBIT A−1 May 2015 Issue re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
5 EXHIBIT A−2 Habeas Citebook re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
6 EXHIBIT A−3 2014 Fundraiser re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
7 EXHIBIT A−4 RTS Sample PLN re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
8 EXHIBIT A−5 Info Pack re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
9 EXHIBIT A−6 Columbia re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
10 EXHIBIT A−7 Ventura re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
11 EXHIBIT A−8 Inmate Guide & Duties re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
12 EXHIBIT A−9 Urban Institute re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)

Case: 2:15-cv-12350 As of: 11/11/2018 05:39 PM EST 3 of 6

06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 06/30/2015 07/01/2015 07/01/2015 07/01/2015 07/01/2015
07/01/2015 07/01/2015 07/02/2015
07/02/2015 07/02/2015 07/02/2015 07/02/2015
07/02/2015 07/02/2015 07/06/2015

13 EXHIBIT A−10 ABA Standards re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
14 EXHIBIT A−11 ICE Operations Manual re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
15 EXHIBIT B−Declaration of John Clark re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
16 EXHIBIT B−1 Resume of John Clark re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
17 EXHIBIT B−2 Inmate Guide & Duties re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
18 EXHIBIT C−PLN v. San Diego re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
19 EXHIBIT D−PLN v.Lewis County re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
20 EXHIBIT E−PLN v. Ventura re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
21 EXHIBIT F−PLN v. Spokane County re 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Stewart, James) (Entered: 06/30/2015)
22 SUMMONS Issued for *Macomb County* (LHos) (Entered: 07/01/2015)
23 SUMMONS Issued for *Michelle Sanborn* (LHos) (Entered: 07/01/2015)
24 SUMMONS Issued for *Anthony M. Wickersham* (LHos) (Entered: 07/01/2015)
A United States Magistrate Judge of this Court is available to conduct all proceedings in this civil action in accordance with 28 U.S.C. 636c and FRCP 73. The Notice, Consent, and Reference of a Civil Action to a Magistrate Judge form is available for download at http://www.mied.uscourts.gov (LHos) (Entered: 07/01/2015)
25 NOTICE of Appearance by Sabarish Neelakanta on behalf of Prison Legal News. (Neelakanta, Sabarish) (Entered: 07/01/2015)
26 NOTICE of Appearance by Lance T. Weber on behalf of Prison Legal News. (Weber, Lance) (Entered: 07/01/2015)
27 STATEMENT of DISCLOSURE of CORPORATE AFFILIATIONS and FINANCIAL INTEREST by Prison Legal News (Stewart, James) (Entered: 07/02/2015)
28 NOTICE of Appearance by James E. Stewart on behalf of Prison Legal News. (Stewart, James) (Entered: 07/02/2015)
29 NOTICE of Appearance by Elizabeth Lamoste on behalf of Prison Legal News. (Lamoste, Elizabeth) (Entered: 07/02/2015)
30 CERTIFICATE of Service/Summons Returned Executed. Michelle Sanborn served on 7/2/2015, answer due 7/23/2015. (Lamoste, Elizabeth) (Entered: 07/02/2015)
31 CERTIFICATE of Service/Summons Returned Executed. Anthony M. Wickersham served on 7/2/2015, answer due 7/23/2015. (Lamoste, Elizabeth) (Entered: 07/02/2015)
32 CERTIFICATE of Service/Summons Returned Executed. Macomb County served on 7/2/2015, answer due 7/23/2015. (Lamoste, Elizabeth) (Entered: 07/02/2015)
33 CERTIFICATE of Service/Summons Returned Executed.. (Lamoste, Elizabeth) (Entered: 07/02/2015)
34 EXHIBIT B−Amended Declaration of John Clark re 15 Exhibit, 2 MOTION for Preliminary Injunction and Brief in Support by Prison Legal News (Lamoste, Elizabeth) (Entered: 07/06/2015)

Case: 2:15-cv-12350 As of: 11/11/2018 05:39 PM EST 4 of 6

07/21/2015 07/21/2015
07/21/2015 07/23/2015 07/24/2015 08/07/2015
08/11/2015
08/27/2015
09/18/2015 09/30/2015
09/30/2015
12/17/2015 01/04/2016
01/07/2016 02/19/2016 03/03/2016 03/03/2016

35 MOTION to Dismiss In Lieu of Responsive Pleadings by Michelle Sanborn, Anthony M. Wickersham. (Schapka, John) (Entered: 07/21/2015)
36 RESPONSE to 2 MOTION for Preliminary Injunction and Brief in Support filed by Macomb County, Michelle Sanborn, Anthony M. Wickersham. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Inmate Mail Duties, October 25, 2013, # 3 Exhibit Inmate Mail Duties, July 8, 2015) (Schapka, John) (Entered: 07/21/2015)
37 ANSWER to Complaint with Affirmative Defenses by Macomb County. (Schapka, John) (Entered: 07/21/2015)
38 NOTICE TO APPEAR: Status Conference set for 8/27/2015 10:00 AM before District Judge Avern Cohn (MVer) (Entered: 07/23/2015)
39 ATTORNEY APPEARANCE: Daniel E. Manville appearing on behalf of Prison Legal News (Manville, Daniel) (Entered: 07/24/2015)
40 REPLY to Response re 2 MOTION for Preliminary Injunction and Brief in Support and Certificate of Service filed by Prison Legal News. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−Prison Legal News v. County of San Diego, et al., # 3 Exhibit 2−Prison Legal News v. County of Ventura) (Lamoste, Elizabeth) (Entered: 08/07/2015)
41 RESPONSE to 35 MOTION to Dismiss In Lieu of Responsive Pleadings and Certificate of Service filed by Prison Legal News. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1−Johnson v. Wickersham et al. Order Adopting Report and Recommendation, # 3 Exhibit 2−Johnson v. Wickersham et al. Defendants Motion to Dismiss, # 4 Exhibit 3−Johnson v. Wickersham et al. Report and Recommendation) (Lamoste, Elizabeth) (Entered: 08/11/2015)
42 NOTICE OF HEARING on 35 MOTION to Dismiss In Lieu of Responsive Pleadings, 2 MOTION for Preliminary Injunction and Brief in Support. Motion Hearing set for 9/30/2015 02:00 PM before District Judge Avern Cohn (SCha) (Entered: 08/27/2015)
TEXT−ONLY ORDER TIME CHANGE ONLY re 42 Notice of Hearing on Motion,. HEARING WILL BE HELD ON THE SAME DATE BUT AT 10:00 A.M. Signed by District Judge Avern Cohn. (SCha) (Entered: 09/18/2015)
Minute Entry for proceedings before District Judge Avern Cohn: Motion Hearing held on 9/30/2015 re 35 MOTION to Dismiss In Lieu of Responsive Pleadings filed by Michelle Sanborn, Anthony M. Wickersham, 2 MOTION for Preliminary Injunction and Brief in Support filed by Prison Legal News (Court Reporter Sheri Ward) (SCha) (Entered: 09/30/2015)
43 ORDER DENYING WITHOUT PREJUDICE PLAINTIFFS MOTION FOR PRELIMINARY INJUNCTION (Doc. 2) AND DEFENDANTS MOTION TO DISMISS (Doc. 35). Signed by District Judge Avern Cohn. (SCha) (Entered: 09/30/2015)
44 NOTICE TO APPEAR: Status Conference set for 1/7/2015 11:00 AM before District Judge Avern Cohn (MVer) (Entered: 12/17/2015)
45 NOTICE by Prison Legal News Plaintiff's Outline of Issues for January 7, 2016 Status Conference (Attachments: # 1 Index of Exhibits, # 2 Exhibit A − Proposed Mail Policy, # 3 Exhibit B − Proposed Draft Consent Judgment) (Stewart, James) (Entered: 01/04/2016)
Minute Entry for proceedings before District Judge Avern Cohn: Status Conference held on 1/7/2016 (MVer) (Entered: 01/07/2016)
46 NOTICE TO APPEAR: Status Conference set for 3/10/2016 10:00 AM before District Judge Avern Cohn (MVer) (Entered: 02/19/2016)
47 NOTICE TO APPEAR: Status Conference is RESCHEDULED for 4/5/2016 11:00 AM before District Judge Avern Cohn (MVer) (Entered: 03/03/2016)
TEXT−ONLY NOTICE: Hearing on 3/10/2016 is Cancelled re 46 Notice to Appear (MVer) (Entered: 03/03/2016)

Case: 2:15-cv-12350 As of: 11/11/2018 05:39 PM EST 5 of 6

04/05/2016 05/11/2016 06/17/2016 06/24/2016
06/27/2016 06/27/2016
11/30/2016 12/15/2016 12/28/2016 01/06/2017 01/11/2017 01/11/2017 01/11/2017
01/30/2017
02/08/2017
02/14/2017 02/16/2017 02/22/2017

Minute Entry for proceedings before District Judge Avern Cohn: Status Conference held on 4/5/2016 (MVer) (Entered: 04/05/2016)
48 ORDER Bifurcating Claims and Setting Date for Final Pretrial Conference to 6/27/2016 at 10:00 a.m. Signed by District Judge Avern Cohn. (MVer) (Entered: 05/11/2016)
49 STIPULATED INJUNCTION Signed by District Judge Avern Cohn. (MVer) (Entered: 06/17/2016)
TEXT−ONLY ORDER re 48 Order. TIME CHANGE ONLY. FINAL PRETRIAL CONFERENCE WILL BE HELD AT 11:00 A.M. (PREVIOUSLY SCHEDULED FOR 10:00) ON JUNE 27, 2016. Signed by District Judge Avern Cohn. (MVer) (Entered: 06/24/2016)
Minute Entry for proceedings before District Judge Avern Cohn: Status Conference held on 6/27/2016 (MVer) (Entered: 06/27/2016)
50 SCHEDULING ORDER: Discovery due by 10/27/2016 Dispositive Motion Cut−off set for 11/28/2016 Final Pretrial Conference set for 2/28/2017 02:00 PM before District Judge Avern Cohn Signed by District Judge Avern Cohn. (Refer to image for additional dates) (MVer) (Entered: 06/27/2016)
51 ORDER EXTENDING TIME TO FILE DISPOSITIVE MOTIONS TO DECEMBER 28, 2016 Signed by District Judge Avern Cohn. (MVer) (Entered: 11/30/2016)
52 STIPULATED ORDER EXTENDING DISPOSITIVE MOTION CUT OFF TO JANUARY 11, 2017. Signed by District Judge Avern Cohn. (MVer) (Entered: 12/15/2016)
53 MOTION for Withdrawal of Attorney Lance Weber by Prison Legal News. (Weber, Lance) (Entered: 12/28/2016)
54 ORDER granting 53 Motion to Withdraw as Attorney.. Signed by District Judge Avern Cohn. (MVer) (Entered: 01/06/2017)
55 MOTION for Summary Judgment by Prison Legal News. (Neelakanta, Sabarish) (Entered: 01/11/2017)
56 INDEX of Exhibits re 55 MOTION for Summary Judgment by Prison Legal News (Neelakanta, Sabarish) (Entered: 01/11/2017)
57 STATEMENT of Material Facts by Prison Legal News (Attachments: # 1 Exhibit Wickersham Dep, # 2 Exhibit Sanborn Dep, # 3 Exhibit Wickersham Irogs, # 4 Exhibit Zimmy Dep, # 5 Exhibit Darga Dep, # 6 Exhibit August 2013 Post, # 7 Exhibit Neelakanta Decl.) (Neelakanta, Sabarish) (Entered: 01/11/2017)
58 Notice of E−mail Delivery Failure as to attorney Elizabeth Lamoste. Bounced NEF for 57 Statement, 56 Exhibit Index, 53 MOTION for Withdrawal of Attorney Lance Weber, 52 Order, 54 Order on Motion to Withdraw as Attorney, 55 MOTION for Summary Judgment , 51 Order. (SSch) (Entered: 01/30/2017)
59 RESPONSE to 55 MOTION for Summary Judgment filed by Macomb County, Michelle Sanborn, Anthony M. Wickersham. (Attachments: # 1 Index of Exhibits, # 2 Exhibit 1 − Michelle Sanborn Deposition Transcript, # 3 Exhibit 2 − Death Investigation, # 4 Exhibit 3 − Autopsy/Toxicology Report, # 5 Exhibit 4 − GIU Report, # 6 Exhibit 5 − Anthony Wickersham Deposition Transcript) (Schapka, John) (Entered: 02/08/2017)
60 NOTICE OF HEARING on 55 MOTION for Summary Judgment . Motion Hearing set for 3/29/2017 02:00 PM before District Judge Avern Cohn (MVer) (Entered: 02/14/2017)
TEXT−ONLY NOTICE: Hearing on 2/28/2017 is Cancelled re 50 Final Pretrial Conference, (MVer) (Entered: 02/16/2017)
61 REPLY to Response re 55 MOTION for Summary Judgment filed by Prison Legal News. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Unreported cases, # 3 Exhibit PLN First Set of RFPDs) (Neelakanta, Sabarish) (Entered: 02/22/2017)

Case: 2:15-cv-12350 As of: 11/11/2018 05:39 PM EST 6 of 6

03/22/2017 03/22/2017 05/04/2017 05/04/2017 05/19/2017
06/07/2017
06/07/2017 06/13/2017 06/13/2017 07/14/2017 07/14/2017
07/17/2017 07/27/2017 07/27/2017 09/05/2017 09/05/2017 10/10/2017

TEXT−ONLY NOTICE: Hearing on 3/29/2017 is Cancelled re 60 Notice of Hearing on Motion (MVer) (Entered: 03/22/2017)
62 NOTICE OF HEARING on 55 MOTION for Summary Judgment . Motion Hearing IS RESCHEDULED for 5/10/2017 02:00 PM before District Judge Avern Cohn (MVer) (Entered: 03/22/2017)
TEXT−ONLY NOTICE: Hearing on 5/10/2017 is Cancelled re 62 Notice of Hearing on Motion (MVer) (Entered: 05/04/2017)
63 NOTICE OF HEARING on 55 MOTION for Summary Judgment . Motion Hearing RESCHEDULED for 6/7/2017 02:00 PM before District Judge Avern Cohn (MVer) (Entered: 05/04/2017)
64 RESPONSE to 55 MOTION for Summary Judgment filed by Macomb County, Michelle Sanborn, Anthony M. Wickersham. (Attachments: # 1 Index of Exhibits, # 2 Exhibit Defendants Response to Admissions Request, # 3 Exhibit Macomb County Inmate Guide) (Schapka, John) Modified on 5/21/2017 (LHos).[DOCUMENT ENTITLED STATEMENT OF MATERIAL FACTS IN SUPPORT OF OPPOSITION TO PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT] (Entered: 05/19/2017)
Minute Entry for proceedings before District Judge Avern Cohn: Motion Hearing held on 6/7/2017 re 55 MOTION for Summary Judgment filed by Prison Legal News Disposition: Motion taken under advisement (Court Reporter: Sheri Ward) (MVer) (Entered: 06/07/2017)
65 NOTICE TO APPEAR: Bench Trial set for 8/2/2017 10:00 AM before District Judge Avern Cohn (MVer) (Entered: 06/07/2017)
66 ORDER denying 55 Motion for Summary Judgment. Signed by District Judge Avern Cohn. (MVer) (Entered: 06/13/2017)
67 NOTICE TO APPEAR: Status Conference set for 7/17/2017 10:00 AM before District Judge Avern Cohn (MVer) (Entered: 06/13/2017)
68 TRIAL BRIEF on Damages by Prison Legal News (Attachments: # 1 Exhibit Summary of Censored Mail Items, # 2 Exhibit Total Censored Items) (Neelakanta, Sabarish) (Entered: 07/14/2017)
69 PETITION for Attorney Fees by Prison Legal News. (Attachments: # 1 Exhibit Decl. of James Stewart, # 2 Exhibit Decl. of Sabarish Neelakanta, # 3 Exhibit Decl. of Bruce E.H. Johnson, # 4 Exhibit Decl. of Daniel Manville) (Neelakanta, Sabarish) (Entered: 07/14/2017)
Minute Entry for proceedings before District Judge Avern Cohn: Status Conference held on 7/17/2017 (MVer) (Entered: 07/17/2017)
TEXT−ONLY NOTICE: Bench Trial on 8/2/2017 is Cancelled re 65 Notice to Appear (MVer) (Entered: 07/27/2017)
70 NOTICE TO APPEAR: Status Conference set for 9/5/2017 10:00 AM before District Judge Avern Cohn (MVer) (Entered: 07/27/2017)
Minute Entry for proceedings before District Judge Avern Cohn: Telephonic Status Conference held on 9/5/2017 (MVer) (Entered: 09/05/2017)
71 NOTICE TO APPEAR: Status Conference set for 10/5/2017 10:00 AM before District Judge Avern Cohn (MVer) (Entered: 09/05/2017)
72 STIPULATED ORDER DISMISSING CASE Signed by District Judge Avern Cohn. (Attachments: # 1 Attachment − Stipulated Injunction) (MVer) (Entered: 10/10/2017)